Lord Lyon's appeal of Uist decision to be published today.
Martin Goldstraw
Lyon against the decision made by Lord Uist will wish to be made aware
that the decision of the Inner House is to be published at
approximately midday today.
http://www.scotcourts.gov.uk/opinionsApp/last50results.asp?searchtype=supreme&txt=False
In a nut shell, the decision was found to be in Lyon's favour and
whilst I can't pretend not to be disappointed, I do feel somewhat
relieved now that I, for my part at least, can put an end to the
matter; I have no intention of appealing to the House of Lords, I
simply can't afford to do so. [One of my greatest fears was in fact
that we would be successful and that Lyon would appeal to the House of
Lords thus forcing us into a nightmarish game of poker]
You will be able to read and digest all for yourself later this
morning but for my own part it clears up a number of points. I am
pleased that some points were found in our favour, not least those
where Lyon had attempted to argue that his decisions were not
justiciable; this will be of immense use in the future. I am also
really very pleased that the nature of territorial designation appears
to have been restored to its pre-Uist days. I was present for some of
the hearing and it was noted by all of us (as stated by Lyons counsel
although not included in the detail of the Lords Opinion) that the
fact that we use a name with a territorial designation which is not
recognised by Lyon does not inconvenience us sufficiently to be a
breach of our human rights because there is no question that the arms
recorded in the register under the name of Goldstraw/Ayre/Kerr do
belong to the persons using the name and territorial designations
Goldstraw of Whitecairns/Ayre of Kilmarnock/Kerr of Ardgowan. This
admission by Lyon's counsel cleared up one of our main concerns even
without the courts decision.
Readers of this forum will no doubt wish to chew over the fat of the
matter and after reading the opinion. Mindful of Mr. McGiboney, I
would ask that they do so in as courteous a way possible without
expecting an immediate response from this poster who would appreciate
the courtesy of being allowed some time for quite reflection.
Yours,
Martin
Greg
> Readers of this forum who have been following the recent appeal by
> Lyon against the decision made by Lord Uist will wish to be made aware
> that the decision of the Inner House is to be published at
> approximately midday today.
>
Well, being mindful of me is at least a recognition of my counter
opinion in the matter and recognition of the valididty of my argument:
regardless of any other intedned meaning, and for that recogntion I
thank you.
I believe that the case was thrown out as the opinion states, the
merits of the case in total were just not there. Things now in
question are, do arms confer honor? How will names in the future be
regarded? With respect to additaments, what becomes of the
"Legitimate expectation": seems that one's gone as well.
I have believed from the beginning that this legal contest against
Lyon was ill advised. I will submit again that these cases have
indeed gone the way of the changing times, and this notion combined
with what could be called a specious argument on the part of some
barons and Mr. Hamilton is in fact the reason that Lyon Blair decided
as he did. I also think that had the barons et al, from the
beginning, been more mindful and simply eased into a discussion with
Lyon, that things might be different to day.
No need to be too disappointed. It's very much the natural order
things in 2009.
GFL
> Readers of this forum who have been following the recent appeal by
> Lyon against the decision made by Lord Uist will wish to be made aware
> that the decision of the Inner House is to be published at
> approximately midday today.
>
Martin,
Thank you for posting the decision and your commentary. I do
appreciate that such decisions are a mixed blessing for all concerned.
In terms of the two decisions Lord Uist's and the recent one - perhaps
their most important impact is to provide commentary from the courts
as to how they view matters touching on granting arms, matriculating
them and the nature of arms and honours all together.
Taking a very modern view they rightly in my view note that grants of
arms are not honours in the sense of state honours or Royal honours
and I am convinced that if tehy were asked whether arms confer
nobility or confirm it they would be of a view that they do not - at
least in the contemporary understanding. This is sensible perhaps
given that legislation defines a category of eligible individuals -
the 'virtuous and well-deserving'. I have maintained that arms as an
honour may be understood in a different and relational sense between
crown and armiger (who bears distinctive symbols assigned through an
office of royal grace) and I've expounded on this many times in the
past, but of course this question was not raised nor answered as it
was not material to these petitions. Perhaps there is room for some
discussion about the modern nature of Scottish arms. The status of
arms in Scotland is somewhat different than in England or in Canada
and that may provide for some interesting twists. In a different part
of the argument their Lords made reference to accepting that the name
under which arms were granted was a name of dignity and perhaps might
be persuaded that there is some dignity of armiger however
insubstantial.
I found the references to Learney as authoritaive interesting - and I
expect that there may be attempts to push through some other matters
based on Learney's authority - but at his more innovative or eccentric
I believe Learney's theories will fail - just as the Court did not
take notice of his notions about arms and nobility, but rather looked
toward the usual contemporary and perhaps common-sense understanding
of honour. What perhaps puts the issue of baronial additaments back to
the Lord Lyon's discretion is the recognition that the AFT 2000 Act
did away with some things and protected others and that Lord Lyon is
charged with preserving what was preserved and preventing use of what
was not preserved. If I were to reason through this I would conclude
that what had been preserved heraldically was only that which was
related to the dignity of baron separate from any abolished feudal
superiority, ownership of land or from any former jurisdiction. That
would seem to allow Lord Lyon to dispense with feudo-baronial robes
and caps as tehse were more linked to the latter than the
jurisidction. I might also take heart from the court recognizing that
holding something for a short time or purchasing something in
anticipation of the AFT is not irrelevant and so can be considered in
a decision-making process. I would hope that Lord Lyon takes notice of
this and looks for some stability in the ownership of a barony
(perhaps at least a generation or two) before simply recognizing such
a thing in an armorial grant of a helm that might stay with the
descendents of the purchaser of a barony. This may slow down the
process of churning baronial assignations through various folks simply
as an expedient to petitioning for more impressive grants or
matriculations of arms.
I was not surprised that the issue of territorial designations related
to bare superiorities failed and have commented on this in the past as
well as my surprise at Lord Uist's original decision. The court has of
course taken a reasonable middle ground - folks may change their names
to ones that look like a territorial designation (but Lord Lyon is not
obliged to accept these if they are not in fact territorial
designations). I would hope there might be a middle ground whereby
notwithstanding that he need not Lord Lyon might record aliases such
as John Doe who published a change of name on ___________ in the
Edinburgh Gazette and now calls himself by the alias John Doe of
Doeland. This might aid future genealogists trying to figure out
whether John Doe is or is not the same person as John Doe of Doeland.
What was music to my ears was the emphasis on the connection between
genealogy and heraldry - and of course this is where heraldry is most
valuable - when it expresses not only identity but also heritage -
something that the great-grandchildren of current petitioners might
truly appreciate. Even though we might be pleased by the grant and the
impressive document, much of the true value of grant of arms is in its
recording in the register and in its hereditability. There was and
maybe still should be a notion that grants of arms are perfected over
the course of generations of use.
What else I was pleased with is the discretion given to Lord Lyon to
discern policy in modern times and to develop practice that reflects
individual situations and a setting aside of the notion that arms
could be regulated by European Human Rights legislation. this helps
protect a historical heritage and raises the bar for challenges to
Lord Lyon, who's acts are clearly subject to several sorts of judicial
challenge.
All in all I think that however disappointing this might be for teh
petitioners personally it helps set Scottish heraldry on a more modern
course and yet one that is in keeping with the traditions of Scottish
heraldry.
Kind regards,
George Lucki
Brian G. Hamilton.
>
> - Show quoted text -
What I don't understand is why you harp on about baronial
additaments. As far as I understand the matter has been resolved with
the Lord Lyon's statement of 3rd November. We will have to wait for a
statement from Lyon regarding baronial additaments granted prior to
AFT but I cannot imagine he will take away what has been already
granted. Post AFT barons are on public notice of what they can expect
by way of arms. If you disagree with this I suggest you write to Lyon
with your thoughts on the matter. For the most part the feudal barons
accept the position as stated above.
Brian G. Hamilton.
GFL
wrote:
> What I don't understand is why you harp on about baronial
> additaments. As far as I understand the matter has been resolved with
> the Lord Lyon's statement of 3rd November. We will have to wait for a
> statement from Lyon regarding baronial additaments granted prior to
> AFT but I cannot imagine he will take away what has been already
> granted. Post AFT barons are on public notice of what they can expect
> by way of arms. If you disagree with this I suggest you write to Lyon
> with your thoughts on the matter. For the most part the feudal barons
> accept the position as stated above.
>
> Brian G. Hamilton.- Hide quoted text -
I can. If the elements were for example to be considered insignial and
related to jurisdiction and feudal stairs they might be allowed to
disappear given the abolition of feudalism and replaced with what
might be seen to correspond only to the dignity of baron for example
the helm.
But that said, it appears that a reasonable middle ground is being
found and I will undoubtedly be content with it as I am with
reasonable compromise in general (or so I like to think - you may be
of a different view. :)).
George Lucki
The Chief
> Readers of this forum who have been following the recent appeal by
> Lyon against the decision made by Lord Uist will wish to be made aware
> that the decision of the Inner House is to be published at
> approximately midday today.
>
Well, this appears to be a total catastrophe. Not only have you not
achieved your goals - you lost - but in the process you have also
totally mucked things up for many, many others. You and the other
litigants will go down in history at the likely lads who succeeded in
getting the Court of Session to rule that grants of arms are not
honours.
Congratulations.
The Chief
Greg
wrote:
>
> - Show quoted text -
Brian, the whole question of the history of baronial additaments and
the baronies themselves is a fascinating subject. At last count, this
subject, sparked by my article, has logged over 275 posts, and every
time this subject comes up, people go for it like candy.
Do you realize, that in all of this you have played the part of "the
heavy" - the foil?
Were I you, I would get into it now from a more positive perspective:
no matter what the outcome this entire thing is now a part of Scottish
history, let alone heraldry.
This subject however will never cease to be a popular one. Ya' might
as well "join 'em".
Regards
Greg
Greg
>
> - Show quoted text -
Hey ya'know what chief? get lost, okay?
Charles Drake
> On Jul 15, 3:27 am, Martin Goldstraw <heraldryad...@yahoo.com> wrote:
> Taking a very modern view they rightly in my view note that grants of
> arms are not honours in the sense of state honours or Royal honours
> and I am convinced that if tehy were asked whether arms confer
> nobility or confirm it they would be of a view that they do not - at
> least in the contemporary understanding. This is sensible perhaps
> given that legislation defines a category of eligible individuals -
> the 'virtuous and well-deserving'. I have maintained that arms as an
I quite agree, and I do not think the decision is quite so negative as
one later poster puts it.
The decision actually said this:
"In any event, we question whether the "achievement" of arms on
payment of a fee can truly be viewed as the conferment of any
"honour"...it does not seem to us that that description is
sufficiently distinctive to infer "honour", at least in the present
context."
To my eye, there is a fine turn in this statement.
Further, I have always thought that arms were not an honour, but
rather "of the nature of an honour." They are not an honour since
they are available to almost every petitioner on payment of a fee, but
they are like an honour since their granting requires the delegated
exercise of the Royal Prerogative.
Similar, but not matching.
/Charles
ArtyO
>
> "In any event, we question whether the "achievement" of arms on
> payment of a fee can truly be viewed as the conferment of any
> "honour"...it does not seem to us that that description is
> sufficiently distinctive to infer "honour", at least in the present
> context."
>
> To my eye, there is a fine turn in this statement.
>
> Further, I have always thought that arms were not an honour, but
> rather "of the nature of an honour." They are not an honour since
> they are available to almost every petitioner on payment of a fee, but
> they are like an honour since their granting requires the delegated
> exercise of the Royal Prerogative.
>
> Similar, but not matching.
>
> /Charles
Charles;
Interesting. This is a differing interpretation from the Canadian
Heraldic Authority as explained on the Governor General's Website
which explicitly
states
"Granting Armorial Bearings in Canada:
Grants of armorial bearings are honours from the Canadian Crown. They
provide recognition for contributions that Canadian individuals and
corporate bodies make in Canada and elsewhere."
Also, if we look at one of the grants, as in the case of Mr Robbie
Sprules, Lord of the Manor of Wrenthnall, the Canadian Heraldic
Authority granted Him a
Badge in recognition of his Ownership of this Lordship of the Manor. I
have yet to see any Heraldic recognition by the Authority for an Owner
of a Scottish Barony...
Yours;
Capt Chledowski
Greg
I'm afraid that I would even disagree with "like an honor", because an
honor of any type is something that is earned. I think that arms in
this sense are really just a statement of identity, both personal and
professional. They also make outstanding genealogical markers. As we
know, there are different categories of which arms come into, but I
have not heard of anyone even being granted arms as a deserving award
for service: which I think should happen and should be differenced as
such: perhaps in the way of some sort of coronet, or something along
those lines. It's too bad we don't see that.
But as far as I can remember, arms, in the UK anyway, have always been
granted through the petition process. Which, as I think about it, may
be the origin of the phrase "peer preasure" :)
ArtyO
> As we
> know, there are different categories of which arms come into, but I
> have not heard of anyone even being granted arms as a deserving award
> for service: which I think should happen and should be differenced as
> such: perhaps in the way of some sort of coronet, or something along
> those lines. It's too bad we don't see that.
>
Greg;
Just as an aside, The Canadian Heraldic Authority uses Supporters
towards that end, granting them
only in certain cases, such as for a Prime Minister, Governor
General / Lt Governor. Outstanding service
is considered also as in the example of former Chief Herald Robert
Watt.
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
You seem to be unaware of the basic fact that petitioners for arms in
Scotland have to be 'well-deserving'. Thus, the Lord Lyon assesses a
person's suitability. I know of several cases in the recent past where
the Lord Lyon has refused to grant arms.
Brian G. Hamilton.
>
> - Show quoted text -
'Well deserving' is not a very high bar. I know of one person about
to get a grant of arms whose only claim to be 'well deserving' is that
he has not got into trouble recently.
Regards,
BGH
Greg
wrote:
>
> - Show quoted text -
I'll go along with that. I think you're right: well deserving is
really little more than cursory these days.
I don't know what else an authority could do? note: the petitioner's
papers match up, he doesn't have an arrest record in the UK (he may
have references that say he/she is okay). That's about it isn't it?
I would still really like to see true "grants of arms" for those who
are deserving from service: I'm glad Canada is on the ball.
gra...@gmilne.demon.co.uk
wrote:
>
> - Show quoted text -
The sort of people you know are not necessarily an indication of what
generally pertains. The fact that you know someone who appears to have
hoodwinked the Lord Lyon is perhaps a reflection on you, not on the
Lord Lyon.
Brian G. Hamilton.
>
> - Show quoted text -
Nothing sinister; I just don't take myself to seriously.
BGH
ArtyO
> Charles;
>
> Interesting. This is a differing interpretation from the Canadian
> Heraldic Authority as explained on the Governor General's Website
> which explicitly
> states
> "Granting Armorial Bearings in Canada:
> Grants of armorial bearings are honours from the Canadian Crown. They
> provide recognition for contributions that Canadian individuals and
> corporate bodies make in Canada and elsewhere."
>
> Also, if we look at one of the grants, as in the case of Mr Robbie
> Sprules, Lord of the Manor of Wrenthnall, the Canadian Heraldic
> Authority granted Him a
> Badge in recognition of his Ownership of this Lordship of the Manor. I
> have yet to see any Heraldic recognition by the Authority for an Owner
> of a Scottish Barony...
>
> Yours;
> Capt Chledowski
Stephen Chledowski is correct. this is what I was getting at in my
earlier post when I said that the situation in England and in Canada
is somewhat different and this may provide for some interesting
twists. In each of these three jurisdictions the nature of a grant and
the process is different reflecting perhaps the history of these
places and their differing sensibilities.
In the case of Canada grants of arms are honours from the crown and
there is a requirement of merit, that is some contribution to Canada,
although the bar is not set very high. The theoretical English notion
of gentility as the basis for eligibility would not fly in Canada. The
establishment of the office is also different than in either England
or Scotland. It is by a Royal Warrant expressly delegating the royal
perogative of arms to the Governor-General and Commander-in-Chief or
Canada as the Queen's personal representative in Canada. The Governor
General is the head of the Canadian Heraldic Authority and the
authority is administered through her Chancellary of Honours. So all
arms are a reflection of an honour - a very minor honour - but one
nonetheless.
There are augmented arms available for life only for the members of
the highest levels of the national orders, supreme court justice,
lieutenant governors of the provinces, prime-ministers and a few
others. There are also specific augmentations of the arms themselves -
royal crowns placed on the shield or a canton with a cross formed of
maple leaves that are available for GGs and PMs respectively. This is
in keeping with the egalitarian anture of our society. There are also
honourable marks in the form of United Empire civil and military
coronets available for the descendents of loyalist families from the
War of the American Secession.
Although flowing from the same monarch through different crowns there
are differences between Scotland, England and Canada. Even if Scottish
arms are not honours in the sense of other honoursfrom the sovereign
it does not mean that they are not an honour in a sense. In Canada
they are more clearly honours even though the bar is not set very
high.
George Lucki
ArtyO
I got the above in my email from George for some reason...Thought I'd
share :)
GFL
Thanks Stephen, I must have hit reply to author rather than reply. :)
George