Изображения страниц

dale never put forth a pretension) though that ought to have been the natural consequence of his feudalized possession. No brieves of division, therefore, were issued from Chancery at this time, in favour of the coheirs of Earl Duncan. Elizabeth Menteith asserted and established her character, as one of the heirs-general of her great-grandfather, by the simple brief of inquest, of which the original retour to chancery, with the seals of the inquest attached, is still extant. Agnes Menteith, however, remained in apparency, and her husband seems to have preferred taking a charter to himself of onefourth of the Lennox, which was the extent of his wife's share, but without any reference in his charter to that lady. Upon this he was infeft, which established his feudal interest in the Lennox to that extent.

One legal effect of Haldane's mode of procedure in this matter was to prevent any process of division of the lands until his return. For when he obtained his charter he also fortified himself with a well known and most important legal document of those days, namely, royal letters of protection against all suits duringhis absence and for forty days after his return. No brieves pleadable, therefore, could be effectually discussed until these letters expired, and they afforded a very certain ground of reduction of any process that might appear to have been instituted contrary to their tenor.

John Lord Dernely, however, as his whole public carreer proves, was not a man to stand upon ceremony with law or justice, and accordingly his service as an heir-general of Earl Duncan exhibits some curious irregularities. The brief of inquest which he demanded, and which at length issued from Chancery in his favour, when he had satisfied the conditions of the chancellor, ordained, and could ordain ho more, that his pro indiviso right to one-half of the lands of the Lennox should be determined by the jury, upon their being satisfied of the propinquity upon which his claim depended. But Dernely, it seems, having packed a jury of his personal friends and dependents, got a verdict retoured to Chancery, which found what ought not to have been found, and did not find that which ought. This retour, still preserved in the Montrose charter-chest, serves Dernely heir to Duncan Earl of Levenax in the principal messuage of the said earldom, and in the half of the property of the earldom. Again, it was the duty of a jury, under a brief of inquest, to determine upon sufficient evidence the propinquity which gave the legal character claimed; yet it has been asserted that in this retour, the name of the lady, through whom Lord Derly claimed, is, for reasons which will be apparent afterwards, left doubtful.* It was at all events entirely be

* The author of the Case for Gleneagles appears to have had access to the Dernely papers in the Montrose charter-chest, and it can hardly be supposed that the following account which he gives of Dernely's retour is inaccurate: "Darnly obtained brieves from the Chancery, and in a very irregular manner got himself served heir to Duncan Earl of Levenax, as his great-grandchild, lawfully descended of daughter to the said

Earl, in the principal messuage of the said earldom, and in the half of the property of the said earldom. The original retour of this service is still extant in the hands of his Grace the Duke of Montrose, and is dated 23d July 1473. It is still blank in the name of the Earl's daughter, through whom he claimed, which shows with what uncertainty and inaccuracy it proceeded, and how hastily it was carried through, when the very point on which the whole hinged could not be fixed." Case, p. 2. The Case for Woodhead, however, quotes some of the clauses of this retour, without indicating a blank actually left, as above ; " de capitali messuagio et de tota et integra dimidietatedict. ten: Comitatusquede Levenax, Sfc. tanquam de seniorijilia dicti quond. Duncani legitime descend." &c. p. 52. Anyond the terms of such a brief to determine any thing about the . particular parcel of lands to be allotted, as this was only a retourable brief, and not a brief of division, which was a pleadable brief. Yet here was a finding which enabled Dernely to obtain infeftment in the principal portion of the earldom, the Caput Comitatus, in the absence of all the other parties.

The precise period of Dernely's first assumption of the honours has been stated as a historical puzzle.* But a comparison of the dates of the various deeds obtained by him about this time, and of the different style adopted in each, will, when taken in connection with the above narrative, place the matter beyond doubt.

So long as he was not infeft upon any deed embracing the chief messuage of the earldom, he indulged not

drew Stewart in his History, p. 185, says, " Upon the 23d of July 1473, John Lord Dernely was actually served heir to Duncan Earl of Lennox, his great grandfather, as being lawfully descended from Elizabeth, the daughter of the Earl, in half of the earldom of Lennox, and in the principal messuage," &c. This author had all the Dernely papers from the then Duke of Montrose, and so uncandid a statement was scarcely to have been expected from a writer of his station and character. I have not had the advantage of inspecting the original retour, but, whether there be a blank left or not, it appears from Mr Hamilton's quotations, that Elizabeth's name is not mentioned, and that she is called " seniorijilia," which certainly she was not. It was not essential to name her in the retour; but if a blank occurred it would seem to say that the jury had not been satisfied as to the connecting link. In the retour of Elizabeth Menteith, the relative expressions are, " tanquam de juniori Jilia dicti quond. Duncani legitime deicendens ;" which was perfectly accurate, as the Duchess Isabella was the eldest daughter.

* "With regard to Lord Darnly's assuming the title of Lennox, the precise period when he first began to do so does not appear."— Case for Gleneagles, p. 4.

in the style of Earl of Lennox. The date of his irregular service is 23d July 1473. The date of his infeftment is 27th July 1473, wherein he is only styled "John Lord Dernely."* That infeftment being completed, however, and includingexpressly the principal messuage, the inevitable feudal consequence was the assumption of the title of the earldom. Accordingly, the date of the new royal charter which he then received of those other lands, resigned in security of Lord Avandale's liferent, is 6th August 1473, and in that charter he is styled "John Earl of Levenax."f Upon the 2d of October 1473, he has his newly acquired rights and privileges proclaimed in the usual form of a royal precept, ordaining the tenants of the Lennox to obey him as Earl.]: Thereafter his name is to be found for a short time in the records of Parliament as Comes de Levenax, and not merely as Dominus de Dernele.

Thus the basis of Dernely's first assumption is manifest. It was no new erection in his favour of a forfeited fief. He took up the honours as his inheritance,

* Demely Papers.

t It is recorded, Blag. Sig. vii. 59. Andrew Stewart, in the part of his history entitled, " General view of the steps taken by John Lord Derneley, for asserting his right to the estate and honours of the old Earls of Lennox," had missed the important link afforded by this charter; and Mr Hamilton, in his Case for Woodhead, is also in error, when he says, " Dernely, on the 10th October 1473, obtained a precept from James III., charging the free tenants and inhabitants of the earldom and lordship of the Levenax, to obey and answer to him; and in this deed he is for the first time addressed by the style of Earl of Levenax."—P. 68.

{ Dernely Papers. Andrew Stewart, p. 185, says, the 2d of October. Mr Hamilton, p. 68, says the 10th of October. Both of these authors had the advantage of inspecting these papers, which came into the Montrose family with the Dernely property.

and by service to that ancestor who is said by modern historians to have fallen under forfeiture. He claimed the earldom under the existing investiture of his family, namely, the charter of confirmation by Robert III. to Earl Duncan, &c. with a remainder to the heirs-general of that nobleman. But, at the same time, Dernely only established his character by infeftment taken upon a retour inept and reducible in every line of it, and which, accordingly, was reduced.

There is no evidence extant that Elizabeth Menteith took any steps against this usurpation, though it is possible, considering the lapse of more than three centuries and a-half since the period, that the evidence of resistance on her part may have been lost. Any such resistance, however, could only have been instituted \ipon the ground of a prior right to the earldom,—a dignity which, on the other hand, it is equally possible that Napier of Merchiston, though highly respectable, may not have felt himself sufficiently powerful to sustain, and, therefore, made no attempt to assert. Haldane of Gleneagles, however, had, as will be shown, technical pleas to urge, totally apart from any claim to the honours of Lennox, and which were of a nature to be listened to, even in those days, with the highest respect.

This gentleman, who was of considerable account at court, seems to have been himself not a little imbued with the spirit of times, when might was right. Original deeds shall be afterwards quoted which justify the surmise, and which go to prove such to have been his disposition, at least in regard to the rights and privileges of his wife's sister Elizabeth Menteith, and her spouse John Napier. It was not likely that such a character would remain inactive when he really had the law on

« ПредыдущаяПродолжить »