© Peter MacRae, London 1999 |


The Petition of Sir Colin MacRae: Judgment of 22nd April 1909. Lyon Court

The Petitioner, in this case, Sir Colin G. Macrae, stated that he was the eldest male representative of the deceased Colin Macrae of Inverinate, that he ‘ and his ancestors as Chiefs of the Clan MacRae have used certain armorial ensigns from a period long anterior to the passing of the Act of Parliament, 1672, cap. 47, but that the same has never been recorded in the Public Register of An Arms and Bearings in Scotland in terms of the said statute.’He, therefore, prayed that the Lyon would grant a warrant to the Lyon Clerk to matriculate ‘ the ensigns armorial above indicated in name of the Petitioner as Chief of the Clan MacRae.’

John MacRae-Gilstrap, major of the 3rd Battalion of the Black Watch, who had previously lodged a caveat, appeared and lodged answers, stating that he was the second son of the late Duncan MacRae, who was head of the family of MacRae of Conchra. He denied that the Petitioner, or any of his ancestors whom he represented, was Chief of the Clan MacRae, or used arms as such; and he denied that the petition was competent in so far as it asked Lyon to recognize the Petitioner as Chief of the Clan MacRae.
The Petitioner objected that the Respondent had no locus standi; that he represented no one but himself; that his elder brother who was head of his family, was aware of the Petition, and was making no objection; that the Respondent claimed and could claim nothing that the Petitioner was claiming (Macdonell v. Macdonald, 20th January 1826, 4 Shaw, 371). The Respondent argued that he had the interest to object to any person being put over him as his Chief. The Petitioner explained that the Court was not asked to come to any judgement that the Petitioner was Chief of the Clan.

The Court sustained the Respondent’s locus ‘ in so far as his right to be heard on the question of the existence of the clan Macrae and its chiefship.’

On the merits, the Petitioner produced a declaration of his chiefship signed by a number of persons of the surname of Macrae, which he stated represented the vast majority of the Clan. He also produced other evidence of his accepted position, and to prove that in the past Macrae of Inverinate was the chief or head (Ceann) of the clan (Fine or Cinnidh), being called in Gaelic Ceann Fine and Ceann Cinnidh, both titles meaning that he was chief of a clan; and, separatim, that he was head of the chief family of the name Macrae. To prove the nature of the arms of Macrae, and their use before 1672, he pointed to the Porteous manuscript in Lyon Office, in which they occur, and argued that the arms of Macrae, without any qualification, were necessarily the arms of the Chief of the name.

The Respondent led evidence to show that the opinion of the Petitioner’s chiefship was not unanimous; and that Clan MacRae in the past was notoriously a clan which had no chief other than Seaforth; and argued that Clan MacRae was a clan only in a popular sense.

Lyon pronounced judgement as follows: ‘The Lord Lyon King of Arms having ‘ taken the proof and heard Counsel for the parties thereon, Finds that the Petitioner has failed to prove user of arms or supporters previous to the passing of the Act,’ concerning the privileges of the Office of Lyon King-at-Arms, ‘ 1672, cap. 217, Refuses the prayer of the Petition, and Decerns.’ His Lordship’s Note accompanying the judgement is as follows:

Note. This is a petition for matriculation of arms by Sir Colin Macrae, representing the old family of Inverinate. The term ‘ matriculation of arms ‘ is used in the ordinary practice of the Lyon Court to denote (a) the registration, by a cadet, of a coat of arms which has been already recorded by an ancestor in his own name with a suitable difference, if necessary, or (b) the registration in the present Lyon Register of ‘ a coat which has been used by the family of the applicant previous to 1672, but which has not been recorded in terms of the Act of that year, which required all persons who claimed arms to give the same into the Lyon, in order that they might be recorded in his books. The only other way of recording arms is by applying for a new grant or patent, which the Lyon is bound to give to all ‘ virtuous and well-deserving persons.’ As the Petitioner does not aver that he is a cadet, but, on the contrary, that he represents the senior line of the Macrae family or clan, it is evident that he can only ask for matriculation on the ground of user of arms before 1672.

The question of arms is the first point which I must take into consideration because under the terms of the Petition it is not a matter of pedigree which is primarily involved, still, less is it one of the Chiefships of a clan with which this Court is concerned only so far as it might be the warrant for matriculation of supporters. It is a singular fact that this question of arms, the most important, so far as I am concerned, should have been relegated to a very minor place both in the proof itself and in the speeches of Counsel. But it forms the only reason why parties can appear before me at all, and it is, therefore, obvious that it must be considered first. The Petitioner, according to the rules of this Court, must prove user of arms before 1672 by his direct ancestors. In support of his claim, he produces an entry of arms in an armorial MS. in the Lyon Office, originally compiled by Porteous, who was Snowdoun Herald in 1661. The entry is for Macreach (or perhaps Macreath), Argent, a fess between three mullets in chief and a lion rampant in base gules. It is not assigned to any particular individual, but, like several other entries in the same MS., has a more general name attached. I may take it, however, that Porteous was satisfied that in his day these arms were borne by someone of the name of Macrae (I do not attach any weight to the contention for the Respondent that Macreach meant anything else than Macrae), though it is a singular circumstance that it is only in this armorial MS. that any mention of such arms can be found before 1672. The coat, of which the blazon is given above, is somewhat suggestive. It is not in the least like any arms borne by other West Highland clans. But in the course of the proof, it was shown, and I have no reason to doubt the accuracy of the assertion, that the Macraes came originally from Clunes, a place a little to the west of Inverness. Now, this is just the part of the country where armorial bearings having stars or mullets as their chief charge might be expected to appear. The great house of Moray bore azure three stars argent, while that of Innes reversed the tinctures and bore argent three stars azure. The Dallas family, too, who were inhabitants of the neighbouring district, bore stars in some form or other on their shield and the coat assigned by Lyon to General Sir Thomas Dallas, K.C.B., in 181 5, bears a close resemblance to that of Macrae as given by Porteous, argent a fess between five mullets of six points, three in chief and two in base gules. This is exactly the Macrae coat, save that a lion rampant has been substituted for the mullets in base. The presumption, therefore, is that some person of the name of Macrae bore that coat before the family left Clunes, and this shows (as indeed is admitted by both parties) that the date of 1200 given for the migration of the Macraes from Clunes to Kintail by the Rev. John MacCra must be much too early, as armorial bearings were at that time entirely unknown in the Highlands. By whom these arms were originally borne has not come out in the evidence; the first person of the name of Macrae who assumed them was probably a vassal of some of the great families who bore somewhat similar charges on their arms. It was quite a common practice for the arms of vassals to be founded on those of their superiors, even though there was no blood connection whatever.

Accepting Porteous’ blazon of the arms like that of a coat to which some Macrae had a right or had assumed, I may point out that before the Petitioner can prove his right to it, he must show that it belonged to a person of whom he is now the senior male representative. He cannot come here and say: ‘This is a Macrae coat or the Macrae coat, and in virtue of my being the chief of the clan, I claim to have it recorded in my name.’ There is no such thing, strictly speaking, in Scottish Heraldry as a ‘ family ‘ coat of arms, that is, a coat which may be used indiscriminately by the members of one family or clan. The head of a house bears a certain coat of arms, but all younger sons can only bear the arms of their ancestor with a certain difference, such differences being assigned by the Lyon. And further differences must be assigned to younger sons of younger sons in all generations. This indicates how Jealous the statutory armorial law of Scotland has always been of any infringement on the rights of the mainline of the family. Such being the case, I cannot find that the Petitioner has proved, or even attempted to prove, that any of his ancestors, the representatives of the house of Inverinate, have ever borne the arms given by Porteous, or indeed any other, except in comparatively recent times. Had they done so it is almost inconceivable that some relic denoting such use should not have survived to the present. No seal, no tombstone, no article of domestic use, is known to exist with these arms upon them. The only things of the kind that have been produced as belonging to the Inverinate family are two seals, the one bearing the arms as given by Porteous with the crest of a cubit arm holding a scimitar and the motto Fortitudine, the other has some remarkable features,- the arms on the shield are the same but the fess is charged with a thistle slipped: the crest is a unicorn trippant: there are two mottos, that above the crest being ‘ Libertas et Honor,’ and that below the shield ‘ Trust in God and fear nought.’ But the most important feature of difference in the second achievement is the presence of supporters in the shape of two Highlanders with drawn swords in their hands. But these seals are evidently modern; from the style of their execution, I should say that they date from the early part of the last century. They show, in the first place, that the Macraes of Inverinate were not certain at that period what exactly their arms were. It may also be presumed that the seal without the supporters is probably the older of the two; the other one was evidently assumed as that of the chief of the clan. Unfortunately, however, for the sake of heraldic accuracy, the one without the supporters would connote the older family of the two, because the fess is uncharged. In the seal with supporters, it is charged with a thistle, which at once suggests, from a heraldic point of view, that the arms are those of a junior branch, which is quite inconsistent with the presence of supporters. It is significant too, that this seal is almost certainly of a later date than 1815, which was the date of the death of the last Earl of Seaforth. It is not stated who executed either of the seals in the process: I should have thought them the work of Alexander Deuchar but for a reason to be mentioned presently; he was a well-known seal engraver who flourished in Edinburgh in the early part of the last century. He did not hesitate to please his clients, and he readily invented arms for anyone who came to him, and as he had considerable knowledge of heraldry, he generally composed them on better lines than is usually done by the ordinary seal engraver. He made large collections, which have been much scattered since his death, but some of them are in the Lyon office, and in a volume which was compiled 1807-12, there are several so-called Macrae coats given. The arms of John Macrae of Inverinate appear exactly as given on the first seal mentioned above, with the exception that there are only two mullets instead of three. This version is what Mr. Horatio Macrae gives as the ‘ Macrae Arms ‘ in his letter to Major Macrae-Gilstrap of 19th January 1886 (No. 39 of Process). Exactly the same arms are given in this collection for a George M’Crie, but in his case, the crest is not a cubit arm, but an arm embowed. Other Macraes appear in Deuchar’s collection; James M’Cree has a similar coat to Inverinate but has the fess blue, and he is the only one of the name to whom Deuchar gives three mullets in chief. Andrew Macrae has also the fess blue but has only two stars in chief. Archibald M’Cray has two stars in chief but has the fess gules, and is charged with another star argent.
It does not seem necessary to go further into the question of the coat of arms itself. I regret I cannot find in the proceedings evidence to show that any arms were borne by persons whom the Petitioner has proved to be ancestors of his. But besides the arms there is the question of supporters; under the terms of the Petition, of course, if the Petitioner is not found entitled to arms, he cannot be entitled to supporters, which are only what Nisbet calls ‘exterior additaments’ to a coat of arms. The prayer of the Petition is that I should ‘matriculate’ in the Lyon Register in name of the Petitioner as Chief of the Clan MacRae the ensigns armorial indicated in the Petition. As a matter of fact, however, there are no specific arms mentioned there; all that is said is that certain armorial bearings were borne by the Petitioner and his ancestors long anterior to 1672, the passing of the Act regulating the registration of arms. No attempt has been made in the whole course of this case to show that any of the petitioner’s ancestors ever bore supporters, and supposing he had been successful in proving his hereditary right to arms, and in consequence to have these ‘ matriculated,’ it would have been necessary for him, supposing he had established the fact that he was Chief of the Clan MacRae, to Petition not for mere matriculation of supporters, because something which is not at present on the record, and the existence of which previous to 1672 is not proved, cannot be made the subject of matriculation, but for a new grant of supporters.

Under the terms of the present Petition, it does not appear to me to be necessary to go into the further points in this case which have been raised during its discussion, but as the Petitioner would be quite entitled to present a new petition praying for a grant of arms and supporters as the Chief of the Clan MacRae, it may be convenient to allude to the question of supporters in relation to that of the Chiefship. It is an accepted fact in Scottish armorial law that Chiefs of Highland Clans are entitled to add supporters to their arms. The other classes of persons who are in the right of such adjuncts are (a) Peers, and (b) lawful heirs male of the bodies of Minor Barons who held their lands from the King under a Barony title previous to 1587, when they sat in Parliament as Barons after that date they were relieved from attendance and a system of representation established. But as Mr. Tait, the then Lyon Depute, remarked to a Commission in 1821, ‘ persons having right on this ground will almost always have it established by ancient usage and the want of usage is a strong presumption against it.’ Cases, however, have occurred within recent years in which supporters have been granted to such representatives. As to Highland Chiefs, Sir George Mackenzie in his Treatise on Heraldry remarks, ‘I crave liberty to assert that all our chiefs of families and old Barons may use supporters,’ thus including in the privilege not only Chiefs of Clans, but the heads of any considerable families, and he goes on to quote specific instances, such as the Haliburton’s, Fotheringham’s, Irvines, etc. But Sir George seems to found their right more on ancient custom than anything else; ‘ these Chiefs have prescribed a right to use supporters and that such a right may be prescribed I have proved formerly, and what warrant is there for most of our rules in Heraldry but in aged custom? ‘ Mr. Tait says in the above-mentioned report regarding the right of Chiefs of Clans to supporters, that they have generally such a right 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 . . . it is very difficult to conceive a case in which a new claim of that kind could be admitted.’ Now in this case there is not an attempt to prove any ancient user of supporters. All that need now be asked would be a new grant of such, but to enable me to make this, I should require clearer proof of the existence of a chiefship than has been produced. There is no doubt a certain amount of popular belief in the district that the representative of the Inverinate branch is the Chief of the Clan MacRae but there is a great want of definite evidence to show what this belief was founded on.

Professor Mackinnon was examined as to a Gaelic Lament on the death of Farquhar Ban of Inverinate, who is said to be there described as ‘ Chief.’ The words used in the original were Ceann Fine. It is apparently the only known instance of Fine being employed to denote a Chief it is generally used as an expression for a Clan. There was much discussion as to the difference in meaning between Ceann Cinnidh, Ceann Fine, and Ceann Tighe, but it is not necessary to go into them here. Had the Petitioner instead of coming to the Lyon Court gone to the Court of Session and asked for a Declarator that he was the Chief of the Clan MacRae, all this would have been much more to the point. But as he only asks for matriculation of arms on the ground that his ancestors used them before 1672, and as I have found that he has not proved this, it does not appear to me that it is necessary for me to go into the question of Chiefship in detail. (END)

Reproduced and reprocessed by Peter MacRae, London 29/4/99 20:46:28
The author transcribed and retyped the Judgement in the 1909 Lyon Court case where Sir Colin Macrae was thwarted in his bid for Supporters and Arms (widely thought of but somewhat erroneously as the MacRae chiefship petition), and has republished it word for word from Lyon Court Records. The transcribed record was submitted to Clan MacRae Online (e-mail submission, April 29, 1999), and the complete contents are published with the kind permission of the author.