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charters conveying, in the natural line of succession, totum et integrum Comitatum de Sutherland, &p. cum pertinentibus, and always proceeding upon a resignation into the hands of the Crown, who gave out the new grant. Lord Mansfield, however, laid down the law, which was ruled by the House, that such charters were only to be considered as conveyances of the estate, having no application to the dignity.
If, then, either of the two coheiresses of Rusky had been seized in the whole Comitatus of Lennox, and had resigned totum et integrum dictum Comitatum cum pertinentibus, including every right of superiority and patronage belonging to it, in order to vest the same in Dernely, the House of Lords have declared, that such a transaction must be held to have operated as a conveyance of the estate only, without affecting the title, honour, and dignity of Earl of Lennox. But no such feudal conveyance occurred in the case of these coheiresses. They resigned nothing into the hands of the sovereign in favour of Dernely. They accepted a price for every right or interest they might possess in the superiorities and privileges of the fief; and, whatever their own understanding in the matter may have been, and however onerous the transaction among the contracting parties, it cannot now be doubted that the House of Lords would deny to those contracts of excambion the legal effect of operating as a conveyance of the dignity of Lennox.
This judgment in the case of Sutherland,—an occasion so important,—after a discussion so profound,—and under the direction of a chancellor so eminent as Lord Mansfield, *—rears the question, of the relative ages of Eliza
* Parvis componere magna, Mr Riddell's work entitled " Remarks upon Scotch Peerage Law," (the nucleus of which curious and valubeth and Agnes Menteith, into one of great consequence in the Lennox case. For if the charters of excambion, which Lord Dernely elicited from those coheiresses in order to fortify his predetermined usurpation, be pronounced totally inadequate to have conveyed away the honours of the fief, it can be very distinctly proved that the right is still in the representatives of one or other of those ladies. There is no dubiety in this case as to the limitation of the earldom,—the royal charter to Earl Duncan, containing words expressly applicable to the dignity, is on record, and in virtue of that it was that Dernely served heir to him and assumed the title. The idea of forfeiture in the person of Earl Duncan is excluded by the fact of his eldest daughter's possession, and by the services and titles of the succeeding coheirs of that nobleman. That the fief had opened to the heirsgeneral of Earl Duncan is proved by the fact of the heirs-general having served to him in that character and parted his territory among them. It is proved that Lord Dernely represented the youngest daughter of Earl Duncan, and his own conduct amounts to an admission of the fact. The genealogies of the existing representatives of Earl Duncan's elder coheiress cannot raise a question, being proved, respectively, by the original reable collection is a very vulnerable doctrine,) is as much disfigured by the disrespectful manner in which he controverts Lord Mansfield, as is Mr Tytler's admirable History of Scotland by the same treatment of Lord Hailes. Mr Riddell, in his last publication, in order to cut down the reputation of the Inventor of Logarithms, quotes Scaliger in support of the jejune sentiment, that a great mathematician cannot be an illustrious genius, and adds, " that it is thought by some that mathematics contract the mind, and unfit it for other pursuits." Is the world, then, to hold in future that Lord Hailes was no historian,—Lord Mansfield .nojawyer,—and Napier not a genius!
tours of their representation and lineage, from Earl Duncan down to the present day. The law of prescription cannot touch a peerage claim, which, it has been ruled, is independent of time and contrary possession.* That titles of honour are impartible, and by the law of Scotland belong to the eldest of coheiresses, is indisputable law,—stated by Lord Hailes, and declared e cathedra by Lord Mansfield. But which was the elder of the coheiresses of Margaret of Lennox,—was it Elizabeth of Merchiston, or Agnes of Gleneagles?
The consideration, that this question is the chief obstacle to the revival of the ancient earldom of Lennox in the present day, is that to which, probably, may be attributed the expressions used by Mr Riddell when illustrating his recent discovery for Gleneagles. Pointing to that new proof he says, " If admitted to be unexceptionable the consequences may be great in reference to the claim to the earldom of Lennox." t No one would more cordially congratulate the learned author of the Tracts, for the achievement of the Lennox adventure, than would the author of these pages, were he satisfied that the question was set at rest, or even greatly elucidated, by Mr Riddell's recent publication. But, before conceding the palm, we will trouble him for his rejoinder to the two following chapters.
* See an example of the freedom of honours from prescription supra, p. 43. Even had it been the case that Dernely obtained a special grant of the earldom of Lennox in his favour, to the prejudice of the senior branch, that would not have extinguished their right. See the noted case of Willoughby of Parham, reported by Cruise.—Dignities, p. 169.
As for the exemption of peerages from prescription, see the cases collected and illustrated by Mr Riddell in his Remarks upon Scotch Peerage Law, p. 120, &c.
t Tracts, p. 109.
PROOF THAT ELIZABETH MENTEITH WAS ELDER THAN AGNES
REPLY TO MR RIDDELl/s DISCOVERY FOR GLENEAGLES MES
SUAGIUM ET MANEKIUM.
When a feudal vassal died, his heir, after attaining the age at which it was competent for him to enter the fee, was bound to pay to his superior a certain sum, called relief duty, as the feudal price of the renewal of the investiture in his favour. The Rusky estates in the Menteith, of which Elizabeth and Agnes Menteith were also coheiresses, were held of the Crown per wardam et relevium. Consequently the. above casualty fell to the Crown when these young ladies, who succeeded to their brother Patrick, made up titles and relieved their lands out of the hands of their sovereign; and the keeper of the royal accounts had to debit himself in favour of the Crown whenever the royal precept of seisin issued. Some of the Great Chamberlain Rolls, of an ancient date, containingjguch items, are still extant in the RegisterHouse, Edinburgh, and afford many curious and valuable adminicles of domestic history.
In the compotum, or account, rendered at Edinburgh 21st October 1456, by William Murray of Gask, Sheriff of the county of Perth, of his receipts of royal dues and casualties from the 26th July 1454, down to the date of rendering the account, the following items occur:
"Et de xxxij1'. ij!* jd- de relevio medietatis terrarum de Thom et Lanarky, ac de Rousky, Regi debito per saisinam datam Elizabeth de Menteth de eisdem. Et de xxxij11' ijs'jd" de relevio alterius medieiatis dictarum terrarum, regi debito per saisinam datam Agneti de Menteth, sorori dicte Elizabeth de eisdem."* This record certainly affords the strongest grounds for presuming that Elizabeth was the elder of the two young ladies here mentioned, who, it must be observed, were among the most considerable coheiresses in Scotland. The important privileges attaching to the birth-right of the elder, and which rendered so consequential the fact of primogeniture, seems to exclude the reply that this relative position of their names,— in a public record which had special reference to their heritable succession and feudal services,—is an accidental occurrence, affording no argument of seniority in favour of Elizabeth. It must also be observed, that there is something more than the fact of the names occurring in simple sequence. There is a particular register of a feudal circumstance separately applicable to each of these young ladies; and the one named last in the record is designed sister of the former, thus indicat
* "And the sum of xxxij1'. ijs. jd. for the relief of half the lands of Thorn and Lanarky and of Rousky, due to the King for seisin given to Elizabeth of Menteth in the same, and the sum of L. 32, 2s. Id. for the relief of the other half of the said la^s, due to the King for seisin given to Agnes of Menteth, sister of the said Elizabeth in the same." From the same account it appears that these sums were made over by the King to Alexander Napier, who was comptroller of the household, and the father-in-lawof Elizabeth Menteith. I can discover no further light on the subject from these original records, which at various times I have minutely examined with that view. Mr Riddell, who is very accurate in these matters, says in his Tracts, that the account runs between the dates 26th July 1454 and the 1st of October 1456. I read the latter date, however, vicesimo primo die mensis Octobris, 1456. The difference is unimportant.