Legal rights: was Order of Americans of Armigerous Ancestry

 
Charles E. Drake
 
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Charles E. Drake
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01 March 2008 10:45
 

George,

Even though I personally favor the "granted-arms" pathway, I am unconvinced with the idea that official arms or arms recognized by the State are somehow "noble" (although you made a valiant effort).  We have a saying in the South, "that dog don’t hunt."  grin

 

Again, I like the feudal model for the word "honour," when considering arms as an honour.  Assumed arms would thus be more like property held in fee simple, and granted arms would be like property held of a feudal superior.

 

Even more so, I like the distinction between "valid" and "value" in terms of granted arms. Both assumed arms and granted arms are equally valid or legal in the United States.  There may aspects to granted arms that increase their value to some armigers (perhaps I will work up a list), but these do not affect validity.  Cost effectiveness is value/cost.  YMMV.

 

/Charles

 
Michael Swanson
 
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Michael Swanson
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01 March 2008 15:57
 

George Lucki;54862 wrote:

.... 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?...


How would you classify the arms of the President of Finland, using your concept of "official"?  Her arms are not among the Finnish House of Nobility, which was closed to new members in 1912. However, as the president of the official orders of Finland, she is required to have a coat of arms.  She sometimes displays her coat of arms with the emblem of the Swedish Royal Order of the Seraphim, but her arms are not officially registered or granted in Sweden.  The Order of the White Rose of Finland I think is the one that requires arms, but the organization doesn’t register them.  She assumed her arms and registered them with the national heraldic society, which is a private, unofficial organization.

 
Joseph McMillan
 
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01 March 2008 16:23
 

Michael Swanson;54872 wrote:

How would you classify the arms of the President of Finland, using your concept of "official"? Her arms are not among the Finnish House of Nobility, which was closed to new members in 1912. However, as the president of the official orders of Finland, she is required to have a coat of arms. She sometimes displays her coat of arms with the emblem of the Swedish Royal Order of the Seraphim, but her arms are not officially registered or granted in Sweden. The Order of the White Rose of Finland I think is the one that requires arms, but the organization doesn’t register them. She assumed her arms and registered them with the national heraldic society, which is a private, unofficial organization.


I believe the Order of the Seraphim does require its members to provide their arms, which are entered into the order’s registers, just as the Order of the Elephant does in Denmark, but if so this actually strengthens rather than weakens Mike’s point.  My interpretation of the entry of arms of nobles into the Houses of Nobility is that it is the same as the entry of arms of knights of the Elephant or the Seraphim (if the latter requires this) into those orders’ records.  It doesn’t change the nature of the arms; it’s merely one of the things that goes along with membership in the order, whether we’re talking about the order (estate) of nobility or the particular order of chivalry.

 

General Eisenhower’s arms are in the records of the chapter of the Danish royal orders:  does that make them anything other than assumed arms?  When I asked Peter Kurrild-Klitgaard that question his answer was that the recording of the arms distinguishes them somewhat from other assumed arms, but not that it made them "noble arms" or meant that Eisenhower somehow held them from the Danish crown.

 
David Pritchard
 
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01 March 2008 18:58
 

Membership in the Royal Order of the Seraphim does confer noble status upon the thirty-two non-Swedish Royal members of this élite* order, most of whom would have possessed this status prior to their investiture.

* A most confounding and mysterious foreign term translating to the more familiar word ‘elite’ in the English language.

 
MohamedHossam
 
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MohamedHossam
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01 March 2008 20:03
 

:D So it does David, so it does….

Cheers,

 
Michael Swanson
 
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02 March 2008 14:19
 

David Pritchard;54875 wrote:

Membership in the Royal Order of the Seraphim does confer noble status upon the thirty-two non-Swedish Royal members of this élite* order, most of whom would have possessed this status prior to their investiture.


As a member of the Royal Order of the Seraphim, when the Finnish president dies   her arms are hung in the Riddarholmskyrkan.  It is a purely honorary dignity that confers no legal privileges.  My point is that her assumed arms, which are not granted, have the same status as all others in the order, even those of other heads of state whose arms were granted or acquired in some other state recognized procedure.

 
George Lucki
 
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02 March 2008 22:37
 

Michael Swanson;54892 wrote:

As a member of the Royal Order of the Seraphim, when the Finnish president dies   her arms are hung in the Riddarholmskyrkan.  It is a purely honorary dignity that confers no legal privileges.  My point is that her assumed arms, which are not granted, have the same status as all others in the order, even those of other heads of state whose arms were granted or acquired in some other state recognized procedure.


The issue with such arms is not whether they are assumed or granted or inherited but that they are the official arms of the knights of the Seraphim - the premier knights of the Swedish realm or in the case of the President of Finland her official personal arms as President. In each case there is a legal requirement for arms. As far as I know the President of Finland is required to have arms and if they are not inherited must be assumed. The arms that are assumed become official in this case by being assumed in accordance with the legal requirement. This is analogous to the requirement that Roman Catholic bishops have to create aseal (which by centuries of tradition is armorial). Church law specifies the form only of the external elements and leaves the arms to the bishop - to use his own arms if he has inherited them or as increasing numbers of bishops in the last centuries have come from non-armigerous families to assume new ones. These arms by virtue of their assumption become recognized as official arms in the Church’s law. They are ‘noble’ arms as Finland has a historical nobility but does not ennoble its citizens however deserving.

 
Joseph McMillan
 
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02 March 2008 22:51
 

George Lucki;54906 wrote:

As far as I know the President of Finland is required to have arms


I would be very interested in seeing documentation to support this statement.  I seriously doubt that a president who chooses not to have arms could be compelled by the internal statutes of an order (of which she is ex-officio the head) to adopt them.  Customary it may be, but required as a matter of law?


Quote:

They are ‘noble’ arms ....


I’ve finally figured this out.  This is one of those English words that is not pronounced the way it’s spelled.  Just as Ralph is pronounced Rafe and Cholmondeley is Chumley and Beauchamp is Beecham, in this case the word that looks like it should be pronounced "noble" is actually pronounced "official."

 
George Lucki
 
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02 March 2008 23:34
 

David Pritchard;54875 wrote:

Membership in the Royal Order of the Seraphim does confer noble status upon the thirty-two non-Swedish Royal members of this élite* order, most of whom would have possessed this status prior to their investiture.

* A most confounding and mysterious foreign term translating to the more familiar word ‘elite’ in the English language.


David, I’m sure that this is not the case. I’ve seen the claim made and the issue was discussed at length among Polish heraldists after Lech Walesa was amde a member. Essentially, I think this great order of knighthood, (Sweden’s premier order no less) was originally reserved for the highest social strata and the award of the order was to individuals who held royal or noble rank or who might be in a position to petition for ennoblement. There was no need to ennoble an elite who almost invariably enjoyed or could enjoy it. The Order of the Seraphim like some of the other great orders became over time more and more simply a very exclusive merit order - changing again in 1975 to be a diplomatic order awarded to heads of state and to members of the Swedish Royal family. The recipients of the order were (and should still be) styled Herr (translated as Lord) the title also accorded to the simple or untitled Swedish noble.  But this was not the same as Swedish nobility. The members of the order did and continue to have a requirement to bear arms because these are displayed in the order’s church. The statutes of the order are presently modified by Parliament and form part of the law of Sweden so these arms are very much official arms.

 

The Danish Order of the Elephant may or perhaps better put likely does still confer personal nobility to the members and their legitimate off-spring. There is some ambiguity as the statutory provisions from the early 19th century have not been updated while Danish nobilliary law has - and the statutes of the order seem to be quite flexible in that they are frequently ignored (as with the religious test that members should profess the Evangelical religion). If you look at the archives in rec.heraldry thgere is a lengthy discussion between myself and Peter Kurrild-Klitgaard on this subject. His advice from within the Royal Household and the advice I received from the Protocol Department in their government mirrored the differences in our debate - nonetheless the precedence if not substance of personal untitled nobility is still conferred with admisison. The order’s requirement for arms is statutory and again this forms a part of Danish law. The arms are not granted. Many members of the order (including most Danish members) are already both noble and armigerous. The arms recorded and displayed by the order are not simply the arms of private assumption - they are not granted but they are of official standing in Denmark.

 

The great orders of chivalry have seen significant transition from royal confraternities of chivalry bringing together royalty from across Europe and even the world with the representatives of the great nobles of a nation to become simply or merely a diplomatic award to the present-day heads of states of friendly countries - sometimes even when the head of state has a political or partisan role. In other cases it has become simply a very exclusive award of merit for outstanding service or accomplishment - even when there are already other vehicles for rewarding personal merit.

 

Even in the UK the order of the Garter which had been an elite royal chivalric confraternity has become, with the appointments over the last century of men or more recently women, an award of merit for some particularly emminent accomplishments or high government service - prime ministers or statesmen, individuals. Of course the great chivalric orders were never intended to merely reward merit, but the temperament of the times places such great weight on accomplishment or distinguished service that I fear the confraternal and chivalric aspects will be inevitably further eroded. The Garter also does not ennoble - until the innovation of admitting professional politicians it would not have been an issue because it would be hard to imagine that members could be drawn except from those families who had for generations created that nations elite and who had entered the nobility usually generations earlier.

 
George Lucki
 
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02 March 2008 23:38
 

Joseph McMillan;54908 wrote:

I would be very interested in seeing documentation to support this statement.  I seriously doubt that a president who chooses not to have arms could be compelled by the internal statutes of an order (of which she is ex-officio the head) to adopt them.  Customary it may be, but required as a matter of law?

 

 

I’ve finally figured this out.  This is one of those English words that is not pronounced the way it’s spelled.  Just as Ralph is pronounced Rafe and Cholmondeley is Chumley and Beauchamp is Beecham, in this case the word that looks like it should be pronounced "noble" is actually pronounced "official."


Joseph,

The statutes of the order are law. It could be changed and it would not be at all surprising for me if some future Finnish president thought that arms were an anchronism or ‘elitist’ and turned his/her back on this heritage. I think in such a case the rules would simply be altered. But, they are not.

 

The idea that a President should have personal arms is a pleasing one isn’t it?

 
George Lucki
 
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02 March 2008 23:55
 

Joseph McMillan;54867 wrote:

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.

 


Well argued and an excellent exposition of your views around the assumption of arms vs the actions of the ‘heraldic establishment’.

Nonentheless, simply put English law did not allow for the assumption of arms for some time before the revolution. Whether you wish to date this from the establishment of teh College, the visitations in the early sixteenth century or the early (and infrequent) prosecutions starting more than 150 years before the declaration of independence there is indication of what the law of arms was. Unlike in Scotland where there was a legislative basis for the Lord Lyon the law of arms in England is difficult to pin down. It was a civil rather than a common law but an uncodified one. It was apparently based upon principles of custom and Roman civilian law. It was also an exercise of Royal perogative delegated ultimately to the Earl Marshal and effected by grants made by the Kings of Arms. What the Royal Perogative of arms was must be inferred from really a small number of documented sources including warrants for grants and instructions for the visitations. As with many things historical it is clear that the instructions for the visitations were not always followed and some arms were allowed that were not of older usage. But then I’m sure if we looked at tax law at the time and compared that with taxes actually collected we would also find that the law was unevenly enforced. In either case the law was the law. Later in the nineteenth century the rise in the number of new men of industrial wealth rather than gentle birth gave rise to a great number of assumed arms. The absence of any effective heraldry police or enforcable sanctions could not stem this trend among the snobbish, but it was never seen to change the law of arms in England.

 

I will agree with you that the law of arms, such as it is, is very difficult to pin down and has not really been enforceable. The fees have been in past times actually one of the relative guarantors of at least some self-selection.

 

In terms of whether the law of arms had application in the colonies - in practice I presume it was not particularly relevant and might be widely ignored - I would see the test as to whether the Royal perogative in most of its other aspects was effective in the colonies. Did Attorney General West consider that issue in his opinion?

 

I have no trouble with the idea that after 1783 the assumption of arms in teh US was legal and all arms assumed earlier became legal.

 
George Lucki
 
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George Lucki
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03 March 2008 00:11
 

Joseph McMillan;54908 wrote:

I’ve finally figured this out.  This is one of those English words that is not pronounced the way it’s spelled.  Just as Ralph is pronounced Rafe and Cholmondeley is Chumley and Beauchamp is Beecham, in this case the word that looks like it should be pronounced "noble" is actually pronounced "official."

 


Darn, in this case (which I originally thought a quip) you have pointed out a mistake - I dropped the critical word not

The sentence should have read - "They are not ‘noble’ arms as Finland has a historical nobility but does not ennoble its citizens however deserving." Without this the sentence would not have made sense.

 
Joseph McMillan
 
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03 March 2008 18:58
 

George Lucki;54914 wrote:

Well argued and an excellent exposition of your views around the assumption of arms vs the actions of the ‘heraldic establishment’.


Thank you. For what it’s worth, my use of the term "heraldic establishment" is not intended to be judgmental, merely as a convenient shorthand for "The Earl Marshal, his deputy and any surrogates, the College of Arms, the Court of Chivalry, and the lawyers of various types practicing in it."


Quote:

Nonentheless, simply put English law did not allow for the assumption of arms for some time before the revolution. Whether you wish to date this from the establishment of teh College, the visitations in the early sixteenth century or the early (and infrequent) prosecutions starting more than 150 years before the declaration of independence there is indication of what the law of arms was.


For the sake of argument, I will take as given that this was the state of the law in 1776. As a general matter, I think it is important to pin down more precisely when and how it became the law, because doing so will illuminate the question of whether it really is the law, but for the purposes of this discussion, I will accept that it was the English law of arms as of July 4, 1776.

 

My point is that it seems not to have been the settled law in May of 1607 when the first permanent English settlement was established in the state where I now live, and it is vague at best whether it was the settled law as of December 1620 when the Pilgrims landed at Plymouth, Massachusetts. If the principle enunciated by Attorney General West in 1720 with respect to the common and statute law also held true for the law of arms, then the law of arms in Virginia and Massachusetts could never be any more restrictive than it was in England on those respective dates, unless the colonial governments or Parliament had made it so.  (They didn’t.)


Quote:

Unlike in Scotland where there was a legislative basis for the Lord Lyon the law of arms in England is difficult to pin down.


You can say that again!


Quote:

It was a civil rather than a common law but an uncodified one. It was apparently based upon principles of custom and Roman civilian law.


The reason the Court of Chivalry (like the Court of Admiralty) operated according to Roman civil law principles is that it was originally involved mainly in adjudicating disputes with international ramifications. As a civil law court, the law of arms it applied was originally the same as the law of arms that existed everywhere else in Europe. On heraldic matters (as opposed to things like ransoms, contracts for military service, etc.), the law applied in the Court of Chivalry was originally essentially the same as that set down by Bartolo di Sassoferrato in Italy. In fact, a number of early English treatises on the law of arms are merely lightly edited rip-offs of Bartolo.


Quote:

It was also an exercise of Royal perogative delegated ultimately to the Earl Marshal and effected by grants made by the Kings of Arms.


The problem with this argument is that it has been a well-established principle of English law since the Case of Proclamations in 1611 that the royal prerogative is precisely delimited, and that the judges of the common law courts are the authoritative arbiters of what those limits are. New prerogative powers cannot be created, and old ones cannot be expanded to cover new areas merely by the crown’s assertion of the power.

 

Now it is fairly clear that the granting of arms falls within the royal prerogative along with the granting of titles, honors, and dignities. What is at question is what part of the royal prerogative provides for forbidding subjects, whether gentlemen or not, from assuming devices of their choosing of armorial or any other form as emblems of personal and family identity? Very few aspects of the royal prerogative permit imposition on the freedom of the subject, and they are all clearly set out in the writings of institutional legal scholars like Coke, Selden, and Blackstone. I truly would appreciate it if anyone who maintains that the royal prerogative is the source of the English prohibition on assumption of arms would point out to me specifically which aspect of the royal prerogative it is that allows this.


Quote:

In either case the law was the law.


No, in the case of English statutes, the law is the law. In the case of the common law, law is what the judges say it is. In the case of civil law, the law is whatever is actually enforced; civil law admits the principle of desuetude.


Quote:

Later in the nineteenth century the rise in the number of new men of industrial wealth rather than gentle birth gave rise to a great number of assumed arms. The absence of any effective heraldry police or enforcable sanctions could not stem this trend among the snobbish, but it was never seen to change the law of arms in England.


Ah, the "snobbish." To have paid the heralds for arms…would that have been snobbish? What exactly is it that’s snobbish? The hoi-polloi having the gall to rise into the leisured class and behave accordingly…just as the ancestors of most of the 19th century gentry had done a few generations earlier? Or does the snobbery lie rather with those descendants of the wealthy mercers and wool merchants who had bought landed estates and coats of arms to underscore their own rise into the gentry in the 16th century, or the bankers and stock jobbers who had done the same in the 18th, but who were damned if they’d be joined in the elite by a bunch of ironmongers and brewmasters…unless they had marriageable daughters with big dowries, of course.


Quote:

In terms of whether the law of arms had application in the colonies - in practice I presume it was not particularly relevant and might be widely ignored - I would see the test as to whether the Royal perogative in most of its other aspects was effective in the colonies. Did Attorney General West consider that issue in his opinion?


As noted above, the royal prerogative is really about the division of government powers between the Crown, Parliament, and the courts, and much less about individual rights and freedoms. But so far as it goes, many of the powers exercised in England under the royal prerogative were exercised in the colonies by governors in the crown colonies, by the proprietors in the proprietaries, and by the governors or assemblies in the company-based colonies like Connecticut, Rhode Island, and early Massachusetts. But this is a generalization with lots of exceptions. It was a matter of dispute whether the colonies could coin money without infringing on the King’s rights. On the other hand, I don’t think there was any specific delegation to the New England colonies to charter corporations or colleges, but they did so anyway (the Puritans didn’t think their political system derived from the Crown in any case, so didn’t much care what the theoretical limits on them might have been). All the colonies established courts of law, which at home would have been a royal prerogative. The proprietors in Maryland, Pennsylvania, and Carolina were specifically empowered to grant honors and titles, although other than in Carolina they didn’t do so.

 

Once again, enough for now. More to come, but first here’s a word from George.

 
George Lucki
 
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03 March 2008 20:38
 

Joseph McMillan;54933 wrote:

Once again, enough for now. More to come, but first here’s a word from George.


I’m feeling like this is one of those political or sports talk shoes with two hosts of differing views… So in a moment, back to you!


Quote:

My point is that it seems not to have been the settled law in May of 1607 when the first permanent English settlement was established in the state where I now live, and it is vague at best whether it was the settled law as of December 1620 when the Pilgrims landed at Plymouth, Massachusetts.


That’s true, except for the visitations and the fifteenth century decree that we can agree was in itself a narrow one.


Quote:

The reason the Court of Chivalry (like the Court of Admiralty) operated according to Roman civil law principles is that it was originally involved mainly in adjudicating disputes with international ramifications.


It was also like ecclesiastic law one derived from authority rather than inferred from behaviour. It was authority made law and not judge made law. The clearest indication of the law would be in the grants of arms themselves and in the instructrions given the Earl Marshal and the kings of Arms by the King and Earl Marshal respectively. It is nonetheless hard to discern from today’s vantage point. Common law could also derive from Roman law and English family law is an example.


Quote:

The problem with this argument is that it has been a well-established principle of English law since the Case of Proclamations in 1611 that the royal prerogative is precisely delimited, and that the judges of the common law courts are the authoritative arbiters of what those limits are. New prerogative powers cannot be created, and old ones cannot be expanded to cover new areas merely by the crown’s assertion of the power.


Are you aware of any cases where the courts have been asked to rule on the limites of the royal perogative as it applies to arms?  It seems to have been a relatively settled matter. I am also not aware of armigers with assumed arms having obtained any court decision that would enforce their right to have their arms entered into the registers or a case of forcing someone who has usurped their arms by later adoption to give up their arms or for that matter any action to prevent the Kings of Arms from granting arms that had been previously assumed. You might expect some legal action like that in a society where arms were legally assumed as well as granted. I have also not aware of any legal case where the infringement of feedom was raised as an issue relative to forcing the heralds to acknowledge assumed arms (for example in the visitations or later).


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Ah, the "snobbish." To have paid the heralds for arms…would that have been snobbish? What exactly is it that’s snobbish? The hoi-polloi having the gall to rise into the leisured class and behave accordingly…just as the ancestors of most of the 19th century gentry had done a few generations earlier? Or does the snobbery lie rather with those descendants of the wealthy mercers and wool merchants who had bought landed estates and coats of arms to underscore their own rise into the gentry in the 16th century, or the bankers and stock jobbers who had done the same in the 18th, but who were damned if they’d be joined in the elite by a bunch of ironmongers and brewmasters…unless they had marriageable daughters with big dowries, of course.


Quite eloquent. New men are created in every generation - sometimes a great number when there is a dislocation of the social order through war or economic changes. What I was simply getting at was that the new men of the nineteenth century had an affinity for the trappings of gentility but not the respect for the correct ways of doing things that would have them petition for arms properly as was done in England. Knock-off or copied arms were as good as the real thing. I imagine the same thing might have applied to art. Appearances were perhaps more important than reality. If they were Swiss bankers they could have correctly assumed arms and registered them in their canton, but English bankers would have been obliged to petition.


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All the colonies established courts of law, which at home would have been a royal prerogative. The proprietors in Maryland, Pennsylvania, and Carolina were specifically empowered to grant honors and titles, although other than in Carolina they didn’t do so.


This and the earlier bit about the Pilgrims points to the diversity of the colonies and the ambiguity about what was delegated and what was not - this allows for some argument that things might be permitted in some colonies and not in others - although I don’t know how this argument could be extended to the area of arms. What I hear you saying is that there was a bit of legal vacuum - that in the absence of things being very clearly spelled out colonies could do anything they wished and if English law did not explicitly extend then there was no law until the colonists established it. That’s a bit of a stretch but that would have been the thinking that led to the revolution in the first place… smile

 
Joseph McMillan
 
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Joseph McMillan
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03 March 2008 23:10
 

George Lucki;54937 wrote:

Are you aware of any cases where the courts have been asked to rule on the limites of the royal perogative as it applies to arms?


No, but given the history of the Court of Chivalry and the refusal of the common law courts to get involved in the issue, that’s hardly surprising.  But the key point may be that the common law courts didn’t see the royal prerogative as being at issue in the prosecutions against assumption.  The supporting logic for the argument that the ban on assumption derives from the royal prerogative seems to depend on approaching the matter retrospectively:

 

We know that assumption is now unlawful.  (Keeping in mind the caution expressed by Tommy Lee Jones in Men in Black:  "Fifteen hundred years ago everybody knew the earth was the center of the universe. Five hundred years ago, everybody knew the earth was flat, and fifteen minutes ago, you knew that humans were alone on this planet. Imagine what you’ll know tomorrow.")

 

Intellectually, this means we’ve already determined the conclusions of any research into heraldic legal history.  As a result, as we work backwards in time, we tend to interpret bits of evidence (like Henry V’s 1417 warrants) as foreshadowing and even contributing to the ultimate outcome.

 

The question then is how things got to be this way.  Having found and perhaps overinterpreted texts from 1417 and 1530 and so on in light of the foregone conclusion, it seems intellectually inconsistent to locate the origin of the unlawfulness of assumption in the overreaching of officers of the Court of Chivalry during the two brief periods between what was apparently the first prosecution for simple assumption and the overthrow of Charles I, and then between the Glorious Revolution and the effective demise of the Court of Chivalry in the early 18th century.  Instead, we conclude that assumption has "always" been unlawful, or at least since before any records exist, and since we can’t find any other basis for it, we conclude that it must be a matter of the royal prerogative.

 

I don’t think it’s an accident that when historians like Oswald Barron and Horace Round approached this matter, they came to quite different conclusions than lawyers like Arthur Fox-Davies and G. D. Squibb.  At the risk of offending Hugh Brady and other lawyers in our midst, my sense is that lawyers generally tend to work back in time; it’s how you do a title search, it’s how you research precedents for an appeal, and so on.  Historians tend to work in the other direction:  they start with how arms were acquired and used in, say, 1215, and track changes over time coming forward; they start with the prerogative powers of the king as they were first known, track their evolution, examine how lawyers interpreted the powers over time, but with less of a preconceived notion as to how the story will turn out.


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It seems to have been a relatively settled matter.


This is what I want to see evidence of.  I know the visitations found that non-gentlemen could not assume arms.  It’s less clear to me when they started finding that acknowledged gentlemen could not do so.  We know that arms were originally assumed (surely the old fiction of "lost grants" has been thoroughly exploded).  When and how did this become unlawful?  It’s not like we’re dealing with the dark ages; if a king claimed to outlaw armorial assumption by exercise of the prerogative, where’s the proclamation to that effect?


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... or a case of forcing someone who has usurped their arms by later adoption to give up their arms


Well, Scrope v. Grosvenor comes to mind.  But I assume you’re talking about the common law courts, which, of course eschewed any jurisdiction over the matter.  For all practical purposes, there hasn’t been an English court that would hear such a case in nearly 300 years, if you disregard that 1954 put-up job known as the Manchester case.


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You might expect some legal action like that in a society where arms were legally assumed as well as granted.


Ah, but we have a very interesting dynamic going on at the time of the visitations.  In many cases, the really old, established families (and I don’t just mean peers) simply refused to recognize the authority of the heralds in any way.  I wish I could find the citation, but I found one quotation from an early visitation in which a gentleman of ancient lineage exclaimed that his family had always borne the "bloody crescents" and he didn’t need permission from some "new knight" (the king of arms in question) to keep doing so.  Fox-Davies himself laments the large number of arms of old families that, in his view, were being borne illegitimately because they had never been put on record with the College of Arms.

 

I suspect, given the status consciousness of the age, that it was those lower in the scale, the local gentry, the yeoman on the cusp of gentility, the son of the glovemaker-turned-alderman of Stratford-upon-Avon, who primarily craved the official recognition of their status afforded by the heralds’ confirmation or granting of their arms.  It would be an interesting exercise to compare the no-shows, confirmations, and disclaimers in the visitations with the county tax records, including a time lag in the analysis, to see whether any correlation existed.


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I have also not aware of any legal case where the infringement of feedom was raised as an issue relative to forcing the heralds to acknowledge assumed arms (for example in the visitations or later).


According to Francois Velde’s summary of Squibb’s Heraldic Cases, the only significant period of prosecutions for simple assumption was between 1687 and 1707, 59 cases in 20 years.  Almost all of these involved display of assumed arms at heraldic funerals (thereby cheating the heralds out of their accustomed fees for arranging such displays).  Francois says that in the early period the accused simply submitted and paid their fines, but that by 1707 they were beginning to push back, defending their arms as borne of right by ancient user.  Shortly after that, the Court of Chivalry went into dormancy, by which time it seems to have become a legal laughingstock (see Blackstone’s Commentaries on the subject).


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What I hear you saying is that there was a bit of legal vacuum - that in the absence of things being very clearly spelled out colonies could do anything they wished and if English law did not explicitly extend then there was no law until the colonists established it.


Not quite.  The best treatment of this whole issue can be found in Lawrence Friedman’s History of American Law.  His thesis, which now seems to be pretty well accepted, is that the settlers came to the colonies equipped with a lay knowledge of those bits of English law with which they were familiar, which was in many cases drawn from the patchwork quilt of local English usages as they existed at the time rather than from the common law as expounded in the royal courts in London.  They adapted and used those elements that they found useful to their situation in the New World and abandoned those they didn’t.

 

In addition, those organizing the settlements (originally the companies’ boards of directors, later the proprietors) were empowered to enact such legislation as they saw fit, normally provided that it was not "repugnant" to English law.  What exactly that meant wasn’t always clear, but for the most part it seemed to correspond to the distinction lawyers made between those elements of the common law that were seen as enforcing natural law (murder, larceny, assault) and those that were merely matters of legal convention (inheritance and property law, for example.

 

Over time, of course, trained lawyers came and Anglicized the law somewhat, but it was always clear that much of the corpus of English law, especially elements outside the common law, simply didn’t apply.  There was even a continuing argument as to whether the right to writs of habeas corpus pertained in the colonies, which is why the US founding fathers expressly guaranteed that right in the Constitution.

 

But all this is somewhat peripheral.  The issue is this:  was a law of arms in effect in the colonies prior to independence, and, if so, what was it?

 

I think it is tenable to argue that there was not.  There seems to be no surviving colonial jurisprudence on the matter.  The English law of arms axiomatically forms no part of the common law, and we know it is not statute law either, so Attorney General West’s dictum would not cover it, nor would it necessarily be encompassed in the positions on the relevance of English law in the colonies set forth by leaders like Richard Bland and John Adams as the crisis of the 1770s approached.  There was no court in which a law of arms could have been enforced—it was established early on that no English court except the judicial committee of the Privy Council (in appellate cases) had authority over the colonies.  There was plenty of opportunity to conduct heraldic visitations, but this was never done.  Some would argue that where there is no enforcement, there is no law.

 

Against this we have the fact that arms were used in the colonies.  They were inherited from one generation to another.  Name and arms clauses in wills were enforced by probate courts, and in fact there are at least three private acts of the Maryland General Assembly giving effect to such clauses after independence, which would suggest that some concept of a law governing the use of arms remained in the legal consciousness of the time.  All this argues that there was, at least implicitly, some kind of law of arms that the settlers found useful.  The remaining question is, what was it?

 

The answer must be sought partly in what the English law of arms was—or was understood to be by the settlers—at the time of settlement and partly in whatever records we can find of actual practice by the colonists themselves.  We’ve already discussed the first; to illustrate the second, I would cite well-documented cases of corporate assumption of arms:  Harvard College in 1644, the Colony of Rhode Island not later than 1661, the City of New York in 1686, and Yale College in 1736.  If the colonists had brought with them a law of arms that prohibited armorial assumption, how can we square this kind of public activity with it?

 

I think that the answers to these historical questions has a bearing on how one might conceivably approach the matter of heraldic recognition in the United States today.  Hypothetically, one might argue that a law of arms came to America with the colonists, but that it was not the late English elaboration of that law into a system of state control of social status (which I am suggesting actually postdates most of the American settlements).  It was instead the old international "Roman civil" law regulating inheritance of arms, providing for prior use as the criterion for superior right to particular arms, and providing for the right of any free man (or alternatively, any gentleman, which is another argument) to assume arms of his own choice provided that they don’t conflict with someone else’s.  If one could show that such a law of arms was in fact observed in the colonies, one might then argue that it survived the Revolution and offers the basis for a republican law of arms today.

 

That, to me, is the whole point of going through the discussion.