Just arrived from the Cronista de Castilla y Leon

 
Joseph McMillan
 
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Joseph McMillan
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16 May 2012 22:32
 

Michael,

We’ve been through this over and over and simply disagree.  In a state governed by laws, public institutions may do only those things for which they have legal authority.  The junta of the autonomous region of Castile and Leon does not have legal authority to commission a cronista for the certification of personal arms.  It’s that simple.

 
Michael Y. Medvedev
 
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Michael Y. Medvedev
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17 May 2012 03:38
 

Dear Joseph,

it is not about a simple disagreement; it is about questionable interpretation of the basic texts as well as of their heraldic relevance.

I would respectfully leave you alone in peace with your opinion—but I cannot beat the impression that something was simply overseen by one (maybe both?) of us.
Joseph McMillan;93523 wrote:

The junta of the autonomous region of Castile and Leon does not have legal authority to commission a cronista for the certification of personal arms.

Are you so sure?

A) The Autonomy is statutorily entitled to exclusive competence [sic] as to the historical, artistical etc patrimony which is of interest for the Autonomy; the cultural centers (archives etc) unless they depend directly on the state administration; the promotion of culture and investigations (art.26 of the Statute, supported by Royal Decrees and other acts). The Autonomy enjoys vast freedom in defining what is of cultural interest for itself and how to deal with those objects of interest.

Even the Autonomy’s particular care as to the cultural activities related for family matters is founded in law.

 

B) The Autonomy is statutorily empowered to create and maintain officers and offices to fulfil its tasks (including the tasks lawfully chosen by the Autonomy itself).

 

I still cannot understand :confused: : what’s wrong with creation of an office[r] able to record and support (and offer some symbolic protection to) the tradition of family heraldry as a cultural phenomenon of obvious importance?

 
Derek Howard
 
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Derek Howard
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20 May 2012 04:54
 

It may be that the regional government needs only to reappoint the officer with explicit powers and citing unambiguously in the preamble of the document the precise powers they have to take action in this field and their powers to appoint officals. The regional government could perhaps avoid problems by having a minister sign the registration.

In Belgium too, wide powers over cultural matters were also delegated to the community governments who chose to appoint officials to deal with public arms. The courts have ruled that this is correct. The community governments have then expanded the competences of their offices to deal with registration of personal arms. However, all grants/registrations are signed off by community government ministers, so technically the final authority to register still lies with the community governments and not with the officials.

 
Joseph McMillan
 
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Joseph McMillan
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20 May 2012 09:28
 

The problem is that Michael is applying his textual analysis in a vacuum.

We need to start with the 1749 decree of Fernando VI, which provided that "no person [other than a king of arms] may carry out the functions peculiar to these [kings of arms] or issue instruments and certifications of genealogy and matters pertaining thereto." Carlos IV reiterated and clarified this prohibition in 1802, citing the fact that various people had intruded (se han entrometidos) upon the kings of arms’ monopoly of this function.

 

King Alfonso issued his 1915 decree in the context of these two prior decrees. Among other things, it specified the qualifications of what were now called "chronicler-kings of arms" (cronistas-reyes de armas), prescribed the process for their appointment by the Minister of Justice, and provided that their certifications would be valid only if authenticated by the Ministry of Justice. Franco’s decree of 1951 basically did nothing but revive and reinforce the 1915 decree, and tacitly altered the title to "chronicler of arms" (cronista de armas).  So as of the establishment of the autonomies in the early 1980s, only a cronista could issue a certification of arms (under the 1749 and 1802 decrees), and to be a cronista one had to be appointed by the Minister of Justice pursuant to an examination, and for such a cronista’s certifications to be valid, they had to be countersigned in the ministry.  La Floresta himself tacitly acknowledged that this was and is the law when he sought an order requiring the Minister of Justice to examine and appoint him.

 

If the framers of the statute and decrees setting up the autonomous region of Castile and Leon had meant to overturn or alter these existing regulations governing the certification of personal arms, they would have been just as specific about that as they were about all the other powers that they specifically transferred. The decrees, although not the statute, specifically list in an annex the prior legislation affected by the transfer; the 1915 and 1951 decrees governing cronistas are nowhere to be found. Indeed, the mere fact that the decree cited by La Floresta in his petition and by the Council of State in its ruling mentions the transfer of authority over civic heraldry but not over personal heraldry should tell us that the latter was not affected.

 

As to the provisions of the statute (Organic Law 4/1983) cited by Michael, the term patrimonio does not mean cultural heritage generally but historic sites and properties—castles, palaces, churches, and so on. Control over patrimonio cannot reasonably be stretched to cover control of personal heraldry. I’m not finding any particular reference to family matters in any of the provisions referring to "cultural" affairs, but let’s suppose I’m just missing it. Would such a provision empower the junta of C&L to legislate on the subject of surnames in a way that conflicted with national law? If not, why would it empower the junta to legislate on personal arms in a way that conflicts with national law?

 

"Culture" is a slippery term that can mean just about anything, but I can’t sign up to using it as a catch-all to capture control over personal heraldry when there’s an existing legal regime governing that subject that is not once referred to in any of the documents defining the autonomy’s powers.

 

Look, in the United States, states have implicit, reserved powers over everything that is neither delegated by the Constitution to the federal government nor prohibited by the Constitution to the states. I am not only comfortable with this principle, I embrace it.

 

But that’s not the basis on which the Spanish autonomous regions were set up.

 
eploy
 
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eploy
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21 May 2012 04:36
 

Joseph McMillan;93603 wrote:

Franco’s decree of 1951 basically did nothing but revive and reinforce the 1915 decree, and tacitly altered the title to "chronicler of arms" (cronista de armas).  So as of the establishment of the autonomies in the early 1980s, only a cronista could issue a certification of arms (under the 1749 and 1802 decrees), and to be a cronista one had to be appointed by the Minister of Justice pursuant to an examination, and for such a cronista’s certifications to be valid, they had to be countersigned in the ministry.  La Floresta himself tacitly acknowledged that this was and is the law when he sought an order requiring the Minister of Justice to examine and appoint him.


As usual, I find Joseph’s reasoning quite moving.  I simply wish to point out, however, that the Spaniards did not seem to follow their own laws when appointing the late Don Vicente as a Cronista de Armas.  As I recall, the decrees in question also required the Cronista de Armas to be either a graduate in law or philosophy and to pass an examination.  AFAIK, Don Vicente was neither a graduate in law nor philosophy, and he did not pass the requisite examination, and yet Franco’s appointment was honored and never challenged even though it was in clear violation of the law.  Is it possible that Joseph’s reading of Spanish law is much stricter than in practice?  (Leaving aside of course his very reasonable expectation that the law be honored/followed by even the state).

 


Joseph McMillan;93603 wrote:

Would such a provision empower the junta of C&L to legislate on the subject of surnames in a way that conflicted with national law? If not, why would it empower the junta to legislate on personal arms in a way that conflicts with national law?


Great point.  Sadly, while this is a national law on this matter, there is no mechanism currently in place to effectuate that law (i.e., no Cronista de Armas to make the system work).  While the system is dormant, I think the notarial certification of arms and genealogy is a good faith solution/attempt by the public to uphold Spanish law (something the lawmakers have left unaddressed) since it at least deposits the arms and genealogy in some archive thereby putting the arms and genealogy on public record somewhere in Spain.  It would be nice, however, for the Spanairds to either appoint a proper Cronista de Armas, or dismantle the current legal framework entirely and allow for the free assumption of arms.  The current state of ambiguity is regrettable.

 
Joseph McMillan
 
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Joseph McMillan
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21 May 2012 08:22
 

eploy;93609 wrote:

It would be nice, however, for the Spanairds to either appoint a proper Cronista de Armas, or dismantle the current legal framework entirely and allow for the free assumption of arms. The current state of ambiguity is regrettable.


I agree that leaving things in limbo seems a bad idea.  Personally, I think if I were Spanish I would favor adding personal heraldry to the things under the jurisdiction of the autonomies, which would allow C&L to regularize La Floresta’s status.

 

But I must add that it’s never been clear to me that free assumption of arms is not already legal in Spain.  I’ve yet to find a Spanish legal text (statute, decree, or early commentator on nobiliary and heraldic law) that says it’s illegal to bear arms without a cronista’s certification.

 
eploy
 
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21 May 2012 23:17
 

Joseph McMillan;93610 wrote:

Personally, I think if I were Spanish I would favor adding personal heraldry to the things under the jurisdiction of the autonomies, which would allow C&L to regularize La Floresta’s status.


I agree that a formal, explicit transfer would be the most practical solution since the central government refuses to appoint new Cronistas.  In all fairness to Michael, however, I think a sort of transfer has already happened albeit in a very questionable, potentially ultra vires fashion.  But then again, the Spanish Cronista office is no stranger to legal irregularity as I pointed out earlier with regards to the appointment of the late Don Vicente.

 

I think over time, the notarization of private assumptions of arms will probably be recognized as legitimate by the Spanish state as since AFAIK notarization is already used in so many other even more fundamental areas of Spanish life (buying a home, drafting wills, etc).  Morally, it is the best that a Spaniard can do since the state is not fulfilling its duty of appointing a new Cronista de Armas to certify private arms and genealogies.

 

 


Joseph McMillan;93610 wrote:

But I must add that it’s never been clear to me that free assumption of arms is not already legal in Spain.  I’ve yet to find a Spanish legal text (statute, decree, or early commentator on nobiliary and heraldic law) that says it’s illegal to bear arms without a cronista’s certification.


Thanks for that Joseph.  My Spanish is very rusty and I have not yet read (in translation of course) all of the Spanish legal texts on the matter.  I think the heraldists who said that the free assumption of arms in Spain is illegal were trying to compare or place the Spanish heraldic officers on par with its English & Scottish counterparts in an effort to raise the value of their own certifications.  Of course, that is all nonsense.  The British model of heraldry has always been the minority viewpoint anyway, and likewise carries little weight in Spain or the rest of Europe.  Assumption was and remains the global standard.

 
Michael F. McCartney
 
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22 May 2012 17:18
 

So it would appear that while the actual certification of the arms may exceed the legal authority of the C&L cronista, the recipient is still free to bear the arms (since certification is apparently not necessary).

The act of designing, describing and painting the arms for a client, short of the actual certification itself, doesn’t appear to be illegal—its what any number of heraldic artists freely do (but not for free!).  And the registry maintained by the provincial government (or it’s cronista?) would seem to provide a reliable record that thus-&-such arms were used by thus-&-such a client as of thus-&-such a date, which IMO is the main value of a registry in any country that does not both mandate registration and bar the use of unregistered arms (i.e., Spain isn’t Scotland, to their mutual relief—paella and oatmeal isn’t an appetizing mix!).

 

The Spanish can sort out the fine points of certification authority as they see fit; or let it ride & look again later (if ever) at which point they can decide, under their laws, whether or not past practice trumps the letter of the law.  That question needn’t & IMO shouldn’t much concern us here since, either way it’s decided in Spain by and for the Spanish, here it’s just a hopefully reliable record of assumption (who-what-where-when) regardless of the quirks and perks of foreign law.

 
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22 May 2012 22:08
 

eploy;93625 wrote:

I think the heraldists who said that the free assumption of arms in Spain is illegal were trying to compare or place the Spanish heraldic officers on par with its English & Scottish counterparts in an effort to raise the value of their own certifications.


Furthermore, I think the heraldists who made the statement were probably not lawyers or did not appreciate the intricacies of legal terms.  Just because something is not recognized or protected under the law (e.g., private coats of arms in most countries of the world; assumed arms in Spain without a Cronista certification) does not make them illegal.  When something is illegal, it is expressly or impliedly in violation of the law and therefore forbidden.  In most countries of the world at least today, the private assumption of arms is not expressly or even impliedly forbidden by law.  Private arms may not be recognzied or receive legal protection, but that certainly does not make them illegal.  I think the heraldists in question may have also been sloppy in their use of terms.

 
Michael Y. Medvedev
 
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Michael Y. Medvedev
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23 May 2012 06:14
 

Dear Joseph, dear friends,

First of all, I also think that free assumption of arms is legally possible and fully plausible in Spain, at least provided that the basic "ethics of assumption" is observed. I mean the particular caution as to what appears, within the Spanish context, specifically honourable elements, and avoidance of mere assumption of these (although it is possible to reflect the honours already belonging to the family or person).

 

Then, dear Joseph, AFAIK the Spanish "patrimonio" (in the legal sense) may be, and frequently is, applied to matters which are materially valuable (even potentially valuable) without being material themselves. I do agree with you that the legal references to the cultural matters must not be interpreted too broadly; but your [counter]definition seems too narrow.

 

I also gladly agree that the 1915 decree is restrictive and that its direct application to the Autonomy’s office of arms would be a kiss of death. This was not the original opinion of the Ministry of Justice which for a while gladly validated the certifications of the regional Chronicler (apparently as a continuation of what was done under the said decree), but I think the Ministry was legalistically right in terminating that practice. Indeed the current Chronicler made an attempt to be admitted by the state under the terms of the decree (which would be a matter essentially different from his regional capacity, although he tried to rhetorise it otherwise) but failed due to the unfavourable opinions of the Ministry of Justice and the State Council; so, it is a dead end.

 

It is not apparent however that the 1915 decree must be applied to the current situation at all. If the regional certifications and confirmations will be (as they should be) conceptualised and kept as void of and alien to the premial/honouring prerogative of the Spanish state, then this would constitute the activity and competence patently different from those protected by the 1915 decree.

We may or may not accept the logic of the State Council (regarding the alleged distance between the "family chroniclers" and the municipal ones). But if we do, we should admit that the non-premial regional Chronicler is no less distinct from the earlier largely premial state King of Arms, than the latter is distinct from the municipal Chronicler.

In my opinion, it is all even simpler as the 1915 decree refers to the Kings of Arms which title is not given to the regional Chronicler. The 1951 decree in which the two definitions suffer a kind of a merger is not precise enough in making them fully synonimical. So, the restrictions of the 1915 decree are to be extended to the modern Chroniclers’ activity only as far as this activity is identical to that of the Kings of Arms of old. The Marquess de La Floresta did much (alas) to produce an illusion that they are identical; but even he admits now that they actually are not.

 

Indeed the state did not transfer the Kings of Arms’ powers to the Autonomies. It delegated its own power to deal with municipla honours (which presumably would cover all relevant activities of the Spanish Kings of Arms if they would currently exist), not with other honours. But as to family and personal arms, no explicit trasfer of power, no reference to the 1915 decree in the modern decrees is necessary; a regional office of arms may be created merely out of care regarding the citizens’ rights, interests, and cultural legacy.

 

As to the family-referring formulas of the current Spanish law, it seems that there are several relevant passages; the first piece that comes to mind is this: REAL DECRETO 2469/1982, de 12 de agosto, sobre transferencias de competencias, funciones y servicios de la Administración del Estado al Consejo General de Castilla y León en materia de cultura,  part I, subsection B.f.

Yes, all this sounds pretty abstract and uncertain, and yet giving the regions many chances and opportunities. The broadest interpretation would be certainly wrong, but so, most likely, would be the narrowest one. As to realistic interpretations, it is pretty difficult to suggest ones. The current Chronicler’s difficult attitude, the bizarre reasons considered by the Ministry of Justice (which is afraid to deal with personal arms due to allegedly imminent "social repercussions") and many other factors did make the existing context somehow "already unrealistic".


Derek Howard;93599 wrote:

It may be that the regional government needs only to reappoint the officer with explicit powers and citing unambiguously in the preamble of the document the precise powers they have to take action in this field and their powers to appoint officals.

In theory, this would be an excellent solution. Practically, the armigers’ needs and necessities will most likely fall victims to the ambitions of the officials involved.

 
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23 May 2012 06:46
 

Michael Y. Medvedev;93647 wrote:

It is not apparent however that the 1915 decree must be applied to the current situation at all.  . . . .

We may or may not accept the logic of the State Council (regarding the alleged distance between the "family chroniclers" and the municipal ones). But if we do, we should admit that the non-premial regional Chronicler is no less distinct from the earlier largely premial state King of Arms, than the latter is distinct from the municipal Chronicler.

In my opinion, it is all even simpler as the 1915 decree refers to the Kings of Arms which title is not given to the regional Chronicler. The 1951 decree in which the two definitions suffer a kind of a merger is not precise enough in making them fully synonimical. So, the restrictions of the 1915 decree are to be extended to the modern Chroniclers’ activity only as far as this activity is identical to that of the Kings of Arms of old. The Marquess de La Floresta did much (alas) to produce an illusion that they are identical; but even he admits now that they actually are not.


So in short, the 1915 decree is not even applicable to the C&L Junta’s appointment of Don Alfonso as a Cronista de Armas of muncipal and even personal arms.  Is my understanding of your argument correct?  If so, it’s a very interesting theory.  I think my main concern is that the C&L appointment at least with respect to personal arms does overlap and arguably usurps the role of the federal/national Cronista de Armas per the 1915 decree (of course leaving aside the Spanish state’s dereliction of duty in making such state-recognized officer available to the general public).  As the owner of a Don Alfonso certification, I want to agree with you Michael, but admittedly I am more moved by Joseph’s arguments.  Can you address my concern in more detail?  Or is the answser simply that the central government delegated all cultural matters, arguably though not explicitly including personal arms, to the various provinces or states that make up Spain?

 
Michael Y. Medvedev
 
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Michael Y. Medvedev
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23 May 2012 08:54
 

Dear Edward,

My main argument is that arms constitute a complicated and multi-dimentional phenomenon. If for some reason we cannot arrest Al Capone for being a bandit, let’s arrest him for a tax fraud. If we cannot protect armigers’ rights using the "bloqued" 1915 act, let us find and use other solutions. Like that.

To tell the truth, I would prefer to see the regional certifications starting ex novo, provided with totally revised concept and free of misleading imitation of what was being done by the modern Kings of Arms. But this is my intimately private opinion smile

 
Derek Howard
 
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23 May 2012 10:37
 

I started out by thinking that Joe’s analysis was, as usual, spot on. But nudged by Michael in this thread to look at it again, I now think he is in part correct. The system would be best restarted from scratch.

I think we need not go back to 1915 nor the 1950s. The constitution of Spain is that of 1978. Under this there is provision to delegate powers to the autonomous communities. These powers cover culture. The concept that culture cannot be held in its widest sense and must exclude heraldic matters does not hold. Although there are always dangers in applying lessons from other countries, it is precisely this transfer of responsibility for culture that has been used by two communities in Belgium as statutory underpinning to the creation of heraldic authorities. Of course the national authority does not need to delegate powers over honours, etc. Belgium has not done so – this is still a federal or royal function under the constitution which led to a third (or rather first) heraldic authority concerned with noble arms. So long as the community competences do not impinge on the royal competences there is no problem.

 

For Spanish constitution click here

 

Under Section 62(f) of the 1978 constitution It is incumbent upon the King to issue the decrees approved in the Council of Ministers, to confer civil and military positions and award honours and distinctions in conformity with the law. This is the power under which he enobles or has granted arms. This is the role that the Kings of Arms have historically helped him fulfil.

 

However, Section 148 allows the self-governing communities may assume competences over the promotion of culture.

 

Section 149 reserves to the State certain aspects of culture and justice but these do not impinge on the cultural delegation to the Communities.

 

The constitution of C-L is established by the 1983 Estatuto de Autonomía de Castilla y León, as amended

 

Article 32 gives the CL Community the powers of

- Historical, artistic, architectural, archaeological, architectural and scientific interest to the Community, subject to the jurisdiction of state for defence against exportation and spoliation.

- Museums, libraries, newspaper libraries, archives and other cultural centres and deposit interest for the Community and non-state ownership. In the same terms, conservatories of music and dance, drama centers and other institutions related to the promotion and teaching of Fine Arts.

- Culture, with special attention to the different cultural patterns of the Community. Academies which have their headquarters in Castile and Leon.

- Any others that apply in accordance with the Constitution, this Statute or, in general, the legal system.

 

While some areas of competence are specific, they are not exclusive and an heraldic authority and registry would certainly be able to lie comfortably under the culture unbrella (in Flanders the authorities placed the Flemish heraldic authority under the ancient monuments directorate).

 

Actually, I think many armigers would be content to have their arms on public record and that is often the cause of approaching heraldic authorities in other countries. Spanish communes gazette the adoption of armorial bearings, including where the Cronista de Armas de Castilla y León has been involved before the adoption, as in the Trescasas council’s definitive approval of arms for the for the municipality published 23 May 2011 (so happy anniversary to them). Were the Cronista de Armas de Castilla y León to act on behalf of his private clients and gazette the arms in the Other Announcements section of the Boletín Oficial de Castilla y León, maybe that would also go a long way to resolving the issue.

 
Joseph McMillan
 
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23 May 2012 13:02
 

Derek Howard;93654 wrote:

Under Section 62(f) of the 1978 constitution It is incumbent upon the King to issue the decrees approved in the Council of Ministers, to confer civil and military positions and award honours and distinctions in conformity with the law. This is the power under which he enobles or has granted arms. This is the role that the Kings of Arms have historically helped him fulfil.


But (as the Council of State observed), the parliament has passed no law authorizing the king to grant arms, and therefore he is unable to do so in conformity with the law.  If one argues that the granting of arms is inherent in his statutory authority to confer honors, then we must ask to see where the council of ministers approved such grants, since by law the king can only confer honors on the advice of ministers.

 

I think a distinction needs to be made between granting and certifying.  Certainly in the past the king had the inherent power to grant arms as a matter of what in the UK would be called the royal prerogative.  But the Council of State’s interpretation, which I find compelling, is that such is not the case under the 1978 constitution.  The king no longer has any inherent powers, only those given to him by the constitution or by laws passed by the constitution.

 

Certifying arms seems to be something else entirely.  The 1749, 1802, 1915, and 1951 decrees have nothing to do with grants of arms, but in the first place with what we would call a birth-brief and in the second with the equivalent of a confirmation of arms.  I don’t fully understand how the system worked, but Spanish texts on nobiliary law from the 18th and 19th centuries talk about one person having the ability to prohibit another from bearing a particular coat of arms.  For example, one treatise I read says that anyone can assume arms, but the value of having arms granted by the king is that no one can prohibit you from bearing them.

 

My understanding of the cronista’s certification is that it serves much the same purpose, although presumably not quite as conclusively as a royal grant.  Indeed, the logic behind requiring a cronista to have certain credentials and pass an examination, imposed in 1915, was that the cronista’s certification was intended as expert genealogical testimony that a person was lawfully entitled to bear an existing coat of arms.  If someone else tried to challenge his right, he could produce the certification to rebut the challenge.  (This was part of the logic by which the Council of State rejected La Floresta’s bid for the Min of Justice to give him the examination—genealogical skills weren’t relevant to his lawful duties.)

 

The question, then, is what a cronista does when he certifies a new coat of arms for someone.  Obviously he’s not verifying agnatic descent from a previous possessor of the arms (although the recitation of the customer’s ancestry may imply that he is).  All I can think of is that he’s verifying that, to the best of his knowledge, the new arms don’t infringe any previuosly existing arms.  But this would seem to imply that the arms themselves are created not by the cronista but the old fashioned way, by a unilateral act of the armiger.

 

Anyway, as far as I can recall the documents I’ve seen from both Cadenas and La Floresta don’t use the verbs otorgar or conceder (both meaning to grant, to confer) but rather certificar or perhaps confirmar.

 
Michael Y. Medvedev
 
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24 May 2012 03:46
 

Dear friends, I apologise for all this nudging smile

Dear Joseph, there are certain Spanish realities of essential importance which may be easily overseen, and AFAIK do remain overseen in any simple and logical account. Maybe a mind much brighter than mine, and much more Spain-merged than mine, is necessary to reveal them properly. I confess that in many cases I feel them more than I see them, and I see them more than I can explain them. And still I bet that the situation is still complicated and that no heraldic problem was finally solved by the Council. If my remarks appear not convincing, this is a failure of mine, not of the cause of the autonomies’ offices of arms in relation to private heraldry.