Consulting College of Arms

 
Nick B II
 
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Nick B II
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27 March 2008 19:42
 

Don’t stress about this too much. An official US Law of Arms would probably be modeled on other personal identifiers. States have full jurisdiction over purely personal names, so they get jurisdiction of purely personal arms. They have no jurisdiction over over some business identifiers, such as trademarks; but have jurisdiction over business names.

So there’d probably be State Laws, each about the same. There’s be a Federal Registry, presumably with it’s own rules; for people using their CoAs for business in more than one state.

 

Nick

 
Hugh Brady
 
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Hugh Brady
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27 March 2008 22:46
 

George Lucki;56243 wrote:

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 . . .

 

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


Probably not. Generally, Art. I, Sec. 8, Cl. 8 only reaches patent and copyright law, and as pointed out many times, you cannot copyright an idea, only the expression of the idea. The Supreme Court has held that this clause does not authorize the Congress to enact protections for trademarks. The only basis for Congressional action is the Commerce Clause, which requires that you use arms in interstate commerce.

 

The Full Faith and Credit Clause does not provide an independent grant of power to the Congress to create a Federal registration framework absent a State method for creating the record. That is, if a Maryland court enters a judgment related to ownership of arms, another state would be required to honor that judgment if the victor sought enforcement in that state. Further, if ownership of arms were against the public policy of that state, e.g., the state’s constitution specifically forbid the ownership of arms, then the Maryland judgment is void in that state.

 
Jay Bohn
 
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Jay Bohn
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28 March 2008 06:13
 

Hugh Brady;56263 wrote:

The only basis for Congressional action is the Commerce Clause, which requires that you use arms in interstate commerce.


I understand that the trademark statute requires use in commerce that Congress can regulate (including not only interstate but also foreign and with Indian tribes), but could it prohibit from such commerce marks used by another solely intrastate? Of course, that would not prevent intrastate usurpation.

 
Hugh Brady
 
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Hugh Brady
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28 March 2008 23:55
 

Federal registration of a mark preempts a similar mark from being used in intrastate commerce if that mark is not already being used in that state; otherwise, the state mark will preempt the federal mark only in that state. For example, I used WhiteStar as a state mark in Lone State before you registered WhiteStar with the Federales. You can use WhiteStar anywhere in the country except Lone State.

 
Nick B II
 
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Nick B II
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29 March 2008 00:47
 

Jay Bohn;56281 wrote:

I understand that the trademark statute requires use in commerce that Congress can regulate (including not only interstate but also foreign and with Indian tribes), but could it prohibit from such commerce marks used by another solely intrastate? Of course, that would not prevent intrastate usurpation.

That still puts a major damper on bucket shops. Some Credit Card transactions, for example, cross state lines. Even face-to-face cash sales would be tricky, and totally impossible in a place like New York City; which has suburbs in three states.

So if the Federal government regulated Arms used in inter-state commerce the bucket shops would have to obey the regulations. Of course, this being America; one would probably register all the family coats it uses now. So we’d need to a bureaucracy of some sort to sort through all the BS claims they’d make.

 

Nick

 
PBlanton
 
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PBlanton
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29 March 2008 13:59
 

What if each state enacted it’s own heraldic law and then created an interstate compact agreement stating that they would mutually comply with the other state’s heraldic laws and possibly even have a central database for the purpose of checking for conflicts in arms (blazon and emblazon)?  This already happens with other laws (e.g., driver’s license suspensions/revocations).

As far as state-level protection is concerned—what about using a heraldically certified notary public?  This would be similar to using a Signing Agent that would sign a certificate of acknowledgment when new arms are registered.

 

Take care,

 
 
Jay Bohn
 
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Jay Bohn
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29 March 2008 15:19
 

I had thought about an interstate compact (which needs the consent of Congress). That means no shortcut but in fact requires legislation in at least two states as well as the federal level.

 
Jay Bohn
 
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29 March 2008 22:27
 

Hugh Brady;56345 wrote:

Federal registration of a mark preempts a similar mark from being used in intrastate commerce if that mark is not already being used in that state; otherwise, the state mark will preempt the federal mark only in that state. For example, I used WhiteStar as a state mark in Lone State before you registered WhiteStar with the Federales. You can use WhiteStar anywhere in the country except Lone State.


I understand that that is what the law is, but my question is whether Congress could regulate interstate commerce by saying that if I use WhiteStar in Lone State, no one [else] can use WhiteStar in interstate commerce?

 
Donnchadh
 
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Donnchadh
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30 March 2008 12:20
 

I’m about to throw a monkey wrench in the mix, so ... here it goes ...

I’m not sure we ever want a "law" of arms. If we do that means that we will give away our ability to assume and for societies like this and people like us to offer helpful ideas to prospective new armigers. Not to mention give away the creativity, imagination used in assuming arms.

 

If a governmental agency, federal or state, has say over what we can bear as a coat of arms we will loose out on all sorts of creativity and imagination - there is precious little creativity and imagination in the work of the government - not the politicians mind you, but those countless government and governmental corporation employees.

 

Ever been stuck dealing with someone from the IRS, or a EPA, or FIMA, or SSA (don’t get me started on the complete idiocy that government agency is loaded with), the U.S Postal Service, etc? There is no imagination, no creativity, frankly no customer service at all and I have dealt with each one of those at some level for either myself, a loved one, or with money and goods to offer as support. It has been my sad experience that every time the government gets involved they usually make it worse. Even from a law enforcement side my dad has many, many stories of ineptitude on the part of the FBI when dealing with them breaking up car theft rings while he was an auto-theft detective for the Aurora Police Dept – always by the book and never thinking on their feet or adjusting to the circumstances on the fly.

 

Why would we want to do that to American heraldry?

 

It is far better, in my not so humble opinion, to have guidelines and then encourage people to follow such guidelines and create wonderful, thoughtful ... truly individual pieces as you (we) do now. Your society’s guidelines and the work many of you do here is the best we can hope for and certainly a darn site better than any law from the federal or state governments, or the mindless drones who tend to occupy positions in government agencies.

 

My apologies to all who work for the federal government and actually are creative and imaginative; don’t take it personal this has just been my real life, practical experience with most government agencies and their employees.

 
Jonathan R. Baker
 
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30 March 2008 12:43
 

Denny, I agree with the general thrust of your argument.  I would prefer not to have government regulation.  Ideally, the government would simply recognize heraldic devices as valid personal identifiers and protect the user from usurpation.

 
Jay Bohn
 
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Jay Bohn
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30 March 2008 13:06
 

I don’t disagree with the previous two posts in that we want to keep the government as far as possible from the creative end.

The sticky part is that if you are going to have some form of protection, you need clear rules as to what (the arms—whole achievement, shield, crest, badge?) is protected from what (what use constitutes usurpation, what remedy—injunction, damages, deface offending tombstones?) and whom (have to be clear who is entitled to the arms, the whole inheritence thing has to be clear).

 
Joseph McMillan
 
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Joseph McMillan
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30 March 2008 13:24
 

This is the point of trying to determine whether there is an existing customary law of arms that one could enforce against usurpers.  In principle, I don’t see why this wouldn’t work; courts enforce commercial customs as law (that’s how what is called the "law merchant" was received into English and now American law), and in admiralty cases the vast bulk of the law dealt with originated in the "customs and usages of the sea."

 
Jay Bohn
 
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Jay Bohn
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30 March 2008 14:35
 

I don’t think the question is whether "unwritten" law can be discerned from custom and usage. It may be no different in principle from the law merchant or admiraly law, but there is a continuous tradition of administering that law in this country. If there is no established judicial tradition of enforcing a law of arms in the 232 years since the Declaration of Independence, I just don’t see how we are going to establish a regime of armorial protection absent positive legislation. And if there had been such a tradition in 1776,  it would likely now be held to have fallen into desuetude as a result of two centuries’ non-practice.

If even in England* the only court that can provide such protection is the court of chivalry (not a common law court) which has itself sat only once since 1732 (and then urged that its jurisdiction be confirmed by statute), state court judges as the successors of the common law (except in Louisiana which is not a common law jurisdiction) tradition are just not going to get in that business on their own. I would suspect that the basis for their jurisdiction over non-common law area, such as probate (originally administed by ecclesiastical courts), are based upon the various state constitutions which I bet do not mention the law of arms.

 

Let’s not even get into the whole political/philosophical question of "activist judges."

 

*Scotland is different, but our legal system is not derived from Scotland and even there isn’t the Lord Lyon’s jurisdiction statutory in origin?

 
Nick B II
 
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Nick B II
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30 March 2008 20:50
 

Donnchadh;56425 wrote:

I’m about to throw a monkey wrench in the mix, so ... here it goes ...

I’m not sure we ever want a "law" of arms. If we do that means that we will give away our ability to assume and for societies like this and people like us to offer helpful ideas to prospective new armigers. Not to mention give away the creativity, imagination used in assuming arms.

 

If a governmental agency, federal or state, has say over what we can bear as a coat of arms we will loose out on all sorts of creativity and imagination - there is precious little creativity and imagination in the work of the government - not the politicians mind you, but those countless government and governmental corporation employees.

What I imagine when I think of an American law of arms is nothing like that.

There’d be some sort of licensing for private heralds, similar to the licenses for Doctors, or Lawyers. You can go to one at any stage of the creative process. The Herald could help you design from scratch, or you could get him to register your a pre-existing coat.

 

Actual registration requires a few things things—a blazon, and an affidavit signed by a herald that the coat obeys the laws of heraldry. A picture of the full achievement might also be required. Ideally the blazon would be sent to a federal database, that heralds could use to prevent the duplication of coats.
Donnchadh;56425 wrote:

Ever been stuck dealing with someone from the IRS, or a EPA, or FIMA, or SSA (don’t get me started on the complete idiocy that government agency is loaded with), the U.S Postal Service, etc? There is no imagination, no creativity, frankly no customer service at all and I have dealt with each one of those at some level for either myself, a loved one, or with money and goods to offer as support. It has been my sad experience that every time the government gets involved they usually make it worse.

The Social Security Administration exists to do exactly one thing: send people who qualify for Social Security money. Can you imagine the out-cry if they started sending out money "creatively?" Or the IRS started calculating tax bills "imaginatively?" I know artists value creativity, and imagination very highly. But for some jobs creativity and imagination are VERY bad things.

EPA and FEMA are slightly different, because their jobs require dealing with the real world and not just the statute books. But remember this is America. We don’t have unity of powers, we have Separation of Powers. If the EPA gets creative without Congress’s express permission bad things happen to the EPA. I still haven’t mentioned the President or the Courts.

 

As a Poli-Sci guy it always annoys me a little when Americans complain that their government is too rigid. Separation of Powers means all decisions happen by Committee in DC. Which means the federal employees real americans deal with can not actually make any major decisions, they have to rigidly enforce the rules DC has given them.

 

Nick

 
Donnchadh
 
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Donnchadh
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30 March 2008 23:17
 

Quote:

What I imagine when I think of an American law of arms is nothing like that.

There’d be some sort of licensing for private heralds, similar to the licenses for Doctors, or Lawyers. You can go to one at any stage of the creative process. The Herald could help you design from scratch, or you could get him to register your a pre-existing coat.

Why involve the government at all then? This already exists without the governments control fetish – and don’t you think they don’t have one! Why not have your society, or some other I guess, put together tests like the Canadians and English do and certify people as heralds thay way? That’s all that’s needed if we are going to have heralds running around everywhere. Simply have them certified by a heraldry society so a buyer can no that if he meets Mr. John Doe, CH (Certified Herald) he is in better hands, possibly, than Mr. Doe John who has no certification. You can have protection for quality control without the government’s long reaching nose involved.

The only good thing that a government oversight could provide would be protection of property, like artistic/intellectual property.


Quote:

Actual registration requires a few things things—a blazon, and an affidavit signed by a herald that the coat obeys the laws of heraldry. A picture of the full achievement might also be required. Ideally the blazon would be sent to a federal database, that heralds could use to prevent the duplication of coats.

Again this is much more than is needed unless one has a fetish for legalisms IMPO. Once you give a government agency an inch they will take a mile; it is the nature of all government agencies the world over. In many cases this is good and I have no problem with it, but in the case of heraldry? No way.

All that is needed is legal, equal protection of arms and that is it. Federal databases require places to house them, employees to process them and so on, which really means more growth of those agencies and certainly more money for the service and less quality for the product. Do we really want the US to mirror the ridiculous prices of ECOA, LL, etc? I think not. Certainly we don’t want the terrible long waits due to over-bloating government controls like we seen in Scotland with LL and his few artists trying to get all the grants, matriculations for the feudal barons who applied before the appointed day to happen here. Then you have not only the real practice of pricing out the average citizen, but such long wait times (queues) that it starts to make people wonder, ‘why bother’?

 

The very best thing about American heraldry as it exists today is that it is still open to the everyday man working at the factory, the policeman, the teacher, who can afford it whereas such people can not, by and large, with over-bloated systems that exist today.


Quote:

The Social Security Administration exists to do exactly one thing: send people who qualify for Social Security money. Can you imagine the out-cry if they started sending out money "creatively?" Or the IRS started calculating tax bills "imaginatively?" I know artists value creativity, and imagination very highly. But for some jobs creativity and imagination are VERY bad things.

No, you are very wrong Nick. Clearly you’ve never dealt with them. Applications to the SSA are required before one can apply for medicare/Medicaid. So, that a 45 year old male who suffers the onset of a disability three years prior, but has family to help him live, but needs medical care, medical care he put in for for all these years prior, must apply for and be granted an SSA stipend before he can even get to the medical side of it even if he does not need, or want, the monthly stipend. This does not even include the county social services that must be involved even before you can go to the SSA even if all you wanted was Medicare/Medicaid.

Trying to get most people, from the phone clerk, to the case manager, to the review board (medical people no less) at the SSA, at least here in Colorado, to think outside of the box and use the brain God gave them is like trying to milk a bull and, Nick, that dog don’t hunt!

 

As to getting the IRS to think outside the box, involved that same man who was then audited by the IRS as he was not making, or better reporting, the money he used to, and when informed why the response was, “That’s too bad, but we must move forward with the audit.” So much for IRS creativity and imagination in thinking outside the box.

 

How do I know? Personal experience; helping my relative get it in this exact situation I laid out, which took a little short of three years … just a few months short of his passing from cancer. So that sort of over-bloated, box-mentality, idiocy is what I am speaking of when I speak of governmental lack of creativity and imagination. So, it is not just me speaking “as an artist” what with my built in “value” of creativity and imagination, but as a real person who really did go through that most disturbing and asinine process courtesy of morons who make and then implement policy. But, I give you points for trying to be clever with that comment anyway.

 

As to FEMA (should be F IDIOT MA, not FEMA, but I digress), trying to get a parish family newly arrived in New Orleans aid after Katrina was so much crap I won’t even bother with the details, suffice to say that indeed they “ought” to be people who “deal with the real world” and not just policy, but that was not the case. That family moved back here and we helped them with no aid from the FIMA, err sorry, FEMA at all.

 

As to the EPA, this is the single most policy minded agency in the entire Union! When you place a small section of a river that “might” have endangered fish in it above the trapped fire-fighters fighting forest fires in Colorado to the point that several men were injured and died is just disgusting! I am a conservationist and outdoor enthusiasts and sportsman and am the first in line to help save species that need our help, but never over an above the men fighting fires that are killing tens of thousands of animals while the government dictates that water from the closest spot could not be used because of an endangered fish, well, call me silly and slap me with a rolling pin, but that is the clearest case of people following statutes and being by the book over dealing with real people in the real world I’ve ever known. As a P.S. to this story, all that was given afterwards was an ‘we will change our policy on this now after review’ … after review indeed … tell that to those men’s kids and widows … please real world people indeed.


Quote:

As a Poli-Sci guy it always annoys me a little when Americans complain that their government is too rigid.

Rigid, inept, over-bloated, lazzy, unimaginative, un-creative, etc. Outside of the military I find precious little that the government does to be of much value in the real world…certainly for what I pay in and certainly the amounts that wealthier people pay in.

As a tax-paying citizen, it always annoys me when the people who live off of my dollar and hard work can’t use their heads like the rest of us have to in the many different situations we encounter at work…even worse is when people try to tell me I can’t complain when I get so, so, so very little return for my tax dollar….from real-life experiences Nick – not theory garnered from a book. I vote, I obey the law, I pay taxes. I have the right to complain when ineptitude shows its ugly face time and again.


Quote:

Separation of Powers means all decisions happen by Committee in DC. Which means the federal employees real americans deal with can not actually make any major decisions, they have to rigidly enforce the rules DC has given them.

Thank you for making my point and saying what I said above to which you replied. They can’t, exactly!, and this is what people want of American heraldry?

I don’t.