Spanish/Mexican Law

 
snelson
 
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snelson
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13 April 2015 22:02
 

Hi all,

I wanted to post a short reply to a message in another thread (Alternative Heraldic Headgear), but since it doesn’t have anything to do with headgear I thought I’d start a new thread:
Quote:

Originally Posted by Michael F. McCartney…we were under British rule prior to independence, so it was British laws, values and norms that we either retained or rejected.
Quote:

Originally Posted by Joseph McMillan…An interesting statement coming from someone living in California. Mike’s neighbors might ask, as Tonto is said to have asked the Lone Ranger, "Who’s this ‘we,’ Kemosabe?"

I’ll give you that the dominant values and norms in the US derive from 18th century British values and norms, but as for law, in fact a great deal of Western states’ law on matters like marriage, family, inheritance, and real estate is heavily influenced by Spanish law, notably the concept of community property.
Quote:

Originally Posted by Michael F. McCartney…Joe- while it’s true that in some subjects California and other states in the SW retained Mexican law…e.g. land and water rights…

One Mexican law that I’m glad wasn’t retained in California law was the 1826 law that, among other things, barred the public use of some personal heraldry: http://cdigital.dgb.uanl.mx/la/1080120377_C/1080008405_T3/1080008405_76.pdf#page=2

According The Mexican Nobility at Independence by the historian Doris Ladd:
Quote:

...to meet the public demand to erase all visible links with the Spanish past, the congress directed the nobles to destroy all public displays of coats of arms…blank shields and ovals on ornate colonial buildings still testify to the mutilation that early Mexican nationalism prescribed to erase the Spanish past.  Letters to the editor [of the ‘Aguila mexicana’ newspaper] in 1826 chided those nobles who were slow to remove their arms, castles and lions rampant.  Such displays, one writer complained, insulted liberty, for anything that recalled Spain was an insult to Mexico…(pages 160-161)


As a westerner and a fan of Spanish heraldry, it is probably no surprise that I am very sympathetic to the notion that modern American heraldic customs should at least partly take into account the heraldic traditions practiced by the European colonists residing in that particular state/region before independence.

 
mghofer
 
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mghofer
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14 April 2015 00:51
 

I think the law you reference brings up a worthwhile question (and if this is off your original topic, please let me know). How much should a nation shaking off the rule of a foreign power keep of that foreign power and how much should it blaze a new path? New nations are not blank slates. As it relates to heraldry, how much of foreign "rules" should we hold inviolable?

 
Kathy McClurg
 
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Kathy McClurg
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14 April 2015 09:27
 

mghofer;104018 wrote:

I think the law you reference brings up a worthwhile question (and if this is off your original topic, please let me know). How much should a nation shaking off the rule of a foreign power keep of that foreign power and how much should it blaze a new path? New nations are not blank slates. As it relates to heraldry, how much of foreign "rules" should we hold inviolable?


I’m wondering if the question of holding foreign rules "inviolable" is different than the idea that, related to heraldry, which "foreign rules" actually help define heraldry and therefore should remain practice vs. which ones are ones which were developed based on the cultural norms of the foreign country and are still compatible with the cultural norms of the "new" country.

 
Michael F. McCartney
 
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Michael F. McCartney
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14 April 2015 11:44
 

Seb - I didn’t know about the Mexican anti-heraldry law you cited.  I wonder if it’s still in effect? or if not, when/how/why it was repealed - e.g. was repeal specific to that law, or a blanket repeal of laws by a subsequent regime, or just died on the vine from neglect?

In any case, as you say, glad it’s not one we kept if it was still in effect at the time of the Treaty of Guadalupe-Hidalgo (and if so, an ironic name!)  That treaty guaranteed American citizenship to those Mexicans who remained in the newly American territory, but also allowed them to retain their property, language and religion - I don’t recall the specific wording but am quite sure it didn’t say anything about heraldry!

 

I would think that those formerly Mexican /newly American families would have been in similar condition, heraldically, to those French citizens who came to America during the period that heraldry was outlawed following the French revolution.  That prohibition didn’t follow them here, any more than the tumbrel and gúillotine; nor IMO would any Mexican (or other foreign) law not retained by treaty or enacted by American federal, territorial or state legislation.

 

They would have been (and their descendants here still would be) free here to adopt new arms, or to resurrect old arms their families had actually used in the old country, subject only to excision of any nobiliary froo-froo not appropriate here; just like the rest of us wherever our ancestors came from.

 

Which does raise the question of how many / which actually did so (either approach)?  More heraldry, more eye candy!

 
kimon
 
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kimon
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14 April 2015 13:39
 

Was this law in Mexico sort of like the decree by Bernardo O’Higgins in Chile? O’Higgins was like the George Washington of the Chilean Independence and by a decree of March 22, 1817 he ordered the abolition of nobiliary titles and the destruction of all personal heraldry. However, some families retained their arms in secret and by the early 20th century the interest in genealogy and heraldry started to flourish again in the country

https://books.google.com/books?id=1PlGAQAAMAAJ&lpg=PA103&ots=J5w3-rG00R&dq=decreto marzo 1817 o’higgins&pg=PA102#v=onepage&q&f=false

 
Michael F. McCartney
 
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Michael F. McCartney
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14 April 2015 16:25
 

My Spanish is a bit rusty (an understatement!) but the wording only seems to require removal of shields, arms and insignia of nobility from doors (doorways?) opening on the street., to be sold with the proceeds going to their former vassels - or at least that’s how I read it, FWTW.  Perhaps SKS with a better grasp of Spanish, especially of that period, could clarify, confirm, or more likely correct my reading.

Like GW, O’Higgins was IIRC of an armigerous family.  In Chile, I would speculate that the use and display of arms was pretty much limited to the upper class, and that they didn’t support the revolution - but again, SKS more knowledgeable can confirm or correct.  In the English colonies, many of the leaders of the revolution used arms so, whatever arms may or may not have signified socially, they weren’t limited to Tories.

 

Whatever O’Higgins intended re: arms, his comments re: citizens seemed as far as I can tell pretty much spot on to me!

 
kimon
 
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kimon
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14 April 2015 16:52
 

Chile and its history is a particular area of focus for me since my family, on my mother’s side, is one of the founding families of the country.


Michael F. McCartney;104035 wrote:

My Spanish is a bit rusty (an understatement!) but the wording only seems to require removal of shields, arms and insignia of nobility from doors (doorways?) opening on the street., to be sold with the proceeds going to their former vassels - or at least that’s how I read it, FWTW.  Perhaps SKS with a better grasp of Spanish, especially of that period, could clarify, confirm, or more likely correct my reading.

The position of O’Higgins was the full abolition of heraldry as he saw it being related to the monarchy he was overthrowing.


Quote:

Like GW, O’Higgins was IIRC of an armigerous family.  In Chile, I would speculate that the use and display of arms was pretty much limited to the upper class, and that they didn’t support the revolution - but again, SKS more knowledgeable can confirm or correct.  In the English colonies, many of the leaders of the revolution used arms so, whatever arms may or may not have signified socially, they weren’t limited to Tories.

The upper class overwhelmingly supported the revolution, though most of the title-holders were against the abolition of titles. The Count of La Conquista, Mateo de Toro Zambrano, was the first President of the First Government Junta.


Quote:

Whatever O’Higgins intended re: arms, his comments re: citizens seemed as far as I can tell pretty much spot on to me!

It was as a direct result of O’Higgins’ actions that heraldry all but died in Chile.

 
snelson
 
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snelson
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14 April 2015 22:30
 

Hi Mike,

I’m not 100% certain, but I think this law of 1826 applied to those (relatively) newly minted Mexican citizens who held Spanish titles of nobility.  I’m not sure, but I don’t think it applied to those armigerous Mexicans who would have been considered commoners under the Spanish system (nor to those who would have been considered hidalgos/untitled nobles under the Spanish system).

 

Consequently I doubt it had much effect in those part of Mexico that are now in the United States.  Although those territories contained many Spanish commoners and some communities of hidalgos during the colonial period, I don’t think any titled nobles lived there permanently.  Certainly there were a number titled Spanish nobles who were “boots on the ground” in places like Louisiana, Florida and Texas serving as government and military officials, and at least one who died and is buried in New Mexico (the first Marqués de la Nava de Barcinas).  And certainly there were many tracts of land in these territories owned by titled individuals, but I don’t think any of them set up permanent house keeping and started families in the lands of the “Mexican Cession.”

 

For example, I seem to recall that in 1804 King Charles IV of Spain asked the colonial officials in Mexico City to nominate residents they considered worthy (or who had a high enough income) to receive new titles of nobility to celebrate the marriage of Prince Ferdinand to Maria Antonia of Naples. As far as I can recall, this survey didn’t identify anyone "worthy" enough anywhere in California, New Mexico, Texas or those other parts of New Spain/Mexico that are now in the USA.

 

Interestingly, the situation has reversed itself slightly over the past few centuries, and now I think there are a few representatives of some of the oldest Spanish noble families and Grandees who have been born in the American southwest.  For example, the son and heir of the Spanish Marqués de Castel Moncayo (a title originally granted in the seventeenth century), Don Manuel Falcó y Girod, was born in 1964 just down the road from me in Woodland, California (the arms are en campo de gules, una cruz de veros, de plata y azur).

 

I’m not sure when or if this law was repealed, but I would guess that it was repealed at least by the time of the reign of Emperor Maximilian…here is a link to an armorial document issued during his reign: http://www.casaimperial.org/documents/Ramirez de Arellano.jpg

 

Interestingly the recipient was a relation of the late Peter Drummond-Murray of Mastrick, and you can see the arms of Ramirez de Arellano (parted per pale Gules and Or, three fleurs-de-lys, two and one, all counterchanged) in both achievements: http://heraldry-scotland.com/copgal/displayimage.php?album=search&cat=0&pos=3

 
snelson
 
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snelson
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20 September 2015 13:17
Quent
 
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Quent
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30 September 2015 17:24
 

As I recall, every American state (except Louisiana)  has a ‘reception statute’ or similar constitutional provision.  Here is the reception statute for California:

2005 California Civil Code Sections 22-22.2 DEFINITIONS AND SOURCES OF LAW

CIVIL CODE

SECTION 22-22.2

 

22.  Law is a solemn expression of the will of the supreme power of

the State.

22.1.  The will of the supreme power is expressed:

(a) By the Constitution.

(b) By statutes.

22.2.  The common law of England, so far as it is not repugnant to

or inconsistent with the Constitution of the United States, or the

Constitution or laws of this State, is the rule of decision in all

the courts of this State.

 

Regarding heraldry, the argument would be that traditional English customs and practices would be part of the common law.

 
Michael F. McCartney
 
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Michael F. McCartney
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30 September 2015 21:55
 

I’m not sure that English heraldic customs are technically part of English common law, but rather civil law; but there are others here better able to address that legal issue.

But I think it’s fair to argue the applicability of English heraldic practices here by analogy to common law.

 

Common law was IIRC applicable in the colonies only to the degree that it met the conditions and needs of those colonies.  Common law that was not suitable here didn’t apply here.  I’m sure there were disputes in applying this criteria in specific cases, but that was the general rule AFAIK.

 

And common law was merely the default where not superseded by our constitutions and laws.

 

So just as the general customs and practices of English society generally were retained here where (but only to the extent) they were not inconsistent with the small-r republican values that distinguish us from the Brits, likewise our heraldry.

 

Here, even the upper levels of our resident colonial society were mostly commoners; colonial nobility was generally limited to the occasional colonial Governor with a peerage title who came, served their time, and returned to the UK;  and the odd baronetage.

 

The Revolution and independence further pruned any nobiliary entitlements and trappings in our society, and therefore in our heraldry.  While many of our founders used arms, almost none of them were nobles (peers) - the only one I can think of was "Baron" von Steuben (whose title was apparently iffy) but when he asked Congress to recognize his title after the war, they politely declined the request as being incompatible with a republic.  Thus our nearly universal custom among those whose role in our founding might warrant emulation was arms with no nobiliary trappings.  And any titled immigrant seeking citizenship was (still is AFAIK) required to renounce that title as a condition of naturalization; and thus also any heraldic references to the renounced nobiliary status.

 

And of course any requirement or expectation that arms be officially granted or regulated - never really enforced in colonial times - totally disappeared with independence.

 

That was the pruned version of English heraldry that set the norm for American heraldry.

 

As additional states and territories were added to the Union, such as California as noted above, English common law (except in Louisiana) became their fallback when not trumped by federal or state constitutions or law.  Similarly, our heraldic traditions, essentially English pruned of those aspects seen as incompatible with Republican values, set the heraldic sidebars for the new territories and states.

 

Nothing in those traditions required changes in existing heraldic traditions in the newly acquired territories except for the same pruning of any nobiliary trappings and any foreign oversight that altered our English-based colonial heraldry.

 
snelson
 
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snelson
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30 September 2015 22:46
 

I think you are correct Mike.  I think the English law of arms was/is part of civil law rather than common law.

From what little I know, various treaties by which the United States grew and acquired new territories sometimes made reference to the property rights of the different peoples who resided in these lands and who became new residents of the United States.  For instance, a section or sections of the Treaty of Guadalupe Hidalgo dealt with protecting and recognizing the property rights of Mexican nationals living within the new boundaries (I think).

 

I’m no lawyer, but I’ve wondered about those students of heraldry who view a coat of arms as a form of property and how they may view these treaties.  As we have seen, Mexican law pre-Guadalupe Hidalgo limited the public use of coats of arms by some.  But I think the United States acquired some lands directly from Spain, such as Florida and Puerto Rico.  I wonder if any of the treaties by which the US acquired Florida or Puerto Rico obligated the Federal Government to recognize any of the property rights or legal privileges of their former Spanish residents and their descendants.  I wonder if any of these treaty provisions, if they exist, could be seen as extending to the arms of (non-noble) Spanish armigers.  Unfortunately I am ignorant of the history of these places.

 

Of course, the answer to such a question would have no bearing on me personally…but it is interesting to think about.

 
Michael F. McCartney
 
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Michael F. McCartney
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01 October 2015 20:25
 

Legally, since in the US there is essentislly no legal regulation or official recognition of personal or familial heraldry, I doubt that a treaty obligation to respect existing property rights would be seen by our government and courts as extending legal protection or recognition to arms.  However, just as we view our heraldry as reflecting general national values and norms in other areas (e.g. inheritance in cases of adoption or illegitimacy) I think we would view the protection of existing arms as morally entitled to the same protection as other property.

The only exception I can see to the above argument (moral but not legal recognition) is for copyright of particular artistic renderings of arms, and trademark protection for arms used as trademarks; both of which would be entitled to the same protection as non-heraldic artwork and trademarks, no mo, no less.

 
snelson
 
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snelson
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01 October 2015 21:52
 

Quote:

I doubt that a treaty obligation to respect existing property rights would be seen by our government and courts as extending legal protection or recognition to arms.

You are probably correct…an examination of the treaties themselves would presumably clarify the situation.