Origins and background of the law of succession to arms and dignities in Scotland
Moncreiffe of that Ilk, Iain
THE LEGAL PROBLEM: Any royal officer of arms who becomes a qualified lawyer will find that he is called upon to undertake a great deal of legal work in connection with disputed questions of succession to arms or dignities, yet no single guide can be found that will demonstrate the original simple and fundamental principles to lead him through the historical complexities of the law and practice of succession to such incorporeal heritage in Scotland. The need for such a guide will be readily apparent to any legal historian who studies the fundamental assumptions made by the Lords of Session in the case of Maclean of Ardgour v. Maclean (1).One of the most remarkable of the assumptions made during this case, was that of the late Lord Justice Clerk Aitchison(2) : "Looked at historically, there can be, I think, no controversy that ensigns armorial had their origin in feudalism as a military system. ... Arms in the accepted sense were introduced into Scotland at a date not earlier than the middle of the 12th, or the beginning of the 13th century... In these early times of turbulence and strife, the inheritance of arms would fall naturally to the heir male. The same was true of land held on feudal tenure. Originally, the feudal law excluded females from the succession. It was only as the law developed and the military character of feudalism came gradually to be modified, until finally it disappeared, that the right of the nearer female to inherit in preference to the remoter male came to be established and the descent was recognised as being to the heir general ". This can only be taken to mean that, in the Lord Justice Clerk's considered opinion, it was a self- evident fact that in Scotland "at a date not earlier than the middle of the twelfth century" - and apparently for some time afterwards, since "the military character of feudalism" was not seriously modified until the disarming acts of the eighteenth century - "the feudal law excluded females from the succession" to land and arms. On the basis of such fundamental assumptions, the Court of Session proceeded to deliver opinions that led the zealous editor of the rubric to write that they had held that "... in general there might be a presumption in favour of the right of the heir male to succeed" to Arms, of which the destination is not otherwise recorded.Lord Justice Clerk Aitchison's assumptions follow a long tradition. In the Cassillis peerage case of 1762 (3), Lord Chief Justice Mansfield said: "It appears that the feudal system was very early introduced into Scotland. It brought with it earldoms and other territorial dignities They most certainly descended to the issue -male ... they were certainly masculine fiefs. ... Many things concur to prove that lands descended to the heirs -male of the body of the person to whom the fee was originally granted. The presumption of law follows properly the nature of the fee. Every fee was presumed to be held by military tenure, unless ... some other tenure was shown. It was therefore presumed that the lands descended to heirs -male ". On the basis of these assumptions, Lord Mansfield(4) was of the opinion that there ought to be a presumption in favour of the right of the heir male to succeed to peerages, of which the destination is not otherwise recorded: "As in the present case there is no proof of a limitation of the title ..., I am of the opinion it ought, to descend to the heir male ". Just as Lord Aitchison held Arms to be male fiefs ab initio on the analogy of feudal land tenure in Scotland, so did Lord Mansfield hold dignities to be male fiefs ab initio on the same analogy.Although this doctrine of the original right of the heir male to succeed to heritage in Scotland owed a great deal to eighteenth century propaganda on behalf of Simon, 11th Lord Lovat(5), it already shews signs of appearing in the works of Sir Thomas Craig of Riccarton (1538- 1608), whose Jus Feudale(6) was first published in 1655: "All proper feus are of the masculine class, because in the typical feu women are excluded, males alone being admitted "(7) ... "In the general Feudal Law, the term 'heirs' in general includes male heirs only "(8): although in fact Craig makes it clear that he is referring to Lombard law (which he regards as "the general feudal law ") and not to Scots Law, which he admits to be different though he speculates mistakenly about the reason. We thus have the high authority of Lord Justice Clerk Aitchison and Lord Chief Justice Mansfield (as well as some misleading speculations by Sir Thomas Craig) besides other writers and judges, for the proposition that it is self - evident that the original heirs to land held on a feudal tenure in mediaeval Scotland were undoubtedly heirs male, that the same is true of Arms and dignities, and that a presumption in favour of heirs male may therefore continue in cases of doubt.The busy Courts may perhaps be rather apt to think such historical guesswork based on "judicial knowledge" sufficient to dispose of cases of disputed succession to Arms or dignities, because they sometimes seem to consider the patrimonial (by which they mean financial) consequences so insignificant that these cases border on waste of judicial time. Yet man cannot live by bread alone, and indeed the State itself finds honours more effective rewards to bestow than money. Disputes about Arms or dignities are usually of great emotional significance to the unfortunate litigants, who often spend considerable sums of money that they can ill afford in attempts to establish what they believe to be their ancestral rights. It therefore seems worth while to go behind these learned opinions, to lay aside for a moment these judges' crystal ball, and to examine the actual facts of succession in the formative period of Scottish history.These facts will be set out as briefly as possible in the chapters below(9) , but they undoubtedly demonstrate that the fundamental law of succession to heritage in Scotland has remained constant since Scotland first became a united realm during the course of the twelfth century. By this fundamental law, the heir at law to lands, to Arms and to dignities, is and always has been the heir general. As Lord ivarchmont observed in the Cassillis peerage case(1o) : "certainly our succession was always lineal and always female, and where there was an heir -male, he was no heir of law, but an heir of provision ". Apparent changes in practice through the centuries will be found to have been in principle no more than such methods of exception, by special provision, from this fundamental law.It is therefore proposed to examine the historical background whence our laws of succession emerged, in order to shew (a) that Arms and dignities, as incorporeal heritage, have always been subject in Scots Law to the same general law of succession as an eldest heir-portioner's praecipuum or as a caput baroniae, with certain exceptions; (b) that these exceptions, which are very numerous but always specially provided, are the result of special circumstances such as the growth of surnames, and the association of particular surnames with particular Arms and dignities; (c) that unless otherwise tailzied, dignities should therefore descend like land to the nearest heir general, while Arms (unless differenced by quartering) descend to the nearest heir general bearing the surname, once the territorial connection of the inheritance has been severed; but (d) that although Arms and dignities were feudally associated with a territorial function (11) , their origins may perhaps be traced from a pre-feudal background of ancient ritual, itself originally derived from the sacral royalty of pagan times(12).Since a number of different peoples (Picts, Gaels, Cymry, Beornicians, and Northmen) went to the making up of what became feudal Scotland, it is necessary first of all to examine their separate succession laws, since it is for consideration how much their laws may have gone towards the formation of those governing the united realm; and, moreover, local customs long continued to modify the general Scots Law. The attached map illustrates the approximate distribution of these peoples.