What impact does Scottish law have on clans and chiefs? COSCA conducted a review of the Records of the Parliaments of Scotland (RPS) from the reign of Alexander II (1214 – 1249) to the Act of Union with England in 1707 to answer this question. The results may surprise you.
The Scottish Parliament grew out of the monarch’s “General Council” and was comprised of the “three estates” of clergy, nobility and burgesses. The RPS archives include parliaments and conventions of estates, committee records, parliamentary minutes and additional material. While the original text was in a form of early Scottish vernacular, all entries here noted are drawn from the modern English translations.
Acts of Parliament
These Scottish records indicate that clans and chiefs were well established hundreds of years before the institution of the Scottish Parliament. For example, the first reference of a clan was in 1384 during the reign of Robert II: “In addition, in correction of the law, the lord earl of Fife, voluntarily and for the advantage of the country which he controls as head of the law of Clan MacDuff, granted and promised that he will protect the present statute and ordinance and cause it to be protected in all its respects within his limits through the term ordained, protesting for the freedom of his right, namely, since this was done freely and on account of the common good, as was said before, it should not turn out to his prejudice nor prejudice the said law in future.” (Legislation, November 12, 1384.)
Parliament references the characteristics of clans but does not establish rules or regulations that define a “clan.” For example, Parliament refers to clans as being “coupled in fellowships by occasion of their surnames, or near dwellings together, or through keeping society in theft or reset of theft.” (Addition to the acts made against notorious thieves and sorners of clans, November 29, 1581)
Likewise, Parliament references but does not define who is allowed to be called a chief or a “chief of the name.” With the introduction of feudalism by the Norman invaders, much of the ancestral land held by clans was seized by the monarch and granted to loyal supporters. While the Gaelic overlords were traditionally called “mormaers,” Norman monarchs granted titles such as “Marquis” and “Earl” to the new landlords.
In the case of the “Petition of the Earl of Roxburghe,” Parliament established precedent for titles issued by the Crown for the sons of marquises and earls who were also “chiefs of the name.” The response to this petition notes that “by the noble custom, practice and dignity amongst the noble families of this kingdom, the eldest son of an earl who is chief and first of his name and family is always and solely titled lord of that name.” The Parliament then lists all the marquises and earls with the authorized titles for their eldest sons. For example, the “chief and first of his name and family” of Gordon is noted as the Marquis of Huntly (George Gordon) and his son (Alexander Gordon) is designated as “Lord Gordon.” (Petition of the earl of Roxburghe, April 26, 1661)
In some cases, the new Marquises and Earls were also clan chiefs – but not always. Parliament notes the conflict between these new feudal landlords and the clans who reside on the land. For example, Parliament details the “roll of the clans that have captains, chiefs and chieftains whom on they depend, often times against the will of their landlords, as well on the borders as highlands, and of some special persons of branches of the said clans.” (For the quieting and keeping in obedience of the disordered subjects, inhabitants of the borders, highlands and isles, July 29, 1587)
Court of the Lord Lyon
A Scottish monarch’s royal herald was originally called the “High Sennachie.” This evolved to the title of “Lord Lyon” from the lion in the coat of arms of Scotland. (Court of the Lord Lyon, https://courtofthelordlyon.scot/index.htm.) He served as an ambassador and, in some cases, a sheriff. For example: “On the which day lyon king at arms, sheriff in that part, compeared and presented a royal summons under the great seal directed to him, concerning the summons of Alexander Drummond of Carnock.” (Judicial proceeding: process of forfeiture, September 5, 1528)
In 1592, Parliament redefined the role of King James VI’s royal herald, the Lord Lyon, to include the authority over coats of arms: “by this present act, gives and grants full power and commission to lyon king of arms and his brother heralds to visit the whole arms of noblemen, barons and gentlemen borne and used within this realm, and to distinguish and discern them with congruent differences, and thereafter to matriculate them in their books and registers, and to put inhibition to all the common sort of people not worthy by the law of arms to bear any signs armorial.” (Lyon King of Arms Act 1592)
A subsequent “Lyon King of Arms Act 1669” provides “Ratification in favours of the Lord Lyon King at armes.” The “Lyon King of Arms Act 1672” established the "Public Register of All Arms and Bearings in Scotland.” The “Lyon King of Arms Act of 1867” made alterations to the regulation of the Office and established specific fees for services rendered.
Scottish Court of Session
While the Scottish Parliament is silent about the authority of the Court of the Lord Lyon to designate a clan or family chief, the Court of Session is not. Scotland's supreme civil court has ruled that the Lord Lyon King of Arms “has no jurisdiction to determine rights of precedence (Royal College of Surgeons v. Royal College of Physicians, 1911 S.C. 1054.), nor to decide a disputed question of chiefship or chieftainship. (Maclean of Ardgour v. Maclean, 1938 S.L.T. 49; and see 1941 S.C. 613.)” (Introduction to the Law of Scotland, 9th edition, 1987, p. 25.)
In the case of Maclean of Ardgour v. Maclean, John Lean Wark, Lord Wark, of the College of Justice, stated: “Lyon has no jurisdiction to entertain a substantive declarator of chiefship of a Highland clan, or of chieftainship of a branch of a clan....The question of chiefship of a Highland clan, or chieftainship of a branch of a clan, is not in itself, in my opinion, a matter which involves any interest which the law can recognise. At most, it is a question of social dignity or precedence. In so far as it involves social dignity it is a dignity which, in my opinion, is unknown to the law. It was decided in the case College of Surgeons of Edinburgh v. College of Physicians of Edinburgh (1911 S.C. 1054), that Lyon has no jurisdiction except as is conferred by statute, or is vouched by the authority of an Institutional writer, or by continuous and accepted practice of the Lyon Court....in my opinion, there is no practice or precedent which entitled Lyon to decide a question of disputed chiefship or chieftainship, either by itself or incidentally to a grant of arms....”
Lord Wark added: “In my opinion, it is outwith his jurisdiction to decide because (1) at best it is a question merely of social status or precedence; (2) this social status is not one recognised by law; and (3) and, most important of all, it depends, not upon any principle of law of succession which can be applied by a Court of Law, but upon recognition by the clan itself. Like your Lordship, I am at a loss to understand how any determination or decree of Lyon ever could impose upon a clan a head which it did not desire to acknowledge.”
Conclusion
The granting of arms is the heraldic business of the Court of the Lord Lyon, as granted by the Scottish Parliament. However, the choice of clan or family chief is the personal business of the clan or family itself, usually represented by the clan or family society. While a clan or family may choose to recognize a “Chief of the Name and Arms” as its clan or family chief, it is not bound to do so.
See the database of Scottish laws regarding clans and chiefs here: https://www.cosca.scot/scotslaw
The laws determining the authority of the Court of the Lord Lyon are here: