State-Level Heraldic Authorities

 
Stephen R. Hickman
 
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Stephen R. Hickman
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16 March 2007 17:52
 

I’ve been thinking about this for awhile, now, and I’ve come to the conclusion that it would be more reasonable to seek the establishment of state-level heraldic authorities, rather than one at the federal level.  My conclusion is based on three reasons:

1.)  The number of heraldic achievements, especially those for individuals, have increased to the point that it becoming increasingly difficult to avoid duplication.  State-level heraldic authorities could eliminate the possibility of arms duplication within their respective states.  The armiger could then call or click the heraldic authority of the state that he/she wishes to visit in order to avoid infringement.

2.)  The establishment of a federal-level heraldic authority will likely prove to be far more difficult, and thus far less probable, than the establishment of state-level heraldic authorities.  As more and more states establish their own respective heraldic authorities, however, increased interest in heraldry could lead to increased cooperation among them, in turn leading to a federal heraldic authority.

3.)  The tendancy for the Federal Government to transform any new agency into a bloated bureaucracy, with an ever-increasing budget, is world-famous.  Most states’ budgets, however, are more closely watched by the respective constituents, as are those in the states’ respective governments, thus reducing the bureaucratic tendancies (as well as the increase in taxes) to much lower levels than would otherwise be achieved at the federal level.

 

Therefore, the establishment of state-level heraldic authorities would serve to achieve one of the Society’s primary goals in a more probable and less expensive manner than the establishment of a federal heraldic authority ever could.

 
WBHenry
 
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WBHenry
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16 March 2007 18:25
 

Stephen,

I agree with your reasoning (and your concerns) in paragraphs 2 and 3.  I shall return to those.  However, under argument #1, you mention people "visiting" a given state.  What if someone, due to employment, family, whatever, moves to a new state?  Is it reasonable to assume Americans, who currently move from state to state as easily as crossing their living room, would "put up" with having to difference their shield every time their employer decided to transfer them?  I am not talking legalities here, but the basic American temperament.  Perhaps I am mistaken, and it would be seen as just "one more thing to do" (like getting a new driver’s license).  But an achievement is a lot more personal to people than a driver’s license.  Just wondering what your thinking on that would be (I always prefer to act by planning ahead than to react when it’s already too late.)

 

I believe there is real merit to what you propose in #2 and #3.  But let’s assume it would, indeed, be easier to acquire protection on a state-by-state basis than through a federal statute.  Perhaps a "legal eagle" out there could clarify this for me:  Let’s say one state (Wisconsin, just for the sake of argument) was the first to afford protections for heraldic achievements.  Let’s take it a step further:  They allow out-of-state residents to register as well (like getting an out-of-state hunting license during deer season).  Of course, Wisconsin, technically, can only enforce a state statute within Wisconsin.  But cannot a federal agency then, like the ICC or whoever, enforce "state reciprocal agreements" for any infringments which actually went to court from an out-of-state petitioner?  I’m thinking that corporations (such as this Society) has rights under the laws of Texas (where it is incorporated), but many (if not most) of those rights can be enforced in other states through existing federal statutes (such as copyright violations, theft of intellectual property, etc.) and recipricol agreements with other states and commonwealths.  My point is this:  Could the Society’s goals in this regard be effectively accomplished through the establishment of as few as two or three state judicatories, and then allow existing federal statutes do the rest for us?

 

I’m no logal scholar (obviously), but am I on to something or am I just running my own private snipe hunt here?

 

Pastor William

 
WBHenry
 
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16 March 2007 18:37
 

Kind sirs and ladies,

Allow me to now remove the right foot from my mouth to make room for the left.

 

Understanding Stephen’s arguments above for state authorities, I figured I might as well share my thinking as far as a federal authority would be concerned.

 

Congress, from time to time, has granted special charters to organizations, such as the Boy Scouts.  They have also waived certain anti-trust laws (think Major League Baseball).  They also, under IRS regulations, give tax breaks to non-profit corporations on the assumption that the services they provide out-weigh their "taxable potential."  (In other words, a non-profit tends to get the job down cheaper and more efficiently than the government ever could.)

 

To avoid the almost irrisistable desire on the part of the government to view heraldry as another possible source of tax revenue, why can Congress not be petitioned to grant heraldic registration to a private organization (such as the US Heraldic Registry), with enforcement included under currently existing copyright laws (or some such similar device)?

 

One thing I hate about snipe hunts:  It sure is dark out here…

 

Pastor William

 
Joseph McMillan
 
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Joseph McMillan
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16 March 2007 18:49
 

To avoid having to retype points made by various members on this subject before, please see these thread: http://forums.heraldrysociety.us/showthread.php?t=2436, which includes the report submitted by our legislative affairs committee last summer.  It addresses the various issues quite thoroughly.

Further relevant discussion can be found at http://forums.heraldrysociety.us/showthread.php?t=1256

 

We had some other discussions as well, but I think they’re inaccessible as a result of the rebuilding of the forum last year.

 

Back circa 2004, I took a crack at a model law on state heraldic registration, which I have subsequently decided is not something I would support (see the first link above), but others may find it interesting.  It’s at http://mysite.verizon.net/vzeohzt4/Seaflags/heraldry/Heraldrylaw.rtf

 
WBHenry
 
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WBHenry
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16 March 2007 18:51
 

Thanks, Joseph.  With over 20,000 posts on the forum to date, I don’t know what has been discussed before or where to locate it.  Thanks, again.

 
Stephen R. Hickman
 
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Stephen R. Hickman
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17 March 2007 00:16
 

FW57, you have discovered a flaw in my logic.  Thank you.  Now I can improve on my preliminary solution to this situation which perplexes me.  Also, I like your idea of a much smaller number of regional heraldic authorities.  Should their respective jurisdictions could coincide with, or even fall under, the Circuit Court jurisdictions, or would more geographic jurisdictions make more sense?

Joe, thank you for reminding me of what I’ve read earlier.  For the record, I would PREFER a federal or national heraldic authority.  However, I think that state or regional heraldic authorities are far more probable.

 
WBHenry
 
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WBHenry
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17 March 2007 00:32
 

Joseph,

Having read the thread "What Are We Really About?" (as you suggested), would it be your opinion that, at the present stage of the Society’s development, our time would be best spent on completing the Guidelines for Heraldic Practice (point #4) and then perhaps move on to #6 (investigating what would be necessary for creating an American armorial of some sort)?  Then, we might be in a better position to do something more concrete with the legislative agenda?  I do not wish to misrepresent your thoughts on this, just trying to clarify in my mind what I believe I read in that particular thread.

 

Pr. William

 
Stephen R. Hickman
 
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Stephen R. Hickman
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17 March 2007 00:49
 

On second thought, I’m going to own what I just posted—and reverse my position. Even though I do believe that state or regional heraldic authorities are indeed far more probable, I do prefer a federal or national authority.  But how could the situation develop that such a heraldic authority exist with the Federal Government’s sanction without politics, ideology, or (God forbid!) political correctness creeping into the heraldic authority’s practices?  Also, what would the new armiger recieve?  Would it be a grant, where the heraldic authority decides what the armiger is to bear; would it be a certificate, where the armiger submits his/her own design for review; or would it be a simple registration, where the armiger’s design is simply added to a database somewhere?  Would such a heraldic authority be a department, agency or bureau; or would it be a private organization with government contracts, such as NASA, NOAA, or McDonald Douglas?  I have so many questions that I simply can’t type them fast enough…

 
WBHenry
 
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17 March 2007 01:29
 

But, artistically, you may have hit the nail right on the head:  The PC Police.  Remember the fussing that went on with the Pope’s new coat-of-arms?  In "the Old World," heraldic tradition has the upper hand.  Governments come and governments go, but heraldry just keeps on plugging away.  However, if the US government got involved in heraldry at this point in time, there is no agreed upon American "tradition" to go with, and the aesthetics (and politics) of today would have an influence on what the government developed.  I really don’t think there can be any argument about that.  For example:  What would happen the first time a shield was granted with a Confederate flag as a charge?  Or a cross or star of David was displayed in a manner someone considered "offensive" (whether that was the intent of the bearer or not)?  I understand the issue is the protection of a person’s arms, but how do we go about that without the government then inviting itself to jump in "lock, stock, and barrel"?  Just something to think about (for what it’s worth…)

 
Michael F. McCartney
 
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Michael F. McCartney
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19 March 2007 16:10
 

Stephen—both NASA and NOAA are in fact government agencies, not private organizations with Gov’t contracts.  FWIW—not key to your arguments, but a factual error.

As Joe points out, the pro’s & con’s of Federal vs State registration have been discussed (translation—beat to death!) several times n the past.  Not that new ideas or opinions aren’t welcome or useful, but looking over the links Joe posted may avoid unnecessary rehashing.

 

The trick IMO is to create an approach that recognizes both the constitutional and practical (political) arguments for state-level registration, and the necessity for avoiding the negative impacts of 50 potentially conflicting jurisdictions, particularly for such a mobile "interstate" population.

 

One idea that I think was floated was essentially a two-level system—state registration with a national clearinghouse or database to avoid duplication.  Conceptually, you could research the national database (hopefully on-line) before submitting a registration request to your own state registry; assuming it met whatever standards your state might impose, they would register it provisionally & share that with the national database; assuming someone in another state hadn’t ace’d you out at the last minute, it would be recorded in the national database and your state so notified; then your state registration would be final.  Pre-computer, too complicated & too much work; but in an on-line world, should be managable.

 

The national registry could be in the Library of Congress, the Smithsonian, or TIOH - in any event, no one would create and finance a new heraldic bureaucracy!—would charge modest fees to cover the incremental expense,, and would aid the Federal bureaucracy in avoiding duplications of existing arms in devising new insignia for the Federal civilian & military units, and in accepting or rejecting armorial trademanrks (e,g, under existing regulations governing trademarks for alcoholic beverages).  It might or might not be possible or practical to avoid duplication with published arms from other parts of the world, given our immigrant origins.

 

Each state, assuming it elected to participate at all, could design or adapt its own particular regulations, registration porocess and enforcement and mechanism, so long as their records were sufficiently compatable with the Federal registry’s computer programming.  The only heraldic constraint would be to recognize (honor) prior registrations in other states.

 
Joseph McMillan
 
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19 March 2007 16:29
 

Here’s why I don’t think Mike’s idea will work.

Suppose my family’s been in some state—let’s say South Carolina—for 300 or so years, and consistently using the same coat of arms that whole period of time.  No one knows where my 8 x great-grandfather got it from; there’s no English or Scottish grant, it’s not in the French Armorial General.  Bolton and Crozier never got to my neck of the woods, so it’s not in their armorials either.  But there are documents down at the courthouse (one of the few old Billy Sherman didn’t burn back in ‘64 and ‘65) with seals on them bearing my arms, and a hallmarked silver tray with the arms engraved on it that my 5 x great grandfather gave to the local Episcopal Church back about 1800.  In short, these are my arms and I can prove it.

 

Now along comes Johnny New-Armiger with the same design, purely by chance.  He registers it in some dreadful nouveau kind of place like, say, California (shudder).  Zip, it goes into the national database.  Meanwhile, South Carolina adopts an armorial registration law, and the state historical society goes around beating the bushes for everyone to bring out their shields and register them, and I try to, and—uh, oh—the state tells me I have to change my arms because this nobody (I’m speaking as Old South Carolina Gentrie here), this nobody from nowhere claims he registered them first.  I’m outraged.  In good old SC fashion, I rally my neighbors against this federal intrusion into our affairs.  We shell the poor Park Service guys at Ft. Sumter into submission, and bang, a new Civil War.

 

My preferred solution:  state legislatures enact minimalist laws stating that local courts will accept tort actions in cases in which one person claims another has usurped his arms (i.e., the state gives recognition to the notion that there is such a thing as a coat of arms and that people can have protectible rights to them).  The court will give injunctive relief to the party that can prove first use of the arms; money damages only if he can show the usurpation was willful and caused him tangible harm.  All costs to be born by the parties—no expense to the state.  Publication of the arms in a book, or a roll of arms, or evidence on an old deed, or whatever, can be adduced to support the claim of first use.  If someone wants to create a national database, that can be cited, but it isn’t dispositive unless it shows first use.

 

This is the old authentic medieval way of resolving these issues (see Scrope v. Grosvenor), before absolutist British monarchs (the Tudors and Stuarts) started sticking their bureaucrats’ (heralds’) noses into these matters.  Back then, the case would have been brought before the Court of Chivalry; in my scenario, it’s brought before the local small claims court or the equivalent.  Mutatis mutandis.

 
arriano
 
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arriano
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19 March 2007 16:40
 

Joseph McMillan wrote:

He registers it in some dreadful nouveau kind of place like, say, California (shudder).


What the…. HEY!

 
Stephen R. Hickman
 
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Stephen R. Hickman
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19 March 2007 18:51
 

Very insightful, Joe!  Thanks!  Is that the "Best Practice" approach, or is there another?

FW57, thank you for reminding me about the P.C. Police.  There’s a few very P.I. that I’d like to do about them, but I digress…

 

Michael, thank you for correcting me.  I had misunderstood NASA’s and NOAA’s respective relationships with USGOV.

 
Andrew J Vidal
 
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Andrew J Vidal
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19 March 2007 21:45
 

Is that how the German system works?  I’m under the impression that once your arms are registered and published in a roll of arms by one of the heraldic societies your arms are then protected by civil law correct?  I think that would be a simple, yet effective way for us to model our own system.  No government interference yet legal protection of what we spend a lot of time creating!

 
David Pritchard
 
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19 March 2007 22:33
 

Andrew J Vidal wrote:

Is that how the German system works?  I’m under the impression that once your arms are registered and published in a roll of arms by one of the heraldic societies your arms are then protected by civil law correct?  I think that would be a simple, yet effective way for us to model our own system.  No government interference yet legal protection of what we spend a lot of time creating!


You did not specify to whom you were replying? Did I miss something? To answer your question, I believe that once your arms are registered with a state recognised heraldic roll and published, this action constitutes a recognised proof to a particular coat-of-arms as an apendage of one’s name in German civil law. One would still need to bring a case armorial usurpation to civil court and submit the registration as evidence.

 
Andrew J Vidal
 
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Andrew J Vidal
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19 March 2007 22:45
 

Joseph McMillan wrote:

My preferred solution:  state legislatures enact minimalist laws stating that local courts will accept tort actions in cases in which one person claims another has usurped his arms (i.e., the state gives recognition to the notion that there is such a thing as a coat of arms and that people can have protectible rights to them).  The court will give injunctive relief to the party that can prove first use of the arms; money damages only if he can show the usurpation was willful and caused him tangible harm.  All costs to be born by the parties—no expense to the state.  Publication of the arms in a book, or a roll of arms, or evidence on an old deed, or whatever, can be adduced to support the claim of first use.  If someone wants to create a national database, that can be cited, but it isn’t dispositive unless it shows first use.

This is the old authentic medieval way of resolving these issues (see Scrope v. Grosvenor), before absolutist British monarchs (the Tudors and Stuarts) started sticking their bureaucrats’ (heralds’) noses into these matters.  Back then, the case would have been brought before the Court of Chivalry; in my scenario, it’s brought before the local small claims court or the equivalent.  Mutatis mutandis.


I was typing out loud again!  I was reading over this and thought it reminded me a little of the system in Germany where there’s little government interaction but once arms are published they’re protected.