Originally Posted by Duthill
That moron , Steven Akins must think that the rest of the world is as insane as he is , eh
Maclean of Ardgour v. Maclean 1941 S.C. 613:
" From an allowance of proof the Court excluded all questions relating to the chieftainship and the relative positions of the parties within the clan, holding that neither chiefship of a whole clan nor chieftainship of a branch of a clan was a legal status justiciable in a court of law, but had the character of a social dignity only, and, accordingly, that the Lord Lyon had no jurisdiction to decide the disputed question of who had right to the chieftainship either directly or incidentally when disposing of the claims for supporters and for a birthbrief. [..] Observations: [...] on the meaning of "chief" and "chieftain" in the law and practice of arms, with opinion by the Lord Justice-Clerk that in the recorded cases in which a Lord Lyon had made a declaration of chiefship the declaration had been merely a ministerial act and not a finding in his judicial capacity upon a disputed question."
Lord Justice-Clerk, in Maclean of Ardgour v. Maclean 1941 S.C. at p. 636:
"There is no instance in the registers of any judicial decision by Lyon in a disputed question of chiefship or chieftainship. The only instance founded on by the petitioner was the finding by Lyon regarding the chiefship of Clan Chattan on 10th September 1672 [...] It will be noticed that this declaration proceeded simply upon a perusal by Lyon of evidents and testimonies from "our histories, my own Registers, and bands of Manrent" and that it was in no sense a finding pronounced in a lis or contested process. It vouches nothing beyond that in this particular case Lyon made a declaration of chiefship. Similarly, the matriculation of the arms of the chief of the M'Naghtons proves nothing [...] This is not a decision in a lis: again it is simply a recording of the dignity of a chiefship acknowledged by attestation. The only other case to which reference need be made is the case of Drummond of Concraig [...] This is the only instance to which we were referred of a chief of a branch being mentioned, and it is only designation. It is not a declarator or a declaratory finding of chieftaincy. In none of the writs which were before us can I find any support for a conclusion that Lyon at any time either claimed, or exercised, a jurisdiction to determine disputes as to which of competing claimants to chiefship or chieftainship was to be preferred."
Lord Wark, in Maclean of Ardgour v. Maclean 1941 S.C. at p. 657:
"I agree with your Lordships that Lyon has no jurisdiction to entertain a substantive declarator of chiefship of a Highland clan, or of chieftainship of a branch of a clan. [...] The question of chiefship of a Highland clan, or chieftainship of a branch of a clan, is not in itself, in my opinion, a matter which involves any interest which the law can recognise. At most, it is a question of social dignity or precedence. In so far as it involves social dignity it is a dignity which, in my opinion, is unknown to the law. It was decided in the case College of Surgeons of Edinburgh v. College of Physicians of Edinburgh (1911 S.C. 1054), that Lyon has no jurisdiction except as is conferred by statute, or is vouched by the authority of an Institutional writer, or by continuous and accepted practice of the Lyon Court. [...] in my opinion, there is no practice or precedent which entitled Lyon to decide a question of disputed chiefship or chieftainship, either by itself or incidentally to a grant of arms. There is direct authority, by way of precedent, for Lyon considering an acknowledged chiefship of a clan as incidental to a grant of arms with supporters. The case of Macnaghton (13th January 1818, Lyon Register, vol. ii, p. 172) is a case of that kind. But it is a different thing altogether to say that in a case of dispute Lyon has jurisdiction to determine and declare who is chief. For that no precedent has been cited to us. In my opinion, it is outwith his jurisdiction to decide because (1) at best it is a question merely of social status or precedence; (2) this social status is not one recognised by law; and (3) and, most important of all, it depends, not upon any principle of law of succession which can be applied by a Court of Law, but upon recognition by the clan itself. Like your Lordship, I am at a loss to understand how any determination or decree of Lyon ever could impose upon a clan a head which it did not desire to acknowledge."
The Stair Encyclopaedia of Scots Law writes (vol. 6, p.485, para 1018; footnotes are between brackets):
"With regard to the Lord Lyon's jurisdiction in relation to the question of precedence there is considerable doubt. The question was considered by the Court of Session in litigation between the Royal College of Surgeons and the Royal College of Physicians of Edinburgh, where Lord Johnston remarked that: 'the present question [that is the question between the two colleges] must be disposed of without a full examination into the history of the matter, which might adduce information which is not before us at present.'[1911 SC 1054 at 1061, 1911 2 SLT 134 at 138, per Lord Johnston] In that case the court decided that Lyon had no jurisdiction in the question of precedence bebause: 'a right of precedence by itself is not a legal entity which can properly be made a matter of judgment that can be enforced by a court of law.'[1911 SC 1054 at 1064, 1911 2 SLT 134 at 139, per Lord Mackenzie]