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Clan MacTavish Official Website
The Myth of a Disponed
MacTavish Chiefship is put to rest.
A myth VANQUISHED
By Patrick L. Thompson
Seannachie to the 27th Chief of Clan MacTavish
COPYRIGHT © Title 17, US CODE
Patrick L. Thompson and the Chief of Clan MacTavish
1st February 2006
As Seannachie for Clan MacTavish, commissioned
by the Much Honored Steven MacTavish of Dunardry, 27th Chief of the Clan MacTavish, it is my responsibility to
research anything pertaining to the Clan MacTavish, and to make the truth known, not only to the Chief and members of Clan
MacTavish, but to all who might show an interest in Clan MacTavish. I take this responsibility seriously. So I decided to
put to rest, once and for all time, that the Chiefship of MacTavish was disponed to Simon McTavish of Garthbeg. There is no disgrace attached to Simon McTavish, who legally purchased a portion of the Dunardry Lands,
and who appears to be an honorable man in his personal dealings with the Dunardry family. There is certainly an air of
irresponsibility attached to those who would have the general public believe that such took place, and not produce the evidence
for it. When writing history, the author needs to always cling to the FACTS that are evident, those things substanciated within
legally recorded, public records, where they exist. One cannot or should not speculate about anything. One must
therefore interpret, or provide exactly what appears in, and is known from records. The historian’s
responsibility lies in giving proper and accurate historical facts. If an assumption is made it must be clearly stated as,
an assumption. We do therefore, wholly, and accurately portray any reference to the transfer of the Lands of Dunardry
to the best of our ability. No document(s) have yet surfaced that show the Chiefship was disponed, or abdicated.
Is
it possible for the Chiefship of a Highland clan, and a territorial title to be “disponed”? Mr. E. F. Bradford assumed such a conclusion in his book, MacTavish of Dunardry. He states
that the sons of Lachlan MacTavish of Dunardry disponed the Chiefship of Clan MacTavish to a younger branch of the family,
that being in the person of Simon McTavish of Garthbeg. Simon had purchased a portion of the Lands of Dunardry, in 1797 from
Major-General John Campbell of Babreck, and with that purchase of land, the Dunardry title and Chiefship of the Clan MacTavish
went to Simon McTavish along with the land. Such a conclusion seems to be far
fetched, that the Chiefship as well as the title “of Dunardry” would go to the buyer of piece of land. It is noted
in Simon McTavish’s will that he styled himself as both “Garthbeg and Dunardry”, which would seem, at first,
to substantiate this claim of a disponed chiefship. Alistair Campbell of Airds, Unicorn Pursuivant, repeats this premise in
his Campbell history. But is such factual or merely the unresearched conclusion of both Mr. Bradford and Campbell of Airds?
Once such a myth
has been started it MUST be laid to rest, particularly if it contradicts the facts as are known. So let us
look further into this hypothesis of a disponed MacTavish Chiefship, so we understand precisely what was disponed, and so
that we can forever put this myth where it belongs, in the graveyard of wishful thinking. What started the idea that the MacTavish
Chiefs gave away their birthright was the writing of Mr. Bradford, in MacTavish of Dunardry. Alistair Campbell
of Airds further exacerbated the myth in its repetition.
Bradford
wrote,
“The last
of the family to hold his ancestral lands was Lachlan MacTavish of Dunardry who sold the entire property on 31st December
1795, the purchaser being Colonel John Campbell of Babreack. (67) (Bradford, MacTavish of Dunardry, 7, quoting NDC.) MacTavish
found a job as Assistant Surveyor General of Window and House Duty in the Tax Office in Edinburgh, a somewhat humdrum appointment
but a welcome aid to keeping the wolf from the door. He died in 1796, his efforts to buy back at least part of his ancestral
estates having come to nothing although they nearly succeeded since Babreack had put the lands on the market again in 1792
and MacTavish had made an agreement with Malcolm of Poltalloch to come in with him at least as far as the property of Dunardry
was concerned. Sadly, had he survived, things might have turned out differently since help was at hand in the person of Simon
McTavish, an eminently rich Canadian who had been one of the founders in 1783 of the North West Company, the principal rival
of the Hudson's Bay Company until they eventually merged in 1821. He paid off Malcolm of Poltalloch for the money promised
and in 1799 became the owner of Dunardry. He sent Dugald, Lachlan of Dunardry's elder son, for training as a lawyer while
gaining entry for John the younger son into the Hudson's Bay Company where he prospered. Dugald also did well, becoming Sheriff
of Campbeltown where he built Kilchrist House (a handsome villa recently dignified by the present owner with the more grandiloquent
title of ‘Kilchrist Castle’) where he lived with his wife. They had nine children who scattered round the world.
William, the eldest son became Governor of Red River where he was Hudson's Bay Company Factor. (Bradford, MacTavish
of Dunardry, passim.) [Emphasis added]
Bradford additionally makes mention of (supposed)
letters showing the transfer of the Chiefship, but these items are not reproduced in the book, nor have they been
discovered in the MacTavish of Dunardry Papers (now housed at the Lochgilphead Library, Argyllshire) that Bradford
had in his possession when writing the book. We must assume that Mr. Bradford believed such documents existed, even if he
had not actually seen them. If he had seen such, and he writes nothing to express he did, then his interpretation of the documents
lead him to believe as he stated. What other reason could there be for mentioning such in his book?
(Note: Mr. Bradford had purchased the MacTavish
Papers and donated all of them to the Argyll and Bute Council, for inclusion in the Lochgilphead Library Collection.
See MacTavish of Dunardry, a book by E.F. Bradford)
Alistair Campbell
of Airds in, A History of Clan Campbell, part of which appears on the Clan Campbell North America website, restates
Bradford:
“When Simon
MacTavish became Laird of Dunardry, Lachlan's two sons disponed to him their claim to the Chiefship of the MacTavishes and
Simon who descended from a younger son of MacTavish of Garthbeg, a cadet branch of the main stem, became MacTavish of Dunardry.
He died in 1804 and the designation of MacTavish of Dunardry was inherited by his elder son William. William died in 1818
without any children when his younger brother Simon succeeded. He appears to have been totally disinterested in the position
and offered it back to Sheriff Dugald who also declined”.
We
will show that Sheriff Dugald MacTavish retained the territorial title "Dunardry", and that such a title is tied inseperably
to being noted as Noblese of Scotland, as recorded in the Public Register of All Arms
and Bearings in Scotland hence that he, Dugald MacTavish, Writer to the Signet (or the MacTavish family of Dunardry) retained
the Chiefship.
Such
a myth, as we have described, takes root by repetition and we wonder at how such a conclusion was accepted by the learned
Alistair Campbell of Airds, Unicorn Persuivant at the Court of the Lord Lyon, and the former archivist and Chief Executive
of Clan Campbell, under the late Ian Campbell, 12th Duke of Argyll. It
appears that Airds has simply taken E.F. Bradford’s wording, with an emphasis on disponing, without actually
checking for any legality or documentary proof of same. Such proof in favor of
a disponing for the Chiefship of Clan MacTavish is not known to exist, or at least it has not surfaced to substanciate the
claim.
We
must recognize first that the Chief of a Clan or Name has rights to the undifferenced arms, and that those undifferenced arms
show the ‘person in fact’ who is the chief of the clan. A person not holding the undifferenced arms of the Chief
is NOT the Chief, and a person cannot legally assume those arms, or title, without first being recognized as Chief
by the Lord Lyon (1, 6).
A
Chief held a ‘weight of jurisdiction’ such as did barons, since the term Baron was first applied to chiefs. But Chiefs who were not considered Barons (nobles who held chartered lands from the
Crown erected into a Barony) still held territorial jurisdiction among their own kindred, and not necessarily over a designated
piece of Crown Property (2) Having been granted a coat of arms, places that person
in the noblesse of Scotland, in fact conferring a sense of nobility, and thus having been granted that coat of arms, one assumes
it as property, but Arms and Title may be held independent of any land holdings.(3) Likewise most chiefs hold, in addition
to their family surname, a Territorial name or designation. This too falls under
the jurisdiction of Lord Lyon, and such a name becomes part of the chief’s or laird’s legal surname. The
territorial name is thusly ‘owned’ by the person, and subsequent heir, to whom it rightly belongs.(4)
What we know to
be fact:
- Chiefs or Lairds (may) use territorial designations and that this designation legally
becomes part of their proper, legal name,
- That it is most appropriate to use such designations in formal documents,
- That Chiefs are entitled to undifferenced arms,
- The Lord Lyon is the determinate judge who rules on Chief of Clans and designations.
- 1-4 above are based in the Laws of Scotland.
It should
be noted that when a territorial designation becomes legally part of a person’s name, no other person can legally use
that name as it is styled, as it is regulated under the jurisdiction of the Lord Lyon. The legal document that confers territorial
designation is the same document that confers nobility, the right to arms, and chiefship. That document is called Letters
Patent. A matriculation of Arms is then recorded in the Public Register of all Arms and Bearing in Scotland,
which is declared by statute to be "the unrepealable law of all arms and bearings in Scotland", (see Parliament Act of
1672 cap. 47).
When Lachlan
MacTavish of Dunardry was matriculated his letters patent, and parchment of date 17 April 1793 given, in part, says, “…Declare
that the Ensigns Armorial Pertaining and belonging to Lachlan MacTavish of Dunardry …, and, We do hereby Ratify, Confirm
and Assign to the said Lachlan MacTavish Esquire, and the Heirs-male of his body…”, meaning that Lachlan
is legally given the territorial designation, “Dunardry”, and that his arms and title are his, and his begotten
heirs after him. (Re: Matriculation of Lachlan MacTavish, 17 April 1797). Hence
Lachlan’s eldest male son inherits his title(s) and arms. Lachlan’s
eldest son was Dugald MacTavish of Dunardry, later Writer to the Signet (WS), a lawyer or magistrate of the Crown, and Sheriff-Substitute
of Campbeltown, Argyllshire.
Chiefship
of a Clan cannot be disponed. In Scots law, dispone means to formalize the transfer of deed or land title in
a land transaction, as in an infeftement subject to a precept of clare constat (see legal definitions below).
The Free
Dictionary: Dis`pone´ v. t. 1. (Her.) To dispose. 2. To dispose of. 3. (Scots Law) To make over, or convey, legally. He has disponed . . . the whole estate. - Sir W. Scott.
Chambers
Dictionary: DISPONE (archaic) to set in order; dispose; (Scots law) to make over to another; to convey legally, INFEFTMENT
a Scots law term, used to denote the symbolical giving possession of land, which was the completion of the title. [Emphasis
supplied]
INFEFT,
To seize or give formal possession; infeftment, the action or the deed drawn to record it.
http://perso.wanadoo.fr/euroleader/wedderburn/glossaryI.htm
Scotland
- a glossary of archaic terms
Sasine
or Seisin:
Seisin
(from Middle English saysen, seysen, in the legal sense of to put in possession of, or to take possession
of, hence, to grasp, to seize; the Old French seisir, saisir, is from Low Lat. sacire, generally
referred to the same source as Goth. satjan, 0. Eng. settan, to put in place, set) is the possession of
such an estate in land as was anciently thought worthy to be held by a free man (Williams, On Seisin,
p. 2).
In Scot
Law the corresponding term is sasine. Like seisin in England, sasine has become of little legal importance owing to modern
legislation. By an act of 1845 actual sasine on the lands was made unnecessary. By an act of 1858 the instrument of sasine
was superseded by the recording of the conveyance with a warrant of registration thereon.
Precept of Clare Constat: a written instrument by which legal ownership of land is transferred. Legally,
it is a deed executed by a subject-superior for the purpose of completing the title as his vassal's heir to the lands
held by the deceased vassal, under the grantor of the precept. [Underline Emphasis supplied]
Further reference from the
Scottish Archive Network:
http://www.scan.org.uk/researchrtools/index.htm
clare constat
name of a precept (an order), in which a superior acknowledges that it 'clearly appears' that someone is heir to landed property held of the superior, and which orders
the giving of sasine
precept
simply a written order, usually by a court, to a representative to do something
superior
the person who had made an original grant of land in return for the payment of an annual sum or feu, or for the performance of certain services, or both; the person receiving the grant who was thereby bound to make the payment
or do the service which went with the lands, was the superior's vassal
sasineeither the symbolic act of giving legal possession of a piece of heritable property, or the instrument
by which such an act was proved to have happened. The origin of the term is the same as that for the word 'seize' - meaning
to take possession of (in Scottish documents it is generally rendered 'seis'). Hence, for example in an abridgement of sasine,
someone who became the owner of a property (by succession, gift, purchase or whatever) is recorded as being 'seised'
of that property.
As
such, none of the above definitions determine the transfer of Chiefship or the Right to Arms, which is by bloodline alone.
Each term denotes part of a process to legally transfer the right to a given piece of real property (i.e. land) and nothing
else, whatsoever.
An example
of a disponed property is here given from a case heard in the Parliament of the United Kingdom [Judgments - Sharp and
Others v. Woolwich Building Society, House of Lords]:
"In
the law of Scotland no right of property vests in a purchaser until there has been delivered to him the relevant disposition.” And, “These dicta further demonstrate the difference between the position of
a seller who has done no more than agree to convey heritage to another and that of one who has accepted the price and delivered
a completed disposition, having thereby done all that is required of him to enable the disponee to perfect his
title (as in land title). Craigie in his Scottish Law of Conveyancing: Heritable Rights 3rd ed., p. 434 draws the distinction
between one having a personal title or right to lands by virtue of delivery to him of a disposition thereof by an infeft proprietor
and one having a right (jus crediti) to demand the conveyance of land in his favour. Gloag and Irvine's Rights in Security
similarly draws a distinction between one having a mere jus crediti and one who, albeit not yet infeft, has a complete personal
title to lands (pp. 29 and 33)”. (Underlined Emphasis Supplied)
[Note: Taxation of Chargeable Gains Act 1992 s 28(1); Value Added Tax Act 1994 s 31 and sched 9, group
1 item 1. And see also Lord Coulsfield (1995 SC 455 at 497A-B): "There is … no reason why a personal right to lands,
or indeed a jus crediti in respect of lands, should not be treated as property for taxation purposes…"
http://www.scotlawcom.gov.uk/downloads/dp114_sharp_v_thompson.pdf ]
The proper
and correct term for stepping aside from chiefship, in favor of the next heir, is abdication, such as a monarch would
do when renouncing the throne (or Crown) to the next royal heir (6a) (7). Such is called the line of succession. Disponing
is the act of legally disposing of property, followed by the infeftment, the transfer of the title or deed for said property
recorded in sasine and often set forth in Precept of Clare Constat (5). Thusly, the legal mechanisms and documents of
transferring land are not the instruments of transferring the dignity or position of Chiefship. Such are seperate issues
determined in distinct and seperate documents. Thusly, it appears that the transfr of land cannot detrmine the transfer of
the Chefly dignity to another person. Chiefship is a social position and title of dignity that is not distinguished by, or
having possesion of, land. It is obvious, therefore, that the Dunardry
MacTavishes legitimately retained the Territorial Title “Dunardry” and the Chiefship.
The sequence of Sales of Dunardry Lands
Lachlan MacTavish
finally had to sell the Lands of Dunardry at public auction due to financial difficulties; the sale went to Major-General
John Campbell of Babreck on the 2nd of January, 1786. Then Major-General Campbell sold the lands to Neill Malcolm of Poltalloch,
and Sasine recorded was 10 Aug. 1792. The General then sold the land in April 1797, to Simon Mactavish of Garthbeg and Montreal,
- on disposition of Duncan (sic Dugald) MacTavish, W.S., for his father Lachlan MacTavish on Nov. 18, 1798, for which Lachlan
had paid £400 (re: letter dated 24th Aug., 1796 by Neil Malcolm of
Poltallach to his solicators) to Poltallach. This disposition of funds from Lachland
MacTavish of Dunardry to Nilel Malcolm of Poltallach, was an arrangement for the right of repurchase of Dunardry, and that
such right was held by Lachlan MacTavish of Dunardry, or his heirs. Simon paid a fee ( £400 ) to
Dugald MacTavish of Dunardry to release the disposition (of repurchase), thus the agreement (arranged with Poltallach) to
repurchase the lands was the only thing disponed. Dugald MacTavish of Dunardry, WS. Thus Dugald gave up all claims to the
Lands of Dunardry. It is obvious that nothing else was disponed to Simon McTavish, not the territorial title Dunardry, and
certainly not the Chiefship of Clan MacTavish, as such is a function controlled within the jurisdiction of the Court of the
Lord Lyon.
Do we know
with certainty that the Chiefship was retained within the Family of Lachlan MacTavish?
Yes! Dugald MacTavish, WS and Sheriff-Substitute was Lachlan MacTavish’s eldest son, and heir. His (Dugald’s) Will, Inventory and disposition, are recorded within the Argyll Commissary Court record
books, 7 February 1856, Court Register, pages 358-361. In this document, Dugald is defined as “Dugald MacTavish
of Dunardry Esquire, Writer to the Signet sometime Sheriff-Substitute for Campbeltown”, who died at Kilchrist, 20th
July 1855. This document was executed at Inverary, same date as given above, by Writer to the Signet David Colville,
and witnessed by William Sharp, Esq., J.P. for Renfrew.(9) Once again it becomes
‘crystal clear’ that the designation or territorial title of “Dunardry” was retained by the Chiefly
family and not disponed to Simon McTavish of Garthbeg. Dugald MacTavish died on 20th of July 1855, with the title “Dunardry” still intact as part of his legal name, this being fifty eight
years after Simon McTavish of Garthbeg purchased part of Dunardry lands from Malcolm of Potallach. It is again obvious, since
the title appears in Dugald MacTavish’s will of 1856 (a legal and formal document – see footnote 4 to reference
the use of such names) that he (Dugald) was still legally known to be ‘MacTavish of Dunardry’. (Underline
Emphasis supplied.)
(See the
Inventory Estate record of Dugald MacTavish of Dunardry, WS, from Argyllshire Commissary Court, actual images from
the Commissary Court - supplied in below thumbnails).
What we know
so far……….Lachlan MacTavish of Dunardry’s heir, is Dugald MacTavish of Dunardry, WS. Lachlan sold
Dunardry lands at auction, but retained the right of re-purchase. The Dunardry land transferred from Poltallach to Babreck,
and part of the land from Babreck to Simon McTavish. Trust disposition of the
right of repurchase (the arrangement Lachlan had made with Neill Malcolm of Poltallach, noted above) was disponed by Dugald
MacTavish of Dunardry at that time. Simon held the land free of this disposition from Dugald MacTavish. This would be
the same arrangment that Lachlan MacTavish had made with Malcolm of Poltallach with rights to re-purchase. (8) (Potallach
Writs) Simom McTavish of Garthbeg, willed his son Willaim the property at Dunardry,
William McTavish of Garthbeg died in 1818 (with no heirs): from A History of Clan Campbell.
Simon
MacTavish of Garthbeg, while owing lands of Dunardry, never matriculated for the undifferenced arms of MacTavish, which, even
if he had wanted the chiefship, was not obtainable as he held a cadet matriculation, issued under Letters Patent, as
McTavish of Garthbeg, not MacTavish of Dunardry. Further since there appears
no abdication (and no nomination of Simon McTavish as Chief to Lord Lyon: see footnote 7.), and since there is no recordation
of this at the Court of the Lord Lyon, Simon could not have obtained the Chiefship. Simon was not the next heir ‘in
line of succession’ to the Chiefship, and such a claim to the Chiefship would, therefore, be unlawful (6b). The heir,
Lachlan’s eldest son, was Dugald MacTavish of Dunardry, Writer to the Signet. Therefore, Simon could never have assumed
the chiefship, or even be presumed to have been Chief, without first having approached the Court of Lord Lyon to formalize
such a transfer of leadership within the clan. Further, Simon did not matriculate for the Undifferenced Arms of MacTavish,
which would have shown he was, without question, Chief. It appears
this could not have been doe as no new matriculation for Simon appears at Lyon Court. The Chiefship therefore
must have still belonged to Dugald MacTavish, WS.
Lord Lyon
Sir Malcolm Innes of Edingight, as a Judge of the Realm of Scotland, was knowledgable of the difference between disponing
land, as opposed to abdication of a chiefship, and all that was implied. With some certainly we can conclude (an assumption) that
Sir Malcolm had referenced the writing of his father, Lord Lyon Sir Thomas Innes of Learney, and certain other legal writs,
on just such as this, as he matriculated Chief Dugald MacTavish of Dunardry, the heir, in 1997, ending two hundred years of
a dormant chiefship. Had proof of a disponed Chiefship been produced, by anyone, and presented to Lord Lyon, things
might have been different. As such, Dugald MacTavish
of Dunardry, and his heirs, are declared the Chiefly line of Clan MacTavish.
Footnotes:
1. Lord Lyon Sir Thomas Innes of Learney's Scots Heraldry (2d edition, p. 11),
one finds the following statement: "Disputes over Chiefship of a "noble and armigerous family" and "Chiefship of Name and
Arms" were in 1937 expressly adjudged competent before Lyon and accordingly remitted to Lyon [1941 Session Cases, pp.
616, 635, 654]. Moreover, Sir George Mackenzie has laid down that the Chief of
a Family and Head of a Clan are synonymous [Works ii, 618], and the evidence in the Maclean of Ardgour proof, 1938, corroborated
this [Clans, Septs and Regiments of the Scottish Highlands, 4th ed., App. xxxix]. Both Lords Shaw and Dunedin identify
chiefship of a clan with right to the undifferenced arms [Ibid., p. 190; 1922 Session Cases (H.L.), p. 42, 47]. Lyon Court is accordingly the judicature which can, and does, adjudicate upon Chiefship of Clans [...]"
(Underline Emphasis supplied.)
2.
Thomas Innes of Learney, "The Robes of the Feudal Baronage of Scotland," (27th Oct 1945) Proceedings of the Society of Antiquaries of Scotland, Vol. 79, pp. 111 at 118, as follows: "... Craig’s deduction, that the early Scottish barons were chiefs of clans, one observes
at once that the ‘Wand’ of the Officers of a Barony was the ‘white wand’ associated with Chiefship, and indeed with the sceptre of
an Ard-Righ [Carnwath, p. Lxxxvi;
Bute, Scottish Coronations, p. 16; Tartans of the Clans and Families, p. 30, n. 2], and we thus realise at once
the significance of the observations that ‘the feudal baron was a chef
de famille’ -- and that ‘He
reigned -- that is the word used in documents of the period’." (Underlined Emphasis supplied.)
3. Sir Thomas Innes of Learney, The Clans, Septs, and Regiments of the
Scottish Highlands (8th edition, 1970), pp.
104-105, as follows: "The ‘family’ or ‘clan’ is,
however always based on a fief, because to be an ‘honourable community’
which has been ‘received into the noblesse; of the realm, it must,
in the person of its ‘representer,’ have been granted or conferred, a ‘family
seal of arms,’ and a coat of arms is feudalised property [Maclean
of Ardgour v. Maclean, 1941, following Macdonnell v. Macdonald, 1826, Shaw & Dunlop, 371], and the family is
an 'incorporation,' [Sir H. Maine, Ancient Law, pp. 205, 211; cf.
Old Regime in France, p. 5] and all the scientific modern evidence concurs that
‘clan and family mean exactly the same thing’ (Appendix XXX,
Dr. Lachlan Maclean Watt). This may explain also why a clan chief, as
chief of a ‘baronial family’ may be
‘baron’ without holding land in liberam baroniam [cf.
Court book of the Barony of Carnwath, p. Lix], by e.g. succeeding to a baronial
coat of arms, or amongst several such in familia, to that which carries with it the
‘representation’ of the clan/family as a noble incorporation."
(Emphasis supplied.)
4. In Debrett's 'Correct Form' (2002 Ed., p. 96) we find: 'According
to Scottish law there are some special titles, which are recognised by the Crown. These fall into two divisions: those of
the peerage of Scotland, with the title of Master, and recognised chiefly styles and territorial designations of chieftains
and lairds, which are strictly speaking part of their surnames. These are under the jurisdiction of the Lord Lyon King
of Arms and by statute form part of their surnames and should always be used. (Emphasis
supplied.)
5. SASINE, act giving legal possession of property of land or house; the
deed recording the act.
http://perso.wanadoo.fr/euroleader/wedderburn/glossaryS.htm#S
Scotland - a glossary of
archaic terms
6. Clan MacAulay, Ad hoc Derbhfine, Friday 3rd
August
2001, at Tulloch Castle, Dingwall. The
Address to the Derbhfine by Alasdair Roy MacAulay:
a. It is important today that we consider these facts carefully. We must,
with a clear conscience be able to state that, to the utmost of our knowledge, the now dormant line of Ardencaple is utterly
lost, that it is indeed extinct. I think we can in all fairness do this. Then we may proceed to nominate from amongst ourselves
that person whom we hold most suitable to be presented as our candidate, to Lyon. I have put forward arguments which I believe
clearly prove that on the death of the last Chief all those who were in a position to take on the responsibility were fully
aware and fully informed, and chose not to do so and that this is and was an abdication, not only of responsibility, but an
abdication with definite legal consequences in relation to the Chiefship of our Clan. To quote Sir George MacKenzie, “Chief
succeeds Chief in his hereditary honours as they would succeed to a crown” (154)
b.
And, “quoting from “Clans, Septs and Regiments” again. (158) “Chiefship of an honourable community
is….a title and dignity….held of the Crown, and anyone who “challenges forth any
name of tytle or honour or dignitie” (Nisbet) must justify the same by the Law of Arms ……and Lyon, in 1672
held that an “assumption of chiefship without his permission was unlawful”. Further “no-one is
entitled to attack a Right of Arms he does not himself claim” (580)…. ”
(Underlined and RED Emphasis supplied)
7. Letter of 17th
May 1951, Sir Thomas Innes of Learney, Lord
Lyon King of Arms, to
John W. Mactavish, Queen Mary
Veterans' Hospital , 4565 Queen
Mary Road, Montreal, Que.,
Canada: “Mrs. MacLeod
has sent me copies of your letters of
8th May, purposing to abdicate
in a general way and without
nominating any successor
to the Chieftainship of Clan
MacTavish, which, upon
the evidence submitted, appears to
have devolved upon you.
On reading the letters, it appears to
me manifest that you and
the family advising you have taken
this course upon a misapprehension
of what is involved and of
the mutual and moral
obligations involved. For one thing, apart
from proceedings upon
insufficient advise, your abdication
is technically inept, as
you only purpose resign a "chieftainship",
whereas the position you have inherited
is that of a Chief
as distinct from a chieftain,
so the letter of abdication is
really inoperative.”
8. THE GENEALOGIST NEW SERIES. A Quarterly Magazine of Genealogical,
Antiquarian, Topographical, and Heraldic Research.
Edited by H. W. Forsyth Harwood, Barrister-at-Law
Volume XXXVIII - London: G. Bell & Sons, Ltd.,
York House, Portugal Street, Kingsway, W.C.2
Exeter: William Pollard & Co., Ltd., 1922
Potallach Writs
Pages 138-142
--12
Oct. 1782. Trust Disposition by Lachlan MacTavish of Tonardarie in favour of
James Ferrier, W.S., as Trustee for behoof of said Lachlan and his creditors. Registered
in the Books of Council and Session, 10 Dec. 1782.
--31 Dec. 1785. Argyll’s confirmation of above Trust.
--31
Dec. 1785 (same date as above). Sale of the property by James Ferrior, W.S.,
to Major-General John Campbell of Babreck. Registered in the Books of Council
and Session, 2 Jan. 1786.
--The General sold the lands to Niall Malcolm of
Poltalloch, who had sasine on 10 Aug. 1792.
--Argyll’s
confirmation of the sale (through his Commissioner, James Ferrier) was issued on 21 June 1804, and sasine followed on 4 Sept.
--Malcolm of Poltallach sold a portion of Dunardry
lands to Simon McTavish of Garthbeg and
Montreal in April 1797, -
"supposed" payment afforded to Dugald MacTavish, W.S., the fee Lachlan MacTavish would have agreed to pay to Poltallach for
right of re-purchase on Nov. 18, 1798".
(Note:
Lachlan MacTavish was attempting to repurchase Dunardry lands when he died.)
9.
Will, Inventory and Disposition of Estate for Dugald MacTavish of Dunardry, Writer to the Signet, Sheriff-Substitute, Argyllshire
Commissary Court, 7 February 1856, Court Register, pages 358-361.
Note: To date, no documentation
has come to our attention which would indicate that the son's of Lachlan MacTavish disponed or abdicated the Chiefship of
Clan MacTavish. If there are those knowledgable of the whereabouts of such a document(s), none have offered
it to this writer.
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