nox. Duchess Isabella were produced, whose preamble bore the consent and assent of John Stewart of Dernely, or of Sir Alan his father, or of Elizabeth of Levenax his grandmother, then, notwithstanding the strong evidence of usurpation already displayed, it would be hopeless in the face of such a charter to contend for the right of any other branch than that of Dernely to the earldom of LenTaking such consent of a third party to a feudal grant is so certain an indication of that individual being acknowledged to have the next interest in the particular fief, as not to be susceptible of any other explanation. If a single proof were extant that Isabella of Levenax, ever-in this manner acknowledged her sister Elizabeth as standing next to herself in the highest rights and interests of the Comitatus, then, though the whole conduct of John Lord Dernely would be totally inexplicable, yet his pretensions would scarcely be redargued by any thing that has been stated. There is, however, not one example of the kind to be found in his favour, though he was a married man in 1438, more than twenty years before the old Countess died. If, on the other hand, it can be shown, that Isabella in any of her charters, took the consent of her sister Margaret, and not Elizabeth, we apprehend that this independent piece of evidence of a nature successfully to have met all the proofs already alluded to against Dernely, had the plea of that nobleman been so supported—must have an irresistible effect when corroborative of all that has been stated against it. Now such an original charter has been already referred to, and sets at rest this branch of our inquiry. It is that charter of mortification of the lands of Ballagane in the Lennox, granted by the Duchess Isabella to the Predicant friars of Glasgow for the repose of the 66 souls of her kindred. It was most necessary in a grant of mortification, that the consent of the next heir should be taken, for the church was exempt from feudal dues and services.* Accordingly the charter in question runs in the name of the Duchess, but cum consensu et assensu dilectissime sororis nostre germane Margarete uxoris quondam Domini de Rusky, dedisse et caritatis intuitu concessisse," &c. and it concludes, " In cujus rei testimonium sigillum nostrum una cum sigillo dilectissime sororis nostre supra dicte presentibus sunt appensa," &c.t It is difficult to conjecture a reply to the evidence of primogeniture which this consent affords. No one acquainted with the feudal customs will say that Margaret and Elizabeth, being to succeed as coparceners after the death of Isabella, and having an equal interest in the fief, it was immaterial which of their consents was obtained. The great object of taking the consent of the next heir, as is well known to every feudist, was, that the next successor to the command of the fief might not be compromised in his feudal interests and dignity. It was not a mere pecuniary consideration in reference to the dominium utile of those coming after the granter,— (in which view both Margaret and Elizabeth should have adhibited consent, instead of either being sufficient) it was a feudal practice, having reference to the head of the house, and the power and dignity of the fief. There are instances where the consent of more than one person "In lands mortified in times of Popery to the church, whether granted to prelates for the behoof of the church, or in puram eleemosynam, the only services prestable by the vassal were prayers, and singing of masses for the souls of the deceased, which approaches nearer to blanch-holding than ward."-Erskine. + See supra, pp. 18, 19. is taken, as in that charter where Earl Duncan takes the consent of his daughter Isabella, and her husband, and their son and heir, Walter Stewart.* But these were all as heads of the house, and heirs of its highest privileges. That heirs-female, succeeding to a barony or Comitatus, divided the lands, while the eldest succeeded to all the honours, including the caput baroniæ, as impartible rights, is indisputable law.† Her right to be consulted and to adhibit her consent to a deed of mortification, where such grant was contemplated by the lord in possession, was precisely of the same impartible nature as the right to possess the chief messuage; and where a barony was to descend to coheiresses a fortiori the consent of the eldest to such a grant would be required, for she could less afford to have her fief diminished in its feudal dues and services, as it was to be lightened in her person of half the lands. There is no disguising the fact, that the coheiresses of Rusky and their heirs admitted the right and title of Lord Dernely as Earl of Lennox, after the date of their contracts of excambion. That they did so under an impression of the purely territorial nature of such dignities is scarcely to be doubted. Lord Mansfield to be sure expressed this opinion in his judgment on the * Supra, p. 35, note. See also for other examples, supra, pp. 2, 29, 73. It is needless to multiply instances of a practice perfectly understood by every one at all conversant with ancient Scottish deeds. + Stair, 3, 5, 11. Erskine, 3, 8, 13. Fordun, lib. ii. c. 5. Lord Mansfield recognized the law in these words: "In England, whenever a peerage went to coheiresses it was in abeyance, and optional for the Crown to revive it. I take by analogy in such a case it went, in Scotland, to the eldest female."-Speech in the Sutherland Case, MS. Advocates' Library. Sutherland case,-"With all due deference to the author of the case, (Lord Hailes) I am now satisfied there is no foundation for his territorial principle. It certainly does not now exist, and no man living can say when it did. It clearly must have ceased before 1214, when lands came in commercio, and adjudication went against them,"*—but it was more than two centuries after the date assigned by that great chancellor, as the period when territorial honours ceased, that John Lord Dernely, and his son Mathew Stewart, both at the same time styled themselves Earl of Lennox, clearly because one was fear and the other liferenter of the Comitatus. This peculiarity can be explained only by admitting the territorial principle, and, indeed, the example finds its prototype in an age when even Lord Mansfield admitted that dignities were purely territorial. Sometime in the twelfth century there existed together, Alwin Earl of Lennox senior, and Alwin Earl of Lennox junior, father and son.† But while it is obvious that it was to the territorial feeling of the times that the coheiresses of Rusky ultimately conceded their rights, the question remains, whether they legally divested themselves and their descendants for ever of all right and title to these honours? Certainly there never was a case in which that ancient and now obsolete principle appears so naked and meager in operating as a conveyance of such a dignity. It is not that the whole lands of the Comitatus of Lennox changed hands, accompanied by its territorial privileges. The lands were divided, and the respective portions retained, and held of the Crown by all the coheiresses. But one of these heirs purchased from the other * MS. Advocates' Library. + See supra, p. 2. H two, in very general terms, all their interest in the great superiority and patronages of the fief, without any more express reference to the dignity. Then this transaction did not pass through the sovereign, as was the practice even in such territorial transferences. It did not proceed upon a resignation into the hands of the Crown, followed by a re-grant to the purchaser. Dernely, having resumed the dignity upon a basis that had been judicially declared illegal by King and council, bargained for the rights of superiority, belonging to the other coheirs, piecemeal and at long intervals, and then resigned that which was not feudally in his own person, into the hands of his sovereign for new charters. Now, although Lord Mansfield may have been wrong in his antiquarian views and historical opinion, most unquestionably the House of Lords, under his distinguished direction, have ruled, that circumstances far less equivocal than the species facti of the Lennox case for Dernely, cannot be listened to as founding an argument for the transference of a peerage, even in ancient times. Upon the death of William Earl of Sutherland in 1766, a contention arose for the dignity. 1. A claim was instituted, by the guardians of his only and infant daughter Elizabeth, for her as heir-general of the earldom. 2. Sir Robert Gordon of Gordonstoun, Bart. claimed as lineal heir-male of Adam Gordon, who he alleged was created Earl of Sutherland about the year 1517, in consequence of his marriage with Elizabeth, sister of John Earl of Sutherland, who died in 1514 without heirs of his body. 3. George Sutherland, Esq. of Forse, claimed as lineal heir-male of the earldom. |