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It was admitted by all the parties, that no patent of the dignity of Sutherland could be produced, and that the limitation remained to be proved "from such writings and deeds of the family as have escaped the injuries of time, from similar or analogous instances, and from the general principles of law with regard to the succession of dignities."*
The competitors of the infant daughter of the last Earl had to establish that the limitations of the earldom of Sutherland excluded females, and they claimed the benefit of a presumptiojuris to that effect, in the absence of patent or instrument of creation proving the contrary, because they maintained that ancient Scottish peerages were so limited as a general rule.
To this plea there was a very simple and triumphant reply for the infant. Elizabeth, the sister and heiress of John Earl of Sutherland, in 1514, and whose spouse, Adam Gordon, was alleged to have been created Earl of Sutherland, was in reality Countess of Sutherland in her own right, as heiress of her father, and the creation in favour of Adam Gordon, with its supposed limitation to heirs-male, was a fiction.
But Lord Hailes, who was one of the guardians for the young claimant, being shocked at this assumption, of a presumptio juris in favour of the male descent of Scottish peerages, when his lore in such antiquities informed him that the sound presumption was the very reverse, would not suffer it to pass. He brought his copious knowledge to bear upon the point in a celebrated work, unrivalled in the annals of litigation, and which is, to this day, our best institute of ancient peerage law. In the additional Case for his ward, he multiplied examples in support of the propositions that, female succession in land-estates was always the law of Scotland, and that, a connection between lands and titles of honour was the source of such dignities in Scotland, and long continued to be so.* Founding upon this territorial principle, he produced a series of charters of the Sutherland family from the year 1347 down to the year 1601, being the successive conveyances of the Comitatus, in all of which the limitation was to heirs-general; and he inferred as a necessary consequence, that such was the original limitation of the dignity; and thus he destroyed the presumptio juris of his antagonists. Lord Mansfield, however, would not listen to this doctrine, and expressed his dissent in the dictum that has been already quoted.f But he seized the specialty in favour of the infant claimant, namely, that in 1514 the dignity had actually descended to a female who held it in her own right; and, accordingly, the House of Lords decided in favour of the present Duchess Countess of Sutherland. Now there was a finding embodied in this judgment which is very important to the present inquiry. It was adjudged " That none of the charters produced affect the title, honour, and dignity of Earl of Sutherland, but operate as conveyances of the estate only." But these charters, some of them in the fourteenth and fifteenth centuries, were complete grants of the whole Comitatus, executed in the most formal and legal manner through the medium of the sovereign. They were charters conveying, in the natural line of succession, totum et integrum Comitatum de Sutherland, <%c. cum pertinentibus, and always proceeding upon a resignation into the hands of the Crown, who gave out the new grant. Lord Mansfield, however, laid down the law, which was ruled by the House, that such charters were only to be considered as conveyances of the estate, having no application to the dignity.
* Lord Hailes.
* "Additional Case of Elizabeth, claiming the title and dignity of Countess of Sutherland, by her guardians." Heard at the bar of the House of Lords, and decided in her favour 21st March 1771
+ See supra, p. 113.
J MS. Advocates' Library.
If, then, either of the two coheiresses of Rusky had been seized in the whole Comitatus of Lennox, and had resigned totum et integrum dictum Comitatum cum pertinentibus, including every right of superiority and patronage belonging to it, in order to vest the same in Dernely, the House of Lords have declared, that such a transaction must be held to have operated as a conveyance of the estate only, without affecting the title, honour, and dignity of Earl of Lennox. But no such feudal conveyance occurred in the case of these coheiresses. They resigned nothing into the hands of the sovereign in favour of Dernely. They accepted a price for every right or interest they might possess in the superiorities and privileges of the fief; and, whatever their own understanding in the matter may have been, and however onerous the transaction among the contracting parties, it cannot now be doubted that the House of Lords would deny to those contracts of excambion the legal effect of operating as a conveyance of the dignity of Lennox.
This judgment in the case of Sutherland,—an occasion so important,—after a discussion so profound,—and under the direction of a chancellor so eminent as Lord Mansfield, *—rears the question, of the relative ages of Elizabeth and Agnes Menteith, into one of great consequence in the Lennox case. For if the charters of excambion, which Lord Dernely elicited from those coheiresses in order to fortify his predetermined usurpation, be pronounced totally inadequate to have conveyed away the honours of the fief, it can be very distinctly proved that the right is still in the representatives of one or other of those ladies. There is no dubiety in this case as to the limitation of the earldom,—the royal charter to Earl Duncan, containing words expressly applicable to the dignity, is on record, and in virtue of that it was that Dernely served heir to him and assumed the title. The idea of forfeiture in the person of Earl Duncan is excluded by the fact of his eldest daughter's possession, and by the services and titles of the succeeding coheirs of that nobleman. That the fief had opened to the heirsgeneral of Earl Duncan is proved by the fact of the heirs-general having served to him in that character and parted his territory among them. It is proved that Lord Dernely represented the youngest daughter of Earl Duncan, and his own conduct amounts to an admission of the fact. The genealogies of the existing representatives of Earl Duncan's elder coheiress cannot raise a question, being proved, respectively, by the original reable collection is a very vulnerable doctrine,) is as much disfigured by the disrespectful manner in which he controverts Lord Mansfield, as is Mr Tytler's admirable History of Scotland by the same treatment of Lord Hailes. Mr Riddell, in his last publication, in order to cut down the reputation of the Inventor of Logarithms, quotes Scaliger in support of the jejune sentiment, that a great mathematician cannot be an illustrious genius, and adds, " that it is thought by some that mathematics contract the mind, and unfit it for other pursuits." Is the world, then, to hold in future that Lord Hailes was no historian,—Lord Mansfield no lawyer,—and Napier not a genius!
* Parvis componere magna, Mr Riddell's work entitled " Remarks upon Scotch Peerage Law," (the nucleus of which curious and valu
tours of their representation and lineage, from Earl Duncan down to the present day. The law of prescription cannot touch a peerage claim, which, it has been ruled, is independent of time and contrary possession.* That titles of honour are impartible, and by the law of Scotland belong to the eldest of coheiresses, is indisputable law,—stated by Lord Hailes, and declared e cathedra by Lord Mansfield. But which was the elder of the coheiresses of Margaret of Lennox,—was it Elizabeth of Merchiston, or Agnes of Gleneagles?
The consideration, that this question is the chief obstacle to the revival of the ancient earldom of Lennox in the present day, is that to which, probably, maybe attributed the expressions used by Mr Riddell when illustrating his recent discovery for Gleneagles. Pointing to that new proof he says, " If admitted to be unexceptionable the consequences may be great in reference to the claim to the earldom of Lennox." t No one would more cordially congratulate the learned author of the Tracts, for the achievement of the Lennox adventure, than would the author of these pages, were he satisfied that the question was set at rest, or even greatly elucidated, by Mr Riddell's recent publication. But, before conceding the palm, we will trouble him for his rejoinder to the two following chapters.
* See an example of the freedom of honours from prescription supra, p. 43. Even had it heen the case that Dernely obtained a special grant of the earldom of Lennox in his favour, to the prejudice of the senior branch, that would not have extinguished their right. See the noted case of Willoughby of Parham, reported by Cruise.—Dignities, p. 169.
As for the exemptio'n of peerages from prescription, see the cases collected and illustrated by Mr Riddell in his Remarks upon Scotch Peerage Law, p. 120, &c.
t Tracts, p. 109.