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sinned as an undoubted fact, and not a shadow of evidence directed to that important point of the case.
"Agnes Menteith, married to Sir John Haldane, was without dispute the eldest daughter of Sir Murdac Monteith; and if Margaret her grandmother was truly the second daughter of Earl Duncan, then the said Agnes, being the great-grandchild and eldest heir-portioner of Earl Duncan, after the failure of the Duchess of Albany and her issue, had undoubtedly a just and full right to the dignity, and to the superiorities, &c. And her husband was entitled to the same in her right. That at first this matter was not called in question, and that the right of Agnes and her husband was fully understood and publicly acknowledged, can be clearly shown; for, soon after the death of the Duchess of Albany, Sir John Haldane obtained from King James III. a charter of the fourth part of the property of the earldom, and of the whole superiority thereof, to be held of the King, with all the pertinents and privileges consequent thereon; and this charter is expressly granted to him " tanquam primo et principali dicti comitatus," and upon this charter he was publicly infeoffed in April 1473. This charter, flowing directly from the King, the fountain of honour, may be considered either as an explicit acknowledgment of his right by the highest authority, or as an express grant of the superiority and dignity necessarily following from his being designed the first and principal person of the earldom; and in either view certainly vested in Sir John a right which never was or could be recalled, and of course descended to hisheirs."* This is a bold plea, and with some readers might pass for unanswerable. Let us examine, however, a little more closely, the foundations upon which it rests. * Memorial, p. 2.
John Haldane of Gleneagles, married about the year 1460* to Agnes Menteith, was at that time the heir of an ancient and wealthy family. His father was Sir Bernard Haldane of Gleneagles, and his mother a daughter of William Lord Seaton. In 1473, as already observed, John Haldane was sent upon a mission to the King of Denmark, the father-in-law of James III. Before taking his departure, however, he obtained, under circumstances already narrated, the charter pleaded upon in the memorial. It is dated 28th March 1473 (the fourth day of the new year), and bears that the King, “For gratuitous and faithful services bestowed and to be bestowed upon us by our beloved household squire John Haldane of Rusky,” grants the said John a fourth part of the whole and entire earldom of Levenax, “as first and principal of the same.” These expressions are repeated in the charter, which is a complete grant to Haldane of the property and superiority of a fourth part of the Comitatus, with all the pertinents and privileges appertaining to “the said fourth part of the Comitatus, as principal of the same.” There is no mention whatever of Haldane's spouse or her claims upon the Lennox; and the grand qualification of the grant is the reservation, formerly mentioned, to the Chancellor Avandale of the entire possession of the Comitatus during his life, as enjoyed by the Earls of Lennox.f
* Memorial, p. 2.
f Jacobus, &c. Scialis nos progratuitis et fidelibus servitiis per dilectum familiarem armiger nostrum Johannem Haldane de Rusky nobis hactenus impensis et impendendis, dedisse, &c. dicto Johanni quartam partem tolius et integri Comitatus de Levenax cum pertinentibus tanquam primo et principali ejusdem, jacens, &c. Tenend. el habend, totam et integram quartam partem prefati Comitatus de Levenar cum pertinentibus, dicto Johanni tanquam primo et principali dicti Comitatus, etheredibus suis, denobis, &c. cum tenentibus, tenan
It must be admitted by every one conversant with such historical and legal antiquities, that this charter is totally inadequate to sustain the peremptory argument quoted from the memorial. It can never be viewed as an “explicit acknowledgment” on the part of the Crown, of Haldane's right to the earldom by the law of courtesy, since the name of his lady is not mentioned in the charter, nor her rights alluded to. Such explicit acknowledgment would rather have appeared in the shape of a charter granted conjunctly to Agnes Menteith and her spouse. Neither can it be regarded as an “express grant” to Haldane (an alternative view, by the way, indicating that the charter is any thing but explicit.) of the dignity of Lennox, seeing that that gentleman immediately feudalized his right under that charter by taking infeftment upon it,” and yet went abroad upon a royal mission, as plain John Haldane, for as yet he was not even honoured with knighthood. Now, if his right to be Earl of Lennox was, as the memorial says, “fully understood, and publicly acknowledged,”—if, as argued, he possessed this right either by courtesy from
driis, &c. &c. addictam quartam partem Comitatus ut principali ejus. dem pertinentibus, &c. Reservato et salvo libero tenemento totius dicte quarte partis dicti Comitatus cum omnibus suis pertinentibus, &c. dilecto consanguineo et Cancellario nostro Andrea Domini Avandale, pro toto tempore vite sue, &c. Faciendo inde annuatim dictus Johannes Haldane et heredes sui, nobis, heredibus et successoribus nostris, jura et servitia de dicta quarta parte dicti Comitatus debita et consueta, &c. Apud, Edinburgh 28 die mensis Martii 1473-Mag. Sig. vii. 229. * Upon this charter Haldane took infeftment 2d April 1473. The precept of seisin bears “dedimus et concessimus hereditarie dicto Johanni quartam partem totius et integri Comitatus de Levenax cum pertinentibus tanquam primo et principali ejusdem, &c. &c. salvo libere tenemento dicte quarte partis, &c.” to the Chancellor.
the undoubted right of his lady, or, otherwise, by an "express grant flowing directly from the fountain of honour," why, then, after he had completely satisfied the territorial principle also by taking infeftment upon his rights, did he proceed on a royal mission to the court of the King's father-in-law as plain John Haldane?
The terms, upon which so much stress is laid, of" first and principal," are by no means of a nature to surmount this difficulty. They are not known as expressions to indicate the conveyance of a territorial dignity, and in this charter their application is ambiguous and undefined. Sometimes the phrase is " tanquam primo etprincipali dicti Comitatus," as if the principal superiorities of the whole fief were pointed at. But in other clauses the expressions appear to be limited to the quarter which is the subject of the grant, " addictam quartam partem Comitatus ut principali ejusdem pertinentibus." This too will be observed, that although the chancellor's liferent grant included entire and unrestricted possession of all the lands and liberties of the fief, as fully and freely as formerly enjoyed by the Earls of Lennox, Haldane is only required to guarantee that possession to the extent of a fourth part; and the feudal services which Haldane himself is taken bound to fulfil are only de dicta quarta parte.
While, on the one hand, the gloss attempted to be put upon the words in question is totally irreconcilable with the fact that Haldane did not assume the honours at a time when, ex hypothese, circumstances were most favourable for his doing so,—on the other hand, there is a simple interpretation of the expressions, which it is impossible to read the charter without perceiving. The party who ruled such matters in Scotland at the period, was the Chancellor A vandale, and he was at the very moment securing to himself this liferent possession of the whole earldom of Lennox. The charter to Haldane was the first that had any connection with the succession of the coheirs of Earl Duncan. It was granted under express reservation of the chancellor's liferent, which created a temporary exclusion of the legal succession. Is it at all unlikely, considering the nature of the transactions, and the state of the times, that Haldane took this special grant to himself, of a prospective possession of a quarter of the fief, as the best hargain he could make both for himself and his wife, and that the phrase " tanquam primo et principalis (so unprecedented when regarded as a special conveyance of honours) meant neither more nor less than Haldane's prospective right of plenum dominium in a quarter of the Comitatus, standing in contradistinction to the chancellor's liferent possession which burdened the grant?
But we are not left to such rational inferences from the terms of the charter itself, in reply to the bold pleading instituted for Gleneagles. It can be positively instructed, by a decree of the Lords of Privy-Council, that Haldane did not receive that charter in consequence of his or his lady's right to the dignity of the earldom being " fully understood and publicly acknowledged."
That gentleman returned from his embassy, and obtained a reduction of Dernely's service, in the year 1475, as already narrated. The terms of this decree of reduction are well worthy of observation, because they afford the most authentic and impartial statement of the precise footing upon which Haldane obtained his charter. I shall therefore quote verbatim so much of it as touches the case.