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I answered that the reason Anderson isn’t there is because it's not a clan: it’s a Scottish name, but it’s not a clan. (By no means all Scottish names are.) And a gentleman replied in a manner which is also quite common: “Clan Anderson is a clan recognised by the Lord Lyon King of Arms. There is no higher authority on this matter.”
There’s a Wikipedia page for 'Clan Anderson' (here). Its first sentence is: “Clan Anderson is a Scottish clan that is recognized as such by the Lord Lyon King of Arms.” That's probably based on the fact that ‘the bible’ of the clans, Way & Squire’s Scottish Clan & Family Encyclopedia (available here), has an entry for Anderson which informs us that a 16th century document held by the Lord Lyon’s Office called the Forman Manuscript (after a Lord Lyon called Sir Robert Forman who held office in the 1560s and is believed to have compiled it) has an entry (pictured above) for the arms of 'Anderson of that Ilk' although nobody at the present day has matriculated these arms (I’ll explain what 'matriculated' means in this context presently).
And Clan Anderson Society Inc.’s website tells us: “According to the Lord Lyon, there was an Anderson of that ilk in the 1500s. This specific Anderson is unknown to us today. But this reference verifies that the Andersons are a clan.”
With respect, it does not.
The implication in all this is that whether or not a name is a clan is a matter of recognition as such by the Lord Lyon – that Lyon holds a register or roll of clans and if your name is in it, then you’re officially a clan and if it’s not, then you’re not. And that Lyon may from time to time add to his list and thus by his fiat bring a new official clan into existence.
That is a misunderstanding. Whether a name or group of people is a ‘clan’ or not is not a matter of legal status (entry as such in Lyon’s or some other official’s records), it’s a question of historical fact – did these people of that name act like a clan? Did they act in concert under the leadership of a chief because they were (or believed themselves to be) kin to each other? That is a matter for historians to decide, not lawyers or officials.
All that said, Lyon does occasionally recognise the existence of a clan. But when he does that he is recognising a fact which exists independently of his actions. He is not decreeing that such and such a name is officially a clan. That is not within his gift.
So what is Lyon’s function – what is within his gift? Well, as is well known, nobody may use a coat of arms in Scotland without Lyon’s permission. On granting arms to someone, he records them in his register. Created in 1672, it's full name is the Public Register of All Arms and Bearings in Scotland but it's known as Lyon Register for short.
As is also well known, a coat of arms belongs to an individual – only he may use them, other members of his family may not. But the right to use the arms descends after his death to the individual’s eldest son. He must have them re-registered in the Lyon Register in a process known as ‘matriculation’. Upon the eldest son’s death, the arms descend to his eldest son (who must matriculate them again) and so on down the generations. In the event of there being no eldest son, there are rules to determine which one of a deceased’s relatives is his nearest heir entitled to matriculate his arms (without getting into detail on a complex subject, they're similar to the rules that identify the heir to the throne).
It regularly happens that nobody has matriculated a coat of arms for many generations and anyone claiming the right to do so now faces a challenge in proving he is the nearest heir possibly hundreds of years since the last matriculation. But Lyon has the power to determine such claims and the claimant must prove to Lyon’s satisfaction that he is indeed the nearest heir before he can start to use the arms. That said, Lyon also has what is known as a 'ministerial discretion' to matriculate arms to someone with a reasonable claim to them even when he can’t conclusively prove he’s the nearest heir to the last matriculated holder and there doesn’t appear to be anybody else with a better claim. I’ll give some examples of this below.
Finally on this gallop through the basics of Scottish heraldry law, I said that arms can only be borne by their owner and not by members of his family. But what a family member can do is apply to Lyon to use the arms but with a 'difference', that is some variation in the design of the shield to distinguish them from the principal or 'undifferenced arms'. Once granted, the same rules apply to such differenced arms in terms of descent to heirs and matriculation by each new generation etc.
In matriculating (or granting new) arms, differenced or undifferenced, as well as naming the owner of them in the register, Lyon frequently says something about who they are. Perhaps the commonest example of this is when the owner also owns an estate (and in centuries before the 20th, the sort of person who had arms almost invariably did although less so nowadays). Thus, if John Black owns Blackacres Estate, Lyon will name him as John Black of Blackacres. This is where clans come in: if John Black is also the chief of Clan Black (there’s no such thing, by the way), then Lyon might also mention that as well: 'John Black of Blackacres, chief of Clan Black'. But the crucial point here is that Clan Black doesn’t exist simply because Lyon says so when matriculating the Black arms – its existence doesn’t depend on his say so any more than John Black being the owner of Blackacres depends on that being mentioned in the matriculation of the Black arms. (At the risk of labouring this point, imagine John Black neglected to mention to Lyon in his petition for matriculation that he no longer owns Blackacres because he’s had to sell it to pay his debts – Lyon then describing him as Black of Blackacres doesn’t mean he becomes the owner again! Similarly, Lyon describing him as Chief of Clan Black doesn’t make it so.)
If Black is admittedly not a clan but the Blacks of Blackacres are nevertheless a very ancient family, Lyon will often include in the matriculation the wording 'John Black of Blackacres, Chief of the Name and Arms of Black of Blackacres'. I think this gives rise to confusion as well. It engenders a sort of reverse logic which runs “Clans have chiefs. The Blacks of Blackacres have a chief. Ergo, they must be a clan!” But it doesn’t work like that – just because a name has a chief in this formulaic heraldic sense, that doesn’t mean it’s a clan.
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| picture credit BBC |
Remember all the publicity about Lyon appointing a new chief of Clan Buchanan a year or so ago (pictured above)?
Well if you look at the small print of Lyon's actual pronouncement on the matter - the wording of the matriculation of the undifferenced Buchanan arms in the Lyon Register (see it here - scroll to the bottom) - what it says is this: "... officially recognise the Petitioner in the name, style and title of John Michael Baillie Hamilton Buchanan of that Ilk, Chief of the Name and Arms of Buchanan". There's no mention of him being Chief of Clan Buchanan - why is that? It might be simply because Lyon wasn't asked to include reference to chiefship of the clan in the matriculation but I suspect it's more likely the omission was because Lyon was being mindful of the ruling in a very important court case in 1937.
Alexander MacLean of Ardgour (pronounced 'Ard-GOW-er', the 'ow' there rhyming with cow) died in 1930 survived only by daughters. The eldest, Catriona, petitioned Lyon to matriculate her father’s arms and also to be recognised in the matriculation, not just as Chief of the Name and Arms of MacLean of Ardgour, but as chieftainess of Clan MacLean of Ardgour (a branch of the ‘overall’ (as it were) Clan MacLean whose ‘overall’ chief is MacLean of Duart. So the case concerned the chieftainship of a branch of a clan rather than the chiefship of an ‘overall’ clan but the principles in play are exactly the same.) Anyway, Catriona’s petition was opposed by the late Ardgour’s nearest male heir, a distant cousin, Lieutenant Commander Henry MacLean, who considered himself the chieftain of the MacLeans of Ardgour. When it looked like Lyon was on course to grant Catriona’s petition, Lt Cdr. MacLean pre-emptively appealed to the Court of Session.
The court ruled that Lyon has no jurisdiction over clans. That being so, he had no power to decide who was the true chieftain of the MacLeans of Ardgour – that was for the clan itself to do. As one of the judges remarked, it was “little less than grotesque to suggest that the chief could be effectively designated and appointed by decree of the Lyon Court.” The chiefship of the name and arms of a family and the chiefship of a clan are not the same thing – Lyon has jurisdiction over the former but not the latter. The distinction having been made, though, if a family is a clan, then the chief of its name and arms and its clan chief will usually (though - as we shall see - not always) be the same person. And critically, the court also mentioned that he or she who was acclaimed by a clan as its chief could well be someone whom Lyon might consider worthy of being awarded the arms of previous chiefs in the exercise of his ministerial discretion in the event nobody could conclusively prove themselves to be the nearest heir. (Contrariwise, he or she to whom Lyon adjudges the arms of a clan chief might be someone the clan was likely to acclaim as their new chief although that’s not a matter for Lyon or the courts to decide.)
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| Ardgour House - picture credit Ewan Munro |
In the result, Catriona MacLean was adjudged the owner of the Ardgour arms. The Court of Session established the rule (which, strangely, had never previously been conclusively decided in Scots law) that there is a presumption in favour of arms going to a male collateral relative in preference to a female child but that that presumption was overturned in this case due to the fact that Catriona was the owner of Ardgour Estate whereas her cousin, Lt. Cdr. MacLean, lived in Hampshire and only visited occasionally in his yacht. Although not a matter for Lyon or the Courts, it appears that the Clan MacLean Association – indeed apparently nearly everybody except Catriona and her sisters and her mother! – regarded Lt. Cdr. MacLean as the chieftain of the MacLeans of Ardgour so there is an example of the chief of the name and arms and the chief of the clan being different people.
The upshot of all this is that it’s
one thing for Lyon to recognise the existence of a clan and who its chief is
when that is well known and undisputed. But the Ardgour case means he has to
steer well clear of doing anything which looks like he’s arbitrating on clan
matters when there’s any doubt. Thus, in the case of the Buchanans, as well as the
Mr Baillie-Hamilton who had changed his name to Buchanan, there was another family out
there, the Buchanan-Jardines of Castle Milk, who could have had a claim. In the
end, Lyon preferred Mr Buchanan formerly Baillie-Hamilton’s claim to the
undifferenced arms of Buchanan which it is absolutely within his jurisdiction to
decide. And Lyon is consequently allowed to designate him Chief of the Name and
Arms of Buchanan. But he could not designate him Chief of Clan Buchanan
because that might smack of him making a ruling about that over the
Buchanan-Jardines and that's something which, following the strictures of the
Court of Session in the MacLean of Ardgour case, Lyon is not allowed
to do.
So what of all this business about
family conventions (derbhfines) and appointing interim clan 'commanders' the Lord Lyon promotes in the search for a new chief of a clan after a break in
the succession – is that not Lyon involving himself in the chiefship of clans
which he is not allowed to do?
It looks awful like it but I think it's possible to reconcile this with the MacLean of Ardgour ruling by saying that what strictly speaking is happening is that Lyon is
facilitating a process to identify a suitable candidate he might appoint chief
of the name and arms in the exercise of his ministerial discretion absent
anyone who can conclusively prove themselves nearest heir. The clan then, as is its prerogative, appoints that
person the chief of the clan. Then, if Lyon is
satisfied there is sufficient unanimity, he might be able to persuade himself
that designating as chief of the clan in a matriculation of somebody acclaimed chief by the clan in family convention is merely recognising a fait accompli rather than
adjudicating on the matter himself.
This appears to be what happened in the case of Clan Gunn, the last chief of which died in 1785. In 2015, Lyon granted new arms (because the arms – if any – borne by the last chief were unknown) to one Iain Gunn of Banniskirk and recognised him therein as Chief of Clan Gunn on the basis he’d been appointed as such at a recent convention of the clan. At a ceremony presenting the patent of arms to Banniskirk, Lyon gave a speech (listen to it here) in which he was at pains to emphasise that it was the clan who had appointed the new chief, not him. Even so, considering the Clan Gunn Society website records (here) that Banniskirk was appointed at the convention with “near unanimity”, I think Lyon sailed about as close to the wind there as the MacLean of Ardgour decision allows him.
Since then, Lyon has issued a new guidance note 'Chiefs of Clans and Families, Succession of Chiefs, Family Conventions, Nomination of Heir' which you can read here. Alluding to the distinction between chiefs of names and arms and chiefs of clans, one of the judges in the Ardgour case remarked that the "greater part, if indeed not all, of the difficulty that has arison in this case has been due to the indiscriminate use of the term 'chief'". With the greatest of respect to Lyon, I think his guidance note may suffer from the same imprecision and it could be improved by making it clearer it is referring only to chiefship of name and arms, not of clans.
