Earl of Mar - 19th Century

19th Century

In 1824, the Earldom was finally restored by Act of Parliament (5 Geo. IV c. 59) to John Francis Erskine, the heir of the attained Earl. His grandson, the ninth Earl, successfully claimed inheritance the earldom of Kellie and associated titles in 1835.

At the death of the ninth Earl of Mar and eleventh Earl of Kellie in 1866, the Earldom of Kellie and the family's estates passed to Walter Erskine, the cousin of the late Earl, and his heir male. Meanwhile, it was assumed that the Earldom of Mar passed to John Francis Goodeve, the late Earl's nephew, and his heir general. Goodeve changed his name to Goodeve Erskine; his claim was agreed upon by all. He even participated in the election of representative peers for the Peerage of Scotland. However, the Earl of Kellie submitted a petition to the House of Lords asking that the Earldom of Mar be declared his, dying before it could be considered. His son, the thirteenth Earl of Kellie, renewed the petition, and the Lords referred it to their Committee on Privileges. The petition made a number of claims:

• The original Earldom of Mar was a territorial title rather than a title of peerage and was therefore "indivisible." (In other words, the territory could not be separated from the title.)
• Alexander Stewart obtained a new Royal charter for the Earldom, rather than receiving it in right of his wife Isabel.
• After the death of Alexander Stewart, his lands were passed to the Sovereign in accordance with the charter, and thereafter were disposed of by the Crown.
• As the territorial Earldom was "indivisible", upon the termination of the territory, the earldom must have ended also.
• Therefore, since the territorial Earldom had already become non-existent, the 1565 grant was not a revival of that title. Rather, it was a totally new creation, this time in the form of a peerage title.
• Since the instrument of the 1565 grant cannot be found, the presumption ought to be that the Earldom passes to heirs-male, and not to heirs-general. Thus, the Earl of Kellie is entitled to the Earldom of Mar as he is the late Earl of Mar's heir male, while John Goodeve Erskine was an heir-general.

Goodeve Erskine had different ideas, however. He portrayed the Crown's takeover of the territorial Earldom not as pursuant to a charter, but rather as an act of tyranny. He argued:

• James I, in a tyrannical act, seized the lands of Alexander Stewart, when these should have passed to Robert, Lord Erskine.
• The "true" Earls never agreed to terminate their claim to the Earldom.
• The 1565 grant was a restitution of the old territorial Earldom rather than a new creation.
• Because the title is a restoration of a territorial Earldom, and because the territorial Earldom could pass to heirs-general, John Goodeve Erskine was the rightful heir, being the late Earl of Mar's heir-general.

The House of Lords Committee on Privileges ruled in 1875, to the dissatisfaction of many, that the Earldom of Mar was newly created in 1565, passed only to heirs-male, and therefore belonged to the Earl of Kellie, and not to Goodeve Erskine. The Lord Chancellor, Roundell Palmer, 1st Baron Selborne, declared it to be "final, right or wrong, and not to be questioned".

However, there was a sentiment that the Lords had decided wrongly. A bill was brought to Parliament, to allow Goodeve Erskine to assume the title, and was passed without dissent. The Earldom of Mar Restitution Act 1885 (48 & 49 Vict.) declared that because of the doubts relating to the 1565 creation, it would be assumed that there are two Earldoms of Mar. The Earldom created in 1565 would be held by the Earl of Kellie. The ancient Earldom, however, was declared to be still in existence, and was given to John Goodeve Erskine. For the purposes of precedence, it is assumed that the Earldom held by Goodeve Erskine's heirs was created in 1404.