Greetings again,

Now that the family’s achievement is complete, I’ve come across another issue that I could use some assistance on.  Allow me to first state the situation for the use of the arms, and then I will pose my question.

The arms are being assumed by my Grandfather, the Rev. William Robert Baker, Sr.  He and my grandmother had three children, my two aunts and my father.  Now in America, his daughters would be considered heraldic heiresses, since all children inherit arms equally.  However, neither of their husbands are armigerous, which means that quartering is not an option for my cousins, who have right to bear the arms but do not have the surname Baker.  We would like to keep the un-differenced shield tied to the surname, so there lies the issue.  If my uncles were to become armigerous themselves, it would cease to be an issue, although the same problem will face my sister’s children as well, should she not marry an heraldic heir.

As a general rule, I do not care for differencing, as it quickly becomes complicated and makes a mess of the shield.  So, I’m trying to think of a way to difference the shield without mangling the original design too badly.

Thoughts already considered:

—Use a demi-canton, as in Iberian heraldry, bearing a charge of the mother’s choice, to be borne by all her children un-differenced.  This could be carried on indefinitely by any heraldic heiresses as long as they chose a unique charge for the demi-canton.  The problem here is that a canton would not go well with our arms, in my opinion.

—Place a small charge of the mother’s choice somewhere in the main part of the field.

—Change the tincture of the partition fimbriation from Or to Argent.

Any thoughts on these ideas?  Further ideas?  Comments on the whole issue?

Please, your thoughts are most welcome.

Personally, what I like, is using bordures for differences, as used in Hassan’s family’s arms.

I think you could even use bordures with different charges even, to further differentiate it.

Cheers,

change the colors of the arms for differencing.

Dear Jonathan,

In general terms:

Sorry to be pedantic, but your aunts would not generally be considered heraldic heiresses as your grandparents had one son (your father) and as he is able to transmit the arms down the male line there is no need for your aunts to make known their representation of your family heraldically.  One becomes an heraldic heiress only* when all females are born to an armigerious father (or parents) where his (or their) arms could transmitted to the next generation as a quartering through the female line in order to keep a representation of the family in an heraldic context, but this can only occur only if the daughter’s husband/s is/are armigerious.  If such a daughter’s husband was not himself armigerious, the daughter’s paternal arms would remain in state of limbo for her children.  Ordinarily, such arms would only come out of limbo if and when the husband obtains his own arms.  It also must be remembered that the children generally only make use of a quartering of their mother’s on her demise; for at that time they inherit the representation of their maternal family from an heraldic viewpoint.

If it is your thesis that in America that you are free to ignore that corpus of traditions, conventions, king of arms made laws and rules that have governed heraldry from and in a British perspective over the course of many centuries known as ‘The Laws of Arms’; then that is fine, but I cannot see why you should not wish to follow the tenets of heraldry from a traditional standpoint albeit that standpoint is British, remembering that many of the founding laws of the fledgeling United States of America were were continued from or based upon the Common Law of England and the provisions of Magna Carta.  If not, it is my contention that this situation can only be resolved by some formal resolution as to the standing of heraldry in the United States across its many traditions be they British, European, Native or from elsewhere in the world.

Notwithstanding all of the above there being no official heraldic authority in the United States, if you were to go along with your original idea for your aunts to bear arms individually, the best form of differencing in this case for their children would be the quartering.  You would then need to persuade your aunt’s respective husbands to adopt or register arms through one of the many agencies in the United States in order for the Baker arms to continue to the next generation.  The only problem I can forsee, is where two sisters marry two brothers - then a further difference would need to be introduced in order to differentiate the particular arms concerned further.

*The other way daughters of an armigerious family may become heiresses is by virtue of a brother or brothers remaining unmarried or marrying and their male issue dying out without issue.  This would not be the case if such male issue had daughters as they would then be the heraldic heiresses of the family.  If those daughters remained unmarried or married and had no issue, then daughters of a previous generation (having no brothers, etc) would, perhaps, become heiresses of the line and then would be able to transmit their paternal quartering to their children.  Of course, if this particular situation arose it would be best if this state of affairs could proved evidentially by a little genealogical research in order confirm who were the heraldic heiresses to a family or not as the case may be.

With all good wishes,

Yours aye,

John

John,

I believe what Jonathan is refering to are the US Heraldic Best Practices that we as a society have devised since there is no official Heraldic Authority here in the US.  I will also state that included in the text of my ACH Registration and that of the CROM-BHGS my daughter is listed as having the right to bear my arms.

In America, we’ve never had such a practice as the oldest/only son inheriting everything.  Each child was treated equally in that respect.  In all the cases that I’ve ever seen, when a parent(s) pass away each child is given an equal percentage of the estate.  The same would apply to our use of heraldry.  Each child is allowed to bear the arms of the father.  Marks of cadency and differencing are soley up to the armiger.

I don’t think we’re throwing away the guidence of the Kings of Arms or the like, but their rules don’t fully apply to American society as it is now.

The question is not whether daughters have the right to bear their father’s arms—they do.  The question is whether and how they pass those arms onto their own children.  Our guidelines adopt an "arms follow the name" principle, which I think is fairly reasonable, but it’s a compromise between those who support full maternal transmission of arms regardless of whether there are brothers and regardless of whether the father is an armiger (I think this is the modern rule in Canada) and those who maintain that arms should pass only in the male line.

As Eugene Zieber noted, there is precedent in what is now the US for sons to take and use their maternal arms if the father had none.  John Adams is probably the most prominent example (see the article in the Presidential arms series—he used the arms of Boylston, his mother’s family, originally undifferenced and later with the kind of minor changes that would normally be appropriate to a cadet branch), but see also the late 19th/early 20th century arms of Charles Colcock, Jacob Cox, and George Martin in our roll of early American arms.  (Note that Zieber did not approve of this practice, but did acknowledge it.)

I think the best course of action would be for Jonathan’s aunts and their husbands to adopt their own arms, patterned on the new Baker arms if desired but with more significant changes than those Jonathan suggests.  Ton’s proposal of a change of tincture might work, but I would suggest it might be more appropriate to compound the Baker arms with elements distinctive of each of the uncles’ families.  For example, the 13 estoiles motif could be transferred to a bordure or an orle surrounding a main charge relating to the uncle.  Lots of other possibilities suggest themselves as well.  The minor alterations suggested by Jonathan would generally be interpreted as differencing for other lines of related Bakers, such as brothers of the original armiger, or distant cousins, rather than families with different paternal origins.

liongam;46698 wrote:

If it is your thesis that in America that you are free to ignore that corpus of traditions, conventions, king of arms made laws and rules that have governed heraldry from and in a British perspective over the course of many centuries known as ‘The Laws of Arms’; then that is fine, but I cannot see why you should not wish to follow the tenets of heraldry from a traditional standpoint albeit that standpoint is British, remembering that many of the founding laws of the fledgeling United States of America were were continued from or based upon the Common Law of England and the provisions of Magna Carta. If not, it is my contention that this situation can only be resolved by some formal resolution as to the standing of heraldry in the United States across its many traditions be they British, European, Native or from elsewhere in the world.

It is a perennial challenge to balance the influence of English armorial rules and customs against the fact that social and legal realities in what is now the US began diverging from English social and legal realities almost from the moment the first settlers stepped ashore at Jamestown and Plymouth Rock.  We also have to take into account that many arms in use in the US are not of British origin, including some of the oldest ones on record, and since the English law of arms was never enforced in North America during colonial times it is problematic to make the case that such arms should be subject to the rulings of the English kings of arms at all, especially rulings made since independence.

My approach in the drafting of the inheritance and related portions of the AHS guidelines for heraldic use was to try and figure out what might be called greatest common denominators of European heraldic practice, take those as a baseline, and then make adjustments based on the current state of the legal rules applying to related areas (marriage, inheritance, adoption, illegitimacy, women’s property rights).  For the most part, English rules are consistent with those GCDs, notwithstanding the proclivity of heraldic writers to emphasize what makes national heraldic practices different rather than what makes them similar.  I agree completely than it is important for American heraldic practice to stay anchored in the common heraldic tradition.  At the same time, each country’s particular heraldic practices have always reflected its own social and legal peculiarities, and the same thing has to be true in the US if heraldry is to be of other than antiquarian interest.

I doubt that this can ever be formally resolved; all we can do is set forth the arguments and try to build a consensus among users of heraldry as to what appropriate American heraldic behavior ought to be.

Jonathan,

Since you bring up the subject of your cousins, I must assume this has been discussed and there is some interest in them assuming arms.  A simple question:  Have you asked your uncles if they would like to become armigerous?  You do not state above that they do not.  I think you need to ask before torturing yourself with the subject of the current thread.

That is a possibility for one of my uncles.  It is entirely possible that he may wish to become armigerous, which would allow his children to quarter the arms if they so desire.  My other uncle, however, divorced my aunt and has extricated himself from my cousin’s lives after 20+ years.

Edit:

A thought came to me in the shower…

What if each heraldic heiress chose a unique charge to replace the central garb of the chief?  It could be rendered in Or/Vert.  The basic design would stay the same, yet there would be an obvious difference.  Is this a typical difference for cadet branches, i.e. replacing a charge for another?

Jonathan R. Baker;46711 wrote:

What if each heraldic heiress chose a unique charge to replace the central garb of the chief?  It could be rendered in Or/Vert.  The basic design would stay the same, yet there would be an obvious difference.  Is this a typical difference for cadet branches, i.e. replacing a charge for another?

I think there’s definitely precedent for such changes. I have a related family that changed the number of fleurs-de-lis for different branches of the family. So that’s another possibility—more or fewer garbs or removing the garbs altogether.

I am very curious as to how this will turn out. My nephew may be going through something similar, well when he’s old enough to know what heraldry even is, and It would be nice to have some ideas if he and his mother are ever interested.

I like the idea of keeping the "Baker" arms intact somewhere on the Arms. Whether it be in the form of an Eschuton, or in quarters. If that isn’t a workable solution, I would like to see elements of the baker arms incorporated somehow. Maybe something like:

*tincture* *charges* on a chief per pale Sable and Vert a garb Or and an estoile Argent.

Just a thought.

Joseph McMillan;46707 wrote:

<strike>ince the English law of arms was never enforced in North America during colonial times it is problematic to make the case that such arms should be subject to the rulings of the English kings of arms at all, especially rulings made since independence.</strike>

This is an interesting question and one that I am in the middle of researching. The English law of arms aside, another interesting question is what does one do with states that did not start as English colonies (Louisiana, Texas, California) or that started as the colony of another and were conquered by the English (perhaps New York). I would observe that, with exceptions, the lack of enforcement does not vitiate a law, nor does the lack of sitting by a court invalidate its existence.

The question, then, is not whether the English law of arms was enforced, but on what terms it applied and how independence affects that. I certainly agree that any English rulings since the date established by each state for the reception of English law are merely evidence of how another jurisdiction views the law.

I would also state that I am not at all sure that some of the rulings of the Chapter are definitive as to the law of arms; Squibb stated that the law of arms is to be ascertained by the practice of the civilians who served as its judges and counsel—and the heralds are neither.

Hugh Brady;46719 wrote:

This is an interesting question and one that I am in the middle of researching. The English law of arms aside, another interesting question is what does one do with states that did not start as English colonies (Louisiana, Texas, California) or that started as the colony of another and were conquered by the English (perhaps New York). I would observe that, with exceptions, the lack of enforcement does not vitiate a law, nor does the lack of sitting by a court invalidate its existence.

I stated only what I think can be agreed:  that the English law of arms was not enforced.  My own view is probably more controversial:  that the English law of arms was never in force—never applied—to the colonies.  Lawrence Friedman’s History of American Law shows persuasively, based on research by a number of legal scholars, that the vast bulk of English law never applied in the colonies, and, to the extent that it did, it applied differently in different colonies.  The position of the founding fathers was that English law—even the common law—had applied only to the extent that the colonists had found it useful to their circumstances or to the extent that a particular principle of the common law was considered to be expressive of natural law.  I still have to work out all the reasoning and address various objections to this interpretation, but I think my conclusion is correct.

Quote:

I would also state that I am not at all sure that some of the rulings of the Chapter are definitive as to the law of arms; Squibb stated that the law of arms is to be ascertained by the practice of the civilians who served as its judges and counsel—and the heralds are neither.

I was just looking at The Court of Chivalry this morning and it struck me that there is a big hole in Squibb’s argument that the law of arms is ascertained from the practice of the Court.  The hole is that (according to Squibb) the English civilians themselves only belatedly accepted the notion that they were in any way bound by precedent.  (Which is why, he says, they resisted until the late 18th century recording the reasoning and principles on which their decisions were based.)

Joseph McMillan;46720 wrote:

Lawrence Friedman’s History of American Law shows persuasively, based on research by a number of legal scholars, that the vast bulk of English law never applied in the colonies, and, to the extent that it did, it applied differently in different colonies.  The position of the founding fathers was that English law—even the common law—had applied only to the extent that the colonists had found it useful to their circumstances or to the extent that a particular principle of the common law was considered to be expressive of natural law.  I still have to work out all the reasoning and address various objections to this interpretation, but I think my conclusion is correct.

I need to go back and re-read Friedman so I state the following with the caveat that I will retract if necessary.

I think what Freidman demonstrates is that when the colonists ran across a rule dictated by the common law that didn’t or couldn’t work in their frontier situation, the courts or the legislature fashioned a new rule.  I think Friedman points out that this primarily occurred in the areas of property law and court procedure.  And true, some colonies did take the position that most of English law was unnecessary, but these colonies passed affirmative statutes declaring what part of English law did apply. I think that Freidman showed the usual case to be that the colonial lawyers, judges, and legislators first ascertained what the law was and then determined if the rule applied, not the other way around. I don’t believe Freidman, et al., justify the conclusion that the law of arms didn’t apply in the colonies.

Even if one could demonstrate that the English law of arms did not run in the colonies, it may be entirely a different matter after independence with the passage of "reception" statutes—i.e, statutes declaring that the law of England as of a certain date applies in the state unless repealed or overturned by subsequent act of a legislature or court. For example, New York’s post-independence constitution provided that "such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same." While the phrase common law may appear to exclude the law of arms because it was administered by a civilian court, there are many decisions that hold that the phrase "common law" embraces the law of England administered by the English equity and admiralty courts, neither of which is administered by a common-law court in England. So the reception statutes may have applied the law of arms to the new state regardless of the situation in the colony.

Quote:

I was just looking at The Court of Chivalry this morning and it struck me that there is a big hole in Squibb’s argument that the law of arms is ascertained from the practice of the Court.  The hole is that (according to Squibb) the English civilians themselves only belatedly accepted the notion that they were in any way bound by precedent.  (Which is why, he says, they resisted until the late 18th century recording the reasoning and principles on which their decisions were based.)

Yes, if you are a common lawyer, it does sound odd. But this partly because the civil law procedure, which governed the trial of cases in the CoC, is different from the common law procedure. Under the common law, judges reason principles from cases, and thus give decisions with rationales and holdings. By contrast, under the civil law, judges reason cases from principles—that is, judicial decisions are not used to determine the general principles of law are not precedential as we understand it. The practice of the court, I believe, was for the pleading to state the general principle that was alleged to have been violated, and I believe this is what Squibb meant when he made his statement.

I will look over my notes tonight, and if I am wrong, I will cheerfully retract.

Joseph McMillan;46705 wrote:

The question is not whether daughters have the right to bear their father’s arms—they do.  The question is whether and how they pass those arms onto their own children.  Our guidelines adopt an "arms follow the name" principle, which I think is fairly reasonable, but it’s a compromise between those who support full maternal transmission of arms regardless of whether there are brothers and regardless of whether the father is an armiger (I think this is the modern rule in Canada) and those who maintain that arms should pass only in the male line.

I’m 100&#37; in accord with you on this one. It’s a tricky subject, but I think that "arms follow the name" is the most reasonable way to go about it. Allow me to play Devil’s Advocate for a moment in hope of stimulating some discussion. Jonathan has two sisters, let’s say that one of them (Susan P. Baker) married a man named Smith and the other (Mary L. Baker) a man named Jones.

From our own Guidelines: 3.4.4. A person who takes his or her spouse’s name upon marriage may continue using the arms to which he or she was entitled by birth, but transmits these arms to his or her own offspring only under one of the following conditions:

If either parent is an original bearer of arms, the arms are inherited by his or her children regardless of the surname, in quartered form if the children are also entitled to inherit the other parent’s arms.

So, let’s return to Susan P. Baker-Smith and Mary L. Baker-Jones. By our own guidelines, Susan and Mary have use of their father’s arms because it was their right by birth. But only in the case that they are original armigers or the sole surviving descendants of the Baker family would their children have a claim to the Baker arms in any form. AND, quartering would only be appropriate if the children’s mother was an original armiger.

So, let’s say that Mary divorced and Susan was still married. Mary’s children are out of luck-their father has extricated himself from their lives so there’s no way to know if he ever becomes armigerous, and there are still living Bakers who will inherit the Baker arms. They must, therefore, adopt new and original arms (unless their mother becomes armigerous in her own right, or marries an armiger who adopts them AND/OR they take his surname). Susan’s children are only eligible for their father’s arms unless Susan becomes an armiger in her own right. And no matter which scenario plays out, the undifferenced Baker arms would not appear in a quartering unless the children’s surname is Baker.

Is this accurate?

In the last 50 years or so the amount of divorce has increased exponentially, not only in this country but in the world (well it seems. I don’t have statistics to back it up). It appears, at least to me, that heraldic traditions and customs have become very unclear how to handle this relatively new family lifestyle.

I guess what I am saying is that Jon and Patric’s scenario’s are really good one’s to look at because they happen quite often and the traditions and customs from many countries are not clear as to handle this.

I guess that was a very verbose way of saying the same thing I did before, I am fascinated to get the opinions of others on this. My father-in-law is the last male descendant of his line, and my wife, and her sister, are his only offspring. This means that whenever I have children these questions may arise, so I am very interested.

In my case I could see quartering my arms with my wifes for our eventual children, but for my nephew whose (loser) father is not armigerous, and is likely to disappear from his life, it gets even murkier. Basically the situation Patrick and Jon is describing is likely to be the case for my family’s next generation, and it would be nice to know how to proceed for them.