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in 1493, by which the Gleneagles branch of the succession just ranks in the settlement pari passu with Merchiston.

It is an entire mistake, then, to suppose that the state of the process we have considered establishes the fact of the primogeniture of Agnes Menteith over Elizabeth. On the contrary, the details of it rather afford an inference that Haldane was unable to take ground so high.

CHAPTER X.

THAT JOHN LORD DERNELY HAD NO OTHER RIGHT TO THE HONOURS OF LENNOX THAN WHAT HE OBTAINED THROUGH THE CONTRACTS OF EXCAMBION LEGAL EFFECT OF THOSE CONTRACTS.

There was nothing, even in the state of the times, to defeat Lord Dernely's assumption of the dignity of Lennox,—inheriting as he did a double portion of the fief, and being already a peer of Parliament,—had he really been the representative of Earl Duncan's second daughter. The law, on the subject of female succession to titles of honour, was well understood, and, however apt to be disregarded by the powerful to the prejudice of a weaker party, where might and right were combined no one could pretend to dispute it. Nor was it indifference on the part of Dernely that delayed his aggrandizement. He thirsted for the Earldom of Lennox, and left no means untried to acquire it. Yet, after his service was exposed and destroyed by the technical pleas of a private party, who made no attempt to assume the title, Dernely suffered it to remain in abeyance for thirteen years. Had he not been conscious of an inferior right, he would have obtained new brieves,—he would have disregarded John Haldane's charter of a quarter of the fief, though granted to him tanquam primo et principali,—he would have dared him to a competition with the rightful and powerful heir of the dignity,—and he would have asserted, and proved in the face of his country and his peers, his right to sit in Parliament as Earl of Lennox.

The difficulty of proving whether Margaret or Elizabeth of Lennox was the elder of Earl Duncan's daughters, can never be urged as explanatory of this abeyance of the title. The fact was of course a matter of notoriety. To adopt the words which Agnes Menteith is made to urge as a subsidiary plea against Dernely's service," They have erred and partially delivered, that said that the said John (Lord Dernely) come of the eldest daughter of Earl Duncan, for it is well known to your Lordships, and to the most part of the realm, that I come of the eldest sister, and the said John of the youngest, and that needs no other proof, for the law says cum notorium est non incumbitprobari." The question was the relative ages of the respective grandmothers of the parties,—coheiresses of the Lennox,—ladies whose patrimonial rights were too important and extensive to have left that question of primogeniture doubtful, far less inextricable. Besides, Dernely himself was married in 1438, certainly more than twenty years before the death of the Duchess Isabella ; his father Sir Alan was killed in 1439; thus for many years, the old Countess of Lennox must have regarded Dernely as the heir of the earldom, had he been the son and heir of her next oldest sister. If such had been his status, it could not have failed to be matter of notoriety to the whole realm, considering how distinguished, warlike, and aspiring that race of Stewart had become.

In the memorial for Gleneagles a document is quoted, as being among the family papers, which of itself would be sufficient to prove that Dernely was not by right of primogeniture Earl of Lennox. Not having seen the original, I shall quote the reference to it in the words of Lord Loughborough.

"There is likewise produced, a copy of the decision, given by Lord Lyle and Lord Oliphant, in 1491, upon the subject; the determination of which the parties had finally submitted to them, with six other noblemen and gentlemen mutually named, who were joined with them as counsellors and amicable compositors. This deed is dated at Stirling in September 1491,—sets forth the names of the parties, and their claims, and the names of the arbiters, and that they had fully agreed and concorded, that the said Sir John, and James Haldane, between and the 10th of October then next, should give up to Lord Darnly their quarter of the property of the said earldom, excepting the particular lands therein named ; so that Lord Darnly would have right to three quarters of the earldom; excepting what they thus reserved to themselves, and on the other hand, that Lord Darnly should, between and the said 10th of October next, resign and give up to the said James Haldane, all the right of the superiority and tenandry of the said earldom. -The deed is subscribed by the arbiters and their counsel, and the parties, who, it is therein said, had, of their own free will agreed thereto, and sworn faithfully to observe and keep the same."

This was a most extraordinary decision, when all the proceedings and pleas of parties are considered. It is dated more than a twelvemonth after Lord Dernely had purchased from Elizabeth Menteth all her right to the superiorities and freedoms of the earldom; and about eighteen months before Haldane raised his last summons of reduction and damages against Dernely's service and its abettors ; and about two years before he gave up all his rights of superiority in the Lennox to that nobleman, precisely as Elizabeth Menteth had done. Assuming the accuracy of the Gleneagles memorial, it certainly affords a powerful argument that Lord Dernely was not by right of blood Earl of Lennox. Lords Lyle and Oliphant were his particular friends. Lyle had even been his companion in the revolt for which Dernely incurred a temporary forfeiture in 1488. At the very period when this decree arbitral is said to have been given Dernely sat in Parliament as Earl of Lennox. If also dejure Earl, is it conceivable, that, after all the uneasiness which he had suffered in his possession of the honours—after the vexations litigiosity of John Haldane, kept up for about twenty years—after his own recent forfeiture and restoration, and having the fief now open to him, and unburdened by Lord Avandale's liferent,—his most intimate friends, the matter being in their own hands, would, instead of clearing his just right to the earldom, and silencing opposition for ever, have pronounced a decision which only rendered confusion worse confounded. Perhaps the real spirit of the decree-arbitral was, that Lord Dernely should use his own discretion as to the assumption of the title of Earl of Lennox, —that Haldane should deliver up to Dernely his, Haldane's, quarter of the Comitatus, with the reservation of so much land as might suffice for the estate of a private gentleman, but that Haldane was to have "all the right of the superiority and tenandry of the said earldom," if, under such circumstances, he could make the grant available.

Had Lord Dernely been heir of the dignity which the old Countess kept up in her own person with punctilious ceremony, he must have been frequently consulted upon such feudal occasions, and could have produced evidence of the fact. Suppose that at this moment a charter of

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