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rate or not, the fact is unquestionably proved, even by the evidence produced for Gleneagles, that Elizabeth Menteith, and her lineal successors for many generations, possessed the principal messuages or mansions of the Rusky estates, to the exclusion of her sister Agnes and her descendants. It is really singular that this acute antiquarian lawyer should not have perceived that what he now produces proves nothing for Gleneagles, while it affords most important evidence for Merchiston. It does not prove that the contract alleged ever existed, and, if it did, there is no proof afforded of the truth of the expression founded upon in that contract. But it does prove that, at least down to the year 1568, the princi' pal messuages were actually possessed by the family of Merchiston, the object of the act of transference (a step never followed out) being to defeat, if possible even at thatlatehour,thepatrimonial arrangement to that effect, which, obviously, had not been conceded to Merchiston by any compromise, but asserted by that family in foro contentiosissimo. It only remains to illustrate the value of the fact as evidence of primogeniture.
The territorial principle which, in those feudal times, and before the practice of holding peerages by patent, so naturally ruled the transmission of honours, gave rise to the importance attached to the chief messuage, and there is no doubt that, had Rusky been a Comitatus, this possession on the part of Elizabeth Menteith would have been equivalent to an assumption of the dignity. The chief messuage represented the dignity of the baronial estate. The fief might become partially dismembered, but the feudal possession of the chief messuage still held it together, and the feudal dignity seemed co-existent with its tenure.
A remarkable instance of its importance and prerogative is afforded by a feudal transaction which occurred in the very year when Elizabeth Menteith made good her possession of a quarter of the Lennox, though she was not sufficiently powerful to take the messuages. I shall give the illustration in the words of Lord Hailes. “In 1488, James III. bestowed the title of Duke of Ross on the Earl of Ross. The Duke of Ross having embraced an ecclesiastical life became Archbishop of St Andrews, and commendator of Dunfermline. Possessed of so ample an equivalent he resigned his estates into the hands of his brother James IV. According to the ideas of that age, the resignation of the whole estate would have carried with it the titles of honour. Thus, for example, it is plain from act 41, Parl. 2. James II. that the resignation of the Reid-castle would have carried with it the dominium of Ross ‘pertaining thereto.” For avoiding this consequence the Duke of Ross reserved either the principal messuage, or the moote-hill of each estate.”
It follows of course that the chief messuage, or caput baroniae, was impartible, and in the case of coparceners appertained to the portion of the eldest. “The capital messuage, (says the same distinguished lawyer) and jurisdictions, are no less indivisible than a peerage. They have gone constantly to the eldest heir-general by the ancient customs of Scotland.j
The Regiam Majestatem is the oldest code of Scotch law extant, and whatever its origin and history may be, it is sufficient for the present argument to observe, that it was established authority at the period in question,
* Sutherland Case. + Ibid.
and that Sir John Haldane quotes it repeatedly in his process against Lord Dernely. I shall quote from the ancient translation by Skene. “The dochters succeid to the father. Gif there be ane dochter, the like is to be said of her as is said of ane sonne. Gif there be moe dochters nor ane, the heretage sall be divided amongst them ; quhither their father was ane socco-man, or ane knight, or ane burges, or anie other frie man. Reservand the chiefe messuage to the eldest dochter.” All the authorities, ancient and modern, concur upon the point;” and by what theory it can be explained that Elizabeth Menteith obtained possession of the messuages of her father's baronies to the exclusion of Agnes, unless it was in virtue of primogeniture, is for them to discover who maintain that she was the junior coheiress.
* See Craig, De Unione ; Stair, Erskine, Bracton, Blackstone, Cruise, &c.
FARTHER PROOF OF THE PRIMOGENITURE OF ELIZABETH
When we consider that nearly four hundred years have elapsed since the coheiresses of Rusky were born, and the many chances and changes of time through which the documents of their respective families have passed, it is more remarkable that so many of those documents should still be extant, than that so few can be found to solve the question of primogeniture.
It is proved by the excerpts already quoted from the Great Chamberlain Roll, that both of these young ladies had taken out their precepts of seisin, for infeftment in the lands of Rusky, &c. some time between the dates 26th July 1454 and 21st October 1456. An heiress, as shall be afterwards shown, was of age to be seized, in her lands when she had completed her fourteenth year, and not sooner. The only indication afforded, by the record quoted, as to which of these young ladies had first arrived at that age, is in the very significant sequence of their names already commented upon. The dates of their respective services or seisins, when compared, might throw further light upon the matter, but unfortunately neither the retour nor the seisin of Elizabeth Menteith, in the Rusky estates, is to be found, though the retour of Agnes is yet preserved among the Gleneagles papers. In the Merchiston charter-chest, however, there is the original maritagium, or gift of the marriage of Elizabeth to John Napier, and this, when strictly compared with the retour of Agnes, and the record of relief duties, will be found to afford most conclusive evidence of the primogeniture of Elizabeth. This evidence, however, requires some preliminary illustration in order to enable those to appreciate it, who are not in the habit of considering such documents.
Maritagium of Elizabeth Menteith.
"Marriage (says Mr Erskine) in the feudal sense of the word, or maritagium, is that casualty by which the superior was entitled to a certain sum of money to be paid by the heir of his former vassal who had not been married before his ancestor's death, at his age of puberty, as the avail or value of his tocher. Though this casualty be no where mentioned in the written feudal usages, it was received in Scotland as part of the feudal plan as early as the books of the majesty. This casualty, if we are to rest on the authority of 9 Attach, c. 93. s. 2. took its rise chiefly from the right which superiors were understood by our old law to have over the person as well as the estate of the minor heir; in virtue whereof they claimed the sole power of giving him a wife, and at last demanded as their due what the heir, might have got by her in name of tocher."
This law was equally applicable in the case of a female heir; a fortiori indeed, because a lady did suit and service by proxy, and her marriage brought to the fief the person to whom the overlord had to look for vassalage. "The husband of the eldest dochter sall make homage to the overlord for all the heritage, and the after borne dochters, or their husbands, are oblissed