The
Law of Arms or laws of
heraldryHeraldry is the profession, study, or art of devising, 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 armsA coat of arms, more properly called an armorial achievement, armorial bearings or often just arms for short, in European tradition, is a design belonging to a particular person and used by them in a wide variety of ways. Historically, they were used by knights to identify them apart from enemy...
, 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 SaxoferratoBartolus de Saxoferrato was an Italian law professor and one of the most prominent continental jurists of the Middle Ages. He belonged to the school known as the commentators or postglossators...
. The officials who administer these matters are called
pursuivantA Pursuivant, or more correctly a 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,
heraldA 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 armsKing 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 lawCommon law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law....
in
EnglandEngland is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west and the North Sea to the east, with the English Channel to the south separating it from continental...
and in countries whose laws derive from English law.
The right to bear arms
According to the usual description of the Law of Arms, coats of arms, armorial
badgeA badge is a device, patch, or accoutrement which is presented or displayed to indicate some feat of service, a special accomplishment, a symbol of authority granted by taking an oath , a sign of legitimate employment or student status, or as a simple means of identification...
s,
flagA flag is a piece of fabric, often flown from a pole or mast, generally used symbolically for signaling or identification. It is most commonly used to symbolize a country...
s and standards and other similar emblems of honour may only be borne by virtue of ancestral right, or of a
grantA grant of arms is an action by a lawful authority, such as an officer of arms, giving a person a right to bear a coat of arms or armorial bearings. It is one of two legal ways in which a person may bear arms in a jurisdiction regulating heraldry, the other being by birth, through inheritance. A...
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 ArmsThe 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 MarshalEarl Marshal is an ancient chivalric title used separately in England, Ireland and the United Kingdom, and formerly in Scotland.- England :...
. In Scotland this authority is delegated to
Lord Lyon King of ArmsThe 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 AuthorityThe 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 IrelandIreland is a country in north-western Europe. The modern sovereign state occupies about five-sixths of the island of Ireland, which was partitioned on 3 May 1921. It is a parliamentary democracy and a republic...
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,
http://www.oireachtas.ie/documents/bills28/bills/2006/2306/b2306s.pdf 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 ArmasThe Chronicler King of Arms in the Kingdoms of Spain is a civil servant appointed by the king, and more recently by the Minister of Justice, who has the authority to grant armorial bearings.The Spanish Cronista de Armas heraldic office dates back to the 16th century...
(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 LeónCastile and León , known formally as the Community of Castile and León, is one of the 17 autonomous communities of Spain. It was constructed from Old Castile and León in 1983...
.
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 heiressIn 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 descendents...
, 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 if 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 Ireland.
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
peerageThe Peerage is a system of titles in the United Kingdom, which represents the upper ranks of British nobility and is part of the British honours system. The term is used both collectively to refer to the entire body of titles, and individually to refer to a specific title...
s. 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
jurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility.Alternatively, jurisdiction is the authority given...
of deciding rights to arms, and claims of descent, is vested in the
Court of ChivalryHer 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 lawCivil law is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not determined, as in common law, by judges. The principle of civil law is to provide all citizens with an accessible and written collection of the laws which...
, but the substantive law was recognised to be English, and peculiar to the Court of Chivalry.
Scotland
The Law of Arms as understood in
ScotlandScotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
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 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 or place, that is distinct from the corporeal or material world. Incorporeal beings are not made out of matter in the way a physical,...
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
AustraliaAustralia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the continental mainland , the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans...
,
New ZealandNew Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses , and numerous smaller islands, most notably Stewart Island/Rakiura and the Chatham Islands. The indigenous Māori named New Zealand Aotearoa, commonly translated as The Land of the Long White Cloud...
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 AuthorityThe 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 RealmA Commonwealth realm is a sovereign state within the Commonwealth of Nations that has Elizabeth II as its monarch. The sixteen current realms have a combined land area of 18.8 million km² , and a population of 132 million; all but about two million live in the six most populous states, the United...
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. Since 1918 heraldic affairs are handled under the Civil Law. The right to arms is now considered an analogy to the right to names, BGB § 12.
BundesgerichtshofThe Federal Court of Justice of Germany is the highest court in the system of ordinary jurisdiction in Germany. It is the supreme court in all matters of criminal and civil law...
has in 1992 confirmed that arms are ruled by BGB § 12. 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 is 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 AraldicaThe 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. 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. 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.
South Africa
Under
South AfricaThe Republic of South Africa is a country located at the southern tip of Africa, with a coastline on the Atlantic and Indian Oceans. To the north lie Namibia, Botswana and Zimbabwe, to the east are Mozambique and Swaziland, while Lesotho is an independent country surrounded by South Africa.Modern...
n 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 HeraldryThe 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.
England: The 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 ExtraordinaryArundel 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, OxfordWolfson College is a constituent college of the University of Oxford in England. Quietly 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...
(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.
Scotland: The Court of the Lord Lyon
In Scotland,
Lord Lyon King of ArmsThe 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. 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
ennobleEnnoblement is the conferring of nobility—the induction of an individual into the noble class. Depending on time and region, various laws have governed who could be ennobled and how. Typically, nobility was conferred on individuals who had assisted the sovereign...
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
gentlemanThe term gentleman , in its original and strict signification, denoted a man of good family, 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
esquireEsquire is a term of British origin , originally used to denote social status.Ultimately deriving from the medieval squires who assisted knights, the term came to be used automatically by men of gentle birth. The social rank of Esquire is that above gentleman...
, 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
peerageThe Peerage is a system of titles in the United Kingdom, which represents the upper ranks of British nobility and is part of the British honours system. The term is used both collectively to refer to the entire body of titles, and individually to refer to a specific title...
or barony. Under Sir Thomas Innes of Learney (Lord Lyon King of Arms 1945-1969), wording was introduced into every Scottish
patentA patent is a set of exclusive rights granted by a state to an inventor or their assignee for a limited period of time in exchange for a 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)).
On the continent of Europe, there is clear difference between noble arms and
burgher armsBurgher arms are coats of arms of commoners in heraldry of the European continent. The term is alien to British heraldry.Although the term "burgher" arms refers to bourgeoisie, it is often extended also to arms of clergy and even to arms of peasants...
.
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
http://www.college-of-arms.gov.uk/About/12.htm and is supported by some dicta in court cases, including
In re Berens, [1926] Ch. 596, 605-6, 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 ArmsThe 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
VisitationsHeraldic 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-Little
John Philip Rudolph Dominic 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 Elvins
The Reverend Mark Turnham Elvins, OFMCap, is Warden of Greyfriars, Oxford.Mark Turnham Elvins was born in 1939 at Whitstable, the son of an Anglican clergyman who had been Rector of St Mary in Castro, Dover....
, Cardinals and heraldry, illustrated by Anselm Baker, foreword by the Archbishop 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 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 Philip Rudolph Dominic 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 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, QC
Queen'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". Membership exists in various Commonwealth countries around the world and it is a status, conferred by the Crown,...
, "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)
- The Stair Encyclopaedia of Scots Law