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These proofs, while they refute the dictum of the author of the Tracts, destroy the argument attempted to he reared upon the sketch of arms engraved in the Case for Woodhead.
Why Donald of Ballcorrach placed a star upon the unengrailed saltier of the Lennox, in his seal, has already been made very manifest'; but the reason seems to be placed beyond the reach of doubt by the following discovery made by Mr Riddell, which may be termed the coup de grace to the Case for Woodhead. From the Brisbane charter-chest, that indefatigable antiquary brought to light an original charter by Earl Duncan, dated 12th August 1423, and relating to lands adjoining Donald's estate, which charter is witnessed by " Malcolmo, Thoma, et Donaldo, filiis nostris naturalibus."*
Napier upon this point, his Lordship, in a letter to the author, dated London, 25th August 1832, says, " I read to Sir William Woods the extract from your letter about the plain and engrailed saltiers, and he says your remark as to cadency is correct. He referred to Sandford's work, where the representation of Dernely-Lennox on the tomb is engrailed; but I went immediately to Henry Seventh's Chapel, and found the said arms in three instances; that is, on each side and at the foot, in the centre and in connection with the royal and other arms, with the saltiers all plain. Therefore you are right, and Sandford and the genealogical writers are wrong."
* Brought forward in the statement appended to the Reply to Bardowie.
CAUSES WHICH OBSTRUCTED THE IMMEDIATE ENTRY OF THE HEIRS-GENERAL OF EARL DUNCAN TO THEIR SUCCESSION IN THE LENNOX AFTER THE DEMISE OF THE DUCHESS LIFERENT GRANT OF THE LENNOX TO THE CHANCELLOR AVANDALE TITLES MADE UP BY THE HEIRS-GENERAL.
But why, upon the demise of Isabella, were the honours so long in abeyance, without any pretext on the part of the Crown that an heir-female could not succeed to an earldom, or that this earldom had been forfeited? and why was the Lennox neither immediately entered by all the parceners, as heirs-general of Earl Duncan, nor yet annexed, per fas aut nefas, to the Crown? .
The following historical considerations will, it is hoped, afford a solution of these hitherto perplexing questions:
When the old Countess of Lennox died, in or shortly before the year 1460, the right to her fief became divided, and under circumstances peculiarly disadvantageous to the legal assumption of the dignity. Scotland, it is true, had by this time " long understood and acknowledged the rights of primogeniture and representation in succession, inventions so necessary for preserving order in the line of princes, and for obviating the evils of civil discord and of usurpation."* Yet there never was a period when justice was more feeble,or when the laws,
especially of succession, were more likely to be grossly and violently infringed, than when the succession to the earldom of Lennox opened to these coheiresses. The year 1460 was that in which James II. was killed at the siege of Roxburgh. His successor was a child, whose natural guardian was a woman; and it is well known that the whole country became as much as ever a prey to lawless struggles for power, depending for success either upon the actual custody of the King's person, or upon vast territorial influence. This was not the most favourable opportunity for a young lady to assert right to an earldom, or to claim possession of the caput baronies of one of the most desirable fiefs in Scotland, when at the same time she was only entitled to one quarter of the lands to sustain the dignity.
This earldom, moreover, stood in a peculiar situation. Though certainly not forfeited, it had sustained a severe shock in the last reign, and, considering the state of the times, must have been in some jeopardy of annexation to the crown. At the very period, a notable instance occurred which proves how easy it then was for oppression to wear the mask of justice, and for interested power solemnly to redargue the law of the land. This was the decision obtained by the influence of the Crown in the case of the Earl of Mar in 1457. "The ministers of James Second," says Lord Hailes, " took possession of the earldom of Mar as devolved to the crown. Robert Lord Erskine, the son of Thomas Lord Erskine and Janet Keith, attempted to vindicate his just rights to the earldom. For this purpose he obtained himself served nearest lawful heir to Isabella Countess of Mar. The evidence of his propinquity was clear, and in the present age is admitted to be indisputable. In consequence of this, Robert Lord Erskine assumed the title of Earl of Mar, and granted various charters to the vassals of the earldom. Nevertheless, he attained not to the peaceable possession of the earldom. The ministers of James II. had procured an Act of Parliament, that no lands nor possessions pertaining to the King' be given or granted till onie man without the advice and consent of the three estates of the realm, unto the time of his age of twenty-one years.' This served as a pretext for holding possession of the earldom of Mar during the minority of the Sovereign. During the life of Robert Lord Erskine various applications were made to Parliament and to the privy-council for restitution of the earldom. Terms of accommodation were proposed, and an agreement for a temporary possession was made. Nothing, however, was finally adjusted when Robert Lord Erskine died. Then the Crown took a bold measure indeed. By an after declaration of the legislature we are authorized to give it its true appellation of an act of injustice."* Lord Hailes goes on to state, the groundless and illegal pleas upon which a reduction of Lord Mar's right was affected,—and the eventual restoration of the family of Erskine, by Mary Queen of Scots, against this unjust decision. Mr Tytler justly observes that the judgment of James II. in this case, " in which the rights of a private individual were sacrificed to the desire of aggrandizing the Crown, casts a severe reflection upon the character of the King and his ministers, and reminds us too strongly of his father's conduct in appropriating the earldom of March."f
But while the power of the Crown, and the manner in which it had been so recently exercised, was sufficient to deter the young heiress of the divided Lennox from asserting her lofty rights upon the demise of her
* Sutherland Case. + History of Scotland.
grand-aunt the Duchess of Albany, she had difficulties to contend with from which the case of Mar was free. The territorial principle, and the tyranny of feudal power, tended greatly to reduce her chances of success in a competition even with a junior branch, which, however, inherited a portion of the territory twice as large as what fell to her share. Lord Dernely, a turbulent and ambitious noble, stood in the very same degree of relationship to Earl Duncan, though representing his youngest daughter. At the same time, his personal weight, no less than his double share of the inheritance, gave him a vast advantage in his desire to usurp the title. These considerations alone would account for the fact, that the lady of John Napier of Merchiston, (assuming her to have been the leading coheiress,)—although in 1454 she completed, as shall be afterwards shown, her titles to estates in the Menteith, as heir of Patrick Menteith her brother, and, in right of primogeniture, obtained possession of the principal messuages,—did nevertheless forbear, until the year 1473, to enter even to her shareof the lands in the Lennox, much less to claim the honours and impartible rights, to which, however, she had the same legal right as in the Rusky succession.
But, it may be asked, why, under these circumstances, did not this wide and wealthy earldom immediately fall a prey to that desire of aggrandizing the Crown which at the very time operated so successfully against the earldom of Mar? or how came it that the potent Dernely himself was so long unable to effect that final arrangement and partition of the Comitatus, which did not leave him in undisturbed possession of the honours until thirty years had elapsed since the succession opened to the various coparceners?
The answer will be found in the history of another