\ ^vmmitj^ o JO^ ^i»OJnVD-JO'^ ^J513DNVS0# '^/^aaAINMVl^ ^^iOJUVDJO'^ 0% ^OF-CAIIFO%. .K^ ^ ^5]AEUNIVER% OS fi? i# ^^AHvaani^ ^uM-soi'^ &Aavaan# ER% ^lOSANCElfX;> ^llIBRARY(3r <^tllBRARYQ< 501=^ %fflAiNn-3V^** \^\\m\^ \^my\^ ^^W£UNIVFR% ea ER% ^lOSANCEl^j. ^1 ira:^ CO 90 ^OF'CAllFOi?Hk, o ^OFCAIIFO%. .^WEUN|VER% I < .-.,. 00 39 S s ^ ^ 0| ^ *yn ^.•^' -^tUBRARY/:. ^JUVD-JO"*^ i<; .^WEUMivrer ii ^\ ^OFCAIIFOP. '^omWii .^WE'UNIVERS//. v-y" ,\MMJNi h\ ( ^■J3W3f> tiipil I lU- . . il^< „ § ^f fk fi HISTORY OF THE PARTITION OF THE LENNOX, PHINTEU BV JOHN 3TARK, EDINBURGH. HISTORY OF THE PARTITION OF THE LENNOX. By mark NAPIER, Esq. ADVOCATE. WILLIAM BLACKWOOD AND SONS, EDINBURGH; AND THOMAS CADELL, LONDON. M.DCCC.XXXV. DA Ub/ib PREFACE. Who is Representative of Duncan eighth and last of the ancient Earls of " the Levenax ?" This question, which involves the right to the dignity, has never been fully and fairly considered. Indeed the fate of this in- teresting Comitatus is very slightly and erroneously recorded by the best Historians of Scotland. It has been asserted that the honours were forfeited in the person of Earl Duncan, and the Lennox annexed to the Crown. Yet it can be proved that those honours were taken up by service to the very Earl against whom forfeiture has been alleged; and that the Comitatus itself descended by right of inheritance through his heirs-general for cen- turies. The same Historians had to record the trans- mission of the dignity through the Stewarts of Dernely, and therefore found it necessary to assume a new crea- tion in favour of that family. Yet it can be distinctly proved that the race of Dernely itself never j)retended that such was the case, but claimed and kept the title of Earls of Lennox upon the pretension of their right of blood alone. 8?;M()5 VI r RE FACE. The only attempts hitherto made to clear this his- tory are by legal antiquaries, who have taken but a l)artial view of the subject, and the nature of whose com- pilations are neither fitted nor intended for general cir- culation. Mr Hamilton, in his very able Case for Woodhead, * afforded a copious repertory of Lennox antiquities, drawn from various antiquarian sources, among which he acknowledges his obligations to Mr Riddell for the communication of valuable notices de- rived from researches in the Register-House. But this elaborate compilation was got up for the sole purpose of supporting a pretension utterly untenable, and Mr Hamilton's labours, therefore, have only tended still further to mislead other writers as to the history of the Lennox. An older case (now rarely to be met with) was printed sometime in last century, to support the claim for Haldane of Gleneagles.f This claim, being ex parte very plausible, is entitled to a consideration which that for Woodhead can never obtain. But the printed case alluded to, though the work of a distin- guished lawyer, is both meager and inaccurate, and af- fords no history sufficient to enable the reader to appre- ciate the respective merits of all the competing claims. Mr John Riddell, Advocate, the most competent per- haps to have occupied such a field, was not induced to do * " Case of ^.Margaret Lennox of Woodhead in relation to the Title, Honours, and Dignity of the ancient Earls of Levenax or Lennox. Edinburgh, 1813." Drawn up by Robert Hamilton, Esq. Advocate. + " Memorial relative to the succession to the ancient Earls of Levenax." Without date or signature, but drawn up by Mr Wed- (lerburi), afterwards Lord Chancellor Loughborough. PREFACE. Vll SO even by some new lights he obtained on the subject, many years ago, in the course of his minute antiquarian researches. The discoveries alluded to were in favour of the claim for Napier of Merchiston, but no Case for that branch of the Lennox coheirs has hitherto been com- piled, although their claim, to say the least of it, appears to be far more tenable than any other that can be ad- vanced. Mr Riddell, indeed, published in 1828, some sheets of antiquarian controversy, relative to the House of Hamilton, and entitled " Reply to the Misstate- ments of Dr Hamilton of Bardowie," in the appendix to which he inserted a " Statement in reference to the late pretensions of the family of Lennox of Woodhead, to the Honours and Representation of the ancient Earls of Lennox." This statement is sufficiently conclusive against Woodhead, and also discloses a document posi- tively instructing the circumstance, which so obviously vitiates that pretension. But the triumph was of minor importance in clearing the history of the Lennox suc- cession. No one can read the Case for Woodiiead with- out perceiving that it contains the materials of its own refutation, — the charters founded on proving, most obvi- ously, the very fact which Mr Riddell more directly established. The same learned antiquary, in a recent publication,* now for the first time lays before the public the evidence for Merchiston, which he discovered in the Register- House more than twenty years ago. But certainly it * " Tracts Legal and Historical/' &c. containing uilcr alia, " Ob- servations upon the Representation of the Rusky and Lennox Fami- liesj and other points in Mr Napier's iMemoirs of Merchiston." 1835. Vlll PllElACE. could not have made its appearance in a less satisfactory shape for those who are really anxious to ascertain the true state of the question between the competitors for the Earldom of Lennox. His views of that evidence have, it seems, been in some degree altered by other evidence he has more recently discovered in favour of Gleneagles, but which, after all, by no means enables him to settle the question even to his own satisfaction. The result of his present publication, so far as concerns the Lennox question, is, to adopt the learned gentle- man's own words, — " a kind of puzzle that is perplex- ing." Underthese circumstances, it is hoped that a History OF THE Partition of the Lennox, with an exami- nation of the various claims to the character of heir-ge- neral of the Earldom, will, as it is perfectly new, be ac- ceptable to the public. The author regrets that the task had not been undertaken bv some one more com- petent to do it justice, but he has spared no pains to throw light upon the subject. He has diligently perus- ed and considered all the antiquarian compilations, be- sides examining every original record, public and pri- vate, connected with the history of this ancient Earl- dom, so far as open to his inspection. And in arriving at the conclusion that neither the Case for Gleneagles, nor the more modern pretension put forward on the part of Woodhead, could stand in law before a Case for Merchiston, he trusts the following pages will show that he is supported by legal evidence, and not misled by partial feelings. The possession of the Merchiston charter-chest, in- PREFACE. ix trusted to him by the late Lord Napier, furnished the author with vahiable materials for the present under- taking ; and he has also to acknowledge his obligations to William Dallas, Esq. W. S. who at all times most obligingly afforded access to inspect such of the Glen- eagles papers as were in his hands. Mr Riddell must have hastily written the following sentence of his publication alluded to, and, as that gentle- man had no intention to mislead, he will thank us for ex- plaining it: "The above view of things, with the relative evidence, the author communicated, at a distant period, to the late Lord Napier, and a few years ago to Mr Mark Napier, Advocate, at his request. He regrets to find that the learned gentleman in his Memoirs of Mer- chiston, which he did not see until published, while he represents Elizabeth Menteith, the Merchiston ances- trix, as the eldest coheir of Rusky, instead of standing upon probabilities and presumptions, gives the fact as an absolute certainty, from which he concludes that the Earldom of Lennox is indisputably in her line." * Now the " above view of things, with the relative evidence" here referred to, appears to be ten printed pages of ela- borately illustrated matter, (some of it perfectly new) in reference to the Lennox claim, which the author of the Memoirs never saw in any shape until recently pub- lished. Not that he is so unreasonable as to expect to see a work before it is j)ublishcd, but the sentence quot- ed might convey an erroneous impression, to the effect that he had actiuilly solicited and obtained some such * Tracts, j). 103. X PREFACE. favour from the learned author of the Tracts. The au- thor had long been aware of Mr Riddell's discoveries in the Register-House relative to Merchiston. Several years ago, he was led by that circumstance to consult Mr Riddell, verbally, on the subject of the Lennox case for Napier, which they frequently discussed, and upon one occasion examined some of the Gleneagles papers together. No part of the following history (not con- templated at the time) is the result of these desultory conversations, from which, perhaps, the author did not reap the benefit he ought. It may be necessary to add a few words in reference to the Vindication which forms a supplement to this volume. Mr Riddell, in the preface to his recent work, states that it originated in " a desire to clear up certain points that admitted of illustration, and to bring forward original notices. As every antiquarian knows — amid the fable that obscures Scottish antiqui- ties nearly as greatly as the dearth of record, there is nothing so much wanting in every department as ge- nuine and unexceptionable facts, which often, as our dis- tinguished countryman Lord Hailes has demonstrated, are of far greater importance than the reveries of our writers, and ingenious and speculative inferences." If these excellent principles had really been applied in Mr Riddell's review of the Memoirs of Merchiston, the au- thor, even though convicted of error, would most sin- cerely and cheerfully have acknowledged the obligation. But the controversial criticism displayed in that learn- ed gentleman's " Observations" is by no means cha- racteristic of the Haii.es school of Scottish antiqui- PREFACE, XI ties, being composed of antiquarian trifling not justi- fied by its accuracy, and little touches of spleen scarce- ly redeemed by their wit. It is not this, however, that would have induced the author to vindicate his own labours, which, as they must be open to much sub- stantial criticism, historical and scientific, would be for- tunate to escape with no greater shock than what may be received from Mr Riddell's pedigree-picking. But a manifest tendency, throughout the whole critique, to cast suspicion upon certain antiquarian proofs relied upon in the Memoirs, and to give rise to vague ideas of old fabrications and forgeries — ideas only deriving weight from being suggested by an antiquary who is understood to be devoted toresearches of the kind — seem- ed imperatively to call for a vindication, v/hich the au- thor has endeavoured to render interesting to the gene- ral reader. Edinburgh, June 1835. CONTENTS. HISTORY OF THE PARTITION OF THE LENNOX. CHAPTER I. Antiquity of the Earldom — Investitures and Limitations — Fate of Albany and Lennox, - - - - Page 1 CHAPTER n. Possession of the Lennox by the Duchess of Albany as Countess of Lennox, ------ 13 CHAPTER HL Of the Heirs of the Investiture after the demise of Isabella of Lennox — Refutation of the Historians who have recorded that the Earldom of Lennox was forfeited in 1425, - 21 CHAPTER IV. That Earl Duncan had no Heir-male of his own body — Reply to Mr Hamilton's Case for Woodhead, - - 28 CHAPTER V. Causes which obstructed the immediate Entry of the Heirs-Ge- neral of Earl Duncan to their succession in the Lennox after the demise of the Duchess — Liferent Grant of the Lennox to the Chancellor Avandale — Titles made up by the Heirs-Ge- neral, ._..__ 41 XIV CONTENTS. CHAPTER VI. First attempts of John Lord Dernely to appropriate the honours of Lennox — His irregular service reduced in a Plea with Hal- dane of Gleneagles — State of the Titles to the Lennox at the close of the Reign of James HL - - . 54 CHAPTER VH. History of John Lord Dernely's second usurpation of the Ho- nours of Lennox — His Contracts of Excambion with the other Coheirs — Final partition and settlement of the Fief, - 66 CHAPTER Vm. That John Lord Dernely was not Earl of Lennox by virtue of any special grant from the Sovereign, or new constitution of the honours in his favour — Historians and other writers refuted upon this point, - - - - 82 CHAPTER IX. Reply to Lord Loughborough's Memorial for Gleneagles — State of the process between Dernely and Gleneagles, - 91 CHAPTER X. That John Lord Dernely had no other right to the Honours of Lennox than what he obtained through the Contracts of Ex- cambion — Legal effect of those contracts, - - 106 CHAPTER XL Proof that Elizabeth Menteith was elder than Agnes Reply to Mr Riddell's Discovery for Gleneagles — Messuagium et Ma- nerium, - - - - - -120 CHAPTER XIL Farther Proofof the Primogeniture of Elizabeth Menteith. Con- clusion, - - - . . - 150 CONTENTS. XV VINDICATION OF THE ANTIQUITIES OF MERCHISTON AND THIRLE- STANE, IN REPLY TO MR RIDDELl's " OBSERVATIONS UPON THE REPRESENTATION OF THE RUSKY AND LENNOX FAMILIES, AND OTHER POINTS IN MR NAPIER's MEMOIRS OF MERCHISTON." I. Reply to Mr Riddell's insinuation that the evidence for the an- cient Armorial Seals of Merchiston may not be genuine — An- tiquities of races of Napier distinct from Merchiston, - 165 II. Reply to Mr Riddell's Assei'tion that there is no Foundation in fact for the Statement contained in the first Lord Napier's at- testation, that the Napiers in England were his near relatives and Cadets of Merchiston, - - - - 192 III. Reply to Mr Riddell's Theory that the Grant of Arms by James V. to Scott of Thirlestane is founded on Forgery — An- tiquities of the Scotts of Howpaslot and Thirlestane, - 217 Addenda, --.-.-. 253 LIST OF GRAPHIC ILLUSTRATIONS AND EMBELLISHMENTS. 1. Charter- Seal of Malcolm V. Earl of Levenax, preserved in the Chapter-House at Westminster, - Title-page. 2. Privy- seal or Signet of the same Earl, also preserved there. This was the friend of King Robert Bruce, and he who died at Halidonhill 1333, .... Page 162 3. Charter- Seal of Donald of Ballcorrach, referred to in the Case for Woodhead, p. 56, .... 37 4. Armorial carving referred to in the Case for Woodhead, ib. 5. Charter-Seal of Alexander, 1st Napier of Merchiston, 169 6. Charter-Seal of Alexander, 2d Napier of Merchiston, ib. 7. Charter- Seal of John, 3d Napier of Merchiston, - ib. 8. Carving of the Shield-Matrimonial of Napier of Wrychtis- houssis, date 1399, - - - - 183 9. Do. do. date 1450, 184 10. Do. do. date 1513, 185 XVi CONTENTS. 11. Carving- indicating the Marriage of William Napier of Wrychtishoussis and Margai'et Bannatyne, - - 187 12. View of the Wrychtishoussis (removed in 1800) as it stood before the year 1788, - - - - 190 13. View of Merchiston Castle as it now stands, but without the modern additions, being its primitive state, - - 191 14. Portrait of the Familiar of the " Marvellous Merchiston," 216 15. View of Saint Mary's Loch in Ettrick Forest, with the Ar- morial Shields of Scott of Howpaslot and Thirlestane, 251 16. Fac-Simile of the Autograph of James II. - 153 17. Do. do. James III. - 131 18. Do. do. John Stewart, 1st Earl of Lennox of the Dernely race, ... 75 19. Do. do. Mathew, his Son, 2d Earl, killed at Flodden, - - - - - ib. HISTORY OF THE PARTITION OF THE LENNOX. CHAPTER I. ANTIQUITY OF THE EARLDOM INVESTITURES AND LIMITA- TIONS FATE OF ALBANY AND LENNOX. Levenachs, or Levenauchen, a Gaelic term signi- fying the field of the smooth stream, comprehended the original sheriftclom of Dunbarton, a rich and extensive district of Scotland, which has since suffered various dismemberments in favour of the neighbouring counties. The name has assumed the forms of Leveiiax, Lenax, and Leiinox, which latter is the modern appellation.* At what precise period this district became erected into an Earldom, or Comitatus, with all the consequent privileges, has not been accurately determined. Lord Hailes, the father of authentic Scottish history, admits the existence of Earls of Lennox so far back as the twelfth century, but is sceptical as to their reputed de- scent from a Saxon Lord called Arkill, and rejects the theory as belonging to " the ages of conjecture."! Mr Hamilton, in his Case for Woodhead, says, " Lord Hailes * See chartulary of Lennox, edited for the IMaitland Club by Mr Denniston, and Chalmers' Caledonia, Vol. iii. Dunhaiion.shire. t Case for the Countess of Sutherland, c. v. sect. x. A 2 HISTORY OF THE is, perhaps, too scrupulous. The first notice of Earls of Lennox he recognizes is in 1238, though they are upon certain record forty years at least before that pe- riod, and he admits Donald to be the sixth Earl."* But whoever attempts to convict Lord Hailes of a blunder of the kind, is likely to fall into one himself. It is true that the case for the Countess of Sutherland commences, in its notice of Lennox, with a charter of Alexander II. to Earl Maldowen in 1238, but the very extract which Lord Hailes quotes from that charter, records Earl Maldowen's father, Alwyn, as having been Earl of Len- nox also; and, moreover, the same author had previously stated, that "the Earls of Lennox are mentioned, in histo- ries and public deeds, so far back as the twelfth century." Mr Hamilton deduces a theory (adopted by Chalmers) that the first Alwyn was created Earl of Lennox, at a very advanced age, by Malcolm IV. betwixt the years 1159 and 1165, — that his son Alwyn succeeded when so young, that David, Earl of Huntingdon, King Wil- liam's brother, had been put into possession of the Earl- dom, or had held it in ward, till Alwyn came of age, which happened before the close of the twelfth century. But there are charters extant which materially affect this theory. \st, A charter, relating to the church of Campsy, from " Alwyn, Comes cle Levenax, JUius et heres Alwiiii comitis cle Levenax, Maldoweni Jilio et lierede nostra concedente.^' ^d, A charter, relating to the same subject, by " Maldowen, Jilius et heres comi- tis Alwini JUNioRis comitis de Levenax et heredis Alwini sENiORis comitis de LevenaxJ" f These char- ters, which have no dates, prove that Maldowen was * Page 2. t The quotations in the text are from a transcript, which I saw in tlie Register-HousC;, of the Chartulary of Glasgow. PAUTITION OF THE LENNOX. 3 the son of Alwyn, who was the son of Alwyn, and that the two Alwyns were both at the same time designed Earl of Lennox, probably because the son was /ear of the Comitatus, while the father was lifer enter. It would rather appear, then, that the eldest Alwyn was the first Earl of Lennox of his race, but that the district of the Leven had been previously erected into an Earl- dom in favour of David Earl of Huntingdon, some time between the middle and the close of the twelfth century. From Alwyn, the Earldom past in lineal male suc- cession as follows : I. Alwyn. IV. Malcolm. II. Alwyn. V. Malcolm. III. Maldowen. VI. Donald. With Earl Donald the direct male line ceased. He left an only daughter, Margaret, who became Countess of Lennox, and married Walter, son of Allan de Fasse- lane, her own cousin, and heir-male of her House.* In consequence of a resignation by Walter and Mar- garet in 1385, Robert II. granted to their son Duncan, and his heirs, a charter of the whole Comitatus. In ac- cordance with the territorial nature of feudal dignities in those times, W^alter de Fasselane had obtained the title of Earl of Lennox in right of his spouse ; f and in like manner, upon the resignation of his parents in his favour, Duncan became eighth Earl of Lennox, in his father's lifetime. Walter de Fasselane, the husband of Margaret of the Levenax, was recognized and designed in royal char- ters as Earl, simply because he possessed the Comitatus * See the Lennox Chartulary, and Mr Denniston's preface. The most distinguished of these Earls was Malcohn V., the friend and comrade of Robert Bruce. He was killed at Ilalidonhill in 1333. t Sutherland Case, c. v. p. 40. 4 HISTORY OF THE in right of his wife, there being no limitation of the dig- nity of this fief to heirs-male. The charter of resigna- tion to their son Duncan is equally general, being Dun- cano et heredihxis suis.* The next and ruling investiture of the earldom arose out of a family contract between Earl Duncan and the Regent. In the year 1390, Ro- bert Stewart Earl of Menteith and Fife, a younger bro- ther of King Robert III. whose reign then commenced, was the most potent nobleman in Scotland, and, through the indolent temper and weakness of the monarch, was suffered to hold the office of governor of the realm. In 1391, the Earl of Lennox, who had been left a widow- er, without male issue, but with three daughters, Isa- bella, 3Iargaret, and Elizabeth, became a party, along with the Earl of Fife, to a curious contract of marriage between his eldest daughter, Isabella, and Sir Murdoch Stewart, the Regent's eldest son. The following are the terms of this contract in modern orthography. " This indenture, made at Inchmoryne the 17th day of February, in the year of grace 1391, bears witness, that it is accorded between noble and mighty Lords, Sir Robert Earl of Fife, on the one part, and Sir Duncan Earl of the Levenax, on the other part, in manner as fol- lows: *' That is to say, that Sir Murthow, son and heir to the foresaid Earl of Fife, shall have to wife, Isabella, the eldest daughter of the said Earl of the Levenax, and shall endow her in the barony of the Redhall, with the appurtenances in tenandry and demayn. " Item, it is accorded that the said Earl of the Leve- nax shall resign up in our Lord the King's hand, all his earldom of the Levenax, with the appurtenances, to be infeft again of his said earldom, to him and to his heirs- * Chartularv of Lennox. PARTITION OF THE LENNOX. 5 male, gotten or for to be gotten lawfully of his body ; whom failing, to the said Sir Murthow and Isabella, and to the longest liver of them, and to the heirs lawfully to be gotten between them, whom failing, to the nearest and lawful heirs of the foresaid Earl of the Levenax. And to the fulfilling of this tailzie, the foresaid Earl of Fife shall purchase the King's assent and Walter Allown- son's,* father to the said Earl of the Levenax. " Item, it is accorded that, in case the said Earl of the Levenax shall happen to have heirs-male of his body, or if he chance to take a wife to himself (or thrugh a- ventur hijm selvyn happijn to he to marij) and the said Earl of Fife happen to have a marriageable daughter, the said Earl of the Levenax, or his heir-male, shall have to wife that daughter ; and if the said Earl of Fife hap- pens to have no daughter to marry, the said Earl of the Levenax, or his heir-male, shall have to wife a * nest cosyng" of the said Earl of Fife at his assignation, or the said Sir Murdow's, without disparagement to the said Earl of the Levenax, or his heir-male. " Item, it is accorded that the said Earl of the Leve- nax and his heir-male (if he any get, as is before said,) shall pay to the said Earl of Fife, or Sir Murthow his son, for the marriage of the said Isabella his daughter, two thousand marks Sterling, proportionally, at reason- able times, as the time happens ; of the which two thou- sand marks, the foresaid Earl of Fife, or Sir Murthow his son, shall allow to the said Earl of the Levenax, for the marriage of his heir-male, or of himself if it happen in manner before said, a thousand marks Sterling. * Walter de Fasselane was the son of Aulay or Allan de Fasse- lane, (an extensive tract of country on the Gairloch, forming the patrimony of this branchy) who was the son of Aulay, fourth son of Alwyn, second P^arl of Lennox. b HISTORY OF THE " Item, it is accorded that the said Earl of the Leve- iiax shall be substitute and depute to the said Earl of Fife, of the justiciaries of the sheriffdoms of Stirling and Dunbarton, of as much as pertains to the Lordship of the Levenax, as long as the Earl of Fife has no justi- ciaries. And the said Earl of the Levenax shall have the third part of the profit of all that the said Earl of Fife has, and may have, of the justiciaries of the Lord- ships of the Levenax foresaid. " Item^ it is accorded that the saids Earl of Fife and Sir Murthow, his son, shall be leal helpers, counsellors, supporters, promoters, and furtherers to the said Earl of the Levenax in all his actions, causes, quarrels him touching, or that may touch, as their own proper causes, for the time of their lives, he living by them and their counsel, and discretion of his own counsel. " Item, it is accorded that the said Earl of Fife shall give in marriage one of the daughters of the said Earl of the Levenax, Elizabeth or Margaret, at his own costs, in convenable place, without disparaging of her. And the saids Earl of the Levenax, and Sir Murthow, shall give in marriage the other of his daughters, at their costs. " Item, it is accorded that the foresaid Earl of Fife, or Sir Murthow his son, shall make over to the heirs-male to be gotten between the said Sir Murthow and Isabella as much land heritably as the said Earl of the Levenax has now in property in demayn. " The which things above-written leally to keep and to fulfil, without fraud or guile, the foresaids Earls and Sir Murthow have sworn vipon the holy Evangel. And to this indenture have set interchangingly their seals, day, year, and place before said."* * This contract, in its ancient orthography, is printed in the case for Woodhead. Mr Hamilton observes, " The original deed is not PARTITION OF THE LENNOX. 7 Upon the 8th of November 1392, King Robert III. granted a charter under the Great Seal to Earl Duncan of the whole earldom of Levenax, proceeding upon his re- signation in terms of the above contract, and containing the limitations then agreed to, which became the ruling investiture.* About the period of these settlements all the daugh- ters of Earl Duncan were married, and certainly with- out disparagement to any of them. Isabella, to Sir Mur- doch Stewart, the King's nephew ; Margaret, to Sir Robert Menteith of Rusky;| and Elizabeth, to Sir John Stewart of Dernely. ; Under this new investiture Earl Duncan possessed un- til his death in 1425. He formed no second alliance, nor had he any heir-male of his body who might fulfil the condition of a marriage with the Regent's daughter. The preserved, but a notarial transcript of it, taken by order of John Lord Dernely, on the 21st of January 1460, is in possession of the Duke of Montrose." P. 9. It will be observed that, in this tran- script, made hy order of John Lord Dernely, Elizabeth, that noble- man's ancestrix, is put before her sister Margaret, the ancestrix of Rusky. * There is no question or dispute as to the ruling investiture and limitations of the Levenax and its honours. The royal charter " Dun- cano Comiti de Levenax," is recorded Reg. Mag. Sig. Rut. Rob. iii. No. 45, and the words of limitation are, " Dido Dnncano el here- dibus suis inascitlis de corpore suo legittime procrealis sen procre- andis ; qitibus forte dejicientibus, Murdacho Seneschallo consanguineo noslro carissmo, et Isabellejilic dicti comitis, et eorum diutius viventi, ac heredibus inter ipsos legittime procreandis ; quibusjbrte dejicien- tibus, veris legitlimis et propinquioribus heredibus dicti Diincani qiii- buscunque." It was solely in virtue of this limitation that Lord Dernely assumed the honours in the following century. t Margaret was married to Sir Murdoch Menteith in 1392. The Gleneagles Case quotes " Sasine in her favour by her husband penes Ducem de Montrose." X See History of the Stewarts, by Andrew Stewart, Esq. M. P. 8 HISTORY OF THE marriage of Murdoch and Isabella, however, promised to answer all the purposes of that compact, and for ever to unite in one family the earldoms of Lennox, Fife, and Menteith. This lady bestowed upon Murdoch of Albany four sons, Robert, (who died early.) Walter, James, and Alexander, some of whom grew up into such beauty of manhood as to be the admiration of Scotland. In the meanwhile the aggrandizement of Earl Robert had been greatly accelerated by the weakness of his brother, who still suffered him to govern the kingdom, and, at the same time that he created Prince David Duke of Roth- say, bestowed upon the ambitious governor the title of Duke of Albany, these being the first dukedoms erected in Scotland. The captivity of James, only remaining son of Robert III. and the consequent heart-broken death of that aged monarch, quickly followed the supposed mur- der of the Duke of Rothsay, and left Albany in undis- puted possession of the regency, which he maintained for fifteen years thereafter, and even transmitted to his son, the husband of Isabella of the Levenax. But the dark hour approached when the long restrain- ed vengeance of an injured prince was to burst upon this devoted house. If there be any truth in the sur- mise that the lingering death of the Prince of Scotland was the deliberate act of his uncle, Duke Robert, and that the subsequent exile and protracted captivity of James, to whom the succession had thus opened, was owing to the interested and powerful intrigues of the same nobleman, the rigour of that monarch to his uncle's family is accounted for. But even without admitting the absolute certainty of the more atrocious charges, there were exasperating circumstances. For many years the late Regent had excited the indignation of the coun- try, oppressed the people with a vicious government, and PARTITION OF THE LENNOX. 9 cast the royalty of Scotland into shade. Nor was it to be supposed that the crown lands would not suffer from one so determined to acquire, at all hands and all hazards, resources to sustain the enormous aggrandize- ment of his family. James I. was restored to his kingdom in 1423,* through the intervention, it is said, of his cousin, the Regent Mur- doch, whose gentleness appears to have deserved a bet- ter fate than to expiate the offences of his race. The monarch was crowned, with his queen, at Scone on the 21st May 1424. Duke Robert, whose energetic regen- cy inspired awe if it did not command respect, had been removed by a natural death in 1420,-j- and the country was now in great disorder. But the restored King was not long of commencing those rigorous mea- sures which ended in the total destruction of the for- tunes and family of the Regent. The first victim was Walter Stewart, now the eldest son of Duke Murdoch, also called Walter of theLevenax, from being heir of that earldom through his mother Isabella. James I. before his coronation, had ordered him to be arrested in the Castle of Edinburgh, and carried to the island of the Bass where he was closely confined. Several other per- * Scotichronicon, Vol. ii. pp. 474 and 481. Mr Tytler places his return under the year 1424, Vol, iii. p. 199. t Every historian of Scotland has recorded that the Regent Ro- bert died 3d September 1419. I find, however, in the Register of the Great Seal a charter of confirmation by James I., dated at Edinburgh August 29, 1430, of a charter " avuncidi sui Robert is Ducis Albania;," which charter of Duke Robert is dated " ajmd Falk- land, August 4, 1420, an. gub. 15." This clears up u difficulty start- ed by Pinkerton, that, in the records, the year 1423 is called an. gub. 3, of Du/ic Murdoch. Pinkerton attempts to explain this by the inference that, although Duke Robert died in 1419, his son Murdoch was not recognized as Regent until 1420. 10 HISTORY OF THE sons of the highest distinction were, at the same time, conducted to separate prisons. Very shortly after- wards, Duncan Earl of Lennox was also seized, along with Sir Robert Graham, and confined in Edinburgh Castle, A Parliament was afterwards summoned, upon the ninth day of which, being the 21st March 1424-5, James, who now felt himself sufficiently firm in his re- gal seat, ordered the arrest of the Regent himself, and of Alexander Stewart, his younger son, along with six- and-twenty of the most illustrious men in Scotland. Many of the nobles so hastily arrested were almost im- mediately released, and were, moreover, induced or com- pelled to become the judges of the unfortunate victims. The same day on which the Regent was arrested, Isa- bella, his Duchess, was seized in their palace of Doune in Menteith, carried to Dunbar, and afterwards impri- soned in the castle of Tantallon. James Stewart, their third son, alone of all his family effected an escape. This daring youth, made, on the instant, one desperate ef- fort to succour his family or avenge their fall. With a body of armed followers, he carried fire and sword into the town of Dunbarton, and put to death the King's uncle, John Stewart, (called the Red Stewart of Dundonald) with thirty-two others of inferior note. But this struggle was unavailing. The King pursued James of Albany with such determined animosity, that he was compelled to fly, with his abettor the Bishop of Argyle, to Ire- land, whence he never returned. * Soon afterwards, in a Parliament where the King pre- sided in person, on the 24th May 1425, Walter Stewart of the Levenax was tried by his peers, convicted, and instantly beheaded. To those who ask of what crime * Rym. Foed. x. 415. PARTITION OF THE LENNOX. 11 this young nobleman was convicted, no other reply can be given than what is afforded by a solitary expression of a single chronicler. In one manuscript of the Sco- tichronicon, the writer of which is supposed to have lived at the period, it is recorded that Walter Stewart was " a man of princely stature and lovely person, most eloquent and wise, most agreeable, and universally be- loved, and that having been convicted by an assize 'dero- horea^' was beheaded in front of the castle. Not only was his death deplored by those who knew him, but by those who had never seen him, for they were enamoured of his fame."* On the following day his brother Alexander, whom the same ancient chronicler declares to have been noways inferior to Walter in personal attractions, and that both were of gigantic stature, shared a like fate. Thesewere the heirs-male, of the marriage between Duke Murdoch and Isabella, upon whom, by the singular contract of that ill-fated alliance, the vast succession of the Levenax had been entailed, v/ith the additional provision of a territory, equal in extent, from the estates of Albany. Alexander Stewart did not suffer that day alone. His father, Duke Murdoch, and the aged Earl Duncan ascended a scaffold upon which the blood of Walter, the beautiful heir of Albany and Lennox, was scarcely dry. " They were executed," says one whose ge- nius could not fail to pause upon and picture the catas- trophe, " on the castle hill of Stirling, upon the little ar- tificial mound called Hurley Hacket. From this elevat- * Cupar MS. of the Scotichronicon. Under the circumstances, de rohorea can scarcely mean of robbery, in a common or vulgar ac- ceptation. It may have referred to tlie ambitious appropriation, or spoliation of Crown lands by the Albany family ; or more probably to the recent attack ujion Dunbarton, in which the King's uncle was killed. 12 HISTORY OF THE ed position, Duke Murdoch might cast his last look up- on the fertile and romantic territory of Menteith, which formed part of his family estates, and distinguish in the distance the stately Castle of Doune, which emulat- ed the magnificence of palaces, and had been his own vice-regal residence."* Plausible reasons have been assigned for James I. having so suddenly visited the house of Albany with utter ruin ; but why his vengeance fell with a like se- verity upon Earl Duncan, now in his eightieth year, is a problem not to be solved by the scanty records of the times. During the eventful and turbulent period which intervened between the dates of the family contract in 1391, and the second regency in 1420, so unobtrusive had been the conduct of this Earl, so little had he min- gled in the affairs of the distracted realm, or identified himself with the proceedings of its rulers, that his name can only be traced by means of private deeds, indicat- ing his possession of the earldom, and the exercise of his feudal right of property. With the single exception, that he is mentioned first of the distinguished cortege of nobles who met James I. at Durham on his return from captivity, I can find no public notice of this nobleman, until his apparently cruel and causeless execution. * Sir Walter Scott's History of Scotland. rAllTlTION OF THE LENNOX. 13 CHAPTER II. POSSESSION OF THE LENNOX BY THE DUCHESS OF ALBANY AS COUNTESS OF LENNOX. A curious feature in the mysterious fate of the old Earl of Lennox is, that, though condemned and execut- ed for some alleged high crime and misdemeanour, his fief incurred no forfeiture, even at a time when the Crown \^as eager to aggrandize itself at the expence of the nobles. This fact will be amply proved in the sequel. But it is involved in the whole history of the partition of the Lennox, which territory would not have been inherited by the heirs of Earl Duncan, had that noble- man incurred forfeiture, and his estates been annexed to the crown. The possession held by the Duchess Isabella after her father's death is of itself sufficient to destroy the theory of forfeiture ; and all the steps taken by the coparceners, after the demise of Isabella, indicate, it is true, some difficulty and confusion impeding the course of succession, but demonstrate, at the same time, that in no way had the Comitatus of Lennox reverted to the fountain of honour, but was still ruled by the family in- vestiture. To trace the state of the possession, from the death of Earl Duncan in 1425 to the partition and final settlement of his fief among his heirs-general about the close of that century, is necessary in order to clear up those apparently anomalous and contradictory circum- stances, which hitherto have left the question of the right to the honours entangled and unintelligible. 14 HISTORY OF THE And first, of the possession held by the Duchess after her father's execution. It is said, that when the exasperated monarch had wreaked his vengeance on Albany and Lennox, he sent to this unhappy lady (who was by marriage nearly re- lated to himself) the bleeding heads of those dearest to her, in order to try if the distraction of her grief would cause her to divulge secrets ; and that the Duchess en- dured the spectacle without allowing other words to pass her lips than these, " If they were guilty, the King has acted wisely and done justice." But this story, narrat- ed by Buchanan, is scarcely to be credited of James I., who, though hasty and passionate, possessed an intel- lect too refined to be capable of the act of a savage. Isabella experienced some rigorous treatment when the storm that destroyed her family first arose, but there can be no question that she was eventually permitted to as- sume and enjoy the honours and territory of the Len- nox. She is said to have been reserved and lofty in her de- meanour, possessing a strong mind, a calm and indo- mitable spirit ; and no lady of ancient or modern times ever stood more in need of such attributes to sustain her vmder sudden and violent calamities. Upon the 211st May 1424, her own husband, as Earl of Fife, seated his royal master in the chair of state to receive the unction and the crown. Her younger son, Alexander, received at the same time from that monarch the honour of knighthood, in company with the greatest nobles in Scotland. His elder brother Walter, the heir of Albany and Lennox, is not included in this list of knights, a fact in accordance with the chronology of the contem- porary chronicler, who dates his imprisonment so early PARTITION OF' THE LENNOX. 15 as the 13th of May 1424, a few days before the coro- nation,* and while his father and brother were apparent- ly in the highest favour at court. But in the com- mencement of the year 1425, the desolate Duchess had to mourn for her father, her husband, and her sons. There is a melancholy interest pervading the widow- hood of Isabella, Duchess of Albany and Countess of Lennox, which makes us regret that so little is known of her habits and occupations during the long years of her retirement, in her feudal castle" on the Island of Lochlomond, after her succession to the earldom. Though bearing, with punctilious ceremony, those high titles of Albany and Lennox — lately all powerful in the realm, but now scarcely to be whispered to the breezes of Loch- lomond — though possessing the broad and fair domains gemmed by that beautiful lake, she was widowed and childless in the silent halls of Inchmuryne, and haunted with the recollection that, by the hands of the common executioner, her race were extinguished, — thather young p-iants would not return at her call " To renew the wild pomp of the chase and the hall." * There is a tradition, which, though resting on no sufficient au- thority, may be true, and may also be explanatory of the early dis- grace of Walter Stewart. It is said that he greatly coveted a fal- con possessed by Duke Murdoch, his father, who was so fond of the bird that no entreaties of his son and heir would induce him to part with it. U])on one occasion, as the Duke was carrying his fa- vourite falcon, this youth, of an unruly and imperious disposition, forgetting his duty to his father and the governor of the realm, sud- denly tore the object of his desire from the wrist of the Regent, in those days a deadly insult, and twisting oft' its head, exclaimed that no one should possess it. According to the tradition, Duke Mur- doch's reply was fraught with the fate of Scotland, and his own. " Since I cannot govern you," he said, " I will send for one who can;" and this is supposed to connect with the negotiation which restored James to his country. 16 IIlSTOllY OF THE Whether Isabella was immediately released after the catastrophe of her family, or how long she was kept un- der restraint, I have not been able to ascertain. This is certain, however, that there was no legal bar to her com- pleting titles in feudal form to the earldom, though she failed to do so, for in the retours of all her representa- tives in the Lennox, to be afterwards more particularly noticed, the lands are declared to have been in non-entnj from the year 1 425, when Earl Duncan was beheaded, thereby indicating that the sovereign, during all that time, had no other right to theComitatus than what arose from that feudal incident. There is a curious and in- teresting item in the Great Chamberlain's accounts, in reference to the Duchess. In a roll of the reign of James II. between the dates I6th July 1455 and 7th October 1456, it is stated that a precept of seisin had issvied from Chancery to infeft the heir in certain lands of the earldom, that relief duty had in consequence been paid, but that the precept remained unexecuted, and the heir unentered, and that the old Countess of Lennox continued to reap the fruits, and not the King, (as in strict feudal form, under such circumstances, he might have done,) upon which state of matters, it is noted, the King himself was to be consulted.* From this it appears that Isabella outlived James I. for about twenty years. If she harboured any feelings of revenge against him, — and she had cause to do so, — * Great Chamberlain Roll, Register House, from 16th July 1455 to 7th October 1456. — " ^t de relevio terrarinn quarte partis de glo- rnte in qua hoeres nondurn inlravit licet litere sasine de eisdem de Cancellaria ema7iaverint, vi^. viii^. quarum terrarum Jirmas antiqua Comitissa de Lenax percipit, et de eisdem et non rex contimiatur." On the margin, " super quo consulendus est rex." The lands of Glorat were a part of the Lennox. PARTITION OF THE LENNOX. 17 they were amply gratified by the fate of that unfortunate monarch, whose murder in the year 1437, aggravated by every circumstance of undignified horror, called down upon the perpetrators tortures unparalleled in the most savage countries and times. A connection between this catastrophe and the fate of Albany and Lennox, may be faintly traced in the meager and dilapidated records of the period. The chief conspirator was that Sir Ro- bert Graham who was arrested along with Earl Dun- can of Lennox, and although he had been released, he seems ever afterwards to have harboured those feelings of revenge against the sovereign which came to so fear- ful a crisis in 1437. The contemporary account of the murder, horribly minute in its details, narrates that when the King cried for mercy, " Thow cruell tirant, (quod Grame to hym,) thow hadst nevyr mercy of lordes borne of thy blode, ne of none other gentilman that came yn thy dawnger, — therfor no mercy shalt thow have here."* But the Duchess Isabella was in no degree implicated in this dreadful transaction ; for although the utmost vengeance of the whole nation was poured out upon all connected with it, we find that lady in full and peaceful enjoyment of her fief, immediately afterwards, during the minority of James II. Probably there are charters of the Duchess, indicat- ing her possession of the Lennox before the death of James I., lurking in unexplored charter-chests. The oldest that I am aware of proves her to have been liv- ing at her principal messuage, on the island of Inchmu- ryne in Lochlomond, very early in the succeeding mi- nority. The following grants are all dated from that place. * Printed in tlie Appendix to Pinkerton's History of Scotland. B 18 HISTORV OF THE About the beginning of the year 1440, the Duchess granted a charter to one Donald Patrick of a tenement of houses and yard adjoining, situated on the north side of the church-yard of Drymen, with a croft of land, &c. ; the said Donald and his successors being obliged to furnish stable room for the Duchess and her succes- sors' horses so oft as they came to Drymen, and to fur- nish lodging and fire for poor people, the same as or- dained by former Earls of Lennox. * In 1444, " Isa- bella Diichissa Albanie,ac Comitissa de Levenax,''' con- firms, with the air of a feudal princess, a charter of the lands of Ballegrochyr to Donald, the natural son of her father, as a vassal of her fief, f In 1449 a precept of seisin issues from " Isabel Duches of Albany and Coun- tess of the Levenax, till Jon Lyndsay, mare of the Le- venax, greting," to infeft Thomas Spreule in the lands of Dalchorne and Dalmure ; and concluding, " giffe him sesing," &c. " in our name, haldand thir letters for your warande; witnes myself under my signet at Inchmoryn, the 19th day of February 1449." t I" 1450 she found- ed the collegiate church of Dunbarton, and gifted it with various lands of the earldom. ^ But the most interest- ing of her charters extant is one, in Latin, mortifying lands in the parish of Kilmaronock to the convent of the Blackfriars, and of which the following is the substance: " To all who shall see or hear this charter, Isabella Duchess of Albany and Countess of Lennox, greeting, &c. Know us, with the consent and assent of our deav' * Case for Woodhead, p. 51, and authorities there quoted. This charter is witnessed, among others, by Andrew Stewart of Albany, afterwards Lord Avandale, the natural grandson ©f the Duchess. + Ditto. \ Original, penes Smollet of Bnnhill. § Case for Woodhead. TARTITION OF THE LENNOX. 19 est sistei'-germaii, Margaret, spouse of the late Lord of Riisky, to have given, and for the sake of charity to have granted, and by this our present charter to have confirmed perpetually, to the honour and praise of God Almighty, and the glory of his Mother the blessed Mary, everlasting Virgin, of the holy archangel Michael, of Saint Dominic and all the Saints, — to our dear brothers, John de Govane, Prior of the Predicant Friars of Glas- gow, and his successors, for the safety of our soul, and that of our dearest spouse of blessed memory. Sir Mur- doch, Lord Duke of Albany, and also of the soul of the deceased Sir Duncan Earl of Lennox, our progenitor, and of the souls of Walter, James, and Alexander, our sons deceased ; and of the souls of all who have died in the faith, &c. our lands of Kilmaronock within our Earldom of Lennox, to be held of us and our heirs for ever in pure and perpetual charity, with all the perti- nents, freedoms, and liberties belonging to the lands. Dated at our manor of Inchmyrryne, 18th May 1451," and witnessed by Murdoch, Arthur, and Robert Stew- arts of Albany. The seal of the Duchess is append- ed with the seal " of our said dearest sister." * This charter of mortification indicates that James Stewart, the only son of the Duchess who escaped the scaffold, and who fled to Ireland from the pursuit of James I., was now dead without legitimate issue. For the consent of her sister Margaret is taken to the deed, obviously because this lady was next heir to all the ho- nours, and impartible rights of the fief, in virtue of the remainder, ill Isabella's contractof marriage, to the heirs- general of Earl Duncan. That Isabella had no heir in or through her son James is further demonstrated by * Mr Denniston's Book of Transcripts MSS. 20 HISTORY OF THE the fact, that the Lennox was subsequently transmitted through this very Margaret, and her younger sister Elizabeth, as coheiresses. But, the reader may ask, who were Murdoch, Arthur, and Robert Stewarts, witnessing this deed, and therein designed of Albany? They were three of seven illegi- timate sons of James Stewart of Albany, whose mother is said to have been a lady of the family of Macdonald in Ireland, with whom the exiled nobleman had there formed a connection. These youths were probably adopt- ed by the Duchess, after the death of their father, to bear her company in the melancholy halls of Inchmuryne. They are all well known to history, and some of them reached the highest distinctions in the state, as I shall afterwards have occasion to notice. The Duchess was alive in 1456, as appears from the chamberlain accounts already quoted. But in the same rolls, and in an account ending in 1460, an entry is found bearing that the chamberlain does not debit him- self with the revenue derived from the earldom of Len- nox, because the King had assigned the same for build- ing the Castle of Stirling. Isabella died, in all proba- bility, on or shortly before the year 1460, when the King seems to have taken advantage of his feudal casualty of non-entry ; and in this year we shall find it was that John Lord Dernely first attempted to obtain his service as one of the heirs-general of Earl Duncan.* * In the account running between 9th July 1459, and 25th June 1460, the chamberlain " ?ioti onerat se dejirmis Comilatns de Leve- iiax, eo quod Dominiis Rex assignavit dktas Jirmas ad fahrkandum caslrum de Strivelyne." PARTITION OF THE LENNOX. 21 CHAPTER III. OF THE HEIRS OF THE INVESTITURE AFTER THE DEMISE OF ISABELLA OF LENNOX REFUTATION OF THE HISTORIANS WHO HAVE RECORDED THAT THE EARLDOM OF LENNOX WAS FORFEITED IN 1425. Margaret of Lennox, the second of Earl Duncan's three daughters, was married, as the charter of morti- fication by the Duchess states, to Sir Robert Menteith of Rusky ; an alliance arranged at the period of Isabel- la's marriage to the son of the Earl of Fife and Men- teith. Sir Robert Menteith was the son of Sir Alexan- der, who was the son of Sir Walter, who was the son of " Sir John de Menteith," head of the family of Rusky, and generally reputed to have been son of Wal- ter Earl of Menteith, who was third son of Walter, High Steward of Scotland.* From the charter of mortification it also appears that Lady Margaret's hus- band. Sir Robert, was dead before the year 1451. Sir Murdoch Menteith, the eldest son of that marriage, (who is said to have been killed by his own servant near Dunblane,!) married Christian, daughter of Sir David Murray of Tullibardine, ancestor of the Dukes of Athol. They had an only son, Patrick Menteith, whose early demise, very soon' after his father's, and before the year * See Addenda for reply to Mr Riddell's observations upon llie descent of IMenteith of Husky. t Macfarlane's MS-j Advocates' Library. 22 HlSTOllY OF THE 1455, left the great succession of his house, which com- bined one-half of the Coinitatus of Lennox, with goodly baronies in the Menteith, to be shared between his two sisters, Eijzabeth and Agnes.* These young ladies were minors when they succeeded to their brother Pa- trick, and their persons and estates had consequently fallen, by feudal incident then in full force, under the guardianship of their sovereign James 11. By a royal deed, dated at Edinburgh 26th March 1455, and still preserved among the Merchiston papers, that monarch bestowed the maritagiiim of Elizabeth Menteith upon John Napier of Merchiston, who married the young lady about that period. f The other coheiress, Agnes Menteith,"married, about the year 1460, i John Haldane of Gleneagles, the heir of a very ancient baronial family. Thus before the death of the Duchess Isabella, her sister Margaret had representatives in these young coheiresses of Lennox and Rusky, her grand-daughters. Elizabeth of Lennox, the youngest sister of the Duchess, was married, about the period of Isabella's contract, to Sir John Stewart, son and heir of Sir Alex- ander Stewart of Dernely, from whom he inherited great estates in different parts of Scotland. Sir Alexander died about the year 140S, and his son Sir John went to France in the year 1420, to the assistance of Charles * Mercliiston papers. + This was not John of the Logarithms, time-honoured Merchis- ton, but his lineal male ancestor, in the fifth generation. John of Rusky was the eldest son of Sir Alexander Napier, who at the date of this gift of marriage was comptroller of the housejiold to James II. and was afterwards master of household to James Il'l See Memoirs of Merchiston. X j\Iemorial for Gleneagles. PARTITIOX OF THE LENNOX. 23 VII., then Dauphin. In those foreign wars he became the most distinguished warrior of his age, acquired tlie splendid titles of Seigneur d'Aubigny, and Comte d'Ev- reux, and was killed at the siege of Orleans, where he brought defeat upon his party by the excess of his valour. Sir Alan Stewart succeeded him, being the eldest son of the marriage with Elizabeth of Lennox. In the year 1439, Sir Alan was treacherously slain by Sir Thomas Boyd of Kilmarnock, and was succeeded by his eldest son, the celebrated Sir John Stewart created Lord Der- iiely, and who afterwards usurped the earldom of Len- nox. John Lord Dernely was married in 1438, the year before his father s death, to Margaret, daughter of Sir Alexander Montgomery of Ardrossan, and he was created Lord Dernely in 1460 or 1 461.* Consequently, long before the death of the Duchess Isabella, her young- est sister Elizabeth had a representative in Dernely, her grandson, who was a married man in 1438. Thus there were various parties entitled to the cha- racter of heirs-general of Earl Duncan, when the fief opened to that remainder by the death of Isabella. In that character her two sisters were coheiresses of Earl Duncan, and had they survived Isabella, whidi they appear not to have done, would have divided the fief. The share of Margaret was taken up by her coheiresses of Rusky, who divided that share. Elizabeth was re- presented without division by John Lord Dernely. But while the territory was thus split into three por- tions, of which Dernely's was equal to the other two, the honours of the Comitatus, — the right to the chief messuages, &c. and the title of Earl, — were, by the ac- knowledged law of Scotland, impartible rights, and fell to the eldest coheiress of Lennox, and her eldest repre- * See Andrew Stewart's History of the Stewarts. 24 HISTORY OF THE i sentative. So, according to the order in which I have arranged the heirs-general of Earl Duncan, the accuracy of which appears to be verified in the sequel, Elizabeth Menteithof Rusky, spouse of Napier of Merchiston, upon the demise of her grand-aunt the Duchess Isabella, had right to the honours of Lennox, and a fourth of the territory. And the remaining heirs-general were entit- led to enter upon their respective shares. But it is well known that, de factOy John Lord Der- nely became Earl of Lennox, and transmitted that title through a lineal succession of distinguished earls to James VI. of Scotland. The period, however, when he first assumed the dignity, is not so generally known, and genealogical historians of the house of Stewart have also been quite at a loss to say whether he did so^s his inheritance, or in consequence of a new creation in his favour, either by James III. or IV. The historians of Scotland have only added to the doubts and confusion regarding the history of the Lennox, by asserting that it was forfeited in the person of Earl Duncan, — a most extraordinary assertion, considering the many facts and records that disprove it. Dr Robertson tells us, that Earl Duncan, beheaded by James I., was forfeited, and his possessions annexed to the Crown. Mr Tytler, in his excellent History of Scotland, still in course of publica- tion, has adopted the error of Dr Robertson. " These executions," says he, " were followed by the forfeiture to the croicn of the immense estates belonging to the family of Albany and to the Earl of Lennox ; a sea- sonable supply of revenue," &c.* No authority is quot- ed by our historians in support of their assertion, and at a subsequent period they suddenly introduce an Earl * Ty tier's History of Scotland, Vol. iii. \^. 227. PARTITION OF THE LENNOX. 25 of Lennox upon the restless stage of Scotland's commo- tions, without any explanation of the revival of the ho- nours, and at periods, too, when in point of fact, as the records of Parliamentinstruct, no one had resumed them, or sat in Parliament as Earl of Lennox. But how came the Lennox to pass by inheritanccj and be taken hi/ ser- vices to this very Earl Duncan, if his estates were for- feited, 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 earl- doms of Fife and Menteith, which belonged to his cou- sin 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 heirs- male 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 else- where enumerated among Crown lands. But there is no re- cord extant in which the Levenax is mentioned as belong- ing to the Crown in property ; nor of any grant ornew erec- tion of the earldom aftertheexecutionofEarlDuncan. Al- though a forfeiture is not to be assumed, yet it may be ad- mitted, that the mere fact of the process of forfeiture not be- ing extant would scarcely afford a conclusive argument, considering the dilai)idated state of the Scottish records of that period; but that nonotice or indication, whatever, of this earldom having been annexed to the Crown, 26 HISTORY OF THE 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 ac- counted for by the fact, that Earl Duncan did not suf- fer forfeiture. But there is positive evidence of the most conclu- sive 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 wi- dowed 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 Inchmu- ryne in Lochlomond, being the principal messuage — granted many charters of lands belonging to the Comi- tatus, 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 at- tended to)proves the royal interest inthelandsof theLen- nox to have been simply that of over-lord — expressly re- cognizes the Countess 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 de- monstrate that this state of matters was not a mere per- sonal indulgence to the Duchess. At her death the Co- mitatus, though lying long in non-entry for causes that PAIITITION OF THE LENNOX. 27 shall be distinctly traced, came eventually to be taken, not by the Crown, but by the representatives of Earl Dun- can's second and third daughters. These representa- tives all made up their titles accordingly, and took as heirs-general of Earl Duncan, who, as those titles ex- pressly bear, died at the faith and peace of the King, — ■ expressions which must be held to mean that that noble- man did not perish for treason, and was not forfeited.^ These titles were confirmed by successive sovereigns from generation to generation-! In virtue of them, the romantic country, with which our historians have enriched the crowns of the early Jameses, continued to descend by hiheritunce through the heirs-general of the very nobleman against whom forfeiture is alleged. * u Hec inqtiisitio facia ajnid Dunbertane 4: November 1473, ^-c. qriod quondam Diincanus Comes de Levenax, proavus Elizabeth de Menleth, lairicis preseniium, obiit ultimo vesiitus et sasiliis ut de fe- odo ad pacem et /idem Domini nostri Regis, de omnibus et singulis terris et annuis reditibus iotius Comitatus et Dominii de Levenax." Et'tour of Elizabeth IMenteith 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 argu- ment against the idea of forfeiture. The time of non-entry specifi- ed in all these retours agrees precisely with the period of Earl Dun- can's execution in 1425. t From many instances I select one, which amounts to a declara- tion 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 con- firmed in all her lands in the Lennox, which are declared to have come to her by inheritance, " fuerunt Elizabeth JSlenteilh de Ruslaj, malris dicti Archibatdi, heredilarie, et per brevia capelle nosfre par- iitionis et divisionis ipsi Elizabeth tanquam uni hercdum dicti Comi- tatus de Levenax, Sec." — Merchiston Papers. 28 HISTORY OF THE CHAPTER IV. THAT EARL DUNCAN HAD NO HEIR-MAl.E OF HIS OWN BODY. — REri,Y TO MR Hamilton's case for woodhead. The royal charter to Earl Duncan containing the limi- tations 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 im- portant 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 bro- ther 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 having 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 pub- lic 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 redar- gue it, imico 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. PARTITION OF THE I-ENNOX. 29 Notwithstanding her father Earl Duncan left a legiti- mate 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 oj" Len- nox 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 cer- tain fact, the existence of a young Earl who is absolute- ly unknown to the records of Scotland, and then allud- ing, less confidently however, to authentic records di- rectly 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 re- presented 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 oi Ballyncor ranch , &c. in the Lennox, from Earl Duncan to his son Donald of the Levenax, commencing in the terms quoted below.-}- Upon this the claimant is made to plead ; " Earl Duncan re- peatedly declares Donald of the Levenax * his law- FFWEI>I. SON ;' and the grant made to him is with the * Caledonia, Vol. iii. Dunbartonshire. t " Be it kende till all men be thir present lettres^ us Duncane Erie of the Levenax, with the consent and the assent of Walter Stew- art, till haff giffine and till liafF grantit, and be this present writ, gifes and grantis till my well belufit sone laffwcl Donald of the Le- venax, all and singlar my landis of Ballyncorrauch," &c. dated at Strablayn,.22d July 1421. See Case for Woodhead, pp. 12, LS, where the whole charter is quoted. 30 HISTORY OF THE consent of Walter Stewart, the eldest son of Isabella and the Duke of Albany," &c.* Without adverting" at present to the probable import of the phrase laffwell, as used in this charter, we may- notice the circumstances in that deed directly opposed to the interpretation of the claimant. The hypothesis for Woodhead is, that Earl Duncan here grants a char- ter to his eldest son and heir as his vassal ; and that to this grant the Earl obtains the consent oiJiis daughter's son and heir, Walter Stewart, the nephew of the alleged heir of the Lennox. A slight acquaintance with the anti- quities of the law of Scotland will suggest a very differ- ent theory from these facts. It was the constant practice of our forefathers to take the consent of the next heir of the granter to all deeds affecting the fief; a practice which it will be necessary to illustrate in a subsequent chapter. Walter Stewart, as the eldest son of Isabella, was unquestionably heir of the Lennox, failing heirs- male of the body of his grandfather. But if Donald was heir-male of the body of Earl Duncan, how came Walter Stewart, the son of his sister, to adhibit consent and assent in a charter to him ? No one possessing the slightest knowledge of the history of the law of Scot- land can read the charter in question, without at once perceiving that it is a grant, not to the heir of the earl- dom, but to a third party, whose interest in the matter stands in contradistinction to that of the heir. The red- dendo of the charter is conceived in these terms : " Gif- fand thairfor zerly the forsaid Donald my laffwell son and his ayris, and his assignees, till me, mine ayris, a peny of silwir ;" and the clause of warrandice runs thus ; " and we forsutht the said Duncane and onr ayris, the forsaid land with thair pertinents, till the forsaid Do- t Case for Woodhead, pp. 13, .53. PAllTITIOX OF THE LENNOX. 31 nalde and till his aijri's, and till his assignees, agayne all erdely man and woman, we sal warand," &c. Here seems to be an unequivocal declaration by Earl Dun- can himself, that Donald was not his heir, and that Donald's heirs were not Earl Duncan's heirs, — for it is inconceivable that all these expressions are in refe- rence to the only son of theEarl himself, — thedirect heir- male of the fief on the verge of his succession, the Earl being at this time about eighty years of age. It was common enough for, a feudal lord to invest his son and heir v/ith the fee of the estate during his own life, for which it was not necessary to ask the consent of any one except the sovereign. But a subordinate grant of vas- salage to the heir of the firf, and his heirs, as distinguish- ed from the heirs of the fief, taking at the same time the consent of a third party, who, ex hypothese, was not the heir of the fief, would, it is apprehended, be unique in the history of feudal and family settlements. This internal evidence of the charter itself leads ine- vitably to the conclusion, that the phrase son laffwell, occurring in that deed, must be susceptible of some other interpretation than son and heir. The proper interpre- tation we shall readily discover, upon considering the se- cond charter jjroduced in support of the claim for Wood- head. 2. Mr Hamilton in his Case thus introduces it : " Donald of the Levenax, in consequence of the estate thus granted to him, styled of Hallcorrach, very soon afterwards acquired the lands of Hallegrodujr, in the vicinity of the former. These and other lands within the earldom of Levenax were held by Sir William Gra- ham of Kyncardyne (ancestor of the family of Montrose) of Earl Duncan as his feudal superior ; and upon the 20th August 1423, a grant of that property was made 32 HISTORY OF THE by Sir William to Donald, in which he is explicitly styl- ed ^//?/^ legifinius Duncani Comitis de 'LevenaxT The learned author of the Case then proceeds to state, that after Earl Duncan's death in 1425, his daughter Isa- bella becomes vested in the earldom, and confirms to her brother Donald this charter granted by her missal. Sir William Graham. " The charter by Isabella," says the Case, " contains, as usual, the previous deed, which is expressly confirmed ; and in the confirmation she ex- plicitly acknowledges and declares Donald de Levenax to be her father Earl Duncan's lawful son.""* In this charter of Ballegrochyr the heir of the Le- venax is placed in a yet more peculiar and anomalous position than by the terms of the former charter of Ball- corrach. Sir William Graham, it must be observed, is a vassal of the earldom. The charter which he grants to Donald is to be held of him. Sir William, in the Len- nox. Thus the heir of the Lennox becomes the vassal of a vassal in the Lennox. The Earl of Lennox dies, and then his heir Donald, de jure Earl, obtains con- firmation of his subordinate charter from his own sis- ter, in order that he, the Earl, may still remain Sir William Graham's vassal, ^. e. the vassal of his oivn vassal in the Lennox. This most extraordinary state of matters calls for a close inspection of the terms of the charter, in which, according to the Case for Wood- head, Donald is explicitly styled filius legitimus Dun- cani Comitis de Levenax. Now the charter by Isabella to her brother is quoted in the Case, and from that it appears that the word legitimus neither occurs in Sir William Graham's grant, nor in Isabella's confirmation of it. The words are " Omnibus hanc cartam visuris vel audituris Isabella Ducissa Alhanicc ac Comitissa de * Case for Woodliead, p. 1.3. PARTITION OF THE LENNOX. 33 Le venax Salutem in Domino Sem^yeternam, Noveritis nos cartam Domini WiUielmi tie Graham militis Domini de Kyncardyne J'actam Donaldo de Levenax filio legitti- me Domini Duncani quondam Comitis de Levenax ,' &ic, and the words of the grant by Sir William Graham are in like manner, " Donaldo de Levenax filio legittime Domini mei ac potentis Domini Duncani Comitis de Levenax^' &c. Here, then, the whole mystery (otherwise utterly in- extricable) is unravelled. The term used is not legitti' mus, but legittime, and that must have been intended to stand not for legitimate, but legitimated.^ This Donald of the Levenax was obviously a natural son who had ob- tained letters of legitimation, a process by which his heirs-general were recognized, (and not merely heirs of his own body to which an illegitimate person was by law restricted,) but which did not enable him to succeed to the honours of his father. His sister Isabella, conse- quently, as the above charter expressly bears, had be- come Countess of Lennox in her own right, upon the de- mise of her father, and in that capacity confirmed the subordinate grant of Ballegrochyr to her vassal brother. The term laffwell, occurring in the first charter ex- amined, can bear no other interpretation than the view * Mr Riddellj in his "Statement in reference to the late pretensions of the family of Lennox of Woodhead," printed in the Appendix to his Reply to Hamilton of JBardowie, has these remarks upon the point in the text. " In one of the Woodhead grants ' legitime' and not ' le- gitimus' (the adjective) is employed, which may possibly be the French word ' legitime/ borrowed perhaps like others from our Galilean neighbours, however awkwardly here embodied — and actually expres- sive, as in its noted application to the spurious offspring of Louis XIV., of the previous signification;" namely, legitimaled. Royal letters of legitimation run thus, " SciaLis quod, &c. legiti- mamus, cl tenure prcseniuim legitimauius, pro nobis el mcccssorilms HostriSf" &c. C 34 HISTORY OF THE just taken of legitime. That charter contains a paren- tal provision of a landed estate to Donald, and his heirs and assignees. The qualification of lawful^ applied to Earl Duncan's son and heir in the fief, and superseding the latter usual and unequivocal expression, would have been remarkable. Applied to a son, however, who was not heir of the earldom, and who, in ordinary circum- stances, was not recognized as having heirs except of his body, the qualifying term laffwell or legitime indicated his legalized state, and sanctioned the reference to his heii's and assignees. Was Donald ever called heir of the Lennox, or did Earl Duncan ever take his consent to grants of the earl- dom ? Never. On the contrary, during Earl Duncan's life his daughter Isabella is termed heiress of the earl- dom of Lennox, and it is her consent, and that of her son and heir Walter Stewart, which Earl Duncan obtains to his charters. Was Donald ever called Earl of Lennox, or did he ever pretend to be so, or to act as feudal lord of the Lennox ? Never. On the contrary, his sister Isabella assumed the honours, and possessed the fief for thirty years ; and Donald himself claimed confirmation of his vassalage in the Lennox y/•o??^ her. After her death the Comitatus was divided among heirs-female of Earl Duncan, and so descended to modern times, though the line of Donald of Ballcorrach never failed. Of this distinction between the status of Isabella * " The phrase law Jul son, (says Mr Riddell,) as denoting legiti- macy at common law, did nottechnically prevail with us until the com- mencement of the sixteenth century, while it is observable, the term lawful, even at the later period, was descriptive of that partial legi- timacy which our Kings were in use to confer upon issue undoubt- edly spurious." — Reply to Bardowie, Append, pp. 3, 4. PARTITION OF THE LENNOX. 35 and her brother, there is a remarkable ilhistration af- forded by a transaction regarding, I presume, the same estate of which tlie dominium utile was granted by Sir William Graham to Donald of the Levenax. Upon the Sothof August 14^3, just two years subsequent to the date of the charter in which Donald is called " son laffwell," and oviiy five days prior to the charter of Ballegrochyr from Sir William Graham " Donaldo de Levenax Jilio legittime" — Isabella ratifies a charter by Earl Duncan* to this same Sir William, including, among other lands of the Lennox, those of Bargrochane, and she is there- in styled " Isahellam Stewart, Ducissam Albanie, Co- mitissam de Fyfe et de MentetJi, ac heredem Comitatus de LenaxT So at the time when Sir William Gra- ham is transacting with Donald as his vassal, and as the ''JiUus legittime'' of Earl Duncan, he is also trans- acting with the Earl and his daughter Isabella as his feudal superiors in the very lands he grants to Donald. This distinctly proves that the phrase legittime applied to Donald in the charter from Sir William, could not be meant to indicate that he was hei?' of tJie earldom^ * " ApudEdynburghe, August 28, 1430. — Rex cojifirmavit cartani conjirmacionis et rati/icatiouis tallie per Isobellam Stewart Ducissam Albanie, Coinitissam de FijJ et de JMenleth, ac heredem Comitatus de Jjenax,Jlacta?n super quondam curiam tallialam per quondam Dun- canu)n comitem de Lenax patrem ejus, WiUelmo de Grahame, militi, concessain," &c. dated at Falkland, August 25, 1423. Abbrevatio Regislri Magni Sigilli, Domini Jacobi Primi. The above I took from a printed abbreviate in the Register- House. Mr Riddell in his statement quotes the same charter, and the previous one of Earl Duncan therein confirmed, from Reg. Mag. Sig. lib. iii. VA. Tlie charter by Earl Duncan to Sir William Gra- ham is dated 10th August 1423, and bears to be " cum consensu Jilie sue doinine Isabelle Duchisse Albanie, ac cum consensu et bona voluntate nepotis sni Valteri Senescalli et^filii et lieredis prefati Du- cts Albanie," — but not a word of Donald, " my son lafFwel." 36 HISTORY OF THE since at the very same time, the same parties acknow- ledge Isabella to be heiress of the earldom. Armorial bearings of the period furnish valuable ad- minicles of evidence in all genealogical questions, and the seal of Donald of the Levenax has accordingly been pressed into the argument for Woodhead, and is engrav- ed for the case drawn up by Mr Hamilton. The learn- ed author was anxious to establish that Donald carried the pure Lennox shield, which, as he conceived, bore a saltier engrailed, cantoned with four roses. He was a little disconcerted, however, in this part of his argument by the fact, that the original seal of Donald, appended to a deed dated in the year 1441, (sixteen years after the death of Earl Duncan,) carries a ^j/^m saltier, can- toned with the roses, but having the awkward addition of a mullet or star placed upon the centre. The case for Woodhead thus treats this delicate point: " The only difference (between the seal of the earldom and Donald's) is, that on the seal of Donald in 1441, there appears to be a mullet at the crossing of the saltier. But this is no mark of illegitimacy,* nor did any distinction of that kind ever appear upon the arms of this family or of any of its branches. The correct arms, as described by Mac- * I\lr Riddell, in allusion to this seal, observes, " Neither is his armorial bearing important, for he only used that of Lennox, with a common mark of cadency, a difference which was imparted to spu- rious children." — Statement, p. 3. But the seal is not unimportant in the question of Donald's legitimacy. Unquestionably that person was Earl Duncan's son. Had he been son and heir, a label of three points would have marked that condition, instead of a star in the centre. But the date of this seal happens to be sixteen years after the death of Earl Duncan, therefore, unless it also be said that Donald was a younger son, the star can only be accounted for as a mark of illegi- timacy. 4 PARTITION OF THE LENNOX. 37 kenzie, were longpreserved, though now lost, in the House of Woodhead, carved upon a window shutter, bearing the date 1426, and hence supposed to have originally be- longed to the mansion of Ballcorrach. These are also free of any degrading distinction." * In support of this slender argument the following ar- morial bearings are engraved with the genealogical tree which accompanies the case. Nothing can be more unsuccessful than this heraldic plea. Donald's own seal, attached to an original deed, is here attempted to be redargued by the carving upon a shutter which does not now exist, and the only authority for which is " a drawing of the House of Woodhead by the master of Elphinstone in 1730." But the shape of the shield, and above all the Arabic nume' rals indicate that this armorial carving must have been more modern than the middle of the fifteenth century, and can never redargue the original looking seal, with which it is so rashly contrasted in the Case for Wood- head. The fact is, that Mr Hamilton had followed Sir George Mackenzie, and those heraldic writers who have erroneously recorded that the old Earls of Len- nox carried the saltier engrailed. Now, I am not aware of a single instance to that effect. Napier of Merchiston, indeed, has carried the saltier engrailed * Case for Woodhead, p. 46. 38 HISTORY OF THE since at least the commencement of the fifteenth cen- tury, which fact agrees with the tradition of that fa- mily that they are cadets of Lennox, for engrailing was unquestionably used as a mark of cadency.* Mr Riddell, however, holds a different opinion with re- spect to the arms of the Levenax. That learned gentle- man remarks, that the seal of Napier of Merchiston, in the fifteenth century, " exhibits nothing but the Lennox arms, the cross being engrailed — which last fact is imma- terial, for it was so occasionally carried by the principal representatives of Lennox."t If Mr Riddell here refers to the old Earls, his assertion requires proof, for I have traced those seals through centuries, and from the old race even through manygenerations of the Dernely race * '' Engrailed is said of crooked lines which have their points outward, as those which form the saltier engrailed in the arms of Lennox." — Nishet's Essay on the ancient and modern use of Armories. Yet in the same work he expressly states, that engrailing was a mode of differencing. " When lines of partition are carried right by principal families, their cadets make them crooked by putting them under accidental forms, such as engrailed, waved, &c. for a distinc- tion." P. 115. + This bare assertion, contained in Mr Riddell's observations upon the Memoirs of Merchiston, is made in the face of, but with- out ?ioiicing, an engraved plate of the Lenn ix seals, which refutes the theory of the old Earls of Lennox having carried the saltier en- grailed. The plate contains seals both of the ancient earldom, and of the Dernely race, and the first appearance of the engrailed saltier is on the seal of Robert Stewart, Bishop of Caithness, (second son of John third Earl of Lennox of the Dernely race,) who was created Earl of Lennox by James VI., I6th June 1578, after the earldom had merged in that monarch. It would have been " highly obliging" if Mr Riddell had supported his assertion by a single instance of the Lennox saltier engrailed as carried either by the old Earls, or even on the snrloul of the Dernely race (which is of less consequence to the argument) previous to James VI. — Compare Mr Riddell's Tracts, p. 125, with Memoirs of Merchislon,-p.ll, andexplanation oftheplates. PARTITION OF THE LENNOX. 39 of Lennox, and never could discover a single instance in support of this theory. 1. The seal and signet of Malcolm fifth Earl of Len- nox are preserved in the chapter-house of Westminster, and in both of these the saltier is plain. 2. The seal of Donald sixth Earl of Lennox, is also in the chapter-house, and that too has the saltier plain. 3. There is a minute description of the seal of Wal- ter seventh Earl of Lennox, contained in a notarial transcript dated in 1440, and the saltier is not describ- ed as engrailed. 4. There can be little doubt that Duncan, eighth and last Earl of the ancient race, carried the plain saltier, for the seal of John Lord Dernely, who served heir to Earl Duncan, is preserved in the Merchiston charter chest, and in his Lennox surtout, adopted in virtue of that service, the saltier is plain. Through the Dernely race I have traced the seals of all the generations (in the Merchiston charter chest and elsewhere) in unbroken series, till the earldom merged in James VI., without detecting a single instance of the saltier engrailed. In Henry the Seventh's chapel at Westminster is the tomb of the Stewarts of Lennox, surrounded by their armorial bearings, which, probably, would there be executed with scientific accuracy. Nis- bet quotes the tomb in support of his description of the Lennox arms, and describes the saltiers as engrailed. Francis Sandford, who was Lancaster herald in the reign of Charles II., has given engravings of that tomb, with all its emblazoning, in his genealogical history of the Kings of England. In the engravings the saltiers are engrailed, but, if I mistake not, upon the tomb itself they are all plain* * In the course of a correspondence with the late William Lord 40 HISTOUY OF THE These proofs, while they refute the dictum of the au- thor of the Tracts, destroy the argument attempted to be reared upon the sketch of arms engraved in the Case for Woodhead. Why Donald of Ballcorrach placed a star upon the unengrailed saltier of the Lennox, in his seal, has already been made very manifest ; but the reason seems to be placed beyond the reach of doubt by the following dis- covery made by Mr Riddell, which may be termed the co?ip de grace to the Case for Woodhead. From the Brisbane charter-chest, that indefatigable antiquary brought to light an original charter by Earl Duncan, dated 12fch August 1423, and relating to lands adjoining Donald's estate, which charter is witnessed by " Mal- colmo, Thoma, et Do7ialdo, filiis nostris naturalihus^''* Napier upon this point, his Lordship, in a letter to the author, dated London, 25th August 1832, says, " I read to Sir William Woods the extract from your letter about the plain and engrailed saltiers, and he says your remark as to cadency is correct. He referred to Sand- ford's work, where the representation of Dernely-Lennox on the tomb is engrailed; but I went immediately to Henry Seventh's Chapel, and found the said arms in three instances ; that is, on ^ach side and at the foot, in the centre and in connection with the royal and other arms, with the saltiers all plain. Therefore you are right, and Sandford and the genealogical writers are wrong." * Brought forward in the statement appended to the Reply to Bardowie. PARTITION OF THE LENNOX. 41 CHAPTER V. CAUSES WHICH OBSTRUCTED THE IMMEDIATE ENTRY OF THE HEIRS-GENERAL OF EARL DUNCAN TO THEIR SUCCESSION IN THE LENNOX AFTER THE DEMISE OF THE DUCHESS LIFE- RENT GRANT OF THE LENNOX TO THE CHANCELLOR AVAN- DALE TITLES MADE UP BY THE HEIRS-GENERAL. But why, upon the demise of Isabella, were the honours SO long in abeyance, without any pretext on the part of the Crown that an heir-female could not succeed to an earldom, or that this earldom had been forfeited ? and why was the Lennox neither immediately entered by all the parceners, as heirs-general of Earl Duncan, nor yet annexed, j^erfas aut ncfas, to the Crown ? The following historical considerations will, it is hop- ed, afford a solution of these hitherto perplexing ques- tions : When the old Countess of Lennox died, in or shortly before the year 1460, the right to her fief became divid- ed, and under circumstances peculiarly disadvantageous to the legal assumption of the dignity. Scotland, it is true, had by this time " long understood and acknow- ledged the rights of primogeniture and representation in succession, inventions so necessary for preserving or- der in the line of princes, and for obviating the evils of civil discord and of visurpation."* Yet there never was a period when justice was more feeble, or when the laws, * Erskine. 42 HISTOEY OF THE especially of succession, were more likely to be grossly and violently infringed, than when the succession to the earldom of Lennox opened to these coheiresses. The year 1460 was that in which James II. was killed at the siege of Roxburgh. His successor was a child, whose natural guardian was a woman ; and it is well known that the whole country became as much as ever a prey to lawless strugglesfor power, depending for success either upon the actual custody of the King's person, or upon vast territorial influence. This was not the most favourable opportunity for a young lady to assert right to an earldom, or to claim possession of the caput ha- 7'onicE of one of the most desirable fiefs in Scotland, when at the same time she was only entitled to one quarter of the lands to sustain the dignity. This earldom, moreover, stood in a peculiar situation. Though certainly not forfeited, it had sustained a severe shock in the last reign, and, considering the state of the times, must have been in some jeopardy of annex- ation to the crown. At the very period, a notable in- stance occurred which proves how easy it then was for oppression to wear the mask of justice, and for interest- ed power solemnly to redargue the law of the land. This was the decision obtained by the influence of the Crown in the case of the Earl of Mar in 1457. " The ministers of James Second," says Lord Hailes, " took possession of the earldom of Mar as devolved to the crown. Robert Lord Erskine, the son of Thomas Lord Erskine and Janet Keith, attempted to vindicate his just rights to the earldom. For this purpose he obtain- ed himself served nearest lawful heir to Isabella Count- ess of Mar. The evidence of his propinquity was clear, and in the present age is admitted to be indisputable. In consequence of this, Robert Lord Erskine assumed PARTITION OF THE LENNOX. 43 the title of Earl of Mar, and granted various charters to the vassals of the earldom. Nevertheless, he attain- ed not to the peaceable possession of the earldom. The ministers of James II. had procured an Act of Parlia- ment, that no lands nor possessions pertaining to the King ' be given or granted till onie man without the ad- vice and consent of the three estates of the realm, unto the time of his age of twenty-one years.' This served as a pretext for holding possession of the earldom of Mar during the minority of the Sovereign. During the life of Robert Lord Erskine various applications were made to Parliament and to the privy-council for restitution of the earldom. Terms of accommodation were pro- posed, and an agreement for a temporary possession was made. Nothing, however, was finally adjusted when Robert Lord Erskine died. Then the Crown took a bold measure indeed. By an after declaration of the legis- lature we are authorized to give it its true appellation of an act of injustice."* Lord Hailes goes on to state, the groundless and illegal pleas upon which a reduction of Lord Mar's right was affected, — and the eventual resto- ration of the family of Erskine, by Mary Queen of Scots, against this unjust decision. Mr Tytler justly observes that the judgment of James II, in this case, " in which the rights of a private individual were sacrificed to the desire of aggrandizing the Crown, casts a severe reflec- tion upon the character of the King and his ministers, and reminds us too strongly of his father's conduct in ap- propriating the earldom of March."f But while the power of the Crown, and the manner in which it had been so recently exercised, was suffi- cient to deter the young heiress of the divided Lennox from asserting her lofty rights upon the demise of her * Sutherland Case. t History of Scotland. 44 HISTORY OF THE grand-aunt the Duchess of Albany, she had difficulties to contend with from which the case of Mar was free. The territorial principle, and the tyranny of feudal pow- er, tended greatly to reduce her chances of success in a competition even with a junior branch, which, how- ever, inherited a portion of the territory twice as large as what fell to her share. Lord Dernely, a turbulent and ambitious noble, stood in the very same degree of relationship to Earl Duncan, though representing his youngest daughter. At the same time, his personal weight, no less than his double share of the inheritance, gave him a vast advantage in his desire to usurp the title. These considerations alone would account for the fact, that the lady of John Napier of Merchiston, (assuming her to have been the leading coheiress,) — although in 1454 she com- pleted, as shall be afterwards shown, her titles to estates in the Menteith, as heir of Patrick Menteith her bro- ther, and, in right of primogeniture, obtained possession of the principal messuages, — did nevertheless forbear, until the year 1473, to enter even to her share of the lands in the Lennox, much less to claim the honours and im- partible rights, to which, however, she had the same le- gal right as in the Rusky succession. But, it may be asked, why, under these circumstances, did not this wide and wealthy earldom immediately fall a prey to that desire of aggrandizing the Crown which at the very time operated so successfully against the earldom of Mar ? or how came it that the potent Derne- ly himself was so long unable to effect that final ar- rangement and partition of the Comitatus, which did not leave him in undisturbed possession of the honours until thirty years had elapsed since the succession opened to the various coparceners ? The answer will be found in the history of another PAKTITION OF THE LENNOX. 4*5 individual who became interested in the possession of the Lennox. Of the seven illegitimate sons, already noticed, of James Stewart of Albany, Andrew Stewart was the eldest. His name occurs, along with some of his brothers, as witness to a charter granted by the Duchess Isabella when residing at Inchmuryne. He and his brothers were probably reared under the special care of their grandmother. This youth must have held a distinguish- ed place in times when the feeling against illegitima- cy was by no means in proportion to the severity of the law. He stood precisely in the same degree of relation- ship to Earl Duncan as did the ladies of Rusky, and Lord Dernely. But, moreover, had he been legitimate, he would have been heir of the marriage between Isa- hella and Duke Murdoch, and wovdd have excluded co- heiresses. That he and his brothers were illegitimate, however, is unquestionable, for their letters of legitima- tion are upon record, and to the very charter of the Duchess which these youths witness, the consent and assent of their grand-aunt, Margaret, is taken as eldest coheiress of the Lennox. But Andrew Stewart was nevertheless reared with the same distinction as if the bend sinister had not excluded him from the fief. His youthful years, spent on Lochlomond, must have fami- liarized him with the Lennox, and the Lennox with him, and his subsequent education was calculated to make him forget that he had no right to look to tiie possession. James H., touched perliaps with some regrets for the ruin his fa- ther had caused, honoured this illegitimate scion of Alba- ny and Lennoxwith marks of regard and affection, placed him at one of the English universities, and when his edu- 46 HISTORY OF THE cation was completed, appointed him a gentleman of his bed-chamber, and bestowed upon him the honour of knighthood. Not long afterwards he gifted him with the barony of Avandale, or Evandale, (forfeited by the Earl of Douglas in 1455,) and in 1457, we find Andrew Stew- art of Albany styled Lord Avandale.* He now rapidly rose to the highest distinctions that could be conferred upon him. Before the 1st of March 1459, he had superseded George fourth Earl of Angus in the responsible office of Warden of the Marches ; and in 1460, about the period of his grandmother's death, he held the loftiest situation in the realm. Upon the ac- cession of James III. in that year, he was chosen Lord Chancellor of Scotland, and the conduct of government under a new minority, and the charge of a distracted kingdom, were then committed to his acknowledged talents, f * Crawfurd, in his Officers of State, mentions a grant, dated in the year 1456, of the barony of Avandale, which had been annexed to the Crown, to Sir Andrew Stewart, Knight, natural son of Sir James the gross. Upon the 11th of June 1459, among the Scottish guardians of the truce ratified of that date, is mentioned " Andrew Dominus de Avaudaill."— %?«er, xi. 389, 398. Rot. Seal. ii. 379, 383. t In a charter under the great seal, dated at Edinburgh, 28th January 1459-60, one of the witnesses is " Geo. Comite Aiigusice gardiano Regis." — Mag. Sig. v. 92. And in another, dated on the 1st of March following, " Atul. Dom. Avandale gardiano Regis," is a witness, Mag. Sig. v. 90. His chancellorship seems to have commen- ced with the commencement of the reisrn of James III. Amono- the Merchiston papers, I find a notarial instrument, dated 23d January 1460-1, taken in presence, among others, " nobilis el perpotenlis Do- mini Andree Domini Anendail Cancellarie Scocie ;" when appear personally, " nobilcs el Iwnorabiles viri Patrick Hamillou de Calh- cart el Ada de Spens, burgenses de Edinburgh, marili elsponse Mar- PARTITION OF THE LENNOX. 47 It was natural, considering his birth and education, and the temper of the times, that Lord Avandale should cast a longing eye to the possession of the Lennox ; and it was easy, considering his sway in the kingdom, and his command of the chancery, for him to obstruct the legitimate heirs of his house in taking up their lawful inheritance. At the very commencement of the reign of an infant king, the order and justice contemplated by James I. when he established the chancery for the issu- ing of brieves, were not likely to receive full effect from a chancellor, whose interest it happened to be in this particular case to withhold them. Here, then, was the obstacle in the way of all the heirs-general of Earl Dun- can when they wished to establish their right of succes- sion immediately after the death of the Duchess Isabella. As might be anticipated, the first movement for re- dress was made by the junior branch of the representa- tion, because that happened to be the most powerful and wealthy. We find that, in the year 1460, John Lord Dernely took instruments on requiring Lord Avan- dale, chancellor, to issue brieves to serve him heir in one-half of the Lennox ;* and it also appears, that Dernely was unsuccessful in this attempt to obtain his garile et Katrine de Lawder /(lie quondam Georgei de Ladder bur- genses dicti burgi ac Elizabeth et Issobellefilie etiam ct heredes dicti Georgei." This deed regards the rights of the parties to the lands of " Sornfalow, Grenhill, Brownisfield," besides certain tenements in Edinburgh which belonged to the said George Lawder; and which are resigned in favour of " Sir Ak^xander Lawder of Ilalton, Knight, son and heir of the late William Lawder of Halton." The mother of John Napier of IMerchiston, who married the heiress of Rusky, was Elizabeth Lawder, said to be a daughter of Lawder of Halton. * " Ad inquirendum de quihus icrris el annuis redillihus cum per- tincnlibus quondam Duncanus comes de Lennox pater Elizabethai de Lennox ava' dicti Joannis obiit nllimo veslilus el sasilus inj'ra die- 48 HISTORY OF THE inheritance. At this time, however, Dernely did not proceed a step beyond his legal right. All that he de- manded was the issuing of brieves for an inquisition into the state of the succession, and his own propinquity to the last Earl, as one of his heirs-general ; but he neither pretended right to the honours, nor to the principal messuage of the fief. Failing in this legitimate endeavour, he next had re- course to the statutory remedy of complaint to the King and Parliament, whom lie addressed in a petition pray- ing to have " conusabill brieves, &c. tuiching the lands of half of the earldom of Levenax ; of the quhilk as yit I can get na expedicione nor outread, &c. And that ye mak, na ger mak, na stoping to me in the serving of tliame, sua that I may be servit in alls far as affers. For the quhilk to be done to me, I profir to hald a hunder spers, and a hunder bowis dewly bodin for a yere on myne awin expensis, in quhat part of this realm that ye will charge me in resisting of your rebills and enemys whatsumever thai be."* Several facts important to the present inquiry are proved by the tenor even of this petition and complaint. First, that the succession was capable of being taken up by service, and consequently had not been annex- ed to the crown by forfeiture. Secondly, that at this time Lord Dernely put forth no pretension beyond his right to the half of the lands, and did not claim the chief messuage. Thirdly, that he was obstructed by the turn vicecomltalum, et si ipse Joannes Stuart essel unus de legittimis hceredibus dicti quondatn Duncani." The instrument is dated 16th December 1460^ and the procurator for John Lord Dernely is his brotlier Alexander Stewart. — See Andrew Stewart's Historij of the Stewarts, p. 185. * Case for V/oodhead, p. G7, quotes original deed in possession of Duke of Montrose, PARTITION OF THE LENNOX. 49 chancellor in getting the briev^es he demanded, and found it necessary to condescend to make special offers of military service to overcome the impediment. Power- ful as he was, this nobleman could not effect an entry to his lands in the Lennox until ten years had elapsed from the date of this petition ; and if he could not, far less could either of the coheiresses of Rusky, though married to gentlemen of high character and considera- tion in the state. The mystery of this apparently inaccessible heredi- tas jacens seems to be fully explained by the circum- stances attending a liferent grant of the whole Lennox, which Avandale at length managed to secure to himself in the year 1471. After the death of the Duchess Isabella, and Derne- ly's first attempts to be served, state matters of import- ance, in which the chancellor took a lead, probably in- terrupted his views upon this fief. Several foreign em- bassies occurred, in which his talents were called into active requisition ; and especially in 1468, he conduct- ed that to Denmark for negotiating the marriage of James III., upon which occasion he was accompanied by the comptroller of the household. Sir Alexander Napier of Merchiston, the father-in-law of Elizabeth Menteith. The perfect success of this mission greatly increased the chancellor's influence, and his reward seems to have been a liferent gift, under the Great Seal, of the Comitatus of Lennox. The grant is dated at Edinburgh, 4th May 1471, and bears to be from the King to Andrew Lord Avandale, his chancellor, for the singular favour and affection which his majesty entertains for him, as well as for services rendered to the King and to his progenitor, of the lands, tenandries, and profits of the earldom of Lennox, &c. to be as fully and freely enjoyed by him, D 50 HISTORY OF THE during the whole period of his life, as was wont to be en- joyed by the Earls of Lennox themselves.* The chancellor's next object was to fortify himself in this grant, which being made during the King's mino- rity, and to the prejudice of the legitimate heirs of the earldom, was in manifest danger from the law of gene- ral revocation, whenever the King arrived at the ripe age of twenty-five years. Avandale's preliminary step, however, was to remove as far as possible the disadvan- tages of his birth. He obtained letters of legitimation to himself and two of his brothers, by which a right of general succession was thrown open to them,-|- and it is not unlikely that he contemplated at some future period the entire exclusion of the heirs in whose possessions he had established himself. At all events it is obvious, from the original titles still extant, that he would not suffer any of them to establish their right to a feudal investiture in the Lennox, without submitting in the most formal manner to his full enjoyment of the fief so long as he lived. About the beginning of the year 1473, John Haldane of Gleneagles was on the eve of an embassy to Denmark. Despairing probably of obtaining the titles of his wife, Agnes Menteith, made up to her quarter of the Lennox, or, it may be, having particular views of his own in the matter, which the state of the times was very apt to en- gender, he contrived, i?t the absence of all the other heirs, and ivithout amj party being heard for their interest, to obtain a charter to himself of a quarter of the Len- * Mag. Sig. vii. 193. t In the Case for Woodliead, Lord Avandale's legitimation is quoted of date 17th September 1479. But I find these letters of legitimation in the record of the Great Seal, dated so early as 28th August 1472. — Mag. Sig. vii. 249. They were repeated in 1479. PARTITION OF THE LENNOX. 51 nox, in terms upon which I shall elsewhere have occa- sion to comment. This charter contains an express con- dition that Haldane shall guarantee to Lord Avandale the undisturbed enjoyment of his liferent so far as Hal- dane's charter extended. Upon this he takes infeftment, and immediately sets out upon his embassy to Denmark, fortified also with royal letters of protection from all pleas and suits in his absence, and for forty days after his return. Agnes Menteith, however, is not served to her heritage in the Lennox, nor is she even alluded to in her husband's charter. We have next to observe the steps taken by Lord Dernely, which in like manner were obviously control- led by the views and schemes of the chancellor. James III., in a deed under his privy seal and sign manual, dated 21st June 1473, just three months after the date of Haldane's charter, declares that John Lord Dernely had resigned into the King's hands, the lands of the lordship of Dernely, and others, there to remain until the said John Lord Dernlie, " his entrie to his part of the lands of the erledom of Levinax, and therefter quhill he haif infeft and gifFen to our weil belovit cou- sing and chancelar Andro Lord Avindaill the said lands of the erledom of Levynax in liferent, as frely and in siclyke forme as our foresaid chancelar had the samyn lands of us befor ; and also quhill our cousing Wilzam of Edmonstoun of Duntreath be made sickker be the said John Lord Dernale for his part ;" and it is further de- clared, that, upon Avandale and William of Edmonston being made secure and content, his majesty shall im- mediately restore to Dernely all the lands held in se- curity of this agreement, and infeft him therein as fully as he held them before, without cost or impediment.* * A notarial transcript of this deed, taken by order of Lord Der- 52 HISTORY OF THE Thus we see the scheme of the chancellor's security progressing, and it only remains to investigate the titles of Elizabeth Menteith in order to find it complete. Merchiston's lady had made up titles to her estates in the Menteith so early as 1454. Yet I find among the Merchiston papers a precept of seisin, which clearly indicates that the lands of Rusky had been resigned in security into the King's hands about the very time of the transaction with Dernely. The precept bears, that Elizabeth Menteith had again resigned into the hands of James HI. her lands of Rusky, &c. in security for the fulfilment of certain special agreements, — that the stipu- lation had been fulfilled, — and that the King's precept is- sued in consequence for reinvestment.* The seisin taken upon this is dated 8th May 1473; and although the pre- cept does not mention what the special agreements were, there seems no room to doubt that it refers to the se- curity of Avandale's liferent, as a condition of Elizabeth Menteith's entry to her share of the Lennox. Accord- ingly, the original deeds still extant show that her titles to the Lennox were made up immediately after the date of the above precept.f nelv, in September ]477j is in the Montrose charter-chest. — See Case for Woodhead, p. 67, 68, and Andrew Stewart's History, p. 183. Sir William Edmondstone was married to Matilda Stewart, a na- tural daughter of James of Albany, and consequently he was brother- in-law to the chancellor. * " Que quidem terras de Husky cnm pert'mentibus fueriint dicte Elizabeth hereditarie, ct quas eadem Elizabeth 7ion vi ant metu diicta, 8fc. in manibiis noslris sursum redditit, pureque et simpliciter rcsig- navit et traxit easdem nobis in securitatem donee certa appunctu- amenta per eam obsinata fuissent, que secundum formam eorundem plenarie perimplevit." — Merchiston Papers. t Elizabeth ^^lenteith's retour as one of the heirs-general of Dun- can Earl of Lennox, in one-fourth part of the earldom, is dated 4th November 1473. Upon this she is infeft 16th November thereafter. . — Merchiston Papers. PARTITION OF THE LENNOX. 53 Thus it is obvious thai, vipon the demise of Duch- ess Isabella, Lord Avandale, chancellor, threw obstacles in the way of the immediate entry of all the heirs-gene- ral of Earl Duncan, — that he then obtained for himself the most ample liferent grant of that fief possible, and also letters of legitimation, — and, finally, allowed the heirs to make up their titles about the same period, (with the exception of Agnes Menteith, whose husband took a special charter to himself,) upon the express condition of their homologating his liferent, and guaranteeing the possession held by himself and his brother-in-law Dun- treath. This history explains the circumstances of the Len- nox remaining so long in non-entry after the death of the old Countess, and aff'ords another sign of the times in reference to the difficulties which a female coheiress had to encounter in her legal claims upon the lofty rights and privileges of a Comitatus. 54 HISTORY OF THE CHAPTER VI. FIRST ATTEMPTS OF JOHN LORD DERNELY TO APPROPIUATE THl^ HONOURS OF LENNOX HJS IRREGULAR SERVICE RE- DUCED IN A PLEA WITH HALDANE OF GLENEAGLES — STATE OF THE TITLES TO THE LENNOX AT THE CLOSE OF THE REIGN OF JAMES III. The ambition of Dernely, who was as covetous of the ho- nours of the Lennox as Lord Avandale was of the lands, backed by the influence derived from his distinguished and warlike ancestry, his wealth and high connections, rendered him a powerful rival to the chancellor in any views which the latter might entertain towards this succession, and a dangerous coheir to the females, whose legal interest in the fief was superior to that of Dernely. We find, accordingly, that this nobleman endeavoured to obtain the object of his desire in a sinister manner, which failed at first, not from any opposition on the part of the Crown, but from the baseless nature of the pretension even in a question with another less j^ower- ful coheir, and from the very irregular manner in which he attempted to make it good. In order to appreciate the nature of Dernely's proceedings it may be necessary to call to mind the forms of process by which at this pe- riod the heirs-general of Earl Duncan might establish their feudal rights. Brieves, by the la^F of Scotland, prior to the erection of PAKTITION OF THE LENNOX. 55 the College of Justice in the year 1532, came in the place of all summonses before the ordinary courts. A brief was an instrument issuing from the Chancery, and directed either to the Justiciary of Scotland, or to the Judge Or- dinary, ordaining him in the name of the King to try the matter set forth in the brief, by a jury, or inquest. Upon the verdict of this jury the claim was determined. The brief might either be simply declaratory of a right in the party obtaining it, or might conclude specially against some particular defender. In the former case it was a brief ?iot ])leadable and retourahle, that is to say, it was only necessary to publish or proclaim it at the head burgh of the particular jurisdiction, without special ci- tation of defenders, and the verdict of the jury was re- turned to the Chancery by the judge to whom the brief had been addressed. In the latter case it was a brief pleadable and not retourahle, because the defender was specially cited, and the brief became the ground of a proper action before the competent judge, who pronoun- ced sentence in terms of the verdict of the jury, and made no return to Chancery. Brieves of inquest or ser- vice of heirs, of tutory, idiotry, &c. were retourahle brieves. But the brieves of right, of mortancestry, of terce, of division of lands, &c. were all directed against some defender specially cited, and were therefore plead- able and not retourahle. In terms of the ruling investiture of the Lennox, the two coheiresses of Rusky who represented Margaret of Lennox, and Dernely who represented Elizabeth of Lennox, were each of them entitled to the character of one of the heirs-general of Earl Duncan, because his daughters Margaret and Elizabeth were coheiresses. Consequently, none of these representatives of Margaret and Elizabeth of Lennox required to be specially called 56 HISTORY OF THE ill defence against a simple brief of inquest, at the in- stance of any one of them. They might all and each establish their respective characters, of heir-general, feu- dally in the Lennox, without affecting the correlative rights. But the case was otherwise in any attempt to divide the lands, or to decree to any one of these parties some particularportionof the fief in property. According to the territorial principle, which certainly then existed in Scot- land with regard to titlesof honour, the legalmode of tak- ingupadignity was to become feudally invested in the Ca- put Comitatus, or principal portion of the particular fief, including the chief mansion-house or messuage. Accord- ing to another indisputable principle of the law of Scot- land, titles of honour were indivisible rights, which, in the case of coheiresses, were regulated by the law of primogeniture, and belonged to the eldest female or her representative. Consequently, in a process of division of the lands, the elder coheiress was entitled to claim as her portion that which included the messuage, and this claim could only be made effectual under pleadable brieves of division, to which all parties required to be specially summoned to appear for their interest. We may now revert to what actually took place in re- ference to the possession of the Lennox. The illegiti- mate grandson of the Duchess Isabella had, for a time at least, excluded the legitimate grandchildren of that lady's younger sisters from theactual enjoyment of their respective portions, by securing to himself possession of the Lennox, an irregular and unjust proceeding, which placed him in the anomalous position of being infeft as liferenter in the whole of that Comitatus, without being able to assume the title of Comes (to which Lord Avan- PARTITION OF THE LENNOX. 57 dale never put forth a pretension) though that ought to have been tlie natural consequence of his feudalized pos- session. No hiieves of division, therefore, were issued from Chancery at this time, in favour of the coheirs of Earl Duncan. Elizabeth Menteith asserted and esta- blished her character, as one of the heirs-general of her great-grandfather, by the simple brief of inquest, of which the original retour to chancery, with the seals of the inquest attached, is still extant. Agnes Menteith, however, remained in apparency, and her husband seems to have preferred taking a charter to himself of one- fourth of the Lennox, which was the extent of his wife's share, but without any reference in his charter to that lady. Upon this he was infeft, which established his feu- dal interest in the Lennox to that extent. One legal effect of Haldane's mode of procedure in this matter was to prevent any process of division of the lands until his return. For when he obtained his charter he also fortified himself with a well known and most important legal document of those days, name- ly, royal letters of protection against all suits duringhis absence and for forty days after his return. No brieves pleadable, therefore, could be effectually discussed until these letters expired, and they afforded a very certain ground of reduction of any process that might appear to have been instituted contrary to their tenor. John Lord Dernely, however, as his whole public car- reer proves, was not a man to stand upon ceremony with law or justice, and accordingly his service as an heir-general of Earl Dimcan exhibits some curious ir- regularities. The brief of inquest \vhich he demanded, and which at length issued from Chancery in his fa- vour, when he had satisfied the conditions of the chan- cellor, ordained, and could ordain no more, that his pro 58 HISTORY OF THE indiviso right to one-half of the lands of the Lennox should be determined by the jury, upon their being sa- tisfied of the propinquity upon which his claim depend- ed. But Dernely, it seems, having packed a jury of his j)ersonal friends and dependents, got a verdict retoured to Chancery, which found what ought not to have been found, and did not find that which ought. This retour, still preserved in the Montrose charter-chest, serves Der- nely heir to Duncan Earl of Levenax in the principal inessuage of the said earldom, and in the half of the jjroperty of the earldom. Again, it was the duty of a jury, under a brief of inquest, to determine upon suf- ficient evidence the propinquity which gave the legal character claimed ; yet it has been asserted that in this retour, the name of the lady, through whom Lord Der- ly claimed, is, for reasons which will be apparent after- wards, left doubtful.* It was at all events entirely be- * The author of the Case for Gleneagles appears to have had access to the Dernely papers in the Montrose charter-chest, and it can hardly be supposed that the following account which he gives of Dernely's retour is inaccurate : " Darnly obtained brieves from the Chancery, and in a very irregular manner got himself served heir to Duncan Earl of Levenax, as his great-grandchild, lawfully descended of daughter to the said Earl, in the principal messuage of the said earldom, and in the half of the property of the said earldom. The original retour of this service is still extant in the hands of his Grace the Duke of Mon- trose, and is dated 23d July 1473. // is still blank in the name of the Earl's daughter, through whom he claimed, which shows with what uncertainty and inaccuracy it proceeded, and how hastily it was carried through, when the very point on which the whole hinged could not be fixed." Case, p. 2. The Case for Woodhead, however, quotes some of the clauses of this retour, without indicat- ing a blank actually left, as above ; " de capitali messuagio et de tola et Integra dimidiet ate diet. terr. Comitatusquede Levenax, Sfc. tanquam de seniorijilia dicti quond. Duncani legitime descend." &c. p. 52. An- PARTITION OF THE LENNOX. 59 yond the terms of such a brief to determine any thing about the particular parcel of lands to be allotted, as this was only a retourable brief, and not a brief of di- vision, which was a pleadable brief. Yet here was a finding which enabled Dernely to obtain infeftment in the principal portion of the earldom, the Ccqnit Comita- tus, in the absence of all the other parties. The precise period of Dernely's first assumption of the honours has been stated as a historical puzzle.* But a comparison of the dates of the various deeds ob- tained by him about this time, and of the different style adopted in each, will, when taken in connection with the above narrative, place the matter beyond doubt. So long as he was not infeft upon any deed embra- cing the chief messuage of the earldom, he indulged not drew Stewart in his History, p. 185, says, " Upon the 23d of July 1473, John Lord Dernely was actually served heir to Duncan Earl of Lennox, his great grandfather, as being lawfully descended from Elizabeth, the daughter of the Earl, in half of the earldom of Len- nox, and in the principal messuage," &c. This author had all the Dernely papers from the then Duke of Montrose, and so uncandid a statement was scarcely to have been expected from a writer of his station and character. I have not had the advantage of inspecting the original retour, but, whether there be a blank left or not, it ap- pears from Mr Hamilton's quotations, that Elizabeth's name is not mentioned, and that she is called " senior ijt Ha," which certainly she was not. It was not essential to name her in the retour ; but if a blank occurred it would seem to say that the jury had not been satis- fied as to the connecting link. In the retour of Elizabeth Menteith, the relative expressions are, " ianquam de juniori filia dicti quond. Duncani legitime descendens ;" which was perfectly accurate, as the Duchess Isabella vvas the eldest daughter. * " With regard to Lord Darnly's assuming the title of Lennox, the precise period when he first began to do so does not appear." — Case fur Glcneagles, p. 4. 60 HISTORY OF THE in the style of Earl of Lennox. The date of his irre- gular service is 23d July 1473. The date of his infeft- mentis 27th July 1473, wherein he is only styled " John Lord Dernely."* That infeftment being completed, however, and including expressly the principal messuage, the inevitable feudal consequence was the assumption of the title of the earldom. Accordingly, the date of the new royal charter which he then received of those other lands, resigned in security of Lord Avandale's liferent, is 6th August 1473, and in that charter he is styled " John Earl of Levenax."f Upon the 2d of October 1473, he has his newly acquired rights and privileges proclaimed in the usual form of a royal precept, ordain- ing the tenants of the Lennox to obey him as Earl.:}: Thereafter his name is to be found for a short time in the records of Parliament as Comes cle Levenax, and not merely as Domimis de Deryiele. Thus the basis of Dernely's first assumption is ma- nifest. It was no new erection in his favour of a for- feited fief. He took up the honours as his inheritance, * Deriiely Papers. t It is recorded, Mag. Sig. vii. 59. Andrew Stewart, in the part of his history entitled, " General view of the steps taken by John Lord Derneley, for asserting his right to the estate and honours of the old Earls of Lennox," had missed the important link afforded by this charter ; and Mr Hamilton, in his Case for Woodhead, is also in error, when he says, " Dernely, on the 10th October 1473, obtained a precept from James III., charging the free tenants and inhabitants of the earldom and lordship of the Levenax, to obey and answer to him ; and in this deed he is/o/- the first time addressed by the style of Earl of Levenax." — P. 68. X Dernely Papers. Andrew Stewart, p. 185, says, the 2d of Oc- tober. Mr Hamilton, p. 68, says the 10th of October. Both of these authors had the advantage of inspecting these papers, which came into the IMontrose family with the Dernely property. PARTITION OF THE LENNOX. 61 and by service to that ancestor who is said by modern his- torians to have fallen under forfeiture. He claimed the earldom under the existing investiture of his family, namely, the charter of confirmation by Robert III. to Earl Duncan, &c. with a remainder to the heirs-general of that nobleman. But, at the same time, Dernely only established his character by infeftment taken upon a re- tour inept and reducible in every line of it, and which, accordingly, ivas reduced. There is no evidence extant that Elizabeth Menteith took any steps against this usurpation, though it is pos- sible, considering the lapse of more than three centuries and a-half since the period, that the evidence of resist- ance on her part may have been lost. Any such resist- ance, however, could only have been instituted upon the ground of a prior right to the earldom, — a dignity which, on the other hand, it is equally possible that Na- pier of Merchiston, though highly respectable, may not have felt himself sufficiently powerful to sustain, and, therefore, made no attempt to assert. Haldane of Glen- eagles, however, had, as will be shown, technical pleas to urge, totally apart from any claim to the honours of Lennox, and which were of a nature to be listened to, even in those days, with the highest respect. This gentleman, who was of considerable account at court, seems to have been himself not a little imbued with the spirit of times, when 7mght was right. Origi- nal deeds shall be afterwards quoted which justify the surmise, and which go to prove such to have been his disposition, at least in regard to the rights and privileges of his wife's sister Elizabeth Menteith, and her spouse John Napier. It was not likely that such a character would remain inactive when he really had the law on 62 HISTORY OF THE his own side. But I must here state very generally the legal steps instantly taken by him on his return from his embassy, reserving a more particular view of the state of his process for the chapter which affords a reply to the modern case founded for Gleneagles upon the pro- ceedings in question. Upon his return in 1475, he protested against Lord Dernely's assumption of the honours of Lennox, but laid no express claim to those honours, either for him- self or spouse. He complained to the King, that his royal letters of protection from all pleas, &c. had been treated with contempt, and broken by the proceedings of Dernely in his, Haldane's, absence, — that he had an interest as well as his spouse, Agnes Menteith, to have been specially called and heard in any process affect- ing an appropriation of the Lennox ; and in evidence of this plea he produced his own charter to a pi^o in- diviso quarter of that fief, upon which he had been infeft before his departure. He also urged, as a se- condary plea, the prior right of his wife Agnes Men- teith, over Dernely, to the superiorities of the fief, and asserted, that Dernely had frequently offered Agnes con- tentat'ion for these superiorities. But he made no allu- sion in this complaint to the rights of Elizabeth Men- teith, or to the fact, that Dernely offered in like manner to that lady, contentation for her right to the superi- orities of the Lennox. The King remitted this com- plaint to the Lords of his Council, and certain other Barons, who found, that Royal letters of protection in favour of his Majesty's ambassador had been infringed and broken by the proceedings of Lord Dernely ; and upon this deliverance letters passed the privy-seal, re- ducing and annulling all the proceedings founded upon that nobleman's brieves of inquest, and placing matters PARTITION OF THE LENNOX. b'3 precisely in statu quo by expressly reserving all rights to all parties. Haldane's protest, with which he commenced his at- tack upon the service of Dernely, is dated 26th April 1475.* A Parliament was held on the 20th November following, in which Dernely still sat as " Comes de Le- venax." On the 4th of December following, the King- granted a commission of lieutenancy, " Johanni Comiti de Levenax."f On the 12th of January following, (that is still in the year 1475, according to the Scottish ca- lendar of that period,) the letters of reduction referred to above pass the privy seal, and in these letters he is only styled " John Lord Dernely." On the first of July 1476, six months after this decree of reduction, and se- ven after the date of the commission of lieutenancy, a new Parliament was held, and the first person named as taking his seat, after the Comites and among the Domi- 7ii, is " Dernele."! For thirteen years thereafter, a fact not attended to by the historians of Scotland, in every public record of that nobleman's name extant, he is styled Lord Dernely, and not Earl of Lennox, until the first Parliament of the succeeding reign in 1488, when he reappears un- der the higher dignity, after a progress of events which, as we shall see, was favourable to his usurpation. Du- ring the interval, some private and fruitless attempts to compromise matters with Haldane of Gleneagles occur- red, of a very confused and irregular nature, to be noticed in the sequel. * Gleneagles Papers. t " Rex dedil litcram locum ieneniis Johanni Comiti de Levenax infra bondas el vie. de Renfrew, Are, JVigloiine, t^c Mag. Sig. vii. 353. i See the Records of the Scottisli Parliament of the periods. 64 HISTORY OF THE Thus between the period of the death of Duchess Isa- bella about the year 1460, being that in which James II, was killed, and the period of the death of James III. in 1488, the rights and pretensions to this Comitatus re- main in the following extraordinary position ; 1. It is not annexed to the Crown, either by forfeiture or usurpation, but is left to be taken up by the heirs-ge- neral of Earl Duncan, in terms of the remainder stipu- lated in the marriage-contract of his eldest daughter, and confirmed by the charter of Robert III, 2. In the year 1460, probably shortly after the death of the Duchess Isabella, Lord Dernely attempts to ob- tain brieves of inquest to be served to his share of the Lennox, but is obstructed in this legal claim by the chan- cellor himself, the illegitimate grandson of the Duch- ess. 3. The Lennox remains in non-entry; and at length, in the year 1471, the chancellor obtains a Royal grant (the King being a minor) of a liferent possession of the whole fief. 4. In the year 1472, the chancellor obtains letters of legitimation under the Great Seal, — a process which ma- terially improved his hereditary status, but could not confer a right to inherit honours. 5. In April 1473, John Haldane obtains infeftment upon his special charter to a fourth part of the Lennox, pro incllviso, and departs on his embassy. 6. In July 1473, Lord Dernely is retoured in the prin- cipal messuage and one-half of tlie Lennox, in the ir- regular manner narrated, and assumes the title. 7. In November 1473, Elizabeth Menteith obtains her retour in a pro incUviso quarter of the fief, as an heir- general of Earl Duncan through his younger daughter, PARTITION OF THE LENNOX. 65 the truth and perfect regularity of which process is ne- ver questioned at any period. 8. Agnes Menteith remains in non-entrij ; but in 1475 her husband returns from his embassy and reduces Lord Dernely's service, still, however, without assuming the title of Earl of Lennox, either in virtue of his own char- ter, or in right of his wife. 9. For thirteen years thereafter, being the remainder of the reign of James III., no Earl of Lennox appears upon record. But the Chancellor Avandale continued to enjoy possession of the lands so long as he lived, which was until the year 1488. E 66 HISTORY OF THE CHAPTER VII. HISTORY OF JOHN LORD DERNELY's SECOND USURPATION OF THE HONOURS OF LENNOX HIS CONTRACTS OF EXCAMBION WITH THE OTHER COHEIRS FINAL PARTITION AND SETTLE- MENT OF THE FIEF. The last ten years of the reign of James III. are tur- bid with civil broils, increasing to the deadliest pitch of civil war, and concluding in 1488 with the battle of Sauchieburn, on his flight from which the monarch was murdered. Of this turbulent period the prominent fea- tures are, the slaughter of the King's favourites by the disaffected nobles at the bridge of Lauder, — the tempo- rary usurpation of the crown of Scotland by Alexander, Duke of Albany, the King's brother, — and lastly, an in- surrection whose crisis, at the battle above-mentioned, brought a young Prince under the standard of rebellion against his own father, and construed loyalty to the old monarch as treason to the new. Amid these stirring events, neither the chancel- lor Avandale, nor Lord Dernely, w^ere idle ; and the power of the latter seems to have increased as that of the former was on the wane. Upon the 11th of April 1481, Dernely was appointed to the high and import- ant office of warden of the west march,* while the Earl * Mr Tytler, in his History, Vol. iv. p. 265, and under the year ]481, says, " The wardenry of the east marches was committed to the Earl of Angus, that of the west to Lord Cathcart." But I have followed the Parliamentary records of the period, which bear, " Item, PARTITION OF THE LENNOX. 67 of Angus commanded the east. This appointment shows how high Dernely then stood in the King's favour, and ranked in the reahn, and how absurd it is to suppose that, had the earldom of Lennox ever been specially bestow- ed upon him, or that had he, in taking it up as his in- heritance, been supported by a shadow of right, he would at this time have been only styled Lord Dernely. In the year 1482 the conspiracy broke out against the King and his favourites, and, in the ranks of the con- spirators, noblemen are found who had hitherto been the most loyal supporters of the Crown. Lord Avan- dale, for the first time and apparently the last, turns against the sovereign who had heaped upon him wealth and honours, and whose chancellor he had been for two- and-twenty years. Angus, warden of the east march, headed the conspiracy, and Dernely warden of the west joined him. To this faction the chancellor added the weight of his talents, and a double portion of ingratitude. That both Avandale and Dernely had upon this occa- sion deserted their sovereign is stated by Pitscottie, and confirmed by the records. Upon the 22d July 1482, the King was conveyed to Edinburgh Castle a prison- er, and in the hands of rebels, though respectfully guard- ed. Upon the second of August thereafter, as recorded in Rymer, a deed of obligation was entered into by the following " Magnates Scotiie," William Archbishop of St Andrews, James Bishop of Dunkeld, Andrew Lord Avandale, chancellor, and Colin Earl of Argyle, for the protection and indemnity of Alexander Duke of Albany, (the King's brother and most insidious enemy) " being in Ingland, and tending to the Trone of Scotland." The our Sovereign Lord has ordained that the hord Dernely be warden in the west borders." It will also be observed that he is not styled Earl of Lennox. 68 HISTORY OF THE noblemen wlio sign this deed declare that they and the other nobles of the realm, " sail cause our soverane lord frely to gif and grant" to the Duke of Albany " all his landis, heritagis, strenthis, houses, and offices quhilk he possessit the day of his last parting furth of the realm of Scotland."* This ingratitude on the part of the chan- cellor appears to have been j)unished by the King to the utmost extent of his constrained power. Upon the 25th of the same month in which the above deed is dated, a charter passed the GreatSeal of James III., the first wit- ness to which is John Laing Bishop of Glasgow, " chan- cellario."t We have thus precisely the period, and pro- bably the cause, of Avandale's deprivation of that high office, by which for so many years he held sway in the state4 * Feeder a, xii. 160. t Mag. Sig. X. 88. i MrTytler,Vol.iv. p,276, speaking of these events, says, "There was no difficulty in effecting a full reconcilement between Albany and the King's party, Avhich washeaded by the Chancellor Evandale/' &c. But surely the deed to which our historian alludes, and in which those noblemen engage to cause the King to restore Albany to all his " strengtliis," is evidence that they favoured the faction opposed to the King. Again, speaking of the siege of Edinburgh Castle, Avhich occurred 29th September 1482, and the result of which was to give the Duke of Albany the custody of the King, Air Tytler ob- serves ; " The unhappy King, thus transferred from one prison only to fall into a durance more intolerable, had yet left to him a few friends, in the Archbishop of St Andrews, the Chancellor Evandale, and the Earl of Argyle ; but for the present it was impossible for them to make any effectual stand against the power of Albany, and they fled precipitately to their estates ; Evandale was in consequence deprived of the chancellorship, which was conferred upon Laing Bishop of Glasgow." P. 278. But, with deference, it seems impos- sible to adopt this theory. Albany was appointed Lieutenant-Ge- neral of the Kingdom only in December 1482. Now the records prove that Avandale had been deprived of the chancellorship between 3 PARTITION OF THE LENNOX. 69 In the following month (29th September) the memo- rable siege of the Castle of Edinburgh (in which the King was confined) occurred. And now the fiery and fickle Dernely seems suddenly to have separated himself from the conspirators, in order to become the body guard of that sovereign whose favourites he had lately assisted to hang over the bridge of Lauder. There is a charter under the sign manual of James, and dated 19th Octo- ber 1482, which narrates that, at the King's particular desire. Lord Dernely, and others about his royal person remained with him day and night in Edinburgh Castle, to protect him from personal injury, and from certain nobles and other disaffected persons who had conspired his death ; and moreover, Dernely and his compatriots are declared to be true lieges, and absolved from all pre- vious charges of treason, a clause of indemnity very necessary under the circumstances.* In the following year, 1483, the Albany faction was sub- dued, and in the next completely crushed. Lord Avan- dale was not restored to the chancellorship, but he ap- pears to have regained the confidence of the facile mo- narch to the extent of being employed in council and foreign negotiation. Dernely is named immediately af- ter Lord Avandale in the roll of domini (not coinites) to whom the powers of Parliament are committed on the 27th June 1483. the 2d and the 25th of August preceding. The deprivation, then, was before the siege of Edinburgh Castle by Albany, and not after, as Mr Tytler records it ; and could not therefore have been " in con- sequence" of Albany's partial success. Besides, were IMr Tytler's view correct, the King, who regained his power very soon afterwards, would have rcslored Avandale to the chancellorship. * See Appendix to Andrew Stewart's History, where the deed is printed. 70 HISTORY OF THE But that turbulent nobleman, whose whole life seems to have consisted in sudden changes and lawless com- motion, though warmly attached, it is said, to the per- son of James III., would never evince his affection by steady allegiance ; and at the hour of that monarch's fall he was found among the ranks of his destroyers.* Immediately after the date of the conflict of Sauchie, which took place on the 11th June 1488, Lord Dernely still retained that minor style and title, though Lord Avandale was recently dead, and his liferent grant no longer burdened the Lennox.f Upon the 12th July 1488, one month after the death of James III., Elizabeth Men- teith, relict of John Napier of Merchiston, obtains a de- cree of the Lords of Council to secure obedience to her in her quarter of the Lennox. Among the Lords who compose the sederunt upon this occasion is John Stewart, who sits as " Dernle" and not as Levenax.^ Of the same date letters pass the privy-seal of James IV., in terms of this decree, in favour of Elizabeth Menteith ; and the first witness to their proclamation is Alexander Stew- * There are letters of safe-conduct, recorded both in the Foedera and RotuU Scotia;, of date 5th May 1488^ the month preceding the battle of Sauchie, from Henry VIII. " Ambassiatoribus Scotice." Among these is " Mathew Stewart, Magislnim de Dernely." These were the ambassadors of the faction against James III. Ridpath, in his Border History, p. 457, notices this safe-conduct, and puts the question, " Was Mathew Stewart of Dernlee son to the Earl of Len- nox ?" The answer is, he was son to Lord Dernely, that nobleman not resuming the title of Earl until the Parliament of July following, when James IV. commenced his reign. t One of the witnesses to a charter of James III. dated Ilth March 1487, being the close of that year, is " Andrea Domino Avan- dale" — Mag. Sig. X. 136. I cannot discover his name in any record, public or private, beyond this month of JMarch 1487-8. ± Acta Dom. Con. ' PARTITION OF THE LENNOX. 71 art of Avandale.* Obviously this proceeding of the lady of Riisky (as she was generally styled) was in con- sequence of Lord Avandale's liferent having lapsed, and as a preliminary step towards the securing her own peaceable possession and full enjoyment of the lands. The conduct of this lady with regard to her patrimo- nial rights, supposing her to have been the eldest co- heiress of the Lennox, appears to have been dictated by prudence and spirit, though controlled by necessity. She appears to have made no struggle for the dormant earldom, but at the same time fortified her right to a fourth part of the lands by every form of law requisite to protect her possession. But she was a widow, her eldest son was a minor, and her husband and his father had never swerved from that loyalty to James IIL which was apt to be construed into treason at the commence- ment of the reign of his son.t Lord Dernely, on the other hand, was now a distinguished leader among the popular party which surrounded the young King, and, accordingly, the records instruct that he actually took his seat as Earl of Levenax in the first Parliament of James IV. held at Edinburgh upon the 6th October 1488, just four months after the battle of Sauchie. His pretension, though based upon nothing but the fact that the period was most favourable for his usurpation, rises at once to the loftiest pitch. Upon the 10th of the same month in which the Parliament met he obtains, un- der the style of Earl of Levenax, a royal commission, be- stowing upon him and his son and heir, Mathew Stewart, the important custody of the Castle of Dunbarton ; and by the eighth act of the Parliament 1489, the Earl of Le- venax, the Lord Lyle, and Mathew Stewart, are named * Merchiston Papers. t See Memoirs of Merchiston. 7^ HISTORY OF THE as commissioners to maintain peace in the districts of Renfrew, Bothwell, Glasgow, Kilbride, and Avandale. Yet in the summer of that same year, Dernely incurs a doom of forfeiture for being in arms against James IV. ; and at that period his son Mathew, and his friend Lord Lyle, hold the Castle of Dunbarton against the very government that had committed it to their keep- ing. It was in this rising that the Lord Forbes made himself conspicuous by riding the north, with the bloody shirt of the late King displayed as the beacon and ban- ner of insurrection. Dernely, on his way to join this nobleman, was surprised in his encampment at Tilly- Moss by the Lord Drummond, and completely routed. This defeat crushed the enterprise, and " in the month of June 1489," to quote the words of Andrew Stewart, " a sentence of forfeiture was passed, in the Parliament of Scotland, against John Earl of Lennox and his son Mathew, and against Robert Lord Lyle ; but the act of forfeiture itself is not now to be found in the records of Parliament, for it was upon the 5th February 1489-90, rescinded and annulled by the King and Parliament, and in consequence thereof, his Majesty, upon the 6th of that month, issued a precept directed to the clerk-register, ordering him to take furth of the books of Parliament the said process of forfeiture, and to deliver the same to the said John Earl of Lennox, and to Robert Lord Lyle, and to destroy the said process in such a way that it be never seen in time to come."* The whole of this pro- ceeding proves the restless turbulence of Dernely, his utter disregard of law and order, and at the same time, his great power and influence in the state. Having thus escaped the pains of rebellion, and feel- ing himself more powerful than ever, Dernely now vi- * Andrew Stewart's History, p. 192. PARTITION OF THE LENNOX. 73 gorously commenced, in the face of an existing decree of the privy-council which had silenced his claim for thir- teen years, to render his dominion in the Lennox as cer- tain as power without right could effect. It was his ob- ject to obtain complete feudal command of the whole Comitatus, by attaching to himself all the superiorities, patronages, and liberties of the fief ; and also to effect such a compromise with the weaker parties, having a prior right to the honours of Lennox, as might afford at least a colour of legality to the assumption he had al- ready perpetrated. Elizabeth Menteith had followed up the decree of obe- dience proclaimed in her favour, by taking out brieves of division from chancery, for the purpose of having her special share of the lands allotted by the verdict of a jury. The instrument taken upon producing her brieves, and demanding an inquest, is dated 26th of March (day after New-Year's day) l^OO.* But upon the 17th of May following, she had been persuaded or concussed into a contract of excambion with Dernely, the tenor of which very plainly shows his anxiety to establish him- self in a loftier position in the Lennox than was his birth-right. This curious document bears to have been concluded at Glasgow upon the 18th day of May 1490, " between a noble and mighty Lord John Earl of Lennox and Lord Dernely, and Mathew Stewart his son and ap- parent heir, on the one part, and Elizabeth of Menteith, the spouse of umquhile John Napier of Merchiston, as one of the parceners and heirs of the said earldom, and Archibald Naper her son and apparent heir, on the other part, anent the division and allotment of the said Elizabeth's i)art and portion of the lands of the said earl- dom of the Levenax, and also for her part ' of the pro- * JMercliiston Papers. 74 HISTORY OF THE fyt and commoclitevys that myclit fall till liir, or till hir aeris, of the superiorite and tenandry of the fre tenandis of the said erldome, be wardis, manages, relevis, Cour- tis, eschaetis of courtis, be resoun of superiorite, profy- tis of blanchfermys, offices of heritage, advocationis, do- natouris of kirks, chapellis, presentationis of provestriis, chanouriiys, personagis, chaplanriis, and otheris patron- agis quhatsumever,' " &c. There is not a single expres- sion in this contract which would convey to modern conceptions the idea of a transference of the dignity of Earl, nor is the sovereign made a party to the tran- saction ; but it must be confessed that the clause quoted, as well as other clauses in the various deeds connected with this transaction, is of the most sweeping descrip- tion, and, in a territorial sense at least, involves all the highest rights, privileges, and dignities appertaining to the fief. In consideration of this sacrifice on the part of Eliza- beth Menteith, Dernely on his part grants and concedes that she shall obtain in property a quarter of the lands of the whole Comitatus, with its woods, and islands, fish- ings in waters and lochs, &c. &c. and this fourth part is " to be lade and assignit hale and togidder be the self," and to be secured to her by " vigour and autorite of the Kyngis breffis of depertysing." Moreover, for the rights of superiority yielded, a separate estate of lands in the Lennox, adjacent to the quarter to be allotted to Eliza- beth Menteith, is granted to her, over and above her original share. Both parties are taken bound not to part with their lands to strangers, nor to admit such into the fief, but, if constrained by necessity or otherwise to sell or alienate in any manner, " that it sal be offerit ilkane of thaim till otheris apon resonabill and sobyr price," — a condition much more likely to benefit Dernely rARTITION OF THE LENNOX. 75 than Merchiston. And finally, that, " the sade Erie and Mathew his sone sail, for the favomis schawin in this Concorde, help, supple, menteyn, and defende the sade Elesabeth, and Archbalde hir sone, and thar ayres, in all thar causis leyfull and honest, and in speciale in the pessabill brukyng and possedyng of hir quarter of the Levenax and landis before expremyt in all things, but {i. e. wiihowi) fraucle or gyll"'^ The necessary steps to perfect this arrangement by division and appropriation according to the forms of law, were immediately adopted by Elizabeth Menteith, who at the same time took care that John Haldane and his son should be present and exhibit a formal consent to the process of di vision. f But there can be little doubt that the contract of excambion of her birth-right was a * Thefac-sijmles of the signatures of these two first Earls of Len- nox of the Dernely race^ appended to this deed, will interest the reader, filathew was he who commanded one of the divisions of the Scotch army at Flodden. There are also appended their seals ; bearing first and fourth three fleurs de lis ; second and thirds a fesse cheque, surrounded of a bor- der charged with buckles ; on an escutcheon, the jilain saltier and roses ; on the seal of Mathew a label of three points. t All the original documents connected with this process of divi- sion are among the IMerchiston papers. The retour of division to the lands lying in Dunbartonshire is dated 21st May 1490, and to the lands in Stirlingshire, 24th May thereafter. She is styled in these deeds " Elizabeth Menteith Lady of Rusky, ane of the por- tionaris of the erldome of the Levenax." She is put into possession of the lands, nominntiin allotted to her, by the sheriff, who, in token and name of possession, delivers a wand to her in open court. 76 HISTORY OF THE measure to which this lady and her son were constrain- ed by the determined and lawless grasp which Dernely and his son had fastened on the earldom. A charter of excambion was then granted to her of the lands which were the price of the rights and privi- leges she had yielded. This runs in the name of Ma- thew " Comes de Lenax," and is ratified by his father, also styling himself Earl of Lennox, — a fact which may be thus accounted for : The charter of excambion is dated 17th September 1490."* The contract, in which Mathew is not styled Earl, is in May previous. Now on the intervening 1st of June 1490, Dernely having resign- ed the Earldom of Lennox, Lordship of Dernely, &c. into the hands of James IV., in favour of his son and heir Mathew, in fee, and of himself and spouse, Margaret Montgomery, in liferent, obtained a new charter to that efFect.f Hence, in accordance with the territorial prin- ciple, both father and son being infeft in the comitatuSy took the title of Comes. This charter of excambion grants to Elizabeth Men- teith and her heirs, the two towns of Blarnavadis, with the pertinents, lying in the earldom of Lennox and coun- ty of Stirling, and the fishing with one boat, and nets in proportion, over the whole of the still water of the lake of Lochlomond, {lacu de Lochlomond,) excepting the fishing in the water of Leven, and the firth of Lochlo- mond, which are reserved to the granter and his succes- sors. The grant is in perpetuity to a noble lady and our cousin, Elizabeth, Menteith of Rusky, for excam- bion made to us by her ; and the rights yielded are stated to be the fourth part of the tenantry of the whole earldom of Lennox belonging to her, with the perti- nents, and with the advowsons and right of patronage * Merchiston Papers. t Andrew Stewart's History. PARTITION OF THE LENNOX. 77 of the whole churches of the earldom of Lennox, with the fishing of the water of Leven and the entry to the still waters of Lochlomond, and half the island of Inch- tavannach and Castle-gyle, with all the pertinents be- longing to the said Elizabeth by right of heritage in the Lennox. Upon this charter she obtained infeftment on the 22d September 1490. Having thus arranged matters with Elizabeth Men- teith, Dernely's next object Was to quiet the claims of Haldane of Gleneagles. Agnes Menteith was by this time dead, and never having made up her titles to the Lennox, James Haldane her eldest son, proceeded to do so in his own person in the beginning of the year 1490. His retours are precisely in the same general terms as Elizabeth Menteith's, nor do they indicate the slightest superiority of claim upon his part. The term of non-en- try of the lands since the demise of his great-great-grand- father Earl Duncan, to whom he serves, is stated at sixty- six years, corresponding to the interval between the date of the retour and the Earl's death. In the beginning of theyear 1492, James Haldane took out brieves for a divi- sion of the ivhole earldom, as between him and Dernely. Upon the 14th June of that same year, Elizabeth Men- teith, to check this assumption, obtained letters under the privy-seal, to be afterwards noticed, for the protec- tion of her own interests in the matter. Ujjon the 19th of the same month, John Haldane appears as procura- tor for his son James in the Sheriff-court of Dunbarton- shire, and produces brieves of division of the remaining tJwee quartersai the Comitatus, between James Haldane and Dernely, which accordingly takes place, with the express reservation and protection of the other quarter already allotted to Elizabeth Menteith. 78 HISTORY OF THE This has been supposed finally to have settled the partition of the Lennox among the heirs-general of Earl Duncan. But there is a process, the date of which, as shall be afterwards shown, has hitherto been mistaken, which certainly occurred subsequently to the process of division above-mentioned. It is a new summons of re- duction, (dated 2d February 1492, that is, subsequent to June 1492, as the year then commenced on the 25th March,) of Dernely's service, already reduced, but upon which he had again resumed the honours. This is cal- led in court, on the 15th of June thereafter, that is, in 1493. It is there delayed of consent of parties until October following. But in the interval " there is a com- mission dated 8th July 1493 by John Lord Dernely, therein designed Earl of Lennox, to Mathew Stewart, his well beloved son and apparent heir, and to John Stewart of Henrieston, also his son, to go to the kirk of Drymen on the 9th of July then instant, and to com- mune and agree with John Haldane of Gleneagles, anent the avail of the Earldom of Lennox."* Accordingly, on the 11th July 1493, an indenture is concluded at Drymen betwixt " ane nobile and myty Lord Johnne Erie of Levenax, Lord Dernle, and Mathew his son, apperand ayer and fear of the said Erldom on the ta part, and John Haldane of Glenegass,and James his son, apperand ayer and ane of the parsonars fears of the said Erldom, &c. on the tother part," &c. This con- tract is precisely of the nature of that concluded with Elizabeth Menteith and her son in 1490. It names, however, the lands which are to compose Haldane's quarter of the fief ; and adds certain other lands by way of excambion " for the hale and full contentatioun of all * Andrew Stewart's History, p. 186. 4 PARTITION OF THE LENNOX. 79 the lycht clame and interest of the said James, his ayers or assignees, or that may be had in or to the properte or the superiorite of the said erldom, or profyt of the samyn," &c.* This completes the long delayed partition of the Len- nox among- the coheirs of Earl Duncan, leaving the youngest, but most powerful branch, in the undisputed possession of the honours. Elizabeth Menteith, being advanced in years, resign- ed in 1.507 her great possessions in favour of her son Ar- chibald N^apier, who subsequently, upon his own resig- nation, obtained a charter under the Great Seal, dated 21st May 1509, incorporating these estates in the Len- nox and Menteith to be held in free barony, called the barony of" Edinballinaper." About the same period the barony of Haldane, com- posed in like manner of the lands that had come to that family by Agnes Menteith, was erected in favour of Sir John Haldane (the grandson of Dernely's opponent) who by this time had succeeded his father James. The Dernely branch of the earldom also obtained new charters of their possessions. "It appears (says Andrew Stewart) that Mathew Earl of Lennox, sensi- ble of the distinction between the destination of the lordship of Dernelij, received by grant from the Stew- ard of Scotland, in the year 1361, and the destination of the lands composing the earldom of Lennox, and the title or peerage of Earl connected with those lands, ob- tained, on the 25th January in the same year, 1511-12, a separate charter from James IV. of the earldom of Levenax, lordship and lands thereof, and the office of * Gleneagles Papers.' 80 HISTORY OF THE sheriff of the whole county of Dunbarton ; which pre- mises are declared to have belonged, and to belong at the date of the said charter, to the said Mathew Earl of Lennox, heritably. But in this charter of the earldom of Levenax, the lands are not given, as in the charter of the lordship of Dernely, to Mathew Earl of Levenax, and his heirs-male, but to Mathew Stewart Earl of Le- venax, and his heirs-general, ( " heredibus suis,") which is repeated in several parts of the charter, without any indication of a limitation to heirs-male. This destina- tion has probably been owing to the circumstance, that the ancient investitures of the earldom of Levenax had been in favour of heirs-general." Unquestionably, as we shall see, it was owing to the fact, that the basis of Dernely's assumption of the earldom was no special grant, but the charter of confirmation by King Robert III. to Earl Duncan in 1392, containing an ultimate substitu- tion of the tailzied fief to the heirs-general of that Earl. These honours brought no good fortune to the race of Earls who succeeded the usurper. That nobleman was the only one of them who died a natural death. Mathew, the second Earl, very soon after the above-mentioned renewal of his titles, died in harness. He remained firm- ly attached to James IV., and at Flodden commanded, with the Earl of Argyle, the right wing of the Scottish battle. There the daring but unlucky blood of Dernele and D'Aubigny once more stained a disastrous field; for alas, Stanley broke Lennox and Argyle, Though there the western mountaineer Rushed with bare bosom on the spear. And flung the feeble targe aside. And with both hands the broadsAvord plied — 'Twas vain ! PARTITION OF THE LENNOX. 81 Lennox, and Sir Alexander Napier of Merchiston,*(who ought to have been Lennox,) with many another noble and knightly patriot, died on Flodden field, t * Son of Archibald. f IMathew Stewart was succeeded by his son John, third Earl of that race, who was killed during the minority of James V. in the skirmish near Linlithgow, which occurred 4th September 1526. The young King hurried to the spot, but was too late to save Len- nox. He found Arran mourning over his body with these words : " The wisest man, the stoutest man, the hardiest man, that Scotland ever knew is slain this day." His son and successor was Earl Ma- thew, the father of the ill-fated consort of Queen IMary. This earl survived his son, and was killed at Stirling on the 4th of September (the day and month fatal to his father) 1571, when the earldom merged in the crown of the infant James. In the year 1572, new charters of the earldom were granted to Charles Stewart, the King's paternal uncle, and his heirs-male. He died in 1576, leaving only one daughter, the unfortunate Arabella Stewart. The earldom was then bestowed in 1578 upon Robert Stew- art, (second son of John, third Earl of that race,) who very soon re- linquished it in favour of his brother's son, the celebrated Esme, Lord of Aubigny, (whohad been reared in France,) and Robert became Earl of March instead. Esme got the earldom of Lennox in 1579, and in 1581 it was erected into a dukedom in his favour. The honours again merged in the Crown when Charles, sixth Duke of Lennox and fourth Duke of Richmond, dying without issue, King Charles II. Avas served to him as nearest collateral heir-male. This monarch then bestowed the honours of Richmond and Lennox upon his natu- ral son by a French lady, from whom the modern Dukes of Richmond and Lennox. 1" 82 HISTORY OF THE CHAPTER VIII. THAT JOHN LORD DERNELY WAS NOT EARL OF LENNOX BY VIR- TUE OF ANY SPECIAL GRANT FROM THE SOVEREIGN, OR NEW CONSTITUTION OF THE HONOURS IN HIS FAVOUR HISTO- RIANS AND OTHER WRITERS REFUTED UPON THIS POINT. No historian whatever has distinctly stated that John Lord Dernely was next heir of the earldom after the Duchess Isabella, and that he succeeded accordingly. But there is a very general, though vague and ground- less impression, that he was specially gifted by his so- vereign with the honours. This latter theory has some- times proceeded upon the supposition that the Lennox Vi2i% forfeited in the person of Earl Duncan, an idea al- ready completely refuted. Others again have held the same doctrine of a new grant, who were perfectly aware that the idea of forfeiture is out of the question. Pin- kerton says, " Lennox received his title, and the com- mand of Dunbarton Castle from the young monarch," meaning thereby from James IV. in 1488. Duncan Stewart, and Andrew Stewart, the genealogical histori- ans of the house of Stewart, both assert in positive terms, that Dernely was created Earl of Lennox by that mo- narch."^ Peerage writers concur in the same idea, which Mr Hamilton also adopts in his laborious antiquarian compilation for Woodhead. The Quarterly Review * " John Lord Dernely designed himself Earl of Lennox 1483, (1473) in right of his grandmother, daughter to Duncan Earl of Lennox ; which title he gave up, and was afterwards created Earl PARTITION OF THE LENNOX. 83 says, " We suspect there will turn out to have been some renunciation cmdregt'cmt oi the honours before the Darne- lys assumed them."* And last, though not least, Mr Rid- dell, in his recent critique upon the Memoirs of Merchis- ton, observes, "There may possibly have been a new con- stitution of the dignity in the Stewarts of Derneley, al- though not yet discovered, which the House of Lords 77^/^7^^^Jr^(t'^sage utenth oure realme in our service, as said is, and now of lait sen the hame-cumming of the said Johnne of Hal- dane he has menit him to us, that our said respect was G 98 HISTORY Ob" THE hurt and hruhen to him in its said superiorite. For the qviliilkwe caiisitthe Lords of our Counsale, togidderwith uthir baronis of our realme, to syt and aviss tharupon, the quhilks fand that our respect wes hurt and nocht kepit to the said Johnne of Haldane be the brevis pur- chest be the said John Lord Dernly anent the superio- ritie of the said erledome ; therefore we have considerit the possessione and sesing given to the said John of Haldane as principale, and the rycht of the successione perteining to the said Johnis spouss, undemandit he ony of our e lieges^ togidder with ye cause above proponit ; our will is, that the said brevis, sesingis, interess, and all uthir thingis following tharupon, purchest and op- tenit be the said Johnne Lord Dernly anent the said su- perioritie, sen the tyme of the passage of thesaid Johnne of Haldane in oure service utenth oure realme, as said is, be oinane availe, strength, force, nor effect,hefore ony jiige orjugeis, spi?'ituale or temporaJe, ?w time cumming, and that thai he anmdlitfor ever, sua that the said mat- ter sail stand in the samyn forme, force, and effect as it was the day of the passage of the said Johnne of Haldane utenth our realme in our service forsaid, hiit preju- dice to ony party in their rychtis in time to cum. Ge- vin undir oure Privy- seile at Edinburgh, the 12th day of Januareand of our regime the I6th yere. — (Signed) Scheves."* This is an important document in the Lennox case. It proves by a declaration issuing from the fountain of honour, 1. That Dernely had sat in Parliament among the Co- mites solely in virtue of his service to Earl Duncan, as he is here only styled, " Johnne Lord Dernely." * Gleneagles Papers. PARTITION OF THE I.ENNOX. 99 2. That there was no piibhc acknowledgment of Hal- dane's right, by courtesy, to the earldom of Lennox, and no express grant to that effect in his charter ^'fanquam primo et principalis either meant by the sovereign, or understood by Haldane, for he is simply styled our " fa- miliare {i. e. household) squyre," although he was infeft upon the charter said to convey the honours, and although the decree was founded upon that very charter. 3. That any claim which Haldane had put forth in name of his spouse to the superiority of the earldom was not admitted as a matter of acknowledged right, but simply in absence, no other party having appeared or been heard in the matter before he departed on his em- bassy. 4. That whatever subsidiary plea Haldane may have urged in right of his lady, his leading plea, and that too upon which the judgment mainly proceeded, was, that the royal letters of protection from all suits, &c.had been broken in the person of Haldane by Dernely's service to a special portion of the fief, a process to which Hal- dane, who was infeft in a portion, ought to have been called. 5. That the decree of reduction involves no declara- tor either of Haldane's or his lady's right to the digni- ty, but, on the contrary, expressly reserves the rights of all parties having claims ; and places that matter pre« cisely in statu qiio, as it stood when Haldane departed on his embassy as plain John Haldane. Thus the whole argument in the memorial reared up- on the terms of Haldane's charter, which is the main pillar of the modern case for Gleneagles, falls to the ground. That Agnes Menteith was elder than her sis- ter Elizabeth is assumed in the memorial, and simply from the circumstance (also assumed) that Napier did 100 HISTORY OF THE not oppose Dernely, while Haldanedid. Now it is known to every reader of history that the minority of James III., during which the proceedings relied upon were in- stituted, was a period of all others when various causes might have kept back the pretensions of an elder sister, even while a younger one attempted to protect her post- poned rights. The characteristic of those times was usurpation. James II. or his ministers, usurped the earldom of Mar. Archibald Douglas usurped the earl- dom of Moray, to the prejudice of the elder sister of his tvife. The Duke of Albany assumed the title of King of Scotland, to the prejudice of his elder brother James III. on the throne. In times of political confusion, and of many a lawless pretension, the inference is much too hasty that would attempt to deduce the paramount right of one party from the forwardness and activity of his claim, or the absence of all right in another from the silence of his pretensions. The above considerations, it is apprehended, would of themselves be sufficient to destroy the case for Gleneagles before any competent tribunal ; but, it must be conceded, without at the same time establishing any case for the representatives of Elizabeth Menteith. For they mere- ly go to prove, that the memorial does not make out the case, and that its inferences are not sound. The first view of the matter which rears a plea for Elizabeth Menteith is this, — that not only is it unsound to argue from Haldane's charter and subsequent pro- cess, that his spouse was the elder coheiress of Rnsky, but a contrary inference may be gathered from that pro- cedure, — in which case the claim for her sister Elizabeth would be negatively established. We have seen that there were certain obvious grounds PARTITION OF THE LENNOX. 101 of I'dW, totally independent of any claim to the honours, upon which Haldane, who notoriously had a better right to them than Dernehj had, could attack that nobleman's usurpations. To meet these substantial tech- nical pleas, Dernely required at once to instruct the most exalted right in the Comitatus ; and hence, in all his contention with Haldane, he endeavoured, both pub- licly and privately, to obtain either the verdict of a jury, or a decree-arbitral to this effect, that he Dernely repre- sented the eldest daughter (after Isabella) of Earl Dun- can. Haldane's pleas were indeed equally substantial in law to reduce all processes instituted in his absence, wherein he ought to have been called, even if Dernely had been well founded in his pretension. But that nobleman's absolute ?'}ght would have been too power- ful to contend with, could he have met Haldane's tech- nical plea with the fact, that he was de jure Earl of Lennox. Dernely, however, could not take ground so high ; for Haldane was prepared to urge, as a subsi- diary j^lea on the part of his own spouse, that she, and not Lord Dernely, was " come of" the elder coheiress of Len- nox, — that by inheritance her interest in the honours was certainly prior to his, who could not, therefore, urge his unquestionable right as an excuse for his irregular service. This is precisely the mode of pleading which a party in John Haldajie's situation, — having a good tech- nical plea, and a charter whose ambiguous terms gave him an interest in the Comitatus not very clearly defined, and with a usurper for his competitor, — would be likely to adopt, supposing his lady to have been the younger of two coheiresses, both having a prior right to this oppo- nent. Now it happens that the reasons of reduction which Haldane urged, chiefly in his own name, but also in that of Agnes Menteith, are yet extant among the 102 HISTORY OF THE Gleueagles pa})ers, and they fully instruct that such was his line of argument.* His leading plea is the infrac- * " My Lordsj thir ar the resonis that I^ John of Haldane of Glen- egass, and James Haldane, my son and apperand air, allegis for us ; That the personis that past upon the serving of the brieve purchest be Johonne Lord Dernely of the half Erledome of the Levenax, as the said John had cummyng of the eldest sister, that thai have ariit (erred,) wranguisly decernit, and unorderly and partially deliverit in the serving of the said brieve. " Item, in primis, It was not unknawing to the saidis personis that I, Johne of Haldane, was infefthit be charter and saysingof the quarter of the Erledom of the Levenax, the superioritie of the said erledome, with tenand and tenandry, with donacioun and presen- tatioun of chapellys and kirks, likas the saide feftment sufficientlie purportis ; the quhilk inquest has not differit thairto, ' &c. " Item, i\Iy Lordis, in the time of the serving of the saide breve, I was in my Sovrane Lordis speciall service," &c. " Item, My Lordis, I, Agnes of Menteth, spouse to the said Johne, allegis for me, that suppose my husband had not been infeft be our Soverane Lordis Hienes of the superioritie of the said erledome, that thai have erriit and partially deliverit, that said, that tlie saide Johne come of the eldest dochtir of Erie Duncan, suppose that had been a poynt of the breve, as it was nane ; for it is weill knawing to your Lordschippis and to the maist part of the realme, that I come of the eldest sister, and the said Johne of the youngest, and to that nedis nane uthir pref, for the law sais, cum notorium est non incum- bit probari." " Item, My Lordis, it is weill knawing to your Lordschippis, that the said Johne Lord Dernely has divers tymes preferrit to me and my husband, for the superiorite of the said erledome, before the ser- ving of the said breve, and be part of them that was upon it, conten- tatioun of landis and money for the said superiorite of the erledome.'" The reasons then go on to complain that the jury was packed of Dernely's friends, relations, and dependents, and that the sheriff had not done his duty in terms of law. — Gleneagles Papers. There is no plea in these reasons which absolutely asserts that Agnes Menteith Avas the elder daughter of Sir Murdoch ; and not- withstanding Haldane's sweeping claims to the superiorities, Eliza- beth Menteith sold her right and interest in the same to Dernely. PARTITION OF THE LENNOX. 103 tion of the royal letters of protection. His leading proof , with regard to his interest and rights in the Coniitatns, is his o\Y\\ special charter iaiiqiiam jwimo et prhicipaU. His utmost demand is certain superiorities which he argued those expressions inferred a grant of. Then as a secondary plea, to meet and neutralize Dernely's un- blushing pretension of primogeniture, Agnes Menteith is made to urge, — not expressly that she was Countess of Lennox, as representing Earl Duncan's eldest co- heiress, — but, more vaguely, that, independently of Haldane's interest on his own charter, the jury who served Lord Dernely had erred in saying he was come o/*the elder daughter of Earl Duncan, it being notorious that Haldane's spouse was come o/'the elder daughter. But had that gentleman been married to the eldest coheiress of Rusky, then, since he determined to com- pete with the powerful Dernely, and to put forth his wife's pretensions at all, his mode of pleading would have been reversed. His leading plea would have been the right of his lady to the earldom. His subsidiary plea would have been upon his own right of courtesy, and upon his own charter as an acknowledgment of that right. As for the contentations, which, it is said, Dernely offered at various times to Haldane, and the stress laid in the memorial upon the contract of excamhion which silenced his opposition, that plea is neutralised by the fact, that Elizabeth Menteith in like manner received a compensation for all her rights of superiority in the fief, in that contract of excambion from which the very same inferential argument can be extracted in her fa- The fact is, as will be proved in a subsequent chapter, that Haldane was inclined upon every occasion to treat the rights of his wife's sis- ter as if no such person existed. 104- HISTORY OF THE vour that is said to arise to Gleneagles from Dernely's contract with Haldane. It is remarkable that, after the reduction of his ser- vice and infeftment in 1475, Dernely never attempted to renew it. He never afterwards submitted his plea of consanguinity in the usual form to an inquest, nor did he take out any pleadable brief to get the better of that counter plea of possession of the superiorities which Hal- dane urged against him. He endeavoured to obtain a set- tlement of the matter by a private submission to certain noblemen, most of whom were his own particular friends, and the question to be submitted to them was, " anent the debatis of the superiorite of the Erledome of Leve- nax, which debatis dependis upon the ages of umquhile Elizabeth and Margaret, the dochteris lauchful of um- quhile Duncan Earl of Levenax ; that is to say, whether the said Elizabeth, grandame to the said Johne Lord Dernely, or Margaret, grandam to the said Agnes, was elder and first borne of their modir." A submission to this effect was entered into between Dernely and Glen- eagles, without any mention of the correlative rights of Merchiston, on the 21st June 1477. This was continu- ed of consent of parties to the 21st of January follow- ing, and again continued to the 15th of February.* This submission fell to the ground without any decision or result. Another private arrangement to the same effect between Dernely and Gleneagles was equally in- consequential, though an award of a very extraordinary nature is said to have been pronounced upon it in 1491, as will be more particularly noticed in considering Der- nely's claim of primogeniture. The whole result, how- ever, of this contention, was the contract of excambion * Gleneagles Papers. PARTITION OF THE LENNOX. 105 ill 1493, by which the Gleneagies branch of the succes- sion just ranks in the settlement pari ^xissu with Mer- chiston. It is an entire mistake, then, to suppose that the state of the process we have considered establishes the fact of the primogeniture of Agnes Menteith over Elizabeth. On the contrary, the details of it rather afford an in- ference that Haldane was unable to take ground so high. 106 HiisTOllY OF THE CHAPTER X. THAT JOHN LORD DERNELY HAD NO OTHER RIGHT TO THE HO- NOURS OF LENNOX THAN WHAT HE OBTAINED THROUGH THE CONTRACTS OF EXCAMBION LEGAL EFFECT OF THOSE CON- 'IRACTS. There was nothing, even in the state of the times, to defeat Lord Dernely's assumption of the dignity of Len- nox, — inheriting as he did a double portion of the fief, and being ah'eady a peer of Parliament, — had he really been the representative of Earl Duncan's second daugh- ter. The law, on the subject of female succession to titles of honour, was well understood, and, however apt to be disregarded by the powerful to the prejudice of a weaker party, where might and right were combined no one could pretend to dispute it. Nor was it indiffer- ence on the part of Dernely that delayed his aggran- dizement. He thirsted for the Earldom of Lennox, and left no means untried to acquire it. Yet, after his ser- vice was exposed and destroyed by the technical pleas of a private party, who made no attempt to assume the title, Dernely suffered it to remain in abeyance for thir- teen years. Had he not been conscious of an inferior right, he would have obtained new brieves, — he would have disregarded John Haldane's charter of a quarter of the fief, though granted to him tanquam primo et jwincijmli, — he would have dared him to a competition with the rightful and powerful heir of the dignity, — and he would have asserted, and i)roved in tlie face of his PARTITION OF THE LENNOX. 10? country and his peers, his riglit to sit in Parharaent as Earl of Lennox. The difficulty of proving whether Margaret or Eliza- beth of Lennox was the elder of Earl Duncan's daugh- ters, can never be urged as explanatory of this abeyance of the title. The fact was of course a matter of noto- riety. To adopt the words which Agnes Menteith is made to urge as a subsidiary plea against Dernely's ser- vice," They have erred and partially delivered, that said that the said John (Lord Dernely) come of the eldest daughter of Earl Duncan, for it is well known to your Liordsliips, and to the most part of the realm, that I come of the eldest sister, and the said John of the young- est, and that needs no other proof, for the law says cum notorium est non incumbit prohariT The question was the relative ages of the respective grandmothers of the parties, — coheiresses of the Lennox, — ladies ^vhose patri- monial rights were too important and extensive to have left that question of primogeniture doubtful, far less in- extricable. Besides, Dernely himself was married in 1438, certainly more than twenty years before the death of the Duchess Isabella ; his father Sir Alan was killed in 1439 ; thus for many years, the old Countess of Len- nox must have regarded Dernely as the heir of the earl- dom, had he been the son and heir of her next oldest sis- ter. If such had been his status, it could not have fail- ed to be matter of notoriety to the whole realm, consider- ing how distinguished, warlike, and aspiring that race of Stewart had become. In the memorial for Gleneagles a document is quoted, as being among the family papers, which of itself would be sufficient to prove that Dernely was not by right of primogeniture Earl of Lennox. Not having seen the 108 HlSTOllY OF THE original, I shall quote the reference to it in the words of Lord Loughborough. " There is likewise produced, a copy of the decision, given by Lord Lyle and Lord Oliphant, in 1491, upon the subject ; the determination of which the parties had finally submitted to them, with six other noblemen and gentlemen mutually named, who were joined with them as counsellors and amicable compositors. This deed is dated at Stirling in September 1491, — sets forth the names of the parties, and their claims, and the names of the arbiters, and that they had fully agreed and con- corded, that the said Sir John, and James Haldane, be- tween and the 10th of October then next, should give up to Lord Darnly their quarter of the property of the said earldom, excepting the particular lands therein named ; so that Lord Darnly would have right to three quarters of the earldom ; excepting what they thus re- served to themselves, and on the other hand, that Lord Darnly should, between and the said 10th of October next, resign and give up to the said James Haldane, all the right of the superiority andtenandry of the said earl- dom. The deed is subscribed by the arbiters and their counsel, and the parties, who, it is therein said, had, of their own free will agreed thereto, and sworn faithfully to observe and keep the same." This was a most extraordinary decision, when all the proceedings and pleas of parties are considered. It is dated more than a twelvemonth after Lord Dernely had purchased from Elizabeth Menteth all her right to the superiorities and freedoms of the earldom ; and about eighteen months before Haldane raised his last sum- mons of reduction and damages against Dernely's ser- vice and its abettors ; and about two years before he gave up all his rights of superiority in the Leimox to that PARTITION OF THE LENNOX. 109 nobleman, precisely as Elizabeth Menteth had done. Assuming the accuracy of the Gleneagles memorial, it certainly affords a powerful argument that Lord Der- nely was not by right of blood Earl of Lennox. Lords Lyle and Oliphant were his particular friends. Lyle had even been his companion in the revolt for which Dernely incurred a temporary forfeiture in 1488. At the very period when this decree arbitral is said to have been given Dernely sat in Parliatnent as Earl of Lennox. If also dejure Earl, is it conceivable, that, after all the un- easiness which he had suffered in his possession of the ho- nours — after the vexations litigiosity of John Haldane, kept up for about twenty years — after his own recent for- feiture and restoration, and having the fief now open to him, and unburdened by Lord Avandale's liferent, — his most intimate friends, the matter being in their own hands, would, instead of clearing his just right to the earldom, and silencing opposition for ever, have pro- nounced a decision which only rendered confusion worse confounded. Perhaps the real spirit of the decree-arbi- tral was, that Lord Dernely should iise his own discre- tion as to the assumption of the title of Earl of Lennox, — that Haldane should deliver up to Dernely his, Hal- dane's, quarter of the Comitatus, with the reservation of so much land as might suffice for the estate of a private gentleman, but that Haldane was to have " all the right of the superiority and tenandry of the said earldom^ if, under such circumstances, he coidd make the grant available. Had Lord Dernely been heir of the dignity which the old Countess kept up in her own person with i)unctilious ceremony, he must have been frequently consulted upon such feudal occasions, and could have produced evidence of the fact. Supi)ose that at this moment a charter of 110 HISTORY or THE Duchess Isabella were produced, whose preamble bore the consent and assent of John Stewart of Dernely, or of Sir Alan his father, or of Elizabeth of Levenax his grandmother, then, notwithstanding the strong evidence of usurpation already displayed, it would be hopeless in the face of such a charter to contend for the right of any other branch than that of Dernely to the earldom of Len- nox. Taking such consent of a third party to a feudal grant is so certain an indication of that individual being acknowledged to have Xh^nextintei^est'wi the particular fief, as not to be susceptible of any other explanation. If a single proof were extant that Isabella of Levenax, ever in this manner acknowledged her sister Elhaheth as standing next to herself in the highest rights and in- terests of the Comitatus, then, though the whole conduct of John Lord Dernely would be totally inexplicable, yet his pretensions would scarcely be redargued by any thing that has been stated. There is, however, not one ex- ample of the kind to be found in his favour, though he was a married man in 1438, more than twenty years be- fore the old Countess died. If, on the other hand, it can be shown, that Isabella in any of her charters, took the consent of her sister Mai'- garet, and not Elizabeth, we apprehend that this inde- pendent piece of evidence — of a nature successfully to have metalltheproofsalreadyalluded to against Dernely, had the plea of that nobleman been so supported — must have an irresistible effect when corroborative of all that has been stated against it. Now such an original char- ter has been already referred to, and sets at rest this branch of our inquiry. It is that charter of mortification of the lands of Bal- lagane in the Lennox, granted by the Duchess Isabella to the Predicant friars of Glasgow for the repose of the PARTITION OF THE LENNOX. Ill souls of her kindred. It was most necessary in a^'grant of mortification, that the consent of the next heir should be taken, for the church was exemj)t frora_^feudal dues and services.* Accordingly the charter in question runs in the name of the Duchess, but " cum consensu et as- sensu dilectissime soi'oris nostre germcme Mahgarete uxoris quondam Domini de Rusky, dedisse et caritatis intuitu concessisse,'' &f. and it concludes, " In cujus rei testimonium sigiUum nostrum una cum sigillo dilec- tissime sororis nostre supra dicte pi'esentibus sunt ap- pensa^ &c.t It is difficult to conjecture a reply to the evidence of primogeniture which this consent affords. No one ac- quainted with the feudal customs will say that Margaret and Elizabeth, being to succeed as coparceners after the death of Isabella, and having an equal interest in the fief, it was immaterial which of their consents was ob- tained. The great object of taking the consent of the next heir, as is well known to every feudist, was, that the next successor to the command of the fief might not be compromised in his feudal interests and dignity. It was not a mere pecuniary consideration in reference to the dominium utile of those coming after the granter, — (in which view both Margaret and Elizabeth should have adhibited consent, instead o^ either being sufficient) it was a feudal practice, having reference to the head of the house, and the power and dignity of the fief. There are instances where the consent of more than one person * " In lands mortified in times of Popery to the clmrcli, wliether granted to prelates for tliebehoof of tlie cliurcli, or in pitram ch-cmosy- nam, the only services prestable by the vassal were prayers^ and sing- ing of masses for the souls of the deceased, which approaches nearer to blanch-holding than ward." — Erx/iinc. t See .supra, pp. 18, 19. 112 HISTORY OF THE is taken, as in that charter where Earl Duncan takes the consent of his daughter Isabella, and her husband, and their son and heir, Walter Stewart * But these were all as heads of the house, and heirs of its highest privileges. That heirs-female, succeeding to a barony or Comi- tatus, divided the lands, while the eldest succeeded to all the honours, including the caput haronicB, as impar- tible rights, is indisputable law.t Her right to be consult- ed and to adhibit her consent to a deed of mortification, where such grant was contemplated by the lord in pos- session, was precisely of the same impartihle nature as the right to possess the chief messuage ; and where a barony was to descend to coheiresses a fortiori the con- sent of the eldest to such a grant would be required, for she could less afford to have her fief diminished in its feudal dues and services, as it was to be lightened in her person of half the lands. There is no disguising the fact, that the coheiresses of Rusky and their heirs admitted the right and title of Lord Dernely as Earl of Lennox, after the date of their contracts of excambion. That they did so under an im- pression of the purely territorial nature of such digni- ties is scarcely to be doubted. Lord Mansfield to be sure expressed this opinion in his judgment on the * Supra, p. 35, note. See also for other examples, supra, pp. 2, 29, 73. It is needless to multiply instances of a practice perfectly under- stood by every one at all conversant with ancient Scottish deeds. + Stair, 3, 5, 11. Erskine, 3, 8, 13. Fordun, lib. ii. c. 5. Lord Mansfield recognized the law in these words : " In England, whenever a peerage went to coheiresses it was in abeyance, and op- tional for the Crown to revive it. I take by analogy in such a case it went, in Scotland, to the eldest female." — Speech in the Suther- land Case, MS. Advocates' JJhrari/. PARTITION OF THE I,ENNOX. 118 Sutherland case, — "With all due deference to the author of the case, (Lord Hailes) I am now satisfied there is no foundation for his territorial principle. It certainly does not now exist, and no man living can say when it did. It clearly must have ceased before 1214, when lands came in commercio, and adjudication went against them,"* — but it was more than two centuries after the date assigned by that great chancellor, as the period when territorial honours ceased, that John Lord Der- nely, and his son Mathew Stewart, both at the same time styled themselves Earl of Lennox, clearly because one wasy^^r and the other I'lferenter of the Comitatus. This peculiarity can be explained only by admitting the ter- ritorial principle, and, indeed, the example finds its pro- totype in an age when even Lord Mansfield admitted that dignities were purely territorial. Sometime in the twelfth century there existed together, Alwin Earl of Lennox senior^ and Alwin Earl of Lennox Junior, fa- ther and son.f But while it is obvious that it was to the territorial feeling of the times that the coheiresses of Rusky ul- timately conceded their rights, the question remains, whether they legally divested themselves and their de- scendants for ever of all right and title to these honours? Certainly there never was a case in which that ancient and now obsolete principle appears so naked and mea- ger in operating as a conveyance of such a dignity. It is not that the whole lands of the Comitatus of Lennox changed hands, accompanied by its territorial privile- ges. The lands were divided, and the respective por- tions retained, and held of the Crown by all the coheir- esses. But one of these heirs purchased from the other * MS. Advocates' Library. t See supra, p. 2. 11 114 HISTORY OF THE two, in very general terras, all their interest in the great superiority and patronages of the fief, without any more express reference to the dignity. Then this transaction did not pass through the sovereign, as was the practice even in such territorial transferences. It did not pro- ceed upon a resignation into the hands of the Crown, followed by a re-grant to the purchaser. Dernely, hav- ing resumed the dignity upon a basis that had been ju- dicially declared illegal by King and council, bargained for the rights of superiority, belonging to the other co- heirs, piecemeal and at long intervals, and then resigned that which was not feudally in his own person, into the hands of his sovereign for new charters. Now, although Lord Mansfield may have been wrong in his antiqua- rian views and historical opinion, most unquestionably the House of Lords, under his distinguished direction, have ruled, that circumstances far less equivocal than the species Jacti of the Lennox case for Dernely, cannot be listened to as founding an argument for the trans- ference of a peerage, even in ancient times. Upon the death of William Earl of Sutherland in 1766, a contention arose for the dignity. 1. A claim was instituted, by the guardians of his only and infant daughter Elizabeth, for her as heir-ge- neral of the earldom. 2. Sir Robert Gordon of Gordonstoun, Bart, claim- ed as lineal heir-male of Adam Gordon, who he alleged was created Earl of Sutherland about the year 1517, in consequence of his marriage with Elizabeth, sister of John Earl of Sutherland, who died in 1514 without heirs of his body. 3. George Sutherland, Esq. of Forse, claimed as line- al heir-male of the earldom. PARTITION OF THE LENNOX. 115 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 writ- ings and deeds of the family as have escaped the inju- ries 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 earl- dom of Sutherland excluded females, and they claimed the benefit of a 'presumptio juris to that effect, in the ab- sence 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 triumph- ant reply for the infant. Elizabeth, the sister and heir- ess of John Earl of Sutherland, in 1514, and whose spouse, Adam Gordon, was alleged to have been creat- ed Earl of Sutherland, was in reality Countess of Su- therland in her own right, as heiress of her father, and the creation in favour of Adam Gordon, with its sup- posed 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 in- formed 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 celebrat- ed 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 * Lord Hailes. 116 HISTORY OF THE examples in support of the propositions that, female suc- cession 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 prin- ciple, 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 in- ferred as a necessary consequence, that such was the original limitation of the dignity ; and thus he destroyed the presumptio juris of his antagonists. Lord Mans- field, 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 judg- ment 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 Suther- land, 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 man- ner through the medium of the sovereign. They were * " 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 JMarch 1771- t See supra, p. 113. t MS. Advocates' Library. PARTITION OF THE LENNOX. 117 charters conveying, in the natural line of succession, totum et integrum Comitatum de Sutherland, 8^c. cum pertinentibus, and always proceeding upon a resignation into the hands of the Crov^n, 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 ap- plication to the dignity. 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 per- tinentiltus, including every right of superiority and pa- tronage belonging to it, in order to vest the same in Der- nely, the House of Lords have declared, that such a transaction must be held to have operated as a convey- ance of the estate only, without afiecting the title, ho- nour, and dignity of Earl of Lennox. But no such feu- dal 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 under- standing 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 excamhion 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 un- der the direction of a chancellor so eminent as Lord Mans- field, * — rears the question, of the relative ages of Eliza- * "Purvis co7iiponere}nagna, Mr Riddell's work entitled " Remarks upon Scotch Peerage Law," (the nucleus of which curious and valu- 118 HISTORY OF THE beth and Agnes Menteith, into one of great consequence in the Lennox case. For if the charters of excambion, which Lord Dernelv elicited from those coheiresses in order to fortify his predetermined usurpation, be pro- nounced 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 heirs- general 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 represen- tatives of Earl Duncan's elder coheiress cannot raise a question, being proved, respectively, by the original re- able 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 treat- ment 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 Jejmie sentiment, that a great mathemati- cian 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 JaAvyer, — and Napier not a senius ! PARTITION OF THE LENNOX. 119 tours of their representation and lineage, from Earl Dun- can down to the present day. The lavy oVprescription 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 Scot- land 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 tlie coheir- esses of Margaret of Lennox, — was it Elizabeth of Mer- chiston, or Agnes of Gleneagles ? The consideration, that this question is the chief ob- stacle to the revival of the ancient earldom of Lennox in the present day, is that to which, probably, maybe at- tributed the expressions used by Mr Riddell when illus- trating his recent discovery for Gleneagles. Pointing to that new proof he says, " If admitted to be unexcep- tionable the consequences may he great in reference to the claim to the earldom of LeLuox." 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 eluci- dated, 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 su- pra, p. 43. Even had it been 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. — l^ig' nities, p. 169. As for the exemption of peerages from prescription, see the cases collected and illustrated by iMr Riddell in his lieinarks upon Scotch Peerage Law, p. 120, &c. t Tracts, p. 109. 120 HISTORY OF THE CHAPTER XI. PROOF THAT ELIZABETH MENTEITH WAS ELDER THAN AGNES REPLY TO MR RIDDELl's DISCOVERY FOR GLENEAGLES MES- SUAGIUM ET MANEKIUM. When a feudal vassal died, his heir, after attaining the age at which it was competent for hira to enter the fee, was bound to pay to his superior a certain sum, call- ed relief' duty, as the feudal price of the renewal of the investiture in his favour. The Rusky estates in the Menteith, of which Elizabeth and Agnes Menteith were also coheiresses, were held of the Crown per wardam et relevkim. Consequently the above casualty fell to the Crown when these young ladies, who succeeded to their brother Patrick, made up titles and relieved their lands out of the hands of their sovereign ; and the keeper of the royal accounts had to debit himself in favour of the Crown whenever the royal precept of seisin issued. Some of the Great Chamberlain Rolls, of an ancient date, containing such items, are still extant in the Register- House, Edinburgh, and afford many curious and valu- able adminicles of domestic liistory. In the compotum, or account, rendered at Edinburgh 21st October 1456, by William Murray of Gask, Sheriff of the county of Perth, of his receipts of royal dues and casualties from the 26tli July 1454, down to the date of rendering the account, the following items occur : " Et de xxxij''. ij*' j ' de relevio med'ietatis terra- rum de Thorn et La7iarhy, ac de Hoft.'iki/y Regi dehito PARTITION OF THE LENNOX. 121 per saisiJiam clatam Elizabeth de Menteth de eis- dem. Et de xxxij^'* ij^' j'*' de relemo alterius medie- tatis dictarum terrarum^ regi dehifoper saisinam datam Agneti de Menteth, sorori dicte Elizabeth de eisdem.'''"^ This record certainly affords the strongest grounds for presuming that Elizabeth was the elder of the two young ladies here mentioned, who, it must be ob- served, were among the most considerable coheiresses in Scotland. The important privileges attaching to the birth-right of the elder, and which rendered so con- sequential the fact of primogeniture, seems to exclude the reply that this relative position of their names, — in a public record which had special reference to their heritable succession and feudal services, — is an acciden- tal occurrence, affording no argument of seniority in favour of Elizabeth. It must also be observed, that there is something more than the fact of the names oc- curring in simple sequence. There is a particular re- gister of a feudal circumstance separately applicable to each of these young ladies ; and the one named last in the record is designed sister of the former, thus indicat- * " And the sum of xxxij''. ij'. j'^. for the relief of half the lands of Thorn and Lanarky and of Rousky, due to the King for seisin given to ElizaOclh of Menteth in the same, and the sum of L. 32, 2s. Id. for the relief of the otlier half of the said lands, due to the King for seisin given to Agnes of Menteth, sister of the said Eliza- beth in the same." From the same account it appears that these sums were made over by the King to Alexander Napier, who was comptroller of the household, and the father-in-lawof Elizabeth Men- teith. I can discover no further light on the subject from these ori- ginal records, which at various times I have minutely examined with that view. Mr Riddell, who is very accurate in these matters, says in his Tracts, that the account runs between the dates 26th July 1454 and the 1st of October 145G. I read the latter date, however, lucesimo primo die viensis Oclohris, 1456. The difference is unim- portant. 122 HISTORY OF THE ing more particularly the leading position of Elizabeth, a minuteness scarcely consistent with the idea of care- less or inaccurate arrangement. This independent, and most authentic, evidence affords an argument of primo- geniture much stronger than that deduced for Glen- eagles from the litigious activity of the husband of Ag- nes Menteith, in his proceedings against Dernely, and to which we find, upon a close inspection, that more than due weight has hitherto been given. It has been already stated that this evidence was first detected by Mr Riddell, more than twenty years ago. In his recent publication, however, that learned gentle- man, after taking full credit to himself for the discovery, suddenly produces a new piece of evidence in favour of Gleneagles, subsequently discovered, but at what period he does not say. But, with great submission, he has missed the point of his own discovery. Intending, as he so oddly terms it, " to render justice to the heir-general of Gleneagles," he produces what would not be received as evidence, of the particular point for that family, be- fore any tribunal, while at the same time it affords un- exceptionable evidence, for the family of Merchiston, of a fact very material to their case. The discovery in question consists of two entries con- tained in an old and very confused volume of Acts of Council and Session. Mr Riddell has noticed these entries in a different order from that in which they occur in the book. I take the liberty, however, to follow the record. There appears, classed under the date 29th July 1562, (more than a hundred years after the succession of the young ladies of Menteith) an act of transference, which runs thus : PARTITION OF THE LENNOX. 123 " Traiisferris the contract and appunctment and de- creit of the Lordis of Counsell interponit thairto for the tyme, berand and contenand as follovvis : At Edinburge 2d Angust 1485, &c. in presens of the Lordis of Coun- sale underwritten," &c. " It is apunctit and finale endit betwix Jhone of Halden of Glennegas for himself, and James Halden his sone and appearand air, on that ane part, and Jhone Naper and Elezabeth his spouse on the uther part, anent the devisioun, depertesing, and deling of the landis of Ruske and Lanerk, lying in the steurtie of Menteth and sheriffdom of Perth, perteining to the saids perteis as portioners of the samyn, in manner and forme as efter followis, that is to say, the said Johne Halden consenfi% grcmtis, and admiftis, that the saidis Jhone Naper sail depert, devoid, and deile the saidis landis above-written this icise : In the first, that the said Jhone Halden and James his sone, as eldest por- tioneris, sail tak for the first chimmeis of Ruske, the place wytin the loche of Ruske, and for the place of the landis of Lanerk, the place and "****** Here this fragment abruptly terminates, why or where- fore, no man alive, — nay, not even the author of the Tracts, — can tell. Had thematter remained in this state, it might have been supposed that the abrupt conclusion was simply in consequence of part of the record having been lost, for it breaks off at the end of a page, and the paging of the volume is comparatively modern. But some pages further on in the same volume, there aj)pears a subsequent entry, which Mr Riddell i)laces foremost, as his leading proof. It is another act of transference between the same parties, and of the very same contract, but this time tlie form is a little different. " Transferris, wyt consent of the jiertiis procuratoris under-written, ane contract (dlegit maid in presens of 1^4 HISTORY OF THE the Lordis of Consale for the tyme," &c. then follows the words of the previous entry, which, however, it brings to a conclusion thus, " That the said Jhone Na- per suld depert, devis, and deill the foirsaidis landis in this wise, in the first, that the said umqiihile Jhone Hal- dane, and James his sone as eldest portioneris suld tak for thdY first chhnmeis of Riisky the place wytin the loche of Rusky, and for the place of the landis of La- nerik the place and biggings of Lanerk, and the said umquhile Johne Naper and Elizabeth his spous to cheise uthir twa chimmeise, quheir it plesit thanie wytin the same landis, and to tak the Borland of Rusky for ther chimmeis gif thai pleise, and farther suld devoid the for- saidis landis in twa evinlie pertis as thai best ma be de- pertit and devidit, as the said contract allegit, insert and registrat in the bukis of umquhile our soverane ladeis grandschiris consale, to have and havand the strenthe of ane decreit of the Lordis therof for the tyme, of the dait the secund day of August, the yeir of God J"'' four hundred Ixxxv. yeirs, at moir lenthe proportis. In Jhone Haldane of Glennegas, successor to the saide umquhile Jhone Halden of Glennegas, and heretabill possessor of that ane half of the forsaidis landis, wyt the pertinentis active, and in Archibald Naper of Mercham- stoune as air, at the leist successor to umquhile Johne Naper of Merchamstone, and portioner and heretabill possessor of the uther half therof, passive^ and decer- mis and ordainis sicklike lettres to be direct at the in- stance of the said Jhone Halden, against the said Archi- bald Naper of Merchamston, for compelUngofJiim to ful- fil the forsaid contract and decreet in all points, after the tenor of the saymn, as myt or suld heife bene direct at the instance of the said umquhile Jhone Halden, agains the said umquhile Jhone Napier of Merchamstone, for PARTITION OF THE LENNOX. 125 compelling of him to fulfill the foirsaid contract and de- creit, efter the forme and tenor therof, schewin and pro- ducit before the saidis Lordis. The said Jhone Halden of Glennegas compeirand be Maister Alexander Mau- chane, his procurator, and the said Archibald Naper of Merchamstone, be Master Jhone Abircrumby, his procu- rator, and that lettres be direct to the effect forsaide in forme, as effeirs." It cannot be conceded to the author of the Tracts, that by the first entry quoted, " We are thus presented -with, part of the original contract in 1485." By the fragment in question, it is not proved that such a con- tract ever existed, or at least, that John Napier and his spouse had ever become parties to it ; and the whole circumstances under which the fragment appears tend rather to the conclusion, that the existence of such a con- tract and decree in 1485 was never proved by better evidence than the allegation of the party in the year 1562. Mr Riddell himself informs us, that, " After due examination, nothing further has transpired, nor in any register or quarter ichatever, has more been detected of the original contract." The object of that process was simply and solely to transfer into the person of the laird of Gleneagles in 1562 whatever right to pursue for ful- filment of the alleged contract might have been in the person of the laird of Gleneagles in 1485. There is something peculiar, too, in the double entry. The first simply, " Transferris the contract and appunctment and decreit ;" the second only transfers, with consent of parties, " ane contract allegit maid." But it does not appear that, even in 1562, the original contract and decreit were either produced and verified, or ad- mitted. Neither can it be conceded to the author of the 7Vacts 126 HISTORY OF THE that there is any thing in this inconsequential jjrocess of transference from which it can be inferred, that the procurator acting for Merchiston admitted^ upon their part, " the fact involved in the words eldest portionaris, applied to the Haldanes." Mr Riddell seems inclined, by a cautious but somewhat distorted mode of expres- sion, to rear some such admission as an ingredient in his case for Gleneagles. The fact of primogeniture in- volved in the words of the contract, he says, " in a man- ner may he acquiesced in by Napier." But every one acquainted with the nature of this process of transfer- ence (which merely connected Haldane with his ances- tor in that matter) will at once perceive that no such inference can be drawn ; and Mr Riddell's not very in- telligible qualification, " in a manner may be," really seems to imply that learned gentleman's own suspicion that no such acquiescence was involved. It is remarkable that all the most plausible evidence in support of the primogeniture of Agnes Menteith, Haldane's lady, when viewed closely, leads to the oppo- site inference, namely, that she was younger than her sister Elizabeth. Haldane's long and pertinacious liti- gation with Dernely at first sight appears to argue that he stood forward as in the right of the leading coheiress of the earldom of Lennox. But the details, as we have shown, are irreconcilable with that theory, and substantiate nothing, unless it be this, that the par- ties contending were the second and the last of three interests, i\\e first not being in the field. In like man- ner, this new piece of evidence will bear no inspection in support of the primogeniture of Agnes Menteith, and will even be found to afford a contrary inference. So far as we obtain any view of this contract, it sim- ply provides the ordinary disposal of the messuages in PARTITION OF THE LENNOX. 127 the case of a division betvveen coheiresses. If Haklane's lady was really the eldest, there could be no question that she or her representatives were entitled to the prin- cipal messuages, nor could there have been the slightest difficulty in making good this right against Napier and his lady, Elizabeth Menteith. The proper form in such cases was to take out a brieve of division, directed to the Sheriff of the district, who impannelled a jury on the matter, and their decision was put in form " of ane rolment and decrete of the said inquest," upon which proceeded the Sheriff's precept to put the parties in pos- session. And this accordingly appears to have been the very course of procedure adopted in the case of the co- heiresses of Orchard ton, with which Mr Riddeil illus- trates his argument. What, then, was the meaning of the contract in this case, wherein John Haldane con- sents, grants, and admits, that particular mode of divi- sion which was to recognize him and his as eldest por- tioneris f If he were not eldest portioner, an abortive at- tempt to effect a contract recognizing him as such is conceivable; but upon the supposition that he was the eldest, why he urged his claim of primogeniture by way of this very unilateral-looking contract ; and, more- over, why he was so unsuccessful that all he or his de- scendants ever could make of it was another unsuccess- fid attempt, — when, nearly a century afterwards, they try to raise this alleged contract from the dead, — is ut- terly unintelligible. The strong inference against the primogeniture of Agnes Menteith afforded by the peculiarity of Haldane's pleas in his litigation witli Dernely, we find to be strik- ingly confirmed by the relative position of the young ladies' names in the Great Chamberlain Roll. Let us look then for some other independent fact to support 128 HISTORY OF THE the inference extracted, in like manner, against Glen- eagles, from the very process of transference produced in his favour. The strongest corroboration that could be demanded under the circumstances would be this, — * produce positive evidence that Ehzabeth Menteith did in point of fact possess the messuages which this alleged contract appears to claim for Gleneagles, and that her descendants continued to possess them even after the act of transference in 1562.' — Now it happens that this demand can be most amply satisfied, not only by the record of the Great Seal, but by a host of original parch- ments still preserved in the Merchiston charter-chest. From the many title-deeds of the Rusky estates in that family, it is proved beyond question that Elizabeth Men- teith obtained, along with her share of her father's ba- ronies in the Menteith, all the messuages, that her son enjoyed these hy right of inheritance, and that they de- scended by inheritance, through the lineal m.ale repre- sentatives of Ehzabeth Menteith, down to the Inventor of Logarithms and his descendants, long after the date of the act of transference of the alleged contract. Nay more, to render this evidence complete^ it can be proved from the contemporary titles of the Gleneagles share, that Agnes Menteith did not succeed to any messuages. This important fact the author of the Tracts was him- self the first to observe in the public records ; and it is difficult to understand how he could, under these circum- stances, for a moment entertain the idea that any " great consequences, in reference to the claim to the earldom of Lennox," could result from his new evidence. In- deed it is clear, upon an attentive perusal of his argu- ment, that the learned gentleman has, after all, institut- ed a stronger pleading for Merchiston than for Glen- eagles, and, with every anxiety in this publication to turn PARTITION OF THE LENNOX. 129 the scale in favour of the latter, from whom he hints that justice has been withheld, the grand result of his discovery, and summing up of the evidence, is " a kind qfpumle that is 'perplexing''^ Before proceeding to illustrate the valuable evidence for Merchiston derived from the charters of Rusky, I shall throw some further light upon the conduct of Glen- eagles in reference to this succession, from which it will appear that, even supposing that the contract of 1485, mentioned in the process of transference 1562, ever ex- isted, which, however, is not proved, there can be no stress whatever laid upon the circumstance that John Haldane claimed the rights of the eldest coheiress of Rusky. If that gentleman actually maintained such a preten- sion, it would be nothing remarkable to find that he had done so in the face of the utmost notoriety that Merchis- ton's lady was the elder of the two sisters. He was at the very time learning a lesson of the kind from Dernely, and there is abundant evidence that Haldane was in like manner j)ursuing a violent course of usurpation against John Napier and Elizabeth Menteith, and that nothing is more likely than that he should have framed, and attempted to induce that branch of the succession to adopt, some arrangement prejudicial to their just rights. 1. Among the Merchiston papers I find the following document under the privy-seal and sign-manual of James III. • Tracts, p. 101). 130 HISTORY OF THE " James, be the grace of God, King of Scottis, till our Stewarte of Menteth and his deputis greting ; Forsa- mekle as it is lievily meiilt and compIen%eit til us be our lovettis, Johnne Naper of Mercharastoune ande Jonete lady Edmondestoune his sister, that quhar be vertew of our lettres direct to you ofhefo?\ ye enterit thaim and thar tennendis and gudis in a berne and byr perteining to thaim, oute of the quhilkis Johnne of Haldane of Glen- egas and James Haldane his sone, with thar complicis, hadqfbefo}\ ic'ith Jbrce and violence, at thar awin liandis castande furth the corne and oxin pertening to the said Johnne Napar and Jonete, and syne withheld and occu- piit the saidis berne and byr ; nevertheles the sadis Johnne of Haldane and James, and thar complices, noiv again has cummyn to the samyn, and masterfully has tain and occupiis thaim, and has of new castin furth thar gudis, corne and catall, but ony resoune, as is al- legit, in great lichthjing, contempt, and dissoheying of our autorite, lettres, mandmentis, and charges. Our will isherfor, and we charge you straitly, and comman- dis you xit as ofhefor that ye incontinent, efter the sicht of thir our lettres, enter the said Johnne Napar and Jo- nete, thar tennandis and gudis, againe to the said berne and byre ; and that ye keip, mainteine, supple, and de- fende thaim therin, unvexit and undistrublit be the sadis persounis, and al utheris thar comiolices perteining to thaim, under the pain of deprivatioune ofyoufra your office, and al uther panys and chargis that efter may folow ; and that ye suffir thaim nocht to be distrublit unto the decision of the action of summondis betwix the sadis partiis befor us and the lordis of our consale, under the pain forsaid. Delivering our lettres, be you dewly execute and indorsit, again to the berar. Gevin PARTITION OF THE LENNOX. 131 under our Signet at Edinburgh the first day of October and of our Regne the xxii zere. Per S. D. N. Regis. This is evidence of very violent and illegal conduct, repeated against the King's authority, and in usurpa- tion of the lavv^ful possession of John Napier and his sister ; and it occurs in the year 1482, just three years prior to the alleged contract in 1485 ex facie of which there appears so much assumption on the part of Sir John Haldane of Gleneaffles. 2. But there is also among the Merchiston papers a long Latin protest, dated only a few months after the alleged contract, and in reference to the very subject of the division of the Rusky estates and the appropriation of the principal messuages, which places beyond ques- tion the fact of Haldane's inclination, and earnest en- deavour to deal unjustly and illegally by the correlative rights of Merchiston. This original instrument narrates, that upon the 4th of October 1485, Elizabeth Menteith personally, and John Napier, chaplain, as procurator for her husband John Nai)ier of Merchamstoun, appeared at the Down in Menteith, and there in presence of William Edmon- stone of Duntreath, sheriff of Menteith, and various other witnesses, specially called for the purpose, pro- 132 HISTOKY OF THE tested under the following circumstances, and for the following reasons. It was then and there publicly de- clared by the parties protesting, that " certain procura- torial letters produced by Robert Cunygam, procurator for John Haldane of Glenegas, for the division of the lands of Rusky and Lanerky, and the appropriation of the principal messuages of the said lands,* were of no avail, invalid, and in themselves null and void. First reason. There was no mention whatever made, in these procuratorial letters, of James Haldane, neither was there any compearance made for him, personally or by procuratory, for entering into or concluding the said pro- cess of division of the said lands, though he was in the fee of the said lands, and heir of the same, and that no division could be legitimately effected or entertained without his presence or procuratorial authority. Se- cond reason. John Haldane's own procuratorial letters were by no means in accordance with the legal form and tenor requisite, in so far as the said John Haldane con- ferred upon his procurator, Robert Cunygam, the power of taking possession of and receiving in his name the principal mansions, that is to say, the messuages of Rus- ky and Lanerky, without making the slightest mention of delivering, viewing, or measuring the said princi- pal mansions or messuages, in behalf of the said John Napier and Elizabeth his spouse.f Third reason. The * " Tro div'isione ierrarum de Rusky et Lanerhj, ac le chemeses capcione earund." t " Eo quod polesiaiem sepedicttts Johannes Hmidane dido Ro- berto sno procuralori dedil el exhibuit capiendi el recipiendi suo no- mine mansiones principales le chemeses de Rnsky et Laverh/, et ad dand. vidend. seu ynensurand. mansiones principales le chemeses ifi dictis ten is de Rnsky et Lanerky pro dictis Johanne Naper, et Eliza- hetht ejus sponsa, niinime mencionemjecit.^' PARTITION OF THE J.ENNOX. 133 said letters of procuratory contained no particular date of indurance, as by law they ought, and the said John Haldane of himself conferred power upon the said Ro- bert, of taking possession of, but not of delivering on his part, the divisions of the lands themselves, and of the principal mansions, and this the said John Haldane conferred in his procuratorial letters, singly and sepa- rately, without any mention whatever of James Hal- dane ; and that the said John was not in the fee, nor had any right of inheritance in the said lands of Rusky and Lanerky ; and further, the said Elizabeth Menteith having demanded a copy, at her own expence, of John Haldane's procuratorial letters, the said Robert Cuny- gam publicly refused to give her a copy." For all these reasons, Elizabeth Menteith in her own name, and the chaplain in name of her husband, "protest- ed that they were ready and willing to act upon, take out, fulfil, and record a decree and ordination of the ■ Lords of Council, in terms of an award, accordingas they should be fortified before-hand by the preliminary secu- rity of an honourable man William Edmonstone of Den- treath, and sheriff of Menteith, by his letters-patent."* They further protested '* that the said procuratory for division of the lands of Rusky and Lanerky, and the taking possession of the principal mansions, was null by default of the said John Haldane and James his son, and not of John Napier and Elizabeth ; and, therefore, they protested for remede of law, and for other reasons re- garding the said procuratorial letters as would more fully appear before the competent judge," &c. * " ProutpremuniliJ'ucrintprcmunicionc honorublis viri f'Uielnii Edinonstoun de Dunlrcalh ac seiieicalii da Menlclh per suas literas patcnles." 134 HISTORY OF THE This is a curious and important document in refer- ence to the fragment of an alleged contract, so imposing- ly illustrated by Mr Riddell for the purpose of doing justice to the house of Gleneagles. If upon the 2d of Auffust 1485 a contract ivas concluded between the Haldanes and the Napiers, in vvhich the former were ad- mitted to be the elder portioners, and entitled to the "first chimmeis of Rusky, the place within the loche of Rusky, and for the place of the landis of Lanerik the place and bigging of Lanerik," while the latter were to have inferior dwellings ; — if this contract was actually (as the act of transference in 1562 says was allegit,) "insert and registrat in the bukis of consale to have and havand the strength of ane decreit of the Lords thereof," — if, in short, all went so smoothly for Gleneagles " as eldest portioner," how comes it that before the 4th of October 1485, he had been attempting to divide the lands and appropriate the messuages in the extraordinary and ille- gal manner, against which John Napier and Elizabeth Menteith of that date successfully protested ? Is it pos- sible that at the very time when, as alleged, this contract, which bears " that the said John Haldaneconsent'is^gran- tis, and admittis that the said Johne Naper, sail depert, devoid, and deile the saidis landis this wise,''' &c. had obtained the consent of parties and the force of a decree, the same John Haldane should have been attempting another process of a totally different description, and so illegal as to have no chance of success against any party not inclined to yield their rights without a murmur. Up- on the assumption that such a contract was actually fram- ed of the date alleged in the act of transference, it can be reconciled with the narrative of the above protest, only upon the supposition that it was an ahortive attempt on PARTITION OF THE LENNOX. 135 the part of Haldane to usurp the patrimonial rights of the eldest coheiress. There is not a shadow of evidence produced, that either John Napier or Elizabeth Men- teith were parties to that contract, or that it ever be- came matter of judicial record ; while, on the other hand, this original instrument of protest is proof positive that the contract in question was not even attempted to be put into effect by Haldane himself. The act of trans- ference in 1562 must, under all the circumstances, have been a ridiculous and useless process, for, independently of the lapse of nearly a century, during which period the portion of the eldest coheiress had confessedly been possessed by Merchiston, here is evidence that Hal- dane himself was, in 1485, met by a protest for attempt- ing to effect a division of the Rusky estates upon an il- legal footing. What can be gathered from all this, except that while, on the one hand, John Napier and Elizabeth Menteith were, in terms of their protest, ready and wil- ling to meet Haldane in a proper legal arrangement of their correlative rights, under the sanction of the Lords of Council, and the Stewart of Menteith, Haldane, on the other hand, was struggling by means of contracts of his own wording, and illegal letters of procuratory, to usurp the rights of others, in which, however, it is plain he was not successful. 3. The above protest, and other documents to which attention has been called, are not the only evidence of the disposition of Gleneagles to usurp the rights of the other coheiress. It appears from the Merchiston papers tliat when, in the year 1490, Elizabeth Menteith obtained an instrument of division, allotting to her the particular lands composing her quarter of the fief, she had not failed tosummon all the heirs-portioners as par- ties to that transaction, that her rights might be forti-^ 136 HISTORY OF THE fied by their express consent. Yet in the beginning of the year 1492, it seems that James Haldane took out brieves for a division of the whole Comitatiis, without any reference whatever to the rights of Ehzabeth Men- teith, or to her legal establishment in a particular por- tion of the lands. That lady accordingly was compel- led to present the following petition and complaint to King and Council, dated 14th June 1492. " Sovrane Lord, Unto your gracius hienes, and to the Rycht Reverend, noble and mychtie Lordis of your Counsale, humbly meins and shewis your servitour and wedow Elizabeth Lady of Rusky, that quhar the lands of the erledome of Levinax was devidit of befor be your conrisable brevis of division of your chapell, and be the consent of the Erie of Levinax, Matho Stewart his sone, Johne of Haldane of Glennegas, and James of Haldane his sone, the landis underv/ritten was devidit and assig- nit to me for my parte of the proper te of the said Erie- dome, as autentik writtis and instrumentis of thair said consentis beris. That is to say, the landis of Gartnes, Dalnair, Blairour, Gartquharn, Ballattis, Dowchlas, Bad vow, Edinbaly, Ballaquharn, and Tumdarow, with the half of the He of Inchestavanok, Castlegile, with the quarter of the fischenings of Levin and Lochlowmond, with myllis, woddis, and pertinentis of the samyn; in the quhilk I am in peaceable possession, and gevis soit in your Parliament, justice aris, and sheref courtis therfor. Notwithstanding, James Haldane has purchest of late new brevis of division, direct to your shireffis of Stiruel- ing and Dumbertan, and to certain utheris shirffies in that parte, to devide the said hale erledome, als ivele my pai'teforsaid that is assignit to me, as the laif, quhilk as I understand is express contrair to justice. Besek- ing therfor maist humbly your gracious Hienes and Lord- PARTITION OF THE LENNOX. 137 schippes, that I may have your lettres direct to your said shireffis to keip rae in the said landis that is dividit and assignit to me for my parte, after the forme of the divi- sion maid therapon ; and to discharge the saidis shir- effis, and shireffis in that parte quhasumevir, of the in- trometting therwith, sen thai ar devidit be the full con- sent of the said porcioneris as said is, and your gracious answer herapon at the reverence of God." Upon this petition the Lady of Rusky obtains, of the same date, royal letters narrating the cause of her complaint, and commanding the sheriffs to protect her in her possessions. Accordingly, in the subsequent di- vision of the earldom between Dernely and Haldane, a special clause is inserted in all the deeds connected there- with, excluding from that division the quarter of the fief already allotted to Elizabeth Menteith, and fully ad- mitting her right therein. 4. It is remarkable that there are some indications of this disposition of the family of Gleneagles, to usurp the rights of Merchiston, even in the following century, and not long before the period of the act of transference, in 1562, of the alleged contract in 1485. The earldom of Lennox fell into the hands of the sovereign by the tem- porary forfeiture of Mathew Stewart, fourth Earl of that race, in 1545. The Napiers of Merchiston, as we have seen, held of those Earls the lands of Blairnavaidis, Isle of Inchmore, &c. by way of excamhion for the rights of superiority belonging to Elizabeth Menteith in the Lennox. It would appear that the then Haldane of Gleneagles, probably taking advantage of the confusion of the times, and the minority of Archibald Napier, (great-great-grandson of Elizabeth Menteith, and fa- ther of the philosopher,) had obtained a grant of Blair- navaidis, &c. to the exclusion of the Merchiston family. 138 HISTORY OF THE 111 the year 1558, however, before the Earl of Lennox was restored, and shortly after the marriage of Queen Mary to the Dauphin, that princess issued a charter re- voking the grant to Gleneagles, and reinstating the fa- mily of Merchiston in their patrimonial rights. The precept of seisin under the Great Seal of Mary is dated 14th July 1558, and narrates that the lands of " Blair- navaidis, eister and wester, with the Isle of Inchmone, and tlie right of fishing over the whole of the lake of Lochlowmond,&c. which belonged to Archibald Napier, holding of Mathew late Earl of Lennox, and which have fallen into our hands by reason of escheat and process of forfeiture against the said Mathew, and which after the decree of forfeiture we, in our minority, had grant- ed by charter under our Great Seal to James Haldane of Gleneagles, his heirs and assignees, and which lands and islands having again fallen into our hands by rea- son of our general revocation, made in our last Parlia- ment, and we considering that the predecessors of the said Archibald Naper had obtained the said lands in ex- cambion from the predecessors of the said Mathew late Eaii of Lennox, and in order that they may have regress to their first excambion, and also because the said Ar- chibald and his predecessors were in no manner of way participators in the crimes of the said Earl, but were innocent of the same, and have in all times past faith- fully obeyed the authority of our realm, even to death, and have, under the standard of our dearest grandfa- ther, and under our own standard, in the battles of Flowdoun and Pinkie, been slain ; — therefore, and for other good causes moving us, we, after our general re- vocation in Parliament, have of new given and granted to the said Archibald Naper of Merchainstoun, his heirs PARTITION OF THE LENNOX. 139 and assignees, the said lands of Blairnavaidis, eister and wester, isle, fishing," &c. After all this evidence it may be doubted if the con- fused and futile remnant of the process of transference pointed out by Mr Riddell could have those great conse- quences in the question of the right to the earldom of Lennox, which he anticipates, even supposing there was no proof of primogeniture to place against it. It might be conceded, (though it is not proved,) that in 1562, among the Gleneagles papers and processes, contracts, so called, may have been discovered, in which the rights of the eldest portioner were claimed ; but, after the details given above, probably the reader will recxuire evidence that such contracts were actually successful and fulfil- led, before the expressions contained in them obtain the slightest credit. We have now to consider the evidence in favour of Merchiston, derived from the possession of the messu- ages, which aff'ords so complete a refutation of any ar- gument that may be supposed to arise out of the act of transference ; and which, Mr Riddell himself declares, occasions when contrasted with the latter evidence, " a kind of puzzle that is perplexing." But that learned antiquary has not fully brought out the value of this evidence for Merchiston. He only observed in the re- cord of the Great Seal, the possession of the messuages by Archibald Napier subsequent to the death of his mo- ther the Lady of Husky, and he speaks very cautiously of what he is pleased to call " the seeming j)ossession of the messuagitnn or mansion by the Napiers in 1512, and 1572, while the Haldanes, previous to the last date, claimed the princii)al chemise or messuage, if not actu- ally entitled to it," — thusdepreciatingas far as possible the 140 HISTORY OF THE fact for Merchiston, and giving more than its due weight to the inference for Gleneagles arising out of the frag- ment discovered in the records of session. I shall therefore proceed to show, that there can be no question that Eli- zabeth Menteith was by right of inheritance in posses- sion of the messuages or mansions of the Rusky estates, that she transmitted them to her son, from whom they passed in lineal male descent to the Inventor of Loga- rithms. 1. Archibald Napier obtained a charter under the Great Seal, dated 23d October 1507, of half of the lands of Ruskv, half of the lands of Thom, half of the lands of the three Lanarkynis, half of the lands of Cowlach, cal- led Sauchinthom, with all the pertinents and privileges thereof. This charter proceeds upon the resignation of those lands by his mother into the hands of the King, who confers them by this new charter upon Archibald, and incorporates with them in the same charter the lands of Cailzemuck, with the fishings in the water of Tethand lake of Gudy (sta^;no cle Gucly,) which latter property pertained to Archibald himself as heirof his father the late John Naperof Merchamstoun. In all the repetitions of the lands of Rusky, &c. enumerated in the deeds connected with this transaction, the messuages are named, " cum mansionibus omnium dictarum terrarum ;" all which lands, mansions, fishings, woods, &c. it is declared, be- longed by right of inheritance to Elizabeth Menteith, " fuerunt dicte Elhabeth hereditarie ;" and were re- signed by her in the King's hands to be given to Archi- bald Naper " heredi ap2Xirenti Elizabeth Menteith Domina de Rushj, mcdris sueT This connects the mes- suages, possessed by the family of Merchiston in the Menteith, with the inheritance of Elizabeth Lady of Rusky. TARTITION OF THE LENNOX. 141 2. Two years after this, Archibald Naper obtained ano- ther charter, upon his own resignation, of the Lennox and Menteith estates, to be incorporated into one free barony. The charter is dated 21st May 1509, and sei- sin followed thereon 3d December 1509. In these deeds the messuages are still more particularly mention- ed in all the repetitions of the Rusky estates ; cVimedie- tatem terrarum de Rusly cum messuagio, dimedietafe lacuum, Ssfi. — dimedietatem terrm-um de Thorn, — dime' dietatem terrarum de trihus Lanerkyiiriis — cum mane- rio et messuagio infra dictas terras de Thorn nunc vo- cato Barnysdale per dictum Archihaldum et matrem suam de novo edificato.'' This also proves that Eli- zabeth Menteith had been in possession of the messua- ges, and that that lady and her son had rebuilt or re- paired the ancient messuage of the lands of Thorn. 3. Another charter of the barony, in favour of Alex- ander, son and heir of Archibald Naper, dated 21st June 1512, in like manner describes the lands and pertinents ; " dimedietate omnium terrarum de Husky cum messu- agio, manerio, dimedietate lacus, Sif. — dimedietate ter- rarum de Thorn, — dimedietate terrarum de trihus La- nerhynnis, &f.cum manerio et messuagio i7ifra dictas ter- ras de Thorn nunc Bar7iysdalevocato per dictum Archi- haldum et quondam Elizebetham Menteith matrem suam de novo edijicato ; cum domihus, pomeriis, lie outsettis et pertinentiis*'' 4. After the death of Sir Alexander Napier at Flod- den, his son and heir, Alexander, was infeft in the barony of Edinbelly, and in his seisin there is the same enume- ration of messuages, &c. " de dimedietate omnium ter~ rarum de Rusky cum messuagio, manerio, dimedietate lacus" ^c. " de dimedietate terrarum de Thom, de di- medietate terrarum de trihus hanerkynnis, ^c, cum ma- 142 HISTORY OF THE nerio et messuagio infra dictas terras de Thom mine Barmsdaile vocato, cum domibus, pomariis,'" S^c. This seisin is dated 11th March 1513. 5. In like manner, after the death of the last mention- ed Alexander Napier at Pinkie, his son and heir, Archi- bald, was infeft in his paternal baronies. The same ex- pressions occur in his seisin ; ac etiam cum dlmedietate onmium terrarum de Rushje, ctim messuagio, manerio, dlmedietate lacus^ 8^c. " de dlmedietate terrarum de Thome, et dlmedietate terrarum de tribus Lanerrykis S^c, cum manerio et messuagio iiifra dictas terras de Thom nunc Sarnisdalll vocato, cum domlhus,pomarlis,''' ^c. This seisin is dated 8th November 1548, twelve years prior to the date of the act of transference point- ed out by Mr Riddell, and which, obviously, was some futile attempt to rear up against the above-mention- ed Archibald an alleged contract and decree dated in the year 1485, and contrary to the alleged terms of which the principal messuages of the Rusky estates had been thus possessed by Elizabeth Menteith and four of her lineal male successors, 6. That this attempt did not succeed is manifest from the fact, that John Napier, the Inventor of Logarithms, against whose father the process of transference was di- rected, obtains upon the occasion of his marriage a char- ter of the fee of his paternal baronies, and in that char- ter the same messuages are enumerated ; " dlmedietate omnium terrarum de Rusky, cmn mansione, manerie lo- co, dlmedietate lacus,'' <^c. " dlmedietate terrarum de Thome, dlmedietate terrarum de trie Lanerlkls, &f, cum mansione, manerie et loco infra dictas terras de Thome," &c. The philosopher's marriage settlements are dated in the years 1572 and 1573. PARTITION or THE LENNOX. 143 I am not aware that any charter of the family of Glen- eagles, relative to these estates, can be produced, in which any mention is made of the messuages or mansions of Rusky and Thom. The charter under the Great Seal of the erection of the barony of Haldane is dated 29tli January 1508, and in that the Gleneagles half of the lands in question are thus described ; totam et integram dimedietatem terrarum de Rusliij cum manerior &c. but without any mention of messuages or mansions ; manei'ia frequently occurs in the Gleneagles' charter, but never messuagium, except in a clause of erection to be immediately noticed. There is another distinction between the respective clauses of these charters of barony, not observed by Mr Riddell, but which is of some importance in the present consideration. In the Gleneagles charter, as would appear from the phrases used, it was necessary to in- sert an express clause ordaining the mains of that por- tion of Rusky to become the iwincipal messuage of the new barony. The words are, " uc volumus et ordina- mus manerium de RusJitj principale fore messuagium ejusdem haronie, etquodunica sasina apud dictum ma- nerium, &c. erit sujficiens pro tota et Integra predicta haronier On the other hand, in the contemporary char- ter erecting Elizabeth Menteith's portion into the ba- rony of Edinbelly, messuagium having been contimuilly enumerated as well as manerium, there is no clause or- daining the constitution of a messuagium. The clause regarding the seisins of the barony is simply in these terms, " ac volumus quod unica sasina capienda per dictum Archihaldum et heredes sues apud dictum mes~ s?iagium" &c. shall suffice for the whole barony. Here it may be proper to offer a few remarks with 144 HISTORY OF THE respect to the relative meaning of the terms messuagium et manerium. The learned author of the Tracts is somewhat per- plexed by the fact, that in the Merchiston share of Rusky both wessuagiu7n and manerium are enumerated, while mxinerium is also mentioned in the Gleneagles portion, but not messuagium. He first broaches the theory, " That although anciently the eldest coheir had an un- doubted right to the chief messuage, yet the notion was entertained that she should make some compensation for it to the younger coheir, and in this way the property of the manerium, which with us only meant the land contiguous to the mansion-house, and had not the exten- sive signification as in England, may have devolved upon Agnes."* No sooner is this uttered, however, than our ingenious antiquary destroys his own theory by recur- ring to the fact, " That, by a charter to Sir Alexander Napier of Merchiston, dated 21st June 151 2, he has not only the half of Rusky cum messuagio, but also the ma7ior ;" and he adds, " This, however, might be ex- plained by the observation of Skene, that the ' principal maines (manerium) sulci not he divided, but should re- main with (a man's) aire and successoure without divi- sioune, together with the principal messuage, and full satisfaction should be made to his wife or relict there- fore furth of the second mainnes or utherwise.' " But this very explanation shows that Mr Riddell's definition of manerium, as meaning with us " only the land con- tiguous to the mansion-house," is not to be relied upon. It is singular, too, that the same author in another pub- lication, makes it include the mansion-house. In his * Tracts, p. 98. PARTITION OF THE LENNOX. 145 " Reply to the misstatements of Dr Hamilton of Bar- dowie," speaking of the manerium of Dalserf in 1381, he observes, " Manerium with us in later times com- prised, besides the principal messuage, the tei^rce domi- nicales, 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 char- ters 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 haronice, 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 haronice. 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 messua- gium generally obtained, in reference to the feudal cus- toms and privileges of a barony, a signification distinct from manerium. Skene, in his glossary, defines the lat- ter term as the mains, or domestic farm of the barony, and adds, that if a man leave " twa mains," the princi- pal one should go undivided to his successour, " togid- der 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. A^ot, however, that manerium, in these char- ters at least, " only meant lands contiguous to the mansion-house." These home farms seem to have com- K 1 tb' HISTORY OF THE prised a place or steading of their own, for in the Mer- chiston charters there are enumerated, messuagio, ma- nerie* et loco, &c. and in the charter of the barony of Haldane, the manerium is ordained to become in future principale messiiagium dicte haronice. Messuagium,on the other hand, — which Skene defines " an principal dwelling-place or house ivithin cine ha- ronie,'' — always had that determined signification, nor is there any instance, that I am aware of, where messiia- gium is ordained principale Jbt^e manerium. Upon the whole, then, there appears little difficulty in the interpretation of the respective charters of Mer- chiston and Gleneagles. In the former, the half of the lands of Rusky, &c. with the principal messuages or man- sions, qnd 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 enu- merated ; 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 accu- * Maneriace, maner'mm-ii, or maneriesei, three forms of this semi-barbarous, or low-Latin term, is thus defined by Vossius in his treatise de Fitiis Serinonis et variis Gloisemalis. " Maneria vel manerium habitatio cum certa agri portione." In the Merchiston charters the phrase sometimes is cum messuagio et manerio, and some- times, cum messuagio, ma^ierie et loco ; this is from maneries, for in the same charter there occurs cum castris, turribus, fortaliciis, ma- neriebus, &c. This occurs in the charter of barony to John Napier in 1572j referred to in the text. PARTITION OF THE LENNOX. 147 rate 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 Merchistou. 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 princi- pal messuages were actuaUy possessed by the family of Merchistou, the object of the act of transference (a step never followed out) being to defeat, if possible even at that late hour, thepatrimonial arrangement to that effect, which, obviously, had not been conceded to Merchis- tou by any compromise, but asserted by that family in Joro contentiosissimo. It only remains to illustrate the value of the fact as evidence of primogeniture. 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 \vould 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. J 48 HISTORY OF THE A remarkable instance of its importance and prero- gative is afforded by a feudal transaction which occur- red in the very year when Elizabeth Menteith made good her possession of a quarter of the Lennox, though she was not svifRciently powerful to take the messuages. I shall give the illustration in the words of Lord Hailes. " In 1488, James IIL bestowed the title of Duke of Ross on the Earl of Ross. The Duke of Ross having- era- braced an ecclesiastical life became Archbishop of St An- drews, 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, Pari. 2. James II. that the resignation of the Reid-castle would have car- ried with it the dominium of Ross ' pertaining thereto.' For avoiding this consequence the Duke of Ross reserv- ed either the principal messuage, or the mootehill of each estate."* It follo\vs of course that the chief messuage, or caput haronicE, was imj)artihle^ and in the case of coparceners appertained to the portion of the eldest. " The capital messuage, (says the same distinguished lawyer) and ju- risdictions, 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, * Sutherland Case. t Ibid. PARTITION OF THE LENNOX. 149 and that Sir John Haldane quotes it repeatedly in his process against Lord Dernely. 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 he- retage sail be divided amongst them ; quhither their father was ane socco-man, or ane knight, or ane burges, or anie other frie man. Reservand the chiefs messu- age to the eldest dochter,"" All the authorities, ancient and modern, concur upon the point ;* and by what theo- ry it can be explained that Elizabeth Menteith obtain- ed possession of the messuages of her father's baronies to the exclusion of Agnes, unless it was in virtue of pri- mofifeniture, is for them to discover who maintain that she was the junior coheiress. * See Craig, De Unioiie ; Stair, Erskine, Bracton, Blackstone, Cruise, &c. 150 HISTORY OF THE 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 do- cuments 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 26ih 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 unfor- tunately 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 Glen- eagles papers. In the Merchiston charter-chest, how- PARTITION OF THE LENNOX. 151 ever, there is the original maritagiiim, or gift of the mar- riage of Elizabeth to John Napier, and this, when strictly compared with the retour of Agnes, and the re- cord of relief duties, will be found to afford most con- clusive evidence of the primogeniture of Elizabeth. This evidence, however, requires some preliminary il- lustration in order to enable those to appreciate it, who are not in the habit of considering such documents. Maritagium of EUxaheth 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 puber- ty, 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 feu- dal plan as early as the books of the majesty. This ca- sualty, 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 api)licable in the case of a fe- male 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 sail make homage to the overlord for all the heritage^ and the after home dochters, or their hu.shands, are oblissed 152 HISTORY OF THE 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 so- vereign 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, quhitlier 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 ofles age, falls in the warde of her overlord, and within the samine age is maried with his consent, her land sail hefi'ie and quite fra anie relieve induring her lifetime, and her hus- band's ; and gif she is of perfite age, and nevertheles remains in the warde of her overlord until she be ma- ried, nevertheles the husband before the compleiting of the marriage sail ^my the releive,'"X We may now turn to the maritogium of Elizabeth Menteith. It is a Latin deed, under the Great Seal and sign manual of James II. entitled Letters of Concession of the Muritagium 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 Mercham- stoune, for the cordial aifection which his Majesty bears towards him, the maritagium of Elizabeth de Menteth, * Reg. Majest. 2. 29. Skene. t Sutherland Case. t Reg. Majest. 2. 70. PARTITION OF THE LENNOX. 153 daughter of tlie 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 ; pro- hibiting all interference whatever contrary to this con- cession of marriage, under all the pains and penalties ; given under the Great Seal at Stirling, 26tli 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 con- templation 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 dedhmis et concessimusdilecto servitori nostri Johanni Napar, filio et heredi apparenli Alexandri Napare de Merchamsloune, pro cordiali aff'ectione quam gerimus erga euti- dem, maritagium Elizabeth de Menteth, Jilie quondam Murdaci de Menteth, ac sororis et unius hercdum quondam Patricii de Menteth de Riiski), nobis spectans per decessum ejusdem Patricii, cum, terris redditibus, possessionibus, Sfc. ad ipsius Elizabeth maritagium spectan- tibus, S^c. Datum sub magno sigillo nostro aptid Strivelin, vicesimo sexto die mc.nsis Martii anno Domini millesi^no quadringentesimo quinquagesimo qvinto, et regni nostro vicesimo. y^'CVVVV'vO 154 HISTORY OF THE 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 Na- pier, 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, other- wise, according to the old law quoted above, there would have been no relief duty paid either by herself or hus- band. There can be little doubt that the gift of mari- tagium 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 hus- band 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 gener- ously 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 re- mitted to the comptroller of the royal expences, the father of the bridegroom. Hence it may be fairly con- cluded that, at the very commencement of the year 1 455, 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 Men- teith 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 PARTITION OF THE LENNOX. 155 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, w^iich 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 distin- guished in reference to patrimonial rights, &c. as the fol- lowing passage will serve to illustrate. " The Jirst 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 m 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//^r^//7.r 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 perfectlietell and nombre siller, and knaw the evil money by the gude, and discretelie do his fatheris 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 \\ev Jbur- teenth year. 2. The non-entrif duty was that casualty which was due to the sovereign when the icard had determined, and the heir, or heiress, was of perfect age to enter the ward lands, and yet failed to do so. Consequently in * President Balfour's Practicks, p. 227. 156 HISTORY OF THE the case of an heiress the non-entiy duty fell to be reck- oned 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 lauch- ful age, and tha'irfoir 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 un- enterit, and miclit have enterit thairto ; propter negli- gentiam heredis non recuperantis jus suiim."* 3. 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 re- tourand 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 * Balfour, p. 257. t Ibid. p. 428. PATITITION OF THJC LENNOX. 157 ward. Hence it was necessary also to distinguish, in the retoiir, between the time of ward and the time of non- entry. " 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 su- perior's handis in default of the narrest air not persew and his richt of the samin, (i. e. nonentry ) gif of veritie 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 raakis not special distinction betwix the time or zeiris in the quhilk thay wer in his handis, he ressoun of non-entres, and the time or zeiris in the quhilk thay wer in his handis he ressoun oficardr^ 5. In the case of coheiresses in ward lands, however, when the ward of the eldest determined by her mar- riage, or otherwise, no part of the fief, not even the por- tion of the younger sister, though still under age, re- mained in the King's hands by reason of the feudal in- cident of ward ; for the husband, or the proxy of the elder sister fulfilled the vassalage of the fief. Mr Er- skine observes, " In coheiresses the ward determined when the eldest attained the age of fourteen, for as the right of superiority was a Jus indicidium belonging sole- ly to the eldest, tlie casualties due by two or more vas- sals ought also to be regulated by the age of the eldest. Besides that heirs-portioners were heirs pro i7idiviso, each of them had a property in every glehd terrce, and, therefore, when the eldest came to be fourteen, the supe- * Balfour, p. i'M. 158 HISTOUY OF THE rior 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 non- entry 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. 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 primo- geniture of her sister Elizabeth, when contrasted with the gift of maritagium, which is dated more than a twelve- month 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 \Aard-fee did not feudally enter her lauds 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 ac- tually 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 Pa- trick 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 tiie 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 PAPtTITION OF THE LENNOX. 159 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 brother,^r the space often weeks ""^ In testimony of which the seals of the jury are appended. A hasty perusal of this retour might give the impres- sion that Patrick Menteith had died just ten iveeks be- fore 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 illus- trations afforded above, it is not difficult to find the true interpretation. The lands were not in the hands of the sovereign by reason oftvard^ 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 her fonrteenth year, antl was qualified to enter her land^. 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 Eliza- beth, the ward of the whole fee had determined, and the ward lands of Agnes, therefore, only fell into the sove- reign'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 import- ance in this question, and it is hoped that there is no * " El quod sunt in inanihus dicli. domini no.siri Regis Domini su- perioris earund. legit/inie per seipswnt, por mortem dicti quond. patr. fratris sui per spacium decem septimanas. In cujus rei leslimonium sigil/a," Sec. — Gleneagles Papers. 160 HISTORY OF THE fallacy in the above deduction. It may require some attention to the terms of her retour, and the feudal cus- toms, to detect that result, but the inference does not appear to be strained. It is impossible to argue, that the ten weeks of the sovereign's feudal possession indi- cated the whole period since Patrick's death, for it is un- questionably proved that he was dead before the 26th of March (day after New Year's day) 1455. It could not, therefore, have been the period of ward. If not the period of ward, it must have been the period of nonen- try, commencing when the person retoured had com- pleted the fourteenth year. Agnes Menteith, therefore, was precisely fourteen years of age on the 11th of Fe- bruary 1455, that being ten weeks before the 28th of April 1456, the date of her retour. Now it is ten months earlier, namely, 26th March 1455, that the deed of Elizabeth IMenteith's maritagiiim is dated, and, as al- ready observed, this of itself affords very substantial evidence of the primogeniture of Elizabeth. But evidence- yet more conclusive, can be extracted from this comparison of the dates of the records con- nected with the circumstance of these young heiresses becoming of age and seized in their property. The date being given when Agnes Menteith had completed her fourteenth year, and the dates being given within which Elizabeth Menteith took out her seisin, it can be demon- strated that the theory for Gleneagles, — namely, that Eli- zabeth was the second, and not the first born daughter, — cannot he true. For let that theory be adopted. Agnes Menteith completed her fourteenth year on or about the 11th of February 1455. Elizabeth was (say) ten months younger ; that is, she had comjDleted her four- teenth year only in December 1456. If there was a longer interval than ten months between the births of PARTITION OF THE LENNOX. l6l the sisters, as is most likely, Elizabetli would have been of age to enter her lands at some corresponding period of a still later date. But this cannot be. Elizabeth Menteith 7)iusthave been at least fourteen years old com- plete between the 26th July 14a4 and the 21st October 1456, for within those dates she relieved her lands, and took out her precept of seisin. On the other hand, the theory, that she was the elder sister, harmonizes perfectly with all the facts. The ?Jia- ritagkim of Elizabeth is dated on the second day of the year 1455 ; she had probably relieved her lands in the year 1454, and was then past fourteen. Agnes Men- teith's retour is dated in the second month of the year 1456, just ten weeks after she had completed her four- teenth year, and, according to the memorial for Glen- eagles, she was not married until the year 1460. Assuming that there is no fallacy in the above test, — and, though it occurred to me some years ago, I have never been able to detect the fallacy, — it demonstrates that Elizabeth Menteith could not have been the daugh- ter of a birth subsequent to Agnes, and so destroys that pretension of Gleneagles. This test, however, is not exclusive of the theory that these young ladies were twins, — though that has never been surmised, and certainly is not to be assumed with' out a vestige of proof. But suppose it were so, this would by no means bring the above discussion to what might be termed a drawn game. The right of primogeniture does not vanish in the case of twins, and the particular se- quence of the names of the coheiresses of Rusky in the record of relief duties, with the fact of possessing the messuages, would be overwhelming evidence in support of Elizabeth Menteith's claim to be considered the eld- est or leading twin. L ]62 PARTITION OF THE LENNOX. If the author of the Tracts, or any other antiquary of equal zeal and information, shall completely refute this history, the author of the Memoirs of Merchiston will most cheerfully confess the error of that "Genealogi- cal scheme showing the Philosopher's Rep^'esentation of Duncan VIII. Earl of Levenax" which was engraved for his work. He cannot help thinking, however, — and will be consoled by, and take credit for the result — that a flight above the elucidation the subject has now re- ceived, must determine in some quarter the right to the honours of this ancient and interesting Comitatus, — the Arcadia of Scotland — the romantic land where Endrick, in wildly lyric mood. Displays her laurel crown. And tells how, musing by her flood, Sage Napier earned renown ; That oft she paus'd, to mark at midnight hour. The pale lamp glimmering in his ivy'd tower.* Richardson. * The Endrick issues from Lochlomond, flowing, through Strath- endrick, close to Gartness an ancient place belonging to the philoso- pher, who frequently pursued his studies in that beautiful retreat. If the history I have now recorded be accurate, he was de jure an Earl of that ancient race whom Sir David Lindesay of the mount quaintly calls " the Erles of Lanox of auld" — and in that right he is represented by the present Lord Napier. VINDICATION OF THE ANTIQUITIES OF MERCHISTON AND THIRLESTANE, IN REPLY TO Mr RIDDELL'S " OBSERVATIONS UPON THE REPRESENTATION OF THE RUSKY AND LENNOX FAMILIES, AND OTHER POINTS IN MR NAPIER's MEMOIRS OF MERCHISTON." VINDICATION, &c. REPLY TO MR KIDDELL's INSINUATION THAT THE EVIDENCE FOR THE ANCIENT ARMORIAL SEALS OF MERCHISTON MAY NOT BE GENUINE ANTIQUITIES OF RACES OF NAPIER DIS- TINCT FROM MERCHISTON. Upon the memorable occasion when Captain Charles Napier, Count Cape St Vincent, took the fleet of Portu- gal, the legend, that his family surname was derived from a warlike ancestor having been complimented by a King of Scotland with an appellation equivalent to 71011-pareil, appeared in the London newspapers. That story had been put on record by some heraldic writers, but the history of its first publication was unknown. The author of the Memoirs of Merchiston happening to trace the original promulgation of it into connection with a characteristic scene that occurred in the pre- sence chamber of James VI., considered the anecdote as fairly belonging to the antiquities of the domestic history he was illustrating. Tlie legend might indeed, as the Quarterly Review somewhat testily observed, be but an old woman's tale, yet it was better once for all to give the version as now published in the Memoirs, than to leave its vague statement to the Globe or Courier. But while laying no stress upon the more fanciful 166 VINDICATION OF THE ANTIQUITIES part of this tradition, namely, the punning, or, as heralds would say, the canting transition to a new surname ; and classing the particular derivation of Napier (which certainly may be otherwise accounted for) with that of Douglas, or Hay or Forbes, the author was bound to point out more seriously a very curious heraldic corro- boration, of that part at least of the immemorial family tradition which asserted for Merchiston a male descent from the old Earls of Levenax, long prior to ihe female descent indisputably acquired through Elizabeth Men- teith. So far back as the line of Merchiston can be traced, between four and five centuries, the original ar- morial seals of the heads of the family are extant, and those seals are invariably found to bear the shield of Levenax, with a mark of cadency. This circumstance can by no means be held to found an unanswerable modern argument of descent ; and both the Quarterly Review and Mr Riddell were under misapprehension in supposing that it was so adduced.* When, however, in confirmation of the tradition that Merchiston was originally a male cadet of the Levenax, (a tradition which was immemorial in the year 1625,) it was re- cently discovered that the most ancient charter-seal of the family, belonging to one who must have been born about the year 1370, was Levenax, with a mark of ca- * Mr Riddell (Tracts, p. 126,) alludes, with a sneer, to a discovery of his own in the Cumbernauld charter-chest, of one William Pert us of the county of Peebles in 1439, who, he says, "actually displays upon his seal the simple arms of Lennox." But there was no claim or tradition of cadency, nor are the .simple arms a proper indication of cadency, and, moreover, Mr Riddell appears to be not very well informed as to what the simple arms of Lennox were. The Ragman- roll records a Napier of the county of Peebles, so Ave recommend our learned antiquary to look again into the Cumbernauld charter-chest, as he may have misread Perlus instead of Perliis, the old spelling for Peerless, i. c. Napier. OF MERCHISTON AND THIRLESTANE. l67 dency, and that these bearings were not otherwise ex- plained or accounted for, this adminicle (for it is no more,) gave a value to the family tradition, which even the apocryphal seeming legend of the change of sur- name could not destroy.* But this evidence had been lost in the errors of our best heraldic writers. Sir George Mackenzie and Mr Nisbet understood the bearings in question to indicate a Lennox descent, and both those celebrated authors re- corded, as a fact, that they were first assumed by John Napier of Merchiston, to the oblivion of his paternal coat, upon his marriage with the heiress of Lennox * Father Hay, in his manuscript memoirs, mentions a charter dated 1150 to Sir Thomas de la Haye de Locharward ; he adds, that he had married, " Montfiguett, heretrix of Locharwart, and of this marriage had Sir William, who succeeded him, and Margaret married lo Donald, sone to the Erie of Lennox, of whom is come the family of Naper." — MS. Advocates' Library. It is to be remarked that the writer who here strengthens the Merchiston legend by re- cording a fact not contained ifi the family version of it, had, a few pages before, refuted the legend of his own family surname (Hay), which he treats as a fable. Father Hay inspected charters which are not now extant, and the above, which I had not seen when compiling the Memoirs of Merchiston, is at least worthy of notice. Sir Archibald (afterwards Lord Napier) in the year 1625 declar- ed in writing, to the Garter of England, that the undoubted tradi- tion from father to son in his family, that it was a male cadet of Len • nox, was then immemorial. But he does not found upon, nor attri- bute this tradition to, the armorial bearings ; indeed, if those bear- ings had some other origin than a Lennox descent, it is difficult to understand why they should not rather have transmitted the true tra- dition than a false one. The Merchiston seals are quoted, not (as the Quarterly Review supposed) that similar arms infallibly indicate the same descent, but because the seal of a Napier of Merchiston who must have been born about 1370, being found to display Lennox with a mark of cadency, was curiously corrohorative(^'i^\\Q family tradition. So the interesting case of Sir Richard Scropc and Sir Robert Gros- venor, instanced by that journal, is not in point. 168 VINDICATION OF THE ANTIQUITIES about the year 1455. Now it happened that the re- spective seals of John's father and grandfather, before the date of that marriage, could be produced, and they carried the very same insignia, said to be derived by John from his Lady. Mr Riddell at one time entertained the theory of these authors. And even now he will not yield a gra- cious or unqualified assent to the most direct and une- quivocal refutation their theory could receive. " Nes- bit and Sir George Mackenzie (says he) account for the Napiers of Merchiston carrying the Lennox arms by the marriage of John Napier with Elizabeth Menteith, v/ho they think disused his own arms on the occasion, and assumed those that accrued to her as a Lennox co- heir. This of course is redargued by the evidence of the seal — Jiolding it to be genuine ; had it not been for the latter the thing would have been extremely natural," &c. Our learned antiquary had not well weighed the ef- fect of this vague insinuation. The person who first observed the seal that refutes Sir George Mackenzie and others, was the late Francis Lord Napier, in com- piling the genealogy of his family, published in Wood's Peerage, where the refutation is recorded. The seal and relative deed had been always in his charter-chest with the other parchments; if it henotheldtohegemiine, it must be held to have been concocted, and for the spe- cial purpose of supporting a heraldic theory compara- tively of no importance, which imputation would rest with that nobleman, or some one of his equally ho- nourable ancestors, — a reductio ad ahsurdum that can- not have occurred to Mr Riddell, or it would probably have made him ashamed of the sceptical expression he has published. Long before the publication of the Memoirs of Merchiston, the author had heard the very same ex- OF MERCHISTON AND THIRLESTANE. 169 pression drop from the author of the Tracts, and though he considered the dubiety as an accidental shadow passing across a cautious mind, and certainly never expected to see it in print, he determined not to leave the point unfor- tified, and was so fortunate as to obtain another seal of the family distinct from that of John of Rusky, and the one doubted. This rendered the proof conclusive, for it was the seal of John's father, Alexander Napier, (comptroller of the household, and designed of Philde,) and carried precisely the Lennoxbearingsof the seal Lord Napier observed, which belonged to Alexander Napier of Merchiston, (designed burgess of Edinburgh) John's grandfather. Moreover, it was discovered, not in the family charter-chest, but among the manuscripts of the Advocates' Library. The following is a tolerably accu- rate delineation of the three seals, numbered chronolo- gically in reference to the owners. 1 2 3 Now all these seals are engraved and explained in the memoirs of Merchiston, though the author of the Tracts is silent upon that fact, and takes no more notice of the intermediate seal, — affording so unanswerable a reply to his scepticism, ridiculous as that is, — than if it had not been produced. No work, whatever may be its research and accuracy, is independent of a fair consideration of the proofs and materials that compose it. Without at- tempting further to refute the doubt in question, I must take the liberty to amend the reading of it thus ; " This 170 VINDICATION OF THE ANTIQUITIES of course is redargued by the evidence of the two seals, holding both or either of them to be genuine."* There are several other ancient races of Napier be- sides Merchiston, none of which carry the Lennox shield, though some of them were for centuries distinguished vassals of the Lennox, while Merchiston was planted in the Lothians. The theory oi vassalage fails, therefore, as an explanation of the Lennox arms of the latter. Nor have I been able to trace Merchiston into a cadency with any of the other families of the name. Mr Riddell has in- deed asserted, "It is not unlikely that the first Alexander Napier of Merchiston was a younger son of some of the feudal stocks of Napier, the most ancient of whom was the family of Kilmahew ; Mr Thomas Crawfurd, Pro- fessor of Mathematics in the College of Edinburgh, an antiquarian of some note, and who lived in the reign of * See Memoirs of Merchiston as to these seals. Mr Riddell observes, " Mr Napier supposes that the first Alex- ander died in 1454, but there is no proper evidence of the fact." As the fact is of no importance, except in the eyes of such minute writers as the author of the Tracts, the proofs were not given. There is no question that the first two Napiers of Merchiston were Alex- anders, for in a deed dated 6th September 1432, Alexander junior is designed son and heir of Alexander senior. The latter was only designed of Merchiston, and burgess of Edinburgh. The former, after the gift of Philde to him in 1449, is designed of Philde, and sometimes comptroller, down to 22d July 1454 inclusive. After that date, he is invariably designed of Merchiston, and mililetn, and some- times master of household. In the deed to which seal 1. is attached, dated a few days before the close of 1453, Alexander is simply styled " burgess of Edinburgh." Hence it is likely that the first Alexander died at an advanced age, about the year 1454. Mr Riddell objects to the supposition that a man survived to 1454 Avho was Provost in 1403 ! But the second seal corroborates the Jirst, even if they both belonged to the same Alexander. Seal 2, is impressed on a paper obligation dated April 1452, by " Alexander Napare of Philde" to James II. Seal 3, is John of Rusky's in 1482. 4 OF MERCHISTON AND THIRLESTANE. 171 Charles I., says, that the family of Merchiston before the time of their elevation to the peerage, impaled the arms of Kilmahew with Lennox, which, according to Nesbit and Mackenzie, they bore as descended from the Lennox coheir. Sir David Lindsay also, in his blazon- ing of their arms, while he inserts the Lennox insignia, leaves two quarters vacant, evidently for the reception of others, which rather tends to corroborate Crawfurd's account."* But these quotations could only have been made for the sake of contradiction. In the Memoirs of Merchis- ton there is an engraved plate of the seals of that family taken from the family papers, and arranged in chrono- logical order, from Alexander the first of Merchiston to the Inventor of Logarithms inclusive. Every one of these seals carry a shield with precisely the same bear- ings, namely, the engrailed saltier and roses, without a vestige of quartering. The seal of the philosopher's son is also engraved beneath his portrait in the work, the seal of his son, the second Lord, is in the charter-chest, and both carry the same as above. Of course these nine successive seals, holding them to he genuine, refute both Mr Crawfurd, who had not the benefit of the proof, and Mr Riddell, who had; and when the latter ingenious an- tiquary, in support of his repetition of Crawfurd's error, quotes Sir David Lindsay, — who, in his manuscript acl- ve?'saria, places the Merchiston coat quarterly, but with the hypothetical quarters blank, — we may well say of the author of the Tracts what he has said of Crawfurd the peerage writer, " our genealogists are odd logicians."! Upon the supposition that the surname of Napier * Tracts, p. 125. t ibid. p. 131. 172 VINDICATION OF THE ANTIQUITIES of Merchiston was originally that of the old Earls of Lennox, it is not necessary to adopt the cantifig story of its change to Napier, which may be a fancy subse- quently superinduced upon a true tradition of lineage. An office in the royal household might have effected the alteration, and, moreover, distinct families may upon other occasions have in like manner acquired the same surname. * The following antiquarian particulars re- garding the name, both in England and Scotland, were collected some years ago in compiling the Memoirs of Merchiston. They not only tend to show how distinct the race of Merchiston appears to be from all the other ancient races of the same surname, but in themselves possess more or less of antiquarian interest. Of the old English JVaperers, being the earliest Na- piers on record. Centuries before the English and Irish Napiers had branched from the stock of Merchiston, and prior to the date generally attributed to the Lennox tradi- tion of that family, some of a similar surname exist- ed who were freeholders and tenants in Essex, and other counties of England. From these I am not aware that any family extant can, or ever pretended to deduce an origin ; nor had their appellation any claims to the re- puted derivation of the peerless ancestor of Merchiston. The voluminous records in the tower of London present these forgotten worthies, rari nantes in gurgite vasto. I note them as affording the most ancient examples of the name, and a theory of its derivation hitherto unob- served.* * This was written long before Mr Riddell's Tracts, who I see OF MERCHISTON AND THIRLESTANE. 173 Previous to the fifth year of the reign of King Ste- phen, (1140,) there existed an O'mus JVaparius, or Oinus of the Napery ; for of that date a notice of his wife oc- curs in the Exchequer expences. Radnessus le Naper of Waltham, is also mentioned in the fourteenth year of the reign of Henry II. (1168) In the English re- cords, printed from the original in the Tower by com- mand of George III., in pursuance of an address of the House of Commons, there are to be met with many notices of Napiers in various counties. John is the most common Christian name occurring among them. In the Calencl. Rot. the following entry is met with " Johannes le Naper, venator regis, Haveringe ma- ner, 18 ac7\ messuage, Essex'^ This occurs under 44th Henry HI. (1239) arid proves a John Napier to have been huntsman to the King of that date. Havering Liberty, rich in romantic legends, was in olden times a favourite resort of the Kings of England, who had a hunting seat there,* and probably the " venator regis'" held less of a sinecure than the master of the buck- hounds now. Walter de la Naperije occurs in the 53d year of the same reign. This last modification of the name leads us to a derivation sufliciently plausible. (page 132) deduces tlie same theory from his own observance of " Menigarus le Napier" appointed^ as appears from the Test. deNevil, to the office " de Naperie," sometime between 1154 and 1189, by Henry II. But our learned antiquary inclines to a theory which is entirely his own ; he thinks that very possibly the surname is taken from the feats of an individual, and says that the venator regis " probably was as peerless in his way, and as good a knapper or 7iab- her (to use a Scottish term) of game, as Donald the Naejner was of men." This savours of that fine old college of antiquities, the Hie- Scule. * A saint retired there to say his prayers, but the nightingales disturbed him to such a degree that he exorcised the place, as if the birds had been devils, and drove them away. 174 VINDICATION OF THE ANTIQUITIES The Napery was an office in the royal household.* It is well known to antiquaries that such offices afforded a fertile source of surnames, which became, at a very early period, purely nominal. In the records of the reign of King John, and the 9th year (1209,) there is a very distinct notice of the office in question held by one whose own surname had not merged in his employment. Wil~ helmus Torel is charged with a debt of forty marks for * " Naparia, sen Napparia, officimn in aula regia, adde. Hinc servaiit de Naperiein ordinal, domus Joan V. Ducis Brit. An. 1403. Du Cange. When investigating this theory of the name, I received the fol- lowing information, dated 7th September 1832, from Sir William Woods, (Clarenceux) through the late Lord Napier. " At the coronation of King Henry V.'s Queen, (Catherine of France,) the Lord Grey of Ruthin was Naperer (1420.) At the coronation of Queen Eleanor, Avife of King Henry III. who died 1277> it appears there was a claim made by two persons to the office, and the King appointed one of them, Henry de Hasting, to execute it." I was also kindly favoured from the same quarter with a full extract of two claims rejected at the coronation of George IV. which are curi- ous. The first is that of " The Right Honourable William Francis Henry Baron Petre of Writtle, in the county of Essex." He claim- ed in right of Asheley, in the county of Norfolk, " the office of the Napery on the day of his Majesty's coronation, and to have all the tablecloths and napkins for his fees." Part of the narrative is, " That your petitioner's ancestors and predecessors being persons professing the Roman Catholic religion, and as such by law pro- hibited from coming into the royal presence, or within the precincts of his Majesty's Court, have omitted to claim," &c. The commis- sioners decided that this ancient tenure of Asheley had been extin- guished by falling into the hands ofone of the King's ancestors, who had given the manor out again on a different tenure. The other claim- ant is " Jane Green of Torrells Hall, in Little Thurrock, in the county of Essex, widow." She claimed in virtue of her liferent of Thurrock Torrells, " by tenure of Grand Sergeanty, that is to say, by the service of being the King's Naperer on the day of his fllajesty's co- ronation," &c., but failed in her proof of the tenure. OF MERCHISTON AND THIRLESTANE. 175 officio Napericc regis. He belonged to the county of Essex, where thirty years afterwards we find John Na- per, the King's huntsman. Lord of a Manor. Through- out succeeding reigns the name frequently occurs in the English records, and seems as obvious in its derivation as others with which it is in immediate conjunction, such as " Galfried le Gardiner^ " Alex, le Peyntour" and " Johan le NaperT There are, besides, William, Thomas, Jordan, and Luke Napers mentioned in the reign of Edward I.* Of the Ncqyiei's of Kilmahew, the earliest on record in Scotland. The first appearance of the name of Napier in Scot- land is as vassals of the old Earls of Lennox, and ba- rons in that district, though we shall find that there is a remarkable disconnection between this circumstance and the Lennox tradition of the Merchiston Napiers. In the chartulary of Lennox there are frequent notices of a John Naper, as one of the witnesses to the charters of Malcolm Fourth Earl of Lennox. These charters have no dates, but from other tests may be dated before the end of the thirteenth century. This is obviously, the same John Naper who is mentioned in that de- grading document, commonly called the Ragman roll, wherein the names of the Scottish barons are recorded who swore fealty to Edward L in the year 1296. He is there called " Johan le Naper del Comte de Dunbre- tan." So far as I know, this is the earliest Napier * See also Roluli lAtlcrarum Clausarum, in the Tower, (printed by command of his present JMajcsty,) for various notices of one Ro- herlus Naparius in the reign of King John, who is clearly of the A^a- pery. 176 VINDICATION OF THE ANTIQUITIES upon record in Scotland, and it is interesting to find that not only is he a distinguished and historical cha- racter, but that a long line of his descendants can be very distinctly traced. He was one of the gallant but unfortunate defenders of the Castle of Stirling, when re- duced to extremity, in the year 1304, by King Edward in person. Before the walls of the last tower in Scot- land which opposed his march, that ruthless conqueror seems to have acquired a momentary respect for patri- otic valour, which it would have been well for his fame had he extended to Sir William Wallace. He spared the lives of the few obstinate warriors who survived the reduction of Stirling Castle, and issued an express com- mand that the gallant prisoners, among whom was John le Naper, should be spared the pain and indignity of iron fetters. The parentage of this worthy is unknown, though it is not impossible that he sprung from the Essex hero of the buck-hounds, whom the enchantments of a long chase, or some milk-white doe, may have seduced into rugged Scotland from the groves and nightingales for which Havering Liberty was so famed. There is no doubt, however, that he was Napier oi Kilmahew in the Lennox, and 1 have been able to trace the descent of that family (though it is now extinct, and their papers lost) from him, down to modern times, through chartu- laries and other authentic records. They were origi- nally close allies and vassals of the Earls of Lennox, and became of baronial rank in that district of Scotland, where the family remained until its extinction in the last century. The details it is unnecessary to give, as none of these barons were particularly distinguished. It is important to observe, however, that two charter seals of successive Najners of Kilmahew are extant, attached OF MERCHISTON AND THIRLESTANE. 177 to deeds dated in 1473 and 1490, and in both instances the shield carries a hend charged with three crescents. This proves that Kihnahew, a family that rose upon its Lennox vassalage, and never quitted the district, did not assume a single bearing in consequence ; and so the theory fails that the Lennox arms of Merchiston, a fa- mily having no connection with the district until a sub- sec|uent period, are arms of vassalage to Lennox, derived through cadency from Kilmahevv.* Of the Napier s of JVrychtishoiisis. Another remarkable confirmation of the idea that Merchiston was not a branch of Kilmahew, or obtained the Lennox armorial bearings through such cadency, is to be found in the history of the Napiers of " the Wrychtishousis," a family which is nowhere genealogi- cally recorded. I have also succeeded, however, in tra- cing to modern times this ancient race. Upon the site of Gillespie's Hospital, and within a quarter of a mile of Merchiston, once stood another lofty and massy tower of very ancient date, around which clustered, in various forms of Scottish architec- ture, intricate ranges of buildings, and peaked turrets, which had been added in different ages to increase the accommodation afforded by the primitive tower. The general effect is said, by those who still remember it with regret, to have been singularly picturesque, espe- cially when viewed from the Borough-muir in sunset. One remarkable feature of this interesting fabric was the heraldic carvings in stone, which at various times * The Quarterly Review observes, " The Merchiston Napiers may have been originally, as some other fdmilies qfiJie name certain- ly rjcre, vassals of the ancient Earls of Lennox," &c. M 178 VINDICATION OF THE ANTIQUITIES had been bestowed upon its walls literally crowded with armorial bearings. These had obviously been for the purpose of perpetuating the memory of successive al- liances of the owners of this castle, and their accuracy is proved by other authentic records. The property was unfortunately acquired about the year 1800 by the Managers of the fund for Mr Gilles- pie's mortification, who deliberately and tastelessly re- moved what time itself had spared. This, however, was not effected without meeting with a spirited re- monstrance. In the Edinburgh Magazine for July 1800, a writer, signing himself Cadmon, addressed two letters to the public " on the Demolition of Wrytishouse near Edinburgh," taking for his motto " Vain transitory splendour ! could not all Reprieve the noble mansion from its fall?" This appeal had not the effect of saving the building, but has been the means of preserving a very interesting notice of its antiquities which this writer examined con amove. He found a date, carved above a window, so old as 1376. It is remarkable, however, that even this enthusiastic champion of the Wrychtishousis did not discover to what race it had chiefly belonged. If, amid all that flesh is heir to, Cadmon have himself survived the chances and changes of more than thirty years, it may gratify him to find that the object of his solicitude is even yet remembered, its antiquities explored, and its ancient proprietors recorded. From at least 1390 to 1680, this venerable pile, with some goodly acres attached to it, belonged to a race of Napiers whom I have succeeded in tracing through all that time as a separate family from Merchiston, and without a symptom of cadency between them. Doug- las in his Peerage records, but without proof, as the lineal OF MERCHISTO>f AND THIRLESTANE. 179 male ancestor of Merchiston, a William de Naper, who got a charter under the Great Seal " Wdlielmo Naper ^ filio quondam Johannis Naper ^' of the lands of Easter Garmylton, in the constabulary of Haddington, which were resigned by William Naper, son of John Naper of Garmylton, dated at Methfen 4th February, 6, Robert II. 1376-7.* Mr Wood also notes that he was governor of the Castle of Edinburgh, as in a charter to Alan Lau- der " WilUelmus de Naper, custos castri de Edinhiirglf is a witness, 1401. Whether the assumption be well founded that William, son of John Naper in East Lo- thian, is the same who was governor of the castle in 1401, 1 have not had the means of ascertaining. But I find a record of him of Edinburgh Castle at an earlier period than the above, and can nearly identify him with the founder of the family of Wrychtishousis. For fourteen years, commencing with 1390, William Naper is each year invariably mentioned in the Great Chamberlain Rolls of Scotland, as the colleague in of- fice of a well known and wealthy person of the period, Adam Forrester of Corstorphine. They are designed in these royal accounts, " Custumarii burgi," that is, they farmed by royal grant the customs of Edinburgh, an important source of the revenue, and it also appears that they exercised their office by means of deputies al- lowed by the terms of their charter. Precisely during the same period and in each year, namely, from 1390 to 1404, William Naper is also mentioned as coiistabularh (sometimes custos) castri I^dinburgi" After that pe- riod the name disappears from both offices at the same time. There seems no room to doubt that this is one * Mr Riddell (p. 130) makes some pointed allusions to the Garle- ton charters comprehended in an inventory of the Wemyss charter- chest. We take the liberty to refer that learned gentleman to Wood's Peerage and the printed portion of the Great Seal record. 180 VINDICATION OF THE ANTIQUITIES and the same person, which is curiously confirmed by the fact, that a connecting link can be found between Wrychtishousis and the custumariiis hurgi on the one hand, and, on the other, between the constahularis cas- tri, and the same property. 1. In Robertson's index of charters, there is one by Ro- bert III. in the year 1390, to " William Naper of the lands of Wrychtishousis, ane part thereof, by resigna- tion of Adam Forrester,"&c. This most probably was a transaction between the two custumarii hurgi of the very period. 2. By old charters of the Wrychtishousis which I have examined, both in the Register-House and private repositories, it appears that the tenure by which these Napiers held that property was the payment to the King of a silver penny, upon the Castle-hill of Edin- burgh. This may have been connected with some par- ticular event, such as the following. In the year 1400, the Castle of Edinburgh was beleagured by Henry IV. at the head of the whole military force of England. But the place baffled all his efforts, and had the important effect of redeeming Scotland from total subjection. Up- on this memorable occasion Archibald Earl of Douglas, and his royal son-in-law the unfortunate Duke of Roth- say, threw themselves into this stronghold (of which William Naper was then constable, as he had been for many years) and so stoutly kept at bay the most inso- lent army that ever entered Scotland, as to compel the King of England to raise the siege. There were some knightly and romantic proposals at this warlike pageant round old Dunedin. The Prince sent a personal chal- lenge to King Henry, and urged a decision of the con- test by single combat, or its classical determination by a limited number of nobles selected from each side. The OF MERCHISTON AND THIRLESTANE. 181 Duke of Albany, whose army hovered at some distance from the English host, announced by his herald that if the King of England would remain six days longer un- der the walls of the castle, he, Albany, would give him battle. This proposal better suited the experience and temper of Henry, who gave his own mantle and a chain of gold to the Scotch herald in token of eager acquies- cence. But Albany only meant to mock him, and the monarch was at length constrained to depart from this impregnable rock, the " sad and solitary place without verdure," as it had been described by the daughter of Henry HI., to meet Owen Glendower at home. It is interesting tocompare with this historical event an item in the Great Chamberlain's accounts, which occurs very soon after, and most probably regards the dilapidation occasioned by the siege. It is to this effect, in Latin, " And for repairing the gates of the Castle of Edinburgh, and for expences incurred about its drawbridge, ac- cording to the account rendered upon oath by William Naper, constable of the said castle, eleven pounds and sixpence." Fourteen years services as constable, including so me- morable a siege, may perhaps account for the silver link between the Wrychtishousis and the castle hill, and, up- on the whole, it may be fairly presumed that the custu- marhis hurgi, the constahidaris castri, and the William Naper who got a crown charter of this property upon the resignation of Adam Forrester are all one and the same person, Cadmon, in his second letter, observes, "I am of opi- nion, that persons well versed in the local heraldry of this part of Scotland might, from the armorial bearings, shields, crests, and a various insignia interwoven in dif- ferent places with initial letters, determine the family 182 VINDICATION OF THE ANTIQUITIES whose original mansion Wryteshouse has been, which seems to have been a matter of perfect uncertainty to all who have mentioned it in their writings." Yet I have been able to trace the family alliances by compar- ing with other records the carved stones still extant, some of which are built into the park walls and offices of Gillespie's Hospital ; others were purchased by the late Lord Woodhouselee, and formed into an artifical ruin which still adorns Mr Tytler's lawn. One of the most ancient of these stones appears to have no connection with the family of Napier. The shield carved upon it carries three crescents disposed up- on the field, with a mark of difference in the centre. This might be a cadet of Seton. What connection, how- ever, can be traced between the Wrychtishousis, and Seton ? This led me to trace the history of the proper- ty upwards from Adam Forrester ; and I find a charter under the Great Seal of Robert II. in the twelfth year of his reign (1383) to Adam Forrester two parts of the lands of Wrychtishousis,* near Edinburgh, by resigna- tion of Henry cle TFinton and Amy Brown. Now it is a remarkable coincidence that Ala?i de JVyntown car- ried off Marga7'et Seto7i, the heiress of Seton ^ and mar- ried her, — a marriage that gave rise to a feud, causing more than a hundred ploughs to be laid aside from la- bour. Wyntoun records this in his chronicle as hav- ing happened in the year 1347 ; * Maitland (Hist, of Edin. p. 507-) refutes the antiquarian opi- nion, that the village at the west end of Bruntsfield Links was called Wrijghts Houses because the wrights dwelt there Avho were employed in cutting down and manufacturing the oaks that once grew on the Borough-muir, As that event occurred after the year 1508, the ancient charter quoted in the text so far confirms the refutation, but it also refutes Maitland's own theory, which is, that the village was so called because the Laird oj Wrylc had a house there. OF MERCHISTON AND THIRLESTANE. 183 A thousand thre hundyr fourty and seven Yheiris eftyr the byrth of God of Hewyn, Qwhen Willame of Murrawe wes lyand In Edynburchw Castell than dwelland, Dat yhere Alane of Wyntown Tuk the yhowng Lady Setown, And weddyt hyr than til hys wyf. So Henry Wyntown, who resigned Wrychtishousis to Adam Forrester before the close of that century, may have been a cadet of that alliance, and it impossible that the stone in question was meant to commemorate that point in the history of the mansion * 1. The armorial stone which refers to the most an- cient date about the building connected with the Na- pers that I have discovered, is here represented, as its story is less equivocal. It is built over the well at Gillespie's Hospital, and is evidently very old, though surely not contemporary with the date carved upon it. The use of Arabic numerals in Scotland can * This ingenious theory, it must be confessed, is one of those liable to be overturned by the plain fact of some provoking Edic Ochiltree, a controversialist yet more to be dreaded, in these matters, than the author of the Tracts. 184 VINDICATION OF THE ANTIQUITIES scarcely be referred to a period so early, (a test ge- nealogical antiquaries sometimes overlook,) and proba- bly the stone is merely commemorative of an alliance proved by other records of the family then existing. Sir David Lindesay, in his heraldic manuscript, re- cords the arms of Napier of Wrychtishoussis, " on a bend azure, a crescent betwixt two spur rowels ;" which also agrees with the ancient seals of that family still extant. Mr Nesbit says, " the name of Stirling has al- ways been in use to carry buckles variously situate, but more frequently on a bend, as now used." Hence the above impalement indicates the marriage of an A. Na- pier of Wrychtishousis, to a J. Stirling, in 1399 ; and probably commemorates the marriage of the successor of the constable who acquired the lands in 1390. 2. 1 find an Alan Naper of Wrychtishoussis mentioned in the very ancient chartulary of St Giles, * as having lent his seal to Thomas Hogeson, in a charter dated at Leith 1st June 1451. This illustrates one of the ar- morial stones bearing date the previous year, as fol- lows. The arms here impaled with Napier are unquestion- ably those of Wiind, which fact corresponds with the lady's initials. 3. Their son, or at least successour, " Alexander Na- per de Wrychtishouse," is one of the inquest in the re- * The propertj' of Maule of Panmure. OF ^rERCHISTON AND THIRLESTANE. 185 tour of Archibald Naper of Merchanston as heir to his father, dated 12th December 1488;* and he is also men- tioned in the ancient protocol books of the city of Edin- burgh, in the years 1494 and 1505. 4. From the same records of Edinburgh it appears that Alexander had been succeeded by Robert ; for, of date 11th July 1523, Robert Naper of Wrychtishoussis, Margaret Naper his spouse, and Alexander Naper their son, are all mentioned in making up titles to burgage property. Another of the armorial stones, a delineation of which is here given, affords an interesting elucidation of this marriage. These are the respective armorial bearings of Wrych- tishousis and Merchiston, impaled; and hence it appears that in the year of the battle of Flodden Field, the laird of the former had married a daughter of the latter. The heraldic distinction of the two families is here perfectly illustrated, thus affording another contradiction to the theory that Merchiston and Kilmahew were armorially identified. From the Merchiston genealogy it can be proved that John Napier and Elizabeth Menteith had a daughter Margaret, who must have been the above lady. 5. llieir son Alexander is mentioned in the city re- * Quoted in the Memoirs of Merchiston, p. 10, where by mistake it is called the retour as lieir to his mother Elizabeth IMenteith. 186 VINDICATION OF THE ANTIQUITIES cords of date 5th December 1549, as clearing off' annual- rents which had been contracted by his father Robert. His wife Janet Udwart is also mentioned in the same records. b*. In the record of deeds in the Register-House there is one dated 20th July 1592, by " William Nepare of Wrychtishoussis, merchant, burgess of Edinburgh, son of Jonet Udwart, now relict of Johne Lummisdene of Blanerne." William's wife was Elka Park, which may account for what seems to have puzzled Cadmon, that the arms of Park appear amid the lavish heraldry of their mansion. 7. In the record of the Great Seal I find a charter to William Naper, eldest legitimate son and heir of Wil- liam Naper merchant burgess of Edinburgh, of the lands of Wrychtishoussis, dated 20th December 1605. And another charter 15th April 1608, to MasterWiWi^^m Na- per and Margaret Ba7inatyne* his spouse, of the same lands. This last notice enables us to read the story carved upon a triangular stone, without a date, now built above the school-house door at Gillespie's Hospital, where the initials W. N. and M. B. are so lovingly ming- led with the mullets and ci'escents growing upon the Scotch thistle. The leading insignia of the Bannatynes of Corehouse and Newhall was the midlet, that of Naper of Wrychtishoussis, the crescent ; for it is obvious that the mullets on the bend of the latter is their mark of dif- * She appears to have been a sister of that celebrated George Bannatyne, whose exertions for the preservation of the poetry of his country during the great plague which ravaged Scotland in 1568, have obtained a grateful commemoration by the institution of the " Bannatyne Club," and an illustrious record in the compilation of his Memoirs by its first President, Sir Walter Scott. OF MERCHISTON AND THIRLESTANE. 187 fereiice from the original stock, Kilmahew, whose bend was charged with three crescents. The carving upon this stone is slight and faint, as here represented. St Cutliberts was a most conspicuous and exemplary parish, under the auspices of its celebrated pastor Robert Pont, and still more celebrated heritor John Napier, dur- ing all the contentions of the clergy with King James VI. In its old records I find the following characteristic en- try, of a date two years before the publication of the Logarithms : " Upon Thursday the 25th of June 1612, convenit, Mr William Arthur, Mr Richard Dicksone, ministers, &c. The quilk day, anent the supplication givin in be William Naper, laird of Wrytishouse, crav- ing in effect that he myt have libertie to affix cuie dash at the ivest end of the Laird of 3Ierchistoun''s dask; the session, because they knaw that he is ane honorabile gentelman, quho bruiket office in the town of Edinburgh sundrie times, and lykwise a7ie of the mayst ancient heru tors in the parochin, and that he has borne burdene in the King's and kirks stents, be ther presents grants and condescends that hehigane dask there, providing always that the session, upon the sicht of ony uther rcssonable or important cause, sail have liberty to transport and use the former sait cpilien and quhair they plies, so that be thir presents the said William Naper clame no pro- 188 VINDICATION OF THE ANTIQUITIES pertie nor heritage to the said sait and dask in the kirk, for the session nether may nor can give sick richt." In the register of deeds there are two, dated 4th De- cember 1618, which mention Robert Naper son law- ful to umquhile William Naper of Wrychtishousis. Pro- bably this was a younger brother of the following. 8. Upon the 6th December 1621, Sir George Touris of Gairltoun, Sir Archibald Naper of Edinbelly, (after- wards 1st Lord Napier,) Sir William Nesbit of the Dean, Sir WiUiam Fairlie of Bruntsfield, Mr John Cant of the Grange, and Mr William Naper of Wryteshouses, are a committee for laying on an assessment for repairing the kirk and kirk-dykes. Upon the 8th November 1627, William Naper of Wrytshouses is elected kirk-trea- surer. These notices are from the old session books of the West Kirk, where I also find the following characte- ristic entry. The justices of the peace in the year 1629, pass an act for " suppressing of dear bridal lawyings," when, in presence of " Sir William Nisbet of the Dean, Mr William Naper of Wrightshouses, Mr John Cant of St Giels Grange, Justices of Peace, with consent of Mr William Arthor, minister, hail elders, &c. compeirit per- sonale certane of the heritors, fewers, fermours, and in- habitants within the said parish, and declarit that they wer gritlie prejudyced and hurt be their servandis in giving to them exorbitant fees, the lyk whilk they wer never accustomet to pay of before, and they enquiring of the said servandis what was the cause of the height- ning of their fees, their answer was that twa hrijdell lawings wald hallance the best of their hale yeresfees, and that their frequent going to bridals and paying abun reason for their la wing was the only cause of the heichtning of their fees." The Justices for remedy thereof ordain, " That all bridal lawings within this OF MERCHISTON AND THIULESTANE. 189 parish shall not exceed 12 shillings the man, and 10 shillings the woman, whether the bridal be in the house or out the house," and that under certain penalties. 9. Upon the 28th January 1640, Mr WiUiam Naper of Wrytshouses is unanimously elected kirk-treasurer. This may have been a new generation of the favourite family name, derived from AVilliam the constable. There is something almost pathetic (a rare property) in Lord Stair's report of a case, which affords melan- choly symptoms of the passing away of this ancient and respectable family. " February 6, 1680, — Napier of Wrightshouses having died without issue, two women of his name, of a far relation, gave in supplications," &c. claiming to be served heir. One of these ladies and the representative of the other were afterwards served heirs-portioners. The property latterly passed through the hands of several proprietors, in particular. General Robertson of Lawers, and Hamilton of Bargeny, who all kept up the ancient muniments and grandeur of the place in a style very creditable to their taste and feeling. This armo- rial structure made a narrow escape daring the rebel- lion of 1745. Upon one occasion a small party of the ad- venturers took refuge there from the King's troops, and were complimented with a shower of cannon balls from the Castle of Edinburgh . Not a ball of the Castle would touch its old ally the Wrightishousis,but many buried themselves in its park, and an old man of the name of Adamson, who related the story, had nearly lost his head from one of them when a boy, as he was looking out of a window in the adjacent village.* * I was favoured with this anecdote hy BIr Smcllie, printer, who is curiously informed in tlie antiquities of Edinburgh. 190 VINDICATION OF THE ANTIQUITIES There is nothing particularly distinguished about this ancient race of quaint and quiet lairds ; but they are in- teresting as having possessed for so long a period that beautiful suburban Castle, whose traditionary history is rife with ancient legends and modern ghost-stories. Its heraldic history, as proudly recorded on the walls as if theirs had been the House of Valois, claims no connec- tion with the Lennox, further than the obvious cadency from Kilmahew, and indicates no cadency with Merchis- ton, whose Lennox saltier is contemporary with the old- est record I have discovered of the Napier bend. This is a marked separation of a very ancient date between these families. The insignia so multiplied about the old Castle we have explored, clearly indicate a cadency from Kilmahew, yet there is not a vestige of the shield of Mer- chiston having been upon the -=r- vvhoCvi Ca3rj)ct)tij8f|)oiii8(j0i0. OF MKRCHTSTON AND THIRLESTANE. 191 But there was the marriage bet^yeen the families in 1513, and " the dask at the west end of the Laird of Merchiston's dask" in 1612; and no doubt the stately Baron of that gaunt and grim-looking tower, with his constant companion, and alleged familiar, the jet-black chanticleer, was very popular in the " goodly dwelling and a rich" of his neighbour and cousin, who might greet him with — " By cock and pye, Sir, you shall not away to-night." 192 VINDICATION OF THE ANTIQUITIES 11. UEPLY TO MR RIDDELL S ASSERTION THAT THERE IS NO FOUN- DATION IN FACT FOR THE STATEMENT CONTAINED IN THE FIRST LORD NAPIER's ATTESTATION, THAT THE NAPIERS IN ENGLAND WERE HIS NEAR RELATIVES, AND CADETS OF MER- CHISTON. Mr Riddell, in opposition to the genealogical fact stated in the Memoirs of Merchiston, that the Inventor of Logarithms and Dr Richard Napier (whose portrait and rosicrucian fame are preserved at Oxford) were brothers' sons, has conceived an extraordinary idea. He has the hardihood to maintain that the wealthy and distinguished families of Napier, first established in England by two distinct cadences from Merchiston in the sixteenth century, had all along been labouring under a delusion — as their existing descendants are to this day — when they supposed themselves to be cadets of Mer- chiston in Scotland, and carried armorial bearings accord- ingly. He asserts that it is " impracticable to connect" the Napiers of Luton-hoo, &c. with Merchiston ; and adds, " we may hold that their Merchiston origin is a mistake, and that, however subsequently famous and well allied, they can reflect neither credit or discredit upon the Scottish Napiers." What, then, is our anti- quary's own theory in regard to these families ? Whence came Sir Robert of Luton-hoo, and the astrological Doctor ? " To whom related, or by whom begot?" He knows nothing about them ; and leaves the matter 4 OF MERCHISTON AND THIRLESTANE. 193 quite unexplained, though faintly colouring his most fl'W^^-antiquarian argument by a slight allusion to Me- nigarus de Naperie in the reign of Henry IT., upon which he argues as follows ; " We might thence infer, owing to the antiquity of the one over the other, that if there be any connection between the English and Scottish Napiers, the latter derive their origin from the first, which would further refute the notion of a Len- nox descent. Mr Napier, however, unhesitatingly af- firms, that the Napiers of England are cadets of Merchis- ton, and significantly adds, in reference to them, ' for English and Irish Napiers, cadets of Merchiston, see Collins, passim,' with the natural view of showing that the blood of Merchiston in this manner circulates amono' all our nobility. But it unfortunately happens, that there is no evidence upon record to instruct the fact." Now, " it unfortunately happens" that this bold chal- lenge by the learned genealogist involves the somewhat scandalous proposition that Sir Robert of Luton-hoo, and his brother Richard, were not only misinformed generally as to their extraction, but were totally mis- taken, or pretended to be so, as to who their own fa- ther was. In Sir William Dugdale's Usage of Arms, printed at Oxford 1682, and in the official register of baronets therein published, appears, among the baronets created by James VI. 25th November 1612, " Sir Robert Na- per, (dias Sandy, of Lewton How, Knight ; and among those created by Charles II., under date 4th March 1660, " John Napier alias Sandy, Esq. with remainder to Alexander Napier, &c. with remainder to the heirs-male of Sir Robert Napier, Knight, grandfather to the said John ; and with ])recedency before all baronets made since the 24th September Anno 10 Regis Jac. (\^\^,) N 194 VINDICATION OF THE ANTIQUITIES at ivhich time the said Sir Robert was created a baronet ; which letters patent, so granted to the said Sir Robert Napier, were surrendered by Sir Robert Napier, (father of the said John and Alexander) lately deceased, to the intent that the said degree of baronet should be grant- ed to himself, with remainder to the said John and Alex- ander." The authenticity of this register cannot be impugned, and the existence (for we must reason closely against the author of the Tracts) of Sir Robert Napier of Luton-hoo, created a baronet in l6l2, is proved. A presumption is at the same time raised by this record, that Sir Ro- bert was of Scotch extraction, from the alias Sandy, the Scotch diminutive of Alexander. It is equally cer- tain that this baronet had a brother, Dr Richard Na- pier, rector of Lindford in Buckinghamshire, whose history and portrait are given in the Memoirs of Mer- chiston. The celebrated astrologer, William Lilly, gives the following anecdote in his life and times, which is otherwise corroborated. " A word or two of Dr Napper who lived at great Lindford in Buckinghamshire, was parson, and had the advowson thereof. He descended of worshipful parents, and this you must believe, for when Dr Napper's brother. Sir Robert Napper, a Turky merchant, was to be made a baronet in King James' reign., there was some dispute whether he could prove himself a gentleman for three or more descents; 'By my saul,' saith King James, 'I will certify for Napper that he is of three hundred years standing in his family, all of them, by my saul, gentlemen.' "* William Lilly was * The meaning of this attestation was, that the King was inti- mately acquainted with the descent of the family of' Merchision ; whose successive lairds had been distinguished at the court of the Stewarts for centuries. Now the contemporary authority even of King James upon the point is better than Mr Riddell's dictum. I OF MERCHISTON AND THIRLESTANE. 195 personally acquainted withDr Richard, and could scarce- ly be mistaken as to his relationship toSirRobert, which, however, is otherwise abundantly proved. John Au- brey, in his miscellanies, says that Dr Richard Nepeir, " left his estate to Sir Richard Nepeir M. D. of the Col- lege of Physicians London, from whom Mr Ashmole had the Docto?-''s picture, now in the museum" This Sir Ri- chard is well known to have been the nephew of Dr Ri- chard, and a younger son of Sir Robert, * Further, Sir Archibald, afterwards first Lord Napier, being applied to by the above Sir Robert to furnish him with an au- thentic certificate of cadency, returned one accordingly, possessing in its antiquities, or in the fulness of the re- cord, no great genealogical merit, but scarcely to be questioned in this statement, that Alexander Napier, his. Sir Archibald's, ^7•«?^c?-^^wc/^," had issue the foresaid Sir Robert Napier, Knight and Baronet, Richard Napier of Lindford, 7iow living, and divers others sons and daugh- ters/' The document quoted from stands directly in the way of Mr Riddell's theory, for it contains an undisput- ed assertion of the fact of immediate cadency, addressed to the very gentleman who our antiquary declares was not a cadet of Merchiston at all. Seizing, however, cer- tain vulnerable points in certain copies of Sir Archi- bald Napier's certificate of cadency, which copies he says " are discrepant, and there can be little doubt gar- bled," he holds the entire proof, without distinction, pro non scripto in the question, in these words : " In short these garbled statements, as to the supposed Scoto-Ftug- lish Napiers, contradictory of each other, and suppres- sing-f certain members of the family, besides emerging from a foreign country, cannot be depended ui)on. * See Fosli Oxonienses. t The document in question is meager in the collateral genealo- 196 VINDICATION OF THE ANTIQUITIES The original document, transmitted by Sir Archibald under his own hand and seal to Sir William Segar, I have not been able to discover. Various copies of it appear to have been made at the time for different branches in England ; and the consequence is, that in some of these copies palpable blunders have crept into the enumeration of the generations of the Merchiston descent, which create a corresponding difference in the generation of Sir Robert of Luton-hoo, and alter his position to that extent on the family tree, without, how- ever, affecting the question of cadenci/. For instance, in a copy of the document printed in Hutchins' history of Dorsetshire, there are three Alexanders lairds of Mer- chiston recorded in succession, where there should only be two. It is an obvious blunder, however, which the charter-chest of the family corrects, and which probably was not in the original. There is another manuscript copy in Lord Napier's possession, from which the state- ment in the Memoirs of Merchiston is taken, and which is j}erfectly accurate in its enumeration of the generations of the family, as proved by the charter-chest. This copy came into the family, accompanied by the following letter from Napier of Blackstone, grandson of the philosopher, to Sir William Scott of Thirlestane, who had married the heiress of Napier, and whose son Francis, fifth Lord Na- pier, at that time a boy, had already succeeded to the title. " Sir, I received a letter from Killcreuch, wherein he desires me to transmit the double of ane manuscript I gy, the object of it being solely to point out the cadency of the Eng- lish Napiers. The odious term "■ suppressing" is used by the au- thor of the Tracts for the nonce, — it is his controversial maniere. See another instance, infra, p. 204. By " foreign country" the author of the Tracts either means England or Scotland, but it is not easy to say which. OF MERCHISTON AND THIRLESTANR. 197 had from Sir Robert Napier of Puncknoll, in the county of Dorset, (with whom I was very intimate), being the extract original and ryse of the Napiers in Ingland and Irland, transmitted to him by my uncle Archibald Lord Napier, when he was thesaurer deputt, the first of King Charles the First, and recorded in the herald's books. It is not so cleir and full as I could wish ; bot if the seve- ral papers and documents that were given out and en- trusted to Sir George Mackenzie, Advocate, when he designed his heraldrie, and yet made no mention of the familie, which, if found, might be of use with what you may otherwise find in the charter-chest. Wishing all health to my prittie Lord, I pray God he may be a com- fort to you, and others the relations, to the raising and standing of the families of Napier. Believe that I am, in all sinceritie. Sir, Your most obedient most humble Servant, Blackeatouu 24th March 1712. A. NaPIER."* Napier of Blackstoun was the intimate friend of Sir Robert Napier of Puncknoll, and neither of these gentle- men had any doubt of the fact, that the English fami- * Part of this letter is very imperfect in construction, but the sense is obvious. The writer of it, Alexander, son of Adam youngest son of the Inventor of Logarithms, was (59 years of age in 1712. He alludes, probably, to a work projected, but never executed, by Sir George Mackenzie, and these family papers had been intrusted to him, to inform him better on the subject of the Merchiston de- scent, than, as appears from his adversaria, Sir George had been. The first Lord Napier in his genealogical paper (1625) states, that he then possessed family documents in which his ancestors were called Napier alias Lennox. In the Merchiston charter-chest only a single charter of the first laird is to be found, and no document to throw any further light upon that laird's descent. The careless- ness of restoring family documents " given out and entrusted" for antiquarian purposes, is cruel and destructive, and brings the re- spectable name of antiquary into disrepute with the possessors of historical charter- chests. 198 VINDICATION 01" THE ANTIQUITIES lies of Napier were all derived from the stock of Mer- chiston. The above evidence proves that the first Lord Napier did, in point of fact, transmit that certificate of cadency to England in 1625. The copies of it, there- fore, however erroneous in some particulars, are not in themselves fabrications ; and if the asserted cadences be, as Mr Riddell says, totally without foundation, the odium of the invention {^ov it could not well be a mistake) rests, in the meantime, with James VI. — his treasur- er-depute and privy councillor Sir Archibald Napier, (one of the highest minded men of his day) — and the various heads of the distinguished families of Napier at that time existing in England, and carrying armo- rial bearings in terms of that cadency. Yet Mr Riddell is shocked at the author's " unhesi- tatingly affirming that the Napiers of England are ca- dets of Merchiston ;" and he offers as a preferable in- ference, that if there be any connection between the Eng- lish and Scottish Napiers, the latter derive their origin from the first ! " But Sir Robert Napier of Luton-hoo, and the other knights and baronets of the name then living in England, entertained no doubt of their Scottish extraction. When Sir Robert's heraldic purity was carped at, the question was not as to his immediate ex- traction. The jealous criticism by the English courtiers was as to the aristocracy of the family of Merchiston, a family which rivalled them in the royal affections, and when Sir Robert appealed to his cousin and head of his house, surely he did not do so that he might be informed who his own father was. The formally attested cer- tificate transmitted by Merchiston to the Garter of England is, undoubtedly, meager, inaccurate, and im- probative in its antiquities ; but where it speaks of Sir Robert himself, and brings down the genealogy to the CF MERCHISTON AND THIRLESTANE. 199 parties then in life, it would be strange indeed if all this were a dream, and the Napiers of Luton-hoo, &c. only " supposed Scoto -English Napiers." Now the preamble of this document is as follows : " To all and sundry person or persons, to whom these presents shall come, greeting : Know ye that I Sir Archibald Napier of Merchiston, in the kingdom of Scotland, knight, depute-treasurer, and one of his Majesty's privy-council there, for as much as my entirely beloved hinsman Sir Robert Napier of Luton-hoo, in the county of Bedford, knight, baronet, being desirous to be informed of his pedigree and descent from my house, I have, to satisfy his lawful and laudable request, herein declared the truth thereof, and the origin of our name, as by tradition from father to son (we) have generally and without any doubt received the same." To this evidence of the Scotch extraction of Sir Ro- bert and his brother, must be added the testimony of old John Aubrey, who was born about ten years before Dr Richard Napier died, and who was the best informed gossip of his day. He was a great friend and source of information to Anthony a Wood, author of the^///^/?<^ and Fasti Oxonienses. Anthony used to say, " Look, yonder goes such a one, who can tell you such and such stories, and I'll warrant Mr Aubrey will break his neck down stairs rather than miss him." After giving a very curious history of the astrological Doctor, in his miscellanies, Aubrey thus concludes : " This Doctor Richard Napier was rector of Lyndford in Bucks, and did practice pliysick, but gave most to the poor that he got by it. ^J'is certain he told his own death to a day and hour. He died praying upon his knees, being of a very great age, 1634, April the first. He was near- ly related to the learned Lord Nepeir, Baron of M... 200 VINDICATION OF THE ANTIQUITIES in Scotland ; I have forgot whether his brother. His knees were horny with frequent praying." Thus, though Mr Riddell treats with derision the idea that Sir Robert and his brother were " Scoto-Eng- lish Napiers," the fact even of their immediate Scotch extraction is proved ex abundanti by the universal un- derstanding of the period, — by the Scotch alias Sandy, by the unhesitating admission of Sir Robert Napier himself, — by the express declaration of Sir Archibald Napier of Merchiston, — by the testimony of Aubrey, who had some idea that they were brothers of the In- ventor of Logarithms, — and, we may add, by the uni- versal and unhesitating admission and belief of every Napier belonging to these English Napiers of Puncknoll, Luton-hoo, Middlemarch, &c. down to the present day. It only remains to see what was the precise relation- ship. Sir Archibald in his certificate thus gives it. " Sir John Napier of Merchiston and Ruskie had issue Archibald, father to Sir Alexander and James ; Sir Alex- ander had issue Sir Alexander, who had issue Sir Archi- bald and Alexander ; Sir Archibald had issue Sir John and Sir Alexander ; Sir John was my father.* Alexan- der, second son of Sir Alexander, and brother to Sir Archibald my grandfather as aforesaid, having spe?it the greatest part of his youth in f or eigm parts, came into England in the time of King Henry VIII., and had is- sue, the foresaid Sir Robert Napier, Knight and Baronet, Richard Napier of Lind-ford, now living, and divers other sons and daughters," &c. According to this state- ment. Sir Robert Napier and his brother were the cou- sins-german of Sir Archibald's father, the Inventor of Logarithms ; and, holding what we have quoted to be * These lairds were not all knights. This probably is an inac- curacy of the transcript. OF MERCHISTON AND THIRLESTANE. 201 really the genealogy as transmitted by Sir Archibald, it is unlikely that he should be entirely mistaken as to the history and family of his own grand-uncle. But that the above is substantially an accurate transcript of the ori- ginal certificate may be assumed, as it is in point of fact an accurate genealogy, so far as it goes, of the family of Merchiston. This can be proved by a comparison with the genealogy in the peerage, which was most carefully and accurately drawn out by Francis,seventh Lord Napier, from his family papers. His Lordship indeed had even been too cautious in making out that genealogy; for, go- ing entirely by his charters and original deeds, and not finding the ancestor of Luton-hoo mentioned among the other children of that generation, he formed the opin- ion that there was no authority for his existence, and that the ancestor of Luton-hoo must have been Alex- ander Napier of Ingliston, a younger son of Merchiston some generations prior to the reputed father of Sir Ro- bert. But his Lordship had not adverted to the cir- cumstance, that the Alexander recorded by Sir Archi- bald, as Luton-hoo's father, had heen Jhris-JcimUiated at a very early period of his life, had spent his youth abroad, and then settled and married in England, which sufficiently accounts for the absence of his name from the family papers. Besides, Alexander Napier of Ing- listoun could not have been (as the author of the Tracts himself takes most unnecessary pains to prove,) the an- cestor of the English Napiers ; for he lived, and married, and died in Scotland ; the Merchiston charter-chest is full of parchments referring to him and his spouse Iso- bel Littill ; and both of their seals and signatures are at- tached to some of those deeds. Now most assuredly, as Mr Riddell very gravely argues, Isobel Littill was not a Birchley of Herefordshire, or the mother of the baronet of Luton-hoo. 202 VINDICATION OF THE ANTIQUITIES But since our antiquary will not admit the authority of Sir Archibald Napier, nor the evidence of any trans- cript of his original certificate, nor the universal admis- sion and belief of all the " Scoto-English Napiers" them- selves, to prove this cadency from Merchiston, surely he will admit the contemporary and official record of the fact. Now that genealogy, put on record in the life- time of Sir Robert and Dr Richard Napier, stands thus : Married. Sir Alexander Naper of Mercaston, Knt. — daughter to Cambell of Glen- [orehy. ] Alexander Naper of Exeter, 2d son. Anne, daughter to Edward Birchely of Hertfordshire.* Sir Robert Naper of Luton in the coun- ty of Bedford, Knt. and Baronet. Mary, daughter to John Robinson of London, who came from Drayton- Basset in Staffordshire. 2d 1 vife. 1 1st wife. Penelope, daughter to John Egerton, Earl of Bridgewater. Sir Robert Naper, Knt. Sonne and heire, living 1633. Francis, daughter to Sir Will. Thornhurst of Agincourt, Knt. John Naper died an infant. Kobeit Naper sonne and heire, 8 annorum, 1633. It would appear from the above, that the second Sir Robert had not yet succeeded his father in the baronet- * Mr Riddell has two very valuable and instructive pages (135, 136) to prove that Isabel Litill (the wife of Alexander Napier of Inglis- ton) could not be Ann Birchely (the wife of Alexander Napier of Exe- ter ;) and he also gives the history of one Helen Litill, whom he has not connected with Isabel, but supposes them sisters purely for the sake of indulging in the following sarcastic remark : " Admitting the fact, which seems extremely likely, the Napiers would Ihen be connected with royalty, for it is a curious circumstance, and one pos- sibly little known, that Helen was ' ?iourice' (nurse) to James VI. which lacteal relationship, it is not improbable, may have tended to aggrandize them," i. e. the family of Merchiston. If the author of the Tracts will write nonsense, he might enliven it a little ; he should have called the hypothetical relationship, a milky-way to preferment, of more avail than the paths of their astronomy. But they had a " lacteal relationship" to royalty, though that had little to do with their aggrandizement. Annabella, the Countess of the OF MERCHISTON AND THIRLESTANE. 203 cy, and it is certain that his uncle, Dr Richard, did not die until 1st April 1634. Upon a comparison with Dugdale, it is obvious that before I696 the boy Ro- bert,* son of Sir Robert's first marriage, had failed, and that his father had, subsequently to 1633, two other sons, John and Alexander, by his second wife. Here, then, is the first Sir Robert's Merchiston ori- gin admitted in his own time, if not actually recorded by himself; and also the name of his mother, Anne Birchley, good Regent INIar, and Sir Archibald Napier of Merchiston, were sisters' children. This lady, it is well known, was intrusted ^with the infant person of James VI., — " his Hieness continuing under her noriture as towards his mouthe, and ordering of his person." Whether she nourished him at her own bosom, or consigned that " lacteal relationship" to Helen Litill, I leave as a question worthy of Mr Riddell's minute researches. Upon one occasion, all the la- dies of the household, including the Countess, were called out of bed in the middle of the night, because the royal babe was seized with colic; it was remarked that the Countess had a shift on,- — a rare event in those days, — and the excuse assigned was, that her lady- ship was " tender," i. e. in delicate health. * This boy Robert had a splendid genealogy through his mother. Her mother was the daughter of Thomas Howard, Viscount Bindon, whose father was Thomas Howard, Earl of Surrey and Duke of Norfolk, and her mother, Elizabeth, daughter of Edward Stafford, Duke of Buckinghame. Luton-hoo became extinct in the male line about the middle of the last century. Dr Charles Loudon, M. D. of Leamington Spa, very kindly commenced a corresjiondence with me from that place on the subject of the antiquities of Merchiston, and has furnished me with some very interesting information. Among the rest, he mentions, that, happening to broach the subject in the family of Cox of Eaton-Bishop, Miss Cox said, " we are descended from that fa- mily, (Merchiston,) and possess our estate of Eaton-Bishop in Here- fordshire through our ancestor Dr Napier, who was a pliysician in the time of James I., Charles I., and even physician to Old Noll." This was accidentally communicated to me by the polite attention of a stranger, who had not the slightest knowledge of the matter being controverted in Scotland. 204 VINDICATION OF THE ANTIQUITIES in right of whom Sir William Segar adds to the Lutori- hoo quarteririgs, " the 4th partye ane cheveron or and ve7't, 3 birchen branches counterchanged of the field by the name of Birchely ;" while he gives for her husband, " The first, argent ane Salter engrailed betwixt four roses rubies, by the name of Napier." The above details were not inserted in the voluminous Memoirs of Merchiston, nor have they been given now as fully as they might. So much, however, was ren- dered necessary by what has been quoted from Mr Rid- dell's recent work, and also from what follows : " The learned gentleman, while chargmg Sir Walter with ig- norance,^' owing to this remark, positively affirms that these two Napiers and the Inventor of Logarithms were near relatives, — nay, even hrotliefs sons, — which cir- cumstance, he rightly adds, is not generally known ; — in this event, they would be sons of a younger brother (although a nonentity it is conceived) of Sir Archibald the Inventor's father, and grandsons of Alexander Na- pier of Merchiston. It would have been highly oblig- ing if Mr Napier had condescended upon evidence of the fact, which, if true, might have been had in abun- dance, owing to the recentness and extreme nearness of the connection." There are other families of the name of Napier, be- sides Luton-hoo, mentioned in the first Lord's certificate, * TractS;, p. 137. May we suggest^, that to alter the plain words of an author, so as to pervert them from an innocent and respectful, to an offensive and derogatory meaning, is not within the pale of legitimate controversy. The author { Memoirs, p. 7, note J alludes to Sir Wal- ter Scott's sagacity in conjecturing that Dr Richard Napier was " of the stock of the Scottish Napiers ;" and he adds, " our illustrious author was nol aware of the near relationship," &c. Indeed the fact was sufficiently honoured by Sir Walter's notice. OF MERCHISTON AND THIRI.ESTANE. 205 as derived from another cadet of Merchiston, who set- tled in England at an earlier period than the father of King James' baronet, and the cuiming Richard. This cadency became highly distinguished in its various branches of Tintinhull, Puncknoll, Middlemarchall and Morecritchill. The position of their common ancestor on the Merchiston tree is thus stated in the copy of the certificate in my possession. " Sir John Napier of Mer- chiston and Ruskie had issue Archibald, father to Sir Alexander and James. James aforesaid, coming into England in time of King Henry VII., and first planting himself in Swire m the countv of Dorsett, who had issue Edward of Oxford and Swire, James of Middlemarchall in the county of Dorsett, Nicollas Naper of Tintinhull, in the county of Summersett ; from the elder brother Edward, descended the Napers of Oxford ; the second brother James of Middlemarchall, was father to Sir Robert Naper of Middlemarchall, sometime Lord chiefs Barron of Ireland, and father to Sir Nathaniel Naper ; James had divers others issues, being grandfather to John Naper and Robert Naper of Puncknoll, in the county of Dorsett, Esq. and divers others of that name, now living in that county. Nicollas Naper of Tintinhull in the county of Summersett, hath also divers issues." Such, generally, was the state of that cadency in the year 1625, when Sir Archibald Napier wrote this ac- count, and he is amply corroborated by the historical antiquities of England, at least as to the existence of the individuals whom he here mentions. Robert Naper is recorded in the Fasti Oxonienses, as of Exeter College, A. B. 1561. He became a student of law, and was by- Queen Elizabeth raised to the bench as Lord Chief Ba- ron of Ireland in 1593, and knighted. He was high sheriff of Dorsetshire in 1606, died 20th September 206 VINDICATION OF THE ANTIQUITIES 1615, and is buried in tiie church of St Andrew at Mintern-Magna. He married Magdalene, daughter of Sir Anthony Denton, and their only son was that Sir Nathaniel who is mentioned by Sir Archibald Napier as alive in 1625. He was knighted by King Jaiiies at Newmarket in 1617, was high sheriff of Dorsetshire in the 18th year of that reign, and represented it in Par- liament in the first year of the reign of Charles I. that is 1625. He built a splendid mansion at Morecritchill, which became the chief seat of his family. Sir Natha- niel also reposes in the church of St Andrew at Min- tern-Magna, and upon his tomb is inscribed, " Here lies the body of Sir Nathaniel Napier, the only son of Sir Robert, of much esteem and honour in this county, who died the 6th of September 1635." Above his tomb, and above hisj'af/ie?''s tomb, amid the quarterings and impalements of this family, the shields which occu- py the first armorial place are, Napier^ a saltier en- grailed between four roses. This junior branch of the eldest English cadency from Merchiston, continued (to a comparatively modern date, when it became extinct in the male line,) through Sir Nathaniel, Sir Gerard, &c. to enjoy successively high distinction in the county of Dorset as sheriffs and repre- sentatives in Parliament, — forming alliances with the fa- milies of Gerard, Colles, Windham, Guise, Worsley, Wy- mondly, Phelips,and Oglander, — sufferingfor loyalty, — receiving royal progresses at Morecritchill, — and laying their bones in St Andrew's of Mintern-Magna, under the heraldic story of the St Andrew's Cross of the Le~ venax, which no one of them ever doubted. Sir Nathaniel married Elizabeth, sole daughter and heir of John Gerard, Esq. of Hyde in the Isle of Pur- beck ; she died on the 7tli of October 1624 ; all this OF MERCHISTON AND THIRLESTANE. 20? appears upon her tomb at Mintern-Magna, Their second son, Robert, became possessed of, and established at, Puncknoll in Dorsetshire, which, as mentioned in the Merchiston certificate, had in 1625 belonged to an elder branch of the family. This Robert was master of the Hanaper office in the reigns of Charles I. and II., and enjoyed many employments at court, the family being of unshaken and devoted loyalty. His son and heir, Robert, was in his father's lifetime master of the Hana- per office ; and King Charles II. sent for him to court, knighted him, and appointed him high-sheriff of Dor- setshire. Soon afterwards, in 1681, the same monarch created him a baronet. He served in the Convention Parliament, and other succeeding Parliaments, for the boroughs of Weymouth, Melcomb-Regis, and Dorches- ter, and died in 1700. The male line of this branch became extinct before the close of that century. Their shield di splayed «/-^^w^ a saltier ejigrailed cantoned with Jhur roses gules. From iliejonrth son (James) of Sir Nathaniel Napier and Elizabeth Gerard, descended Nathaniel Napier of Loghrewin the county of Meath, Ireland, — General Na- pier, and others. This latter was Lieutenant-General and Commander-in-chief of the Forces in Ireland, and died in 1739- Of this Irish branch James Lenox N^a- pier became Lord Sherbourn ; one of whose daughters married Viscount Andover, son and heir of Charles Earl of Suffolk, and his son married tlie daughter of Lord Stawel ; another of his daughters married Prince Ba- riatinsky of the Russian Empire. This branch, too, not only carried the Lennox arms of Merchiston, but some- times gave the name of Lennox to their children. The branch of TintinhuU, elder than the Morecrit- chill branch, is represented to this day in lineal male de- 208 VINDICATION OF THE ANTIQUITIES scent by a Napier, and I believe is the only branch of all the English cadences from Merchiston of which that can be said. The manor of Tintinhull in Somersetshire, or as it is called in Domesday book " Tintehalle," was possessed by Nicholas Napier in 1625, and his lineal male descendants kept possession until very lately. The present representative is Colonel Charles George Napier, formerly of the Royal Artillery. Through the late Lord Napier I obtained from this gallant officer another copy of the certificate of cadency by Sir Archibald Napier, which precisely agrees with the copy in the Merchiston charter-chest. This family never entertained a doubt of their cadency from Merchiston, and have constantly carried ardent, a saltier engrailed, cantoned with four roses gules. Unfortunately the estate of Tintinhull was very hastily sold in the minority of the present repre- sentative.* Such is a meager account of that other distinguished and populous cadency from Merchiston, which the learn- ed author of the Tracts must either hold to be a race of phantoms or of puppets. If his theory be that the first Lord Napier dictated them from his own imagina- tion, of course he considers them phantoms. But if he mean that his Lordship, from some unaccountable whim, or all to aggrandize the " Turkey merchant," seized upon certain distinguished families in England, — haply * This is the only Colonel Napier (in life,) of the many so dis- tinguished in the battles of their country -, who is not in lineal male descent a Scott of Thirlestane. The gallant seaman, too, who in piping times of peace took a fleet for pastime, is a Scott of Thirle- stane. Napier of Tintinhull, as a British officer, has also added lus- tre to the Napiers of IMerchiston, having fourteen wounds, and two limbs disabled. OF MEKCHISTOX AND THIKLESTANE. 209 descended from Manigarus cle la Naperie, or the Vena- tor Regis, — to bud them unnaturally upon his tree of Merchiston, then they were his puppets, for they believ- ed him, and, while forming alliances with the best blood of England, planted his Lennox roses about their tombs, and christened their childrens' children Lennox ! But the sentence by which Mr Riddell lops off this important branch, and contemptuously rejects the attestation of their chief, combines the close reasoning of a Hume (not David) with the nervous styleof aCobbett."In the above attestation of the first Lord (he says) there is a Sohujbist- ed in at an earlier period, and made the ancestor oi other English Napiers ; but the fact is quite uninstructed ; in other transcripts he is called James, — in short, as has been observed, these garbled statements as to the sup- posed Scoto- English A^apiers," &c. &c. Let us take a walk in Dorsetshire again, for there is a healthful scope and plentitude of record, about the Hundreds and Liberties of merry England, that serves to invigorate and enlarge the antiquarian mind. James, (it may be John,) grandson of John Napier of Merchiston and Elizabeth Menteith, first planted him- self, says Sir Archibald, in Swyre in the county of Dor- set. Let us go to Swyre, — situated in the Hundred of Uggescomb, on the British channel, one mile from the sea, cold and bleak, but the air is healthy. Are there any traces to be met with in authentic records of any Napier having settled there at that early period ? From such records it appears that the manor of Swyre, once the possession of Margaret Countess of Saruni, was granted by King Henry VHL to Edward Napper. This manor of Swyre, with 17 messuages 6 cottages and 640 acres of land, he held of the King in chief by fortieth part of a kuighCs fee ; and also the advowsou o 2]0 VINDICATION OF THE ANTIQUITIES of the church. In the 15th of Queen Elizabeth, Wil- liam, son and heir of Edward Napper, gent, held the premises, the gift of King Henry to his father, val. L. 7, 8s. 3d. Now the pedigree of the family of More- critchill records this Edward as the eldest son of John Napper qfSwyre in the reign of Henry VH., and Anne, daughter of John Russell of Berwick, a marriage of which the Merchiston certificate takes no cognizance, and which, therefore, must have been derived from some other source. Neither does Sir Archibald, while he names the place where this John, or James, first planted him- self, take any charge of the place of his huriah But the Morecritchill pedigree says he was buried at Swyre, — so to the church of Swyre let us go. It stands at the south end of the parish, and was de- dicated to the Holy Trinity in 1503. It consists of a chancel and body, with a porch on the north and south, and a tower in which are, or were, three bells. The c/^/<^monument is on the north wall of the chancel, and is composed of freestone. On the top an urn, between two death's heads, and under it a cherubim ; at the base, an armorial shield, being a saltier engrailed cantoned with four roses, and a crescent of difference. Let us read the inscription : " In memory of James Napier, gent, brother of Sir Alexander Napier of Merchiston and Rosky, Kt. who was descended from the ancient family of Lenox, in Scotland, which Earles changed their name of Lenox for Napier, at the command of their King of Scotts, upon the account of a victory obtained against his enemies by Donald, second son of the then Earl of Lenox, com- manding his father's men, which Donald was then made the King's servant, who gave him lands, which the Na- piers still enjoy by the name of Lenox, alias Napier. OF MERCHISTON AND THIRLESTANE. 211 In time, the earldom fell to two daughters; the youngest was married to Allen Stewart, ancestor to King James the First, icho commandecP Sir Robert Napier of Luton- how in Bedfordshire, upon creating him Baronet A. b. 1612, to send for his pedigree out of Scotland, whereby it appears that are descended as aforesaid all the Napiers of England. The said John Napier, who lies here inter' red, came into England in the reign of H. VII. set- tled here, and supplied the several adjacent Abbeys with fish ; from whom are descended the Napiers of Dorset and Somerset. All this is attested by Sir Ar- chibald Napier, Kt. privy-counsellor, and treasurer to our King James the First, and recorded in the herald's office by Sir William Segar, Kt. garter, September 1st, A. D. 1625. This monument was erected by the Honourable Sir Robert Napier, Kt. a. d. 1692." In the antiquities of the church it is stated, that " be- fore the above monument was erected, here was a brass plate in memory of this gentleman, now lost." Now though this inscription be but an inaccurate abstract of theMerchiston certificate, with its doubtful tradition, and meager and faulty antiquities, it is excellent evidence of a James (or John) Napier having settled at Swyre, just as Sir Archibald said ; for it is not that circumstance, but the Lennox descent which is here recorded solely upon his attestation. Local knowledge, and probably the brass plate had told that Napier of Swyre was bu- ried there, and the personal and particular anecdote * I had not observed the account of this monument and inscription when compiling the Memoirs of ^lerchiston. It would :ipi)ear that it was King Janies himself who had suggested to the Turkey mer- chant to apply to Sir Archibald for his pedigree, (which agrees cu- riously with Lilly's anecdote, see supra, p. 194,) though that had not been done, it would seem, until 1625. There is the discrepancy oi James and John in the above, which we leave for Mr Riddell. 212 VINDICATION OF THE ANTIQUITIES (certainly not derived from Scotland) of his catering for the luxurious Abbeys, is so invaluably corroborative, that we care not though he had carried the fish in a creel. We have, then, not only found the John or James " foisted into" the Merchiston certificate, but we have ascertained some of his dealings, the name of his wife, and the very spot of his interment at Swyre. Nor must we omit to record his charity, (it may be that of his son,) which extended beyond the circle of Swyre. In the Hundred of Goderthorn, and tything of Adelyngton, there stood the Hospital of St Mary Mag- dalene, for lepers, suppressed in 1553. It appears from the records that i/f/w^^* Napier of Swyre, yeoman, gave by w\\\,sa?is date, five shillings yearly to the use of the poor in this hospital for ever; if the annuity be unpaid on the day of St John the Evangelist, they or their depu- ty to distrain on his lands at Baglake. Yes, says the author of the Tracts, but in the year 1625 the distinguished families of Tintinhull, Middle- marchall, PuncknoU, &c. had all become ashamed of the fishman of Swyre, and as the Turkey merchant — the noviis homo of Luton-hoo whose descent was unknown, and who did not even know who his own father and mother were — was getting a pedigree to himself from Scotland under the auspices of James VI., they conceiv- ed the idea of being included in the same patent of gen- tility ; Sir Archibald Napier was a courtier and a crea- ture of that monarch, so he fathered them all ; and this " lacteal relationship," (for there was much of the milk of human kindness in it,) probably was the cause of his own subsequent elevation to the peerage ; and thus it was that these supposed Scoto-English 'N apiers foisted the Lennox arms upon their tombs at Mintern-Magna. What, then, does our learned antiquary make of the fact, that these Napiers carried the Lennox arms half a OF MEKCHISTON AND THIRLESTANE. 213 century before the date of Sir Archibald's certificate ? — ■ but let us stroll among the Hundreds and Liberties again. Adjoining to the free-school of Dorchester is, or was some years ago, a handsome alms-house for ten poor men ; before it a neat piazza, in it a small chapel, and over the door in Roman capitals, NAPPER'S MITE. Underneath is the Lennox shield of Napier, and this inscription, " Built to the honour of God, by Sir Robert Napper, Knt. 1615." This was the chief baron of Ire- land, who died in September of that same year, and his Lennox shield is also placed, matrimonially with that of both his wives, in the church at Mintern-Magna. In the Hundred of Uggescomb there is the church of St Mary, whose walls are crowded with the arms of Mer- chiston of various dates. In the south aisle, under which is a vault, may be seen a mural monument of freestone. On the top the Lennox shield of Napier, crest a pyra- mid, on its point a globe, and under it, cut in stone, and in Latin, " William Napier, Esq. formerly patron of this church." It also appears by another Latin inscrip- tion cut on the stone, that " the said William Napier presented William Carter, clergyman, to this rectory 26th June 1597-" On the same monument there is a brass plate containing the hie Jacet of this William, An. Dom. 16.. and recording, that he had travelled se- veral years in foreign lands, and married Anne Shelton, daughter of William Shelton, Esq. of Onger Park in Essex. Upon this plate, too, is the Lennox shield of Napier, with a lapwing for crest, under which is a man in armour kneeling at a desk with a book. One other proof may be afforded. It appears that this cadency had some connection with the county of 214 VINDICATION OF THE ANTIQUITIES Devonshire at a very early period, for in the " Alpha- bet of Arms" compiled from the most authentic authori- ties by Joseph Edmondson, Mowbray herald extraordi- nary, I find recorded, " Naper, Devonshire, argent a saltier engrailed hetimxtfour cinquef oils gules ; crest a demi-antelope erased or, attired ar. August 1st 1577." To have been favoured by the learned author of the Tracts with more accurate antiquities than the Memoirs of Merchiston afford, would have been a boon thankful- ly received, — to have been substantially refuted by him, an honour duly appreciated. But the contemptuous controversy of a desultory Tract, which strives to dis- credit a laborious work without aiding it, deserves nei- ther thanks nor praise. The learned antiquary's aim almost appears to have been to leave no excuse to the author for having compiled the Memoirs of Merchiston. He virtually says, — the antiquities are naught, founded on fabrications or imagination, — the conspicuous men, of Napier's day were immoral hypocrites, and his own character has been partially eulogized, — his very por- trait was not worthy of being engraved, nor his genius of illustration ; for Mr Riddell is enamoured of a dictum of Scaliger's, — ''PriFclarmn ingenium non potest esse mag- mis mathematicus" — " which," says he, " may apply to Napier with due force, for his pursuits were limited, and chiefly confined to the department which this great au- thority pointedly undervalues ; indeed, it is thought by some that mathematics contract the mind, and unfit it for other pursuits."* Having thus severely pronounced upon our venerable philosopher in the morale, he con- cludes by insulting him in the physique. Alhiding to * Tracts, p. 1 13, el infra. OF MERCHISTON AND THIRLESTANE. 215 the family resemblance between the portraits of Mer- chiston and Dr Richard, he says " like is an ill mark, and the learned gentleman well knows that it is no evi- dence in law ; indeed, all the philosophers and wizards at the time, judging from their starched and oivlish visages, as exemplified in i)ictiires where the same cos- tume and attitude are observed, bore a wonderful like- ness to each other." We cannot cope with Mr Riddell in irony and sar- casm ; but why is he so severe throughout upon us and our Coryphaeus ? If the critics of this splenetic world were always to obtain credit, genealogists would fare no better than mathematicians, and antiquaries be as severely pictured as philosophers and wizards. It was the elegantly malicious author of the Memoirs of Gram- mont, who, when characterizing that strange person M. de Senantes, said of him that he was "fort en ge- nealogie comme sont tons les sots qui ont de la me- moire" — a foolish saying, like Scaliger's ; and for a spiteful picture, of that delightful and sacred character an antiquary, take that drawn by the little vicious Queen Ann's man : But who is he in closet closely pent, Of dreamy face with learned dust besprent ? Right well mine eyes arede the myster wyght. On parchment scraps y-fed, and Wormius hight. One parting blow has the author of the Tracts at the poor biographer himself, whose antiquities he has so se- verely handled. He controverts, hwt fails to disprove, that Sir John Menteith was head of the house of Rusky ; he says, " due praise must be awarded the author of the Memoirs for his manly and spirited vindication of Sir John Menteith ;" and the praise he gives is this, — " the motive, therefore, for the defence of Menteith that has 2J6 VINDICATION OF THE ANTIQUITIES inspired the learned author of the Memoirs, being, alas ! of an elusory kind, is somewhat akin to the veneration of the knight of La Mancha for his mistress, — or, to use a grander simile, like the fabric of a vision that leaveth not a wreck behind." But who would not be proud to resemble the gallant and high-souled Don, and would not be likened to him rather than to one Signor Bachelor Samson Carrasco, who went out toreclaim that memorable enthusiast, and was himself laid prostrate. But the Bachelor was more successful in his second crusade, and so may Mr Riddell be in a rejomder. In the meantim.e, (to follow out his own il- lustration,) he of the Memoirs is, by right of conquest, entitled to dictate a penance to him of the Tracts. For a whole twelvemonth he shall go no more forth a pick- ing pedigrees — or disenchanting genealogies — or rescu- ing charters in distress; but, putting off his antiquarian armour, and clothing himself in the humble habit of a repentant 'peej^age writer, he shall perform a pilgrimage to Oxford, and there, at the shrine of the picture of the warlock, shall thrice proclaim in a loud voice to the as- sembled clerks and monks of Oxford, " The Inventor of Logarithms and Dr Richard Napier were brother's sons." OF MERCHISTON AND THIRl-ESTANE. 217 III. REPLY TO MR RIDDELL's THEORY THAT THE GRANT OF ARMS BY JAMES V. TO SCOTT OF THIRLESTANE IS FOUNDED ON FORGERY ANTIQUITIES OF THE SCOTTS OF HOWPASLOT AND THIRLESTANE. In consequence of the marriage of Sir William Scott of Thirlestane to the heiress of Napier in 1699, their eld- est son, Francis fifth Lord Napier, quartered his mater- nal coat, the Lennox arras of Merchiston, with the royal augmentation granted in 1542 to John Scott of Thir- lestane by James V. This grant was a reward for singular loyalty, and has been doubly endeared to the family in modern times, by the beautiful verse devoted to the incident in the Lay of the Last Minstrel. First and foremost in the gathering for Buccleuch, — " From fair St Mary's silver wave. From dreary Gamescleugh's dusky height, His ready lances Thirlestane brave Array 'd beneath a banner bright ; The tressured fleur-de-luce he claims To wreathe his shield, since royal James, Encamp'd by Fala's mossy wave. The proud distinction grateful gave For faith 'mid feudal jars ; What time, save Thirlestane alone. Of Scotland's stubborn barons none Would march to southern wars ; And hence, in fair remembrance worn, Yon sheaf of spears his crest adorn, Ilence his high motto shines revealed, ' Ready, aye ready,' for the field." 218 VINDICATION OF THE ANTIQUITIES Sir Walter in his notes to this verse quotes frorn Lord Napier's charter-chest the precise words of what he conceived to be the orighial warrant, for this armorial augmentation, addressed at Fala by James V. to the Lord Lyon. Nesbit* also quotes the document without re- marking that it bears unequivocal appearances of being a transcript merely, and not an accurate one. Mr Pin- kerton, in his History of Scotland, says that James V. marched to Fala in the month of October 1542, and adds in a note this remark, " Nesbit in his Heraldry produces a charter to John Scot of Thirlestane, granting an addition to his arms, and the motto ready ay ready, to reward the support of the King at Soutra, when all the other chiefs desired to retreat. It is dated at Fala Moor, 27th July 1542, an error in the date, or a forged charter." He had not examined this document, how- ever, and it is unbecoming in any historian thus vaguely to conjecture forgery. Francis Lord Napier, in his genealogy of Napier, published in Wood's Peerage, met the hasty insinuation with the following remark. " This warrant (says his Lordship) had been long considered as an original. Pinkerton started doubts of its au- thenticity from the date July 1542, as it was not till October that the King marched to Fala Moor ; and on a narrow inspection of the charter in the possession of Lord Napier, it appears to be only a copy with an error in the date by the transcriber. The grant cer- tainly took place, as the augmentation and motto, as de- scribed in the charter, are borne by the family at the present day." In reference to this subject, Mr Riddell suddenly flies off from his critique of the antiquities of Merchiston, in- * Heraldry, Vol. i. p. 97- OF MERCHISTON AND THIRLESTANE. 219 to a strange appeal to the attention of the public, in- volving a censure of the author for his ill-judged choice of a biographical subject in the Memoirs of Merchis- ton. " After all, however," (he exclaims,) " it must still he rememhered, that the biographer of Merchiston, and his chief, are only Napiers in the female line ; and it may be observed, that they perhaps might have a better' soil to work upon., if they investigated into the descent of their wm/^ ancestors, the Scotts of Thirlestane; these Scotts, there is grovmd to conclude, are a branch of the Buccleuch family, from whom they may have sprung about the middle of the fifteenth century ; and there is a historical incident connected with them that is singu- lar and curious ; they bear, as is well known, the double tressure, a part of the royal insignia, round their arms, with other additions, in consequence, as is said, of the striking loyalty of an ancestor to James V. which is com- memorated by Sir Walter Scott." Having delivered this admirable reason for preferring memoirs of Thirlestane to those of the Inventor of Lo- garithms, our antiquary notices the document in ques- tion, Pinkerton's remark upon it, and Lord Napier's re- ply. He then brings forward the following valuable re- cord, which had been lost sight of by the family. " The author some years ago discovered in his Majes- ty's State Paper Office a warrant by King William, un- der the sign-manual, dated 18th December 1700, which throws further light upon the subject, and shows under what title the high privilege alluded to is now enjoyed by the family. The authority sets forth that the Lyon had represented to his Majesty, ' That John Scott of Thirle- stain, great-grandfather to Sir Francis Scott, now of Thirlestain, having assisted our royal progenitor James the V. King of Scotland, at Sautrey edge, with a troop 220 VINDICATION OF THE ANTIQUITIES of launcei's of his friends and followers, and was ready to march into England against the English then invad- ing Scotland, his said Majesty, as a reward of his good and faithful service, authorised and gave warrant to his Lyon King of armes to give the said John Scott a bor- dure of flower-de-lis, siclike as in the royall bearing, a bundle of lances for his crest, and two men armed with jacks and steel bonnets, with lances in their hands for supporters. Of the truth of all which our said Lyon King of armes is fully satisfied hoiw good testimony , and an old inventory of the writs and evidents of that family produced by him, wherein the foresaid warrant is fully deduced, but beiring that the principal wryt itselfe can- not be found, without which, or a new warrant under our royal hand, he is not at freedom to assign to the said Francis the double tressure, as born in our arms of Scot- land ; and wee being willjiig to gratify and honor the heirs and representatives of all loyall and valorous pro- genitors, and to bestow a mark of our royall favor upon the said Sir Francis Scott, for good and faithful services done, and to be done by him to us ; therefore, we hereby authorize and order our Lyon King at armes, in our said ancient kingdom of Scotland, to add to the paternal coat of armes of the said Sir Francis Scott, a double tressure flowered and contre-flowered with flower-de-lis, as in our royal armes of Scotland, and to give him crest, support- ers, and other exterior ornaments, as is above exprest, or as to him shall seem most proper.' "* The claim, then, had been investigated, and admitted by the proper and highest authorities in the year 1700. Nor could it be imagined that Mr Riddell, after his com- •plimentary introduction to this proof, meant any thing * Tracts, p. 140, el hifra. 4 OF MEECHISTON AND THIRLESTANE. 221 else than honour to Thirlestane. Not so, however. His aim in the whole of his tangled web of criticism is to leave the same species of imputation upon the Thirle- stane quarters of the Merchiston armorial bearings, that he had previously attempted to cast upon the Lennox quarters, — namely, suspicions of falsehood, fraud, and wilful imposition against some person or persons un- known, — a most convenient mode of accusation, which neithercommitshimin a proof, nor renders him amenable to an individual. Accordingly, in the following some- what flighty strain, he comments upon his own disco- very. " It must be confessed, upon the whole, tiiat there is something suspicions in this transaction. There was hence, more than a century ago, no proper warrant or authority for the alleged grant in 1542, — merely an in- ventory is referred to, and, after all, it is not likely that either there or in a copy, so palpable an error as was detected by Pinkerton, — and countenancing the idea of forgery — should have been committed. Independently, too, oiihe u7iauthoi'i%ed interpolation of supporters in the grant in 1700, of which there is no mention in the sup- posed warrant in 1542, the wording of the latter may not be altogether satisfactory ; but, be this as it may, the homologatory act, or new concession, as it proceeds directly from the sovereign, must be held of itself to be quite sufficient, and fully to vest in the family the trans- cendent privilege in question. The use, of these arms in modern times to which the late Lord Napier appeals, will not, therefore, prove the authenticity of the AYar- rant in 1542, as that may be ascribed to an interven- ing circumstance, of which his Lordship was unaware. It would truly be curious, and perhaps no inferior test, to ascertain what were the armorial bearings of the Scotts 222 VINDICATION OF THll ANTIQUITIES of Thirlestane immediately after 1542, and in the course of the sixteenth century. We ihn^ further find, contrary to some absurd usages in modern times, that no part of the royal arms can be given to a subject without an ex- press warrant from the Crown." &c. It is difficult to say whether Mr Riddell intends, in the sentences quoted, to rate the good King William and his Lord Lyon, or merely to tache the shield of Thirlestane, — whether to stamp as a forgery the old in- ventorij referred to in the royal renewal, or the oldwar- r«^i^ referred toby Pinkerton, — and whether he really concedes to the family the right which he calls atranscen- dent privilege, but which in his view of the facts would confer very little honour. Is this a charge of forgery, or a defence against it ? Does the author of the Tracts reject the idea of any blunder in the inventory f Does he mean to say that, in the inventory, or in a copy of that, it was that Pinkerton detected a palpable error ? And how does he make out that a palpable error coun- tenances the idea of forgery ? We have heard of an admirable attempt to forge a whole charter-chest, which for a time was successful. But the splendide mendax conception of manufacturing the Shakesperean papers, including complete plays newly discovered, was an effort, the anticipated reward of which might hold out a temptation, while the unparalleled genius of its execution all but justifies the lie. We have * The production of a charter-seal of the family immediately af- ter 1542, bearing the augmentation, would be excellent evidence of the grant ; but the converse by no means holds, as various circum- stances might have prevented the chief of Thirlestane, or some of his descendants, from affording that evidence of the grant. Ancient seals are not mentioned in the renewal as part of the evidence. I am not aware of any seal of the family extant of the date. 3 OF MEllCHISTON AND THIRLESTANE. 223 heard of subordinate agents forging documents to as- sist 3i peerage claim without the connivance of princi- pals, and the temptation there, too, is manifest. But such acts of deceit, as are pointed at by Mr Riddell's suspicions, only prmc/jmls could have a motive for per- petrating. Now to concoct an old seal, — for the sake raerelyof establishing a wa/^descent from Lennox, where ajemale descent which carried the fief was already ad- mitted, — or to forge a warrant of arms, merely to esta- blish the loyalty of a border chief, would be a luxury of deception, requiring more credulity to believe, than that Merchiston is come of Tudor, or that John of Thirle- stane had, like the Roman knight, sacrificed himself, his horse and his arms, to close up a yawning gulf of rebellion. I shall here quote verbatim the warrant in Lord Naj)ier's charter-chest ; for neither Nesbit nor Sir Walter Scott have given it with precise accuracy. The former has omitted certain clerical blunders in the body of the in- strument, which are material in a question of forgery, and in the notes to the Lay, the date, and also the sig- nature of the King's secretary are misprinted. " James Rex. " We, James, be the grace of God King of Scottis, considerand the faith and guidservis of of of right traist freind, John Scott of Thirlstane, qua cummand to our hoste at Sautra edge with three score and ten launcieres on horsback of his freinds and followers, and beand willing to gang with us into England, when all our nobles and others refuised, he was readdy to stake all at our bidding, for the quhilk cause it is our will, and we do straitlie command and charg our Lion Herauld and his deputis for the time beand, to give and to graunt to the said John Scott ane border of fleure de lises about his coatte of armor, sic as is on our royal banner ; and 224 VINDICATION OF THE ANTIQUITIES alsua ane bundell of launces above his helmet, with thir words, Readdy ay Ready, that he and all his aftercum- mers may bruik the samine, as a pledge and taiken of our guid will and kyndnes for his treue worthines. And thir our letters seen, ye nae wayes failzie to doe. Given at Fala Muire, under our hand and privy cashet the xxvii. day of July, i'^v^ and xxxxii zeires. " By the King's Grace's special ordinance, " Tho. Akskine. Indors. — "Edin. 14 January 171^,Registred conform to the Act of Parliament made anent probative writs, p^r M'Kaile, Pro^ and produced by Alexander Borthwick, servant to Sir William Scott of Thirlestane. M'L. I."* If this be a forgery, it is a very strange one. Inde- pendently of the other considerations already offered, there are three facts which militate against such an idea. l.The repetition of of of \^ the blunder of a transcrib- er^ not of a forger ; one of is probably a misreading for our. 2. The date is filled up in a different hand from the rest of the document, and is obviously an awk- ward attempt to copy ancient figurate expressions, which appear to be blundered, and were probably misread ; a forger would have been more careful in this circum- stance, and might have left the day of the month blank, as that frequently occurred in ancient authentic writs. The awkward imitation of the figures is the source, probably, of the blunder in the notes to the Lay of the Last Minstrel. 3. A privy-seal is mentioned, yet there is no seal attached to this document, nor is there the slightest attempt made to give the appearance of * Mr Riddell does not print this document, but gives bits of it, in a sentence of thirteen lines commencing with a royal nominative that never finds ;i verb — Hee Tracts, p. 1-11. OF MERCHISTON AND THIRLESTANE. 225 one ; a person feigning so deliberately would either not have mentioned a seal at all, or have given the indica- tions, at least, of one. Moreover, this transcript (for it is obviously such) is written upon a small piece of parch- ment in a distinct old-fashioned hand, but possessing none of the characteristics of 1542, nor is the King's sig- nature at the top at all like that of James V. This, too, must be observed, that King William's renewal makes no reference to it, but to good festimotii/, and an old in- ventory ; and it is registered thirteen years after the date of that renewal, having probably been ill transcrib- ed from the inventory in a state of decay. The ancient writs and evidents of the family of Thirlestane are lost, and I have not been able even to discover the old inven- tory. Whether that mentioned the circumstance of supporters, which the transcript warrant does not, it is impossible to say, — we must in the meantime take the word of King William and his Lord Lyon for what Mr Riddell condemns as an " unauthorized interpolation of supporters." When was the forgery committed ? why ? and by whom ? Was it Sir Francis Scott who did it, or caused it to be done ? He was a gentleman of unsullied honour, and high consideration in the country. Or does the charge of forgery point to some period more remote ? — haply to stalwart John of Fala himself, whom our anti- quary may picture " Now forging scrolls — now foremost in the fight. Not quite a felon, yet but lialf a knight. The gibbet or the field prepared to grace, A mighty mixture of the great and base." It must be granted indeed to the learned author of the Tracts, that these moss-trooping Lords of St Mary in the forest were not immaculate, and a vague insinu- 226 VINDICATION OF THE ANTIQUITIES ation or so of theft might have been more difficult to parry. But it was as " minions of the moon" that they sinned, and old Satchells tells us, " Nightsmen at first they did appear. Because moon and stars to their arms they bear." Mr Riddell, we think, would have been much better employed in affording some elucidation of the interest- ing fact to which he slightly alludes, — that " the Scotts of Thirlestane, there is ground to conclude, are a branch of the Buccleuch family, from whom they may have sprung about the middle of thefifteenth century," — than in his elaborate attempt to give weight to the hasty conjecture of Pinkerton. It is not in ?ritiocination from such premises that the learned antiquary is either valuable or formidable ; but in his curious store of facts derived from a life devoted to genealogical researches. This cadency from Buccleuch is not recorded in the published genealogies of Thirlestane. It is on record, indeed, that Robert Scott of Thirlestane, Warden-de- pute of the west borders, and eldest son of the hero of Fala, married Margaret, daughter of Sir Walter Scott of Buccleuch, and sister of that noted Sir Walter who took Kinmont Willy out of the castle of Carlisle, and blew a blast of defiance from its battlements against the Queen of England. In that very achievement, and in all the border chivalry of the period, the name of How- paslot and Thirlestane is identified with that of Buc- cleuch. " Then lightened Thirlestane's eye of flame, His bugle Watt of Harden blew ; Pensils and pennons wide were flung To Heaven, the border slogan rung, " St Mary for the young Buccleuch." OF MERCHISTON AND THIRLESTANE. 227 This marriage unquestionably gave to the Lords Na- pier, as Scott of Thirlestane, the lineage of Buccleuch ; but it would be still more interesting to prove that Thirle- stane was originally a male cadet of that distinguished and romantic house. All the genealogical accounts agree in this, and are corroborated by the records, that the Scotts of Thirle- stane were in ancient times Scotts of Howpaslot. Their male lineage can be traced upwards from Lord Napier to Walter Scott of Howpaslot, whose name occurs in the records so early as 1493. Nesbit gives the descent of Howpaslot from an Arthur Scott of Eskdale, for whose existence I can find no authority. Walter Scott of Sat- chells, author of the curious metrical " History of the right honourable name of Scot," in whose rude pages may be discovered a germ or two of the polished Lay of the last Minstrel, repeatedly asserts that Walter Scott of Howpaslot was the son of William Scott, of the house of Buccleuch, which statement is perfectly con- sistent with unquestionable records. Satchells lived in the time of Sir Francis Scott, in whose person the ar- morial augmentation was renewed by King William. Sir Francis appears to have been a friend and patron of Satchells, who dedicates part of his book to him, and " To the truely worthy, honourable, and right worship- ful Sir Francis Scot of Thirlston, Knight, Baronet, wishes earth's honour and Heaven's happiness." The poet, indeed, by his own account, was nearly related to his patron, for he says, in a short prefatory account of himself, " it is known that I am a gentleman by pa- rentage, but my father having dilapidated and engaged the estate by cautionry, having many children, was 228 VINDICATION OF THE ANTIQUITIES not in a capacity to educate us at school after the death of mij grandfatlier Sir Robert Scot of Thirlstone ; my father living in a highland in Esdail-muir, and having no rent at that time, nor means to bring us up, except some bestial, wherefore, instead of breeding me at schools, they put me to attend beasts in the field ; but I gave the short cut at last, and left the kine in the corn, and ever since that time I have continued a souldier, abroad and at home, till within these few years that I have become so infirm and decrep'd with the gout, which hath so un- abled me that I am not able to do the King nor myself service." In this state, and never having been able, as he tells us, either to read or write, he managed, by means of catching school boys for clerks, to record very minute genealogies of the numerous families of Scott, in an exu- berant, fantastic, and sometimes romantic web of mingled verse and prose. Often his verse halts miserably, and is downright doggrel ; there are times, however, when it flows as if he had watched the stars, as well as flocks in Esdail, with Spencer in his bosom. " Oil ! for a quill of that Arabian wing That's hatch'd in embers of some kindled fire. Who to herself herself doth issue bring. And, three in one, is young and dam and sire. Oh ! that I could to Virgil's vein aspire. Or Homer's verse, the golden language Greek, With polished phrases I my lines would 'tire. Into the deep of art my muse should seek ; Meantime amongst the vulgar she must throng, Because she hath no help from my unlearned tongue." Be this as it may, his genealogy of Thirlestane is very minute, and so far as I have tested it by records, appears to be essentially accurate. Of the hero of Fala-muir, (whose story, however, he does not narrate) he says. OF MERCHISTON AND THIRLESTANE. 229 " And John of Thirlstone, that brave fellow , Was son to David Scot of Howpaslow, And David was tliejirst Sir Walter's son." In another passage he says that the father of the first Sir Walter of Howpaslot was William Scott of the house ofBuccleiich. " And David Scot, my author let me know. He was son to Walter of Howpaslow, Sir Walter he was William s son. Of the worthy house of Buccleugh he sprung." This latter is the link that has hitherto been unregard- ed, and it is important to verify it from the records. There is a charter dated 21st November 1476, confirm- ed under the Great Seal in December following, from Ro- bert Scott of Haining to Thomas Middelmast, the wit- nesses to which are, David Scott, eldest son and heir-ap- parent of David Scott of Branxholm, and William Scott his brother. This proves that David Scott of Branx- holm, who sat in Parliament 1487 as Dominus de Buk- clewch, and died in 1 491, had a younger son of the name of William, who lived towards the close of the fifteenth century ; and so far Satchells is corroborated. It re- mains, however, to connect Walter Scott of Howpaslot (whose name occurs in the public records from 1493 to 1513) with the above William of Buccleuch, by some evidence independent of the family bard and chronicler, whose genealogies become valuable and interesting when so corroborated and confirmed. David Scott, the elder brother of the above-mentioned William, died before his father, leaving a son Walter, who was served heir to his grandfather David, 6th November 1492.* Walter's name appears as one of the witnesses to the infeftment * Crawfurd quotes charia penes Diicem de Biickcliig/i. 230 VINDICATION OF THE ANTIQUITIES of Queen Margaret in her jointure of the Lordships of Methven, Stirling, Ettrick, &c. in the year 1503. Thus far authentic records. Mr Douglas in his Peerage adds, and is followed by Mr Wood, that " he (Walter of Buc- cleuch) accompanied King James IV. to the fatal field of Floudon (1513,) where he remarkably distinguish- ed himself, and, though he had the good fortune to come off the field alive, where he left many of his brave coun- trymen dead, yet he did not long survive it, but died in 1516." Such is the received history of this nobleman, which, however, rendered the following entry in the re- cords of the High Court of Justiciary (a fertile source of border genealogies) somewhat perplexing. On the 19th November 1510, the Z/«% of Bukcleuche is summoned before the Court at Jedburgh as lawful surety of Bel- de Hohin Scot, as she received him in indenture from the coroner, and not compearing was fined, and the said Robin denounced a rebel. This looks as if the Lord of Buccleuch had been in abeyance at the time, and the matter is explained by another public record, which cer- tainly covers that sorely twitted class of authors, the peerage writers, with shame and confusion. In the re- cords of the acts and decrees of the Lords of Council and Session, there is this entry, dated 2d May 1509 ; " anent the term assignit be the Lordis of Counsale till Walter Scot, son and heir qfumqtthile Walter Scot ofBukcleuch, Walter Scot of Howpaslot, tutor to thesade Walter, for the proving of thepayment of i'^lx angellnobill clam- it on thaim and umquhile William Douglas of Drum- lanris Knt. be Margrete Ker, the relict of umquhile John Huime." &c. Thus it appears that the Walter of Buccleuch, who is supposed to have distinguished him- self at Flodden and escaped alive, was dead four years before that sad event, and had left a son, Walter, a mi- OF MERCHISTON AND THIRLESTANE. 231 nor. This Walter was served heir to his father 27th October 1517, which may have led to the idea that the previous Sir Walter lived to 1516, in which case of course he had not only escaped the carnage of Flodden, but distinguished himself there. What is of more consequence, however, to the pre- sent considerations, is the evidence afforded by the ex- pressions tutor of Succleuch. This designation is well known to imply that the party was nearest agnate (kins- man to the pupil on the father's side) of the age of twen- ty-five years ; and Walter of Howpaslot's relationship to Buccleuch can now be distinctly traced. JVilliam Scott we have already proved to have been the son of David, and the younger brother of another David of Branx- holm and Buccleuch gratidfather to this minor. Now, '* Walter (of Howpaslot) he was William's son — of the worthy house of Buckcleugh he (William) sprung." Thus it would appear that Walter of Ho^\ paslot was the nearest agnate, and tutor of Buccleuch, because he and the minor's father, Walter, were the respective sons of brothers, who were the sons of David Scott of Branx- holm and Buccleuch.* * Some years ago Mr Riddell communicated to myself the new genealogical fact, that he had discovered in some civil suit relative to the affairs of the young Buccleuch in 1509, that Walter Scott of Ilowpaslol was designed ttdor of Buccleuch. Tlie late William John Lord Napier delighted in his forest lineage ; and this information, which tended to establish a lineal male descent from Buccleuch, was very interesting to him. I had merely noted, however, Mr Riddell's verbal communication, which was in the above terms, and the diffi- culty occurred to his Lordship as well as to myself that (following the peerage account) there was no minor Laird of Buccleuch in 1500. Mr Riddell having lately recalled my attention to the fact, by that so- lemn and somewhat mysterious appeal which has been quoted, {supra, p. 219.) I was induced to exercise my own ingenuity in discovering 232 VINDICATION OF THE ANTIQUITIES I shall not follow Satchells through the genealogy of the family of Thirlestane, which he addresses to Sir Francis Scott, giving nine generations from Buccleuch, with the marriage of each, including Sir Francis himself, who, he says, " is now married to Ker, daughter to Wil- liam Earl of Louthian;" and he conchides, " Of his genealogy I said enough. His original it is of Buckleugh."* One of the most distinguished of this race was Robert Scott of Thirlestane, who was warden-depute of the west marches in the reign of James VI. He married Mar- garet of Buccleuch, whose mother was the Lady Mar- garet Douglas, eldest daughter of David seventh Earl of Angus, and niece to the Regent Morton. Margaret of Buccleuch was the sister of that noted Sir Walter Scott in whose person the family first became ennobled. The sons of this marriage of Thirlston, Robert, Walter, and William, were joined with their chivalrous uncle in the plot, execution, and consequence of that ever memorable adventure, which places an authenticated feat of border history on a level with the prowess of romance. No enchanted note from the castles of knight-errantry ever sounded with such thrilhng effect, as did the real, sub- the record containing the fact in question. Upon searching the Regis- ter-House very recently with that view, I discovered it (or a similar entry) in a volume of the Ada Domiiiorum Concilii et Sessionis, in the words and of the date quoted. The record contains nothing interest- ing beyond the above extract. * He married, by contract dated 27th November 1673, Lady Henrietta Kerr, sixth daughter of William third Earl of Lothian, and represented the county of Selkirk in Parliament from 1693 to 1701, both inclusive. Their eldest son. Sir William Scott, married the heiress of Napier, by contract dated 15th December 1699, and their eldest son was Francis fifth Lord Napier, lineal male ancestor of the present Lord. OF MERCHISTON AND THIRLESTANE. 233 stantial, forest bugle of Buccleuch, when, in the month of April 1596, from the very walls of her strongest for- tress, it challenged the might of England with " ok ivha dare meddle ivi' tne." A long and minute narrative of this unparalleled rescue is given by Satchells, whose own father must have furnished him with the details, as he was of the se- lect party who were with their chief at the storming of Carlisle. Among the few whom Buccleuch consulted in organizing the expedition was his nephew Sir Robert Scott of Thirlestane, but he refused to include him in the desperate adventure, or any of the heads of families where there were younger sons fitter to be "food for pow- der." Walter and William, the brothers of Thirlestane, were the two first men selected to compose this apparent- ly forlorn hope. When, however. King James, after the achievement, sent Buccleuch upon an adventure which perhaps tried his nerves more than the former, namely, to make his own peace with the enraged queen of Eng- land, — the tigress Elizabeth, — Sir Robert Scott was his sole companion. Satchells says that a thousand gentle- men of the name of Scott, Maxwel, Johnston, and Hume, conveyed him over Tweed, and there took leave of him with great lamentations, expecting never to see the bold Buccleuch again. But he adds, " Thirlston, Sir Robert Scot, bore his honour company. No more there past with his honour along But three domestic servants, and Sir Robert Scot had one." They travelled on horseback, and the bard narrates the various stages and resting-places of their nine days ride to London. When they arrived, " Notice came to the Queen that bold Buccleuch was there. Then she left her private chamber and in presence did appear." " How dared you do it?" said Elizabeth. " May it please 234 VINDICATION OF THE ANTIQUITIES you Madam," answered the border chief, " I know not the thing a man dare not do," — which reply proved how he could blow in a Queen's ear as well as upon his bugle. Sir Robert Scott's eldest son was also Robert, who died, as Satchells tells us, before his father without issue. Sir Robert, by a second marriage, had other sons, but they became denuded of their inheritance in favour of the son of Walter, their father's brother. Sir Robert mortgaged the estate to Scott of Harden, and Patrick Scott of Tanlawhill had the fortune to redeem it to him- self. Patrick's father was the Walter Scott whose death, in a mortal combat with John Scott of Tushielaw, is cele- brated in that beautiful ballad, " The Dowie Dens o' Yar- row." Patrick, his son, was the father of Sir Francis whom Satchells addresses. The late Lord Napier, al- luding to the dearth of Thirlestane papers in his own charter-chest, gives the following interesting account of the passing of the succession to his direct ancestor, " We are not Scotts of Thirlestane by primogeniture, but by purchase in the younger branch ; and although we ac- quired the estate, it does not follow that the family papers came along with it. When Patrick Scott of Tan- lawhill acquired the lands from Harden, and became Thirlestane, John Scott of Thirlestane, Sir Robert's son by his second wife, retired to Davington with the wreck of his fortunes, and perhaps his papers, among which may have been the original Fala grant of arms. We are not possessed of any of the old papers of Thirlestane. The estate was afterwards disputed, and finally settled in favour of Lord Napier about the year 1 745. The Davington family fell into decay, and parted with that remnant of their estate I dont know when, but have heard they settled as farmers about Moffat, and what has come of them I know as little. I ma}' add, that, a OF MERCHISTON AND THIRLESTANE. 235 few years ago, I met a beggar wife on the road near Thirlestane, and she told me she lived at Moffat, had a large family, and that her forebears had been lairds of all the country about. I asked for her husband, — unfor- tunately she never had one. Her name was Scott, and a descendant of the Davingtons. I lamented over my cousin, and dismissed her with a small present."* According to Nesbit the Davington family was in possession of a plate of lead bearing the ancient arras of Scott of Howpaslot and Thirlestane. He says, " The ancient armorial bearings of this family, described upon a very old plate of lead still extant in their possession is, on a bend, a mullet betwixt two crescents betwixt a bow full bent discharging an arrow in chief, and a hunt- ing horn, garnished and stringed in base, which last fi- gures have probably been added on account of some brave actions performed by the family." But it is a remarkable confirmation of the origin of Howpaslot from Buccleuch, that this is precisely the ancient bearing of the latter, with the exception of the bow and arrow, which probably was the mark of cadency. The ancient Buccleuch arms are stated in a curious and interesting anecdote given by Satchells, He narrates, that Walter of Buccleuch, and Robert of Thirlestane, had been at school together at St Andrews in the year 1566 ; [1576 ?] that on their return, Buccleuch being just of age, and about to travel, was desirous to visit the tombs of his ances- tors in the very ancient church, then a ruin in the fo- rest of Rankleburn, He went there accordingly, accom- panied by young Thirlestane, and Robert Scott of Sat» chells, the grandfather of the bard, from whose mouth he had the whole particulars. The earth and rubbish * Letter to the author, dated Thirlestane, 23d January 1832. 236 VINDICATION OF THE ANTIQUITIES were shovelled aside, and the tombstone disclosed, and swept clean, " where they did discern one stone which had the ancient coat of arms on it, that is to say, two crests (crescents) and a mulct borne on a counter scarf with a hunting horn in the field, supported with a hart of grace and a hart of leice ; Robert Scott said that he believed that it was four hundred years since the last of these stones had been laid." It adds to the interest of the story, that these young antiquaries were, according to Satchells, the same Buccleuch and Thirle- stane who in the year 159^, rode to London together to make their peace with Queen Elizabeth. The extinction of the male representatives of the el- der branch of Thirlestane is probable, but I have not investigated the subject. It is very interesting, how- ever, because between such representative, and the pre- sent Lord Napier appears to rest the high genealogical pretension of being heir-male of buccleuch, — a dis- tinction which I am not aware that any branch of the name can dispute with Scott of Howpaslot and Thirle- stane. Patrick Scott, the father of Sir Francis, was a great friend and ally of his kinsman, Walter second Lord Scott of Buccleuch, (son of the famous Walter,) created Earl of Buccleuch, Lord Whitchester and Eskdale in 1619. This nobleman, after distinguishing himself in the ser- vice of Holland, died at Loudon in the year 1633. Pa- trick Scott took charge of all his affairs, caused his body to be embalmed, and freighted a ship on the Thames to bring it to Scotland. Satchells, (in his narrative to Patrick's own son,) describes the extremities of ship- wreck they suffered on the coast of Norway, how they were fifteen weeks on the voyage from London to Leith, and adds. OF MERCHISTON AND THIRLESTANE. 237 " To all ages it should ne'er be forgot The pains that Patrick Scott of Thirlestane took, -^neas on Anchises he took pains enough, But Patrick Scott he took more of the Earl of Buccleuch."* Sir William, the eldest son of Sir Francis and Lady Henrietta Kerr, was the last of the family of Thirlestane who retained the name of Scott. It seemed by a spe- cies of retribution that their name merged in that of Napier, for the Scotts of Bowhill, a branch of Thirle- stane, murdered abrother of the Inventor of Logarithms, under circumstances discreditable to the chivalry of the borders. But the swan sings ere it dies ; and just be- fore the name of these unlettered " minions of the moon" was lost in that of Francis fifth Lord Napier, a tide of song flowed from his father Sir William that illustrates the letters of Scotland. His Latin poems, some of them humorous, others elegantly amatory, were published in a small volume at Edinburgh in the year 17217. He is therein eulogized by the editor Dr Pitcairn, and also by some contemporary poets, as among the very first in polite letters. But his more refined accomplishments were mingled with a vein of racy humour, which dis- played itself sometimes in the mock gravity of a carmen macaronicum, of which we can only aff'ord room for a single verse : * Patrick Scott not only redeemed Thirlestane, but the more ancient property of Howpaslot, (which had previously wandered into the family of Scott of Birkinside,) was recovered and restored to him by a first cousin of his own in 1658. Their ancient maxim and motto, " Best riding by moonlight," was not favourable to the acquirement of steady habits of economy by these possessors of St Mary's in the forest, to whom Satchells' characteristic of Scott of Glack is not inapplicable, " Oh ! the laird of (ihick, he must not be omitted, Though he sold the land of Goldicland long e'er he got it." 238 VINDICATION OF THE ANTIQUITIES " Per domum dansant tabulae, cathedrae, Fitstules, furmae, simul atque chistae, Rusticam ducit leviterque dansam Armo Cathedra." And sometimes in a genuine Scottish rant, one of the most celebrated of which, though not pubhshed in his name, and vaguely ascribed to others, we here lay claim to, as a lay of the last of the lairds of Howpaslot and Thirlestane who retained the name of Scott. " Fy let us all to the bridal For there will be lilting there. For Jock's to be married to Maggie, The lass with the gouden-hair. And there will be lang-kail and pottage. And bannocks of barley meal. And there will be good salt herring. To relish a kog of good ale," &c. Allan Cunningham, in his Songs of Scotland, doubtingly attributes this highly estimated gem (the whole of whose barbaric lustre we cannot venture to display) to Francis Semple of Beltrees, and says of it, " The com- pany and their feast are beyond the reach of any art save poetry : even Wilkie could not paint fadges and brochan, and the rich odour which ascended from the bridal dinner ; nor could Chantrey carve Madge, that was buckled to Steenie, nor Kirsh with the lily-white leg, and the strange way in which her misfortune befel." But Mr Cunningham was by no means satisfied with the claim for Beltrees, which does not even rest on good tra- dition, and the following extract of a letter from him, dated 4th August 1832, in reply to a communication from Lord Napier on the subject, is interesting. "I have examined the paper which your Lordship had the good- ness to leave with me. and I find my suspicions are con- firmed respecting the claim made in behalf of Semple of OF MERCHISTON AND THIRLESTANE. 239 Beltrees for the authorship of our north country favou- rite, * Fye let us a' to the bridal.' I always doubted the tradition, and now I find it rests on no authority which can destroy the family claim of the House of Na- pier. Your Lordship was the first who drew my atten- tion to the sea side flavour of the feast, and to the north of Scotland sort of air of the words. I shall consider it in future as- the lyric of a Napier, * unless some new light breaks in upon me. I have no doubt that the pa- pers and memorandums of many noble families in the north contain matters curious both in manners and li- terature. I wish some one with courage and knowledge and fortitude would make the search," &c. The information which the late Lord transmitted to myself on the subject is as follows : " Sir William Scott was author of that well known Scot's song, ' Fye let us a' to the bridal — for there will be liltings there,' — a bet- ter thing than Horace ever wrote. My authority was my father, who told me he had it from his, and that he had it from Ms, who was Sir William's son."f Such are the most interesting particulars of which I am possessed regarding this border family. It has hap- pened to the name of Scott, — whose characteristic in olden times was what William of Delorain said of him- self, " Letter nor line know I never a one Were't my neck-verse at Hairibee," to become intimately connected with the greatest achieve- ments in letters that have enlightened the world. The * Scott it should be, but the retribution prevails. t Letter to the author dated, Thirlestane, 15th December 1831. No tradition can be more satisfactory than this, considering how punctiliously accurate were the persons who compose the few steps of the transmission. 240 VINDICATION OF THE ANTIQUITIES lineal male descendants of Walter Scott, the wild tutor of Biicdeuch, are the lineal descendants of Napier of Merchiston, and bear his name and the honours of his family. From the Harden branch of Buccleuch springs Sir Walter Scott of Abbotsford. The spot where the castle of Howpaslot stood was escaping from the memory of man, but a record of it is preserved in a very interesting letter written by the late Lord Napier, not long before he quitted Ettrick Forest, for ever. " I have been," he writes, " to explore the site of old Howpaslot, and will attempt to describe the scene. At the head of Borthwick Water, — a wild and sparkling stream which rises at the confines of Roxburgh and Dumfries, and in the parish of Roberton, — at the head of this water, formed of many rills and little torrents issuing from the clefts of the mountains, and beside one of them assuming the larger dimensions of a burn, there is still to be seen a row of cottages and out- houses, of the architecture of former ages, perched on a rocky promontory, and commanding a view up and down several of these mountain streams. An ap- pearance of strength at once refers the origin of these humble dwellings to something of more importance, which is further indicated by an immense heap of ruins and lime rubbish, grown rank in the nettles, and en- cumbering the centre of the shepherd's garden. All this, and the remnants of a wall at the extremity of the slope, are signs that once the mighty of the border- land had here their tower of strength, with their gray pease and curly kail, and may be the red red rose of the single leaf blooming for a few weeks at the foot of it. Narrow paths leading along the different openings of OF MERCHISTON AND THIRLESTANE. 241 the hills are still visible, and more particularly that to- wards Teviot-head, and so to the land of the Southern, from whence no doubt many a head of nolt have tra- velled to sustain the rieving landlords of the tower. Tradition points out a spot, between the garden and the burn, where the remains of some of these moonlight marauders cease from strife ; and the old shepherd re- members when, half a century bygone, the pointed ends of stones peering above the turf marked out the limits of their dark and narrow house. There are also to be discovered the foundations of an oblong building, like a chapel, which may very probably have been some place dedicated to the service of the church. The whole scene is wild, even grand, and here and there yet linger the remnants of that Forest which Sir Walter of How- paslot aided to destroy.* But these are rapidly disap- pearing before the ravages of black-cattle, sheep, and time. The situation is well adapted to the enterprises * The Tutor of Buccleuch was more or less of a maurader. By the records of the High Court of Justiciary, it appears, that upon the 21st November 1493, " Walter Scot of Howpaslot" was allowed to compound for treasonable brivgmg in William Scot, called Gyde, and other " traitors of Levyn," to the " Hereschip of Harehede." Item, for theftewously and treasonably resetting of Henry Scot, and other traitors of Levyn ; item for the treasonable stouthrief of forty oxen and cows, and two hundred sheep, from the tenants of Harehede. Upon the 11th December 1510, Walter Scot of How- paslot, the laird of Cranstoune, and thirty-four others, were convict- ed of destroying the woods in Ettrick-F'orest, and lined in 3 pounds each ; among the culprits were the Hoppringills of Smalham, Ker of Yare, John Murray the Sheriff, S^c. Walter of Howpaslot, how- ever, was not always the offending party. In the year 1494 James Turnbule, brother of the laird of Quithop, produced a remission be- fore the High Court for art and part of the stouthrief of iron win- dows, (fenistrarumferrariim) doors and crttkisinxih. of the Tower of Howpaslot, pertaining to Walter Scot. Q 242 VINDICATION OF THE ANTIQUITIES of a border chief, whether upon his own neighbour or the southern foe, for it commands a ready passage in- to Ettrick and Eskdale, Ewesdale and Teviotdale, and all the districts connected there\¥ith. I got a hearty welcome from the shepherd and his wife, and an excel- lent repast of sweet-milk, and bread and cheese ; but not the least pleasing part of the picture was an artless browned-eyed lassie with the old man's cart driving in the winter's hay. In the corners and windows of the cottages I remarked several blocks o^Jreesione, evident- ly the remains of the tower, and the gude-wife inform- ed me that, within the last thirty years, many cart loads had been taken down the country for other buildings, and that she had broken up a great deal for scattering upon her floor. So much for departed strength. The situa- tion of Howpaslot had escaped even the observation of the great border magician himself. And he, too, now sleeps with his ancestors ! I attended his funeral, and perhaps my own name will thereby be handed down to latest posterity."* It is a singular circumstance, that while the foregoing pages were in the progress of printing, an old soldier, who had not the slightest idea that any notice of the family of Scott was about to be published, addressed a letter to me, requesting professional advice relative to a legal claim upon the property of Davington, which he hoped to recover. This correspondent, who signs himself IVilliam Scott, turns out to be the lineal heir-male of the eldest branch of Howpaslot and Thirlestane. His let- ter, which he permits me to add to these anecdotes of his family, speaks for itself, and so much shall be ex- tracted as, by an extraordinary coincidence, happens to * Letter to the author^ dated Thirlestane, 15th October 1832. OF MEKCHISTON AND THIRLESTANE. £43 bear, though unconsciously to the writer of it, directly upon the subject in hand. It is dated, " Lennoxtov\^n near Longtown, Cumberland, 19th May 1835," and in- forms me as follows : " I served in the 90th Regiment from 11th May 1794 to 10th December 1817, a period of twenty-three years and nine months, the whole time with Major-General Mark Napier, who, I presume, is your relation.* In the year 183:3, the late and much to be lamented the Right Honourable William John Lord Napier of Mer- chiston, Thirlestane, &c. took much pains and trouble to find out if there was in existence any of the lineal descendants of the original Scotts of Thirlestane, How- paisley, &c. and where to be found. Upon this rumour in the country I wrote to his Lordship, vvho was then in London, sending him my genealogy up to Robert Scott of Davington, my great-grandfather. His Lord- ship immediately acknowledged my letter in a manly and disinterested manner, subscribing himself a ' faith- ful kinsman,' and requesting to continue the corre- spondence, and to give him all the information in my power of the family of Davington, as the representative of the oriirinal Scotts of Thirlestane was to be found in that family. He frankly said he was well aware he belonged to the younger branch, as Patrick of Tanlaw- hill and Sir Robert were cousins-german. I am lineally descended from Sir Robert Scott and Catherine Jardine of Jardine Hall, from father to son. It is Sir Robert's second marriage I mean. Scott of Harden's daughter was Sir Robert's first wife, and their son, the heir of Thirlestane, was murdered, for which my progenitor * The author's paternal uncle ; a Scott of Thirlestane, who had thus unconsciously commanded his chief for so long a period. 244 VINDICATION OF THE ANTIQUITIES was sorely blamed (I mean Catherine Jardine) for be- ing concerned in that crime ; that was the beginning of all the misery and poverty that has since befallen her unfortunate but innocent offspring, and the long law- suit between my great-grandfather Robert Scott of Da- vington and Sir Francis Scott of Thirlestane gave the finishing stroke. Sir Francis was Patrick's son, and grandfather to the first Lord Napier, Sir William's son.* You will see by this time I am not a gram- mar scholar, and have not the art of putting much into small compass.f .... I have also to inform you there is only myself and my younger brother's son to be found of the lineal line of the Scotts of Davington. I have no lawful son ; my nephew has been married ten years, and has no children, nor likely to have, so our lineal line in him will be most likely extinct. I in- formed his Lordship of these particulars, finding his Lordship's family next in succession. His Lordship not beins: aware he should be hurried off to India so suddenly, desired me to meet him at Thirlestane, where he expected to return in a month. I shall quote his own words: He says, ' You are an old soldier and I am an old sailor, and we will talk things over very well.' Agreeable to his Lordship's instructions, I went to Thirlestane ; he only remained one night ; I missed him. His successor pointed you out for me to apply to. I delayed, thinking his Lordship would either return or renew the correspondence, — that hope is for ever de- stroyed, and I believe I am now deprived of my best earthly friend. So, Sir, I have to request you will be so * i. e. First Lord Napier of the family of Scott. t I have taken no further liberty with the letter than to leave out some details, not applicable to the present subject, and to make some trifling alterations in the orthography. OF MERCHISTON" AND THIRLESTANE. 245 kind as take every thing into your consideration, and, like your noble kinsman, acknowledge my letter, with your opinion on the business. During a long and ac- tive service in the four different quarters of the globe, I never yet disgraced the name of Scott. I hope my poverty will not prevent your causing this letter to be answered." This interesting letter, which also contains a schedule of the writer's genealogy, with the marriages, and dates of births and deaths, recalled to my recollection a cir- cumstance not adverted to in the notice of the Scotts previously prepared for the press. At the time of the late Lord Napier's departure for China, I received a letter from his young son, the present Lord, dated, Thirlestane, 9th January 1834, in which he says, " Im- mediately on our arrival here my father sent for all the tenants, and people round about, who bade him good- bye ; many were greatly grieved, even to the shedding of tears. He started the very next morning at six o'clock. Not long after there came a man here who said his name was Scott, and that he was chief of the name, which sounded preposterous enough at first, but he showed letters from my father inviting him to come here ; the poor man was sorely disappointed at his having gone. In truth, this is a worthy representative of the family of Scott, being a tall, stout, brawny, bony fellow." I have no doubt, from the information his letter af- fords, that William Scott's genealogy can be distinctly proved, and that in this old soldier, this second Satchells, we have the heir-male of Buccleuch. In another letter from him dated 28th May 1835, being his reply to my answer to his first, he gives the details of an anecdote, new to me, and which, as it is now beyond the cogni- zance of the High Court of Justiciary, and fairly be- 246 VINDICATION OF THE ANTIQUITIES longs to the romantic records of the name of Scott, I shall give here precisely as communicated to me. " Before I speak of the affair of Davington, I will ex- plain to you the affair of the murder of the heir of Thirle- stane, who was Sir Robert Scott's son by his first wife. She was Sir William Scott of Harden's daughter. After her death he grew up, and had every appearance of a promising young man, and as soon as he became of age he was to be married to a lady of a very noble and ancient family. A house was built at Gamescleuch ; it lies on the south side of the Ettrick, opposite Thirle- stane ; I have seen the ruins. He was in the habit of going there in company with a man of the name of Law- ley, who was a piper to Sir Robert's family, and carried refreshment to the workmen who were employed to finish the building for the reception of the heir and the lady as soon as they were married. Be so kind as re- mark here, Sir Robert Scott was married again to his second wife, and had a family by her, coming up ; her name was Catherine Jardine of Jardine Hall in Apple- garth parish ; she is my progenitor, and mother to the Scotts of Davington. But, one day he was going over and ordered Lawley to provide two bottles of wine he was going to give the workmen. That base menial took two bottles, one mixed with strong poison, and when he ordered a glass to be filled for him, that William Law- ley filled it out of the poisoned bottle. He drank to the workmen ; the poison is recorded to be so strong that he expired instantly, and I am creditably informed the body burst in an hour. At the same time the Scotts of both families were beginning to assemble to hold his birth- day, which was at hand. His sudden death caused so much confusion that the murderer got away, and is sup- OF MERCHISTON AND THRLESTANE. 247 posed to have got into the Highlands. He never was heard of more," &c. After this sad event, it seems that Sir Robert the father gave himself up to sorrow, and his fortune be- came involved with Scott of Harden and others. Patrick Scott (the great-grandfather of Francis fifth Lord Na- pier) who redeemed Thirlestane to the junior branch, was the eldest son of that gallant Walter of Games- cleuch already-mentioned, who escaped the desperate ad- venture of Carlisle, to fall by the hand of Tushielaw. Late at e'en, drinking the wine. And ere they paid the lawing. They set a combat them between To light it in the dawing. * * * « She kiss'd his cheek, she kaim'd his hair. As oft she had done before, O, She belted him with his noble brand. And he's away to Yarrow. * * * * She kiss'd his cheek, she kaim'd his hair. She search'd his wounds all thorough. She kiss'd them, till her lips grew red On the dowie houms of Yarrow. " Now, baud your tongue, my daughter dear ! For a' this breeds but sorrow, I'll wed ye to a better Lord Than him ye lost on Yarrow." " O ! baud your tongue, my father, dear. Ye mind me but of sorrow, A fairer rose did never bloom Than now lies cropp'd on Yarrow."* * This tragic story is the prototype of Hamilton of Bangour's *' Busk ye, busk ye, my bonny bonny bride." 248 VINDICATION OF THE ANTIQUITIES But for no untimely death has the Forest such cause to mourn as for that of the late Lord, the lineal male re- presentative of this Walter of Gamescleuch. It was under his immediate patronage, and owing to his enterprising exertions, that the pastoral society was there instituted in the year 1818, the benefit of which is now acknow- ledged and shared by the neighbouring counties of Peebles, Roxburgh, and Dumfries. With the same views his Lordship composed and published an octavo volume of 280 pages, entitled, " a Treatise on Practical Store- farming, as applicable to the mountainous region of Et- trick Forest, and the pastoral district of Scotland in general ;" a work which eminently illustrates his capa- cities, no less than his dispositions. The New Statisti- cal Account of Scotland thus speaks of him : " In this pa- rish (of Yarrow in the Forest,) the truly patriotic and benevolent Lord Napier has his usual residence. This nobleman, to use the words of a popular writer, has for some years past employed his time and talents, together with much money, in improving the stock on the hills, and introducing, into a district hitherto bound up in its own natural wildness, all the attributes and amenities proper to the most civilized regions. His enthusiasm has been one of benevolence, and from the full half of the beautiful cottages he has planted in this wilderness, the prayers of the widow and the orphan nightly as- cend to Heaven." But not the least interesting testi- mony in his favour is that of the Ettrick Shepherd, in his Statistics of Selkirkshire, published in the Quarterly Journal of Agriculture. " The roads and bridges," says Mr Hogg, " were never put into a complete state of re- pair till the present Lord Napier settled in the country ; and to his perseverance, Ettrick Forest is indebted for OF MERCHISTON AND THIRLESTANE. 249 the excellence of her roads, now laid out and finished in every practicable direction. With an indomitable spirit of perseverance, he has persisted against much obloquy and vituperation, and from none more than the writer of this article. But honour to whom honour is due ; Lord Napier has effected wonders, and the late imper- vious Ettrick Forest may compare in the beauty and efficiency of her roads with any mountainous district in the united kingdom." This nobleman, with all these practical powers and habits, possessed in no small degree the literary taste and accomplishments by which Sir William Scott, and others of his modern ancestors were distinguished. A manuscript in my possession, dated H. M. S. Kent, off Toulon, 24th September 1811, and entitled, — " The Sai- lor's midnight Burial, written by Captain the Honour- able William John Napier, on reading the funeral ser- vice over the body of a sailor at midnight during a thun- der storm," — affords one of many interesting illustra- tions of the depth of his feelings, and his powers of ex- pressing them : — " Dark and dismal is the hour, ]\Iidnight waves prepare the tomb. Fearful is the shooting star Glist'ning through the dreary gloom ; Vivid flashes in the sphere Light for him the angry wave. Thunders rolling o'er the deep Seal him in the wat'ry grave ; Whistling winds among tiie shrouds Chilling blasts of terror blow, * Yawning wide the foaming surge Wraps his corse descending low; Glorious shall he rise again When the sea gives up her dead — " 250 VINDICATION OF THE ANTIQUITIES He inherited, too, all the daring of the warlike races united in his person, and his professional claims upon the remembrance of his country are not slight.* For he served on board the Defence at Trafalgar, when she cai)tiired the St Ildephonso, and carried the prize into Gibraltar. He served on board the Foudroyant, and the Imperieuse, Lord Cochrane, who, in his Dis- patches of 7th January 1807, published in the Lon- don Gazette, noticed the Honourable Mr Napier as having distinguished himself among those detached in boats who landed on the French coast and attack- ed and demolished Fort Roquette the preceding day. He commanded a boat of the Imperieuse which, with another, took at mid-day a privateer mounting eight guns, and having on board fifty-four men, 14th Novem- ber 1807; in his boat ten, including himself, were wound- ed, and two killed. He assisted in cutting out of the bay of Almeria, within half gun-shot of upwards of fifty cannon, a French letter of marque of ten guns and fifty men, besides two Spanish brigs of four guns, and a large settee 20th February 1808. He was sent to conduct an unarmed vessel, detained by the Imperieuse, to Gibraltar, but was taken on the passage by a privateer from Ma- hon, 3d April 1808, and carried into Ivica, where he remained a prisoner for three months. He was released when the Spaniards began to throw off the French yoke, and afterwards assisted in the defence of Fort Trinity, and at the siege of Roses. He was on board the Im- perieuse, 12th April 1809, when the Calcutta was taken, — and was again wounded in the attack at Palamos, un- * It ought not to be omitted, that his Lordship was President of the Astronomical Institution of Edinburgh, — an Institution whose present prosperity is mainly owing to his enthusiastic exertions. OF MERCHISTON AND THIRLESTANE, 251 der the command of Captain Fane of the Cambrian, 14th December 1810. Through this gallant career of his youth he escaped to effect, in his own peaceful and pas- toral district, those improvements and amenities by which his name is endeared to Ettrick Forest, and will lonar be remembered there. After all, it was his fate suddenly to quit his home for that distant land, where, in the service of his country, but under circumstances which it belongs to that page in the history of British policy to record, he died on the 11th of October 1834. ADDENDA. Sir John Menteith of Rusky, supra, p. 21. In the Appendix to the Memoirs of Merchiston there is a reply to Mr Tytler's controversial note in his History of Scot- land regarding Sir John Menteith, prefaced by the following sentence : " The family of Rusky, the honours of whose eld- est coheiress descended to Napier, flowed from Sir John de Menteith, second son to Walter Earl of Menteith, who was third son of Walter, High Steward of Scotland. This lineal ancestor of our Philosopher has been mostgroundlessly malign- ed, and to remove an idle calumny from the honourable house of Menteith is to clear history of a blot and a fable." The ob- ject of the historical examination being, as said, to remove an idle calumny from the family of Menteith, a coheiress of which family the Inv entor of Logarithms unquestionably represented, it matters little to the propriety of its insertion in the Memoirs, whether the Sir John Menteith in question was the lineal ances- tor of our Philosopher or not. His lineal ancestor, W^alter Menteith of Rusky, Thom, &c. Avas undoubtedly the son of a Sir John Menteith, for there is a charter " Murdaci Comitis de Mentet]i,Jilins Domini Alexandri Comitis dc Menfetli terrarum de Thom in Comitat. de Menteth, IVultero de Mentcfli,JiUo quondam Domini Johannis de Menteth." Upon a chronological consider- ation of the matter, nothing is more natural to suppose than th^t Sir John Menteith, mentioned above as Walter's father, was 254 ADDENDA. the Sir John in question. It is not impossible, however, that Crawfurd the Peerao-e writer may be accurate in saying that Sir John, the father of Walter of Rusky, was the son of Earl Alex- ander, and consequently the brother, instead of the uncle, of Earl Murdac who grants the charter of Thorn to Walter. I was not prepared, however, to accede to this latter theory, for the best edition of the Scottish Peerage (Mr Wood's,) gives the Rusky genealogy as adopted in the Memoirs, which appears to be consistent with chronology, and in the laborious antiqua- rian history of Stirlingshire, both Mr Nimmo, and the Rev. Mr M'Gregor Stirling who so ably re-edited the work, state with- out any expression of doubt that Menteith, the maligned, who was the brother of Earl Alexander, was Sir John Menteith of Rushy. Mr Riddell would have conferred an obligation had he substituted a certain and accurate descent while he disproved this. But he has done neither one nor other. He proves that Sir John Menteith, the maligned, was at some period of his long life married to Elyne Mar, whose male issue failed, and upon this solitary fact he triumphs as having utterly annihilated the Rusky genealogy. Without pausing to investigate this matter more closely, which requires illustration, we may venture to re- mind the author of the Tracts that, although it be not allow- able hastily to assume a second marriage for the mere purpose of founding a new genealogy, yet, on the other hand, a received genealogy, founded on the plausible evidence to which we have pointed, is neither destroyed nor disturbed by proving a separate marriage previously unknown. Under the circumstances, the inadmissible assumption is on thepart of the authorof the Tracts. Sir John Menteith married Elyne Mar Avho had no male repre- sentative, — ergo. Sir John Menteith (Walter's father) of the same chronology, of the same family, and admitted in the best genealogical histories to be the same man, could not have been the same man, because the presumption is against his having been twice married. Such is Mr Riddell's reasoning on this matter, upon which he grows so merry as to enact the Bache- lor Samson Carrasco against the author of the Memoirs, whom he likens to Don Quixote. But he must get a better horse, and new armour, and try it again. . ADDENDA. 255 Equally unfortuutate is our antiquary's heraldic excursus against the author of the Memoirs. We had said that Sir George Mackenzie and Nesbit hastily and unscientifically as- sumed that Napier of Merchiston''s Lennox shield displayed the sole arms of Elizabeth Menteith, who was coheiress and i*epre- sentative of her father's distinguished family of Menteith, as well as of the Lennox, and who, therefore, must rather be supposed to have carried some insignia of Menteith, in con- junction with Lennox. 71ie instances which the learned author of theTractsadducestooverbear this view are, that of the Duch- ess-Countess of Sutherland, who suffers her inferior descent from Adam Gordon to be armorially lost in her Comitatus of Sutherland; and the other instance is that of the heir of line of the royal family uf Spain. These tremendous examples do not prove it to have been likely that when Elizabeth Menteith suc- ceeded to a quarter of the Lennox, but without taking up the title, and to half of the Rusky estates, she discarded all insig- nia of Menteith, the name she bore. " If the learned gentle- man had looked round for a moment," he would have seen that Haldane of Gleneagles actually quartered the armorial bearings of the other sister, and they were Lennox, and a hend cheque for Menteith. Before leaving this subject we must advert to what Mr Rid- dell terms his " corroborations" of the author's " laudable vin- dication of the character of Sir John Menteith." We maintain that that vindication requires no corroboration, being in seipso totus teres atquc rotundas, and the best proof is, that when our learned antiquary attempts to improve it he only repeats it. He mentions, indeed, that Sir John Menteith received from Bruce an augmentation of arms, but the author had shown, ex ahundardi, Menteith's favour with Bruce. lie runs over the facts that Menteith was less unpatriotic than the other Scottish nobles, and that he distinguished himself, from the earliest op- portunity in his power, as a patriotic adlierent of Bruce. All this the author had discussed ad nauseam. The " corrobora- tion" is, probably, what Mr Riddell puts in Italics; thus, — " What is even more remarkable, he alone of all his family, and indeed of the barons and nobility of Scotland, is not to he found 256 ADDENDA. in the lists of those who swore fealty to Edward I." Now the author had stated the same thing thus : — " So far from there being- the slightest evidence that he was among the first to bend to the conqueror, his name does not occur in that degrading document the Ragman Roll." Corroborations, indeed ! " Call ye that backing of your friends ?" FINIS. i EDINBURGH PRINTED BY JOHN STUR OLD ASSEMBLY CI.O 6 )| 1^1 IFrfl I Ml i . . ^ %MAJNn3Wv ^OvUivaan-#' ^^Abvaan-# ^fJiaoNvsoi^ mii 0^ %ojnv3-io'^ .^WE•UNIVERVA ^lOSANCElfj^ S9 ^^UIBRA^^ ^4 ^^OJIIVDJO^ 1| ^OFCAIIFO%. 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