Talk:Law of heraldic arms
|WikiProject Heraldry and vexillology||(Rated B-class)|
I have removed a reference to jurisdiction for most commonwealth being delegated to the College of Arms. It is claimed by the College but that claim is still disputed by the Lord Lyon.--16:55, 20 November 2007 (UTC)
Assumption of Arms in England
I think that this statement -- "In particular, it is not lawful to assume arms in England and Wales without the authority of the heralds (Re Croxon, Croxon v Ferrers  Ch 252, Kekewich J; see also Re Berens  Ch 596 Russell J; the point having previously been argued but not decided in Austen v Collins (1886) 5 LT 903, (1886) WN 91, Chitty J)" -- should be rewritten.
I looked up the cases, and neither Croxon nor Berens holds anything like what is stated in the sentence.
In Croxon, Kekewich J. was construing a name and arms provision in a will, and held that "lawfully assume" in that context meant 'assume under a grant from the College of Arms' (otherwise the word 'lawfully' would be surplusage). He explicitly did not decide anything about name-and-arms clauses without the term, and indicated in dictum that in the ordinary sense of 'lawful', free assumption was lawful: "The dictionary meaning of 'lawfully' is that anything is lawful which is 'not forbidden by law,' and no doubt in that sense when a man assumes the coat of arms of a stranger he is not acting unlawfully. The authorities shew that none of the Courts now in existence, exercising their ordinary jurisdiction, could prevent a man from bearing any arms he pleased, provided he did not interfere with rights of property. I think it is also reasonably clear that no other Court known to ancient times and exercising jurisdiction could have interfered. The Court of Chivalry only decided the facts, and decided in that sense what the law was, but it was a Court which had no power of enforcing its decrees."  Ch at 258.
Berens has a statement on the part of Russell J. that may be read as meaning that unauthorized assumption is illegal ("Arms are personal, the right to them being established by grant to the individual, or by proof of descent from an ancestor who was himself personally entitled to arms.",  Ch. 596, 605), but the factual situation was the same as Croxon, and the context is a name-and-arms clause, so anything beyond Croxon seems to be clearly dictum, not holding. There is also a strong statement at the start of the Manchester case that the right to arms flows from the sovereign as fons honorum, but again this is clearly dictum, not holding.
So I think the sentence should read something like: "There is significant authority for the proposition that, in England, it is unlawful to assume arms without the authority of the Crown, but there is no holding by a modern court directly on point." And then citing references.
- I appreciate that this thread is some 6 years old, but there seems to be a misunderstanding here on the talk page and in the article itself. There is a vast amount of difference between assumption and usurpation. If a man assumes arms which are unique and suitably different from others, no harm is done to anybody. On the other hand, if a man uses the arms of another man (knowingly or unknowingly), I would argue that that was a form of identity theft. Two very differnt things. The article talks about assumption, but describes usurpation. I am going to try and separate the two. --Kiltpin (talk) 21:42, 6 February 2015 (UTC)