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of Lennox upon the restless stage of Scotland's commotions, without any explanation of the revival of the honours, and at periods, too, when in point of fact, as the records of Parliament instruct, no one had resumed them, or sat in Parliament as Earl of Lennox. But how came the Lennox to pass by inheritance, and be taken by services to this very Earl Duncan, if his estates were forfeited, and annexed to the Crown? This question our historians have never considered. The truth is, Earl Duncan suffered no attainder in title or estates. There is no proof that he did,—there is unquestionable proof that he did not,—and I shall at once dispose of the point. James I. certainly acquired possession of the earldoms of Fife and Menteith, which belonged to his cousin Duke Murdoch. In 1427, two years after Murdoch's execution, the King erected the lands of Craynis into the earldom of Menteith, in favour of Malise (whom he had deprived of the earldom of Strathern) and the heirsmale of his body. In the Parliamentary confirmation of the dowery of the Queen of James II. dated 1st July 1451, that dowery is said to be secured on the earldom of Fife, manor and castle of Falkland, and park of the same; and also upon the lordships of Menteith and the castle of Doune. Menteith and the castle of Doune are elsewhere enumerated among Crown lands. But there is no record extantin which the Levenax is mentioned as belonging to the Crown in property; nor of any grant or new erection of the earldom after the execution of EarlDuncan. Although a forfeiture is not to be assumed, yet it may be admitted, that the mere fact of the process of forfeiture not being extant would scarcely afford a conclusive argument, considering the dilapidated state of the Scottish records of that period; but that no notice or indication, whatever, of this earldom having been annexed to the Crown, should be discovered among the variety of notices which prove such to have been the fate of the possessions of Albany after the catastrophe of 1425, can only be accounted for by the fact, that Earl Duncan did not suffer forfeiture.
But there is positive evidence of the most conclusive nature that he did not. The honours and the fief, as shown in the last chapter, devolved upon his eldest daughter and heiress, in terms of the marriage-contract of 1391. By virtue of this family settlement, the widowed Duchess took and kept possession of the whole estates of the Lennox—exercised without challenge the rights of feudal chief—resided on the Island of Inchmuryne in Lochlomond, being the principal messuage—• granted many charters of lands belonging to the Comitatus, and in those charters used the style, " Isabella Duchess of Albany, and Countess of the Levenax"—and all this for about thirty years, the period she survived her father.
This state of possession was not only not disturbed by the sovereign, but expressly acknowledged by him. The Great Chamberlain roll already quoted, (being the royal accounts in which the King's interest is particularly attended to) proves the royal interest inthelandsof theLennox to have been simply that of over-lord—expressly recognizes theCountess under that title," antiquacomitissa de Lenax"—acknowledges the casualty of relief to have been paid, and the issuing of a precept of seisin to the heir,—and complains of continued non-entry while she is enjoying the fruits.
. The subsequent history of the Lennox will amply demonstrate that this state of matters was not a mere personal indulgence to the Duchess. At her death the Comitatus, though lying long in non-entry for causes that shall be distinctly traced, came eventually to betaken,not by the Crown, but by the representatives of Earl Duncan's second and third daughters. These representatives all made up their titles accordingly, and took as heirs-general of Earl Duncan, who, as those titles expressly bear, died at the faith and peace of the King,—. expressions which must be held to mean that that nobleman did not perish for treason, and was not forfeited.* These titles were confirmed by successive sovereigns from generation to generation.f In virtue of them, the romantic country, with which our historians have enriched the crowns of the early Jameses, continued to descend by inheritance through the heirs-general of the very nobleman against whom forfeiture is alleged.
* " Hec inquisitio facta apud Dunbertane 4 November 1473, Sec. quod quondam Duncanus Comes de Levenax, proavus Elizabeth de Menteth, latricis presentium, obiit ultimo vestitus et sasitus ut defeodo ad pacem et jidem Domini nostri Regis, de omnibus et singulis terris et annuis reditibus totius Comitatus et Dominii de Levenax." Retour of Elizabeth Menteith of Rusky as one of the heirs-general
of her great grandfather Merchiston Papers. The retours of all
the other coheirs are extant, and afford the same conclusive argument against the idea of forfeiture. The time of non-entry specified in all these retours agrees precisely with the period of Earl Duncan's execution in 1425.
t From many instances I select one, which amounts to a declaration by James II. that his father had not visited the Lennox with forfeiture. By a charter under the Great Seal, dated 22d February 1494, Elizabeth Menteith's son and heir, Archibald Napier, is confirmed in all her lands in the Lennox, which are declared to have come to her by inheritance, "fuerunt Elizabeth Menteith de Rusky, matris dicti Archibaldi, hereditarie, et per brevia capelle nostre partitionis et divisionis ipsi Elizabeth tanquam uni heredum dicti Comitatus de Levenax, &c."—Merchiston Papers.
THAT EARL DUNCAN HAD NO HEIR-MAI.E OF HIS OWN BODY.
—REri.Y To Mr Hamilton's Case For Woodhead.
The royal charter to Earl Duncan containing the limitations has been already quoted. The destination is first to himself and the heirs-male of his body ; secondly, to Murdoch Stewart and his spouse Isabella, and the longest liver of them, and to the heirs of that marriage; and lastly, to the heirs whomsoever of Earl Duncan. An heir-male of the body of Earl Duncan would have been a most important and conspicuous person; and accordingly in the contract of Isabella's marriage, the contingency of her being superseded in the earldom by the birth of a brother is particularly and primarily contemplated. It would have been strange indeed if such a direct heir of "the Levenax" existed, and in such times, without his name haying entered the records, not to say history; for a hasty adoption, in the Caledonia, of the theory of this young Earl's existence, cannot rank as history, being entirely derived, against the evidence of the public records, from the ex parte legal case for Woodhead. Indeed Mr Chalmers, in his excellent work, records the theory in question, and some of the proofs which redargue it, unico contextu. He says, " The Earl's eldest daughter, Isabella Duchess of Albany, was imprisoned in Tantallon Castle during the catastrophe of her father, husband, and two sons, but she was afterwards released. Notwithstanding her father Earl Duncan left a legitimate son of his second marriage, called Donald of the Levenax, she appears to have enjoyed the earldom of Lennox during the reign of James II. in the Castle of Inchmurrin in Lochlomond, the chief messuage of the earldom, where she granted charters as Countess of Lennox to the vassals of the earldom.* Thus it appears that Mr Hamilton's ingenuity in the case for Woodhead betrayed even the learned and laborious author of the Caledonia into the anomalous position of stating as a certain fact, the existence of a young Earl who is absolutely unknown to the records of Scotland, and then alluding, less confidently however, to authentic records directly opposed to the fact asserted.
The basis of the case for Woodhead, whose object is to prove that Earl Duncan left a legitimate son, now represented by the family of Lennox of Woodhead, are two charters, both of which, however, contain internal evidence against the very claim in support of which they are adduced.
1. A charter of the lands of Ballyncorrauch, &c. in the Lennox, from Earl Duncan to his son Donald of the Levenax, commencing in the terms quoted below.f Upon this the claimant is made to plead; " Earl Duncan repeatedly declares Donald of the Levenax ' His LawFfwelx Son ;' and the grant made to him is with the
* Caledonia, Vol. iii. Dunbartonshire.
+ "Be it kende till all men be thir present lettres, us Duncane Erie of the Levenax, with the consent and the assent of Walter Stemart, till haff giffine and till haff grantit, and be this present writ, gifes and grantis till my weil belufit sone laffwel Donald of the Levenax, all and singlar my landis of Ballyncorrauch," &c. dated at Strablayn, 22d July 1421. See Case for Woodhead, pp. 12, 13, where the whole charter is quoted.