THere having in the beginning of February 1689, a Whale come a Shore at the Lime-kilns, within the Regality of Dumfermling, the said Mr. William as having Commission from the Marquiss of Athole Lord Vice-Admiral of this Kingdom, did cause secure that great Fish, and put her to a publick and judicial Roup, after publick Intimation in the usual Form, and several Merchants in Edinburgh and others, having come and offered at the Roup, John Fotheringham in Culross, did at last offer 500 Merks for the Fish, and his offer being the greatest, the Fish was judicially sold and rouped to him, for the said Sum of 500 Merks.

The Earl of Tweddale pretending Right to the Office of Admirality, and Pro­fits thereof within the Bounds of the Regality of Dumfermling, by vertue of ex­pired Apprysings against the Deceast Earl of Dumfermling, and publick Infeft­ments following thereupon, did about two days after the said judicial Roup, made by Mr. William Erskine, send over Mr. John Buchannan with a special Commissi­on, to make a new Roup of the said Fish, and accordingly she was rouped and sold by him to James Campbel for 650 Merks; but notwithstanding of the said second Roup, Mr. William Erskine and George Fotheringham to whom the Fish was Disponed by Mr. William Erskine retained the Possession, and the Earl of Twed­dale and Mr. Campbel having pursued Mr. William Ersktne before the Privy Coun­cil as guilty of a Riot, in retaining the Fish, the Lords of Privy Council after ad­vising of the Probation taken thereanent, did assoilzie from the Riot, and did re­mit the Point of Right to be summarly discussed before the Lords of Session.

The Process being called in presentia, the Earl of Tweddale produced a Charter under the great Seal in anno 1637, granted by King Charles the first, to the Earl of Dumfermling of the Erected Lordship of Dumfermling, with the Office of Ad­mirality within the Bounds thereof, whole Profits and Emoluments belonging to the said Office, with his own Infeftment under the great Seal, upon an expired Comprysing against the Earl of Dumfermling, and a Summons of Declarator; and craved, that his Right might be declared conform thereunto, and that he might be preferred to the F [...]th contraverted; as having come in within the Bounds con­tained in his saids Infeftments, because albeit the Dukes of Lennox had formerly the Right of Admirality over all the Kingdom, yet they were Denuded of the Right thereof in favours of Queen Anna, to whom King Charles the first was ser­ved Heir, as to the Office and Perquisits thereof, within the Bounds of the Re­gality of Dumfermling, and that King Charles the first being by his Charter in anno 1637, Denuded of the Right thereof in favours of the Earl of Dumfermling, the Earl of Tweddale upon his expired Comprysing, had Right to the said Of­fice of Admirality and Perquisits thereof.

It was answered for Mr. William Erskine, that the Earl of Tweddale could never be heard, to crave preference upon the account of the Charter, granted by King Charles the first to the Earl of Dumfermling, nor could his Declarator be sustain­ed, because King Charles the first who granted the said Charter, and his Prede­cessors, were long before the date thereof, Denuded in favours of the Dukes of Lennox, who for many Generations by past are known by their antient Rights and Infeftments, to have possessed and enjoyed the Office, Profits, and Emolu­ments of the Admirality over all the Kingdom. 2. It is clear by the Extract of a Letter out of the Registers of Exchequer, that King Charles the first had Denu­ded himself of the Right of Admirality over all the Kingdom, in favours of the Dukes of Lennox, before the date of that Letter which was in anno 1628. 3. The said King Charles the first, did in anno 1627 grant a Commission to the Earl of Linlithgow, to exerce the Office of Admirality, during the Minority of the Duke of Lennox, and to be Comptable to the Duke, as sole High Admiral over all the Kingdom, for the Perquisits, Profits, and Emoluments of the same. 4. In the Parliament 1633, where King Charles the first was personally present, the Duke of Lennox, and his Heirs Right to be High Admiral over all the Kingdom, without any Exception or Reservation, is in most ample and comprehensive Terms affirmed and declared, by King Charles the first himself, and the three Estates, and all prior Grants and Infeftments past and expede before that time, which might any ways derogat from, or prejudge the Duke of Lennox absolute Right of Admirali­ty, are expresly rescinded and annulled. 5. In the same Parliament, and before the date of that Act, there is likwise a Commission granted to several Noblemen and Gentlemen, to take special Tryal and Enquiry, anent any Incroachments, made upon the Duke of Lennox his said Right and Office of Admirality, & to re­port the same either to the Parliament or Privy Council, to the effect, the Duke of Lennox might be reponed there-against, and they rescinded and annulled. 6. The Charter granted to the Earl of Dumfermling in anno 1637, was unwarrantably expede, not being revised or approven of, by the Earl of Linlithgow, contrait to the Kings express Warrant and Command, contained in his Letter, dated in an­no 1628, Registrat in Exchequer, and the same was à non habente potestatem, the King being formerly Denuded as said is. 7. Conform to these Rights and Infeft­ments, the Dukes of Lennox and their Deputs, have been in Immemorial Posses­sion of that Office, and uplifting the Profits and Perquisits thereto belonging, over all the Kingdom past all Memory.

It was Replyed for the Earl of Tweddale, that his Right ought to be declared, conform to his own and the Deceast Earl of Dumfermling their Charters, under the great Seal above narrated, notwithstanding of the grounds above-represented for Mr. William Erskine, because the Duke of Lennox being Denuded in favours of Queen Anna, and King Charles the first having Succeeded to her Jure priva­to, the Charter granted by him to the Earls of Dumfrmling in anno 1637, con­taining a Novo Damus in ample Form, did Denude the King of the Right and Office of Admirality, within he Bounds of the Regality of Dumfermling, in fa­vours of the said Earl, and gave him Right to the Disposition granted by the Duke of Lennox, in favours of Queen Anna. 2. No respect can be had to the Extract of the Kings Letter out of the Exchequers Books in anno 1628, because the said Letter makes mention of, and relates to a Signature which is not produced, & non constat, if ever any such Signature was ever granted or expede. 3. The Act of Parliament in anno 1633 alledged upon, is allenarly a private Act, and cannot prejudge the Earl of Tweddales Right, there being nothing in that Act deductum or [Page 3] tractatum anent the Office of Admirality, within the Bo [...]nds of the Regality of Dumfermling, and the same is only a Ratification of such Rights, as the Dukes of Lennox had then in their persons at the time; and albeit the said Act had made express mention of the Office of Admirality, within the Bounds of the Regality of Dumfermling, yet the same falls under the Act Salvo jure past in that Parlia­ment, and repeated the Decision betwixt the Duke of Lauderdale and the Vis­count of Oxenfoord, and the said Act could never annul the Right of the Admirality within that Bounds, competent to the King Jure privato; and albeit the said Act be Statutory, annulling all Rights granted by King or Parliament, in prejudice of the Dukes, yet it could never be understood to annul Rights granted by the Duke himself. 4. The Charter granted to the Earl of Dumfermling in anno 1637, containing a Novo Damus in ample form as said is, was a Countermand and an ex­press Revocation of the Letter, written by the King to the Exchequer in anno 1628. 5. The Earl of Tweddale and his Deputs have been in Possession of that Office, by holding of Courts of Admirality, and Adjudging Ships as Prize, &c.

It was Duplyed for Mr. William Erskine, that the former Grounds of Prefe­rence alledged for him were repeated and oponned, and which stood relevant, notwithstanding of the Replyes. Because 1. by the Commission granted to the Earl of Linlithgow in anno 1627, and the Kings Letter in anno 1628, and the Commission granted to the Noblemen and Gentlemen by the Parliamen in anno 1633, for enquiring into the Incroachments made upon the Office of Admirality, and the foresaid Act made in the same Parliament following thereupon, the deli­berate and forward Resolution, & enixa voluntas of King Charles the First, to have the Office of High Admiral, with the Priviledges and Emoluments thereto be­longing, Heretably setled and secured in the Family of Lennox, from which his Majesty was descended, in the most honourable and ample manner, is clear and evident; and that Office being one of the first and most honourable Offices in the Kingdom, it is of its own nature inseparable and indivisible; and it is against the honour and reputation of the King and Kingdom, that it should be sparpled and divided. And albeit the Lord High Admiral may constitute Deputs for several Precincts, yet it was never heard of in any Nation, that such a high Office, was, or could be sparpled, or divided, so as any privat person could exerse and enjoy the same as a Soveraign Right, independent of the High Admiral; and the Right which the Earl of Tweddale pretends to, is als absolute and independent as the Duke of Lennox own Right; and if such a preparative should be sustained, the honou­rable Offices of High Admiral, Constable, Marischal, Great Steward, and High Chamberlain of the Kingdom, might in process of time by being so sparpled and divided, become absolutely extinct, or otherways rendred contemptible and in­significant. 2. The Kings Letter being only in relation to the Admirality, to which the King had no pretence jure coronae, but jure privato, as Heir to his Mo­ther Queen Anna, his Majesties assertion in that Letter, that he had formerly di­sponned the Office of Admirality over all the Kingdom to the Duke of Lennox, was equivalent to a formal Disposition extended, and was a sufficient Obligation against the King tanquam privatus, whereupon the Duke of Lennox might have forced him to dispone. 3. In the foresaids two Commissions under the Kings Hand, his Majesty declares, acknowledges, and asserts the Duke of Lennox Right of Admirality over all the K ngdom, without exception; and which per se, were sufficient to debar the King jure privato from quarrelling the Duke of Lennox Right to the same in all time thereafter. 4. It is an absolute mistake that the Act of Parliament 1633, founded upon, is only a Ratification of the Duke of [Page 4] Lennox former Rights, because the said Act is not only in the terms of a positive Law, bearing these words, Statutes and Ordains; by which the Duke of Len­nox Right is by the King himself, personally present, and whole Estates, acknow­ledged, asserted, and affirmed as High Admiral over all the Kingdom, without exception; but the whole tenor thereof demonst [...]ats to conviction, that the design thereof was to have the Duke of Lennox and his Heirs, restated, and reinsta [...]led in the Office of Admirality over all the Kingdom, without exception of any part or place, in the most honourable and most ample and comprehensive manner that could be devised; all and whatsomever Rights, Grants, or Confirmations which might any ways prejudge or incroach upon the said Office, being thereby expresly Rescinded and Annulled. And as it is evident from what is formerly represen­ted, that King Charles the First was fully Denuded of all Right or Pretence he had to that Office jure privato, in favours of the Duke of Lennox, so his Maje­sty being present, and consenting to that Act of Parliament, was a new passing from, and renuncing of all pretence of privat Right competent to his Majesties in the Dukes favours. 5. The Act Salvo jure in the Parliament 1633, is likewise oponned, wherein there is only a Salvo, and Reservation in favours of the King and his Successors, in relation to any prejudice they might sustain anent several particulars contained in that Act. and under none of which the Kings Pretences to the Admirality jure privato, can by any Stretch whatsomever be understood to be comprehended; and the Earl of Dumfermling's Right being dated four years after the Act of Parliament, made in favours of the Duke of Lennox, in the year 1633, the Earl of Tweddale hath no interest to found upon the Act Salvo, past in that Parliament, 6. By the 16th Act of the Parliament 1681, the High Admiral is expresly appointed to be the Kings Lieutenant, and Justice General [...] upon the Seas, and in all Ports, Harbours, or Creiks of the same, and upon fresh Waters, and Navigable Rivers below the first Bridge; and appointed to have the sole Pri­viledge and Jurisdiction in all Maritime and Seafaring Causes, als well▪ Civil as Criminal, and over all persons within the Realm; Discharging all other persons whatsomever to meddle with, or pretend Right to the same: And which last Act per se, is a Renovation of the High Admirals Right, and which being con­joyned with the former Rights and Acts of Parliament, in favours of the Dukes of Lennox, as High Admiral, doth absolutly evacuat all shadow of Right and Pre­tence that the Earl of Tweddale as Compryser of the Earl of Dumfermling's Estate, can pretend to the Office of Admirality, within the Bounds of the Regality of Dumfermling, or any where else, within the Kingdom. 7. The Earl of Dum­fermling's Charter in anno 1637, being only a Charter passing in course, under the Kings Hand, as King, can never be interpret a Countermand or Revocation of the Kings Letter written to the Exehquer in anno 1628, in favours of the Duke of Lennox, unless the said Letter had been mentioned in the Signature, but must still be understood to have been impetrat per obreptionem, and unwarrantably expede, contrair to the Kings express Command; and if the King had not been Denuded of the Right he had jure privato, as Heir to his Mother, before that time, as he truly was Denuded thereof, in favours of the Duke of Lennox, many years before the year 1637, the said Signature mentioning nothing of the Kings privat Right, but only passing in course, could never have been extended to the Kings privat Right: And albeit that Charter bears a Confirmation of the Dispo­sition, alledged made by the Duke of Lennox, in favours of Queen Anna, yet the said Disposition is not produced, nor was it ever Ratified or Confirmed in Parlia­ment before King Charles the First became absolutly Denuded in favours of the