Again as we approach the Gathering in August 24-25 in Annan, we try to cover some of the questions we receive. This one is with regards the right to be classed as a UK citizen and therefore be able to legally inherit a Scottish clan title. Although in some cases a complicated legal matter our response is based on normal circumstances.
Firstly Scotland is a country in its own right as part of the United Kingdom. As such all Scots are currently British Citizens and may carry a British Passport. If Scotland attained independence, this would change but currently there are no Scottish Passports. However, Scotland retains its own parliament, led by its own First Minister, its own banknotes linked to the British pound, its own education system and its own legal system which means that the judiciary is Scottish as are the laws that govern it. The Lord Lyon King of Arms is part of that judiciary.
- The Scots, are an ethnic group and nation native to Scotland ie a native or inhabitant of Scotland. Scottish ancestry, through its Diaspora maintains a robust link and bond through its respect and appreciation for Scottish culture, history and their individual heritage. They remain strongly intertwined.
If independence did occur, the Scottish Government states that you would be able to register automatically as a Scottish citizen if you are already a British citizen and live in Scotland, were born in Scotland, have a parent who was born in Scotland, or previously lived in Scotland for 10 years (or five years as a child).
A Citizen at birth
The concept of a child being born outside of Scotland to British expatriate parents is covered on the main through international law, and most certainly in British Law. So if the child was born before 1983 the following applies:
- The Father was British
- A citizen of the United Kingdom or its colonies
- Married to the mother
- Able to pass citizenship on (parents were born/adopted in UK, attained British citizenship by application, working as a Crown servant ie diplomatic service, armed forces or overseas civil service)
- Further, prior to 1983 you could claim British Citizenship if your grandfather or grandmother were British citizens, although in certain circumstances this is still a valid route i.e. through 2 generations.
Scotland/UK allows for dual nationality but domicile is a totally different thing..
Scottish inheritance of title by children born overseas; the law.
Therefore, regarding children being born overseas to British parents and an inheritance, the Scottish Law of Succession determines what happens. The Scottish approach is unique particularly when it comes to wills, children and spouses. At this stage it is important to differentiate between movable and inheritable property, the latter being purely based on a will or legal edict. Inheritable property is in part related to an individual’s domicile which they acquire as the domicile of origin at birth. As in the case with all expats, an individual is usually considered domiciled, wherever the are working, in the country that he or she considers to be their permanent home or homeland i.e. UK, US etc, which is tranferred to the child at birth. That child on the passing of their parent would be judged for inheritence under the law of the land in which they are a citizen. If the inheritable property is Scottish, then the laws of succession kick in.
A title for instance would normally be covered by the fact that Scots law permits titles to be inherited by all children including those of illegitimate birth based on the will/patent. This can however be defined with a proviso; the title is limited to the male heirs of the body, legally begotten (ie legitimate). The eldest son would then inherit the father’s title, and younger sons may or may not have lesser titles. However, some ‘patents’ contain a special remainder ie ‘of the body’ – male or female, whereby other members of the family (for example, daughters, brothers or sisters or their children) may inherit the title.
This is mirrored in the inheritance in Scotland of the Chiefship of a clan or family where the position of clan chief was passed down through the chief’s family, with the eldest son or closest male relative typically inheriting the role. However, again this can also pass through the female line and there are currently a number of female clan chiefs recognised in Scotland.
The Carruthers chiefly line has been passed down unbroken through the male line from the 1100’s to the 1800’s and then through the female line ie the daughter of John 12th of Holmains, for one generation as per his will and testament whereby inheritance was ‘of his body’. It then passes back through the male line to our current chief.
What does a ‘chiefly’ title inherit and what is the advantage of having one?
It is the Chief that acts as the key to the clan or family’s legitimacy in law as an organic grouping inextricably connected to Scotland, its culture, law, history and society.
The clan/family is considered to be the chief’s heritable estate and the chief’s Seal of Arms is the seal of the clan as a “noble corporation”. Under Scots law, the chief is recognised as the head of the clan and serves as the lawful representative of the clan community. Therefore, any chief recognised by the Lord Lyon as chief of a clan or family is chief of all who bear the name of the clan or family and not only those belonging to a particular body ie a Society or Association.
What is a Scottish Clan/Family?
Well it is clearly integrated with Scottish Heraldry as was defined by Nisbet in his ‘System of Heraldry’ (1722). He defines it as “a social group consisting of an aggregate of distinct erected families actually descended, or accepting themselves as descendants of a common ancestor, and which has been received by the Sovereign through its Supreme Officer of Honour, the Lord Lyon, as an honourable community whereof all of the members on establishing right to, or receiving fresh grants of, personal hereditary nobility will be awarded arms as determinate or indeterminate cadets both as may be of the chief family of the clan‘.
According to the Standing Council of Scottish Chiefs : ‘A clan is a community which is both distinguished by heraldry and recognised by the Sovereign. At the head of this honourable community is the chief. He is the only person entitled to display the undifferenced shield of Arms, ie without any marks of dependency upon any other noble house’ . They go onto say that ‘Chiefship is a title of honour and dignity within the nobility of Scotland. Any claimant to such a title must establish, to the satisfaction of the Lord Lyon representing the Sovereign, that he or she is entitled to the undifferenced arms of the community over which they seek to preside. It is the determining of chiefship which is among the Lyon Court’s central work‘.
‘Many of the cases which have come before the Lyon Court in the last 50 years have related to the chiefships of clans. There are now about 140 clans that have chiefs recognised by the Lord Lyon”.
‘A clan or family. which has a recognised chief or head confers noble status on the clan or family which gives it a legally recognised status and a corporate identity. A family or name group which has no recognised chief has no official position under the law of Scotland‘.
Who belongs to a Clan/Family
‘Every person who has the same surname as the chief is deemed to be a member of the clan. Equally a person who offers allegiance to the chief is recognised as a member of the clan unless the chief decides that he will not accept that person’s allegiance’.
Septs
‘There is no official list of recognised septs. This is a matter for each chief to determine. But where a particular sept has traditionally been associated with a particular clan it would not be appropriate for that name to be treated by another clan chief as one of its septs’.
However neither border nor lowland families had septs, it is a highland/gaelic construct pushed on all Scots clans/families for commercial reasons (ed).
Carruthers therefore are a proud and ancient Border clan and family, all encompassing in its acceptance of who we are. Our Chiefly line can be traced with evidence back into the 1100’s in Dumfriesshire and into 500 BC through our DNA research into Scotland itself. This is something to celebrate and something to be proud of, see you at the Gathering.
Promptus et Fidelis
