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fourteen years complete until the month of February 1455, being the end of the same year at the beginning of which her sister Elizabeth was given in marriage to John Napier. In illustration of this document, which hitherto has not been considered to cast any light upon the matter, it is also necessary to premise a few remarks in reference to the ancient feudal customs.
1. There were various periods of life legally distinguished in reference to patrimonial rights, &c. as the following passage will serve to illustrate. "The first age is of 7 zeiris, during the quhilk the bairn is in powar and keiping of his father and mother. The secund age, in males, is unto the age of 14 zeiris, and in females unto the age of 12 zeiris, efter the quhilk time it is leasum to contract marriage. The third age is unto the time that an heir may enter to his landis, quhilk is divers be ressoun of divers kinds of airis; for ane air-male of ward landis is of perfeit age to enter to his landis quhen he is of 21 compleit; ane heretrix or heir-female, of ward landis, is of perfeit age (to enter her lands) quhen scho is 14 zeiris auld compleit. Ane burges air is of lauchful age quhen he is 14 zeiris compleit, or quhen he can perfectlie tell and nombre siller,and knaw the evil money by the gude, and discretelie do his father/is business."*
All the authorities concur in the point, that an heiress in ward lands was not of age to enter her heritage by service and seisin until she had completed her fourteenth year.
2. The non-entry duty was that casualty which was due to the sovereign when the ward had determined, and the heir, or heiress, was of perfect age to enter the ward lands, and yet failed to do so. Consequently in the case of an heiress the non-entry duty fell to be reckoned against her only when she attained the full age of fourteen years, previous to which it was not exigible, she being in ward. "Gif ane air of landis be of lauchful age, and thairfoir havand powar to enter to his landis, lyis out unenterit to the samin, the landis are in non-entries all the time and space that he lyis out unenterit', and micht have enterit thairto; propter negligentiam heredis non recuperantis jus simm."*
* President Balfour's Practicks, p. 227.
8. In order to protect the superior in his casualty of non-entry, it was incumbent on the jury of inquest to retour precisely the non-entry years of the lands. "The persounis of inquest committis ignorant errour, not retourand justlie the space of zeiris or termis be the quhilk the landis hes bene in non-entres sen the deceis of the last heritabill possessour thairof; as gif thay deliver that the landis wer in the superior's handis, be ressoun foirsaid, be the space of four zeiris and three monethis befoir the dait of the said retour, and in veritie the last possessour died four zeiris and nyne monthis befoir the serving of the said breve and making of the said retour, and so the saidis persounis defraudit the superior of ane term of non-entres above the four zeires, of the saidis landis, quhilk term micht not be comprehendit in the saidis three monethis."f
4. But it might easily happen that the lands were not in non-entry during the whole period between the date of the retour and the death of the last possessour; for the heir, at the time of his predecessor's death, might have been under age to enter, in which case the lands would be in the hands of the superior during that part of the period, in consequence not of non-entry, but of ward. Hence it was necessary also to distinguish, in the retour, between the time of ward and the time of nonentry. "The persounis passand upon the service of ane breve of inquest committis manifest and wilful errour, deliverand and retourand that the landis wer in the superior's handis in default of the narrest air not persew and his richt of the samin, (i. e. nonentry) gif of verilie the saidis landis wer in his handis in default of the lauchful age of the richteous air," &c. (i. e. ward.) Again, " The persounis of inquest committis ignorant errour gif thay retour and deliver that the landis ar in the superior's handis be ressoun of ward and nonentres, be the space of certain termis and zeiris, and makis not special distinction betwix the time or zeiris in the quhilk thay wer in his handis, be ressoun of non-entres, and the time or zeiris in the quhilk thay wer in his handis be ressoun of ward"*
* Balfour, p. 257- t Ibid. p. 428.
5. In the case of coheiresses in ward lands, however, when the ward of the eldest determined by her marriage, or otherwise, no part of the fief, not even the portion of the younger sister, though still under age, remained in the King's hands by reason of the feudal incident of ward; for the husband, or the proxy of the elder sister fulfilled the vassalage of the fief. Mr Erskine observes, "In coheiresses the ward determined when the eldest attained the age of fourteen, for as the right of superiority was a jus individium belonging solely to the eldest, the casualties due by two or more vassals ought also to be regulated by the age of the eldest. Besides that heirs-portioners were heirs pro indiviso, each of them had a property in every gleba terrce, and, therefore, when the eldest came to be fourteen, the superior had a vassal fit for marriage, who was truly vassal in every inch of ground in the ward-fee." Hence, in such a case, the lands of the younger sister,—although she could, under no circumstances, become liable for nonentry duties until full fourteen years of age, when she was first capable of being seized,—were not in ward of the superior after the marriage of her elder sister.
* Balfour, p. 431.
We may now turn to the retour of Agnes Menteith. The Latin original bears, that " This inquisition was taken at Perth before William of Murray, sheriff of the same, upon the 28th day of the month of April 1456;" being the second month of that year. The date alone is sufficient to raise a strong presumption of the primogeniture of her sister Elizabeth, when contrasted with the gift of maritagium, which is dated more than a twelvemonth before this retour of Agnes. Upon any other theory, we must suppose what was most unlikely to have happened in those times, namely, that the eldest coheiress of this ward-fee did not feudally enter her lands for more than twelve months after her younger sister had been given in marriage by the sovereign ; and this violent supposition must also be made in face of the fact, that, in the record of relief duties, Elizabeth is actually recorded as the leading coheiress!
But from this retour we may gather precisely when Agnes completed her fourteenth year. It goes on to say, after enumerating the names of those composing the jury, " that, being sworn, they declare that the late Patrick of Menteth, brother of Agnes of Menteth, the bearer of these presents, died last vest and seized as of fee, at the peace and faith of our Lord the King, of the lands of Thom and Lanyrkin, and of Rusky, with their pertinents, lying in the Lordship of Menteth, in the said county, and that the said Agnes is one of the legitimate and nearest heirs of the said late Patrick, her brother, in the said lands and their pertinents, and that she is of lawful age, &c. and that the said lands are in the hands of our said Lord the King, through the death of the said late Patrick, her brotherJt/or the space often weeks."* In testimony of which the seals of the jury are appended.
A hasty perusal of this retour might give the impression that Patrick Menteith had died just ten weeks before its date. But the gift of maritagium arose out of the death of Patrick also, and that deed is dated eleven months before the retour. Hence it is plain that the ten weeks mentioned must refer to some other period than the event of Patrick's demise, and, after the feudal illustrations afforded above, it is not difficult to find the true interpretation. The lands were not in the hands of the sovereign by reason of ward, otherwise the whole period since the death of Patrick would have been mentioned. It must have been by reason of the nonentry of Agnes Menteith ; and the ten weeks, therefore, mark the period when that young lady completed herfourteenth year, and was qualified to enter her lands. If it be considered a puzzle, that, for the rest of the period since Patrick's death, she must have been in ward, which is not mentioned in the retour, the reply is, that, by the marriage of Elizabeth, the ward of the whole fee had determined, and the ward lands of Agnes, therefore, only fell into the sovereign's hands in consequence of the non-entry of that young lady when she became of age to enter.
To fix the age of Agnes Menteith is of great importance in this question, and it is hoped that there is no
* "Et quod sunt in manibus dicti domini nostri Regis Domini superioris earund. legittime per seipsum, per mortem dicti quond. patr. fratris sui per spacium decern septimanas. In cujus ret testimonium sigilla," &c.—Gleneagles Papers.