The Lord Lyon's Case for the Baronage

On 27 October 1945 the Lord Lyon King of Arms read a paper to the Society of Antiquaries of Scotland that remains the fullest account ever written of the minor barons of Scotland as a living order — their rank, their robes, their cap of dignity and their title. It is open access. This is a guide to what it says, with page references so that you can read it for yourself.

Who wrote it, and why it carries weight

Sir Thomas Innes of Learney (1893–1971) was Lord Lyon King of Arms from 1945 to 1969 and, before that, Carrick Pursuivant and Albany Herald. By the time he read the paper he was the judge of Scotland's nobiliary court, and it draws on the court's own registers — the Public Register of All Arms and Bearings and the Public Register of All Genealogies and Birthbrieves — as well as on the Acts of Parliament, the Great Seal, portraits, tombs and the ballads of the north-east. Two years earlier, on 26 February 1943, that court — under his predecessor, Lord Lyon Sir Francis Grant — had found and declared that the minor barons of Scotland are a "titled nobility".¹ Innes was then Albany Herald; the 1945 paper sets out the evidence behind that finding, for antiquaries.

The paper was printed in the Proceedings of the Society of Antiquaries of Scotland, volume 79 (1944–45), pages 111–163, and the Society has placed it online.²

1. A title, an honour, an order and an estate

Innes opens the legal argument with a Crown charter. On 6 May 1590 the lands of the Bishopric of Moray were erected into the free barony of Spynie, and the charter says in terms that the erection constituted a "Titulum, Honorem, Ordinem et Statum liberi Baronis" — the title, honour, order and estate of a free baron — whose holders "now and for ever shall be called Barons of Spynie" (p. 113). The House of Lords Committee for Privileges later held that this charter created no peerage: the peerage, "ane frie lorde of parliament to be intitulat Lordis of Spynie", came by a separate charter three years later. Innes's point is that the erection of a free barony was itself the grant of a title, distinct from and older than the peerage grant that followed.

He reaches further back for the same principle. A document of 1382 — "long anterior to the existence of 'personal peerage' barons" — states that Baronia est nomen dignitatis et importat judicaturam: a barony is a name of dignity and imports jurisdiction (p. 144). Sir George Mackenzie, Lord Advocate under Charles II, put the rule in Scots: "such feus as had a jurisdiction annext to them, a Barony as we call it, do ennoble" (p. 142).

Precedence followed. The Nova Scotia baronetcy patents of 1625 rank the new baronets before "all barons, otherwise lairds, esquires and gentlemen whatsoever", so that barons stand after baronets and knights and before esquires; and when the Public Register of Arms was opened in 1672, "Baronets, Knights, and Barons" were grouped together in its third section, above the gentlemen (p. 113).

2. "A part of the nobility"

The barons were never a separate estate below the nobility; they were the nobility's larger half. Under the first Scottish statute on parliamentary robes, passed by James II in August 1455, the earls wore brown mantles furred with ermine while "the uther lords of parliament" — a phrase which, Innes shows, then embraced the barons — wore "ane mantell of rede … lynit with silk or furyt with cristy gray grece or purray" (p. 130). Great barons and small wore the same red robe, opening at the front like the earls', while the burgh commissioners were given cloaks fastened on the shoulder.

When the Estates were reorganised after the Reformation, Parliament said so expressly. The Act of 20 December 1567 begins: "Of law and reason the barons of this realm ought to have vote in Parliament as a part of the nobility" (p. 132).³ Even after the Act of 1587 settled representation by shire commissioners, the barons did not accept that anything had been taken from them: in 1673 "sundry barons" maintained successfully against the Lord Lyon, in claiming their supporters, "that they were as good Barons after that Act (1587) as before" (p. 144).

This is the setting of the 1943 finding, which Innes prints in full (p. 143 n. 3):

"Finds and Declares that the Minor Barons of Scotland are, and have been both in this nobiliary Court and in the Court of Session recognised as a 'titled nobility' and that the estait of the Baronage (i.e. Barones Minores) are of the ancient Feudal Nobility of Scotland."

And it is the setting of the declarations the Lyon Court made for individual barons in the same years — for Chisholm of Chisholm in 1938 and, over Lord Lyon Sir Francis Grant's signature on 19 April 1945, for Wauchope of Niddrie — that a Scottish baron "is of Baronial Race, and of rank equivalent to that denominated Hoch Adel, and equivalent to the Chiefs of Baronial Houses, upon the Continent of Europe, and that by demonstration of the foresaid Ensigns Armorial, he, and his son and heir-apparent and their successors in the same are to be so accounted, taken, and received amongst all Nobles and in all places of Honour" (p. 160). "The feudal Laird-Baron of Scotland," Innes adds, "is still received as hoch-adel in Continental society" (p. 141).

3. Barons and freeholders

Because barons and freeholders voted together for the shire commissioners, later writers sometimes ran the two together. Innes is emphatic that contemporaries never did: "everyone concerned was most careful to reiterate 'Barons and Freeholders'. Freeholders were not Barons and everybody recognised that. Heraldically Freeholders are not allowed the insignia of Barons" (p. 137 n. 1). The sheriff-depute of Banff made the same distinction in 1713 when he ordered production of charters "that it may be known who are barons and who have power to vote" (p. 162). A barony was a matter of record — a Crown erection — and the records kept it apart.

4. The robe of state

The heart of the paper is dress, and the argument runs through portraits. The red robe of 1455 was a robe of state, worn with a furred hood and later a furred cape, and Innes traces it on Sir Duncan Campbell of Lochow in the Black Book of Taymouth, on "Black Duncan" of Glenorchy painted by Jamesone, and on Sir John Colquhoun of Luss, 2nd Baronet, who succeeded as Baron of Luss in 1646 and was painted in a crimson robe with a broad furred cape. Colquhoun's fur "has no ermine-tails, so is no doubt vair, as the Act of 1455 laid down" (p. 134): a baron's robe, kept distinct from a peer's by its fur, and still in use "even so late as the middle of the seventeenth century".

Innes reads the furs as a language of rank. Ermine belonged to the earls, who had once been provincial kings; the grey squirrel and the blue-and-white vair of heraldry belonged to the baronage — the fur, he suggests, of the oldest allodial lords, the "Barons par le Grace de Dieu" (pp. 132–133). What the two grades shared was the front-opening mantle, "evidently the test of the state-mantle of the hoch-adel" (p. 141).

5. The baron's mantle and the five buttons

Beside the robe of state there was an older garment: the circular mantle, split down the right side and fastened on the right shoulder, the travelling and council dress of the medieval noble. Three buttons on the shoulder marked a franklin or freeholder; the baron's mantle had five (p. 147). James VI's orders of 1605–06 brought the circular mantle back for the Riding of Parliament, and the Privy Council's proclamation of 22 June 1606, recorded in Birrell's diary, applied the new robes "in red, lined white" to "Lordis, and Barronis" alike (p. 139). The Lord Lyon's own record of that first Riding at Perth notes, with some sympathy for the expense, that "nather Commissioners of Burows nor Barons rode, for vant of furnitur, to reasone of the untymous Varninge" (p. 140).

The mantle itself survives in two witnesses: the portrait of James Grant of Grant, 7th Baron of Freuchie, painted in 1658, "a crimson robe, the large bulbous buttons on the right shoulder being therein seen life-size"; and the official birthbrief of Innes of that Ilk, signed by Lord Lyon Erskine of Cambo about 1694–1700, in which two barons in such mantles, wearing caps of maintenance, hold up the family banners (pp. 127–129). Grant of Freuchie never sat in Parliament, which tells Innes that "baronial robes were kept and worn locally, and quite apart from mere use in Parliament. They were in fact used in daily 'baronial' life, in the baron-court" (p. 129).

6. The chapeau

The baron's cap — red velvet turned up with white fur — is the ancestor of the heraldic cap of maintenance, and Innes gives it a section of its own. Barbour's Brus has Sir Ingram de Umfraville, taking possession of Galloway, "gert aye ber about / upon a sper a red bonnet / unto tokyn that he was set / into the hycht off chevalry" (p. 151). When the Roslin vault was opened in 1650 for the burial of his son, Sir William Sinclair, Baron of Roslin, was found "laying in his armour with a red velvet cap on his head, on a flat stone, nothing was spoiled except a piece of the white furring that went round the cap" (p. 152). The Innes birthbrief shows the same cap on both its barons.

The Lyon Court had recognised the cap as baronial long before Innes: in 1836 it granted Ainslie of Pilton, as representative of the ancient barons of Dolphinton, a crest "issuing out of a Cap of Maintainance all proper … the cap as being indicative of his descent from the ancient barons of Dolphington" (p. 153). After Innes's own research the point was argued in full in the petition of Gordon of Hallhead, Baron of Esslemont, and on 4 September 1934 the Lord Lyon "found the claim established, and awarded the chapeau" (p. 154). From that decision came the settled colours: gules doubled ermine for a baron in possession or his heir-apparent; azure for the representative of a baronial house; ermines — black with white tails — for the ancient baronies held of the old earldoms and of the Lordship of the Isles (pp. 154–156). The chapeau descends to the "heir and representative" of the baronial race, is awarded to a woman who succeeds to a barony, and may ensign a baron's shield when no crest is shown (p. 155). Innes's conclusion: the chapeau, "the ancient and primitive patriarchal hat", survives in the cap of estate, and its allocation to the baronage of Scotland "had already been the subject of judicial decision" (p. 156).

7. Supporters

Why do "our old Barons who are not Lords, and hold only their Lands in free Barony, have supporters in their Achievement"? Mackenzie answered in 1680: because they were "originally Heritable Counsellers to the King, as Members of Parliament", and because the old barons, "especially where they are Chiefs of Clans", had never ceded their precedence (p. 142). Innes's own view is that supporters relate to the baron's jurisdiction of the High Justice rather than to his seat in Parliament (p. 142 n. 1) — either way, they are the mark of an ancient baronial house, and the Lyon Court continued to grant them to the representatives of such houses long after the lands had gone (p. 142 n. 4).

8. "Baron of X": the title in use

The last section answers a question that still gets asked: was "Baron" actually used as a title by Scotland's minor barons? Innes's answer is a list. Mary Queen of Scots addressed her letters to "Our traist friend the barroun of Kylrawak", and the formal writs of that family run "Hutcheon Rose, Baron of Kilravock" (p. 158). A charter of 1481 makes Thomas Gordon of Brackley "Baronis de Kennerty" (p. 159). The ballads of Deeside and Speyside sing of "The Baron o' Brackley", "The Baron o' Towie", "The Baron of Leys", "The Baron Ban" of Monaltrie (p. 158). The registers of the Scots College at Douai record "Roger Lindsay, filius baronis de Mains", "Sir Thomas Nicolson, Baron of Kemnay", "Margaret Fraser, filia baronis de Philorth" (p. 162). The Laird of Drum certified a kinsman in 1757 as "Alexander Irvine, baro de Drum, nominis et gentis Irvinorum princeps" — Baron of Drum, chief of the name and race of Irvine (p. 161). Lord Lyon Erskine of Cambo signed birthbrieves as "Baron of Cambo"; Lord Lyon Brodie as "Baron of Brodie"; an official pedigree of 1861 describes "Colonel Charles Leslie of Balquhain … twenty-sixth Baron of Balquhain" (p. 160). Sir Walter Scott, Innes concludes, "was quite correct when he characterised his laird of Tully-veolan as 'The Baron of Bradwardine'" (p. 157).

Two rules of style follow from the records. The correct form is simply "Baron of X", as Mary Queen of Scots wrote it — not the conveyancer's "Baron of the Barony of X" (p. 158 n. 2). And "esquire" is never joined to "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" (p. 161). Where a petitioner establishes his baronial status, Lyon Court records him "as 'Baron of X' and Baronial ancestors duly numbered in the usual manner" (p. 159).

9. The baron as head of a family

Underneath the robes is an idea of what a barony was for. Innes rejects the picture of the baron as a petty tyrant: "It cannot be too strongly emphasised … that the Barony was a peaceful self-governing social unit, and that the economic functions of the Baronial-Council, or court, were far more important than its judicial functions" (p. 114). The baron was chef de famille, "and the familia over which he ruled comprehended not only all his children, and cousins, but also the vassals, tenants, and servants" (p. 121). Following Sir Thomas Craig, he traces the earliest barons to the capitani tribuum, the chiefs of clans (p. 116), and finds in the white wand of the baron's officers the wand of chiefship itself (p. 118). Scotland, "perhaps the most perfectly feudalised country in Europe", was also the first to be rid of serfdom, by about 1330 (p. 112).

He lets the first historian of the baronage have the last word: "There is no nation in Europe where the Gentry, or lesser Barons and Freeholders, enjoyed so much liberty, or had such extensive privileges as those of Scotland" (Sir Robert Douglas, quoted p. 112). "It is with these barons and not with the Peerage," Innes adds, "that the Baronages of the Continent always have been, and fall to be, equated."

Reading the paper today

Innes called the baronage "a subsisting yet very ancient 'Order' in the Realm of Scotland" (p. 157), and so it remains. When the Abolition of Feudal Tenure etc. (Scotland) Act 2000 took full effect in 2004, it preserved the dignity of baron expressly, defining "dignity" to include "any quality or precedence associated with, and any heraldic privilege incidental to, a dignity" — the very things the paper describes.⁴ A later Lord Lyon, David Sellar, wrote that "there can be no doubt about the thread of continuity from the earliest days of feudalism in Scotland until the present day".⁵ Chapeaux granted before 2004 continue to be displayed and pass to heirs; the representatives of ancient baronial houses keep their blue chapeau and their supporters; a baron petitioning for arms today receives the helm assigned to his degree.⁶ And the style whose history Innes traced from Mary Queen of Scots to the Lyon Register now appears, on production of the Lord Lyon's recognition, in a British passport: "THE HOLDER IS (FORENAMES) (SURNAME), BARON OF (territorial designation)".⁷

The paper is in copyright until 2041. It is quoted here; it can be read in full, free, at the Society of Antiquaries' journal archive.