Part 53 (1/2)
But outside and beyond these there are many other families who bear them by right. At the official inquiry concerning the Lyon Office, the Lyon-Depute, Mr. George Tait, put in a Note of Persons whom he considered might lawfully bear supporters under Scottish Heraldic Law. The following is the text of the note in question:--
”NOTE OF PERSONS who are considered by GEORGE TAIT, Esq., Lyon-Depute, to be ent.i.tled to supporters, furnished to the Commissioners of Inquiry by their desire, intimated to him at his examination this day, June 27, 1821.
”1. _Peers._--By immemorial usage, Peers have right to supporters, and supporters are commonly inserted in modern patents of Peerage. This includes Peeresses in their own right.
”2. _Ancient Usage._--Those private gentlemen, and the lawful heirs-male of their bodies, who can prove immemorial usage of carrying supporters, or a usage very ancient, and long prior to the Act 1672, are ent.i.tled to have their supporters recognised, it being presumed that they received them from lawful authority, on account of feats of valour in battle or in tournament, or as marks of the Royal favour (see _Murray of Touchadam's Case_, June 24, 1778).
”3. _Barons._--Lawful heirs-male of the bodies of the smaller Barons, who had the full right of free barony (not mere freeholders) prior to 1587, when representation of the minor Barons was fully established, upon the ground that those persons were Barons, and sat in Parliament as such, and were of the same as the t.i.tled Barons. Their right is recognised by the writers on heraldry and antiquities. Persons having right on this ground, will almost always have established it by ancient usage, and the want of usage is a strong presumption against the right.
”4. _Chiefs._--Lawful heirs-male of Chiefs of tribes or clans which had attained power, and extensive territories and numerous members at a distant period, or at least of tribes consisting of numerous families of some degree of rank and consideration. Such persons will in general have right to supporters, either as Barons (great or small) or by ancient usage. When any new claim is set up on such a ground, it may be viewed with suspicion, and it will be extremely difficult to establish it, chiefly from the present state of society, by which the traces of clans.h.i.+p, or the patriarchal state, are in most parts of the country almost obliterated; and indeed it is very difficult to conceive a case {423} in which a new claim of that kind could be admitted. Mr. Tait has had some such claims, and has rejected them.
”5. _Royal Commissions._--Knights of the Garter and Bath, and any others to whom the King may think proper to concede the honour of supporters.
”These are the only descriptions of persons who appear to Mr. Tait to be ent.i.tled to supporters.
”An idea has gone abroad, that Scots Baronets are ent.i.tled to supporters; but there is no authority for this in their patents, or any good authority for it elsewhere. And for many years subsequent to 1672, a very small portion indeed of their arms which are matriculated in the Lyon Register, are matriculated with supporters; so small as necessarily to lead to this inference, that those whose arms are entered with supporters had right to them on other grounds, _e.g._ ancient usage, chieftains.h.i.+p, or being heirs of Barons. The arms of few Scots Baronets are matriculated during the last fifty or sixty years; but the practice of a.s.signing supporters gradually gained ground during that time, or rather the practice of a.s.signing supporters to them, merely as such, seems to have arisen during that period; and it appears to Mr. Tait to be an erroneous practice, which he would not be warranted in following.
”British Baronets have also, by recent practice, had supporters a.s.signed to them, but Mr. Tait considers the practice to be unwarranted; and accordingly, in a recent case, a gentleman, upon being created a Baronet, applied for supporters to the King--having applied to Mr. Tait, and been informed by him that he did not conceive the Lord Lyon ent.i.tled to give supporters to British Baronets.
”No females (except Peeresses in their own right) are ent.i.tled to supporters, as the representation of families is only in the male line.
But the widows of Peers, by courtesy, carry their arms and supporters; and the sons of Peers, using the lower t.i.tles of the peerage by courtesy, also carry the supporters by courtesy.
”Mr. Tait does not know of any authority for the Lord Lyon having a discretionary power of granting supporters, and understands that only the King has such a power.
”Humbly submitted by
(Signed) ”G. TAIT.”
Though this statement would give a good general idea of the Scottish practice, its publication entails the addition of certain qualifying remarks. Supporters are most certainly not ”commonly inserted in modern patents of peerage.” Supporters appertaining to peerages are granted by special and separate patents. These to English subjects {424} are now under the hand and seal of Garter alone. In the event of a grant following upon the creation of an Irish peerage, the patent of supporters would be issued by Ulster King of Arms. But it is competent to Lyon King of Arms to matriculate the arms of Scottish peers with supporters, or to grant these to such as may still be without them. Both Lyon and Ulster would appear to have the right to grant supporters to Peers of the United Kingdom who are heraldically their domiciled subjects. With regard to the second paragraph of Mr. Tait's memorandum, there will be few families within its range who will not be included within the range of the paragraph which follows, and the presumption would rather be that the use of supporters by an unt.i.tled family originated in the right of barony than in any mythical grant following upon mythical feats of valour.
Mr. Tait, however, is clearly wrong in his statement that ”no females (except peeresses in their own right) are ent.i.tled to supporters.” They have constantly been allowed to the heir of line, and their devolution through female heirs must of necessity presuppose the right thereto of the female heir through whom the inheritance is claimed. A recent case in point occurs with regard to the arms of Hunter-Weston, matriculated in 1880, Mrs.
Hunter-Weston being the heir of line of Hunter of Hunterston. Widows of peers, providing they have arms of their own to impale with those of their husbands, cannot be said to only bear the supporters of their deceased husbands by courtesy. With them it is a matter of right. The eldest sons of peers bearing courtesy t.i.tles most certainly do not bear the supporters of the peerage to which they are heirs. Even the far more generally accepted ”courtesy” practice of bearing coronets is expressly forbidden by an Earl-Marshal's Warrant.
Consequently it may be a.s.serted that the laws concerning the use of supporters in Scotland are as follows: In the first place, no supporters can be borne of right unless they have been the subject of formal grant or matriculation. The following cla.s.ses are ent.i.tled to obtain, upon payment of the necessary fees, the grant or matriculation of supporters to themselves, or to themselves and their descendants according as the case may be: (1) Peers of Scotland, and other peers who are domiciled Scotsmen.
(2) Knights of the Garter, Knights of the Thistle, and Knights of St.
Patrick, being Scotsmen, are ent.i.tled as such to obtain grants of supporters to themselves for use during life, but as these three orders are now confined to members of the peerage, the supporters used would be probably those appertaining to their peerages, and it is unlikely that any further grants for life will be made under these circ.u.mstances. (3) Knights of the Bath until the revision of the order were ent.i.tled to obtain grants of supporters to themselves for {425} use during their lifetimes, and there are many instances in the Lyon Register where such grants have been made.
(4) Knights Grand Cross of the Bath, of St. Michael and St. George, and of the Royal Victorian Order, and Knights Grand Commanders of the Orders of the Star of India, and of the Indian Empire, are ent.i.tled to obtain grants of supporters for use during their lifetimes. (5) The lawful heirs of the minor barons who had the full right of free barony prior to 1587 may matriculate supporters if they can show their ancestors used them, or may now obtain grants. Though practically the whole of these have been at some time or other matriculated in Lyon Register, there still remain a few whose claims have never been officially adjudicated upon. For example, it is only quite recently that the ancient Swinton supporters have been formally enrolled on the official records (Plate IV.). (6) There are certain others, being chiefs of clans and the heirs of those to whom grants have been made in times past, who also have the right, but as no new claim is likely to be so recognised in the future, it may be taken that these are confined to those cases which have been already entered in the Lyon Register.
During the latter part of the eighteenth century, the executive of Lyon Office had fallen into great disrepute. The office of Lyon King of Arms had been granted to the Earls of Kinnoul, who had contented themselves with appointing deputies and drawing fees. The whole subject of armorial jurisdiction in Scotland had become lax to the last degree, and very many irregularities had crept in. One, and probably the worst result, had been the granting of supporters in many cases where no valid reason other than the payment of fees could be put forward to warrant the obtaining of such a privilege. And the result was the growth and acceptance of the fixed idea that it was within the power of Lyon King of Arms to grant supporters to any one whom he might choose to so favour. Consequently many grants of supporters were placed upon the records, and many unt.i.tled families of Scotland apparently have the right under these patents of grant to add supporters to their arms. Though it is an arguable matter whether the Lord Lyon was justified in making these grants, there can be no doubt that, so long as they remain upon the official register, and no official steps are taken to cancel the patents, they must be accepted as existing by legal right. Probably the most egregious instance of such a grant is to be found in the case of the grant to the first baronet of the family of Antrobus, who on purchasing the estate of Rutherford, the seat of the extinct Lords Rutherford, obtained from the then Lyon King of Arms a grant of the peerage supporters carried by the previous owners of the property.
With regard to the devolution of Scottish supporters, the large {426} proportion of those registered in Lyon Office are recorded in the terms of some patent which specifies the limitations of their descent, so that there are a comparatively small number only concerning which there can be any uncertainty as to whom the supporters will descend to. The difficulty can only arise in those cases in which the arms are matriculated with supporters as borne by ancient usage in the early years of the Lyon Register, or in the cases of supporters still to be matriculated on the same grounds by those families who have so far failed to comply with the Act of 1672. Whilst Mr. Tait, in his memorandum which has been previously quoted, would deny the right of inheritance to female heirs, there is no doubt whatever that in many cases such heirs have been allowed to succeed to the supporters of their families. Taking supporters as an appanage of right of barony (either greater or lesser), there can be no doubt that the greater baronies, and consequently the supporters attached to them, devolved upon heirs female, and upon the heir of line inheriting through a female ancestor; and, presumably, the same considerations must of necessity hold good with regard to those supporters which are borne by right of lesser barony, for the greater and the lesser were the same thing, differing only in degree, until in the year 1587 the lesser barons were relieved of compulsory attendance in Parliament. At the same time there can be no doubt that the heads.h.i.+p of a family must rest with the heir male, and consequently it would seem that in those cases in which the supporters are borne by right of being head of a clan or chief of a name, the right of inheritance would devolve upon the heir male. There must of necessity be some cases in which it is impossible to determine whether the supporters were originally called into being by right of barony or because of chieftains.h.i.+p, and the consequence has been that concerning the descent of the supporters of the older unt.i.tled families there has been no uniformity in the practice of Lyon Office, and it is impossible from the precedents which exist to deduce any certain and unalterable rule upon the point.
Precedents exist in each case, and the well-known case of Smith-Cunningham and d.i.c.k-Cunningham, which is often referred to as settling the point, did nothing of the kind, inasmuch as that judgment depended upon the interpretation of a specific Act of Parliament, and was not the determination of a point of heraldic law. The case, however, afforded the opportunity to Lord Jeffrey to make the following remarks upon the point (see p. 355, Seton):--
”If I may be permitted to take a common-sense view, I should say that there is neither an inflexible rule nor a uniform practice in the matter. There may be cases where the heir of line will exclude the heir male, and there may be cases where the converse will be held. In {427} my opinion the common-sense rule is that the chief armorial dignities should follow the more substantial rights and dignities of the family. _If the heir male succeed to the t.i.tle and estates, I think it reasonable that he should also succeed to the armorial bearings of the head of the house._ I would think it a very difficult proposition to establish that the heir of line, when denuded of everything else, was still ent.i.tled to retain the barren honours of heraldry. But I give no opinion upon that point.”
Mr. Seton, in his ”Law and Practice of Heraldry in Scotland,” sums up the matter of inheritance in these words (see p. 357): ”As already indicated, however, by one of the learned Lords in his opinion on the case of Cuninghame, the practice in the matter in question has been far from uniform; and accordingly we are very much disposed to go along with his relative suggestion, that 'the chief armorial dignities should follow the more substantial rights and dignities of the family'; and that when the latter are enjoyed by the female heir of line, such heir should also be regarded as fairly ent.i.tled to claim the princ.i.p.al heraldic honours.”
The result has been in practice that the supporters of a family have usually been matriculated to whoever has carried on the name and line of the house, unless the supporters in question have been governed by a specific grant, the limitations of which exist to be referred to, but in cases where both the heir of line and the heir male have been left in a prominent position, the difficulty of decision has in many cases been got over by allowing supporters to both of them. The most curious instance of this within our knowledge occurs with regard to the family of Chisholm.