CHAPTER XII.

FARTHER PROOF OF THE PRIMOGENITURE OF ELIZABETH

MENTEITH.-CONCLUSION.

WHEN we consider that nearly four hundred years have elapsed since the coheiresses of Rusky were born, and the many chances and changes of time through which the documents of their respective families have passed, it is more remarkable that so many of those documents should still be extant, than that so few can be found to solve the question of primogeniture.

It is proved by the excerpts already quoted from the Great Chamberlain Roll, that both of these young ladies had taken out their precepts of seisin, for infeftment in the lands of Rusky, &c. some time between the dates 26th July 1454 and 21st October 1456. An heiress, as shall be afterwards shown, was of age to be seized in her lands when she had completed her fourteenth year, and not sooner. The only indication afforded, by the record quoted, as to which of these young ladies had first arrived at that age, is in the very significant sequence of their names already commented upon. The dates of their respective services or seisins, when compared, might throw further light upon the matter, but unfortunately neither the retour nor the seisin of Elizabeth Menteith, in the Rusky estates, is to be found, though the retour of Agnes is yet preserved among the Gleneagles papers. In the Merchiston charter-chest, how

ever, there is the original maritagium, or gift of the marriage of Elizabeth to John Napier, and this, when strictly compared with the retour of Agnes, and the record of relief duties, will be found to afford most conclusive evidence of the primogeniture of Elizabeth. This evidence, however, requires some preliminary illustration in order to enable those to appreciate it, who are not in the habit of considering such documents.

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Maritagium of Elizabeth Menteith.

Marriage (says Mr Erskine) in the feudal sense of the word, or maritagium, is that casualty by which the superior was entitled to a certain sum of money to be paid by the heir of his former vassal who had not been married before his ancestor's death, at his age of puberty, as the avail or value of his tocher. Though this casualty be no where mentioned in the written feudal usages, it was received in Scotland as part of the feudal plan as early as the books of the majesty. This casualty, if we are to rest on the authority of 9 Attach. c. 93. s. 2. took its rise chiefly from the right which superiors were understood by our old law to have over the person as well as the estate of the minor heir; in virtue whereof they claimed the sole power of giving him a wife, and at last demanded as their due what the heir might have got by her in name of tocher."

This law was equally applicable in the case of a female heir; a fortiori indeed, because a lady did suit and service by proxy, and her marriage brought to the fief the person to whom the overlord had to look for vassalage. "The husband of the eldest dochter sall make homage to the overlord for all the heritage, and the after borne dochters, or their husbands, are oblissed

to doe service to their overlord, for the tenement, be the hand of the eldest dochter, or of her husband.”*

Lord Hailes also observes, "During the nonage of the female heir, the sovereign held possession by right of ward, and as soon as she was marriageable the sovereign provided a husband for her.†

The following feudal customs in regard to this matter must also be noted. 1. The ward of a female heiress who was a Crown vassal determined by her marriage. 2. If she married during her minority, no relief duty was due to her sovereign, but not so if she married after majority. "Ane woman being ane heretrice to anie man, quhither she be of lawfull age or within age, she is in the warde and custody of her overlord, ay and quhill (until) she be maried with his consent; gif she, being of les age, falls in the warde of her overlord, and within the samine age is maried with his consent, her land sall be frie and quite fra anie relieve induring her lifetime, and her husband's; and gif she is of perfite age, and nevertheles remains in the warde of her overlord until she be maried, nevertheles the husband before the compleiting of the marriage sall pay the releive."+

We may now turn to the maritagium of Elizabeth Menteith. It is a Latin deed, under the Great Seal and sign manual of James II. entitled Letters of Concession of the Maritagium of Elizabeth de Menteith. It bears, “that James, by the grace of God, King of Scots, &c. gives and grants to his beloved servitor John Naper, son and heir-apparent of Alexander Naper of Merchamstoune, for the cordial affection which his Majesty bears towards him, the maritagium of Elizabeth de Menteth,

* Reg. Majest. 2. 29. Skene. + Sutherland Case. † Reg. Majest. 2. 70.

daughter of the late Murdoch de Menteth, and sister and one of the heirs of the late Patrick de Menteth of Rusky, accruing to the King (nobis spectans) by the decease of the said late Patrick, with all the lands, &c. belonging to the maritagium of the said Elizabeth; prohibiting all interference whatever contrary to this concession of marriage, under all the pains and penalties; given under the Great Seal at Stirling, 26th March (day after New Year's day) 1455, twenteith year of the reign, and signed JAMES R.*

This concession to John Napier cannot be viewed in the light of a mere pecuniary gift of the prospective marriage fine of an infant or child; but must have been granted in reference to a marriage in immediate contemplation between the parties. It is unquestionable that a marriage actually took place between them about the time; and this must be observed, that there is no gift of the ward to John Napier, which, according to the practice in such gifts, would have been joined with the maritagium, had this been merely a pecuniary be

*

"Jacobus, &c. Sciatis nos dedimus et concessimus dilecto servitori nostri Johanni Napar, filio et heredi apparenti Alexandri Napare de Merchamstoune, pro cordiali affectione quam gerimus erga eundem, maritagium Elizabeth de Menteth, filie quondam Murdaci de Menteth, ac sororis et unius heredum quondam Patricii de Menteth de Rusky, nobis spectans per decessum ejusdem Patricii, cum terris redditibus, possessionibus, &c. ad ipsius Elizabeth maritagium spectantibus, &c. Datum sub magno sigillo nostro apud Strivelin, vicesimo sexto die mensis Martii anno Domini millesimo quadringentesimo quinquagesimo quinto, et regni nostro vicesimo.

nefit granted out of the estate of a child. We find also, from the Great Chamberlain Roll, that relief duty was actually paid for Elizabeth's estates in the Menteith, and that those dues were conceded to Sir Alexander Napier, John's father. This proves that Elizabeth was certainly of age between the years embraced by those accounts, namely, 1454 and 1456, and also that she had been married after being of age to enter her lands, otherwise, according to the old law quoted above, there would have been no relief duty paid either by herself or husband. There can be little doubt that the gift of maritagium was just part of the marriage settlements of a royal ward,—a view of the matter which harmonizes with all the other circumstances. The young lady was now marriageable, the sovereign was providing a husband for his ward, and that husband was the son and heir of the comptroller of the household, a great favourite of James II.,-the sovereign was at the same time generously remitting the marriage fine of his ward in favour of her husband,—and although the relief duties were also exigible, (the bride being of age,) that casualty was remitted to the comptroller of the royal expences, the father of the bridegroom. Hence it may be fairly concluded that, at the very commencement of the year 1455, Elizabeth Menteith was past the age of fourteen,—had been seized in her lands,—and given in marriage by her sovereign.

Retour of Agnes Menteith.

There is no gift of the maritagium of Agnes Menteith to be found. Her retour, however, is well worthy of minute attention in this question of primogeniture. From it, as appears to me at least, it may be certainly gathered that this young lady was not of the age of