Consulting College of Arms

 
Michael Y. Medvedev
 
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Michael Y. Medvedev
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25 March 2008 17:59
 

I presume that

1) it would be a tactless provocation to involve HM officers of arms in a formal way into the cristallisation of the effectively non-British, egalitarist republican, assumption-oriented heraldic system of the USA;

2) those who defined the guidelines were pretty well aware of the professional opinions, usages and principles of the English heralds and these opinions, usages and principles were respectfully considered, which corresponds, in a sense, to a consultation.

 
Joseph McMillan
 
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25 March 2008 20:47
 

Fred White;55812 wrote:

In the effort to codify an American law of arms, have we ever thought of soliciting input from the primary source? To the extent that the College of Arms has had an ongoing relationship with American citizens, state governments, and other organizations, they might have some insights worth noting. Obviously, they are not disinterested from a financial standpoint, but maybe—if we’re going to investigate this idea that any American law of arms rests upon the mother country’s in 1776—they would be willing to assist. I envision an exchange of letters, perhaps phone conversations, perhaps a visit.


Wow!  You go away for five or six days out of computer contact and look what’s there when you come home!

 

I’ve actually followed Fr. Guy’s sage advice and read the entire meandering thread before responding.  I’ll get to some other bits and pieces later, but first a reaction to Fred’s suggestion:

 

I don’t see any harm in asking, but I’d be surprised if the English officers of arms would be willing to express an official institutional view.  Individually, one or more of them might, and I expect it would conform to (and probably cite) the Squibb article on the imperial jurisdiction of the Earl Marshal mentioned by Hugh, partly because the late Garter Sir Anthony Wagner was strongly influenced by Squibb’s thinking on such subjects.  I haven’t read that particular Squibb piece myself, but I have read Noel Cox’s "Commonwealth Heraldic Jurisdiction," in The Coat of Arms (2005) (on-line at <www.theheraldrysociety.com/publications/Commonwealth.pdf>), which draws heavily on the earlier Squibb piece.  Squibb’s argument, as I understand it, can be summarized as follows:

 

- English law as it existed at the time of settlement applied in the settled colonies (i.e., places with a primarily English population and only a "savage" indigenous population) to the extent it was applicable to local conditions.

- English settlers continued to use arms in the colonies.

- The use of arms implies the existence of a law of arms.

- Therefore the English law of arms applied in the settled colonies.  QED.

 

I have not yet gotten far enough in my own research to have read the arguments cited contra Squibb in Cox’s references, particularly those to Michael Crawford.  However, even without that, I see several problems with applying this logic to the American situation.

 

First, the doctrine on reception of English laws in the colonies was much less developed in 1776 than it subsequently became.  In a sense, the controversies preceding the American Revolution induced the British government to state more clearly the extent to which English law applied to settled colonies.  The only equivalent statement during our colonial period was the 1720 opinion by Attorney General West, which I’ve mentioned before, which referred only to the common law, statutes enacted prior to settlement, and subsequent statutes specifically mentioning the colonies.  The law of arms does not fit into any of these categories.  Moreover, Lawrence Friedman’s work on American legal history makes clear that the extent of reception of even the common law in the colonies was far less (and less systematic) than the 1720 and subsequent theory would imply.

 

Secondly, while I tend to agree with Squibb (as related by Cox) that the use of arms implies the existence of a law of arms, that doesn’t necessarily mean the English law of arms, in its full-blown glory.  To me, it implies the existence of the jus commune law of arms explicated by the medieval civilians like Bartolo, Bonet, Pisan, Bado Aureo, Upton, et al.  This shared transnational law of arms was the legal foundation upon which the various national superstructures were constructed.  This is why the Court of Chivalry is a civil law court, as the old British Court of Admiralty was, and for the same reason.

 

Thirdly, even if the specifically English law of arms applied in the American colonies, it would, according to the theory of reception of the mother country’s laws, have been the law of arms as it existed in 1607, 1620, or whenever a particular colony was settled.  My point in raising this a couple of weeks ago was precisely:  what was the English law of arms in 1607?  I don’t think it’s entirely clear, and one of my reservations about relying too heavily on the official English view is that most English heraldic writing is full of anachronistic imposition of late interpretations upon earlier realities.  That’s why I think it’s important, for instance, to note that, until the period of the Restoration, the English Court of Chivalry rarely if ever tried anyone for mere assumption of arms.  That’s why I also think it’s important to look more closely at exactly what the early visitations did and didn’t do in terms of rejecting the ability of a gentleman to assume arms without a grant.  And so on.  The quasi-official English interpretation of these questions can be found in Wagner, Squibb, Brooke-Little, et al.; but that doesn’t make it the correct interpretation.

 

Fourth, we are not in legal terms purely the heirs of a collection of settled English colonies.  To start with, the British acquisition of New Netherland would be a complicating factor, since from a British perspective New York would not have been a "settled colony," as it had a "civilized" system of (Dutch) law already in place when Britain took possession.  By Squibb’s logic, New York and probably East New Jersey and perhaps Delaware would have been operating under the Dutch law of arms, which would have remained in effect until the British authorities did something to alter it.  The same would apply to post-1776 US acquisitions of formerly Spanish, French, and Russian territories.

 

Finally, it must be remembered that the controversy among Squibb, Cox, Agnew, Crawford, the folks at Heraldry Australia, and others, has to do overwhelmingly with the question of jurisdiction to grant arms, and specifically whether Lord Lyon is poaching on the Earl Marshal’s exclusive preserve in granting arms to residents of the Commonwealth.  I don’t think anyone would argue that the English kings of arms, operating under warrants from the Earl Marshal, had the power to grant arms to residents of the English colonies pre-1776 (or, from the British point of view, pre-1783).  The question is, to what extent did the regulatory aspects of English heraldic law apply in the colonies?

 
Joseph McMillan
 
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Joseph McMillan
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25 March 2008 20:52
 

eploy;55817 wrote:

The law of arms in England derives from civil law (it is codified). The rest of English law derives from common law/case law (judge-made law). While we Americans inherited much of our common law from the English, I do not believe we necessarily inherited their law of arms, which is civil law.


Edward,

 

I think you’re confusing different meanings of the term civil law.  Since Napoleon issued the Code Civil, based primarily on the old Roman civil law, we tend to think of civil and codified as the same.  In fact, however, the term "civil law" in this context refers to English law that was derived from Continental and other international sources.  The United States actually did inherit a considerable amount of English civil law, particularly in the areas of probate and admiralty.

 

In short, the English law of arms is anything but codified.  If it were, life would be ever so much simpler.

 
Joseph McMillan
 
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Joseph McMillan
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25 March 2008 21:05
 

Donnchadh;55823 wrote:

I’m sorry, but I’m unclear as to what you mean. Are you saying that English heraldic practice (College of Arms) is, or should be, the "mother" of American heraldry ... so to speak?

If so I most sincerely disagree and I do not see how one can assert this over the other nations with their own heraldic tradition/law who were here before the USA became the USA (the Dutch, the French, etc) and those later arriving Americans whose ancestry is from a place, also with a heraldic tradition/law, that is most decidedly not English.

 

One thinks of the clear differences between English and Scottish (or Canadian) heraldic law/tradition and they occupy the same island and share the same monarchy. How can we presume to place the whole of American Armory, as that is what would be done with a heraldic law, under the wing of England when she does not even have Scotland (or Canada) under her other wing?

 

Last I checked according to the census figures put out not long ago most Americans identify themselves as having a German heritage with the Irish coming in second ... I do not recall seeing the English listed, but they might have been. Certainly those two nations have just as valid a heraldic tradition/law as the English, do they not? The same for the Latin-Americans whose variety is even starker given it is Spanish, Portuguese, Italian, or even Brazilian (had its own monarchy with heraldry - not sure if different than Portuguese or not), etc ad nauseum.

 

I’m sorry, but I can not see how that is either fair, right or practical. I could, of course, have your premise all wrong and if so I apologize.


Denny,

 

It is important not to confuse two very different things:  law of arms and customs of heraldic design.

 

To the extent the issue is a law of arms, then where people’s ancestors came from is neither here nor there.  In fact, the overwhelming bulk of American law is traceable to English law, and that’s true regardless of which European power settled a particular territory first.  It’s not the same as English law, but the entire backbone of the legal system everywhere in the US is ultimately English.  The Constitution itself is quintessentially the work of lawyers trained in the English tradition.  So if we’re talking about an American law of arms, and especially how it might derive in historical terms, then we have to focus on England, not on Germany, Ireland, or wherever else people’s immigrant ancestors may have come from.  It would be defensible to argue that someone living in Virginia—of whatever ethnic origin—is bound by the English law of arms by inheritance from pre-Independence days; one could make a similar argument that someone in New Mexico—of whatever ethnic origin—is bound by the Spanish law of arms.  But it wouldn’t make any more sense to say that someone of Italian ancestry living in Michigan is bound by the Italian law of arms than to say that he’s bound by the Italian law of marriage, or probate, or riparian rights.  He’s bound by the law of the place he lives in, and on most matters, that law ultimately derives from English law.

 
Joseph McMillan
 
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25 March 2008 21:14
 

Donnchadh;55823 wrote:

Last I checked according to the census figures put out not long ago most Americans identify themselves as having a German heritage with the Irish coming in second ...


I wouldn’t put too much stock in these figures (although note that while those claiming German heritage is the largest single group, it is not a majority and therefore not "most").  The Census Bureau usually does high quality work, but the way this question is framed is really unacceptably sloppy by any standard of good survey research.

 

(For those interested in the arcana of survey methodology, there’s a pretty good paper by two of the Census Bureau’s own researchers critiquing the questionnaire used for a special census of racial and ethnic origins in 1995 at www.census.gov/srd/papers/pdf/mdp9502.pdf .  Unfortunately, the Bureau doesn’t seem to have taken its lessons to heart in designing the very simplistic question asked in 2000.)

 
Joseph McMillan
 
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25 March 2008 21:19
 

Nick B II;55828 wrote:

The Chief Herald [of Ireland] should certainly be consulted, but his office is under a bit of a cloud.


Not really, at least not since the Irish Attorney General issued an opinion a few months ago making clear that the CHI’s authority to grant arms has been on a sound legal and constitutional footing since the National Cultural Institutions Act went into effect in 2005.

 

There’s still a debate as to the validity of grants issued before that, but there is no cloud over the office with respect to current operations.

 

I was tempted to say that since Irish law was never in force in any respect in what is now the US, it’s hard to see why one would go to the CHI for an opinion on what the law of arms was in the American colonies, but on second thought it may actually be an interesting excursion, since Ireland was itself the recipient of a certain amount of, but not all of, English heraldic law. A comparative case study might be enlightening, if someone wanted to undertake one.

 
Joseph McMillan
 
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25 March 2008 21:27
 

Fred White;55848 wrote:

Denny, on a certain level, you’re preaching to the choir. I haven’t seen any evidence here of a consensus in favor of rejecting input from multiple heraldic traditions. Yet, there is no denying that the United States’ roots are firmly English. The Dutch, the French, the German, the Spanish, the Russian, the Hawaiian, etc. territories gave way to an English-speaking, English-derived civilization. So what if the names of towns and cities lack an English etymology? So what if there are petroglyphs and pueblos about? They’re part of our heritage, sure, but they aren’t the foundation of our culture.


Again, if we’re talking about law, then we have to recognize that there actually is a substantial enduring Spanish and (to a lesser extent, French) legal influence in much of the United States.  I mentioned in a response to Charles Drake in another thread that community marital property laws in much of the United States west of the Mississippi were specifically and consciously derived from Spanish law.  Rulings of a number of state supreme courts have held that community property laws are to be interpreted in light of Spanish jurisprudence.  The same historically applied in a number of other areas like the right of children legitimated by subsequent marriage of the parents to inherit on an equal basis with children born in wedlock.  This last is exactly the kind of issue that would have armorial implications under a law of arms.  Under the English law of arms, a legitimated bastard could not automatically inherit his father’s arms; under the Spanish law, he could.

 

So while I agree that England and the English colonies must be the main focus in researching what an American law of arms might be (if there is such a thing, which, I keep repeating, I consider an open question), I don’t think we can dismiss the Spanish and French so easily, and perhaps not the Dutch either.

 
Joseph McMillan
 
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Joseph McMillan
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25 March 2008 21:46
 

Fred White;55947 wrote:

Recall that the "father" of our country, George Washington’s main but thwarted ambition in life was to get a regular commission in the British Army, that he fought for England in the French and Indian War (which he was actually personally responsible for touching off), and that he wasted no time getting in touch with the College of Arms the minute the war was over so he could verify his English ancestry and his right to an English coat of arms.


The extent to which Washington was driven by his disappointment at not being given a regular British commission is a matter on which opinions may differ (personally I doubt whether that was his main ambition in life, although obviously it was an ambition at one time).

 

It is a matter of fact, however, that Washington did not approach the College of Arms to verify his English ancestry or his right to an English coat of arms.  Sir Isaac Heard, Garter, approached Washington (letter of December 4, 1791), not the other way around, providing a drawing of the Washington arms and asking for genealogical information on Washington’s family.  Washington responded (letter of May 2, 1792) by acknowledging that the arms Heard illustrated were indeed the arms of his family:  "The Arms enclosed in your letter are the same that are held by the family here—though I have also seen, and have used as you may perceive by the Seal to this Packet a flying Griffin for the Crest."

 

Source:  George Washington Papers at the Library of Congress, http://memory.loc.gov/ammem/gwhtml/gwhome.html

 
Joseph McMillan
 
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Joseph McMillan
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25 March 2008 21:52
 

Fred White;55968 wrote:

Are you suggesting we should have regional laws of arms?


Denny probably isn’t (if I remember past discussions correctly).

 

But I am.  Or at least suggesting that as a possibility.

 

Not regional, though, but state.  I can’t conceive of any theory of the Constitution that would permit there to be a federal law of arms, just as there isn’t a federal law of inheritance, or a federal law of marriage, or a federal law of adoption.

 

If we can have different laws of marriage, inheritance, adoption, property rights, and lots of other things from one state to another, it seems logical to me that we would also have different laws of arms.

 
Joseph McMillan
 
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25 March 2008 22:08
 

Fred White;55969 wrote:

The fact that a majority of Presidents haven’t been Episcopalian…


Not a majority, perhaps, but more than any other single denomination, by a short nose over Presbyterians.  Depending on how you count (religion raised in, affiliation as an adult, etc.) there have been 11 or 12 Episcopalians and 10 or so Presbyterians.

 
Donnchadh
 
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26 March 2008 01:31
 

Quote:

Denny,

It is important not to confuse two very different things: law of arms and customs of heraldic design.

This is a good point Joe and a pattern I routinely slip into, so it is good to be reminded of this every so often.

I’m not a lawyer type, so I will have to defer to you and others who have a better grasp on the law in the idea of if American law derives from English law. I mean, I know it does, but it seems to me that after this much time it would just be, well, American law. But, these things are just not my ring of knowledge.

 

I suppose if we look at it in those terms of a “law” of arms and holding that American law is English law then I would have to go along as I don’t know much more about the law to say we shouldn’t. Sad I guess, but I don’t.

 

And you are right I’m not now, or before, proposing a regional sort of angle. Thanks for the catch. smile

 
Wilfred Leblanc
 
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26 March 2008 02:31
 

Joseph McMillan;56124 wrote:

It is a matter of fact, however, that Washington did not approach the College of Arms to verify his English ancestry or his right to an English coat of arms.  Sir Isaac Heard, Garter, approached Washington (letter of December 4, 1791), not the other way around . . .


Thanks for the correction, Joseph. Welcome back!

 
Michael Y. Medvedev
 
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27 March 2008 14:25
 

Joseph McMillan;56125 wrote:

[Re: different law of arms in different States of the USA]

I can’t conceive of any theory of the Constitution that would permit there to be a federal law of arms, just as there isn’t a federal law of inheritance, or a federal law of marriage, or a federal law of adoption.

 

If we can have different laws of marriage, inheritance, adoption, property rights, and lots of other things from one state to another, it seems logical to me that we would also have different laws of arms.


This is an important consideration and theoretically I do support it.

Practically… practically I cannot either support or oppose it, being non-American.smile

 
Kenneth Mansfield
 
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27 March 2008 16:10
 

Joseph McMillan;56125 wrote:

Not regional, though, but state.  I can’t conceive of any theory of the Constitution that would permit there to be a federal law of arms, just as there isn’t a federal law of inheritance, or a federal law of marriage, or a federal law of adoption.

If we can have different laws of marriage, inheritance, adoption, property rights, and lots of other things from one state to another, it seems logical to me that we would also have different laws of arms.


Amendment X of the U.S. Constitution: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

 

I’m gonna have to go with Joe on this one. Not ideal, but a federal law seems highly unlikely.

 
 
George Lucki
 
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27 March 2008 17:56
 

kmansfield;56234 wrote:

Amendment X of the U.S. Constitution: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

I’m gonna have to go with Joe on this one. Not ideal, but a federal law seems highly unlikely.


I wonder. If arms are a matter of state regulation or free assumption there might be several places where there is a role for the federal government.

 

1) Under the enumerated powers in section I of the Constiturion Congress may legislate To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

 

Such armorial rights could be a new form of copyright (certainly this area has been greatly stretched in the digital age) - with protection for a generation and licencing and a rematrciulation provision that could continue it into perpetuity without violating the limited time rule.

 

2) Article 4 gives the federal government a role in harmonizing the forms used in various states -

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

 

This might create what is in effect a potential federal registration framework without impinging on state rights.

 

Is this potentially consistent with the constitutional provisions?