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"Reply to the misstatements of Dr Hamilton of Bardowie," speaking of the manerium of Dalserf in 1381, he observes, " Manerium with us in later times comprised, besides the principal messuage, the terrce dominicales, which were not inconsiderable, and allotted to the support of the baron and his retainers." It is thus not easy to reconcile the definition of manerium in the Tracts, with that to be gathered from the dispute with Bardowie; nor to extract from either an elucidation of the relative meaning of the terms as used in the charters we are considering.
There seems to be no doubt that the term manerium was used in England to express, sometimes the principal messuage of a barony, or caput baronice, and sometimes the whole estate or barony. Nor can it be said that in Scotland manerium has invariably been used in a sense subordinate to the caput baronice. Long before the date alluded to in the Reply to Bardowie, both in the reign of Robert I. and David II., capitale manerium was sometimes used in the sense of capitale messuagium. But it is equally undeniable that in Scotland messuagium generally obtained, in reference to the feudal customs and privileges of a barony, a signification distinct from manerium. Skene, in his glossary, defines the latter term as the mains, or domestic farm of the barony, and adds, that if a man leave " twa mains," the principal one should go undivided to his successour, " togidder with the principal messuage." This is confirmed and illustrated by the respective charters of Gleneagles and Merchiston, where the terms are contrasted, and where messuagium is obviously used as the mansion par excellence. Not, however, that manerium, in these charters at least, " only meant lands contiguous to the mansion-house." These home farms seem to have comic
prised a place or steading of their own, for in the Merchiston charters there are enumerated, messuagio, maiterie* et loco, &c. and in the charter of the barony of Haldane, the manerium is ordained to become in future principule messuagium dicte baronies.
Messuagium,on the other hand,—which Skene defines "an principal dwelling-place or house ivithin ane baronie,"—always had that determined signification, nor is there any instance, that I am aware of, where messuagium is ordained principalejbre manerium.
Upon the whole, then, there appears little difficulty in the interpretation of the respective charters of Merchiston and Gleneagles. In the former, the half of the lands of Rusky, &c. with the principal messuages or mansions, and certain mains, or domestic farms (probably the principal) are enumerated. In the latter, the other half of the lands of Rusky, &c. with their mains, are enumerated; but this, the inferior portion of the Menteith baronies, had lost the dignity of messuages, and only acquired it again when re-erected into the barony of Haldane.
But this illustration of the distinction in question has become of minor importance since the evidence afforded by the act of transference produced by Mr Riddell. For whether the above antiquarian considerations be accurate- or not, the fact is unquestionably proved, even by the evidence produced for Gleneagles, that Elizabeth Menteith, and her lineal successors for many generations, possessed the principal messuages or mansions of the Rusky estates, to the exclusion of her sister Agnes and her descendants. It is really singular that this acute antiquarian lawyer should not have perceived that what he now produces proves nothing for Gleneagles, while it affords most important evidence for Merchiston. It does not prove that the contract alleged ever existed, and, if it did, there is no proof afforded of the truth of the expression founded upon in that contract. But it does prove that, at least down to the year 1568, the principal messuages were actually possessed by the family of Merchiston, the object of the act of transference (a step never followed out) being to defeat, if possible even at thatlatehour, the patrimonial arrangement to that effect, which, obviously, had not been conceded to Merchiston by any compromise, but asserted by that family in Jbro contentiosissimo. It only remains to illustrate the value of the fact as evidence of primogeniture.
* Maneria-ce, manerium-ii, or maneries-ei, three forms of this semi-barbarous, or tow-Latin term, is thus denned by Vossius in his treatise de Vitiis Sermonis et variis Glossematis. "Maneria vel manerium habitatio cum certa agri portione." In the Merchiston charters the phrase sometimes is cum messuagio et numeric, and sometimes, cum messuagio, manerie et loco; this is from maneries, for in the same charter there occurs cum castris, turribus, fortaliciis, maneriebus, &c. This occurs in the charter of barony to John Napier in 1572, referred to in the text.
The territorial principle which, in those feudal times, and before the practice of holding peerages by patent, so naturally ruled the transmission of honours, gave rise to the importance attached to the chief messuage, and there is no doubt that, had Rusky been a Comitatus, this possession on the part of Elizabeth Menteith would have been equivalent to an assumption of the dignity. The chief messuage represented the dignity of the baronial estate. The fief might become partially dismembered, but the feudal possession of the chief messuage still held it together, and the feudal dignity seemed co-existent with its tenure.
A remarkable instance of its importance and prerogative is afforded by a feudal transaction which occurred in the very year when Elizabeth Menteith made good her possession of a quarter of the Lennox, though she was not sufficiently powerful to take the messuages. I shall give the illustration in the words of Lord Hailes. "In 1488, James III. bestowed the title of Duke of Ross on the Earl of Ross. The Duke of Ross having embraced an ecclesiastical life became Archbishop of St Andrews, and commendator of Dunfermline. Possessed of so ample an equivalent he resigned his estates into the hands of his brother James IV. According to the ideas of that age, the resignation of the whole estate would have carried with it the titles of honour. Thus, for example, it is plain from act 41, Parl. 2. James II. that the resignation of the Reid-castle would have carried with it the dominium of Ross ' pertaining thereto.' For avoiding this consequence the Duke of Ross reserved either the principal messuage, or the mootekill of each estate."*
It follows of course that the chief messuage, or caput haronice, was impartible, and in the case of coparceners appertained to the portion of the eldest. "The capital messuage, (says the same distinguished lawyer) and jurisdictions, are no less indivisible than a peerage. They have gone constantly to the eldest heir-general by the ancient customs of Scotland-f
The Regiam Majestatem is the oldest code of Scotch law extant, and whatever its origin and history may be, it is sufficient for the present argument to observe, that it was established authority at the period in question, and that Sir John Haldane quotes it repeatedly in his process against Lord Dernely.
* Sutherland Case. t Ibid.
I shall quote from the ancient translation by Skene.
." The dochters succeid to the father. Gif there be ane dochter, the like is to be said of her as is said of ane sonne. Gif there be moe dochters nor ane, the heretage sall be divided amongst them; quhither their father was ane socco-man, or ane knight, or ane burges, or anie other frie man. Reservand the chiefe messuage to the eldest dochter." All the authorities, ancient and modern, concur upon the point ;* and by what theory it can be explained that Elizabeth Menteith obtained possession of the messuages of her father's baronies to the exclusion of Agnes, unless it was in virtue of primogeniture, is for them to discover who maintain that she was the junior coheiress.
* See Craig, De Unione; Stair, Erskine, Bracton, Blackstone, Cruise, &c.