Some for their own ends claim the laws governing a Scottish clan vary from country to country, however nothing could be further from the truth.
The laws relating to a Scottish clan, its Chief, confirmation of the same and their Arms are governed, as one would suspect in dealings with a Scottish clan, by the laws of Scotland.
All those who respect their heritage and culture from whatever clan, recognise that. This is why many clan societies and clans before Carruthers, including those based in the US and Canada, and many to come afterwards, seek recognition from the only authority in the world who can give it……………….. namely the Lord Lyon in Edinburgh.
For in excess of 12 years, this is what your clan society (Clan Carruthers Society International) has been working tirelessly on; that of confirmation of a Carruthers Chief through the auspices of the Lyon Court.
Therefore as we get closer to a decision by the Lord Lyon, although much has been discussed about his role regarding his rights or otherwise to confirm a chief of a clan or name and his jurisdiction, the question of differing laws in different countries governing the process keeps coming up.
To make it absolutely clear, there is only one law that defines the function, status and respectability of a Scottish clan and that is Scottish law and the Lyon Court plays in integral part in that. Those who choose to ignore it have quite simply no respect for the traditions, culture and heritage that Scotland gives the name they have chosen to abuse.
The Court of the Lord Lyon
The Court of the Lord Lyon was established in Scotland in 1532, with their current judiaciary powers based on the Acts of 1592, 1669, 1672 and 1867, which has set out the Lyon Courts guiding principles in law.
Based on the information from both the Lyon Court itself and the Heraldry Society of Scotland, the Lyon’s duties and roles are made very clear.
Who is the Lord Lyon
The current Lord Lyon is the Rev. Canon Dr. Joseph Morrow CBE, KStJ, QC, DL, LLD, who was appointed and sworn into his office in 2014.
The Lord Lyon is not only a Minister of the Crown but also a judge of the Realm; nowadays it is perhaps in this capacity that he comes most in contact with the public, for almost all Scottish heraldic business is conducted on Judicial lines. This is through the machinery of the Court of the Lord Lyon, which exercises both a civil and a penal jurisdiction under the old Common Law of Scotland as well as sundry Acts of Parliament.
Scotland and Spain are probably the only countries where a court of heraldry and genealogy still exists in daily operation before which lawyers plead in wig and gown, though, thanks to the courtesy and interest shown by the Lord Lyon and his officers, most of the business of the ordinary applicant is settled without even the need for legal assistance.
The Court of the Lord Lyon indeed reflects, not the curt severity of the Police Court or the Magisterial Bench, but rather the stately benevolence of distant days when our ancient Scottish laws were administered upon the “moot hill” of some old barony or thaneage (eg Thane of Fife. Ed.).
The statutes drawn up by the skilful Scottish statesmen of the sixteenth and seventeenth centuries function as smoothly and efficiently today and serve the lieges (UK Monarchs. Ed.) as effectively as they did in the Middle Ages. The Court of the Lord Lyon is situated in H.M. New Register House, its records (part of the National Records of Scotland) being entrusted to the Lyon Clerk.
When sitting in full Court the Lord Lyon wears, as he did in Parliament before the Union, a robe of crimson velvet and ermine, somewhat like the coronation robe of a British peer, but with cords and tassels and no hood.
The duties of the Court are divided into two broad categories:
(a) Establishing rights to arms and pedigrees, which, when satisfactory evidence is produced, results in a judicial “Interlocutor” granting warrant to the Lyon Clerk to record in the Public Register of All Arms and Bearings in Scotland, or in the Public Register of All Genealogies and Birthbrieves in Scotland, the particular coat of arms and genealogy which have been established to his Lordship’s satisfaction.
(b) The penal and semi-penal (State Revenue) jurisdiction is concerned with protecting the rights both of private individuals and of the Crown in Scottish armorial bearings, and over H.M. Messengers at Arms. This is regarded as a matter of signal importance, for where persons or corporations have paid fees to the Crown in return for the exclusive right to armorial bearings, and a Scots coat of arms can belong to only one person at a time, it is only proper that these rights should be protected. Without such protection arms are indeed useless to anybody or for anything.
The misappropriation or unauthorised display of a man’s coat of arms is a “real injury” under the Common Law of Scotland.
Regarding a Chief
(One of the recent Chiefs being confirmed by the Lord Lyon in 2016, is the Chief of the Name of Irving/Irvine of Bonshaw.
Not to be confused with Irvine of Drum, which for clarification is a separate and distinct highland clan from Aberdeenshire. Irving of Bonshaw were Reivers and our close neighbours. Therefore like Carruthers, they were a riding family of the West March and in the same vein as Carruthers, they were one of the 17 Unruly Border Clannis mentioned in the 1587 Act. Ed)
Granting of Arms
“The granting or regranting of Arms by Letters Patent and various Birthbrieves, e.g. Diplomas of Nobility or of Chiefship (Diploma Stemmalis), is not judicial but the exercise by Lyon of the Sovereign’s Armorial prerogative, and with this the Courts of Appeal “cannot interfere”.
In this branch of Armorial jurisdiction Lyon, after considering the Petition, issues a Warrant, which is the heraldic equivalent of the Queen’s “Signature” for a Crown Charter, “authorising” the Lyon Clerk to prepare the Letters Patent.
On all these proceedings fees are payable to H.M. Exchequer. It is not often realised that the Lyon Office is a revenue-earning Government Department as well as being custodian of the pageantry and romance of Scotland’s mediaeval grandeur.
Guidance as regards the holding of a Derbhfine or Family Convention
Derbhfine was the name given in Old Irish Law to a four generation agnatic kingroup of importance in determining succession and the ownership of property. More recently the term has been used to describe what might be termed a Family Convention, held when the identity of the Chief or Head of a historic Family or Name is in doubt, the object of which is to recognise a new Chief or Head of the Family or Name; or to indicate a suitable Commander for a term of years.
In the case of Clan MacAlpine above, they are now an officially recognised armigerous Scottish clan. After nearly 20 years If hard work and effort by the Clan MacAlpine Society, it has lead to their recognition by the Court of the Lord Lyon in Edinburgh. A great achievement to say the least.
On April 19, 2017 the Lord Lyon commissioned Michael T. McAlpin of Alpharetta, Georgia, USA Commander of the McAlpine Clan, the position of Commander is an ad interim ten year appointment. At the end of the appointment, the family will need to organize a Derbfine to nominate the next Clan Commander, or if acceptable to the Lyon, confirm the Commander as Chief.
(Of course if the laws relating to Scottish clans were different in other countries, this long and arduous process would not need to be followed.
However, because the clan in question or infact any clan wishing to attain credibility and respectability for themselves both in Scotland and internationally, recognition in Scottish law and confirmation by the Lord Lyon, is simply imperative.
This process of holding a Derbhfine has been held in Scotland this summer (2019) , supervised by the Lyon Court as is required, by both the McEwans and the Bells.
The commander in waiting of Clan Bell is an American, the Commander of Clan McEwan is Scottish but both have chosen to take the correct route for official recognition and confirmation through the Lord Lyon.Ed)
Holding a Derbhfine
A Family Convention should therefore be composed of the leading members of the Family or Name in question. It has not proved easy to define who exactly qualify as leading members, but the term certainly includes the heads or representatives of leading branches of the family. In the past the term has been defined in terms of armigers and substantial landowners. Although being an armiger does suggest a certain status and a degree of commitment to the Name, this definition has not proved entirely satisfactory, being on the one hand too exclusive and on the other open to abuse. For example, such a definition might exclude non-armigerous heads of leading branches; also, in theory at least, definition in terms of a given number of armigers may make a Family Convention open to “packing”.
There is also the possibility that someone unconnected to the Name in question, might adopt that name as his or her surname and become an armiger. It is not appropriate that someone in this position should then be regarded as a leading member of the family. It does seem appropriate, however, to consult with a well established clan or family association where such exists.
(In the case of Carruthers the official society is: http://www.clancarrutherssociety.org)
Why would you hold a Derbhfine
There are a number of circumstances in which it would seem appropriate to hold a Family Convention:
(1) Where a blood link to a past Chief or Head of Name is likely but is not conclusively proven and it is wished to propose a particular person in that situation to be recognised as Chief.
(2) Where the main line of descent from a past Chief has died out and it is wished to recognise the Representer of a cadet line as Chief.
(3) Where neither blood link to a past Chief nor Representer of a cadet line can be identified but it is wished to propose a particular person of the surname as Commander. It is generally desirable that such a Commander should live in Scotland.
(But not, as can be seen above by the choosing of an American Commander, necessary. Ed.)
It should be noted that the Lord Lyon is unlikely to recognise a person recommended by a Family Convention as Chief or Head of a Family or Name, unless that recommendation is unopposed or, at the very least, has been approved by a substantial majority of the Family Convention.
The Family Convention should take place in Scotland, although members outwith the jurisdiction may participate by video link or similar.
(In the case of the gathering in Canada it had no legality as due dilligence did not take place with respect to a Scottish clan or family. This was for for three robust reasons which they were advised off before their meeting:
a) Proven Senior members of the Carruthers chiefly line still exist.
b) Evidenced genealogy supercedes a derbfine and
c) it was not recognised nor supported on any level by the Lyon Court. Ed.).
The Conduct of a Family Convention
It is desirable that one of HM Officers of Arms, or some other person approved by the Lord Lyon King of Arms, be appointed to supervise the Family Convention. The supervising officer’s role is to act as an impartial Chairman and to make an objective report to Lyon.
In case of dispute, the supervising officer will determine which individuals shall comprise the Family Convention and, in reporting back to Lyon, shall also take into account the views of any well established clan or family association.
At least six month’s notice of the intention to hold a Family Convention should be given to the Lord Lyon to be posted, at a minimum, on the Lyon Court website. The Supervising Officer should give at least two month’s notice of the date of the Family Convention to interested parties, setting out the procedure to be followed.
What is my clan coat of Arms?
A clan cannot have a coat of Arms. The Chief of a clan has his or her personal coat of Arms but that belongs to the chief and cannot be used by anyone else. What a member of a clan may use is a badge consisting of the chief’s ‘crest’ (see next question), within a belt and buckle design. The belt shows the chief’s motto on it.
Is a crest the same thing as a coat of Arms?
The word ‘crest’ is often used as a general description of a coat of Arms but this is not correct. A crest is one part of a heraldic design. It is the symbol which appears on top of the helmet which itself is on top of the shield. The shield contains the main part of the Arms.
(Carruthers Arms are to the side and should only be bourne by our chief when confirmed. ed )
Who is my clan chief?
First of all you have to decide which clan you belong to. If your surname is the same as the name of a clan then you will want to be part of that clan. If your surname is different then your surname may be that of one of the septs which a particular clan chief has recognised as falling within his clan’s wider family. If your surname is different from any of the recognised septs then it is for you to decide which clan you may wish to give your loyalty to. That is your personal choice. If you wish to know the name of the individual who is chief of a particular clan, the list of chiefs appears in the annual publication called Whitaker’s Almanack.
What tartan can I wear?
That depends on which clan you belong to. Strictly speaking you do not have the right to wear your mother’s tartan unless you have taken her surname. You can only belong to one clan. If you do not belong to any particular clan you may wear a district tartan if you are descended from an ancestor belonging to the district concerned. The district tartans are Lennox, Huntly and Strathearn. Otherwise you may wear the Jacobite, Caledonia, Black Watch or Hunting Stewart. (Carruthers can wear Bruce although not claim it as their own and Red Carruthers. ed.)
Who can have a coat of Arms?
Anyone resident in Scotland or who owns a house or land in Scotland may apply to the Lord Lyon King of Arms for a Scottish coat of Arms. If you are not resident in Scotland and do not own any property there, you may be able to apply for Arms to be granted in the name of an ancestor who lived in Scotland if you can prove descent from that ancestor. If you are uncertain of your position, you should write setting out your circumstances to:
The Lyon Clerk, Court of the Lord Lyon, HM New Register House, Edinburgh EH1 3YT.
How do I apply for a coat of Arms?
Application is made in the form of a Petition to the Lord Lyon. A copy of a leaflet containing various sample forms of Petition for different circumstances is available from the Lyon Clerk, address:
The Court of the Lord Lyon, HM New Register House, Edinburgh, EH1 3YT.
Can everyone who is descended from someone who had a coat of Arms use it?
No. A coat of Arms belongs only to one person at a time. It passes from the owner to his eldest son and then to his eldest son and so on. Other members of the family may, depending on their relationship and their surname, be able to apply for a ‘differenced’ version of the Arms to be granted to them by the Lord Lyon. If you think that you are in this position you should write, giving details of the circumstances, to the Lyon Clerk, address above.
I have located my coat of Arms on the Internet. Can I use it?
There are many websites which supply information about coats of Arms which are said to apply to particular names. Unfortunately most of this information is completely unauthentic. In many cases what is supplied is the design of the Arms belonging to the chief of a clan. Only the individual chief himself can use these Arms and it is completely incorrect for anyone else to do so.
I have bought my coat of Arms from a heraldic shop. Is it correct?
No. See the last question. What you have bought is simply a souvenir and has no authenticity. It is akin to having your photograph taken in front of a castle and giving the impression that the castle belongs to you.
When did heraldry start?
Heraldry has its origins around the 11th century. It came into being in two main ways. One was the development of designs used on personal seals which were used to make a wax impression on a document when it was signed. This was to assist those who were unable to read in those days to know who it was that had signed the document. The other way that heraldry emerged was to identify Knights wearing armour, particularly when their faces were covered by a helmet. The Knight would wear a ‘surcoat’ containing a design over the outside of the armour. The ‘surcoat’, or tabard, is still worn nowadays on ceremonial occasions by the Lord Lyon, Heralds and Pursuivants.
3 thoughts on “Clan Carruthers: Are the laws governing Scottish clans different, in different Countries?”
Another well articulated article which explains it all. Well done George
As a “Mc Donald ” in South Africa, with a missing great great grandfather link as to how, why or where he came from, I would like to express my thanks for a very interesting topic.