Scottish Barony Titles

This Petition is submitted by Dr. Lars Lindberg who resides in Norway. He has submitted an Assignation dated 28 April 2006 by Alastair Stewart Gemmell in his favour which assigns to Dr. Lindberg Mr. Gemmell’s “whole right and entitlement to the Dignity of the Barony of Delvine, anciently called the Barony of Inchtuthill in the Parishes of Caputh and Cluny and Little Dunkeld in the County of Perth”. The Assignation bears to have been registered in the Scottish Barony Register.

I have not examined the title to the barony of Delvine. Whether Lyon is bound to accept as evidence of ownership of a barony an Assignation, such as is produced in this case, registered in the Scottish Barony Register, is a question which is the subject of judicial review in other proceedings in the Court of Session in which judgement has not yet been given. For the purposes of dealing with the questions raised in this Petition, I will proceed on the assumption that Dr Lindberg’s ownership of the barony has been proved, while reserving my position on the actual question of ownership itself. Dr Lindberg has no connection with Scotland apart from the purchase of the barony and has never been to Scotland.

The question that arises in this Petition is whether Dr. Lindberg falls within the jurisdiction of the Court of the Lord Lyon. This is the first case, since the Abolition of Feudal Tenure etc (Scotland) Act 2000 came into force on 28 November 2004, in which a person has sought to fall within the jurisdiction of the Court purely by virtue of ownership of a feudal barony acquired without any land.

The question of whether to grant Arms is a decision for Lyon in his ministerial or administrative capacity within the jurisdiction given to Lyon by law. (Learney, Scots Heraldry pp 93-4, Royal College of Surgeons v Royal College of Physicians 1911 SC 1055). In this case there arises an issue of law as to whether Dr Lindberg’s Petition falls within Lyon’s jurisdiction.

It is accepted that a coat of Arms is heritable property (Maclean of Ardgour v Maclean 1941 SC 613). Since the Naturalisation Act 1870, aliens have been allowed to own heritable property in Scotland. As the owner of heritable property an alien would be eligible to be granted Arms. Arms have been granted to aliens or non-British citizens where these people required to bear Arms. Reference was made to the 1982 grant to Kent Hay Atkins, an American who was an officer of Clan Hay, and to the four American Directors of Inver House Distillers who were required by Lyon Sir Thomas Innes of Learney in 1967 to bear Arms before he would grant Arms to the company.

A barony, although no longer connected to land, remains a noble fief. A fief was originally an area of land but land is not essential. Hereditary officers are noble fiefs. A heritable office held of the Crown is a fief and it is the noble character rather than the actual fiefdom that is important. As owner of a barony Dr Lindberg is in a noble feudal relationship to the Crown. Section 1 of the 2000 Act abolished the feudal system of land tenure but did not abolish feudal tenure in relation to dignities which are incorporeal heritage.

Since the 1845 Conveyancing Act the conveyance of a barony has no longer required the consent of the Crown. A transfer was deemed to incorporate such consent. Thus the relationship of a baron with the Crown continued although it was no longer necessary for the Crown to be involved in a transfer. Reference was made to the case of Duke of Argyll v Campbell 1912 SC 458. This case concerned the form of title to the Castle of Dunstaffnage. At p 474-6 the Lord President recited the history of conveyancing legislation from 1845 to 1874 and the implications of the legislation on the practice of conveyancing. Reference was also made to Lyon Sir Thomas Innes of Learney’s evidence in 1963 to the Joint Committee on House of Lords reform.

Nothing in the 2000 Act has changed this and the relationship with the Crown continues. Since Royal Assent has been given to the 2000 Act, the consent of the Crown must be deemed to have been given to the process of transferring baronies, shorn of their land, under the 2000 Act.

“Heraldic privilege” as defined by the 2000 Act must include a right to apply for a grant of arms. Rothesay referred to Erskine’s Institutes II II 6 “Titles of honour……though they be no longer connected with land, are granted as an ornament and support… and therefore must go to the representative of the family….Rights which have a tractus futuri temporis are also heritable” and to Mackenzie’s Science of Herauldry Ch 2 p 13/14 “ The being an heritor of land doth not nobilitate in all cases…and therefore such fews as had a jurisdiction annext to them, a barony as we call it, do ennoble”.

All barons are required by the Acts of the Parliament of Scotland 1:575 and 2:19 to have a coat of Arms. The first dated 21 February 1400 is translated from the latin as “It is enacted also that whatsoever baron or other man holding of the king do have his personal seal for the king’s service as by right it has been held. And whosoever does not have such a seal shall be subject to a fine to the king without remission by indictment before the justiciars. And that it shall be a seal and not a signet as has been customary before this time.” The second is dated 1430 and says “It is stated and ordained upon the service of Inquests and of Retours again to the king’s chancery that all freeholders dwelling within any sheriffdom compear at the head courts in their proper persons with their seals but if it happen they to be absent upon reasonable causes and if any be absent in that case that he send for him a sufficient gentleman his attorney with the seal of his arms”. A seal means a coat of Arms and reference was made to Stevenson Heraldry in Scotland pp103/4 for the distinction between a seal and a signet.

If a baron is required, as he is by these Acts, to have a coat of Arms, then he must fall within Lyon’s jurisdiction. These Acts have not fallen into desuetude. Lord Russell in MacCormick v Lord Advocate 1953 SLT 245 at p 264 stated “ the power of a Scottish Court to declare an Act to be in desuetude is strictly confined in two respects: (1) that only a pre-1707 Act of the Scottish Parliament can be so dealt with, and (2) that the power can be exercised only where there is knowledge or admission or proof of the existence of custom or action to the contrary clearly showing the intention of the community to treat the particular Act as repealed.”

The Act remains in force because in 1672 there was a separate section for barons in the Public Register Vol. 1, and barons have continued to seek grants of Arms ever since. The fact that not every baron has recorded Arms does not amount to contrary usage inferring the Act has fallen into desuetude. Reference was made to Stevenson Heraldry in Scotland (1914) who quotes Mackenzie’s Science of Herauldry stating that a lord of a barony is a virtuous person and thus entitled to Arms. Thus Dr Lindberg’s ownership of a barony automatically entitles/obliges him to have Arms.

The Scottish Parliament has no power to legislate on a reserved matter. All that has been changed by section 63 of the 2000 Act relates to the connection with land. Everything else has been left intact and there was no intention to make any change in questions of jurisdiction. Section 62 specifically states that Lyon’s jurisdiction is not impaired.

With regard to Lyon’s discretion, any reasonable person has to be treated as well deserving. Dr Lindberg is a baron and therefore has a feudal relationship with the crown. If Arms were granted, before the Appointed Day, to barons who owned a small piece of land, or a superiority, which could be sold after the Arms were granted, there is no significant difference between that position and the current position. The Act did not intend there to be such a change; the status and heraldic rights of barons were preserved.

A baron has a status in Scotland. He can apply to be a member of the Convention of the Baronage and take part in official occasions at which barons are present. Four barons carried the canopy over the Crown at the Queen’s visit to Scotland after the coronation. He is required by the Acts to bear Arms as a baron and thus is no different from a clan officer or a company director.

Finally Rothesay argued that in the period prior to the Appointed Day under the 2000 Act, non-British owners of baronial land had always been accepted as falling within Lyon’s jurisdiction. This was so even where the amount of land was insignificant or consisted of a feudal superiority. Such pieces of land could be sold off after the grant of arms had been made leaving the baron with no land. The position was little different now that no land was involved.

In his final statement Rothesay indicated that it would be open to Lyon to grant Arms with a destination limiting the Arms to ownership of the barony and upon transfer of the barony the Arms would revert to the Crown. Rothesay subsequently indicated that he only intended this arrangement to apply to people who had no other connection with Scotland, not to all barons.

It was stated that Dr Lindberg intended to use the Arms if these were granted but no specific example was given as to how he intended to do so. In the case of an application for matriculation of non-Scottish Arms, it has been my practice since 2001 to require evidence that the applicant has a valid reason for wishing to display the Arms in Scotland. For example I have accepted as a valid reason the holding of a position of an office-bearer in an organisation in Scotland which would involve the use of the individual in question’s Arms on official stationery of the organisation. No such reason has been advanced on behalf of Dr Lindberg.

The practice of granting Arms to non-British clan officers with no property connection to Scotland still applies. It has been my practice to require a letter or commission from the chief of the clan confirming the appointment and I have not granted Arms unless the appointment was current and had a reasonable period still to run. This is because I needed to be satisfied that the grantee was likely to use the Arms at clan gatherings or in other ways in Scotland for a reasonable period of time. Applications have been refused where these requirements were not met. I do not consider that I am bound, by this practice, to make a grant to Dr Lindberg.

The practice of requiring the directors of a company to hold Arms before the company itself could do so did not apply before Sir Thomas Innes of Learney became Lyon and has not applied since 1969 when Sir James Monteith Grant succeeded Sir Thomas as Lyon. I do not consider that this is of any assistance to Dr Lindberg.

With regard to the argument that a relationship with the Crown continues to exist in the case of a barony despite the severance of baronies from their land, it seems to me that the relationship with the Crown was entirely dependent upon the connection that the barony had to land. Originally barons had an obligation to attend Parliament. Since Parliament was much more a Court than a legislature (Sir Thomas Innes of Learney The Scottish Parliament Juridical Review XLV 1, 1^st March 1933 at page 12) this was entirely consistent with their position as magistrates within their baronial lands. Their jurisdiction as law enforcers continued until 1747 when heritable jurisdictions were abolished. Thereafter barons enjoyed a status by virtue of the Crown charters under which they enjoyed a special form of land title. This changed after the reform of the conveyancing legislation from 1845 onwards. It was necessary to provide a means of transferring land comprising a barony simply because such land existed.

It seems to me that, after 1845, the relationship which a feudal baron had with the Crown was limited to a historical one connecting the Crown to the grantee of the Crown charter to the baronial land. So long as a Crown charter was required to convey a barony, it could be argued that there continued to be a relationship with the Crown. After 1845 there was effectively no relationship, other than a historic one, between the Crown and a disponee of a barony after it ceased to be owned by the grantee of the Crown charter. The Crown had no part in any baronial conveyance after 1845.

I do not accept that a barony remains a noble fief to the extent that the holder has a special heraldic privilege or right. A fief is a landholding and the dignity of baron after the commencement of the 2000 Act ceases to be an incident of landholding. No hereditary office is involved in a barony. In my view a barony is no longer a heritable office held of the Crown.

What has arisen after the 2000 Act is in effect a new species of property, “the dignity of baron” as it is styled in the Act. The dignity is a social ‘advantage’, or benefit, but it is shorn of a connection to land albeit that it has historically related to a Crown grant of land. The 2000 Act has altered the character of the dignity. Prior to the Act it was a dignity associated with landholding; the 2000 Act has done away with that association. There remains, however, a historic relationship with the Crown in so far as the dignity was, at some point in the past, a benefit conferred by the Crown.

The dignity of baron, after the coming into force of the 2000 Act, has a heritable character. That determines the manner in which it is to transfer on the death of the holder, but that is not synonymous with a feudal relationship. It is merely a pragmatic way of dealing with the right. It has a noble character in that it is a right which historically originated in a Crown grant. Such jurisdictional and conveyancing privileges which attached to the grant were finally disposed of by section 63 of the 2000 Act . However, that does not affect the noble nature of the dignity as one with its origins, in history, as the consequence of a Crown grant.

Thus I regard a barony now as heritable property, but not a fief, which has a noble character because of its historic origins. I see nothing in Duke of Argyll v Campbell, nor in Sir Thomas Innes of Learney’s evidence to the Joint Committee on House of Lords Reform to prevent my taking this view.

Turning to the question of whether the definition of “heraldic privilege” in the 2000 Act includes the right to apply for a grant of Arms, it is open to anyone to apply for a grant of Arms. A baron is no different position from anyone else as regards the right to make an application. As regards the right to apply for Arms, no privilege seems to me to arise. I therefore do not consider that “heraldic privilege” in the Act includes a right to apply for a grant of Arms

A different question is whether a baron has a right to receive a grant of Arms. I accept that titles of honour are heritage. Mackenzie’s Science of Herauldry was written in 1680 and his reference to baronies ennobling their owners was made at a time when their heritable jurisdictions, to which he refers in Chapter 2, were still in operation. Stevenson in Heraldry in Scotland, written in 1914, quotes Mackenzie but only to the extent of saying that a baron is to be treated as virtuous and thus entitled to Arms. The practice of selling baronies with small pieces of land did not develop until the 1960s. At the time when Stevenson was writing, the owner of a barony would almost certainly have been the owner of a substantial estate.

The 1400 Act certainly does require a baron to have a seal or coat of Arms. The question is whether the Act is still effective. I accept that, when the Public Register of All Arms and Bearings in Scotland was created in 1672, provision was made for Barons to record their Arms in the Register. I also accept that barons have continued to apply for grants of Arms. It was accepted at the hearing that not all barons recorded their Arms after 1672 and that they have not, over the years, all applied for Arms.

I refer to Lord Russell’s statement in MacCormick v Lord Advocate that the power of a Scottish Court to declare an Act to be in desuetude can be exercised only where there is knowledge or admission or proof of the existence of custom or action to the contrary. This case only concerned the power of the court. Clearly Lord Russell visualised the possibility of custom developing or action being taken which was contrary to the Act, prior to the question of whether the Act had fallen into desuetude arising. So there would be nothing to stop the 1400 Act being ignored and contrary customs applying until such time as a court was asked to make a ruling. It seems to me that this is what has happened here. Even in 1672 it is almost certain that a great many barons did not record Arms in the new Register. Ever since then there has always been a significant number of barons who have not applied for a grant of Arms and this has continued down to the present day. Prior to the 2000 Act, the purchasers of baronies did not always apply for Arms. There is no evidence that any baron was ever prosecuted under the 1400 Act for failing to record Arms. It therefore seems to me that the Act of 1400 has long since ceased to have effect, even if no formal application has ever been made to a court to have it declared to have fallen into desuetude.

The same can be said with regard to the subscription of deeds after the Act 1540, c. 117. In fourteenth and fifteenth century Scotland, seals were in use in place of a signature as the act of solemnity to the deed to which the seal was attached. (Stevenson, Heraldry in Scotland p.104 -105). By the Act 1540, c.117, because of the loss or misuse of seals, the subscription of a deed was required for “faith” to be placed on it. The use of subscription by individuals as an authentication of a deed continues today in place of seals. Green’s Encyclopaedia of the Law of Scotland (ed. Dunedin), Vol 5, para 1073, comments: “Subscription by the granter. This was introduced as a solemnity by the Act 1540, c.117. Previous to this, sealing was the only mode of authentication in use. Sealing was subsequently dispensed with in certain cases by the Act 1584, c.4 and it soon fell into general desuetude.”

The 1430 Act appears to have been an attempt to deal with the lax attendance of inquisitors at inquests, as commented upon by Craig in respect of the holding of inquests under brieves (Craig, Jus Feudale(trans. Clyde, 1934), 2.17.23 to 41). It seems that the 1430 Act sought to ensure (i) attendance of inquisitors; and (ii) that they attend with their seals in order that the retour to chancery could be made “in faith”; in other words, duly authenticated by the manner then used for the authentication of deeds. In so far as the 1430 Act regulated procedure at inquests held in terms of a baronial jurisdiction, that jurisdiction has now gone as a result of the 1747 Act and the 2000 Act. In any event, the obligation to have seals to give faith to proceedings has clearly fallen in desuetude in the same way as the obligation in the 1400 Act. I do not consider that reference to either the 1400 Act or the 1430 Act assists the Petitioner.

I accept that section 62 of the 2000 Act states “Nothing in this Act shall be taken to supersede or impair the jurisdiction or prerogative of the Lord Lyon King of Arms.”
In my view that refers to matters that might or might not fall within Lyon’s jurisdiction and it specifically does not fetter Lyon’s discretion. It does not mean, and I do not think that it can be implied to mean, such a specific provision that a person who fell within the jurisdiction prior to the Act by virtue of the ownership of a barony must continue to do so after the Act. If that had been the intention then I think that much more specific wording would have been required.

With regard to the suggestion that the 2000 Act has made little change to the situation where, prior to the Act, baronies were attached to small pieces of land which could subsequently be sold, thus allowing the former baron to continue to use the Arms while no longer owning the land, I do not accept this argument. The Act has in fact changed the law. Prior to the 2000 Act what brought a person within the jurisdiction was ownership of baronial land. It was the physical land which was important, not its baronial character. Ownership of land has always been a ground for jurisdiction. The fact that the land was baronial made no difference, in my view, to the fact that it was the ownership of a piece of land that was the ground for jurisdiction. What the 2000 Act did was to separate a barony from its land. Thus ownership of a barony since the Act may not involve any ownership of land.

I have considered whether the jurisdiction of Lyon to grant Arms to individuals owning heritage in Scotland has in the past extended to holders of other forms of incorporeal heritable property apart from land, by virtue simply of such other incorporeal heritable property. Such property could be, growing crops, salmon fishings or other regalia minora, leases, superiorities or other feudal rights, heritable bonds, certain forms of pension and annuity, a right of access or of pre-emption or some other right of enjoyment over or interest in another person’s property, a title of honour, an office to continue beyond the lifetime of the holder or a coat of Arms (Gordon, Scottish Land Law 1-003).

Arms would not be granted to a person who was already in right of a coat of Arms. Titles of honour would include peerage titles, baronetcies and dignities associated with Orders of Chivalry (Stair Memorial Encyclopaedia of the Laws of Scotland 16 para 1301). Leaving aside those that are hereditary in nature, such titles would involve a life peerage, or membership of one of the Orders of Chivalry. A knight or lady of the Order of the Thistle has always been a person with strong Scottish connections, so Arms would not have been granted simply by virtue of membership of the Order alone. I am not aware that Arms have ever been granted in Scotland to a member of one of the other Orders of Chivalry with no connection with Scotland, simply because of membership of the Order. A life peer might apply for Arms if his or her territorial designation were Scottish. But it is most unlikely that a peer would have a Scottish territorial designation unless he or she had Scottish connections. Therefore it is very unlikely that there could be a case of a peer applying for Arms in Scotland who had no connection with Scotland other than the peerage title.

I can find only one instance where Arms have been granted to a person purely on the basis of his being the owner of a non-baronial feudal superiority. This was the case of Bartle-Jones of Craigiebuckler (Lyon Register 74/27). In any event with the abolition of the feudal system under the 2000 Act, no case based purely on a superiority could now arise.

I have not granted Arms to any person who has acquired a barony since the Act came into force and it is well known that the question of whether or not Arms might be granted to such a person has not yet been determined by Lyon. There is, therefore, no practice upon which the assignee of a barony, with no connection with Scotland, could have founded an expectation of a grant of Arms.

Reference was made to a baron’s right to become a member of the Convention of the Baronage. In fact there is no such right. The Convention of the Baronage is a membership body and, while a baron may apply to join it, there is no automatic right to do so. Reference was also made to attendance at ceremonial events such as the St Andrews’ Day Service at St Giles Cathedral in Edinburgh. There is, as I understand it, no particular right involved there. Representatives of professional, academic and other bodies are present at this Service and the individuals are selected to be present by the bodies that they represent. I understand that the Convention of the Baronage is one of the bodies that choose individuals to represent them at the Service.

Reference was also made to the right of barons to carry the canopy over the honours of Scotland. The last occasion on which this took place was the State Visit by the Queen to Scotland following the Coronation in 1953. Here the arrangements involved four of the feudal barons carrying the canopy. The four that were chosen were the holders of the most ancient of the baronies. No baron other than those selected had any right as such to take part in this ceremony.

I have concluded that Dr Lindberg does not, by virtue of ownership of the barony of Delvine, fall within the jurisdiction of this Court. I have also decided that there are no grounds for my exercising my discretion to grant Arms to him, despite his not falling within my jurisdiction. I will accordingly refuse the Petition.