This is a hypothetical situation, but what if someone in the USA assumes his/her own arms, and then moves to a country in which assuming your own arms is illegal (say the UK).  Can you keep these arms?

Now here’s the situation that promted this inquiry. My aunt lives in England, but was born in the USA (along with her husband). If i come up with arms with my grandfather, which i have essentially done, would these be able to be passed on to her, since she was living there when they would be assumed?

Any clarification would be appreciated

Colin, you’ve really asked several questions here and the answers to them are all wrapped up in law and in common custom.

Quote:

If someone in the USA assumes his/her own arms, and then moves to a country in which assuming your own arms is illegal (say the UK). Can you keep these arms?

That will depend. The Heralds of Canada, Scotland, England and Ireland would probably be more than happy to register a new grant of arms for you, assuming that those arms have not already been granted to someone else and/or are not too close to someone else’s already existing arms. In England people have been assuming arms for a very long time. It isn’t ‘legal’ per se, but unless you’re assuming someone else’s arms and they sue you, most folks over there get away with it.

Quote:

If i come up with arms with my grandfather, which i have essentially done, would these be able to be passed on to her, since she was living there when they would be assumed?

Well, Colin, someone over there could register the exact same arms you have here (depending, of course, on the granting process, etc.). Remember, the College of Heralds in England are only concerned with arms in England. They don’t care if they are in use in any other country. So, yes, she could register them there. "Passed on to her"?...unless the arms are awarded by grant in England, Ireland, & Scotland (and I’ll assume that the situation is the same in Canada) then she can’t ‘legally’ use them, no matter what. But here in the USA, there is no protection for arms and they are not seen as heritable property so NOBODY in the USA can ‘pass on’ arms. You assume them, your heirs assume them (and just about anyone else can assume them, too).

Patrick Williams wrote:

So, yes, she could register them there.

Actually, as I understand it, she couldn’t. Arms received from an official arms-granting authority could be recorded in the College of Arms, but the English officers of arms won’t recognize newly assumed arms as being arms at all. Your aunt could petition for a new grant of arms and hope the kings of arms making the grant were willing to keep the design you assumed on your grandfather’s behalf. There’s no guarantee they would do so, and there have been some postings on rec.heraldry in the past suggesting that kings of arms have altered the design of perfectly acceptable assumed arms just out of spite.

Quote:

But here in the USA, there is no protection for arms and they are not seen as heritable property so NOBODY in the USA can ‘pass on’ arms. You assume them, your heirs assume them (and just about anyone else can assume them, too).

I’d be careful with this. It really is not at all clear what the legal status of arms is, either there or here, despite the gallons of ink spilled over the question. John P. Brooke-Little, the eminent herald who was the most recent editor of the classic Boutell’s Heraldry said that arms are "in the nature of an incorporeal hereditament," but the proceedings of the famous Manchester case in the Court of Chivalry in 1954 suggested otherwise. (The Surrogate is the judge in the case; Mr. Cole was the officer of arms prosecuting the case, later Garter Principal King of Arms):

Quote:

The SURROGATE: I would like to ask you one point and to hear your submission upon it. Do you say a coat of arms is property, or is it

merely a dignity?

Mr COLE: That is an extremely difficult question, my Lord.

The SURROGATE: I thought it was.

Mr COLE: One gets no guidance about it from the cases. The only guidance one does get about it is that there were, of course, certain coats of arms being granted together with land in the fifteenth century and thereabouts and it seems to take on the nature of some sort of property; but it does not seem to come within the meaning of

property as we understand it in common law. If it had been in a conveyance or an Act that all property real and personal, including

choses in action of every description whatsoever, are deemed to pass

by virtue of that conveyance of that Act, my submission would be that

that would not include armorial bearings.

The SURROGATE: I wonder if you have looked at all at a case in 1885 in

which Mr Justice Chitty held that an armorial bearing was an incorporeal hereditament.

Mr COLE: I have not got the passage here, my Lord, but I think Blackstone regarded a coat of arms as an incorporeal hereditament.

They use that phrase in Scotland, but how far that applies in England,

I would not like to say. It is true to say that a coat of arms descends from generation to generation.

The SURROGATE: Lord Lyon deals with many matters which do not relate to wars or military expeditions.

Mr COLE: No, but as to which he has jurisdiction defined by Statute.

It may be wide enough to cover those matters which he says he has

jurisdiction to deal with.

The SURROGATE: Where did Lord Blackburn say this?

Mr COLE: There is a case reported in 5 Appeal Cases, Sturla v. Freccia, but Lord Blackburn does not say it. He speaks of armorial bearings and the College of Arms. My recollection is that Blackstone says it somewhere, but I have not got the reference, because, with respect to him, I do not think it is right to say that a coat of arms is an incorporeal hereditament. That is a common law expression, and I do not think it applies to coats of arms.

The SURROGATE: I think it is more a dignity, because if it was property, I should have thought that the ordinary Courts would have taken cognisance of it.

Mr COLE: Yes, that is so.

The SURROGATE: And there is no doubt that they do not take cognisance

of it, is there?

Mr COLE: I do not think so, my Lord, except that there have been Writs

of Prohibition issuing from the King’s Bench in some cases which have

related to the display of arms.

The SURROGATE: Perhaps Mr Squibb will throw some light on it, but I

should have thought that probably it is a dignity and not property.

Mr COLE: If your Lordship would like to put it into one category, I

would agree that it is more a dignity than property, but I would not

like to make a firm submission on it.

A couple of notes on this.

1. The Scots don’t call arms "incorporeal hereditaments" because, as Mr. Cole observed, that is an expression of the English common law. The Scottish equivalent is "incorporeal heritable property." Lord Lyon Innes of Learney said firmly that Scottish arms are incorporeal heritable property—specifically a noble feu—but I’m not sure whether any Scottish judge before him ever said so.

Second, "hereditament" and "heritable" in these uses don’t mean what they appear to mean. Not everything that you can inherit is heritable or a hereditament.

In Scots law, "heritable" and "movable" are the two types of property corresponding to "real" and "personal" in the common law legal systems. The house is heritable, the furniture is movable, but both can be inherited.

In common law, the term hereditament may apply to either real or personal property, but it is most commonly used in reference to real property. An incorporeal hereditament is normally a right of some kind that arises out of rights to (ownership of) real property. In the US, classic examples of incorporeal hereditament are easements and rents.

Now the funny thing is that Sir William Blackstone, who was cited in the Manchester case, actually says that dignities are incorporeal hereditaments, which just further confuses the discussion of whether they are one or the other. Among Blackstone’s categories, arms could also plausibly be treated as franchises (the right granted by the crown to do something that would otherwise be unlawful), except that a franchise can be sold. They are also a little like offices, in that they may be granted by the crown to a person and his heirs, but cannot be sold. But all of these are ultimately considered by the common law courts as forms of property and subject to the law of property. Which is precisely what English heraldists have denied to be the case when it comes to arms.

So, in short, it all gets a little circular. But consider this.

The exact date when armorial regulation took hold in England is subject to debate, but certainly in the 13th century the only arms that existed were assumed. Let’s say that Sir John Doe assumed arms in 1280. These arms were duly inherited by his descendants, and recognized as having been inherited when the heralds came through on a visitation in 1580 and duly confirmed them. Fifty years later, one of the sons emigrates to Massachusetts, and he and his descendants continue using the arms. Do they own them? Are the descendants inheriting them?

Independence comes in 1776. The family keeps using the arms, generation after generation. Are the sons inheriting the arms, or assuming them anew as Patrick says? How did they lose whatever title they had to the arms? Nothing happened in any state after independence depriving armigers of their rights to their arms.

If each generation in this case is continuing to inherit the arms (originally assumed, remember, not granted), why would it not be possible for someone to assume arms in 1800 and pass them down through inheritance, just as the centuries-old arms are passed down through inheritance?

As I said, it’s all very murky. I’m inclined to think that the French and Germans have it right—arms are more like a family name that passes from generation to generation more or less automatically than they are like any of the things that English and Scottish writers have said (honors, dignities incorporeal hereditaments, noble feus, etc.)

Joe- That is one incredible post. Very informative and insightful.  The more I come here, the more I learn that English Heraldry is an incredibly complex matter, that they themselves aren’t even entirely sure of!

Colin- If your Aunt lives in England, I would be inclined to suggest that she follow the customs of the country she is living in.  Be warned though, English grants are not economically friendly!;) In my conversations with the College of Arms, they don’t recognize self assumed arms or arms rightfully granted in other countries for that matter.  Their only concern is English CoA’s, and that the laws of Heraldry are observed in their fashion.  The Lord Lyon may be a little more flexible, but not by much.  I will say this though, English Grants are beautifully presented and they are protected for essentially all eternity.  Not to mention that the individuals that I have had the pleasure of speaking with that work at the COA are incredibly friendly and very helpful!

Isn’t there a courtesy based system whereby most nations (England in this case… don’t know about Scotland or other nations of the CW/Dominion) allow foreign nationals to use their own arms and only if those foreign nationals become naturalized citizens that they must obtain a grant?

I mean… theoretically his aunt could live there 50 years and never be a citizen, so if she is not a citizen why would she have to obtain a grant as though she were a citizen?

If this line of reasoning bears out why wouldn’t any foreign national - including those of the diplomatic variety - have to get a new grant in order to bear their own arms in this other nation?

I was under the impression that gentlemanly courtesy reigned and that foreign nationals did not have to have "permission" (grant etc) to bear their own arms…

Donnchadh wrote:

Isn’t there a courtesy based system whereby most nations (England in this case… don’t know about Scotland or other nations of the CW/Dominion) allow foreign nationals to use their own arms and only if those foreign nationals become naturalized citizens that they must obtain a grant?

As far as I am aware you can use your arms as a courtesy if you are visiting England or Scotland, likewise a Scot visiting England or an Englishman visiting Scotland but if you become a resident or a subject of either (not nationalised) you would then be expected to apply for a grant of arms in said country.

We also must remember that in Scotland Lyon Court is not only a granting body of arms but a Court of Law with its own prosecutor (the procurator phiscal) and Lord Lyon is a judge in his own court and minister of the crown.

Andrew J Vidal wrote:

Joe- That is one incredible post. Very informative and insightful.  The more I come here, the more I learn that English Heraldry is an incredibly complex matter, that they themselves aren’t even entirely sure of!

There is reputedly a law of arms in England though I have never seen it and I don’t know anyone who has; I believe the English Officers of Arms keep it close to their chests.

Andrew J Vidal wrote:

Colin- If your Aunt lives in England, I would be inclined to suggest that she follow the customs of the country she is living in.  Be warned though, English grants are not economically friendly!;) In my conversations with the College of Arms, they don’t recognize self assumed arms or arms rightfully granted in other countries for that matter.  Their only concern is English CoA’s, and that the laws of Heraldry are observed in their fashion.

It is not correct to say that the College of Arms do not recognise arms granted in other countries. They do recognise arms granted in Scotland and those with Scottish arms resident in England ought to register their Scottish Arms with them (in "The Scottish Register") but if they do not do so, it would be interesting to see who would stop them using their Scottish Arms in England and what powers in law would be used to bring about such a thing. I suspect that no one would stop them and that, in reality, there may well be no law which could stop them.

Andrew J Vidal wrote:

The Lord Lyon may be a little more flexible, but not by much.  I will say this though, English Grants are beautifully presented and they are protected for essentially all eternity.  Not to mention that the individuals that I have had the pleasure of speaking with that work at the COA are incredibly friendly and very helpful!

I am not quite sure what mechanism might be used to protect armorial bearings in England, I suspect it would be through the County Court. In Scotland of course there remains an appropriate mechanism in law to protect armorial bearings from misuse.

Quote:

[Extract from ]

 

The Court of Chivalry

 

 

By GH Gilbert [1st published The Coat of arms Volume XIV No 197 Spring

2002]

 

 

Quote: //................. If you discover your arms being used by

some other people then you can take the following steps. Approach the

person involved, (with caution, they may turn nasty or abusive).

Explain that they are using your arms and they must stop immediately.

If they refuse then telephone the local County Court and ask them to

supply you with the forms required to initiate a Prohibitory

Injunction. Write to the person using your arms and tell them that you

are taking legal action, keep a copy of the letter which you send by

recorded delivery. Complete the court forms, if you have any difficulty

the courts are very helpful, that is their job to help you. A summons

will be issued and a hearing date given. When you attend take with you

your letters patent and witness statements in support. On the form it

is important to ask for costs, include telephone costs and time taken

to initiate the proceedings. Also ask for damages, you may wish to tell the

judge that you leave the amount to the court’s decision.

 

 

The cost to issue a prohibitive injunction is usually £120 so make

sure you put this in your claim for costs. It saves all this if you can

get the person using your arms to stop doing so and telling him you are

taking proceedings will help concentrate his mind to "settle out of

court". Get a written statement from the person using your arms that

he has agreed to cease since it is not unknown that he may continue in

the future.

 

 

It involves identifying those that abuse and flout the laws of arms,

not easy but we should be aware of our rights and that we are

surrounded by many who do not respect the laws. "

 

 

End of Quote

Regards,

Martin

Thank you all for your knowledge. It has more than answered the questions I had, and answered ones i hadn’t even thought about yet?