Getting a COA registered

[Joseph McMillan]

For the sake of discussion let's say the arms devised by Lyon to represent your ancestor are: argent a chevron gules within a bordure sable.

Hello, Scott. Kenneth Mansfield pointed me toward this discussion and I couldn't resist registering for the forum to chime in. (I guess that means I should introduce myself--Joe McMillan, not a kilt wearer but a heraldic enthusiast and director of research of the American Heraldry Society. The articles on the heraldry of the U.S. presidents that someone kindly mentioned in this thread are my work.)

A trivial point on this, more significant on what follows: it's unlikely that Lyon would devise a new coat of arms with a bordure of any kind, since in Scots heraldry bordures are almost always used to difference for cadency these days. He'd be more likely to devise arms differenced in other ways from the stem arms of the name.

Based on these arms he may determine that those that might be devised for your grandfather (as an indeterminate cadet of the original ancestor)

But your grandfather couldn't be an indeterminate cadet of the original grantee, because if he were indeterminate that would mean you hadn't proven descent from the person who was subject to Lyon's jurisdiction. Nevertheless, he might indeed be assigned, as you say, the ancestor's arms...

... within a bordure nebuly sable. From this he might deduce that the appropriate cadency for the second son (your father) would be: argent a chevron gules within a bordure nebuly per pale sable and or. Having reached this point Lyon might be prepared to grant those arms to you.

And here I agree completely.

As far as your father and uncle are concerned, unless they petition for arms, they have no entitlement to a portion of the matriculation of the original ancestor, nor do their other children.

Sure they do; they just can't bear them in Scotland unless they matriculate a properly differenced version, just as you (not you, Scott, but you the hypothetical petitioner) did in your application.

Substantive arms -- those backed by the authority of a sovereign state -- are always preferable to self-assumed arms, no matter what private body has recorded them.

This is why I actually decided to pitch into this. As you know (now you, Scott, not you the hypothetical petitioner), this subject is a bit of a hobby horse of mine, so those who don't really care about heraldic theory can stop reading here).

Apart from prestige, which is totally in the eye of the beholder, what makes a grant of arms substantively better than assumed arms is that granted (or officially registered, certified, etc.) arms typically take legal priority over assumed arms. This was first articulated by Bartolo di Sassoferrato, the first legal theorist to systematically address heraldry back in the early 14th entury. This legal priority can take various forms in various countries, but in any case the grant creates some sort of legally enforceable right in the arms.

However, as Sir Crispin Agnew of Lochnaw, Bt, QC (Rothesay Herald and Scotland's leading expert on heraldic law) points out, these rights exist only in the jurisdiction in which the grant was made. If you take a grant of arms out of the granting jurisdiction, it's only worth the vellum it's painted on--unless the jurisdiction you take it to chooses to recognize the rights conveyed. This is why the Dukes of Leinster have no cause of action against the branch of the Neville family in England that bears "Argent a saltire Gules," or, for that matter, against the State of Alabama. The rights to a particular coat of arms don't cross national borders.

Thus granted English or Scottish arms taken to Denmark are no better than assumed arms (which, in Denmark, are perfectly valid). Conversely, arms recorded by the Chapter of the Royal Orders for knights of the Danish orders of knighthood have no automatic validity if taken to England unless the College of Arms chooses to recognize them.

And in the United States, of course, there is neither a granting authority nor any legal provision for recognizing the validity of foreign grants of arms or protecting whatever rights those grants conveyed in the country of origin. That means that in the United States, an English or Scottish grant of arms has the same substantive status as arms assumed at will.

On the broader issue of the status of arms in the United States, and what they mean or don't mean, I think the classic exposition is the statement issued by the Committee on Heraldry of the New England Historic Genealogical Society in 1914, which is linked from http://www.americanheraldry.org/page...Main.Documents . Those interested in exploring this more may also want to look at the Washington-Barton letters and the article by H. S. Ruggles, linked from the same page.

Looking forward to more discussions here, even if I would barely know which end of a kilt is up.

[davidlpope]

Hello, Scott. Kenneth Mansfield pointed me toward this discussion and I couldn't resist registering for the forum to chime in. (I guess that means I should introduce myself--Joe McMillan, not a kilt wearer but a heraldic enthusiast and director of research of the American Heraldry Society. The articles on the heraldry of the U.S. presidents that someone kindly mentioned in this thread are my work.)

Joe,

Welcome and it's good to see your posts here*. Now we just need to work on the kilt-wearing....


*I met Joe at the Washington D.C.'s St. Andrew's Society dinner featuring the Lord Lyon**. Joe is a fellow clansman (as is MOR, who also was in attendance) and is a really nice fellow.

**FWIW, Lyon had NO interest in opining on heraldry practices in the US!

[MacMillan of Rathdown]

A trivial point on this, more significant on what follows: it's unlikely that Lyon would devise a new coat of arms with a bordure of any kind, since in Scots heraldry bordures are almost always used to difference for cadency these days.

I am not certain what the current Lyon would do in this specific case, but speaking from experience, I would regard the last provable ancestor as an indeterminate cadet coming off the stem arms; thus it would seem reasonable to assign a bordure to indicate that position. I agree that in the instance of a de novo grant the use of a bordure would be highly unlikely.

He'd be more likely to devise arms differenced in other ways from the stem arms of the name.

Indeed he might, but then again other factors can enter into the decision such as the existing number and placement of charges on the field, the desire of the client, and the risk of creating arms that too closely resemble those of another family.

But your grandfather couldn't be an indeterminate cadet of the original grantee, because if he were indeterminate that would mean you hadn't proven descent from the person who was subject to Lyon's jurisdiction. Nevertheless, he might indeed be assigned, as you say, the ancestor's arms...

It is quite easy to prove descent, and often impossible to prove how many male children occurred in each generation of that descent. That being the case it may be virtually impossible to determine precise cadency from the original ancestor being used as the foundation of the grant. Precise cadency can only be determined when all of the offspring of an ancestor are know. This may only occur with the petitioners father or grandfather, or may reach back into the mists of time.

And in the United States, of course, there is neither a granting authority nor any legal provision for recognizing the validity of foreign grants of arms or protecting whatever rights those grants conveyed in the country of origin. That means that in the United States, an English or Scottish grant of arms has the same substantive status as arms assumed at will.

Does it? I wonder? I would think that at the end of the day, if someone with a substantive grant of arms brought a suit against someone who had merely assumed the same coat that they would be on firmer ground re: ownership of the disputed devise. That said, the concept of "first past the post" might equally apply, especially if the proprietor of the assumed arms could prove usage ante-the date of the granted arms. Hmmm....

On the broader issue of the status of arms in the United States, and what they mean or don't mean, I think the classic exposition is the statement issued by the Committee on Heraldry of the New England Historic Genealogical Society in 1914, which is linked from http://www.americanheraldry.org/page...Main.Documents . Those interested in exploring this more may also want to look at the Washington-Barton letters and the article by H. S. Ruggles, linked from the same page.

Looking forward to more discussions here, even if I would barely know which end of a kilt is up.

[SlackerDrummer]

And in the United States, of course, there is neither a granting authority nor any legal provision for recognizing the validity of foreign grants of arms or protecting whatever rights those grants conveyed in the country of origin. That means that in the United States, an English or Scottish grant of arms has the same substantive status as arms assumed at will.

Does it? I wonder? I would think that at the end of the day, if someone with a substantive grant of arms brought a suit against someone who had merely assumed the same coat that they would be on firmer ground re: ownership of the disputed devise. That said, the concept of "first past the post" might equally apply, especially if the proprietor of the assumed arms could prove usage ante-the date of the granted arms. Hmmm....

First of all you are talking about the assumption of the same coat of arms that exists in a grant from a foreign authority. At the AHS we stress the importance of due diligence in creating a unique and original coat of arms if you are going to assume arms. So let's assume someone has usurped (intentionally or not) arms that were granted by a foreign authority to another person. Where would they sue and on what grounds?

[MacMillan of Rathdown]

So let's assume someone has usurped (intentionally or not) arms that were granted by a foreign authority to another person. Where would they sue and on what grounds?

Presumably the suit would take place in the jurisdiction where the tort took place. One party (presumably the substantive armiger) would have to establish that some sort of injury or loss occurred because the assumptive armiger was trespassing on the intellectual property rights that are inherent within a personal mark of identification, such as a coat of arms or a cattle brand.

Other than in Scotland, where the mis-use of arms is a criminal offense (defrauding the government of statutory fees), a suit of this sort would be heard in civil court.

[SlackerDrummer]

Presumably the suit would take place in the jurisdiction where the tort took place. One party (presumably the substantive armiger) would have to establish that some sort of injury or loss occurred because the assumptive armiger was trespassing on the intellectual property rights that are inherent within a personal mark of identification, such as a coat of arms or a cattle brand.

Other than in Scotland, where the mis-use of arms is a criminal offense (defrauding the government of statutory fees), a suit of this sort would be heard in civil court.

Exactly. One would have to establish that damages occurred which would be very difficult unless 1) the grantee's arms were used in commerce and 2) the usurper's use of the arms had an impact on the grantee's business. And even then, I'm not sure a court would rule in favor of the grantee unless the actual image of the arms used by the usurper was one lifted from the grantee. I'm not sure, based on current American copyright or trademark law, that an original emblazonment owned by the usurper would be seen by the court as being the same as the grantee's.

[WVHighlander]

SlackerDrummer,

So the bottom line question is this: "If I assume a Coat of Arms and register it with an American institution can I wear my crest with an eagle feather in a bonnet at Clan events?"

[macwilkin]

SlackerDrummer,

So the bottom line question is this: "If I assume a Coat of Arms and register it with an American institution can I wear my crest with an eagle feather in a bonnet at Clan events?"

I would say no, since that is a custom associated with Scottish heraldry.

T.

[SlackerDrummer]

So the bottom line question is this: "If I assume a Coat of Arms and register it with an American institution can I wear my crest with an eagle feather in a bonnet at Clan events?"

I have thought about this and for me it doesn't matter whether or not I can. I wouldn't. Wearing a feather with your crest is a Scottish custom and is meaningless outside of Scottish heraldry. My arms are not Scottish arms as Scottish arms come from Lord Lyon.

To that end, of course, one should only ever consider wearing the silver feathers that are part of one's cap badge to any events in this country unless they are foreigners and the feathers came with them from home. Just possessing bald or golden eagle feathers in this country is illegal unless you have a permit* and carries a possible fine of up to $5000 and a year in jail, regardless of how meaningful they are in your ancestral customs. That goes for everyone including clan chiefs.

*Permits for eagle feathers are only available to American Indians for religious purposes.

[MacMillan of Rathdown]

So the bottom line question is this: "If I assume a Coat of Arms and register it with an American institution can I wear my crest with an eagle feather in a bonnet at Clan events?"

Lord Lyon Sellers has recently advised the chiefs that who may, or may not wear feathers is really at their discretion. Since feathers denote a following, custom has dictated that the chief has three, chieftains and barons two, and gentlemen of the clan, one feather. Historically "gentleman of the clan" has come to mean any armiger, and by custom this really means an armiger with arms from the Lord Lyon.

In the real world, feathers indicated how many armed men you could bring to the clan levy in time of war. Since clans are rarely called to battle these days, some chiefs have started allowing feathers to those folks who lead the various branches of their clan societies scattered around the world.

So, the short answer would seem to be that if you wish to wear a feather in your bonnet at clan events, you should seek the permission of your chief.