Legal rights: was Order of Americans of Armigerous Ancestry

 
Andrew J Vidal
 
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Andrew J Vidal
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29 February 2008 14:27
 

I was under the impression that was one of our goals.  We’ve had discussions in the past about what would work best for the US and it’s always come back to a national registry with legal protection.

 
Michael Swanson
 
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Michael Swanson
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29 February 2008 17:35
 

Andrew J Vidal;54844 wrote:

I was under the impression that was one of our goals.  We’ve had discussions in the past about what would work best for the US and it’s always come back to a national registry with legal protection.


I think George means that a registry is the best option, in lieu of his first choice—surrendering the United States of America to the Queen with a written apology.  The discussion was previously about whether assumed arms are too far from tradition to consider them legitimate or on par with granted arms.

 
Joseph McMillan
 
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Joseph McMillan
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29 February 2008 17:41
 

Andrew J Vidal;54844 wrote:

I was under the impression that was one of our goals. We’ve had discussions in the past about what would work best for the US and it’s always come back to a national registry with legal protection.


Umm, no it hasn’t.  Some people have favored a national registry.  Others believe it is appropriately handled by registration at the state level—like marriage, divorce, and probate—or by simply allowing armigers to sue in civil court for infringement, with the burden on the plaintiff to prove prior use of the arms in question.

 
George Lucki
 
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29 February 2008 19:34
 

Michael Swanson;54849 wrote:

I think George means that a registry is the best option, in lieu of his first choice—surrendering the United States of America to the Queen with a written apology.  The discussion was previously about whether assumed arms are too far from tradition to consider them legitimate or on par with granted arms.


I agree that George thinks :(

Much of this heraldic discussion would likely have been moot as there would have been ongoing access to arms.

 
eploy
 
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eploy
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29 February 2008 21:09
 

Andrew J Vidal;54844 wrote:

I was under the impression that was one of our goals.  We’ve had discussions in the past about what would work best for the US and it’s always come back to a national registry with legal protection.


If I recall correctly, the AHS website once prominently stated that one of its goals was to work towards a national registray.  I seem to recall (perhaps incorrectly), that the AHS no longer makes this bold pronouncement public though it members may still be working towards that goal nonetheless.

 

While I would very much like a national registry with legal protection similar to the South African Model (i.e., arms can merely be assumed; those inclined can register their arms and receive legal protection; registration is not an honour), it is never likely to happen and might not be entirely correct with our ethos in America.  I would settle for federal (or at this time state) laws that recognized private arms as property.  An alternative model might be the German model (i.e., arms may be registered with a state approved society - we have AHS, Augustan Society, etc.; such arms become an accoutrement to the surname and receive protection as a form of identity not property).

 
Joseph McMillan
 
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29 February 2008 21:39
 

George Lucki;54853 wrote:

Much of this heraldic discussion would likely have been moot as there would have been ongoing access to arms.


There was ongoing access to arms.

 
George Lucki
 
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29 February 2008 22:17
 

Joseph McMillan;54857 wrote:

There was ongoing access to arms.


Well yes, you are right of course - the College of Arms continued and continues to be available for the descendents of HM subjects and of course some of the founding fathers may have continued to refer to it personally. For others who arrived later from outside the Empire it was no longer available and they had to turn instead to the private assumption of arms.

 
Joseph McMillan
 
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29 February 2008 23:22
 

Private assumption is what I meant.  That is access to arms.

I’m not sure when the College of Arms started making honorary grants to Americans, but it wasn’t until the late 19th century at the earliest, probably the early 20th.  But that’s not the point.  What was present in England and Scotland and missing in the US was the regulation of arms, not access to them.  To say that the absence of a regulatory authority meant lack of access to arms is to say that Danes or Swedes lacked access to arms, or that Frenchmen before and after the Hozier period lacked access to arms.

 
Joseph McMillan
 
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29 February 2008 23:38
 

George Lucki;54833 wrote:

If you re-read my post my emphasis was on official v. private and ‘noble’ was used in the sense of official rather than pertaining to the nobility.


George, don’t you see what an Alice in Wonderland quality this has?

 

"’‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone,’ it means just what I choose it to mean, neither more nor less.’"

 
George Lucki
 
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01 March 2008 00:45
 

Joseph McMillan;54859 wrote:

Private assumption is what I meant.  That is access to arms.

I’m not sure when the College of Arms started making honorary grants to Americans, but it wasn’t until the late 19th century at the earliest, probably the early 20th.  But that’s not the point.  What was present in England and Scotland and missing in the US was the regulation of arms, not access to them.  To say that the absence of a regulatory authority meant lack of access to arms is to say that Danes or Swedes lacked access to arms, or that Frenchmen before and after the Hozier period lacked access to arms.


... and I meant the continuation of official grants smile - that Americans had access to arms through the UK and then there was a discontinuity. I understand the point you are making that assumption became available even though for several centuries assumption was not part of the English law of arms.

 

Danes and Swedes did not lack access to arms or a regulatory authority - they simply had to become ennobled to bear officially recognized arms. The Swedish Riddarhuset contains the arms of the more than 2000 officially armigerous Swedish families. It was the same in Denmark - the nobility did not lack access to official arms and the official class enjoyed personal ennoblement and recognition of their arms. France is a different story. In France after Louis XIV’s misguided mass heraldization of everyone with spare change (the right to bear gawdawful arms - tens of thousands of arms granted in a decade!), the weakening of the monarchy led to Louis XV’s attempt to rebalance the regulation of heraldry being overturned by the Parlement of Paris (high court of law). After that there has been really a heraldic anarchy in France.

 
George Lucki
 
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01 March 2008 01:23
 

Joseph McMillan;54860 wrote:

George, don’t you see what an Alice in Wonderland quality this has?

"’‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone,’ it means just what I choose it to mean, neither more nor less.’"


Not at all. Seriously. Official is in some ways a better term than noble (although that is the most common). I wanted to include other historically officially borne arms along with the officially borne arms of the nobility. In Italy the wealthy urban patriciate had access to official arms. The same was true in some parts of northern Europe particularly in Germany with respect to some of the arms of wealthy burgesses or merchants and even to free landholders in some of the Austrian lands or the not quite noble free Szekelers of Hungary. It would aslo hold true to the official armorial rights of some of the non-noble members of some orders of knighthood. Official is also better than devised (or granted) as some nobles arms assumed by right were officially recognzied and unlike arms assumed privately.

 

So nothing ‘Alice in Wonderland’ about it - I am trying to articulate a concept of officially borne (rather than simply private arms) built on a somewhat broader foundation of state recognized heraldry than that of the arms of the nobility. Do you think that the distinctions I am drawing are not useful ones or do not fit the nature of historical arms?

 

While there are many things we agree on - I draw attention to the chivalric and noble roots of heraldry while you try to emphasize the instances of private assumption of arms especially by peasants, artisans and burghers to draw attention to the broad accessibility of arms. Supporting the free assumption of arms by citizens need not be at odds with honouring the chivalric and noble heritage of heraldry. After all quite frankly where would the leadership of the US revolutionary war come from if not from the armigerous classes - a goodly proportion of the founding fathers certainly must have been armigerous (this would simply be a natural stste of affairs in the society of the time) and the likes of Lafayette, Pulaski, Kosciuszko, von Steuben and others of European noble roots contributed military leadership skills to the cause.

 
Charles E. Drake
 
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01 March 2008 02:31
 

Joseph McMillan;54859 wrote:

I’m not sure when the College of Arms started making honorary grants to Americans, but it wasn’t until the late 19th century at the earliest, probably the early 20th.


There is a list of Americans with grants of arms published in Vol. 90 (1967) of the Annuaire de la Noblesse de France.  The list includes grants by the COA, Lyon, and Dublin Castle. Unfortunately they do not contain the blazon, and many are not dated. Skimming the list, however, turns up the following by the COA which are somewhat early, but after Independence.  It is also not possible to tell the citizenship of the grantees, but the inference is they many were Americans.

 

Cortland Skinner of New Jersey 1807

James Putnam of Massachusetts 1803

Ebenezer Jessup of London and America 1788

John Greene of North Carolina 1798

Thomas and William Foster of Boston 1783

Isaac Coffin of Boston 1804

James Carson of South Carolina 1808

Frances Mary Calvert, wife of William Frederick Wyndham 1785

William Brown of Baltimore 1837

Jahleel Brenton of Rhode Island 1812

 

The entries usually include the volume and page at the COA, and from this it can be seen that there are a number of others from the early 19th Century.

 

/Charles

 
Joseph McMillan
 
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01 March 2008 08:49
 

George Lucki;54861 wrote:

I understand the point you are making that assumption became available even though for several centuries assumption was not part of the English law of arms.


Actually, I would challenge this view as well. By "several centuries" I take it you would mean at least 200 years; normally I would interpret it as at least 251 (which would round up to 300), but I won’t quibble over that. Let’s go back to 1576 and figure out what the English law of arms was at that point. There are two general sources from which we could work: (1)acts of legislation and (2) heraldic and judicial practice.

 

Acts of Legislation

 

First, as to acts of legislation, well, there are none. The only thing the advocates of a theory of early control of armory in England are ever able to come up with is Henry V’s famous writs of 1417 purportedly establishing the rule that, with a few exceptions, no one may bear arms not granted by Authority or inherited from their ancestors. Yet it is clear from the context that this order applied only to those going on the king’s forthcoming military expedition to France, not to society as a whole. See Francois Velde’s discussion of these writs at http://www.heraldica.org/topics/britain/writ1417.htm for a more detailed exploration of the topic.

 

There is no other act of legislation as such that anyone ever adduces in England. North of the Tweed, there was the Scottish Lyon Court Act of 1592 (26 years after 1576), but this act was not about assumption. It was primarily about usurpation ("Considdering the greit abuse that hes bene amongis the leigis of this realme in thair bearing of armes vsurpand to thame selffis sic armes as belangis nocht vnto thame Sua") and secondarily about the lower orders of society using arms at all ("And to put inhibitioun to all the commoun sort of people nocht worthie be the law of armes to beir ony signes armoriallis.")

 

Heraldic and Judicial Practice

 

The Court of Chivalry

 

G. D. Squibb (The High Court of Chivalry) tells us that the English law of arms must be inferred from the pleadings and decisions in the Court of Chivalry. So what was happening in that Court up to 1576? Based on Squibb’s history of the court, it appears that almost all, if not all the armorial cases up to that point were disputes between contending claimants to the same arms. From my reading, it is not until at least 1609 that Squibb gives us a single case of someone being prosecuted for armorial assumption, and unfortunately he gives no details of that case. I don’t own Squibb’s Reports of Heraldic Cases in the Court of Chivalry, 1623-1732, but Velde summarizes the data from that book at http://www.heraldica.org/topics/britain/squibb.htm (and note that Squibb’s records of cases don’t even start until 153 years before US Independence). He finds only five prosecutions (three involving the same defendant) for assumption of arms before 1640. Four of them also involve unwarranted arrogation of the title esquire or gentleman.

 

It is not until after 1687 that we start to see significant numbers of prosecutions for simple assumption of arms. Almost all of these are associated with display of such arms at heraldic funerals. What can we infer? Possibly the heralds discovered some time during the period of the Commonwealth that assumption of arms had always been illegal? Or perhaps they just hadn’t invented that law yet. I rather suspect the latter.

 

The Heralds’ Visitations

 

The other chief source of heraldic practice would be the heralds’ visitations, the first of which was conducted in 1530. I don’t pretend to be an expert on the visitations by any means, but a few things seem clear, at least to me. The first is that the visitations were originally meant to bring order out of the same kind of heraldic chaos that prompted the Lord Lyon Act of 1592 in Scotland. They were not meant primarily to enforce a putative law that assumption of arms was illegal, but rather to establish exactly who had a right to which arms, based on proof of actual use—the same kind of process that a German or French court would go through today in the event of an armorial dispute. They were secondarily designed to prevent the common riff-raff from using arms at all.

 

My understanding is it was only toward the end of the era of the visitations (the same period when the heralds had discovered the opportunity for collecting large fees for heraldic funerals…I mean, when they had discovered the theretofore unknown law against assumption of arms) that the visiting heralds began denying arms on the grounds that they were not previously on record. And even in 1668, toward the very end of the era of the visitations (1689), the heralds had instructions to accept previously undocumented arms on the basis of ancient user if it could be shown that they had been in use for a period of at least 60 years. This is hardly consistent with the argument that assumption of arms had been unlawful since 1417, or even since the beginning of the visitations in 1530, or even since 200 years before eventual American Independence (1576).

 

Conclusion

 

It seems clear to me that it was only quite late that the notion was concocted that all Englishman were forbidden to bear arms except by permission of the heraldic establishment. What was forbidden starting sometime in the 16th century was for someone other than a gentleman to bear arms. This is quite a different thing. Whether or not someone was a gentleman was always a judgment call, sometimes a difficult one, and its relationship to heraldry was sometimes circular. One could prove gentry by showing three generations of use of arms, but at what point in that three generations did the status of gentleman begin? Ultimately, it all had to do with how the man conducted himself and whether his neighbors considered him a gentleman or not. Wealthy yeoman farmers were constantly passing osmotically through the thin membrane separating gentle and non-gentle status. (In legal terms, although not practical ones, passage in the other direction was more difficult, because once a man had been recognized as entitled to arms, and thus recognized as a gentleman, all his male line descendants were officially recognized as gentlemen.) In other words, what the visitations and the records of the Court of Chivalry show is not that everyone was forbidden to assume arms, only that non-gentlemen were forbidden to assume arms.

 

Furthermore, the existence of this ban is clear only well within the "several centuries" before American Independence threshhold.

 

Now I’m not making an issue of "several centuries" just to score a debating point. What else was happening at the beginning of this "several centuries" period? The English were beginning to colonize North America. (So were the French and Spanish, but we’re not talking about their laws of arms.) The Roanoke colony in present-day North Carolina was established in 1586, a few outposts in Newfoundland by 1595, the first permanent English settlement at Jamestown in 1607, the Pilgrims at Plymouth in 1620. New Hampshire was settled in 1623, Maryland 1633, Rhode Island and Connecticut by 1636, etc.

 

So what law of arms, if any, existed in North America at the time of US Independence? The traditional view as seen from London (stated by Attorney General Richard West in 1720) was that the common law of England was the common law of the colonies, as well as such statutes as were in effect at the time of first settlement, plus any subsequent statutes that specifically mentioned the colonies. Of course, the law of arms is not part of the common law, but, if it applied at all, the principle on timing must be the same. If there was a law of arms in the North American colonies, it was the law of arms as it existed at the time of settlement, not the law of arms as it was expanded and reinterpreted in England thereafter.

 

Anyway enough for now; more on the rest of George’s argument later.

 
Joseph McMillan
 
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01 March 2008 09:36
 

Charles E. Drake;54863 wrote:

There is a list of Americans with grants of arms published in Vol. 90 (1967) of the Annuaire de la Noblesse de France. The list includes grants by the COA, Lyon, and Dublin Castle. Unfortunately they do not contain the blazon, and many are not dated. Skimming the list, however, turns up the following by the COA which are somewhat early, but after Independence. It is also not possible to tell the citizenship of the grantees, but the inference is they many were Americans.


Some of these are addressed in the chapter on American heraldry in the Oxford Guide to Heraldry:


Quote:

Cortland Skinner of New Jersey 1807

"In 1807, Sir George Nugent, Bt., obtained a grant for his wife Maria, and the Patent included the other descendants of her deceased father Cortlandt Skinner, sometime Attorney-General of the Province of New Jersey."


Quote:

Ebenezer Jessup of London and America 1788

Resident in Fludyer St, Westminster, "late Lieutenant-Colonel Commandant of the King’s Loyal American Regiment"


Quote:

Thomas and William Foster of Boston 1783

"In 1783, [Sir Isaac] Heard, by then Clarenceux, in testimony of the sincere regard he bore to William Foster of Boston in New England but then resident in London…petitioned for grants…to include the descendants of Thomas Foster, father of William Foster…"


Quote:

James Carson of South Carolina 1808

"...James Carsan of the City of London, only child of James Carsan of South Carolina, obtained a Royal Licence to bear the name and arms of Porter, his stepfather."


Quote:

Jahleel Brenton of Rhode Island 1812

"...a post captain in the Royal Navy… The limitations of the grant included the descendants of the grantee’s grandfather, Jahleel Brenton of Rhode Island"

I suspect that many if not all of the others are similar cases of either emigre Tories, English descendants of people formerly resident in the colonies, or American descendants included in the limitation of ancestral grants to people in England.

 

By the way, the OGH says that the system of honorary grants to American citizens began "at what seems to be an unrecorded date," but cites one of 1920 as "an early example."

 
Charles E. Drake
 
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01 March 2008 10:36
 

Joseph McMillan;54868 wrote:

Some of these are addressed in the chapter on American heraldry in the Oxford Guide to Heraldry:.


That is most interesting.  I didn’t think to look there.  Obviously most, if not all, of these grantees had an "English connection," otherwise they would have been unlikely to either seek a grant or be included in one.

 

However, the question that arises for me is how the grants were worded, and if some of these people were technically American citizens. I wish I could see the text in some of these cases. I suspect that the word "honorary" was not included, and that the wording was identical to that in grants to English citizens. I also suspect that the very idea of "honorary" grants is a late concoction, particularly if the practice began in the early 20th Century. They had probably been doing what they were doing all along, but realized the need to call it something else. The rise of the practice in the 20th Century was more of expanding the market, than changing the product.

 

None of this probably has much bearing on the matter under discussion, but is of overall interest to United States heraldry.

 

/Charles