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to doe service to their overlord, for the tenement, be the hand of the eldest dochter, or of her husband.” Lord Hailes also observes, “During the nonage of the female heir, the sovereign held possession by right of ward, and as soon as she was marriageable the sovereign provided a husband for her.f The following feudal customs in regard to this matter must also be noted. 1. The ward of a female heiress who was a Crown vassal determined by her marriage. 2. If she married during her minority, no relief duty was due to her sovereign, but not so if she married after majority. “Ane woman being ane heretrice to anie man, quhither she be of lawfull age or within age, she is in the warde and custody of her overlord, ay and quhill (until) she be maried with his consent; gif she, being of les age, falls in the warde of her overlord, and within the samine age is maried with his consent, her land sall befrie and quite fra anie relieve induring her lifetime, and her husband's; and gif she is of perfite age, and nevertheles remains in the warde of her overlord until she be maried, nevertheles the husband before the compleiting of the marriage sall pay the releive.”: We may now turn to the maritagium of Elizabeth Menteith. It is a Latin deed, under the Great Seal and sign manual of James II. entitled Letters of Concession of the Maritagium of Elizabeth de Menteith. It bears, “that James, by the grace of God, King of Scots, &c. gives and grants to his beloved servitor John Naper, son and heir-apparent of Alexander Naper of Merchamstoune, for the cordial affection which his Majesty bears towards him, the maritagium of Elizabeth de Menteth,
* Reg. Majest. 2, 29. Skene. + Sutherland Case. + Reg. Majest, 2.70.
daughter of the late Murdoch de Menteth, and sister and one of the heirs of the late Patrick de Menteth of Rusky, accruing to the King (nobis spectans) by the decease of the said late Patrick, with all the lands, &c. belonging to the maritagium of the said Elizabeth; prohibiting all interference whatever contrary to this concession of marriage, under all the pains and penalties; given under the Great Seal at Stirling, 26th March (day after New Year's day) 1455, twenteith year of the reign, and signed JAMEs R.” This concession to John Napier cannot be viewed in the light of a mere pecuniary gift of the prospective marriage fine of an infant or child; but must have been granted in reference to a marriage in immediate contemplation between the parties. It is unquestionable that a marriage actually took place between them about the time; and this must be observed, that there is no gift of the ward to John Napier, which, according to the practice in such gifts, would have been joined with the maritagium, had this been merely a pecuniary be
* “Jacobus, &c. Sciatis nos dedimus et concessimus dilecto servitori nostri Johanni Napar, filio et heredi apparenti Alexandri Napare de Merchamstoune, pro cordiali affectione quam gerimus erga eundem, maritagium Elizabeth de Menteth, filie quondam Murdaci de Menteth, ac sororis et unius heredum quondam Patricii de Menteth de Rusky, nobis spectans per decessum ejusdem Patricii, cum terris redditibus, possessionibus, &c. ad ipsius Elizabeth maritagium spectantibus, &c. Datum sub magno sigillo nostro apud Strivelin, vicesimo sexto die mensis Martii anno Domini millesimo quadringentesimo quinquagesimo quinto, et regni nostro vicesimo.
nefit granted out of the estate of a child. We find also, from the Great Chamberlain Roll, that relief duty was actually paid for Elizabeth's estates in the Menteith, and that those dues were conceded to Sir Alexander Napier, John's father. This proves that Elizabeth was certainly of age between the years embraced by those accounts, namely, 1454 and 1456, and also that she had been married after being of age to enter her lands, otherwise, according to the old law quoted above, there would have been no relief duty paid either by herself or husband. There can be little doubt that the gift of maritagium was just part of the marriage settlements of a royal ward,—a view of the matter which harmonizes with all the other circumstances. The young lady was now marriageable,—the sovereign was providing a husband for his ward, and that husband was the son and heir of the comptroller of the household, a great favourite of James II.,—the sovereign was at the same time generously remitting the marriage fine of his ward in favour of her husband,—and although the relief duties were also exigible, (the bride being of age,) that casualty was remitted to the comptroller of the royal expences, the father of the bridegroom. Hence it may be fairly concluded that, at the very commencement of the year 1455, Elizabeth Menteith was past the age of fourteen,—had been seized in her lands,—and given in marriage by her sovereign.
Retour of Agnes Menteith.
There is no gift of the maritagium of Agnes Menteith to be found. Her retour, however, is well worthy of minute attention in this question of primogeniture. From it, as appears to me at least, it may be certainly gathered that this young lady was not of the age of fourteen years complete until the month of February 1455, being the end of the same year at the beginning of which her sister Elizabeth was given in marriage to John Napier, In illustration of this document, which hitherto has not been considered to cast any light upon the matter, it is also necessary to premise a few remarks in reference to the ancient feudal customs.
1. There were various periods of life legally distinguished in reference to patrimonial rights, &c. as the following passage will serve to illustrate. "The first age is of 7 zeiris, during the quhilk the bairn is in powar and keiping of his father and mother. The secund age, in males, is unto the age of 14 zeiris, and in females unto the age of 12 zeiris, efter the quhilk time it is leasum to contract marriage. The third age is unto the time that an heir may enter to his landis, quhilk is divers be ressoun of divers kinds of airis; for ane air-male of ward landis is of perfeit age to enter to his landis quhen he is of 21 compleit; ane heretrix or heir-female, of ward landis, is of perfeit age (to enter her lands) quhen scho is 14 zeiris auld compleit. Ane burges air is of lauchful age quhen he is 14 zeiris compleit, or quhen he can perfectlie tell and nombre siller, and knaw the evil money by the gude, and discretelie do his fatheris business."*
All the authorities concur in the point, that an heiress in ward lands was not of age to enter her heritage by service and seisin until she had completed her fourteenth year.
2. The non-entry duty was that casualty which was due to the sovereign when the ward had determined, and the heir, or heiress, was of perfect age to enter the ward lands, and yet failed to do so. Consequently in
* President Balfour's Practicks, p. 227.
the case of an heiress the non-entry duty fell to be reckoned against her only when she attained the full age of fourteen years, previous to which it was not exigible, she being in ward. "Gif ane air of landis be of lauchful age, and thairfoir havand powar to enter to his landis, lyis out unenterit to the samin, the landis are in non-entries all the time and space that he lyis ovit unenterit, and micht have enterit thairto; propter negligentiam heredis non recuperantis jus suum."*
3. In order to protect the superior in his casualty of non-entry, it was incumbent on the jury of inquest to retour precisely the non-entry years of the lands. "The persounis of inquest committis ignorant errour, not retourand justlie the space of zeiris or termis be the quhilk the landis hes bene in non-entres sen the deceis of the last heritabill possessour thairof; as gif thay deliver that the landis wer in the superior's handis, be ressoun foirsaid, be the space of four zeiris and three monethis befoir the dait of the said retour, and in veritie the last possessour died four zeiris and nyne monthis befoir the serving of the said breve and making of the said retour, and so the saidis persounis defraudit the superior of ane term of non-entres above the four zeires, of the saidis landis, quhilk term micht not be comprehendit in the saidis three monethis."f
4. But it might easily happen that the lands were not in non-entry during the whole period between the date of the retour and the death of the last possessour; for the heir, at the time of his predecessor's death, might have been under age to enter, in which case the lands would be in the hands of the superior during that part of the period, in consequence not of non-entry, but of