Law of Arms

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The Law of Arms or laws of heraldry, governs the "bearing of arms", that is, the possession, use or display of arms, also called coats of arms, coat armour or armorial bearings. Although it is believed that the original function of coats of arms was to enable knights to identify each other on the battlefield, they soon acquired wider, more decorative uses. They are still widely used today by countries, public and private institutions and by individuals. The earliest writer on the law of arms was Bartolus de Saxoferrato. The officials who administer these matters are called pursuivants, heralds, or kings of arms (in increasing order of seniority). The Law of Arms is part of the law in countries which regulate heraldry, although not part of common law in England and in countries whose laws derive from English law.

1 The right to bear arms
2 The Law of Arms as part of the general law
3 Enforcement of the Law of Arms
- 3.1 The Court of Chivalry
- 3.2 The Court of the Lord Lyon
4 Arms conferring nobility
5 Assumption of arms
6 Sources

[edit] The right to bear arms

According to the usual description of the Law of Arms, coats of arms, armorial badges, flags and standards and other similar emblems of honour may only be borne by virtue of ancestral right, or of a grant made to the user under due authority. Ancestral right means descent in the male line from an ancestor who lawfully bore arms. Due authority has, since late medieval times, been the Crown or the State.

In the United Kingdom and Commonwealth the Crown's prerogative of granting arms is delegated to one of several authorities depending on the country. In England, Wales, Northern Ireland authority to grant arms is delegated to the Kings of Arms of the College of Arms, under the direction of the Earl Marshal. In Scotland this authority is delegated to Lord Lyon King of Arms at his or her own discretion. In Canada it is exercised by Canadian Heraldic Authority under the direction of the Governor-General of Canada.

In the Republic of Ireland arms are granted by the Chief Herald of Ireland. However, the legislative position of the Office of the Chief Herald of Ireland is unclear and therefore, on May 8, 2006 Senator Brendan Ryan introduced the Genealogy & Heraldry Bill, 2006,[1] in Seanad Éireann (Irish Senate) to remedy this situation. In Spain while the power to grant new arms is restricted to the king, the Cronistas de Armas (Chroniclers of Arms) have the power to certify arms.

[edit] The Law of Arms as part of the general law

While the degree to which the general law recognises arms differs, in both England and Scotland a grant of arms confers certain rights upon the grantee and his (or her) heirs, even if they may not be easily protected. No person may lawfully have the same coat of arms as another person in the same heraldic jurisdiction although in England the bearing of identical arms without differencing marks by descendants from a common armigerous ancestor has been widespread and tolerated by the College of Arms.

Although the common law Courts do not regard coats of arms as either property or as being defensible by action, armorial bearings are a form of property nevertheless, generally described as tesserae gentilitatis or insignia of gentility. Armorial bearings are incorporeal and impartible hereditaments, inalienable, and descendable according to the Law of Arms. Generally speaking (there have been very rare examples of patents in which the arms are granted to descend with some different limitation), this means they are inherited by the issue (male and female) in the male line of the grantee, though they can be inherited as quarterings by the sons of an heraldic heiress, where there is no surviving male heir, provided her issue also have a right to bear arms in their own male line.

[edit] Ireland

In Ireland the granting if Arms to Irish citizens or to those who can prove Irish ancestry is considered to be a cultural tradition which is allowed through the Office of the Chief Herald of Ireland. This Office was established under the English Crown in 1552 as the Ulster King of Arms and was converted to the Chief Herald's Office after the 1938 Constitution of Ireland.

Notwithstanding the large amount of arms, crests and badges granted from this Office since its foundation, there is a strong opinion that heraldic symbols and coats of arms that existed pre-1552 and afterwards belonged to the Gaelic tradition and as such anyone who can prove descent from an original Irish sept that used such arms has a right to use them without differentiation. This is not a view held by the current Chief Herald of Ireland and anyone who wishes to bear arms legally in Ireland should seek their own individual grant of arms.

[edit] England and Wales

In England and Wales, the Law of Arms is regarded as a part of the laws of England, and the common law Courts will take judicial notice of it as such. These dignities, as they are called, have legal standing. But the Law of Arms is not part of the common law and the common law Courts have no jurisdiction over matters of dignities and honours, such as armorial bearings, or peerages. In this respect the Law of Arms was most influenced by the civil law and may be regarded as similar to the ecclesiastical law, which is a part of the laws of England influenced by canon law, but not part of the common law.

In England the exclusive jurisdiction of deciding rights to arms, and claims of descent, is vested in the Court of Chivalry. As the substance of the common law is found in the judgments of the common law Courts, so the substance of the Law of Arms can only be found in the customs and usages of the Court of Chivalry. However, the records of this are sparse, not least because the Court never gave reasoned judgments (the Lord Chief Justice who sat in 1954 offering the sole exception to this, no doubt because of his professional background as a common law Judge). The procedure was based on that of the civil law, but the substantive law was recognised to be English, and peculiar to the Court of Chivalry.

[edit] Scotland

The Law of Arms as understood in Scotland consists of two principal parts, the rules of heraldry (such as blazoning), and the law of heraldry. In contrast to the position in England, the Law of Arms is a branch of the civil law. A coat of arms is incorporeal heritable property, governed, subject to certain specialities, by the general law applicable to such property. The possession of armorial bearings is therefore unquestionably a question of property. The misappropriation of arms is a real injury, actionable under the common law of Scotland.

[edit] Other countries

The Law of Arms of Australia, New Zealand and the other realms of the Queen are derived from those of England, though this is contested by some. The Canadian law of arms is now regulated by the Canadian Heraldic Authority but is otherwise derived from the same origin.

Under South African law, all citizens have the right to bear arms as they please, provided they do not infringe the rights of others (e.g. by bearing the same arms). The State Herald of South Africa has the power to register coats of arms to protect against misuse, but registration of arms is voluntary.

Other countries have other laws of arms, which vary to a greater or lesser extent to those in the Commonwealth Realms. However, few are as regulated.

[edit] Germany

In Germany the arms relate to a family, and so a name, and not to an individual. Since 1918 heraldic affairs are handled under the Civil Law. The right to arms is now considered an analogy to the right to names, BGB § 12. Bundesgerichtshof has in 1992 confirmed that arms are ruled by BGB § 12. Thus, if one has the right to certain arms, that right is protected by the courts. Personal arms are protected as a part of the name if the arms is officially recorded and published.

[edit] Denmark

In Denmark the unlawful use of coats of arms and other insignia of Danish and foreign authorities is a criminal offence. Non-official coats of arms are not protected. A specific rendition of a coat of arms is protected through copyright law and a coat of arms can be used as a trademark and will thus be protected by trademark law. There is no official heraldic authority in Denmark. The only way to acquire coats of arms in Denmark is through assumption.

[edit] United States

In the United States protection of coats of arms is for the most part limited to those of units of the armed forces, with a few exceptions.

[edit] Enforcement of the Law of Arms

[edit] The Court of Chivalry

Main article: Court of Chivalry

In England the officer with power to adjudicate on legal aspects of the law of arms is the Earl Marshal, whose Court is known as the Court of Chivalry. The Court was established some time prior to the late fourteenth century with jurisdiction over certain military matters, which came to include misuse of arms.

Its jurisdiction and powers were successively reduced by the common law courts to the point where, after 1737, the Court ceased to be convened and was in time regarded as obsolete and no longer in existence. That understanding was authoritatively overturned, however, by a revival of the Court in 1954, when the Earl Marshal appointed the then Lord Chief Justice to sit as his surrogate. The Lord Chief Justice Lord Goddard confirmed that the Court retained both its existence and its powers, and ruled in favour of the suit before him.

However, in his judgment (Manchester Corporation v Manchester Palace of Varieties [1955] P 133) Lord Goddard suggested that

“...if this court is to sit again it should be convened only where there is some really substantial reason for the exercise of its jurisdiction.”

In 1970, Arundel Herald Extraordinary advised Wolfson College, Oxford (who were considering whether to invoke a controversial University privilege in order to avoid paying for a grant of arms) that the effect of Lord Goddard’s dictum “must make any further sitting of the court unlikely even for a cause of instance; and the revival of causes of office, which were obsolescent even in the seventeenth century, would be more difficult still.” (quoted in “The Coat of Arms of Wolfson College Oxford” by Dr Jeremy Black The College Record 1989-90).

In 1984, Garter King of Arms declined to ask the Court to rule against the assumption of unauthorised arms by a local authority, doubting whether the precedents would give jurisdiction (A New Dictionary of Heraldry (1987) Stephen Friar p 63).

Hence, although the Law of Arms undoubtedly remains part of the law of England, and although the Court of Chivalry in theory exists as a forum in which it may be enforced, there is difficulty in enforcing the law in practice (a point made in Re Croxon, Croxon v Ferrers [1904] Ch 252, Kekewich J). The absence of a practical remedy for the illegal usurpation of arms in the law of England does not mean that there are no rights infringed, merely that it not within the jurisdiction of the common law Courts to act and the Court which is so empowered does not now sit.

[edit] The Court of the Lord Lyon

Main article: Court of the Lord Lyon

In Scotland, Lord Lyon King of Arms is the judge of the Lyon Court, which has jurisdiction over all heraldic matters. An act of the Scottish parliament in 1592 made the unauthorised use of arms a criminal offence and gave Lyon the responsibility to prosecute such misuse. Unlike the Court of Chivalry, the Court of the Lord Lyon is very much alive, and is fully integrated into the Scottish legal system.

[edit] Arms conferring nobility

In England a grant of arms does not ennoble a grantee in itself, but is a recognition of rank or status and, therefore, an authoritative confirmation of it. An armiger (one who has the right to bear arms) is deemed to be of the status of a gentleman and many of the suits in the Court of Chivalry were decided on that basis. He may of course be of higher rank, as esquire, knight, peer, or prince.

In contrast, a coat of arms in Scotland is often said to be a fief annoblissant, similar to a Scottish territorial peerage or barony. Under Sir Thomas Innes of Learney (Lord Lyon King of Arms 1945-1969), wording was introduced into every Scottish patent of arms which states that the grantee "and his succesors in the same are, amongst all Nobles and in all Places of Honour to be taken, numbered, accounted and received as Nobles in the Noblesse of Scotland". These claims, strongly championed by Innes of Learney himself and by other writers, have now found broad acceptance amongst legal commentators as correctly representing the Law of Arms in Scotland (for example, The Stair Encyclopaedia of Scots Law (vol. 11, p. 548, para. 1613)).

On the continent of Europe, there is clear difference between noble arms and burgher arms.

[edit] Assumption of arms

While in the continent of Europe assumption of burgher arms has mostly remained free, in some countries arms may not be assumed or changed at will. In particular, it is not lawful to assume arms in England and Wales without the authority of the heralds (Re Croxon, Croxon v Ferrers [1904] Ch 252, Kekewich J; see also Re Berens [1926] Ch 596 Russell J; the point having previously been argued but not decided in Austen v Collins (1886) 5 LT 903, (1886) WN 91, Chitty J). However, the assumption of arms has in every age been common, and became particularly so after the College of Arms ceased to obtain warrants to search out the illegal use of armory pro-actively by roving enquiries known as the Visitations, the last of which took place at the end of the seventeenth century. Burke’s General Armory (last edition 1884) is said to contain arms attributed to 60,000 families (The Upper Classes; Property and Privilege in Britain J. Scott (1982) p 91). But it has been calculated that there were only 9,458 armigerous families in 1798 (The Nobility of the English Gentry J. Lawrence (1824)) and a total of 8,320 grants of arms made in the 19th century (English Nobility: the Gentry, the Heralds and the Continental Context M J Sayer (1979)), which implies, albeit on an extremely rough and ready basis, about 40,000 assumptions of arms.

[edit] Sources

Major Sir Crispin Agnew of Lochnaw, "The Conflict of heraldic laws" (1988) Juridical Review 61ff

Noel Cox, "Commonwealth Heraldic Jurisdiction: with specific emphasis on the Law of Arms in New Zealand” [2005] 1(210) The Coat of Arms (3rd series) 145-162

Noel Cox, "A New Zealand Heraldic Authority?", in John Campbell-Kease (ed), Tribute to an Armorist: Essays for John Brooke-Little to mark the Golden Jubilee of The Coat of Arms (The Heraldry Society, London, 2000) 93-101

Noel Cox, "The Law of Arms in New Zealand" (1998) 18 (2) New Zealand Universities Law Review 225-256

Mark Turnham Elvins, Cardinals and heraldry, illustrated by Anselm Baker, foreword by the Archbishop of Birmingham (Maurice Noël Léon Couve de Murville), preface by John Brooke-Little (Norroy and Ulster King of Arms) (London: Buckland Publications, 1988) [Discusses the legal status of the arms of Catholic bishops in England and Scotland in light of diplomatic irregularities with the Holy See prior to 1982].