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country and his peers, his right to sit in Parliament as Earl of Lennox. The difficulty of proving whether, Margaret or Elizabeth of Lennox was the elder of Earl Duncan's daughters, can never be urged as explanatory of this abeyance of the title. The fact was of course a matter of notoriety. To adopt the words which Agnes Menteith is made to urge as a subsidiary plea against Dernely's service, “They have erred and partially delivered, that said that the said John (Lord Dernely) come of the eldest daughter of Earl Duncan, for it is well known to your Lordships, and to the most part of the realm, that I come of the eldest sister, and the said John of the youngest, and that needs no other proof, for the law says cum notorium est non incumbit probari.” The question was the relative ages of the respective grandmothers of the parties,—coheiresses of the Lennox,—ladies whose patrimonial rights were too important and extensive to have left that question of primogeniture doubtful, far less inextricable. Besides, Dernely himself was married in 1438, certainly more than twenty years before the death of the Duchess Isabella ; his father Sir Alan was killed in 1439; thus for many years, the old Countess of Lennox must have regarded Dernely as the heir of the earldom, had he been the son and heir of her next oldest sister. If such had been his status, it could not have failed to be matter of notoriety to the whole realm, considering how distinguished, warlike, and aspiring that race of Stewart had become. In the memorial for Gleneagles a document is quoted, as being among the family papers, which of itself would be sufficient to prove that Dernely was not by right of primogeniture Earl of Lennox. Not having seen the
original, I shall quote the reference to it in the words of Lord Loughborough.
"There is likewise produced, a copy of the decision, given by Lord Lyle and Lord Oliphant, in 1491, upon the subject; the determination of which the parties had finally submitted to them, with six other noblemen and gentlemen mutually named, who were joined with them as counsellors and amicable compositors. This deed is dated at Stirling in September 1491,—sets forth the names of the parties, and their claims, and the names of the arbiters, and that they had fully agreed and concorded, that the said Sir John, and James Haldane, between and the 10th of October then next, should give up to Lord Darnly their quarter of the property of the said earldom, excepting the particular lands therein named ; so that Lord Darnly would have right to three quarters of the earldom; excepting what they thus reserved to themselves, and on the other hand, that Lord Darnly should, between and the said 10th of October next, resign and give up to the said James Haldane, all the right of the superiority andtenandry of the said earldom. The deed is subscribed by the arbiters and their counsel, and the parties, who, it is therein said, had, of their own free will agreed thereto, and sworn faithfully to observe and keep the same."
This was a most extraordinary decision, when all the proceedings and pleas of parties are considered. It is dated more than a twelvemonth after Lord Dernely had purchased from Elizabeth Menteth all her right to the superiorities and freedoms of the earldom; and about eighteen months before Haldane raised his last summons of reduction and damages against Dernely's service and its abettors ; and about two years before he gave up all his rights of superiority in the Lennox to that nobleman, precisely as Elizabeth Menteth had done. Assuming the accuracy of the Gleneagles memorial, it certainly affords a powerful argument that Lord Dernely was not by right of blood Earl of Lennox. Lords Lyle and Oliphant were his particular friends. Lyle had even been his companion in the revolt for which Dernely incurred a temporary forfeiture in 1488. At the very period when this decree arbitral is said to have been given Dernely sat in Parliament as Earl of Lennox. If also dejure Earl, is it conceivable, that, after all the uneasiness which he had suffered in his possession of the honours—after the vexations litigiosity of John Haldane, kept up for about twentyyears—after his own recent forfeiture and restoration, and having the fief now open to him, and unburdened by Lord Avandale's liferent,—his most intimate friends, the matter being in their own hands, would, instead of clearing his just right to the earldom, and silencing opposition for ever, have pronounced a decision which only rendered confusion worse confounded. Perhaps the real spirit of the decree-arbitral was, that Lord Dernely should use his own discretion as to the assumption of the title of Earl of Lennox, —that Haldane should deliver up to Dernely his, Haldane's, quarter of the Comitatus, with the reservation of so much land as might suffice for the estate of a private gentleman, but that Haldane was to have "all the right of the superiority and tenandry of the said earldom" if, under such circumstances, he could make the grant available.
Had Lord Dernely been heir of the dignity which the old Countess kept up in her own person with punctilious ceremony, he must have been frequently consulted upon such feudal occasions, and could have produced evidence of the fact. Suppose that at this moment a charter of Duchess Isabella were produced, whose preamble bore the consent and assent of John Stewart of Dernely, or of Sir Alan his father, or of Elizabeth of Levenax his grandmother, then, notwithstanding the strong evidence of usurpation already displayed, it would be hopeless in the face of such a charter to contend for the right of any other branch than that of Dernely to the earldom of Lennox. Taking such consent of a third party to a feudal grant is so certain an indication of that individual being acknowledged to have the next interest in the particular fief, as not to be susceptible of any other explanation. If a single proof were extant that Isabella of Levenax, ever in this manner acknowledged her sister Elizabeth as standing next to herself in the highest rights and interests of the Comitatus, then, though the whole conduct of John Lord Dernely would be totally inexplicable, yet his pretensions would scarcely be redargued by any thing that has been stated. There is, however, not one example of the kind to be found in his favour, though he was a married man in 1438, more than twenty years before the old Countess died.
If, on the other hand, it can be shown, that Isabella in any of her charters, took the consent of her sister Margaret, and not Elizabeth, we apprehend that this independent piece of evidence—of a nature successfully to have met all the proofs already alluded to against Dernely, had the plea of that nobleman been so supported—must have an irresistible effect when corroborative of all that has been stated against it. Now such an original charter has been already referred to, and sets at rest this branch of our inquiry.
It is that charter of mortification of the lands of Ballagane in the Lennox, granted by the Duchess Isabella to the Predicant friars of Glasgow for the repose of the souls of her kindred. It was most necessary in a grant of mortification, that the consent of the next heir should be taken, for the church was exempt from feudal dues and services. * Accordingly the charter in question runs in the name of the Duchess, but " cum consensu et assensu dilectissime sororis nostregermane Margarete uxoris quondam Domini de Rusky, dedisse et caritatis intuitu concessisse," fyc. and it concludes, " In cujus rei testimonium sigillum nostrum una cum sigillo dilectissime sororis nostre supra dicte presentibus sunt appensa," &c.t
It is difficult to conjecture a reply to the evidence of primogeniture which this consent affords. No one acquainted with the feudal customs will say that Margaret and Elizabeth, being to succeed as coparceners after the death of Isabella, and having an equal interest in the fief, it was immaterial which of their consents was obtained. The great object of taking the consent of the next heir, as is well known to every feudist, was, that the next successor to the command of the fief might not be compromised in his feudal interests and dignity. It was not a mere pecuniary consideration in reference to the dominium utile of those coming after the granter,— (in which view both Margaret and Elizabeth should have adhibited consent, instead of either being sufficient) it was a feudal practice, having reference to the head of the house, and the power and dignity of the fief. There are instances where the consent of more than one person
* "In lands mortified in times of Popery to the church, whether granted to prelates for the behoof of the church, or in puram eleemosynam, the only services prestable by the vassal were prayers, and singing of masses for the souls of the deceased, which approaches nearer to blanch-holding than ward."—Erskine.
t See supra, pp. 18, 19.