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ward. Hence it was necessary also to distinguish, in the retour, between the time of ward and the time of nonentry. "The persounis passand upon the service of ane breve of inquest committis manifest and wilful errour, deliverand and retourand that the landis wer in the superior's handis in default of the narrest air not persew and his richt of the samin, (i. e. nonentry) gif of veritie the saidis landis wer in his handis in default of the lauchful age of the richteous air," &c. (i. e. ward.) Again, " The persounis of inquest committis ignorant errour gif thay retour and deliver that the landis ar in the superior's handis be ressoun of ward and nonentres, be the space of certain termis and zeiris, and makis not special distinction betwix the time or zeiris in the quhilk thay wer in his handis, be ressoun of non-entres, and the time or zeiris in the quhilk thay wer in his handis be ressoun of ward."*
5. In the case of coheiresses in ward lands, however, when the ward of the eldest determined by her marriage, or otherwise, no part of the fief, not even the por. tion of the younger sister, though still under age, remained in the King's hands by reason of the feudal incident of ward; for the husband, or the proxy of the elder sister fulfilled the vassalage of the fief. Mr Erskine observes, "In coheiresses the ward determined when the eldest attained the age of fourteen, for as the right of superiority was a jus individium belonging solely to the eldest, the casualties due by two or more vassals ought also to be regulated by the age of the eldest. Besides that heirs-portioners were heirs pro indiviso, each of them had a property in every gleba terrce, and, therefore, when the eldest came to be fourteen, the supe
rior had a vassal fit for marriage, who was truly vassal in every inch of ground in the ward-fee." Hence, in such a case, the lands of the younger sister,—although she could, under no circumstances, become liable for nonentry duties until full fourteen years of age, when she was first capable of being seized,—were not in ward of the superior after the marriage of her elder sister.
We may now turn to the retour of Agnes Menteith. The Latin original bears, that " This inquisition was taken at Perth before William of Murray, sheriff of the same, upon the 28th day of the month of April 1456;" being the second month of that year. The date alone is sufficient to raise a strong presumption of the primogeniture of her sister Elizabeth, when contrasted with the gift of maritagium, which is dated more than a twelvemonth before this retour of Agnes. Upon any other theory, we must suppose what was most unlikely to have happened in those times, namely, that the eldest coheiress of this ward-fee did not feudally enter her lands for more than twelve months after her younger sister had been given in marriage by the sovereign ; and this violent supposition must also be made in face of the fact, that, in the record of relief duties, Elizabeth is actually recorded as the leading coheiress!
But from this retour we may gather precisely when Agnes completed her fourteenth year. It goes on to say, after enumerating the names of those composing the jury, " that, being sworn, they declare that the late Patrick of Menteth, brother of Agnes of Menteth, the bearer of these presents, died last vest and seized as of fee, at the peace and faith of our Lord the King, of the lands of Thom and Lanyrkin, and of Rusky, with their pertinents, lying in the Lordship of Menteth, in the said county, and that the said Agnes is one of the legitimate
and nearest heirs of the said late Patrick, her brother, in the said lands and their pertinents, and that she is of lawful age, &c. and that the said lands are in the hands of our said Lord the King, through the death of the said late Patrick, her brother, for the space often weeks.” In testimony of which the seals of the jury are appended. A hasty perusal of this retour might give the impression that Patrick Menteith had died just ten weeks before its date. But the gift of maritagium arose out of the death of Patrick also, and that deed is dated eleven months before the retour. Hence it is plain that the ten weeks mentioned must refer to some other period than the event of Patrick's demise, and, after the feudal illustrations afforded above, it is not difficult to find the true interpretation. The lands were not in the hands of the sovereign by reason of ward, otherwise the whole period since the death of Patrick would have been mentioned. It must have been by reason of the nonentry of Agnes Menteith; and the ten weeks, therefore, mark the period when that young lady completed her fourteenth year, and was qualified to enter her lands. If it be considered a puzzle, that,for the rest of the period since Patrick's death, she must have been in ward, which is not mentioned in the retour, the reply is, that, by the marriage of Elizabeth, the ward of the whole fee had determined, and the ward lands of Agnes, therefore, only fell into the sovereign's hands in consequence of the non-entry of that young lady when she became of age to enter. To fix the age of Agnes Menteith is of great importance in this question, and it is hoped that there is no
* “Et quod sunt in manibus dicti domini nostri Regis Domini superioris earund, legittime per seipsum, per mortem dicti quond patr. fratris sui per spacium decem septimanas. In cujus rei testimonium sigilla,” &c.—Gleneagles Papers.
fallacy in the above deduction. It may require some attention to the terms of her retour, and the feudal customs, to detect that result, but the inference does not appear to be strained. It is impossible to argue, that the ten weeks of the sovereign's feudal possession indicated the whole period since Patrick's death, for it is unquestionably proved that he was dead before the 26th of March (day after New Year's day) 1455. It could not, therefore, have been the period of ward. If not the period of ward, it must have been the period of nonentry, commencing when the person retoured had completed the fourteenth year. Agnes Menteith, therefore, was precisely fourteen years of age on the 11th of February 1455, that being ten weeks before the 28th of April 1456, the date of her retour. Now it is ten months earlier, namely, 26th March 1455, that the deed of Elizabeth Menteith's maritagium is dated, and, as already observed, this of itself affords very substantial evidence of the primogeniture of Elizabeth.
But evidence, yet more conclusive, can be extracted from this comparison of the dates of the records connected with the circumstance of these young heiresses becoming of age and seized in their property. The date being given when Agnes Menteith had completed her fourtee/ith year, and the dates being given within which Elizabeth Menteith took out her seisin, it can be demonstrated that thetheoryforGleneagles,—namely,that Elizabeth was the second, and not the first born daughter,— cannot be true. For let that theory be adopted. Agnes Menteith completed her fourteenth year on or about the 11th of February 1455. Elizabeth was (say) ten months younger; that is, she had completed her fourteenth year only in December 1456. If there was a longer interval than ten months between the births of the sisters, as is most likely, Elizabeth would have been of age to enter her lands at some corresponding period of a still later date. But this cannot be. Elizabeth Menteith must have been at least fourteen years old complete between the 26th July 1454 and the 21st October 1456, for within those dates she relieved her lands, and took out her precept of seisin.
On the other hand, the theory, that she was the elder sister, harmonizes perfectly with all the facts. The maritagium of Elizabeth is dated on the second day of the year 1455 ; she had probably relieved her lands in the year 1454, and was then past fourteen. Agnes Menteith's retour is dated in the second month of the year 1456, just ten weeks after she had completed her fourteenth year, and, according to the memorial for Gleneagles, she was not married until the year 1460.
Assuming that there is no fallacy in the above test,— and, though it occurred to me some years ago, I have never been able to detect the fallacy,—it demonstrates that Elizabeth Menteith could not have been the daughter of a birth subsequent to Agnes, and so destroys that pretension of Gleneagles.
This test, however, is not exclusive of the theory that these young ladies were twins,—though that has never been surmised, and certainly is not to be assumed without a vestige of proof. But suppose it were so, this would by no means bring the above discussion to what might be termed a drawn game. The right of primogeniture does not vanish in the case of twins, and the particular sequence of the names of the coheiresses of Rusky in the . record of relief duties, with the fact of possessing the messuages, would be overwhelming evidence in support of Elizabeth Menteith's claim to be considered the eldest or leading twin.