Legal rights: was Order of Americans of Armigerous Ancestry

 
Joseph McMillan
 
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Joseph McMillan
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23 February 2008 16:31
 

Michael Y. Medvedev;54638 wrote:

Theoretically I wonder if it is absolutely impossible to get some degree of protection for assumed arms in a court of justice just because they are de facto identifyers.


The details are buried somewhere in some other thread, but as I’ve mentioned before there is one US court case that decided exactly this:  Orsini v. Eastern Wine Corporation, back in the 1940s.  Maybe the only thing that’s kept other similar decisions from being made is that no one has brought a lawsuit for armorial infringement.  Of course, Orsini was able to show actual damages—Eastern Wine was making money off his armorial identity.  Simple usurpation might not suffice, but who knows?

 
Chris W.
 
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23 February 2008 17:17
 

Fred White;54635 wrote:

\But fundamentally, if the law doesn’t recognize a right, it doesn’t exist. Since we in the U.S. have no legal apparatus that even acknowledges the enterprise of heraldry (other than as a function of freedom of expression, I guess), it’s a perfectly appropriate nod to the skeptics to keep the inverted commas around "‘right’ to assume arms."


Fred,

 

Respectfully, this is not correct.  We have a permissive, not an imperative, law system in the US: we have a legal right to do whatever we want, as long as it contradicts no law, and does not infringe one of the enumerated rights of another.

 

The Ninth Amendment of the Constitution states "the enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people."

 

We have a legal right to bear arms…I guess I should say armorial elements to avoid Second Amendment discussion smile...because it is not specficially illegal for us to do so.

 

Chris

 

edited: Joe beat me to it!

 
Wilfred Leblanc
 
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23 February 2008 18:00
 

Chris W.;54648 wrote:

The Ninth Amendment of the Constitution states "the enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people."


We might be getting into "chicken or the egg" territory, but I would say that, be the 9th Amendment as it may, until the law has occasion to affirm or deny a particular right hypothetically "retained by the people," what we’re talking about is a presumption to having a right, not having a right, per se.

 

Of course, I lack a legal education, so this is purely a lay perspective on semantics.

 

Anyway, let me take this occasion to reaffirm that I am philosophically on the side of claiming that we do have the right to assume arms, that the Continental model is to be preferred to the U.K. model, and that I doubt our legal system would ever conclude otherwise. The fact remains, however, that a great many Americans are clearly determined to view armigerous status as an implicit claim to noble status (or simply social superiority), and since the courts are not likely to take up the matter in the absence of an intellectual property dispute, there isn’t likely to be any compelling reason for them to accept our arguments, so we just have to soldier on and turn the other cheek inwardly.

 
Wilfred Leblanc
 
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23 February 2008 18:03
 

Michael Swanson;54639 wrote:

So, while government regulation is theoretically good for an ordered and controlled practice, I think such a practice is not the ultimate goal that a country should strive for.


Precisely. The goal should be widely-disseminated heraldic literacy.

 
Wilfred Leblanc
 
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23 February 2008 21:41
 

eploy;54620 wrote:

Lineage societies are closed to all but those with the requisite lineage and who have been invited to join.  This normally requires nominations from at least two other members…. not unlike an order of chivalry.  Orders are intended to be noble corporations or at the very least, elite bodies.  Lineage societies are America’s answer to orders.


Sorry to have delayed responding to this, Edward. This is off-topic, so if anyone wants to continue this discussion, maybe it should be moved.

 

Anyway, I think there are a lot of lineage societies that invite all comers with the requisite ancestry to join, and have no nomination requirement, but there are definitely some with a rigorous vetting process. All of them would be flattered by your description of them as "America’s answer to orders [of chivalry or nobility]," though, because I think that is the self-concept some of them have. And I happen to think that it’s a reasonable self-concept, depending on what group of ancestors is being celebrated, and whether or not the emphasis is on "America’s answer." Remember, no one gets a prenominal, a postnominal, or any other honorific or civil privilege from belonging to a lineage society, which is the way it should be. The only reward is the membership itself, which in some cases entitles you to go to a ball once or twice a year and allows you to wear a pretty decoration on your tuxedo at those times, but in other cases entails nothing more romantic than a bimonthly meeting in the conference room of a nursing home or the local public library. The pomp and ceremony only justify the quasi-chivalric or nobiliary self-concept in tandem with the charitable works, which in some cases are quite extensive. They tend to focus on historical preservation rather than alleviating physical suffering, but still, historical preservation is a significant public service that alleviates mental poverty. Without the charity and the commemoration of shared, historically significant ancestry, the pomp and ceremony are just puffery, but taken together, I think the whole suggests that the perception that these organizations have a quasi-chivalric or nobiliary character is not misplaced.

 
eploy
 
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eploy
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23 February 2008 22:15
 

Fred White;54652 wrote:

Sorry to have delayed responding to this, Edward. And this is off-topic, so anyone wants to continue this discussion, maybe it should be moved.


Fred, thank you for your posts.  I have enjoyed reading this thread.

 
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23 February 2008 22:40
 

Fred White;54635 wrote:

Philosophically, I am on the side of free assumption. Don’t get me wrong. But fundamentally, if the law doesn’t recognize a right, it doesn’t exist. Since we in the U.S. have no legal apparatus that even acknowledges the enterprise of heraldry (other than as a function of freedom of expression, I guess), it’s a perfectly appropriate nod to the skeptics to keep the inverted commas around "‘right’ to assume arms."


Fred, once again you raise an interesting point.  wink

 

I recall debating a similar issue with James Hyder, an attorney and as I recall an adjunct professor of law somewhere in the adventure state of Georgia, on rec.heraldry about five years ago.

 

Here is my synopsis of our debate:


<div class=“bbcode_indent” >
"You have won me over to your way of thinking, at least with regard to

the issue of "whether private arms are ‘property’ in the US".  The

answer is an unfortunate "no".  (Sorry gang, I really tried to argue

the point).  I also appreciate why this is so:  private arms in the US

are not protected by any specific law, and there is no government

authority or mechanism to enforce their protection except for

copyright and trademark protection or some similar protection, which

is extremely limited.  The protection offered is, of course,

incidental for the sake of heraldry and essentially leaves private

heraldry in the US with little or no protection.

 

 

Unfortunately, using this same rationale, private granted and assumed

arms in England, Wales, Northern Ireland, and the rest of the

Commonwealth where HM Elizabeth II is Head of State (but excluding

Scotland) are not much better off.  While there is a heraldic

authority to grant arms (i.e., the College of Arms) [ Actually I have since learned that it is the kings of arms that grant arms], there is

essentially no authority to prevent the assumption or usurption of

arms.  (I recall estimates of 50-60,000 cases of bogus or misused

heraldry in England, Wales and Northern Ireland).  The Court of

Chivalry is essentially defunct.  Also given the current political

climate in the UK, the heralds are not likely to actively enforce the

rights of grantee armigers at the current time.  In this way, assumed

arms in the US and granted arms in England, Wales, and Northern

Ireland are on equal footing.  So arms in England, Wales, Northern

Ireland, Australia, New Zealand, etc. are not "property" in a strict

legal sense, although in a moral sense they remain so.

 

 

Fortunately in Scotland, there is a heraldic authority that not only

grants and records rights to arms, it also has the power to enforce

the right to arms (i.e., a person living in Scotland cannot simply

assume or usurp the arms of another).  This means only arms properly

granted or else recorded in Scotland are truly "property" since they

are recognized and protected as such. ...."
</div>


The discussion goes on and on, but that is the basic jist.

 

Now the issue of whether we have a right to arms is slightly different.  I’d have to read and ponder the literature on this point, but I find Joseph’s argument convincing.

 
Michael Swanson
 
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24 February 2008 00:14
 

Gosh, this is complicated.  Edward, is the following an extension of your argument?

If person A has a right to have/do X, then others have an obligation not to interfere with A having/doing X.  If person A is free to have/do X, then nothing prevents A having/doing X.

 

I think there are several related concepts here:


<ul class=“bbcode_list”>
<li>Legal right (defined in law as obligation not to interfere, e.g. usurpation)</li>
<li>Moral right (from ethics)</li>
<li>Freedom (nothing prevents A having/doing X, moral, legal or otherwise)</li>
</ul>


The Scots possess both a legal and moral right to bear arms, because the law creates the legal right and the cultural practice creates the moral right.  The legal piggybacks on the moral.  However, not every Scot is (practically) free to bear arms because of cost, but they are legally free to do so if they can afford it.

 

In the USA, we have no defined legal right to bear arms, but like the Scots we have a moral right based on tradition (which obliges others not to steal arms), and we are completely free to bear arms.

 
Michael Y. Medvedev
 
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24 February 2008 01:55
 

Dear Joseph: my belated thanks for your very interesting comment/information.

Dear Michael: your list of rights/freedoms is handsome but it is hardly effective without adding the right to have one’s arms protectable from usurpation, at least by the right to say without hesitation that usurped arms are "wrong", "bogus" and, especially, "contrary to the law [of arms]".

 
Joseph McMillan
 
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24 February 2008 09:15
 

Michael Swanson;54658 wrote:

The Scots possess both a legal and moral right to bear arms, because the law creates the legal right and the cultural practice creates the moral right. The legal piggybacks on the moral. However, not every Scot is (practically) free to bear arms because of cost, but they are legally free to do so if they can afford it.


No, the Scottish case is the perfect exemplar of a country where people in general do not have the right to bear (heraldic) arms.  Bearing arms in Scotland is a privilege extended to a relatively few people.

 

The only sense in which bearing arms in Scotland is a right is that arms are treated as a form of incorporeal property.  Thus a person who already possesses arms has a right to use them, and his heirs according to the Scottish law of arms have a right to inherit them, and these rights are enforceable in court.

 

But a person who doesn’t already have arms has no abstract right to have them.  He is actively forbidden to bear them until and unless he is granted arms by Lord Lyon as a "virtuous and well-deserving" person.  Whether someone is V & WD is entirely up to Lord Lyon, as is the design of the arms ultimately granted.

 

A parallel would be to imagine that early US laws on the sale of public lands had a provision that lands would be sold only to those who met some social standard, and that the agent at the local land office would decide in each case, without possibility of appeal, whether a particular purchaser was worthy.  Once a buyer got over that bar, then he would have a judicially enforceable right to his property, and so would his heirs, but one couldn’t describe such a system as embodying a general right to own property.

 

In the United States, we have under present conditions probably as absolute a right to bear heraldic arms as exists anywhere.  Rights are enjoyed in two ways:  as against the government, and as against each other.

 

Regarding the first, our right to bear arms as against the government:  the federal government clearly has no power to interfere with our personal use of arms.  Arguably the state governments could, but equally arguably they could not.  (The argument for:  that regulation of heraldry is an intrinsic state function; the argument against:  that bearing of arms is a form of protected free speech.)  There are some limited exceptions, of course, mostly having to do with the use of one’s arms as a registered trademark.

 

On balance, in my opinion, this is a good thing.  I would rather not have a government agency telling me whether I can have a coat of arms or what it must look like.

 

On the other front, enjoyment of our right to bear arms as against our fellow citizens:  I would argue that the right to bear arms falls into the same situation as most other rights.  Protection of personal arms against usurpation must be based on the principle that "my right to swing my arm ends where my neighbor’s nose begins."  It’s a matter of civil rather than criminal law (or, to use Michael Medvedev’s terminology, private rather than public law).  Our argument should be that usurpation of arms is not a crime, as it is in Scotland, but a tort, justiciable in civil court the same as any other infringement of personal rights.

 

There are, of course, some areas in which statute specifically injects the government into the protection of our rights against infringement by our fellow citizens.  The prohibition against racial discrimination in access to places like hotels and restaurants comes to mind.  The right not to be punched in the nose is another.  But only a fanatic would think that protection of heraldic bearings rises to the level of being able to call in the police and the U.S. attorney.

 

Anyway, a long discourse, hopefully one that sheds some light on how we think about this issue.

 
eploy
 
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24 February 2008 11:38
 

I tend to agree with Joseph’s argument (what?!?!).  wink


Joseph McMillan;54670 wrote:

I would rather not have a government agency telling me whether I can have a coat of arms or what it must look like.


I basically agree here as well:  there is no need to apply an English or Scottish model of heraldry to the American context.  It’s far too rigid, class-ridden and may have some undesirable results as stated above.

 

I remain, however, a big fan of the more fluid South African model:  anyone can assume arms, but only arms registered with the BoH enjoy legal protection.  This system offers the best of both worlds.  It offers the freedom to simply assume arms without bowing to some government agency.  On the other hand, it offers those so inclined the option of registering arms and thus enjoying a recognized property right to their arms - albeit limited to South Africa.

 

Personally, I don’t want the government to (over)regulate heraldry, but I wouldn’t mind if our government specifically recognized heraldry perhaps as its own species of intellectual property.

 
George Lucki
 
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24 February 2008 16:09
 

Fred White;54652 wrote:

Sorry to have delayed responding to this, Edward. This is off-topic, so if anyone wants to continue this discussion, maybe it should be moved.

Anyway, I think there are a lot of lineage societies that invite all comers with the requisite ancestry to join, and have no nomination requirement, but there are definitely some with a rigorous vetting process. All of them would be flattered by your description of them as "America’s answer to orders [of chivalry or nobility]," though, because I think that is the self-concept some of them have. And I happen to think that it’s a reasonable self-concept, depending on what group of ancestors is being celebrated, and whether or not the emphasis is on "America’s answer." Remember, no one gets a prenominal, a postnominal, or any other honorific or civil privilege from belonging to a lineage society, which is the way it should be. The only reward is the membership itself, which in some cases entitles you to go to a ball once or twice a year and allows you to wear a pretty decoration on your tuxedo at those times, but in other cases entails nothing more romantic than a bimonthly meeting in the conference room of a nursing home or the local public library. The pomp and ceremony only justify the quasi-chivalric or nobiliary self-concept in tandem with the charitable works, which in some cases are quite extensive. They tend to focus on historical preservation rather than alleviating physical suffering, but still, historical preservation is a significant public service that alleviates mental poverty. Without the charity and the commemoration of shared, historically significant ancestry, the pomp and ceremony are just puffery, but taken together, I think the whole suggests that the perception that these organizations have a quasi-chivalric or nobiliary character is not misplaced.

 


Thank you for your cogent response. Lineage societies make good sense and I would point out that such associations promote over the course of generations the values of respect for heritage and a disposition toward public service. In that sense the ones that set the bar highest in terms of both historical lineage and in terms of public (or charitable) service are the closest the United States has to preserving some of the values shared by European nobilliary associations. I fail to understand the criticism of such groups based on their exclusivity - it is their exclusivity that allows them to clearly focus their efforts on distilling the values of heritage and service - honouring and supporting traditions of service and leadership within families.

 

It si the same with heraldry. It is nice to see people assuming arms - symbols for themselves and their heirs. In the first generation it nmay simply be a pretty symbol or one that embodies the values of teh armiger - but for the grandchildren these will represent both their fathers’ and grandfather’s virtues, vices and accomplishments and be as a result that much more valuable - it will represent a heritage and not merely an identity or a symbolic self-portrait. I think that the creation of such traditions is valuable and I commend those who assume arms with their heirs in mind and in the hopes that the same values guide and inspire them. It is a welcome antidote to a world preoccupied with "me" and "now" and rebalances things to recall that we are the next in a lineage we will hopefully be able to continue.

 
Wilfred Leblanc
 
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24 February 2008 19:42
 

eploy;54671 wrote:

I remain, however, a big fan of the more fluid South African model:  anyone can assume arms, but only arms registered with the BoH enjoy legal protection.  This system offers the best of both worlds.  It offers the freedom to simply assume arms without bowing to some government agency.  On the other hand, it offers those so inclined the option of registering arms and thus enjoying a recognized property right to their arms - albeit limited to South Africa.


This model appeals to me, too.

 
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24 February 2008 20:47
 

Joseph McMillan;54670 wrote:

On balance, in my opinion, this is a good thing.  I would rather not have a government agency telling me whether I can have a coat of arms or what it must look like.


I agree with Joseph, however…


eploy;54671 wrote:

I remain, however, a big fan of the more fluid South African model:  anyone can assume arms, but only arms registered with the BoH enjoy legal protection.  This system offers the best of both worlds.  It offers the freedom to simply assume arms without bowing to some government agency.  On the other hand, it offers those so inclined the option of registering arms and thus enjoying a recognized property right to their arms - albeit limited to South Africa.


I also feel we need legal protection.  In fact in my opinion, we need a simple inexpensive way to register any personal trademark / logo, not just traditional heraldry, that provides legal protection from usurpation.  I don’t want the government to tell me what it can look like, just ensure that my design does not closely match another registered design.

 
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24 February 2008 21:36
 

George Lucki;54674 wrote:

.....Lineage societies make good sense and I would point out that such associations promote over the course of generations the values of respect for heritage and a disposition toward public service. ......I fail to understand the criticism of such groups based on their exclusivity - it is their exclusivity that allows them to clearly focus their efforts on distilling the values of heritage and service - honouring and supporting traditions of service and leadership within families.

It si the same with heraldry. It is nice to see people assuming arms - symbols for themselves and their heirs. In the first generation it nmay simply be a pretty symbol or one that embodies the values of teh armiger - but for the grandchildren these will represent both their fathers’ and grandfather’s virtues, vices and accomplishments and be as a result that much more valuable - it will represent a heritage and not merely an identity or a symbolic self-portrait. .....

 

 


I agree with your post that lineage societies and heraldry are both useful for passing on laudable values and ideals such as identity, pride, public service, historical preservation, etc.

 

It’s interesting, however, that the US founding fathers saw fit to keep such lineage groups like The Society of the Cincinnati, SAR, DAR, as private bodies.  Surely the founding fathers would have wanted to promote public service & historcial preservation, but even they questioned making these hereditary societies part of the state.  The same can be said of heraldry which the Federal and state governments declined to regulate.

 

I think it is shame that heraldry is automatically lumped in with hereditary societies as being equally elitist.  Heraldry has shown that it can exist separately from any honour system.  The tradition of assumed and burgher arms has been well documented for centuries in countries like Switzerland, Germany, Scandanavia, etc well before the American revolution.  Modern examples include South Africa where anyone can simply assume arms without bowing to any government agency, or they can register their arms with the BoH and receive protection for their arms.  South Africa is not regulating heraldry per se, just recording it and recognzing the recording.  Were it regulating heraldry in a like manner to Scotland, then people could not simply assume arms.

 

The same cannot be said of hereditary societies.  Whereever hereditary societies exist and become part of the state prerogative, then a nobility is being formed.

 

I am happy to see the existence and good works of hereditary societies, but am also glad that at least from a US context that they remain merely private bodies and not part of some national honors system.