The Esslemont petition of 1934

On 4 September 1934 Lord Lyon Sir Francis Grant, after a proof on the use of the baronial title, awarded Gordon of Hallhead, Baron of Esslemont, the baronial chapeau and recorded him as “Baron of Esslemont”. The Memorial that won the case objected to a “peerage-conveyancing description”, Baron of the Barony of B——, being substituted for the baron’s title. That is the objection of 2006 and 2015, made seventy years early. The text is printed here in full.

Before 1934

The chapeau, the red cap turned up with ermine, had lost its meaning in the Lyon Register by the early twentieth century. Innes of Learney lists grants of it to Fortune in 1910, to Brock twice in 1913 and to Playfair in 1917, and calls them “both meaningless and indefensible”: chapeaux and crest-coronets had been “granted more freely than Fox-Davies supposed, and with no definite meaning”.¹ The one precedent that did fix its meaning lay unnoticed. In 1835 George Robert Ainslie of Pilton had petitioned, “as heir and representative of the Feudal Barons of Dolphinton”, for his crest to issue “out of a Cap of Maintainance … as being indicative of his descent from the ancient barons of Dolphington”; the Lyon Court ordained it by interlocutor of 28 November 1835, and the matriculation was recorded on 26 January 1836.²

The petition

The question was put formally in the Petition of Gordon of Hallhead, Baron of Esslemont. Hallhead was Gordon’s ordinary designation, a feu-holding in the barony of Cushnie; at Esslemont he held a barony in his own right.³ He petitioned as tutor, on behalf of his eldest son, Hallhead younger, so that the case would settle the heir-apparent’s right as well as his own.⁴ Innes records that “the Laird of Hallhead led a lengthy proof upon the use of the baronial title”.⁵

The evidence ran from the structure of the Lyon Register itself to the records of daily life. Sir Charles Erskine’s Register of 1672 was drawn up in sections, following the Act’s reference to “the arms of noblemen [peers], barons, and gentlemen”, so that every laird entered in the barons’ section “was ipso facto a ‘baron’” and the word did not need adding; once entries became chronological the description was inserted where it applied: “Sir Alexander Colquhoun, Baron of Colquhoun”, “Sir George Brisbane, Baron of Brisbane”, “Aylmer Hunter, Baron of Hunterston”, “John Erskine, Baron of Balhaggarty”.⁶ The Lord Lyon’s own form, in the Register of Birthbrieves, was “Alexander Areskinus, Baro de Cambo”.⁶ The Memorial marshalled the records of the Scots College at Douai (“Sir Thomas Nicolson, Baron of Kemnay”; “Margaret Abernethy, daughter of the Baron of Barry”), the Skene papers (“the Baron of Auldie”), the Banffshire roll of freeholders of 1 June 1672 (James Gordon, “Baron of Zeochrie”), the Sheriff Depute of Banffshire’s order of 1713 for production of charters “That it may be known who are barons and who have power to vote”, and a “meeting of barons and freeholders” of 1720 that listed the “names of barons”.⁷ On the 1713 order Innes adds the point that matters: the sheriff had to determine “not only who are barons, but also who ‘have power to vote’, meaning who are qualified, viz. other voters as freeholders, who are not barons”.⁷

The Memorial

Innes prints the Memorial’s conclusion in full:⁸

“It is therefore respectfully submitted that it has been satisfactorily shown that the Baronage of Scotland is a subsisting baronage by tenure, whose privileges, though now negligible, do not interfere with its constitutional existence, and amongst the few privileges left is that of being known upon the most formal occasions by the style and title of baron, so that they may on matrimonial and other occasions not be prejudiced in their relations with the much inferior ‘baronages’ of the Continent. Their right to be known and described, where requisite, upon fully formal occasions, as, e.g., ‘Baron of Bradwardine’, has been recognised by the highest authorities, namely by the Crown and Parliament, and by the Lord Lyon King of Arms as recorded in the Registers of the Lyon Court, and it is respectfully submitted that it would be most unfortunate if, merely because it happens that the title of baron is preferred for formal purposes by English and British lords, that the right of the Scottish Baronage to be designated as ‘Baron of Bradwardine’ should be allowed to fall into desuetude or — as it now transpires — ‘peerage-conveyancing description’ Baron of the Barony of B—— substituted, thereby conveying to the public and to foreigners that the feudal Baronage of Scotland are not truly constitutional barons, whereas they are, being indeed the only remaining example of the original feudal and territorial baronage by tenure, and the fact that their ancient title may be a source of annoyance to mushroom political ‘barons’ under the English peerage system is no reason why the rights of the Order of Baronage in Scotland, guaranteed by Art. 22 of the Treaty of Union, should be one atom abrogated, and it is therefore respectfully submitted that in formal documents such as Letters Patent, matriculations and birth-brieves, where a petitioner establishes as required by the Sheriff Depute in 1713 (if need be by production of charters) that he is in fact a ‘baron’, then he ought, in accordance with all the solemn documents, certificates, and others before recited and in particular the certificates of the Lord Lyon King of Arms himself, to be duly qualified ‘baron of’, e.g. ‘Baron of Bradwardine’, according to the custom of the Kingdom of Scotland.”

“Baron of Bradwardine” is Scott’s laird of Tully-Veolan in Waverley; Innes notes that Scott “was quite correct” to style him so, the title having been “very widely used in daily life” in a broad belt round the Highland line.⁹ Article XXII of the Treaty of Union is the Memorial’s claim, not a finding; what the Treaty did and did not do for the baronage is examined in The Treaty of Union and the baronage.

The decision

“After consideration of the evidence then adduced, the Lord Lyon, on 4th September 1934, found the claim established, and awarded the chapeau.”⁴ The matriculation is at Lyon Register vol. xxxi, p. 20, and in it Gordon of Hallhead was “duly described as Baron of Esslemont”.⁵ Innes sums up: “The Baron of Hallhead-Esslemont duly received both chapeau and designation, consistently with the statute and the ancient precedents of Lyon Court.”⁸ Because the petition had been brought for the son, the decision “also decided the right in this insignia, of the heir-apparent of the reigning Baron”, and became the precedent for Raemoir in volume xxxv.⁴ Only afterwards was it found that the 1934 decision “agreed with the (then unnoticed) precedent decided by Lyon Court 28th November 1835” in Ainslie of Pilton.⁴

The decision set the practice of Grant’s court. Innes states it as a rule: “a Petitioner who establishes his baronial status is, whether in the Register of Arms … or the Register of Genealogies, duly recorded as ‘Baron of X———’ and Baronial ancestors duly numbered in the usual manner.”³ Carnegy of Lour’s matriculation of 28 February 1945 shows it applied, its subsidiary shields “ensigned with coronets in the case of peers, and the baronial chapeau in the case of feudal barons”.³ On 26 February 1943 the same court found the minor barons recognised “as a ‘titled nobility’”; on 19 April 1945 it declared Wauchope of Niddrie, “as feudal Baron of Niddrie-Merschell and Lochtoure”, to be “of Baronial Race” and of rank equivalent to the Continental Hoch Adel.¹⁰ Innes drew the conclusion in 1945: whatever the date of a barony’s erection, “all are equally, and in the European sense, ‘Barons’ in a ‘Feudal Baronage’, and constitute a ‘titled nobility’ in the feudal sense”.¹¹

One further point from the proof has outlived it. The Lyon Register never conjoined “esquire” and “baron”: “The baron is greater than the esquire, and the fact that a man is qualified baron necessarily infers that he is in a higher degree than esquire, and consequently the word esquire should not be applied to a baron, and accordingly was not so applied by Lyon Court where the individual was a feudal Baron.”⁶

Then and now

Read the Memorial’s complaint again. What Hallhead objected to in 1934 was a conveyancer’s phrase, Baron of the Barony of B——, replacing the baron’s title, Baron of B, and so “conveying to the public and to foreigners that the feudal Baronage of Scotland are not truly constitutional barons”. In 2006 Lord Lyon Blair recognised Margaret Hamilton of Rockhall only as “Holder of the Barony of Lag”; in 2015 the Menking formula recorded that a petitioner “holds the [dignity] … being of the genus of barony”; from 2018 Letters Patent name no barony at all.¹² The wording the Lyon Court was asked to reject in 1934, it rejected: Grant recorded “Baron of Esslemont”. The dignity itself is held under s. 63 of the 2000 Act whatever a patent says;¹³ the 1934 decision is the Lyon Court’s own answer to how that dignity is written.

The one document this paper does not reproduce is the matriculation itself, Lyon Register vol. xxxi, p. 20. An extract from the Lyon Office would complete the record.