There were a couple of posts in the thread "Armorial Bearings by John Ferguson" which got me to wonder if the Law of Arms is actually law in the usual sense. I started this thread to avoid dragging the other even further from where it started.
To review the posts that started this train of thought for me:
Hugh Brady;70279 wrote:
This raises the question of whether what the [English] College [of Arms] decides is, in fact, the law of arms. It may be the law as practiced by them, but is it really the law? Generally, only legislative assemblies make law, while courts declare it. The executive administers the law. Setting aside the issue of helms for the moment, can the College Chapter really adopt law? I ask this without looking into their charter or the individual appointing documents of the heralds, but I doubt very much they have this authority. And if they do, then I think they have an affirmative duty to publicize that law just as with any other laws.
George Lucki;70280 wrote:
The answer is no they cannot make law. The law is there - it is Roman civilian law and the sum of royal acts or the delegated acts of the Earl Marshal. Much can be read into such law by the College of Heralds but this is what we could call akin to regulations - the delegated operationalization of the administration of laws. Modern legislation is often written in such a way that it gives broad latitude to the development of regulations by the executive.
In Scotland heraldic law is operationalized by a simple act of parliament. In England it has never required or had legislation (to some extent it could be governed by legislation if Parliament chose to do this, but there really is no need for this and likely little interest). The hereditary office of Earl Marshal could potentially be modernized. many of the ancient great offices of state have been, but again I am not sure that there would be much interest.
There is no requirement to publish the rules in any modern form. The College of Heralds (as does Lord Lyon) satisfies the requirement of accountability and transparency by its grants. Really policy is applied on a case by case basis in the actions of the heralds and current policy can be infered from the grants made by the College. The decisions of the College could be appealed ultimately to the Earl Marshal’s court or the Court of Chivalry but of course that court may not be operational or able to be resurrected. No one has tested that. Other courts have no jurisdiction. I guess no one has legally challenged a decision of the College in a really serious way for some time which is testimony to the work of the heralds but also the civility of armigers. I know that many folks here have trouble with this idea, but I am comfortable with new grants or their parts being seen as an act of grace - not an entitlement but something that may be given or withheld at discretion by the servants of the sovereign. After all grants of arms are a species of honour. The older way of doing things worked for centuries - and I would hate to see it needlessly modernised by politicians and bureaucrats. Where there is no established heraldic office then of course the establishment of an office should be done in the modern way according to the rules of a particular state.
Confining the discussion for the moment to the English law of arms, clearly it is not statutory law. Nor is it common law as there are no law courts to declare it. (One sitting of the County of Chivalry every couple of centuries hardly counts.) But because it is administered by agents of the state, it would seem to be more than mere custom.
As arms are part of the system of honours within the royal prerogative, could the Queen promulgate such as "law" without a form of legislative assembly which Hugh suggests is generally necessary? Could arms, once granted, be rescinded as can a knighthood? I note that an Act of Parliament is required for the deprivation of a peerage, also an honour granted by the Crown. If the Queen has this authority can it be/has it been delegated to Earl Marshal or the members of the College of Arms, singularly or collectively? Hugh doubts it, and George says no, yet the recent rulings with regard to the use of shields by women (certainly a departure from prior English practice and discussed in the "Arms by Sandy Turnbull and Barrie Burr" thread) were promulgated by the kings of arms who did "rule, ordain and decree" that it be so (sounds legislative to me).
What the herald do may give form the the "rules of the game," but is it law?
No answers here, only questions at the moment.
I know that those persons who have been legally attained* have had their arms struck from the records of the College of Ams. I am not certain if those persons in modern times who have been stripped of their knighthoods because of mis-conduct, espionage or treason have had their supporters struck from the records or had their entire achievement struck. The case of Sir Anthony Blunt, KCVO, Surveyor of the Queen’s Pictures and Soviet spy, might shed some light on this.
*See this link for more information on attainder: Bill of Attainder
There appear to be several sources of law in England. In addition to the common law and laws established by Parliament or earlier by the sovereign there appear to be some areas like honors or heraldry that are partially or completely reserved to the sovereign’s royal prerogative. Laws established by Parliament or discerned through the common-law can be dealt with in the courts. The few matters reserved to the Queen really can only be appealed to the Queen. You can’t ask a court to review her decision not to confer on you membership in the Order of the Garter.
While England is generally a common-law jurisdiction there are several areas of law including heraldic law, ecclesiastical law, and some admirality law that arise from a tradition of civil rooted in the old Roman law. Aspects of this "Civilian law" including heraldry were dealt with by the old royal offices of the Constable and the Marshal. This used to be an area of law of greater concern to the state in former times. These courts have diminished in importance and usefulness to the point where for example the court of chivalry may really be dead. That does not mean that it was not once a significant and real court. It was not ever a common-law court. Precedent and did not bind and the court did not declare new law. It did read new meaning into old law.
I don’t pretend to know what this old civil law as it relates to heraldry included or did not include. I do not pretend to understand the mechanisms by which it is changed. The administration of the law, such as it is, does not originate with the King of arms but is delegated by the sovereign to the Earl Marshal an ancient and hereditary office of State. The Earl Marshal has considerable latitude. The Queen can still of her own initiative assign armorial bearings through a royal warrant.
Squibb has probably written more about English than anyone else.
Just a few more observations for the evening. I believe Squibb showed that while the Court’s procedure was that of a civil law court, the law applied was in fact English law. As for the prerogative, it is true that the grant of arms is part of the Sovereign’s prerogative powers, just as is the grant of a peerage. However, a peerage must be granted in accordance with certain formalities and under certain conditions, and the questions of heirship, etc., are properly tried before the House of Lords sitting as a court. I believe this is the same case with pardons; while they are an expression of the Sovereign’s grace, they must be properly issued and their effect is a judicial question determined by the courts.
Hugh Brady;70291 wrote:
Just a few more observations for the evening. I believe Squibb showed that while the Court’s procedure was that of a civil law court, the law applied was in fact English law.
I think Squibb was very confused and confusing on this point. He asserted what Hugh says, but I don’t find that he proved it. Rather, I think his work shows that the Court of Chivalry actually did apply the content of the transnational law of arms as adapted to English circumstances—the law of arms as used in England—just as the Court of Admiralty applied the transnational law of the sea as used in England, and as the ecclesiastical courts applied the canon law as used in England. All of these had more in common with the transnational laws of arms, the sea, and the church, than any of them did with the common law.
If I read him correctly, Squibb’s theories are based mainly on the late work of the Court of Chivalry, during the Stuart Restoration, once it had essentially become a mechanism of enforcement of the administrative claims of the College of Arms. In the earlier years, the evidence suggests to me that it was more concerned with the application of the original medieval law of arms in causes between private persons.
Dear All,
I certainly recall during my time at the College of Arms at least one grant being cancelled or made void; the office copy of the grant in question in the College’s Grant Books being struck through with a note in the margin cancelling the grant. Unfortunately, the College discovered some time after this particular grant had been made, the ‘gentleman’ concerned had a rather nefarious and shady background. I now cannot remember whether such a cancellation is made by an executive decision by the kings of arms alone or with the kings acting in concert with the other officers in ordinary as the Chapter of the College who would thereafter advise the Earl Marshal to issue his Warrant cancelling the grant.
The Peerage apart (peerage law is far too complicated to enter into a discussion here), all honours from the Crown be it a knighthood or any grade within the orders of chivalry down to long service medals are subject to the statutes and regulations of the order or medal concerned. Such statutes and regulations allow for the award of the particular honour/medal concerned to be cancelled if the recipient is found guilty of some crime or other dishonourable conduct. Over the years there have been many examples of this occuring. More often than not such a cancellation is published in Her Majesty’s Government’s official newspapers of record here in the United Kingdom, i.e. The London, Edinburgh and Belfast Gazettes.
With regard to the Law and Usage of Arms of England. I think it best to view it not so much as a codified system of law, but more akin to ‘judge made law’ and precedent, together with certain conventions developed over the centuries by the kings of arms and the Chapter of the College, as well as by Earl Marshal’s Warrant in order to regulate heraldry within their jurisdiction. Much the same can be said of the Law and Usage of Scotland notwithstanding Lord Lyon being a judge in his own court. Please note I write this not as a lawyer be it heraldic or otherwise, but only as my considered opinion.
Regards
John
Hugh Brady;70291 wrote:
As for the prerogative, it is true that the grant of arms is part of the Sovereign’s prerogative powers, just as is the grant of a peerage. However, a peerage must be granted in accordance with certain formalities and under certain conditions, and the questions of heirship, etc., are properly tried before the House of Lords sitting as a court.
I wonder if the the availability of the House of Lords as a court to determine peerage rights resulted in the limits on royal prerogative with regard to peerages. At least certain of the five degrees of the peerage (baron through duke) were ceated for the first time by royal act and owed their right to sit in Parliament to that act, but in 1856 it was held that although Queen Victoria could bestow the title of baron for life, she could not attach to the life title a right to sit in Parliament, Wensleydale Peerage case. (This result was changed by statute as to lords of appeal in ordinary in 1856 and life peers in general in 1958.) The limits would have developed at a time when the House of Lords was much more powerful than now composed of powerful men protective of their interests. There is no similar body with the same power and incentive to limit the sovereigns discretion with respect to arms
Joseph McMillan;70295 wrote:
I think Squibb was very confused and confusing on this point.
I don’t disagree with this point. However, I think Squibb was correct in that the law of arms in England was considered English law—regardless of its continental origins. This is to be expected; no transplanted body of law remains untouched by local custom, innovation, practice, and precedent. That is, assuming that the law of arms received by England from the continent was the law initially applied by the Court of Chivalry, that application was modified to some degree during the course of three centuries or so in its application.
I believe one of the early cases that Squibb notes is the case where a man allegedly bore an escutcheon of pretence contrary to the law of arms. The man had no issue by the heiress, and it was alleged that the law of arms only permitted the bearing of the escutcheon of pretence if there was issue. Altho I don’t recall the court’s ruling, or even if Squibb reported the ruling, the point here is that the law of arms governed this kind of question.
For sake of argument, say the Court ruled that issue was necessary before bearing the escutcheon of pretence. Now assume that the chapter in 2009 "rules, ordains, and decrees" that issue is not required to bear same. The legal question is by what authority does the chapter have to make this ruling? Even if they are acting in an administrative capacity by issuing a clarifying regulation, just as a government department does in the case of a statute, the regulation is contrary to the plain holding of the Court. That cannot be, because that would be contrary to law. I also do not think it can be satisfactorily argued that the chapter acts under a delegation of authority from the Earl Marshal’s judicial power because it is a fundamental rule of common-law jurisprudence that a judge cannot act without a case in front of him.
I’ve only had time to look at a couple of letters patent creating kings of arms and briefly glanced through the royal charter making the heralds into a corporation governed by the chapter. I see nothing in either that permits the chapter to alter the law of arms. The royal charter deals primarily with organizational matters, such as the right to hold real property and sue and be sued. The letters patent seemingly require the kings of arms to issue grants in accordance with the law of arms and do not grant the authority to alter that law.
So we are still left with the question of how the law of arms in England is made or altered. Pronouncements from chapter do not seem to be the answer.
Hugh Brady;70308 wrote:
. . . assume that the chapter in 2009 "rules, ordains, and decrees"
I have not had the opportunity to review the College’s charter or the letters patent creating its members, but does the College in a corporate capacity have any power over arms? Arms are granted by one or more of the kings of arms, not by the College. The decree permitting ladies to use an escutcheon was issued by the kings of arms.
Hugh Brady;70308 wrote:
I don’t disagree with this point. However, I think Squibb was correct in that the law of arms in England was considered English law—regardless of its continental origins. This is to be expected; no transplanted body of law remains untouched by local custom, innovation, practice, and precedent. That is, assuming that the law of arms received by England from the continent was the law initially applied by the Court of Chivalry, that application was modified to some degree during the course of three centuries or so in its application.
The mediaeval legal approach was a bit different. Of course it was English law but it was as Joseph put it an acceptance of the validity of applying what would be essentially built on Roman law or transnational practice into local law. The application would have changed over time but would this have altered the law? I think this sort of law was open to a lot of things simply being read into it as needed without necessarily binding future officials from reading in other things.
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For sake of argument, say the Court ruled that issue was necessary before bearing the escutcheon of pretence. Now assume that the chapter in 2009 "rules, ordains, and decrees" that issue is not required to bear same. The legal question is by what authority does the chapter have to make this ruling? Even if they are acting in an administrative capacity by issuing a clarifying regulation, just as a government department does in the case of a statute, the regulation is contrary to the plain holding of the Court. That cannot be, because that would be contrary to law. I also do not think it can be satisfactorily argued that the chapter acts under a delegation of authority from the Earl Marshal’s judicial power because it is a fundamental rule of common-law jurisprudence that a judge cannot act without a case in front of him.
But this is not common law. Court decisions do not bind a civilan law court such as this. Each case refers back only to the law itself and not to ther cases or precedents except to the extent that these help clarify the law. Both judges and the executiove have far greater capacity for action and initiative. Why the separation of executive and judicial functions is not as clear and there was ittle need to clarify it. Great officers of state often combined executive and judicial powers and roles. I think the clearer distinction between legislative, executive and judicial roles comes later and largely bypasses heraldry.
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I’ve only had time to look at a couple of letters patent creating kings of arms and briefly glanced through the royal charter making the heralds into a corporation governed by the chapter. I see nothing in either that permits the chapter to alter the law of arms. The royal charter deals primarily with organizational matters, such as the right to hold real property and sue and be sued. The letters patent seemingly require the kings of arms to issue grants in accordance with the law of arms and do not grant the authority to alter that law.
But the heralds do not alter the law of arms. It remains unchanged - the only thing that change are the actions and decisions of heralds - all made with reference to their understanding of the law of arms such as it is.
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So we are still left with the question of how the law of arms in England is made or altered. Pronouncements from chapter do not seem to be the answer.
It is as it was and new law is made by the Sovereign (without reference to Parliament). Existing law is applied, albeit idiosyncratically through the Earl Marshal or the chapter. None of what they do creates unalterable precedent that binds future heralds - only the law binds them and you could float a battleship through the areas that are subject to discretion.
That’s my take on it.
George Lucki;70289 wrote:
While England is generally a common-law jurisdiction there are several areas of law including heraldic law, ecclesiastical law, and some admirality law that arise from a tradition of civil rooted in the old Roman law.
George Lucki;70311 wrote:
The mediaeval legal approach was a bit different. Of course it was English law but it was as Joseph put it an acceptance of the validity of applying what would be essentially built on Roman law or transnational practice into local law.
* * * *
But this is not common law. Court decisions do not bind a civil[] law court such as this. Each case refers back only to the law itself and not to [o]ther cases or precedents except to the extent that these help clarify the law.
But the Roman civil law was written and codified, as was later French law in the Code Napoleon. There is no written heraldic code. Thus, we are left to infer the law from the actions of the officers of arms Such my not, in England, be technically "judicial" but it has much the same effect and thus seems more like common law.
Jay Bohn;70315 wrote:
But the Roman civil law was written and codified, as was later French law in the Code Napoleon. There is no written heraldic code. Thus, we are left to infer the law from the actions of the officers of arms Such my not, in England, be technically "judicial" but it has much the same effect and thus seems more like common law.
There is no heraldic code, but the principles of the transnational law of arms were deduced analogically from the codified Roman civil law by the early heraldic legal publicists. (See the translation of key parts of Bartolo da Sassoferrato’s De Insigniis et Armis at http://www.heraldica.org/topics/bartolo.htm, with all the citations to the Codex Juris Civilis and the Digest of Justinian).
It’s important to keep in mind that this law of arms had little or nothing to do with how to design a coat of arms (the "law of tincture" is not a "law" in this sense), but rather questions of who was entitled to bear what arms, how arms could be acquired and transferred, who inherited them, and the like.
It is on this basis that 19th/early 20th scholars like Sitwell, Barron, and Round could criticize the English heraldic establishment for violating the laws of arms when corrupt or sycophantic heralds confirmed arms to claimants who were not provably descended from the previous bearer of the same arms, or in some instances minimally differenced arms. When the famous 1385 Scrope v. Grosvenor decision was decided, there was no body of practice that had been built up by an official body of heralds, yet the law of arms was still sufficiently developed that the king recognized that a brisure was inadequate to differentiate the arms of unrelated families. If the law of arms was synonymous with the decisions of the College of Arms, then neither the Sitwell-Barron-Round critique nor the king’s overruling of the Court of Chivalry’s initial decision would make sense.
Joseph McMillan;70327 wrote:
It’s important to keep in mind that this law of arms had little or nothing to do with how to design a coat of arms (the "law of tincture" is not a "law" in this sense), but rather questions of who was entitled to bear what arms, how arms could be acquired and transferred, who inherited them, and the like.
a subset of the AHS Guidelines?