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is taken, as in that charter where Earl Duncan takes the consent of his daughter Isabella, and her husband, and their son and heir, Walter Stewart * But these were all as heads of the house, and heirs of its highest privileges.
That heirs-female, succeeding to a barony or Comitatus, divided the lands, while the eldest succeeded to all the honours, including the caput baronice, as impartible rights, is indisputable law.t Her right to be consulted and to adhibit her consent to a deed of mortification, where such grant was contemplated by the lord in possession, was precisely of the same impartible nature as the right to possess the chief messuage; and where a barony was to descend to coheiresses a fortiori the consent of the eldest to such a grant would be required, for she could less afford to have her fief diminished in its feudal dues and services, as it was to be lightened in her person of half the lands.
There is no disguising the fact, that the coheiresses of Rusky and their heirs admitted the right and title of Lord Dernely as Earl of Lennox, after the date of their contracts of excambion. That they did so under an impression of the purely territorial nature of such dignities is scarcely to be doubted. Lord Mansfield to be sure expressed this opinion in his judgment on the
* Supra, p. 35, note. See also for other examples, supra, pp. 2, 29, 73. It is needless to multiply instances of a practice perfectly understood by every one at all conversant with ancient Scottish deeds.
t Stair, 3, 5, 11. Erskine, 3, 8, 13. Fordun, lib. ii. c. 5.
Lord Mansfield recognized the law in these words: "In England, whenever a peerage went to coheiresses it was in abeyance, and optional for the Crown to revive it. I take by analogy in such a case it went, in Scotland, to the eldest female."—Speech in the Sutherland Case, MS. Advocates' Library.
Sutherland case,—"With all due deference to the author of the case, (Lord Hailes) I am now satisfied there is no foundation for his territorial principle. It certainly does not now exist, and no man living can say when it did. It clearly must have ceased before 1214, when lands came in commercio, and adjudication went against them,"*—but it was more than two centuries after the date assigned by that great chancellor, as the period when territorial honours ceased, that John Lord Dernely, and his son Mathew Stewart, both at the same time styled themselves Earl of Lennox, clearly because one was fear and the other liferenter of the Comitatus. This peculiarity can be explained only by admitting the territorial principle, and, indeed, the example finds its prototype in an age when even Lord Mansfield admitted that dignities were purely territorial. Sometime in the twelfth century there existed together, Alwin Earl of Lennox senior, and Alwin Earl of Lennox junior, father and son.f
But while it is obvious that it was to the territorial feeling of the times that the coheiresses of Rusky ultimately conceded their rights, the question remains, whether they legally divested themselves and their descendants for ever of all right and title to these honours? Certainly there never was a case in which that ancient and now obsolete principle appears so naked and meager in operating as a conveyance of such a dignity. It is not that the whole lands of the Comitatus of Lennox changed hands, accompanied by its territorial privileges. The lands were divided, and the respective portions retained, and held of the Crown by all the coheiresses. But one of these heirs purchased from the other
* MS. Advocates' Library. t See supra, p. 2.
two, in very general terms, all their interest in the great superiority and patronages of the fief, without any more express reference to the dignity. Then this transaction did not pass through the sovereign, as was the practice even in such territorial transferences. It did not proceed upon a resignation into the hands of the Crown, followed by a re-grant to the purchaser. Dernely, having resumed the dignity upon a basis that had been judicially declared illegal by King and council, bargained for the rights of superiority, belonging to the other coheirs, piecemeal and at long intervals, and then resigned that which was not feudally in his own person, into the hands of his sovereign for new charters. Now, although Lord Mansfield may have been wrong in his antiquarian views and historical opinion, most unquestionably the House of Lords, under his distinguished direction, have ruled, that circumstances far less equivocal than the species Jacti of the Lennox case for Dernely, cannot be listened to as founding an argument for the transference of a peerage, even in ancient times.
Upon the death of William Earl of Sutherland in 1766, a contention arose for the dignity.
1. A claim was instituted, by the guardians of his only and infant daughter Elizabeth, for her as heir-general of the earldom.
2. Sir Robert Gordon of Gordonstoun, Bart, claimed as lineal heir-male of Adam Gordon, who he alleged was created Earl of Sutherland about the year 1517, in consequence of his marriage with Elizabeth, sister of John Earl of Sutherland, who died in 1514 without heirs of his body.
3. George Sutherland, Esq. of Forse, claimed as lineal heir-male of the earldom.
It was admitted by all the parties, that no patent of the dignity of Sutherland could be produced, and that the limitation remained to be proved "from such writings and deeds of the family as have escaped the injuries of time, from similar or analogous instances, and from the general principles of law with regard to the succession of dignities."*
The competitors of the infant daughter of the last Earl had to establish that the limitations of the earldom of Sutherland excluded females, and they claimed the benefit of a presumptiojuris to that effect, in the absence of patent or instrument of creation proving the contrary, because they maintained that ancient Scottish peerages were so limited as a general rule.
To this plea there was a very simple and triumphant reply for the infant. Elizabeth, the sister and heiress of John Earl of Sutherland, in 1514, and whose spouse, Adam Gordon, was alleged to have been created Earl of Sutherland, was in reality Countess of Sutherland in her own right, as heiress of her father, and the creation in favour of Adam Gordon, with its supposed limitation to heirs-male, was a fiction.
But Lord Hailes, who was one of the guardians for the young claimant, being shocked at this assumption, of a presumptiojuris in favour of the male descent of Scottish peerages, when his lore in such antiquities informed him that the sound presumption was the very reverse, would not suffer it to pass. He brought his copious knowledge to bear upon the point in a celebrated work, unrivalled in the annals of litigation, and which is, to this day, our best institute of ancient peerage law. In the additional Case for his ward, he multiplied
* Lord Hailes.
examples in support of the propositions that, female succession in land-estates was always the law of Scotland, and that, a connection between lands and titles of honour was the source of such dignities in Scotland, and long continued to be so.* Founding upon this territorial principle, he produced a series of charters of the Sutherland family from the year 1347 down to the year 1601, being the successive conveyances of the Comitatus, in all of which the limitation was to heirs-general; and he inferred as a necessary consequence, that such was the original limitation of the dignity; and thus he destroyed the presumptio juris of his antagonists. Lord Mansfield, however, would not listen to this doctrine, and expressed his dissent in the dictum that has been already quoted.f But he seized the specialty in favour of the infant claimant, namely, that in 1514 the dignity had actually descended to a female who held it in her own right; and, accordingly, the House of Lords decided in favour of the present Duchess Countess of Sutherland.
Now there was a finding embodied in this judgment which is very important to the present inquiry. It was adjudged " That none of the charters produced affect the title, honour, and dignity of Earl of Sutherland, but operate as conveyances of the estate only." But these charters, some of them in the fourteenth and fifteenth centuries, were complete grants of the whole Comitatus, executed in the most formal and legal manner through the medium of the sovereign. They were
* "Additional Case of Elizabeth, claiming the title and dignity of Countess of Sutherland, by her guardians." Heard at the bar of the House of Lords, and decided in her favour 21st March 1771
t See supra, p. 113.
J MS. Advocates' Library.