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Clan MacTavish Official Website
The Myth of a Disponed
MacTavish Chiefship is put to rest.
Clan MacTavish
The following is a transcription of a letter
is found in the National Library and Archives of Canada among the Hargrave/MacTavish papers. This letter is of SIGNIFICANT
importance, considering what has been claimed by a few "wishful thinking" persons regarding where the chiefship of MacTavish
properly resides, and one of many reasons why Lord Lyon, Sir Malcolm Innes
of Edingigh, recognized and matriculated Dugald MacTavish as Chief of the Clan MacTavish in 1997.
The date of the
letter is 1845, and fully 48 years after Dunardry was sold to Simon McTavish of Garthbeg. The letter indicates that Sheriff
Dugald MacTavish knew himself to be both Chief of the Clan, as he distinguishes his son with the right to wear the distinctions
of the Chief of our Clan, and that he is the Lineal Heir to the Thane of Knapdale, Sween the Red.
Some notes of interest
are appended following the letter.
THE LETTER
Letter addressed on cover To: Jo (John) McTavish
Butler
Torrisdale Castle †
Edinburgh
Letter from (Sheriff) Dugald MacTavish to John McTavish – Dated Kilchrist
18 Feb. 1845
My eldest son who
after an absence of twelve years in America has spent his winter with me at Kilchrist returns next month to his post in Hudson
Bay and he wishes to take with him a Highland dress. † †
His height is rather above six feet one inch –
he measures round his naked chest three feet seven inches and round the waist two feet ten inches.
He has written to Mrs.
Worseley, Gayfield Square, Leith Walk to procure and send him materials for his dress and as I think you must have had some
experience in such matters it has occurred to me to request you to give Mrs. Worseley the aid of your suggestions in regard
to the articles required-
As my eldest son is entitled to wear the distinctions of the Chief of our Clan being the twenty
second in lineal descent from Taus Coor through twenty one generations from father to son without an instance of collateral
or female succession - -
I am told the clothiers sell a Tartan they call MacTavish but from what I hear it little resembles
the set [sic sett] which my grandmother (who was the eldest daughter of the chief of MacLachlan) considered the Dunardry Tartan
& which she said should have as much white as there was yellow in the MacLachlan tartan. If you find however that in point
of fact our clan have recognized the tartan sold under their name it will be as well to send my son as much of it as will
make his dress – along with the plaid broach and belt buckle – such as will not look gaudy beside his old iron
hilted family Ferrara.
I wish his dress to be really handsome without tinsel or glitter & will be obligated to you
to point out to Mrs. Worseley the quality & quantity of material to be sent.
The tailor & shoemaker who (I)brought
here from Skipness(?) will make up his dress. I will take care they meet attention especially as to the bonnet for notwithstanding
the humble fortunes of my family I wish my son to remember that on my death he becomes the undoubted lineal representative
of the Thane of Knapdale-
Trusting I shall soon hear from you I remain your friend.
D. M.
Kilchrist 18 Feb. 1845
------------------------------------------------------
Notes: The Eldest son spoken of is William MacTavish who became the Hudson Bay Co. Governor of Assiniboia and Rupert’s
Land, at the Red River Settlement, Fort Garry, (Manitoba) Canada. He became Chief of the Clan, and lienal heir to the Thane
of Knapdale in 1855, when his father Dugald MacTavish of Dunardry, died at Kilchrist Castle, Stewarton, Campbeltown, Argyll.
Sheriff Dugald's estate papers record him as MacTavish of Dunardry.
(See the Dugald MacTavish of Dunardry's Testament
and WIll - Click the thumbnail images at the bottom of page.)
† The peculiar thing about the addressing of the
letter is that Torrisdale Castle is in Kintyre, not Edinburgh. The letter was passed to the MacAlisters at Torrisdale, then
on to John McTavish in Edinburgh, as seen in reply dated 8th March 1845.
† † Highland dress: Refers to
a complete Highland Kit, consisting of kilt, jacket, waistcoat (vest), etc…
The “Dunardry Tartan”
referred to in the letter as having, as much white as the MacLachlan Tartan has yellow, is presently unknown. Sheriff Dugald
MacTavish knows he is Chief of the Clan and Lineal Heir to the Thane of Knapdale, Suibhne Ruadh (Sween the Red), builder of
Castle Sween on Loch Sween, and Skipness Castle.
Ferrara Sword: Typically the Basket Hilted swords associated with
the Scots. Andrea Ferrara was a celebrated Spanish swordsmith, of Italian descent, who killed his apprentice when he
caught him spying on his secret smithing techniques. He signed the fuller of his swords with his name. He fled to Scotland,
after killing his apprentice, where he joined the court of James V and made swords for Royalty, Nobles and Knights.
------------------------
The issue of "Who is the Rightful Chief of Clan MacTavish" is settled! Lord Lyon, Sir Malcolm Innes of Edingigh placed
a 10 year limit (for aught yet seen) on challenging the Chiefship. There are two forms of challenge, 10 and 20 years. Because
of the sufficient and overwhelming documentaion supplied to Lyon Court, by the late Dugald MacTavish, the time frame was set
to 10 years. The challenge period expired 23 July 2007. Steven MacTavish of Dunadry is the Chief of Clan MacTavish. No challenge
can be forthcoming, nor would such a challenge be heard by Lyon Court.
For confirmation of the expired challenge period, write:
The Court of the Lord Lyon
H.M. New Register House
Edinburgh
Scotland
EH1 3YT
------------
The
Saga of Dunardry
In September 1796, attorney for Lachlan MacTavish of Dunardry, James Ferrier, Edinburgh, wrote
to Simon McTavish in Montreal, telling him of the death of Lachlan and the state of the family. Simon responded in the letter
hereinafter.
Letter by Simon McTavish to James Ferrier.
Montreal. Jan’y 11th, 1797.
Sir,
A
few days ago I received your favor of the 20th Sept. last giving the unwelcome account of the death of my poor Friend Dunardry,
and the embarrass’d situation of his affairs & Family; which I regret very much. He was not deceived in reckoning
on my friendly disposition towards him, and it was my intention to have assisted him in paying up what he owed Mr. Malcolm
on his little Family property, as soon as I could with conveniency spare the money. I find from your statement that but little
has yet been paid on the account. I think you apprehend the Family may be injured in getting rid of the purchase to Mr. Malcolm—to
prevent which, if it will suit that Gentleman to wait for his money ‘till May, 1798, I will pay him at that time, in
London, with a years interest that will then fall due, and take the purchase on my own account; & perhaps at a future
day one of the sons of my deceased Friend may be in a situation to redeem it; if this proposal proves satisfactory, or in
case that Mr. Malcolm is pressing for his money—if any of the Friends of the Family can make it convenient to advance
the purchase money till May ’98—I will reimburse them at that period, & authorize you to make the necessary
arrangements—if you will undertake the management of the business; I therefore request to hear from you on this subject
by the first opportunity, and as letters in time of War are liable to miscarry it may be necessary to write in duplicate.
As your forms in Scotland are different to what they are in England—be so good as to send me a Copy of such power of
attorney as may be necessary for me to send you, if my proposal is accepted of.—
You’ll please to acquaint
the Widow that I will most cheerfully take charge of the second boy, whenever his is qualified to come into a Computing House,
&wish a proper attention may be paid to his Education—until he is 16--& if the expense will be inconvenient
for the Family I will pay it.
I remain very respectfully
Sir
Your Obedt. Humble Servt.
(Signed) Simon
McTavish
Jas. Ferrier, Esqr., Writer to
The Signet, Edinburgh
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As it appears in the above letter (1), Simon McTavish had a soft spot for his kinsman and “Friend Dunardry”,
Chief Lachlan MacTavish, and family. Simon also states the exact reason why he is offering to pay the purchase fee to Neil
Malcolm of Potalloch (Mr. Malcolm). He feels in loosing The Dunardry Estate ("the purchase") the Dunardry family (Lachlan
and His family) has suffered injury, and he is taking on the purchase himself in order to retain it--with the sole intent
of returning it to the sons of Lachlan MacTavish of Dunardry. It is of interest that Simon does not sign himself “of
Garthbeg” for he had been granted cadet Arms by Lord Lyon in 1793. Plainly, Simon recognized Lachlan MacTavish as “Dunardry”.
Simon purchased Dunardry but he never occupied it, and this was likely due to his considerable business interests
in Canada. He took John George MacTavish, second son of Lachlan MacTavish, into the North West Company, where he eventually
became a high-ranking factor in that Company. Later John George changed the spelling of his last name to match that of his
benefactor, Simon McTavish. John George later worked for the Hudson’s Bay Company where he was also considered one of
its top traders.
In 1798, Simon paid a portion of the funds for Dunardry to Malcolm of Poltalloch for the Dunardry
Estate. He later admitted to a friend that it (Dunardry) was a “hobby-horse”, noting that for him the purchase
of such land was an layout of money that was disadvantageous (2). It seems that Simon was not too serious about the land of
Dunardry, even though he had the purchase and later passed it to his heirs.
Both of Simon McTavish’s sons, William,
and Simon, Jr. died young. However, years after William McTavish passed, Simon, Jr. asked Sheriff Dugald MacTavish, now living
at Kilchrist House in Stewarton, Campbeltown, Kintyre, to assist him in clearing up his brother’s affairs in a letter
written from Ramsgate, on 22 Jan. 1823, 3 years after Dugald obtained the land back from Simon Jr., but the affairs of William
were still not settled. See the Letter from Ramsgate below. (3)
What happened was Dunardry returned to Dugald MacTavish
by disposition, since neither Simon McTavish (Sr.) nor his heirs, had completed payment on the fees of Dunardry and it was
under debt, and the estate (duthus) returned to the original owners, with a purchase price. William McTavish’s (Simon’s
son) debst, goods and the property of Dunardry, were sold at Roup (auction) under the jurisdiction of the Court in 1820 (4),
and the property again passed Sheriff Dugald who sold it to Malcolm of Poltallach, by Charter Sale of Sheriff Dugald MacTavish
of Dunardry on 3 Nov 1820. On 3 May 1823, the legal disposition of the Lands of Dunardry was settled, naming Malcolm of Poltallach
the owner, and Dugald MacTavish the seller (5). Sheriff Dugald could not have authorized the sale if he had no legal right
to do so, nor could he have sold it without being the heritor of the lands.
----------------
1-The Beaver Magazine,
a Hudson’s Bay Company publication, December 1941 Edition, Article by W.S. Wallace, “New Light on Simon McTavish”,
p 49.
2-The North West Company, Marjorie Wilkins Campbell, Toronto, MacMillan, 1957, pp 116, 117.
3-National
Library and Archive of Canada, Hargrave/MacTavish Papers, Letter Ramsgate (England), 22nd Jan 1823, Simon McTavish Jr. to
(Sheriff) Dugald MacTavish, Esq.
4-Argyll & Bute Archives, Lochgilphead, Scotland: GD43/Parcel 23/10 Copy of the
Minutes and Articles of Roup (Auction) for Dunardry in the action of Sale and Ranking against the Creditors of the said William
McTavish 17 May 1820.Argyll & Bute Archives, Lochgilphead, Scotland
5-Argyll & Bute Archives, Lochgilphead,
Scotland: GD43/Parcel 23/13 Charter of Sale of Dunardry by the said Dugald MacTavish in favor of the said Neill Malcolm, senior,
and Neill Malcolm, Junior 3 Nov 1820.
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Letter by Dugald McTavish, 29 April 1818, to David Caldwell - Edinburgh
Ugadale was yesterday favored with your
letter of the 25th and its enclosure, when I desired himself to write to you on the subject of his money matters. I was aware
of the necessity for your having his signature to show to the (Barrister). He is obliged by your attention to this matter.
I use the freedom to prefix a copy of three letters in which you will perceive I have personally a very deep interest
in the hope that will take the trouble to call in my behalf on Major Plenderleath to ascertain what are the intentions of
my young namesake in the subject. Neither of these parties have as yet returned any answer to my letters and as I understand
that Mr. Malcolm Poltalloch has made an offer for the lands, I shall feel very unhappy until I learn how it has been treated.
It is not to be supposed that a party in my situation can divest himself of partiality in his views of a transaction
of this kind. But after making every allowance for this feeling I can not for my soul conceive any good or honorable pretext
that Mr. William McTavish can urge for putting me in a worse situation as to these lands than now [,] that from which his
father voluntarily stepped forward and relieved me.
He should ask no more from me that repayment of the sum his father
advanced with interest and any expense of management that may have been disbursed. He giving credit for the (Whitsunady tenants)
with rents which latter from the date of the transaction have considerably exceeded 5 percent on the sum advanced.
Should
the young man and his friend view the matter in a different light however here cannot possibly exist any apology for his selling
to Mr. Malcolm and any other person without first putting it in my power to purchase an equal terms to secure my having an
opportunity at some future time of redeeming his property. My curators price considerable under what could have been procured
for at the time. This sacrifice was in fact considered no sacrifice such was the confidence of my friends in the generous
motives and which they imputed Mc MacTavish voluntary interposition in behalf of my fathers family. As matters are now liked
to turn out however I fear I shall have reason throughout life to curse the house in which my friends allowed themselves to
be duped by professions of friendship which though certainly sincere on the part of Mr. McTavish have only had the effect
of placing me at the mercy of a son who can not possess a spark of honorable feeling could not have hesitated for a moment
as to the line of conduct he should pursue if there were a spark of honorable feeling in his disposition.
The state
of this young mans health is said to be very bad. I therefore entreat you will not lose a moment in seeing Mr. Plenderleath
and if your find (which I have little doubt your shall) that there is a chance of my getting this property at the sum Mr.
McTavish favor me for it, I beg you will learn from Mr. Plenderleath at what price I may have it and if you can close a bargain
by with Mr. William McTavish at any sum below six thousand guineas you may do so without waiting further authority from me.
One half of the price payable at Martin Mass 1818 the other at Whits 1819. In case you get this transaction so closed tell
Major Plenderleath that I entreat he will not let any human being know that the lands are sold for some months as I have very
particular reasons for wishing to keep the transaction private.
Whatever may be the result of the negotiations I bet
you will observe similar secrecy? The sum offered by Mr. Malcolm is £6000. If it can be kept from him that I am in the field
he probably will raise it higher. Should he discern that I am looking after the purchase there will be the devil to pay as
he can afford to give will give any price rather than lose it. You will therefore take care to commit yourself to paper with
Major Plenderleath until you find that and Mr. William McTavish on the subject until your find that your doing so is to be
conclusive as otherwise the document would be instantly shewn to Malcolm as a lever to raise his offer. I have lost all faith
in the honor of these parties. It would scarcely surprise me that they should deny having received the letters of which I
enclose a copy as it might perhaps suit their views to destroy the letter from the late Mr. McTavish (1) which they cannot
peruse without feeling how inconsistent it is with their present conduct.
I shall expect to hear from your if at all
possible by return of post. You will of course conceal your knowledge of Malcolm’s offer when feeling your way as to
the price expected take care not to let it be supposed you have my intention of giving beyond £6000 until you ascertain that
a little more is known unto the balance will settle the matter. In short you must let it be understood that nothing but any
attachment to this spot would induce me to offer a sixpence above £6000 and that in asking more they will take a very cruel
advantage of my feelings towards it, and of the circumstances in which they stand in consequence of the mistaken reliance
on my curators on the assurance of a power of redemption held out to them by the late Mr. McTavish. I need scarcely add that
it will be necessary to use fair words throughout the transaction.
Yours always most truly
(signed) D.M. Edinburgh
29 April 1818
----------
Above letter retrieved from The Fonds of M.
A. MacLeod, University of Manitoba, from the collection of copies used to write of The Letters
of Letitia Hargarve.
1- The copy of the Letter from the late (Simon) McTavish in regard to his obligations/intentions
toward Dunardry, also referred to in the Letter of 27/30 April 1818 by Major Wm. Plenderleath.
This letter indicates
that Sheriff Dugald was intending to buy back Dunardry, perhaps with the intent of selling it to Malcolm of Poltalloch, and
that sale, in fact, was finalized in 1823 per records at Argyll & Bute in Lochgilphead, and the Canadian National Library
and Archives.
Ugadale is” MacNiel of Ugadale.
-Martinmass is the old Hollantide Eve, the 11th of November.
-Whits is Whit Sunday or Pentecost.
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Letter by Major Wm. Plenderleath to Dugald MacTavish – Edinburgh
Addressed to Dugald MacTavish, WS,
“Edinburgh” (WS – Writer to the Signet.)
A notation on it in the hand of Dugald MacTavish reads:
“27/30 April 1818, Major Plenderleath about Dunardry”
Postmarked as April 27 & Dugald MacTavish evidently
retrieved it on April 30.
27 April 1818
My Dear Sir:
I have to apologize for not sooner having answered
your letter to our friend William McTavish who is at the moment extremely ill in my house and cannot be spoken to about
business.
(// Very difficult to read – ink faded, it may read: “I have the copy(ies) of the letters regarding
intentions toward Dunardary, written’’) of his late father and if ever I have an opportunity of laying them before
him and aiding your views I shall be happy to do so, but I repeat that he is at this time very ill and I fear there is little
hope of his recovery.
Mrs. Plenderleath desires me to offer her kind regards to Mrs. McTavish and yourself and to
say she was much disappointed not seeing you at Hastings on a visit as your proposed.
And I am, My Dear Sir
Most
sincerely yours,
(signed) William Plenderleath.
----------------------------------
Above Letter from
the National Library and Archives of Canada, Hargrave/MacTavish Papers.
Note that William McTavish noted above, who
was indeed very ill, is Simon’s eldest son who died soon after this letter, on 4 May 1818, he was buried at Cheswich
on 9 May 1818.
The Letter(s) of obligation/intention by Simon McTavish (Sr.) were mentioned in an above Letter to
David Caldwell by Sheriff Dugald MacTavish.
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Letter from Simon McTavish, Jr. to Sheriff Dugald MacTavish.
Ramsgate 22nd Jany 1823
As you are no
stranger to the proceedings of the Creditors of my late Brother, against the Estate of Dunardry- I shall not trouble you with
a long detail of all that has taken place, in the sale of that property, and distribution of the Proceeds - Mr. John Russell
at his own suggestion soon after the death of my Brother, proposed that the usual process should be adopted, to have himself
appointed my Factor Bonus in which capacity he has acted since the 4th of May 1818 - and to this moment - a final settlement
of these affairs has not been effected - owing to some question which has arisen with the Crenan [Crinan] Canal Compy respecting
a small portion of the Estate, which was by an Agreement of Parties surveyed, so far back as August last, but to this time
no report fo the Survey has been got fro the Surbeyor, a document which was are informed, will decide the legality of the
claim set up by the Crenan Canal Compy – why so much delay is occasioned, in getting the report, we cannot imagine-
The Major & myself have written repeatedly to Mr. Russel – whose constant reply is - that Mr. Hope - has not received
the report of the Survey - by which it would appear, that this point is entirely at the discretion of the Canal Compy- with
this view, I hope you will excuse, my requesting the assistance of our friendly advice – when I was in London, some
months ago, I consulted a Mr. Grant, as to what should be done- whose advice was, that I should go down to Edinburg[h], for
the purpose of seeing that proper diligence had been used- and I regret much, that I did not follow his advice, which if it
accords with your Idea, I shall certainly do so in. the course of the ensuing Spring- My Mother &. the Majr [Major] desire
to be' kindly remembered to all with you, and to enquire what is become of John George, from whom they have not heard, since
he paid them a visit in Berkshire- I shall feel greatly obliged by your sentiments, upon what I have here written, and
I
am
My dear sir
Very truly Yours
(Signed) Simon McTavish
Dougald McTavish Esqr
---------------------------
Bracketed text added for clarity.
Ramsgate, County Kent, England, where the Pleaderleaths, and children of Simon
MacTavish (Sr.) lived.
Crenan: should read Crinan, as in Crinan Canal Company.
The Major (Majr) is William
Plenderleath, second husband to Marie Marguerite Chaboillez McTavish, who was wife to Simon McTavish (Sr.)
Simon who died,
Montreal, Canada, 1804.
Simon McTavish, Jr. died at age 25 on 9 Oct 1828 at Ramsgate, England.
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Heiritorship of Dunardry appears to have remained with the Family of Lachlan/Dugald MacTavish.
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.)
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”.
Considering the
above sting of letters on the sale of Dunardry, it appears that Sheriff Dugald MacTavish was actively persuing William
McTavish in order to straighten out a situation which left the lineal heritor (Dugald MacTavish) in some degree of consternation
over the lands, and not as Mr. Campbell has concluded. It appears quite clear that the chiefship did not go hand-in-hand with
the sale of Dunardry, nor was it disponed or abdicated. It is noted that there was an initial agreement with Simon McTavish
of Garthbeg regarding the sale of the lands, and Dugald addresses the current situation that Simon's son, William (and later
Simon, Jr.) have put him into, when he says, "This sacrifice was in fact considered no sacrifice such was the confidence of
my friends in the generous motives and which they imputed Mr. MacTavish voluntary interposition in behalf of my fathers family.
As matters are now liked to turn out however I fear I shall have reason throughout life to curse the house in which my friends
allowed themselves to be duped by professions of friendship which though certainly sincere on the part of Mr. McTavish
have only had the effect of placing me at the mercy of a son who can not possess a spark of honorable feeling could not
have hesitated for a moment as to the line of conduct he should pursue if there were a spark of honorable feeling in his disposition."
We
will show further 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.
10.
Stair's Institutions of the Law of Scotland, III, v, 35 - "Yea, any degree being presumed to be the nearest degree,
unless a nearer degree be instructed". Sir Crispin also relied on the presumption that those who do not appear to dispute
a claim do not exist appear (Macnab of Macnab) 1957 SLT (Lyon Ct) 2, per Lord Lyon Innes of Learney at 4). In
Macnab the presumption was expressed in a brocard "non apparentibus non existentibus praesumuntur", attributed,
without further specification, to "the late Sheriff Macphail" (see also Sir Crispin's article on "Heraldry" in the Stair
Memorial Encyclopaedia: The Laws of Scotland, Vol 11, paragraph 1623; c.f. the brocard de non apparentibus et non existentibus
eadem est ratio, Trayner's Latin Maxims, 148. Presumptions are acceptable in this context because a wrongfully
excluded senior stirps can reduce the matriculation within the prescriptive period.
The
Matriculation of Chief of the Clan MacTavish, 1997, was under the prescriptive period of challenge set at 10 years by
Lyon, Innes of Edingigh. The prescriptive period expired 23 July 2007.
Note:
To date, no documentation has surfaced, whatsoever, to indicate that the son's of Lachlan MacTavish disponed or abdicated
the Chiefship of Clan MacTavish.
The
Offical Clan MacTavish website is found at:
www.clanmactavish.org
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