First Advising (16 July 1937)
[632]
At advising on 16th July 1937:—
LORD JUSTICE-CLERK (Aitchinson).—This is an appeal from an interlocutor of the Lyon King of Arms, dated 16th October 1936, repelling certain preliminary pleas for the respondent in a petition for arms at the instance of Catriona Louise Maclean of Ardgour. The petitioner is the daughter of the late Alexander John Hugh Maclean of Ardgour, who died on 27th May 1930, and her claim is that, as heir of line of her father, she is in substantive right of his undifferenced arms, as said arms were matriculated by him in the Public Register of All, Arms and Bearings in Scotland on 20th July 1909. The respondent in the petition, the present appellant, is Henry Hugh Maclean, Lieutenant. Commander in the Royal Naval Reserve, who matriculated arms in the Public Register on 20th February 1933, these being differenced from the arms borne by the father of the petitioner.
The appellant does not dispute that the petitioner is entitled to matriculate the arms borne by her father, she having, as his daughter, a derivative right to his armorial bearings, but his contention is that she cannot do this as a matter of independent or substantive right, so as to make her father's undifferenced. arms transmissible to her descendants. Whether the petitioner is entitled to have the ensigns armorial of her father awarded to her in her own right depends upon whether the heir of line, or the heir male, is to be preferred in a competition according to the law of heraldic succession. That is a meet point in the law of arms, that remains as much undecided to-day as it was in 1849 in the case of Cuninghame.[11 D. 1139] It is a question proper for the decision of Lyon, and in no sense is it before as in the present appeal.
The preliminary questions raised by the appeal related to what were called generally questions of jurisdiction. The appellant's contention is that certain matters averred by the petitioner are outwith Lyon's jurisdiction as being matters not cognisable in a Court of law, and, therefore, ex necessitate, not relevant to any question of arms. Broadly defined, the appellant's contentions were these---Lyon has no jurisdiction (1) to decide any question of disputed chieftainship between the parties, whether in relation to (a) the ensigns armorial to which the petitioner is entitled, or (b) the claim of the petitioner to Supporters ; (2) to grant to the petitioner in any matriculation of arms a character or designation implying an adjudication upon the question of chieftainship, which is in dispute; (3) to determine any such dispute in the issue of a Birthbrief to the petitioner. The parties are not at issue as to the chiefship of Clan Maclean; they are at issue as to the chieftain ship of the branch of Clan Maclean, known as the Macleans of Ardgour Is that dispute justiciable in this application for arms ?
Before dealing with this matter, it is necessary to dispose of the question that was raised b , by the appellant in limine affecting the locus of Mr Innes to appear before Lyon and in this Court. Mr Innes holds the office of Albany Herald, and the question is whether his right as an advocate to appear in a Court of law in a contested heraldic case is excluded by virtue of his office. If such a question had arisen before 1867, the point might have raised some difficulty. There is a considerable body of authority relating to the older practice, which it would serve no purpose to examine, that seems to point to the fact that Lyon at one time exercised his jurisdiction in arms with the advice and [633] approbation of his heralds. But whatever may have been the earlier practice as regards advice and consultation, it gradually came about that the sole power and jurisdiction concerning arms, subject to a limited right of appeal, was recognised as vested in Lyon. The matter is now really concluded by the Act 1867,[30 and 31 Vict. cap. 17] being " An Act to regulate the Court and Office of the Lyon King of Arms in Scotland." Section I provides that " from and after the passing of this Act the jurisdiction of the Lyon Court in Scotland shall be exercised by the Lyon King of Arms, who shall have the same rights, duties, powers, privileges and dignities as have heretofore belonged to the Lyon King of Arms in Scotland . . .", and section 2 enacts that Lyon "shall be bound to discharge the duties of his office personally and not by deputy." It was conceded by the appellant that since 1867 Lyon has sat alone in the Lyon Court in dealing with applications for arms, and warrants and decrees relating to arms have since 1867 been issued in his name only. The only question, therefore, is whether the possibility, which I shall assume, that Lyon might utilise the office of one or more of his heralds to investigate some matter incidental to arms is a proper ground for excluding Mr Innes from appearing in a cause in which his services have not been so utilised. I can see no more ground for saying so than for saying that an advocate appointed by this Court as a commissioner to take evidence, or to report on a remit, in any case, would be debarred from appearing as an advocate in this Court in other cases. The right of an advocate to appear in any Court of law in Scotland, or before the Privy Council, or the House of Lords, is not a matter of mere favour or courtesy, but is a right at law, upon which a member of the bar is entitled to insist, and which ought to be jealously guarded. An advocate's right of audience cannot be excluded unless upon some ground that would make his appearance incompatible with the proper administration of justice. It is enough in the present case to sky that Mr Innes is neither a member nor an officer of the Lyon Court, nor does he stand in any advisory relation towards the Lyon King. I regard the objection as without substance, and, as already intimated, it is repelled.
The main question now to be considered is whether Lyon has jurisdiction to decide in the petitioner's application for arms, or as incidental thereto, any question between the parties as to who is chieftain of the Macleans of Ardgour, they being a recognised branch of Clan Maclean. Each claims to be chieftain of Ardgour. If the petitioner when she framed her petition for arms had made it quite plain that all she wanted was that the undifferenced arms of her father should descend to her in substantive right, and in virtue of her character as heir of line, there would have emerged for Lyon a simple issue in the law of succession in arms, that is simple as regards what the issue was, although the solution of "such a mystery," as Lord Fullerton described it in Cuninghame, [11 D. 1139] might have been involved in great obscurity. Unfortunately the petitioner in her pleadings, as they were originally framed, preferred a [634] wider claim, raising a larger issue than mere representation in arms. She sought to have it declared by Lyon that, being heir of line and representative of her father, " as such she was head or chieftainess of the house, branch, or family, of Maclean of Ardgour," and, if Lyon thought proper, chief of the name and arms of Maclean of Ardgour (conclusion 2). I need not refer to other passages in the pleadings, as they stood, beyond saying that this claim to chieftainship, ostensibly used as synonymous with headship of an armigerous house, importing, as a consequence of representation, an additional status, or dignity, and a right of " place " in Clan Maclean, is to be found right through the. petitioner's pleadings. I hope it is not uncharitable to say that these would appear to have been so framed to enable the petitioner to obtain a finding from Lyon, if Lyon could be induced to make it, that the petitioner enjoyed the dignity of chieftain of the Macleans of Ardgour, that being a matter with regard to which the parties are in violent controversy.
In the course of the debate the petitioner amended her petition with the effect of seeming to narrow the issue between the parties. Thus her second conclusion, which I take as typical, now runs:--- "To record petitioner in said matriculation as lineal heir and representative of the noble and armigerous house or family of Maclean of Ardgour, and as head or chief of the noble and armigerous house or family of Maclean of Ardgour, and if your Lordship thinks proper chief of the name and arms of Maclean of Ardgour." The result of this amendment is, that the petitioner no longer appears to claim to be declared, or to be recorded in the register under the designation of, chieftainess, and Mr Innes has expressly disclaimed any intention on her part to raise before Lyon any issue other than representation in arms and what is strictly relevant thereto. But "what is relevant thereto" may simply lead to a recurrence of controversy between the parties. I think, therefore. it is desirable, if not indeed necessary, notwithstanding the amendment, that the Court should say something upon Lyon's jurisdiction, particularly in view of the elaborate argument to which we listened.
The greater part, if indeed not all, of the difficulty that has arisen in this case has been due to the indiscriminate use of the term " chief " without any proper definition of its meaning in the law of arms. In strict heraldic usage " chief " and " head " are interchangeable terms. The person who bears the undifferenced arms is the " head " or " chief " of the armigerous family. Thus "chief" appears in the Act 1662, cap. 53, in a reference to " the usurpation of cadents, who, against all rules, assume to themselves the arms of the chieff house of the familie, out of which they are descendit," and again in the Act of 1672, cap. 21, in a reference to persons " who have assumed to themselves . . . the arms of their chieff without distinctions." The context shows that what was meant was chiefs or heads of families, for the Act 1672 goes on to direct that all users of arms or signs armorial shall bring or solid all account, either to the clerk of the jurisdiction where the persons dwell, or to the Lyon Clerk, of what arms or signs armorial they are [635] accustomed to use, "and whether they he descendants of any familie the arms of which familie they bear, and of what brother of the familie they are descended," showing the distinction between the "head" or " chief " of the family and the cadet. This is a clear statutory recognition of what "chief " means in the law of arms. It is simply " head " or " principal " of an armigerous family. Its correct use is shown by a sentence from Mr Stevenson's classic work on Heraldry in Scotland, where he writes (vol. ii, 352): " There is no necessity to suppose any denial at any time of the principle that the hereditary arms of the family should go undifferenced. to the chief representative of the family." Here " chief " means " principal " or " head " which is the correct heraldic use.
Has chiefship of a clan, or chieftainship of a branch of a clan, apart from headship of an armigerous family, any significance in the law of arms? The existence of chiefship and chieftainship, as. part of the political organisation of the Highlands, has been recognised by statute, as, for example, by the Act of 1587, cap. 59, which ordained any party harmed by oppressions or thefts " to require or calls require redres thairof at the cheiff of the clan or chieftane of the countrie wherein (his) saide guidis sal be ressett." Similarly, an Act of 1593 ordains sureties to be entered by " the chieftanis and chieffs of all clannis and the principallis of the brancheis of the saidis clannis duelland in the hielandis. . . ." This has no relation to arms. The reference to " chief of clans " and " principals of branches " is not to persons bearing coats of arms, but to persons who were vested with military power and authority in the clan organisation of the Highlands that existed in the sixteenth century. There is no evidence of any practice that would point to the use of " chief of clan," or " chieftain of branch of clan," as correct heraldic descriptions of headship of an armigerous family. The characters may, of course, concur in the same person, bid, they are not identical. Thus, in the case of Stewart Mackenzie,' the chief of the Seaforth Mackenzies in 1817, who was one of a junior branch, bore the arms of Allangrange.
Arms being in their nature hereditary and transmissible, except where the grant is expressly restricted to the original grantee, the question of succession in each case is, Who is the proper representer of the original grantee, as such entitled to his undifferenced arms? Where the grant itself defines the succession, no difficulty arises, provided the destination is free from ambiguity ; but, if the order of succession is not defined, it falls to be regulated by the common law of arms, and a real difficulty emerges as to whether arms descend at common law to the heir male or the heir of line. Is there ally inflexible rule of heraldic law whereby the heir male is preferred to the heir of line, or the heir of line is preferred to the heir male ? If there is an inflexible rule preferring I he one or the other, then the succession will follow the rule, but, if there is no inflexible rule, the question arises what considerations[636] are relevant to determine representation, and, in particular, if there is a dispute as to who the chieftain is, in the sense that there is divided recognition within the branch, is that dispute justiciable in the Lyon Court so that Lyon's determination of it shall have the force of law? That is the immediate issue in this appeal.
In answering this question, the fundamental thing to bear in mind is that neither chiefship of a clan, nor chieftainship of a branch, subject to one exception as regards the right to supporters in arms, is any longer a status known to the law. Highland chiefship or chieftainship in the modern sense is today no more than a high social dignity. Historically it was otherwise. The chief and the chieftain were at one time in the governmental system of the Highlands high political personages, who wielded a large and often an arbitrary authority. But not even a semblance of this now remains. To stand in the succession of an ancient line of chiefs or chieftains maybe a legitimate ground of family pride, but it is not a status that the law recognises. It carries no I patrimonial consequences that the law will countenance and enforce, subject to one exception in the law of supporters. It does not depend upon any defined law of succession of which a Court of law could take cognisance. It ultimately depends, as it must, upon recognition by the clan, in the case of chiefship, or the branch of the clan, in the case of a lesser chiefship. The recognition of the clan or the branch is immune from challenge before any tribunal. Historically the idea of a chief or chieftain submitting his dignity to the arbitrament of it Court of law is really grotesque. The chief was the law, and his authority was derived from his own people.
There is no instance in the registers of any judicial decision by Lyon in a disputed question of chiefship or chieftainship. The only instance founded on by the petitioner was the finding by Lyon regarding the chiefship of Clan Chattan on 10th September 1672, and referred to by Nisbet in his System of Heraldry, vol. ii, app. p. 48. It is contained in a writ of date anterior to the commencement of the extant public register of genealogies. The declaration runs :---" I, Sir Charles Areskine of Cambo, Knight Baronet, Lord Lyon King of Armes having perused and seen sufficient Evidents and Testimonies from our Histories, my own Registers and Bands of Manrent, doe hereby declare, That I find the Laird of M'Intosh to be the only undoubted Chieff of the name of M'Intosh and to be the Chieff of the Clan Chattan, comprehending the M'Phersones, MacKillvrays, Ferquharsones, M'Quins, M'faills, M'baines, and others, and that I have given and will give none of these families any arms but as cadents of the Laird of _M'Intoshes familie, whose predicessor married the beretrix of the Clan Chattan in anno 1291 ; and that in particular I declare, That I have given Duncan M'Phersons of Clunie a coat of armes as a cadent of the foresaid familie. And that this may remain to posteritie and may be knowen to all concerned, whether of the foresaids names or others, I have Subscribed thir presents with my hand at Edinburgh the Tenth (lay of September 1672, and have caused append my seal of Office thereto."[637] It will be noticed that this declaration proceeded simply upon a perusal by Lyon of evidents and testimonies from " our histories, my own Registers, and Bands of Manrent " and that it was in no sense a finding pronounced in a lis or contested process. It vouches nothing beyond that in this particular case Lyon made a declaration of chiefship. Similarly, the matriculation of the arms of the chief of the M'Naghtons proves nothing. It appears in Lyon Register, vol. ii, p. 172, under date 13th January 1818---" The grantee " it runs " is now acknowledged to be chief of the ancient name and clan of M'Naghton conform to attestations shown to me, Lyon Depute for Scotland, of upwards of 44 of that name in Scotland." This is not a decision in a lis ; again it is simply a recording of the dignity of a chiefship acknowledged by attestation. The only other case to which reference need be made is the case of Drummond of Concraig referred to by Lyon in his answer to question D 1. In the matriculation of Drummond of Meginch in Lyon Register, vol. i, p. 546, under date 17th April 1788, his ancestor Drummond of Concraig is referred to as " the chief of an ancient and respectable branch of the illustrious family of Perth from which most of the Sovereigns in Europe are descended." This is the only instance to which we were referred of a chief of a branch being mentioned, and it is only designation. It is not a declarator or a declaratory finding of chieftaincy. In none of the writs which were before us can I find any support for a conclusion that Lyon at any time either claimed, or exercised, a jurisdiction to determine disputes as to which of competing claimants to chiefship or chieftainship was to be preferred.
Apart from arms, Lyon could not entertain a suit in a question of a disputed dignity. Can he so do incidentally to arms in deciding representation ? We were not referred to any statute, nor to any heraldic authority, nor to any practice in Lyon Court, that would warrant, or even hint, a conclusion that such a matter is within the province of Lyon to decide as something pertaining either directly or indirectly to his jurisdiction proper in arms. After giving the best consideration I can to the elaborate argument that was addressed to us, I am satisfied that chieftainship of a branch of a Highland clan has no armorial significance. It carries no insignia, and it involves no patrimonial consequences. If it lingers in the social custom of the Highlands, it is only as it survival and a remnant of an older order, associated with turbulent and lawless times, that has long since passed away. I cannot think of any sanction known to the law that could enforce a finding of chieftainship upon a recalcitrant clan.
The petitioner also craves a patent of supporters to be added to her achievement in respect that she claims to be representative of the barony of Ardgour, which existed anterior to the year 1587, and thus to fall within one of the recognised classes of persons who have the right to require supporters according to existing heraldic law. The appellant has no interest to oppose the petitioner, except to see that, in deciding as to supporters, Lyon does not determine the dispute of chieftainship, [638] or make any finding thereanent. Chiefship of a clan carries a legal right to supporters ; it is the one patrimonial consequence that flows from chiefship, but the chieftainship of a branch has never been regarded as carrying a right to supporters. But this is really on the merits for Lyon, and I say no more than this, that in the matter of supporters, as of arms generally, a dispute as to chieftainship is not cognisable in a Court of law. But I would add on the question of supporters generally, in view of some observations to be made by one of your Lordships, that I agree with the view expressed by Lord Sands in Stewart Mackenzie [1920 SC 764] where be said (at p. 803) : "I am not prepared to affirm that the power of Lyon to grant supporters is limited to cases of absolute right, and that there may not be cases where, for special personal, or family, or traditionary, reasons, he may exercise a discretion. "
A great deal was said in the course of the argument as to the designation appropriate to the petitioner if she succeeds in obtaining her father's arms. That again is for Lyon, and until some designation is assigned the petitioner inappropriate to arms, and to which the appellant has an interest to object, and which can be raised before us as a question of law, it is not necessary to say anything beyond this, which I have no doubt Lyon will keep in view, that, if the petitioner succeeds in her own right, the character of her right can be set out in the matriculation.
The only remaining question concerns the birthbrief. This raises no new issues and is covered by the observations already made.
In view of the amendment made by the petitioner it might have been thought sufficient to remit to Lyon simpliciter the only question now remaining between the parties. The petitioner does not now seek in this process to be declared, or designed, chieftainess of the Macleans of Ardgour. The only issue now left is the issue of arms and supporters in relation to the heraldic law of succession. In affirming as we do that Lyon has no jurisdiction to decide a dispute as to chieftainship, as incidental to arms or supporters, we tire to that extent limiting and defining the area of inquiry, and definitely excluding front inquiry and judgment the issue of chieftaincy , upon which parties are at variance. In taking this course we are not, in my judgment, laying down anything contrary to any final view which Lyon himself has indicated. In his interlocutor Lyon repelled the first four pleas in law for the respondent (the present appellant,) and quoad ultra allowed parties a proof of their averments. Plea I which relates to Mr Innes's locus, and plea 3 which is " all parties not called," were rightly repelled. lit repelling plea 2 which relates to the jurisdiction of Lyon to determine chieftainship, and in repelling plea 4 which relates to the relevancy of chieftaincy to a grant of supporters, Lyon did not proceed upon the view that he had jurisdiction to determine a disputed question of chieftaincy, or that he could hold an inquiry upon such a disputed matter in relation either[639] to arms or supporters. As I understand his judgment he repelled the pleas, merely so as to leave open for his consideration at the proof everything that might turn out to be relevant to the issue of arms between the parties. I think the better course is that we should vary the interlocutor of Lyon by recalling it in so far as he has repelled pleas 2 and 4, in order to make it quite plain that the questions of chieftaincy and the position of the petitioner and the respondent (the appellant) relative to the chief of the Clan Maclean or their relative places within the Clan are not within the ambit of the present inquiry. It will, of course, follow that all averments of parties relating to any of these matters will be excluded from probation. Quoad ultra the interlocutor of Lyon will be affirmed. The result is that the case will go back to Lyon in order that he may decide the question of arms and supporters, and, when this is done, I hope it will be the end of this melancholy and barren controversy.
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