Law of Arms
Encyclopedia
The law of heraldic arms (or laws of heraldry
) governs the "bearing of arms", that is, the possession, use or display of arms, also called coats of arms
, coat armour or armorial bearings. Although it is believed that the original function of coats of arms was to enable knights to identify each other on the battlefield, they soon acquired wider, more decorative uses. They are still widely used today by countries, public and private institutions and by individuals. The earliest writer on the law of arms was Bartolus de Saxoferrato
. The officials who administer these matters are called pursuivant
s, herald
s, or kings of arms
(in increasing order of seniority). The law of arms is part of the law in countries which regulate heraldry, although not part of common law
in England and in countries whose laws derive from English law.
According to the usual description of the law of arms, coats of arms, armorial badges, flags and standards and other similar emblems of honour may only be borne by virtue of ancestral right, or of a grant
made to the user under due authority. Ancestral right means descent in the male line from an ancestor who lawfully bore arms. Due authority has, since late medieval times, been the Crown or the State.
In the United Kingdom and Commonwealth the Crown's prerogative of granting arms is delegated to one of several authorities depending on the country. In England, Wales, Northern Ireland authority to grant arms is delegated to the Kings of Arms of the College of Arms
, under the direction of the Earl Marshal
. In Scotland this authority is delegated to Lord Lyon King of Arms
at his or her own discretion. In Canada it is exercised by Canadian Heraldic Authority
under the direction of the Governor-General of Canada.
In the Republic of Ireland arms are granted by the Chief Herald of Ireland. However, the legislative position of the Office of the Chief Herald of Ireland is unclear and therefore, on May 8, 2006 Senator Brendan Ryan introduced the Genealogy & Heraldry Bill, 2006, in Seanad Éireann (Irish Senate) to remedy this situation. In Spain, whilst the power to grant new arms is restricted to the king, the Cronistas de Armas
(Chroniclers of Arms) have the power to certify arms within the province(s) of their appointment. As of 2008, there is currently only one, with authority only in the provinces of Castile and León
.
Although the common law courts do not regard coats of arms as either property or as being defensible by action, armorial bearings are a form of property nevertheless, generally described as tesserae gentilitatis or insignia of gentility. Armorial bearings are incorporeal and impartible hereditaments, inalienable, and descendable according to the law of arms. Generally speaking (there have been very rare examples of patents in which the arms are granted to descend with some different limitation), this means they are inherited by the issue (male and female) in the male line of the grantee, though they can be inherited as quarterings by the sons of an heraldic heiress
, where there is no surviving male heir, provided her issue also have a right to bear arms in their own male line.
.
Notwithstanding the large amount of arms, crests and badges granted from this office since its foundation, there is a strong opinion that heraldic symbols and coats of arms that existed pre-1552 and afterwards belonged to the Gaelic tradition and as such anyone who can prove descent from an original Irish sept that used such arms has a right to use them without differentiation. This is not a view held by the current Chief Herald of Ireland and anyone who wishes to bear arms legally in Ireland should seek their own individual grant of arms.
In England the exclusive jurisdiction of deciding rights to arms, and claims of descent, is vested in the Court of Chivalry
. As the substance of the common law is found in the judgments of the common law Courts, so the substance of the Law of Arms can only be found in the customs and usages of the Court of Chivalry. However, the records of this are sparse, not least because the Court never gave reasoned judgments (the Lord Chief Justice who sat in 1954 offering the sole exception to this, no doubt because of his professional background as a common law Judge). The procedure was based on that of the civil law
, but the substantive law was recognised to be English, and peculiar to the Court of Chivalry.
Until 1945 coats of arms (engravings, public paintings, etc.) were taxed, with no distinction made in the statute between arms granted by the College of Arms or those which were self-assumed.
heritable property, governed, subject to certain specialities, by the general law applicable to such property. The possession of armorial bearings is therefore unquestionably a question of property. The misappropriation of arms is a real injury, actionable under the common law of Scotland.
but is otherwise derived from the same origin.
Other countries have other laws of arms, which vary to a greater or lesser extent to those in the Commonwealth Realm
s. However, few are as regulated.
§ 12; this interpretation was confirmed in 1992 by the Federal Court of Justice of Germany
. Thus, if one has the right to certain arms, that right is protected by the courts. Personal arms are protected as a part of the name if the arms are officially recorded and published.
in 1948, and that body addressed itself primarily to state recognition of titles of nobility rather than the heraldry of untitled armigers such as nobili (untitled nobles) and patrizi (of the patriciates in the former city-states). Until the unification of the country circa 1870, the issuance and use of familial coats of arms was exercised rather loosely in the various Italian states, with each region applying its own laws. There is no complete armory of Italian coats of arms, though certain authors, such as Giambattista Crollalanza, compiled references which appear to be nearly complete. Until the establishment of the republic (1946) and its constitution two years later, most coats of arms in Italy appertained to noble families, whether titled or not, although a number of blazons were identified with cittadini (burghers) whose families had used these for a century or more.
has the power to register coats of arms to protect against misuse, but registration of arms is voluntary.
has registered its emblem and coat of arms for use in its capacity as an institution of higher education.
Its jurisdiction and powers were successively reduced by the common law courts to the point where, after 1737, the Court ceased to be convened and was in time regarded as obsolete and no longer in existence. That understanding was authoritatively overturned, however, by a revival of the Court in 1954, when the Earl Marshal appointed the then Lord Chief Justice to sit as his surrogate. The Lord Chief Justice Lord Goddard confirmed that the Court retained both its existence and its powers, and ruled in favour of the suit before him.
However, in his judgment (Manchester Corporation v Manchester Palace of Varieties [1955] P 133) Lord Goddard suggested that
In 1970, Arundel Herald Extraordinary
advised Wolfson College, Oxford
(who were considering whether to invoke a controversial University privilege in order to avoid paying for a grant of arms) that the effect of Lord Goddard’s dictum “must make any further sitting of the court unlikely even for a cause of instance; and the revival of causes of office, which were obsolescent even in the seventeenth century, would be more difficult still.” (quoted in “The Coat of Arms of Wolfson College Oxford” by Dr Jeremy Black The College Record 1989–90).
In 1984, Garter King of Arms declined to ask the Court to rule against the assumption of unauthorised arms by a local authority, doubting whether the precedents would give jurisdiction (A New Dictionary of Heraldry (1987) Stephen Friar p 63).
Hence, although the Law of Arms undoubtedly remains part of the law of England, and although the Court of Chivalry in theory exists as a forum in which it may be enforced, there is difficulty in enforcing the law in practice (a point made in Re Croxon, Croxon v Ferrers [1904] Ch 252, Kekewich
J). The absence of a practical remedy for the illegal usurpation of arms in the law of England does not mean that there are no rights infringed, merely that it not within the jurisdiction of the common law Courts to act and the Court which is so empowered does not now sit.
is the judge of the Lyon Court, which has jurisdiction over all heraldic matters. An act of the Scottish parliament in 1592 made the unauthorised use of arms a criminal offence and gave Lyon the responsibility to prosecute such misuse, though in practice this might not be legal today. Unlike the Court of Chivalry, the Court of the Lord Lyon is very much alive, and is fully integrated into the Scottish legal system.
, and in England, many of the suits in the Court of Chivalry were decided on that basis. He may of course be of higher rank, as esquire
, knight, peer, or prince.
In contrast, a coat of arms in Scotland is often said to be a fief annoblissant, similar to a Scottish territorial peerage
or barony. Under Sir Thomas Innes of Learney (Lord Lyon King of Arms 1945–1969), wording was introduced into every Scottish patent
of arms which states that the grantee "and his succesors in the same are, amongst all Nobles and in all Places of Honour to be taken, numbered, accounted and received as Nobles in the Noblesse of Scotland". These claims, strongly championed by Innes of Learney himself and by other writers, have now found broad acceptance amongst legal commentators as correctly representing the Law of Arms in Scotland (for example, The Stair Encyclopaedia of Scots Law (vol. 11, p. 548, para. 1613)), but are challenged by others.
On the European continent, there is a clear difference between noble arms and burgher arms
.
In most countries, scholars agree that a coat of arms is an indication of nobility, but that (in times past) simply assuming a coat of arms did not ennoble the armiger
ipso facto.
However, the assumption of arms has in every age been common, and became particularly so after the College of Arms
ceased to obtain warrants to search out the illegal use of armory pro-actively by roving enquiries known as the Visitations
, the last of which took place at the end of the seventeenth century.
Burke’s General Armory (last edition 1884) is said to contain arms attributed to 60,000 families (The Upper Classes; Property and Privilege in Britain J. Scott (1982) p 91). But it has been calculated that there were only 9,458 armigerous families in 1798 (The Nobility of the English Gentry J. Lawrence (1824)) and a total of 8,320 grants of arms made in the 19th century (English Nobility: the Gentry, the Heralds and the Continental Context M J Sayer (1979)), which implies, albeit on an extremely rough and ready basis, about 40,000 assumptions of arms.
Heraldry
Heraldry is the profession, study, or art of creating, granting, and blazoning arms and ruling on questions of rank or protocol, as exercised by an officer of arms. Heraldry comes from Anglo-Norman herald, from the Germanic compound harja-waldaz, "army commander"...
) governs the "bearing of arms", that is, the possession, use or display of arms, also called coats of arms
Coat of arms
A coat of arms is a unique heraldic design on a shield or escutcheon or on a surcoat or tabard used to cover and protect armour and to identify the wearer. Thus the term is often stated as "coat-armour", because it was anciently displayed on the front of a coat of cloth...
, coat armour or armorial bearings. Although it is believed that the original function of coats of arms was to enable knights to identify each other on the battlefield, they soon acquired wider, more decorative uses. They are still widely used today by countries, public and private institutions and by individuals. The earliest writer on the law of arms was Bartolus de Saxoferrato
Bartolus de Saxoferrato
Bartolus de Saxoferrato was an Italian law professor and one of the most prominent continental jurists of Medieval Roman Law. He belonged to the school known as the commentators or postglossators...
. The officials who administer these matters are called pursuivant
Pursuivant
A pursuivant or, more correctly, pursuivant of arms, is a junior officer of arms. Most pursuivants are attached to official heraldic authorities, such as the College of Arms in London or the Court of the Lord Lyon in Edinburgh. In the mediaeval era, many great nobles employed their own officers of...
s, herald
Herald
A herald, or, more correctly, a herald of arms, is an officer of arms, ranking between pursuivant and king of arms. The title is often applied erroneously to all officers of arms....
s, or kings of arms
King of Arms
King of Arms is the senior rank of an officer of arms. In many heraldic traditions, only a king of arms has the authority to grant armorial bearings. In other traditions, the power has been delegated to other officers of similar rank.-Heraldic duties:...
(in increasing order of seniority). The law of arms is part of the law in countries which regulate heraldry, although not part of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
in England and in countries whose laws derive from English law.
The right to bear arms
Grant of Arms
A grant of arms is an action by a lawful authority, such as an officer of arms, conferring on a person and his or her descendants the right to bear a particular coat of arms or armorial bearings...
made to the user under due authority. Ancestral right means descent in the male line from an ancestor who lawfully bore arms. Due authority has, since late medieval times, been the Crown or the State.
In the United Kingdom and Commonwealth the Crown's prerogative of granting arms is delegated to one of several authorities depending on the country. In England, Wales, Northern Ireland authority to grant arms is delegated to the Kings of Arms of the College of Arms
College of Arms
The College of Arms, or Heralds’ College, is an office regulating heraldry and granting new armorial bearings for England, Wales and Northern Ireland...
, under the direction of the Earl Marshal
Earl Marshal
Earl Marshal is a hereditary royal officeholder and chivalric title under the sovereign of the United Kingdom used in England...
. In Scotland this authority is delegated to Lord Lyon King of Arms
Lord Lyon King of Arms
The Lord Lyon King of Arms, the head of Lyon Court, is the most junior of the Great Officers of State in Scotland and is the Scottish official with responsibility for regulating heraldry in that country, issuing new grants of arms, and serving as the judge of the Court of the Lord Lyon, the oldest...
at his or her own discretion. In Canada it is exercised by Canadian Heraldic Authority
Canadian Heraldic Authority
The Canadian Heraldic Authority is part of the Canadian honours system under the Queen of Canada, whose authority is exercised by the Governor General. The Authority is responsible for the creation and granting of new coats of arms , flags and badges for Canadian citizens, permanent residents and...
under the direction of the Governor-General of Canada.
In the Republic of Ireland arms are granted by the Chief Herald of Ireland. However, the legislative position of the Office of the Chief Herald of Ireland is unclear and therefore, on May 8, 2006 Senator Brendan Ryan introduced the Genealogy & Heraldry Bill, 2006, in Seanad Éireann (Irish Senate) to remedy this situation. In Spain, whilst the power to grant new arms is restricted to the king, the Cronistas de Armas
Cronista Rey de Armas
The Chronicler King of Arms in the Kingdoms of Spain was a civil servant who had the authority to grant armorial bearings. The office of the King of Arms in Spain originated from those of the heralds . In the early days of heraldry, anyone could bear arms and as is normal where human beings are...
(Chroniclers of Arms) have the power to certify arms within the province(s) of their appointment. As of 2008, there is currently only one, with authority only in the provinces of Castile and León
Castile and León
Castile and León is an autonomous community in north-western Spain. It was so constituted in 1983 and it comprises the historical regions of León and Old Castile...
.
The law of arms as part of the general law
While the degree to which the general law recognises arms differs, in both England and Scotland a grant of arms confers certain rights upon the grantee and his (or her) heirs, even if they may not be easily protected. No person may lawfully have the same coat of arms as another person in the same heraldic jurisdiction although in England the bearing of identical arms without differencing marks by descendants from a common armigerous ancestor has been widespread and tolerated by the College of Arms.Although the common law courts do not regard coats of arms as either property or as being defensible by action, armorial bearings are a form of property nevertheless, generally described as tesserae gentilitatis or insignia of gentility. Armorial bearings are incorporeal and impartible hereditaments, inalienable, and descendable according to the law of arms. Generally speaking (there have been very rare examples of patents in which the arms are granted to descend with some different limitation), this means they are inherited by the issue (male and female) in the male line of the grantee, though they can be inherited as quarterings by the sons of an heraldic heiress
Heraldic heiress
In English heraldry an heraldic heiress is a daughter of deceased man who was entitled to a coat of arms and who carries forward the right to those arms for the benefit of her future male descendants...
, where there is no surviving male heir, provided her issue also have a right to bear arms in their own male line.
Ireland
In Ireland the granting of arms to Irish citizens or to those who can prove Irish ancestry is considered to be a cultural tradition which is allowed through the Office of the Chief Herald of Ireland. This Office was established under the English Crown in 1552 as the Ulster King of Arms and was converted to the Chief Herald's Office after the 1938 Constitution of IrelandConstitution of Ireland
The Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...
.
Notwithstanding the large amount of arms, crests and badges granted from this office since its foundation, there is a strong opinion that heraldic symbols and coats of arms that existed pre-1552 and afterwards belonged to the Gaelic tradition and as such anyone who can prove descent from an original Irish sept that used such arms has a right to use them without differentiation. This is not a view held by the current Chief Herald of Ireland and anyone who wishes to bear arms legally in Ireland should seek their own individual grant of arms.
England and Wales
In England and Wales, the law of arms is regarded as a part of the laws of England, and the common law courts will take judicial notice of it as such. These dignities, as they are called, have legal standing. But the law of arms is not part of the common law and the common law Courts have no jurisdiction over matters of dignities and honours, such as armorial bearings, or peerages. In this respect the law of arms was most influenced by the civil law and may be regarded as similar to the ecclesiastical law, which is a part of the laws of England influenced by canon law, but not part of the common law.In England the exclusive jurisdiction of deciding rights to arms, and claims of descent, is vested in the Court of Chivalry
Court of Chivalry
Her Majesty's High Court of Chivalry of England and Wales is a civil court in England. It has had jurisdiction in cases of the misuse of heraldic arms since the fourteenth century....
. As the substance of the common law is found in the judgments of the common law Courts, so the substance of the Law of Arms can only be found in the customs and usages of the Court of Chivalry. However, the records of this are sparse, not least because the Court never gave reasoned judgments (the Lord Chief Justice who sat in 1954 offering the sole exception to this, no doubt because of his professional background as a common law Judge). The procedure was based on that of the civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
, but the substantive law was recognised to be English, and peculiar to the Court of Chivalry.
Until 1945 coats of arms (engravings, public paintings, etc.) were taxed, with no distinction made in the statute between arms granted by the College of Arms or those which were self-assumed.
Scotland
The law of arms as understood in Scotland consists of two principal parts, the rules of heraldry (such as blazoning), and the law of heraldry. In contrast to the position in England, the Law of Arms is a branch of the civil law. A coat of arms is incorporealIncorporeal
Incorporeal or uncarnate means without the nature of a body or substance . The idea of incorporeality refers to the notion that there is an incorporeal realm of existence, or "place", that is distinct from the corporeal or material universe. Incorporeal beings or objects are not made out of matter...
heritable property, governed, subject to certain specialities, by the general law applicable to such property. The possession of armorial bearings is therefore unquestionably a question of property. The misappropriation of arms is a real injury, actionable under the common law of Scotland.
Commonwealth realms
The Laws of arms of Australia, New Zealand and the other realms of the Queen are derived from those of England, though this is contested by some. The Canadian law of arms is now regulated by the Canadian Heraldic AuthorityCanadian Heraldic Authority
The Canadian Heraldic Authority is part of the Canadian honours system under the Queen of Canada, whose authority is exercised by the Governor General. The Authority is responsible for the creation and granting of new coats of arms , flags and badges for Canadian citizens, permanent residents and...
but is otherwise derived from the same origin.
Other countries have other laws of arms, which vary to a greater or lesser extent to those in the Commonwealth Realm
Commonwealth Realm
A Commonwealth realm is a sovereign state within the Commonwealth of Nations that has Elizabeth II as its monarch and head of state. The sixteen current realms have a combined land area of 18.8 million km² , and a population of 134 million, of which all, except about two million, live in the six...
s. However, few are as regulated.
Denmark
In Denmark the unlawful use of coats of arms and other insignia of Danish and foreign authorities is a criminal offence. Non-official coats of arms are not protected. A specific rendition of a coat of arms is protected through copyright law and a coat of arms can be used as a trademark and will thus be protected by trademark law. There is no official heraldic authority in Denmark. The only way to acquire coats of arms in Denmark is through assumption.Germany
In Germany the arms relate to a family, and so a name, and not to an individual. The right to the arms passes from the original bearer to those of his legitimate direct descendants by a male line. Since 1918 heraldic affairs are handled under the Civil Law. The right to arms is now considered analogous to the right to names, expressed in the Bürgerliches GesetzbuchBürgerliches Gesetzbuch
The Bürgerliches Gesetzbuch is the civil code of Germany. In development since 1881, it became effective on January 1, 1900, and was considered a massive and groundbreaking project....
§ 12; this interpretation was confirmed in 1992 by the Federal Court of Justice of Germany
Federal Court of Justice of Germany
The Federal Court of Justice of Germany in Karlsruhe is the highest court in the system of ordinary jurisdiction in Germany. It is the supreme court in all matters of criminal and private law...
. Thus, if one has the right to certain arms, that right is protected by the courts. Personal arms are protected as a part of the name if the arms are officially recorded and published.
Italy
Italian coats of arms may be said to be familial rather than personal. In Italy there has been no official regulation of familial coats of arms or titles of nobility since abolition of the Consulta AraldicaConsulta Araldica
The Consulta Araldica was a college instituted by royal decree on 10 October 1869 to advise the Italian government on noble titles, coats of arms and related matters. It was part of the Ministry of the Interior...
in 1948, and that body addressed itself primarily to state recognition of titles of nobility rather than the heraldry of untitled armigers such as nobili (untitled nobles) and patrizi (of the patriciates in the former city-states). Until the unification of the country circa 1870, the issuance and use of familial coats of arms was exercised rather loosely in the various Italian states, with each region applying its own laws. There is no complete armory of Italian coats of arms, though certain authors, such as Giambattista Crollalanza, compiled references which appear to be nearly complete. Until the establishment of the republic (1946) and its constitution two years later, most coats of arms in Italy appertained to noble families, whether titled or not, although a number of blazons were identified with cittadini (burghers) whose families had used these for a century or more.
South Africa
Under South African law, which is Roman–Dutch, all citizens have the right to assume and bear arms as they please, provided they do not infringe the rights of others (e.g. by bearing the same arms). The Bureau of HeraldryBureau of Heraldry (South Africa)
The Bureau of Heraldry is the South African heraldic authority, established in Pretoria on 1 June 1963. It is headed by a National Herald and its functions are to register arms, badges, flags and seals , to keep a public register, to issue registration certificates and, since 1980, to advise the...
has the power to register coats of arms to protect against misuse, but registration of arms is voluntary.
United States
In the United States protection of coats of arms is for the most part limited to those of units of the armed forces, with a few exceptions. Personal coats of arms may be freely assumed but the right to these blazons is not protected in any way. It is possible that a coat of arms could be successfully protected as a trademark or service mark, but, in general, such protection is reserved for commercial use as a mark connected with a good or service, and not as a heraldic coat of arms. For example, the University of Texas at AustinUniversity of Texas at Austin
The University of Texas at Austin is a state research university located in Austin, Texas, USA, and is the flagship institution of the The University of Texas System. Founded in 1883, its campus is located approximately from the Texas State Capitol in Austin...
has registered its emblem and coat of arms for use in its capacity as an institution of higher education.
England: Court of Chivalry
In England the officer with power to adjudicate on legal aspects of the law of arms is the Earl Marshal, whose court is known as the Court of Chivalry. The court was established some time prior to the late fourteenth century with jurisdiction over certain military matters, which came to include misuse of arms.Its jurisdiction and powers were successively reduced by the common law courts to the point where, after 1737, the Court ceased to be convened and was in time regarded as obsolete and no longer in existence. That understanding was authoritatively overturned, however, by a revival of the Court in 1954, when the Earl Marshal appointed the then Lord Chief Justice to sit as his surrogate. The Lord Chief Justice Lord Goddard confirmed that the Court retained both its existence and its powers, and ruled in favour of the suit before him.
However, in his judgment (Manchester Corporation v Manchester Palace of Varieties [1955] P 133) Lord Goddard suggested that
- if this court is to sit again it should be convened only where there is some really substantial reason for the exercise of its jurisdiction.
In 1970, Arundel Herald Extraordinary
Arundel Herald Extraordinary
Arundel Herald of Arms Extraordinary is a supernumerary Officer of Arms in England. Though a royal herald, Arundel is not a member of the College of Arms, and was originally a private herald in the household of Thomas Fitzalan, Earl of Arundel. He is known to have served the Earl both in Portugal...
advised Wolfson College, Oxford
Wolfson College, Oxford
Wolfson College is a constituent college of the University of Oxford in England. Located in north Oxford along the River Cherwell, Wolfson is an all-graduate college with over sixty governing body fellows, in addition to both research and junior research fellows. It caters to a wide range of...
(who were considering whether to invoke a controversial University privilege in order to avoid paying for a grant of arms) that the effect of Lord Goddard’s dictum “must make any further sitting of the court unlikely even for a cause of instance; and the revival of causes of office, which were obsolescent even in the seventeenth century, would be more difficult still.” (quoted in “The Coat of Arms of Wolfson College Oxford” by Dr Jeremy Black The College Record 1989–90).
In 1984, Garter King of Arms declined to ask the Court to rule against the assumption of unauthorised arms by a local authority, doubting whether the precedents would give jurisdiction (A New Dictionary of Heraldry (1987) Stephen Friar p 63).
Hence, although the Law of Arms undoubtedly remains part of the law of England, and although the Court of Chivalry in theory exists as a forum in which it may be enforced, there is difficulty in enforcing the law in practice (a point made in Re Croxon, Croxon v Ferrers [1904] Ch 252, Kekewich
Arthur Kekewich
Sir Arthur Kekewich was a British Chancery Division judge.He was the second son of Samuel Trehawke Kekewich....
J). The absence of a practical remedy for the illegal usurpation of arms in the law of England does not mean that there are no rights infringed, merely that it not within the jurisdiction of the common law Courts to act and the Court which is so empowered does not now sit.
Scotland: Court of the Lord Lyon
In Scotland, Lord Lyon King of ArmsLord Lyon King of Arms
The Lord Lyon King of Arms, the head of Lyon Court, is the most junior of the Great Officers of State in Scotland and is the Scottish official with responsibility for regulating heraldry in that country, issuing new grants of arms, and serving as the judge of the Court of the Lord Lyon, the oldest...
is the judge of the Lyon Court, which has jurisdiction over all heraldic matters. An act of the Scottish parliament in 1592 made the unauthorised use of arms a criminal offence and gave Lyon the responsibility to prosecute such misuse, though in practice this might not be legal today. Unlike the Court of Chivalry, the Court of the Lord Lyon is very much alive, and is fully integrated into the Scottish legal system.
Arms conferring nobility
In England a grant of arms does not ennoble a grantee in itself, but is a recognition of rank or status and, therefore, an authoritative confirmation of it. An armiger (one who has the right to bear arms) is deemed to be of the status of a gentlemanGentleman
The term gentleman , in its original and strict signification, denoted a well-educated man of good family and distinction, analogous to the Latin generosus...
, and in England, many of the suits in the Court of Chivalry were decided on that basis. He may of course be of higher rank, as esquire
Esquire
Esquire is a term of West European origin . Depending on the country, the term has different meanings...
, knight, peer, or prince.
In contrast, a coat of arms in Scotland is often said to be a fief annoblissant, similar to a Scottish territorial peerage
Peerage
The Peerage is a legal system of largely hereditary titles in the United Kingdom, which constitute the ranks of British nobility and is part of the British honours system...
or barony. Under Sir Thomas Innes of Learney (Lord Lyon King of Arms 1945–1969), wording was introduced into every Scottish patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
of arms which states that the grantee "and his succesors in the same are, amongst all Nobles and in all Places of Honour to be taken, numbered, accounted and received as Nobles in the Noblesse of Scotland". These claims, strongly championed by Innes of Learney himself and by other writers, have now found broad acceptance amongst legal commentators as correctly representing the Law of Arms in Scotland (for example, The Stair Encyclopaedia of Scots Law (vol. 11, p. 548, para. 1613)), but are challenged by others.
On the European continent, there is a clear difference between noble arms and burgher arms
Burgher arms
Burgher arms are coats of arms of commoners in heraldry of the European continent, and, by definition, the term is alien to British heraldry....
.
In most countries, scholars agree that a coat of arms is an indication of nobility, but that (in times past) simply assuming a coat of arms did not ennoble the armiger
Armiger
In heraldry, an armiger is a person entitled to use a coat of arms. Such a person is said to be armigerous.-Etymology:The Latin word armiger literally means "armour-bearer". In high and late medieval England, the word referred to an esquire attendant upon a knight, but bearing his own unique...
ipso facto.
Assumption of arms
While in the continent of Europe assumption of arms has mostly remained free, in some countries arms may not be assumed or changed at will. In particular, there is some authority for the claim that it is unlawful to assume arms in England and Wales without the authority of the Crown. This is the view of the College of Arms and is supported by some dicta in court cases, including In re Berens, [1926] Ch. 596, 605–06, and Manchester Corporation v Manchester Palace of Varieties Ltd, [1955] P. 133 (the only modern decision of the Court of Chivalry). However, there is no holding by a modern court directly on point. For cases considering the question but not deciding it, see Austen v. Collins, 54 L.T.R. 903 (Ch. 1886); In re Croxon, [1904] Ch. 252.However, the assumption of arms has in every age been common, and became particularly so after the College of Arms
College of Arms
The College of Arms, or Heralds’ College, is an office regulating heraldry and granting new armorial bearings for England, Wales and Northern Ireland...
ceased to obtain warrants to search out the illegal use of armory pro-actively by roving enquiries known as the Visitations
Heraldic visitation
Heraldic Visitations were tours of inspection undertaken by Kings of Arms in England, Wales and Ireland in order to regulate and register the coats of arms of nobility and gentry and boroughs, and to record pedigrees...
, the last of which took place at the end of the seventeenth century.
Burke’s General Armory (last edition 1884) is said to contain arms attributed to 60,000 families (The Upper Classes; Property and Privilege in Britain J. Scott (1982) p 91). But it has been calculated that there were only 9,458 armigerous families in 1798 (The Nobility of the English Gentry J. Lawrence (1824)) and a total of 8,320 grants of arms made in the 19th century (English Nobility: the Gentry, the Heralds and the Continental Context M J Sayer (1979)), which implies, albeit on an extremely rough and ready basis, about 40,000 assumptions of arms.
Sources
- Major Sir Crispin Agnew of Lochnaw, "The Conflict of heraldic laws" (1988) Juridical Review 61ff
- Noel Cox, "Commonwealth Heraldic Jurisdiction: with specific emphasis on the Law of Arms in New Zealand” [2005] 1(210) The Coat of Arms (3rd series) 145–162
- Noel Cox, "A New Zealand Heraldic Authority?", in John Campbell-Kease (ed), Tribute to an Armorist: Essays for John Brooke-LittleJohn Brooke-LittleJohn Philip Rudolph Dominic Derek Aloysius Mary Brooke-Little, CVO, KStJ, FSA, FSG, FHS, FHG , FRHSC , FHSNZ, KM, GCGCO was an influential and popular British writer on heraldic subjects and a long-serving officer of arms at the College of Arms in London...
to mark the Golden Jubilee of The Coat of Arms (The Heraldry Society, London, 2000) 93–101 - Noel Cox, "The Law of Arms in New Zealand" (1998) 18 (2) New Zealand Universities Law Review 225–256
- Mark Turnham ElvinsMark ElvinsMark Turnham Elvins, OFMCap, was Warden of Greyfriars, Oxford until its closure in 2008.- Biography :Mark Turnham Elvins was born in 1939 at Whitstable, the son of an Anglican clergyman who had been Rector of St Mary in the Castle, Dover....
, Cardinals and heraldry, illustrated by Anselm Baker, foreword by the Archbishop of BirminghamArchbishop of BirminghamThe Archbishop of Birmingham heads the Roman Catholic Archdiocese of Birmingham in England. As such he is the Metropolitan Archbishop of the Province of Birmingham....
(Maurice Noël Léon Couve de MurvilleMaurice Noël Léon Couve de MurvilleMaurice Noël Léon Couve de Murville was the seventh Roman Catholic Archbishop of Birmingham from 25 March 1982 until his retirement on 12 June 1999, having formerly been a priest of the Diocese of Arundel and Brighton and chaplain of Fisher House, Cambridge.-Early career and priesthood:Maurice...
), preface by John Brooke-LittleJohn Brooke-LittleJohn Philip Rudolph Dominic Derek Aloysius Mary Brooke-Little, CVO, KStJ, FSA, FSG, FHS, FHG , FRHSC , FHSNZ, KM, GCGCO was an influential and popular British writer on heraldic subjects and a long-serving officer of arms at the College of Arms in London...
(Norroy and Ulster King of ArmsNorroy and Ulster King of ArmsNorroy and Ulster King of Arms is one of the senior Officers of Arms of the College of Arms, and the junior of the two provincial Kings of Arms. The current office is the combination of two former appointments...
) (London: Buckland Publications, 1988) [Discusses the legal status of the arms of Catholic bishops in England and Scotland in light of diplomatic irregularities with the Holy See prior to 1982]. - "Manchester Corporation v Manchester Palace of Varieties Ltd" [1955] 2 WLR 440; [1955] All ER 387; [1955] P 133 per Lord Goddard.
- George Squibb, QCQueen's CounselQueen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
, "Heraldic Authority in the British Commonwealth" (1968) 10 (no 76) The Coat of Arms 125ff - George Squibb, QC, The High Court of Chivalry (1959, reprinted 1997)
- Martin Sunnqvist, The Law of Arms
- François Velde Austin v. Collins
- François Velde Regulation of Heraldry in England
- François Velde The Lord Lyon and His Jurisdiction
- François Velde Right to Bear Arms
- Michael Waas, Heraldry in Germany
- Luigi Mendola Sicilian Heraldry
- The Stair Encyclopaedia of Scots Law