How is a Scottish baron named in a legal document? There is no “commonly called”

Scots conveyancing has a settled form for a duke, an earl, a Master and a courtesy lord. Applied to a Scottish baron, it gives one result.

The short answer

• Name the baron as a deed names a peer. “THE MUCH HONOURED JOHN ALEXANDER SMITH, BARON OF INVERNESS, residing at … (‘the Baron’)”, on the pattern of “THE MOST NOBLE …, Duke of Argyll … (‘the Duke’)”.
• Do not write “commonly called”. The Crown Office puts that formula before a style the law does not itself confer: a courtesy title, or a foreign one. Halsbury’s example is a peer of Ireland with no seat in Parliament: he is still described “by his proper name with the addition of his title and degree, but without the expression ‘commonly called’”.
• The barony is a dignity in law. “Nothing in this Act affects the dignity of baron”, says section 63 of the Act of 2000. A courtesy title, in the Lord Chancellor’s words of 1963, gives “no legal right”.
• The Lyon Court writes the title into the name, as it always has. Lords Lyon have styled themselves “Baron of X” in their own instruments since the seventeenth century, and the Court’s Letters Patent to barons name the grantee the same way as a matter of course. “Officially Recognise the Petitioner in the name X, Baron of Y” are the Court’s standard words, under every Lord Lyon whose patents the Roll holds.
• The passport’s two fields are not the measure of the name. HM Passport Office’s own guidance says “Titles of nobility are part of a person’s name and identity”, and records a baron’s full name on the observations page: “THE HOLDER IS (FORENAMES) (SURNAME), BARON OF (territorial designation)”. The deed uses that full name.
• Signatures follow the deed. Since 1995 a granter signs “with the full name by which he is identified in the document”, or with surname and forename. The rule of 1672 that only “Noblemen” might “subscrive by their titles” is repealed.

The conveyancing form

A deed of assignation of a Scottish barony granted by the Earl of Airlie runs: “I, THE RIGHT HONOURABLE DAVID GEORGE COKE PATRICK OGILVY, EARL OF AIRLIE, K.T., G.C.V.O. (‘Lord Airlie’) residing at …”, and narrates a trust for his son, “THE HONOURABLE DAVID JOHN OGILVY, MASTER OF AIRLIE, commonly called LORD OGILVY (‘Lord Ogilvy’), residing at …”. One by the Duke of Argyll opens: “WE, (In the First Place) THE MOST NOBLE TORQUHIL IAN CAMPBELL, Thirteenth Duke of Argyll, Marquess of Kintyre and Lorne etc residing at …, (‘the Duke’)”.¹

That is the ordinary form. The peer’s own dignity and its style are written bare: “THE RIGHT HONOURABLE … EARL OF AIRLIE”, “THE MOST NOBLE … Duke of Argyll”. The heir’s own title, “MASTER OF AIRLIE”, is written bare too. The one title the heir holds by custom from his father’s peerage, “Lord Ogilvy”, is introduced by “commonly called”.

The passport and the deed

A passport has two name fields, forenames and surname, and an observations page. The peers’ deeds do not copy the two fields. They design the party by the full legal name: every forename, the family surname and the title, “DAVID GEORGE COKE PATRICK OGILVY, EARL OF AIRLIE”. The passport itself treats the title as part of that name. His Majesty’s Passport Office’s guidance to its staff says: “Titles of nobility are part of a person’s name and identity. Customers who use a title of nobility as part of their name, must ask us to enter it in the ‘surname’ field of the personal details page of their passport.” For a duke the surname field reads “The Duke of [title]” and the observations page carries the whole name, “THE HOLDER IS HIS GRACE [forenames and family surname] DUKE OF [title]”; for the heir of a Scottish peer the surname field is “MASTER OF [title]”. For a Scottish baron the same guidance gives the surname field as “(surname) of (territorial designation)” and the observation as “THE HOLDER IS (FORENAMES) (SURNAME), BARON OF (territorial designation)”, on evidence of the Lord Lyon’s recognition and the entry in Burke’s Peerage and Gentry, the two conditions it lists.² Hugh Peskett recorded the same practice: the Passport Office and the DVLA “have accepted inclusion of the title of Baron on their documents for Scottish Barons”.³

So the full legal name is what the observations page records and what the deed uses: forenames, surname and title together. The two fields are the format of the data page, not the measure of the name.

What “commonly called” means

The formula has a settled meaning. Blackstone, in 1765: the eldest sons of peers, “though generally titular lords, are only esquires in the law, and must so be named in all legal proceedings”.⁴ Halsbury’s Laws of England, in 1912: a peer of Ireland who is not a lord of Parliament “should be described by his proper name with the addition of his title and degree, but without the expression ‘commonly called,’ which is only used in the case of courtesy titles of sons of dukes, marquesses, viscounts, or earls”.⁵

The Crown Office has kept to that use for two centuries: “commonly called Lord Viscount Althorp” in 1830, “commonly called Lord Dunglass” in 1931.⁶ In 1857 it returned “Lionel Nathan de Rothschild, commonly called Baron Lionel Nathan de Rothschild”: his barony was his own, but Austrian, licensed by Queen Victoria and not conferred by British law, so it took the formula too.⁷ In 1943 it put both kinds of title in one entry: a member returned “in the place of Captain William Arthur Henry Cavendish Bentinck (commonly called Marquess of Tichfield) now Duke of Portland, called up to the House of Lords”.⁸ The courtesy marquessate sits inside the brackets; the dukedom stands outside them.

The Lord Chancellor said in 1963 what lies behind it: “there is in fact no legal right to a courtesy title”, and to a peer who spoke of an heir’s entitlement, “a courtesy title is a courtesy title and when the noble Lord talks about anyone being entitled to a courtesy title, it is a contradiction of terms”.⁹ The Attorney-General told the Commons that members with courtesy titles “are sworn in and entered on the rolls of this House as ‘Mr. John Smith, commonly known as Viscount …’”, with one exception: the elder sons of Scottish peers, “often known as the Master of somewhere, may have a title as of right”.¹⁰ Lord Saltoun put it shortly: “The title ‘Master’ is not a courtesy title. … It is a real title on its own.”¹¹ The Crown Office’s practice reflects it. In 1906 it had written “Esq. (commonly called Master of Elibank)”; in 1975 it created a life peerage for “the Right Honourable Robert Alexander Lindsay, Master of Crawford (commonly called Lord Balniel)”.¹² The Master’s title stands in the name; the courtesy title takes the formula. The Earl of Airlie’s deed is drawn on that pattern.

The test, then, is not whether a title is a peerage. It is whether the law confers it. “Commonly called” is for the rest.

What the law confers on a baron

A legal argument of 1382 says Baronia est nomen dignitatis: a barony is a name of dignity. The Crown charter of 1590 erecting Spynie into a free barony conferred the “Titulum, Honorem, Ordinem, et Statum liberi Baronis”, whose holders “now and for ever shall be called Barons of Spynie”.¹³ Section 63 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 provides that “nothing in this Act affects the dignity of baron”, that the dignity “shall not attach to the land”, and that a dignity “includes any quality or precedence associated with, and any heraldic privilege incidental to, a dignity”.¹⁴ The Scottish Law Commission, whose report the Act followed, had recommended that “barons should retain the right to call themselves baron”.¹⁵ Hugh Peskett, consulting editor of Burke’s Peerage, drew the conclusion:

“The 2000 Act clearly identifies a barony as a dignity. This places baronies in the same class as peerages. … A barony as a title shorn of its land remains a dignity just as peerages are ‘dignities’.”

Hugh Peskett, in an opinion on the dignity of baron, after 2013

The same opinion adds that “equating a Scottish Barony with an English Lordship of a Manor is quite wrong. Scottish Baronies must be founded on a Charter under the Great Seal, i.e. a charter from the Crown”.¹⁶

Where the Lord Chancellor could say of a courtesy lord that there was “no legal right” to his style, the statute says of a baron that his dignity, with its quality, precedence and heraldic privilege, is untouched.

The Lyon Court’s form

The officer of the Crown with jurisdiction over names in Scotland has written the title into the name for as long as the Court’s registers run. Sir Alexander Erskine, Lord Lyon from 1677, described himself in a birthbrief as “Baron of Cambo”; Innes of Learney’s certificate of 1946 opens “We, Thomas Innes of Learney, Baron of Learney, Kinnairdy and Yeochrie, Advocate, Lord Lyon King of Arms”; his son’s Letters Patent of 1982 open “WE, Malcolm Rognvald Innes of Edingight, Baron of Yeochrie, … Lord Lyon King of Arms”.¹⁷ The Court’s Letters Patent to barons use the same form as a matter of course. The grantee is named “X, Baron of Y” in the preamble, and the operative words recognise him “in the name X, Baron of Y”: those are the standard words of the patent, under every Lord Lyon whose patents the Roll holds, and the dated examples below are instances of it, not exceptions. Innes of Edingight, 1996: “MICHAEL WOODLEY, BARON OF MENIE in the County of Aberdeen”. Blair, 2007: “We have (Primo) OFFICIALLY RECOGNISED as We do by These Presents OFFICIALLY RECOGNISE the Petitioner in the name Graham Nassau Gordon Senior-Milne, Baron of Mordington”, who with his successors is to be “received as Nobles in the Noblesse of Scotland”. Sellar, 2009: “in the name Margaret Hamilton of Rockhall, Baroness of Lag”. Morrow, 2014: “in the name Camilo Agasim-Pereira of Fulwood, Baron of Fulwood”; and 2015: “in the name Stephan Claus Roh, baron of Inchdrewer for aught yet seen”.¹⁸ Lord Lyon Sellar’s guidance of 2010 states the rule for baronies acquired after 28 November 2004: such barons “will be granted a helm appropriate to their degree, that is, to the dignity of baron, and will be recognised in the style of baron of X”.¹⁹

“In the name”: the words are the Lyon’s, in a public register. Innes of Learney wrote that the name in which a person is granted arms is “a ‘name of dignity’ … and in the nature of a ‘title’ if it comprehends a feudal designation”, a passage the Inner House adopted in 2009.²⁰ The Court of Session prints the title in its headings, “DAVID AYRE OF KILMARNOCK, BARON OF KILMARNOCK” and “PROFESSOR THE MUCH HONOURED STEPHEN PENDARIES KERR OF ARDGOWAN, BARON OF ARDGOWAN”, and the Lyon Court’s roll in the Edinburgh Gazette lists “Ayre, Baron of Kilmarnock”, “Parsons, Baron of Ormiston” and a dozen more.²¹ The Birthday Honours of 2005 appointed “Robert Brown Gillespie, Baron of Blackhall” an OBE.²²

A title the law keeps, that the Crown’s officer recognises “in the name”, that the court prints in its headings and the honours list carries without a bracket: none of that is true of “Lord Ogilvy”, and all of it is true of “Baron of Mordington”.

Signing the deed

The Lyon King of Arms Act 1672 declared “that it is onlie allowed for Noblemen … to subscrive by their titles And that all others shall subscrive their Christned names or the initiall letter therof with there Sirnames and may if they please adject the designations of their Lands prefixing the word Of to the saids designations”.²³ The conveyancing professors read it strictly: “A peer subscribes simply by his title” (Menzies); “Peers subscribe by their title of honour alone—a privilege extended by custom to the eldest sons of Peers enjoying titles by courtesy merely” (Bell).²⁴ Menzies noticed how the courtesy lords had got there: they “subscribe by that title—a practice which has been made valid by invariable usage, although not expressly authorized by the Statute upon the subject”.²⁵ The Act never annulled a deed; one signed only “Fullarton of that Ilk” was sustained in 1765.²⁶ And the test of a designation has always been identification: the granter “must be so designated by his profession, or residence, or other certain description, as to distinguish him from all other persons”.²⁷ The Inner House said in 2009 that barony holders “can call themselves by any name they choose”.²⁸

Since 1 August 1995 the clause of 1672 is gone. The Requirements of Writing (Scotland) Act 1995 repealed it, saving “any right of a person to add a territorial designation to his signature or the jurisdiction of the Lord Lyon King of Arms in relation to any such designation”.²⁹ A deed is now signed by a granter who signs “with the full name by which he is identified in the document”, or “with his surname, preceded by at least one forename”.³⁰ The name in the deed governs the name at its foot. A baron designed “John Smith, Baron of Inverness” signs so, or “John Smith”.

The form of 1896

Green’s Encyclopaedia of the Law of Scotland said in 1896 that “the mere territorial baron has no title of dignity appropriated to him”, that in formal documents “he is described as ‘——, lord of the barony of ——’”, and that he may not sign by his surname alone or by the name of his lands.³¹ The passage was making one point, that a territorial barony is not a peerage, which nobody disputes. Its form described the owner of lands, because in 1896 the barony was an estate held of the Crown. Since 28 November 2004 there is no estate: a party described as “lord of the barony of X” is described as the owner of something that no longer exists, and the words invite the confusion with an English lordship of the manor that Peskett warned against. The Lyon Court’s form has been “Baron of X” in the name from Erskine of Cambo to the patents of the present Lord Lyon, and never “lord of the barony of”; a Lyon Court note observes that after the Act of 1746 cut down the baron courts “the style of ‘Baron’, although not incorrect, gradually fell into desuetude”.³² As for the rule on signatures, it was the rule of 1672, and Parliament repealed it in 1995.

A form for conveyancers

A Scottish baron is designed on the pattern of the peers’ deeds above: every forename, the surname, the title, the residence, and a defined term. The prefix of the baronage is “The Much Honoured”, the form the Court of Session used in the heading of Kerr of Ardgowan in 2008.³³

THE MUCH HONOURED JOHN ALEXANDER SMITH, BARON OF INVERNESS, residing at [address] (“the Baron”)

Where the baron also bears a territorial designation, the Lyon Court keeps both, as in “Margaret Hamilton of Rockhall, Baroness of Lag” and “Camilo Agasim-Pereira of Fulwood, Baron of Fulwood”:

THE MUCH HONOURED JOHN ALEXANDER SMITH OF KILDONAN, BARON OF INVERNESS, residing at [address] (“the Baron”)

A baroness in her own right takes the same form:

THE MUCH HONOURED JANE MARY SMITH, BARONESS OF INVERNESS, residing at [address] (“the Baroness”)

A baron’s wife is designed with her forenames, her maiden and married surnames in the Scots manner, and the title. She signs as a peeress does: by her Christian name and the title, which Menzies gives as the peeresses’ form, “their Christian name prefixed to the title of nobility”, and Bell extends to a wife “whose title arises from marriage”.³⁴

JANE MARY BROWN or SMITH, LADY INVERNESS, residing at [address] (“Lady Inverness”)

Not “Lady of Inverness”, and not “Lady Jane”, which is the style of a peer’s daughter. A widow keeps the form, “Margaret, Lady Inverness”.

The heir is designed as Scots deeds have always designed a laird’s heir. The Lyon Court’s roll of 2005 notes that “the names and designations are in Scots law and practice used by … the eldest son and his wife, with the adjective ‘younger’”, and the Parliament of 1707 listed “John Cockburn, younger, of Ormiston” among the barons’ members.³⁵

JAMES JOHN SMITH, YOUNGER OF INVERNESS, residing at [address] (“the Younger of Inverness”)

On the social forms, and on widows and former wives, see Proper address and “Younger of” and “Master of”.

Three things do not belong in the clause. Not “commonly called”: that is the Crown’s formula for a title it does not confer, and the Crown confers this one. Not “lord of the barony of”: there is no land. And not the title on a line of its own, apart from the name: the Lyon’s patents, the court’s headings and the honours list all run name and title together, “John Smith, Baron of Inverness”.

The Roll and the Pledge

A title named in law still has to be shown. That is a matter of evidence.

The Baronage of Scotland Association keeps the Roll of Scottish Barons, which enters a holder only on evidence, and offers the Pledge: an undertaking, in honour and not in law, to preserve a barony within the family for future generations and to uphold the Baronial Code of Honour. The precedent is the baronets’ Roll of 1910.