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consent of Walter Stewart, the eldest son of Isabella and the Duke of Albany," &c *
Without adverting at present to the probable import of the phrase laffwell, as used in this charter, we may notice the circumstances in that deed directly opposed to the interpretation of the claimant. The hypothesis for Woodhead is, that Earl Duncan here grants a charter to his eldest son and heir as his vassal; and that to this grant the Earl obtains the consent of his daughter's son and heir, Walter Stewart, the nephew of the alleged heir of the Lennox. A slight acquaintance with the antiquities of the law of Scotland will suggest a very different theory from these facts. It was the constant practice of our forefathers to take the consent of the next heir of the granter to all deeds affecting the fief; a practice which it will be necessary to illustrate in a subsequent chapter. Walter Stewart, as the eldest son of Isabella, was unquestionably heir of the Lennox, failing heirsmale of the body of his grandfather. But if Donald was heir-male of the body of Earl Duncan, how came Walter Stewart, the son of his sister, to adhibit consent and assent in a charter to him? No one possessing the slightest knowledge of the history of the law of Scotland can read the charter in question, without at once perceiving that it is a grant, not to the heir of the earldom, but to a third party, whose interest in the matter stands in contradistinction to that of the heir. The reddendo of the charter is conceived in these terms : " Giffand thairfor zerly the forsaid Donald my laffwell son and his ayris, and his assignees, till me, mine ayris, a peny of silwir;" and the clause of warrandice runs thus; "and we forsutht the said Duncane and our ayris, the forsaid land with thair pertinents, till the forsaid Do
t Case for Woodhead, pp. 13, 53.
malde and till his ayris, and till his assignees, agayne all erdely man and woman, we sal warand,” &c. Here seems to be an unequivocal declaration by Earl Duncan himself, that Donald was not his heir, and that Donald's heirs were not Earl Duncan's heirs,—for it is inconceivable that all these expressions are in reference to the only son of the Earl himself,-the direct heirmale of the fief on the verge of his succession, the Earl being at this time about eighty years of age. It was common enough for a feudal lord to invest his son and heir with the fee of the estate during his own life, for which it was not necessary to ask the consent of any one except the sovereign. But a subordinate grant of vassalage to the heir of the fief, and his heirs, as distinguished from the heirs of the fief, taking at the same time the . consent of a third party, who, ea hypothese, was not the heir of the fief, would, it is apprehended, be unique in the history of feudal and family settlements. This internal evidence of the charter itself leads inevitably to the conclusion, that the phrase son laffwell, occurring in that deed, must be susceptible of some other interpretation than son and heir. The proper interpretation we shall readily discover, upon considering the second charter produced in support of the claim for Woodhead. 2. Mr Hamilton in his Case thus introduces it : “Donald of the Levenaa, in consequence of the estate thus granted to him, styled of Ballcorrach, very soon afterwards acquired the lands of Ballegrochyr, in the vicinity of the former. These and other lands within the earldom of Levenax were held by Sir William Graham of Kyncardyne (ancestor of the family of Montrose) •of Earl Duncan as his feudal superior; and upon the 20th August 1423, a grant of that property was made
by Sir William to Donald, in which he is explicitly styled filius legitimus Duncani Comitis de Levenax." The learned author of the Case then proceeds to state, that after Earl Duncan's death in 1425, his daughter Isabella becomes vested in the earldom, and confirms to her brother Donald this charter granted by her vassal, Sir William Graham. "The charter by Isabella," says the Case, "contains, as usual, the previous deed, which is expressly confirmed; and in the confirmation she explicitly acknowledges and declares Donald de Levenax to be her father Earl Duncan's lawful son."*
In this charter of Ballegrochyr the heir of the Levenax is placed in a yet more peculiar and anomalous position than by the terms of the former charter of Ballcorrach. Sir William Graham, it must be observed, is a vassal of the earldom. The charter which he grants to Donald is to be held of him, Sir William, in the Lennox. Thus the heir of the Lennox becomes the vassal of a vassal in the Lennox. The Earl of Lennox dies, and then his heir Donald, de jure Earl, obtains confirmation of his subordinate charter from his own sister, in order that he, the Earl, may still remain Sir William Graham's vassal, i. e. the vassal of his own vassal in the Lennox. This most extraordinary state of matters calls for a close inspection of the terms of the charter, in which, according to the Case for Woodhead, Donald is explicitly styled filius legitimus Duncani Comitis de Levenax. Now the charter by Isabella to her brother is quoted in the Case, and from that it appears that the word legitimus neither occurs in Sir William Graham's grant, nor in Isabella's confirmation of it. The words are " Omnibus hanc cartam visuris vel audituris Isabella Ducissa Albania ac Comitissa de
* Case for Woodhead, p. 13.
Levenax Salutem in Domino Sempeternam, Noveritis nos cartam Domini Willielmi de Graham militis Domini de Kyncardyne factam Donaldo de Levenax filio legittime DominiDuncani quondam Comitis de Levenax," Sec. and the words of the grant by Sir William Graham are in like manner, "Donaldo de Levenax filio legittime Domini mei ac potentis Domini Duncani Comitis de Levenax" &c.
Here, then, the whole mystery (otherwise utterly inextricable) is unravelled. The term used is not legittimus, but legittime, and that must have been intended to stand not for legitimate, but legitimated.* This Donald of the Levenax was obviously a natural son who had obtained letters of legitimation, a process by which his heirs-general were recognized, (and not merely heirs of his own body to which an illegitimate person was by law restricted,) but which did not enable him to succeed to the honours of his father. His sister Isabella, consequently, as the above charter expressly bears, had become Countess of Lennox in her own right, upon the demise of her father, and in that capacity confirmed the subordinate grant of Ballegrochyr to her vassal brother.
The term laffwell, occurring in the first charter examined, can bear no other interpretation than the view
*Mr Riddell, inhis "Statement in reference to the late pretensions of the family of Lennox of Woodhead," printed in the Appendix to his Reply to Hamilton of Bardowie, has these remarks upon the point in the text. "In one of the Woodhead grants * legitime' and not 'legitimus' (the adjective) is employed, which may possibly be the French word 'legitime/ borrowed perhaps like others from our Gallican neighbours, however awkwardly hereembodied—and actually expressive, as in its noted application to the spurious offspring of Louis XIV., of the previous signification;" namely, legitimated.
Royal letters of legitimation run thus, " Sciatis quod, &c. legitimamus, et tenore presentium legitimamus, pro nobis et successoribus nostris," &c.
34 HISTOBY OF THE
just taken of legitime. That charter contains a parental provision of a landed estate to Donald, and his heirs and assignees. The qualification of laioful* applied to Earl Duncan's son and heir in the fief, and superseding the latter usual and unequivocal expression, would have been remarkable. Applied to a son, however, who was not heir of the earldom, and who, in ordinary circumstances, was not recognized as having heirs except of his body, the qualifying term laffwell or legitime indicated his legalized state, and sanctioned the reference to his heirs and assignees.
Was Donald ever called heir of the Lennox, or did Earl Duncan ever take his consent to grants of the earldom? Never. On the contrary, during Earl Duncan's life his daughter Isabella is termed heiress of the earldom of Lennox, and it is her consent, and that of her son and heir Walter Stewart, which Earl Duncan obtains to his charters.
Was Donald ever called Earl of Lennox, or did he ever pretend to be so, or to act as feudal lord of the Lennox? Never. On the contrary, his sister Isabella assumed the honours, and possessed the fief for thirty years; and Donald himself claimed confirmation of his vassalage in the Lennox from her. After her death the Comitatus was divided among heirs-female of Earl Duncan, and so descended to modern times, though the line of Donald of Ballcorrach never failed.
Of this distinction, between the status of Isabella
* "The phrase lawful son, (says Mr Riddell,) as denoting legitimacy at common law, did not technically prevail with us until the commencement of the sixteenth century, while it is observable, the term lawful, even at the later period, was descriptive of that partial legitimacy which our Kings were in use to confer upon issue undoubtedly spurious."—Reply to Bardowie, Append, pp. 3, 4.