not oppose Dernely,while Haldane did. Now it is known to every reader of history that the minority of James III., during which the proceedings relied upon were instituted, was a period of all others when various causes might have kept back the pretensions of an elder sister, even while a younger one attempted to protect her postponed rights. The characteristic of those times was usurpation. James II. or his ministers, usurped the earldom of Mar. Archibald Douglas usurped the earldom of Moray, to the prejudice of the elder sister of his wife. The Duke of Albany assumed the title of King of Scotland, to the prejudice of his elder brother James III. on the throne. In times of political confusion, and of many a lawless pretension, the inference is much too hasty that would attempt to deduce the paramount right of one party from the forwardness and activity of his claim, or the absence of all right in another from the silence of his pretensions.

The above considerations, it is apprehended, would of themselves be sufficient to destroy the case for Gleneagles before any competent tribunal; but, it must be conceded, without at the same time establishing any case for the representatives of Elizabeth Menteith. For they merely go to prove, that the memorial does not make out the case, and that its inferences are not sound.

The first view of the matter which rears a plea for Elizabeth Menteith is this,-that not only is it unsound to argue from Haldane's charter and subsequent process, that his spouse was the elder coheiress of Rusky,' but a contrary inference may be gathered from that procedure, in which case the claim for her sister Elizabeth would be negatively established.

We have seen that there were certain obvious grounds

of law, totally independent of any claim to the honours, upon which Haldane, who notoriously had a better right to them than Dernely had, could attack that nobleman's usurpations. To meet these substantial technical pleas, Dernely required at once to instruct the most exalted right in the Comitatus; and hence, in all his contention with Haldane, he endeavoured, both publicly and privately, to obtain either the verdict of a jury, or a decree-arbitral to this effect, that he Dernely represented the eldest daughter (after Isabella) of Earl Duncan. Haldane's pleas were indeed equally substantial in law to reduce all processes instituted in his absence, wherein he ought to have been called, even if Dernely had been well founded in his pretension. But that nobleman's absolute right would have been too powerful to contend with, could he have met Haldane's technical plea with the fact, that he was de jure Earl of Lennox. Dernely, however, could not take ground so high; for Haldane was prepared to urge, as a subsidiary plea on the part of his own spouse, that she, and not Lord Dernely, was " come of" the elder coheiress of Lennox,—that by inheritance her interest in the honours was certainly prior to his, who could not, therefore, urge his unquestionable right as an excuse for his irregular service. This is precisely the mode of pleading which a party in John Haldane's situation,—having a good technical plea, and a charter whose ambiguous terms gave him an interest in the Comitatus not very clearly defined, and with a usurper for his competitor,-would be likely to adopt, supposing his lady to have been the younger of two coheiresses, both having a prior right to this opponent. Now it happens that the reasons of reduction which Haldane urged, chiefly in his own name, but also in that of Agnes Menteith, are yet extant among the

Gleneagles papers, and they fully instruct that such was his line of argument.* His leading plea is the infrac

* 66

My Lords, thir ar the resonis that I, John of Haldane of Glenegass, and James Haldane, my son and apperand air, allegis for us ; That the personis that past upon the serving of the brieve purchest be Johonne Lord Dernely of the half Erledome of the Levenax, as the said John had cummyng of the eldest sister, that thai have ariit (erred,) wranguisly decernit, and unorderly and partially deliverit in the serving of the said brieve.

" Item, in primis, It was not unknawing to the saidis personis that I, Johne of Haldane, was infefthit be charter and saysing of the quarter of the Erledom of the Levenax, the superioritie of the said erledome, with tenand and tenandry, with donacioun and presentatioun of chapellys and kirks, likas the saide feftment sufficientlie purportis; the quhilk inquest has not differit thairto,' &c.

"Item, My Lordis, in the time of the serving of the saide breve, I was in my Sovrane Lordis speciall service," &c.

"Item, My Lordis, I, Agnes of Menteth, spouse to the said Johne, allegis for me, that suppose my husband had not been infeft be our Soverane Lordis Hienes of the superioritie of the said erledome, that thai have erriit and partially deliverit, that said, that the saide Johne come of the eldest dochtir of Erle Duncan, suppose that had been a poynt of the breve, as it was nane; for it is weill knawing to your Lordschippis and to the maist part of the realme, that I come of the eldest sister, and the said Johne of the youngest, and to that nedis nane uthir pref, for the law sais, cum notorium est non incumbit probari."

Item, My Lordis, it is weill knawing to your Lordschippis, that the said Johne Lord Dernely has divers tymes preferrit to me and my husband, for the superiorite of the said erledome, before the serving of the said breve, and be part of them that was upon it, contentatioun of landis and money for the said superiorite of the erledome." The reasons then go on to complain that the jury was packed of Dernely's friends, relations, and dependents, and that the sheriff had not done his duty in terms of law.-Gleneagles Papers.

There is no plea in these reasons which absolutely asserts that Agnes Menteith was the elder daughter of Sir Murdoch; and notwithstanding Haldane's sweeping claims to the superiorities, Elizabeth Menteith sold her right and interest in the same to Dernely.

tion of the royal letters of protection. His leading proof, with regard to his interest and rights in the Comitatus, is his own special charter tanquam primo et principali. His utmost demand is certain superiorities which he argued those expressions inferred a grant of. Then as a secondary plea, to meet and neutralize Dernely's unblushing pretension of primogeniture, Agnes Menteith is made to urge,-not expressly that she was Countess of Lennox, as representing Earl Duncan's eldest coheiress, but, more vaguely, that, independently of Haldane's interest on his own charter, the jury who served Lord Dernely had erred in saying he was come of the elder daughter of Earl Duncan, it being notorious that Haldane's spouse was come of the elder daughter.

But had that gentleman been married to the eldest coheiress of Rusky, then, since he determined to compete with the powerful Dernely, and to put forth his wife's pretensions at all, his mode of pleading would have been reversed. His leading plea would have been the right of his lady to the earldom. His subsidiary plea would have been upon his own right of courtesy, and upon his own charter as an acknowledgment of that right.

As for the contentations, which, it is said, Dernely offered at various times to Haldane, and the stress laid in the memorial upon the contract of excambion which silenced his opposition, that plea is neutralised by the fact, that Elizabeth Menteith in like manner received a compensation for all her rights of superiority in the fief, in that contract of excambion from which the very same inferential argument can be extracted in her fa

The fact is, as will be proved in a subsequent chapter, that Haldane was inclined upon every occasion to treat the rights of his wife's sister as if no such person existed.

vour that is said to arise to Gleneagles from Dernely's contract with Haldane.

It is remarkable that, after the reduction of his service and infeftment in 1475, Dernely never attempted to renew it. He never afterwards submitted his plea of consanguinity in the usual form to an inquest, nor did he take out any pleadable brief to get the better of that counter plea of possession of the superiorities which Haldane urged against him. He endeavoured to obtain a settlement of the matter by a private submission to certain noblemen, most of whom were his own particular friends, and the question to be submitted to them was, "anent the debatis of the superiorite of the Erledome of Levenax, which debatis dependis upon the ages of umquhile Elizabeth and Margaret, the dochteris lauchful of umquhile Duncan Earl of Levenax; that is to say, whether the said Elizabeth, grandame to the said Johne Lord Dernely, or Margaret, grandam to the said Agnes, was elder and first borne of their modir." A submission to this effect was entered into between Dernely and Gleneagles, without any mention of the correlative rights of Merchiston, on the 21st June 1477. This was continued of consent of parties to the 21st of January following, and again continued to the 15th of February.* This submission fell to the ground without any decision or result. Another private arrangement to the same effect between Dernely and Gleneagles was equally inconsequential, though an award of a very extraordinary nature is said to have been pronounced upon it in 1491, as will be more particularly noticed in considering Dernely's claim of primogeniture. The whole result, however, of this contention, was the contract of excambion

* Gleneagles Papers.