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Thus we see the scheme of the chancellor's security progressing, and it only remains to investigate the titles of Elizabeth Menteith in order to find it complete.
Merchiston's lady had made up titles to her estates in the Menteith so early as 1454. Yet I find among the Merchiston papers a precept of seisin, which clearly indicates that the lands of Rusky had been resigned in security into the King's hands about the very time of the transaction with Dernely. The precept bears, that Elizabeth Menteith had again resigned into the hands of James III. her lands of Rusky, &c. in security for the fulfilment of certain special agreements,—that the stipulation had been fulfilled,—and that the King's precept issued in consequence for reinvestment.* The seisin taken upon this is dated 8th May 1473; and although the precept does not mention what the special agreements were, there seems no room to doubt that it refers to the security of Avandale's liferent, as a condition of Elizabeth Menteith's entry to her share of the Lennox. Accordingly, the original deeds still extant show that her titles to the Lennox were made up immediately after the date of the above precept.f
nely, in September 1477, is in the Montrose charter-chest. — See Case for Woodhead, p. 67, 68, and Andrew Stewart's History, p. 183.
Sir William Edmondstone was married to Matilda Stewart, a natural daughter of James of Albany, and consequently he was brotherin-law to the chancellor.
* "Que quidem terras de Rusky cum pertinentibus fuerunt dicte Elizabeth hereditarie, et quas eadem Elizabeth non vi ant metu ducta, SfC. in manibus nostris sursum redditit, pureque et simpliciter rcsignavit et traxit easdem nobis in securitatem donee certa, appunctuamenta per earn obsinata fuissent, que secundum formam eorundem plenarie perimplevit."—Merchiston Papers.
t Elizabeth Menteith's retour as one of the heirs-general of Duncan Earl of Lennox, in one-fourth part of the earldom, is dated 4th November 1473. Upon this she is infeft 16th November thereafter. —Merchiston Papers.
Thus it is obvious that, upon the demise of Duchess Isabella, Lord Avandale, chancellor, threw obstacles in the way of the immediate entry of all the heirs-general of Earl Duncan,—that he then obtained for himself the most ample liferent grant of that fief possible, and also letters of legitimation,—and, finally, allowed the heirs to make up their titles about the same period, (with the exception of Agnes Menteith, whose husband took a special charter to himself,) upon the express condition of their homologating his liferent, and guaranteeing the possession held by himself and his brother-in-law Duntreath.
This history explains the circumstances of the Lennox remaining so long in non-entry after the death of the old Countess, and affords another sign of the times in reference to the difficulties which a female coheiress had to encounter in her legal claims upon the loftyrights and privileges of a Comitatus.
FIRST ATTEMPTS OF JOHN LORD DERNELY TO APPROPRIATE THE HONOURS OF LENNOX HIS IRREGULAR SERVICE REDUCED IN A PLEA WITH HALDANE OF GLENEAGLES STATE
OF THE TITLES TO THE LENNOX AT THE CLOSE OF THE REIGN OF JAMES III.
The ambition of Dernely, who was as covetous of the honours of the Lennox as Lord Avandale was of the lands, backed by the influence derived from his distinguished and warlike ancestry, his wealth and high connections, rendered him a powerful rival to the chancellor in any views which the latter, might entertain towards this succession, and a dangerous coheir to the females, whose legal interest in the fief was superior to that of Dernely. We find, accordingly, that this nobleman endeavoured to obtain the object of his desire in a sinister manner, which failed at first, not from any opposition on the part of the Crown, but from the baseless nature of the pretension even in a question with another less powerful coheir, and from the very irregular manner in which he attempted to make it good. In order to appreciate the nature of Dernely's proceedings it may be necessary to call to mind the forms of process by which at this period the heirs-general of Earl Duncan might establish their feudal rights.
Brieves, by the law of Scotland, prior to the erection of the College of Justice in the year 1532, came in the place of all summonses before the ordinary courts. A brief was an instrument issuing from the Chancery, and directed either to the Justiciary of Scotland, or to the Judge Ordinary, ordaining him in the name of the King to try the matter set forth in the brief, by a jury, or inquest. Upon the verdict of this jury the claim was determined. The brief might either be simply declaratory of a right in thepartyobtaining it,or might conclude specially against some particular defender. In the former case it was a brief not pleadable and retourable, that is to say, it was only necessary to publish or proclaim it at the head burgh of the particular jurisdiction, without special citation of defenders, and the verdict of the jury was returned to the Chancery by the judge to whom the brief had been addressed. In the latter case it was a brief pleadable and not retourable, because the defender was specially cited, and the brief became the ground of a proper action before the competent judge, who pronounced sentence in terms of the verdict of the jury, and made no return to Chancery. Brieves of inquest or service of heirs, of tutory, idiotry, &c. were retourable brieves. But the brieves of right, of mortancestry, of terce, of division of lands, &c. were all directed against some defender specially cited, and were therefore pleadable and not retourable.
In terms of the ruling investiture of the Lennox, the two coheiresses of Rusky who represented Margaret of Lennox, and Dernely who represented Elizabeth of Lennox, were each of them entitled to the character of one of the heirs-general of Earl Duncan, because his daughters Margaret and Elizabeth were coheiresses. Consequently, none of these representatives of Margaret and Elizabeth of Lennox required to be specially called t
in defence against a simple brief of inquest, at the instance of any one of them. They might all and each establish their respective characters, of heir-general, feudally in the Lennox, without affecting the correlative rights.
But the case was otherwise in any attempt to divide the lands, or to decree to any one of these parties some particular portion of the fief in property. According to the territorial principle, which certainly then existed in Scotland with regard to titles of honour, the legalmode of takingupadignity was to become feudally invested in the Caput Comitatus, or principal portion of the particular fief, including the chief mansion-house or messuage. According to another indisputable principle of the law of Scotland, titles of honour were indivisible rights, which, in the case of coheiresses, were regulated by the law of primogeniture, and belonged to the eldest female or her representative. Consequently, in a process of division of the lands, the elder coheiress was entitled to claim as her portion that which included the messuage, and this claim could only be made effectual under pleadable brieves of division, to which all parties required to be specially summoned to appear for their interest.
We may now revert to what actually took place in reference to the possession of the Lennox. The illegitimate grandson of the Duchess Isabella had, for a time at least, excluded the legitimate grandchildren of that lady's younger sisters from theactual enjoymentof their respective portions, by securing to himself possession of the Lennox,an irregularand unjust proceeding, which placed him in the anomalous position of being infeft as liferenter in the whole of that Comitatus, without being able to assume the title of Comes (to which Lord Avan