Regulation of Heraldry in England: Modern Times

Contents

Modern Times

Heraldry became regulated in England in the 16th and 17th centuries. In particular, the law of arms came to include the principle that the only lawful arms were arms that were granted by the Kings of Arms or registered at the College of Arms, so that the right to bear arms was restricted to individuals vetted by the heralds, and to their descendants. The regulators of heraldry were the Kings of Arms, under the authority of the Earl Marshal, a Great Officer of State. The means of enforcement were provided by the Court of Chivalry. Cases of usurpation of arms could be brought to the court by injured parties (causes of instance) or by anyone (causes of office), in particular the King's Advocate in the Court. Furthermore, a system of periodic inspections of the use of arms throughout the country evolved, namely the Visitations.

The components of this system, already weak, completely fell apart after the Glorious Revolution. In particular, Visitations stopped in 1688, and the Court of Chivalry fell in hibernation after 1737, to be revived only once in 1954. The current state of heraldic regulation in England is a matter of debate, in the opinion of this writer (and others).

The Court of Chivalry

The Court of Chivalry went through a number of phases:

  1. the Medieval Court (ca. 1348-ca. 1480)
  2. inactivity (ca. 1480-1622)
  3. restoration (1623-40)
  4. suppression (1646-60)
  5. restoration (1660-1737)
  6. inactivity (1737-1954)
  7. restoration (one case, 1954)

Since at least the 13th century, matters of military discipline and disputes arising in the context of war were under the jurisdiction of officers of the army, namely the constable and the marshal of the particular host (or army assembled for a particular task) in question. Such cases were tried in an ad hoc military court (curia militaris). If litigation continued or arose after the disbanding of the host, another recourse was needed. Also, when weighty matters like treason or large sums like ransoms were involved, a more reliable tribunal was necessary. Over time, the Constable and the Marshal of England, initially officers of the king's household, became seen as officers of state, and extended their jurisdiction over such cases. Sometime in the 1340s a Court of Chivalry appears, presided by those officers; but "the real difference between the Court of Chivalry and the courts of the hosts lay, that the one exercised a constant, the others a temporary jurisdiction, not that they were concerned with different kinds of cases" (Keen, 1996, p.142). Indeed, Keene gives examples of cases of armorial disputes heard in 1359 by an ad hoc court of the host, at a time when the Court of Chivalry was already in existence. References to the constable of England's jurisdiction over cases of spoliation in war go back as far as 1254. The Court of Chivalry was in existence by the time of Crécy in 1346, although courts of the host continued to exercise similar jurisdiction ("the right of the constable in royal hosts to try cases of arms was recognised, both in Richard II's Durham ordinances for the host of 1385, and in Henry V's orders for his hosts given at Mantes in 1419", Keene 1996, p. 162). Keene thus disputes Squibb's view that the jurisdiction of the Court of Chivalry came from a "delegation by the king's council to the constable and marshal of certain aspects of its general jurisdiction over matters which could not be tried by common law"; for him, "it developed as a result of a gradual extension of the lieutenancies that the constable and marshal traditionally exercised in the king's armies" (p.146).

This process was not unique to England: "indeed, the picture is the same elsewhere too: everywhere in Europe, in this age, we come across constables and marshals--or officers with equivalent titles--judging on behalf of their princely masters disputes arising out of war. And we find at the same time advocates, trained in Roman law, beginning to bring their legal expertise to bear to elucidate and rationalise the issues arising in such cases, to give the ill-defined military customs that constituted the `law of arms' a respectable and coherent legal footing" (Keene, 1996, p.147).

The court was a court of civil law, not common law, for two reasons: some of its jurisdiction was over disputes arising outside of the realm, and therefore outside of common law. Also, "the law of arms was not governed by statute; it was an international law, observed entre gens de guerre, and was founded in the canon and civil laws" (Keene, 1996, p.159). The Court's activities are only known after 1346. The bulk of cases in the late 14th c. were seemingly unconnected to heraldry. In 1389, Parliament put an end to encroachments of the Court on common law by defining in a statute the jurisdiction of the Court: cognizance of contracts touching deeds of arms and of war out of the realm, and also of things that touch arms or war within the realm, which cannot be determined or discussed by the common law, with other usages and customs to the same matters pertaining, which other constables heretofore have duly and reasonably used in their time. (13 Ric. II, st. 1, c. 2). A writ could be obtained under the privy seal when doubts occurred on the competence of the Court, to halt proceedings until the King's Council could make a determination. The appellate jurisdiction was the King in Chancery.

At the end of the 15th century, the Court was deprived in fact or by statute of most of its jurisdiction, and seems to have been inactive in the period from 1485 to 1521. At that date the office of Lord Constable lapsed and was never filled again; the Earl Marshal effectively replaced him as presiding officer. He is known to have handled a dispute between Kings of Arms, and, after 1567, a handful of disputes over armorial bearings, but it is not clear whether his decisions really represent a revival of the court. Only an order from the King in 1622 cleared matters by requiring the Earl Marshal to restore and settle the procedure of the Court.

The Earl Marshal and the Kings of Arms

Heralds first appear soon after heraldry itself, with whom they became closely identified. By the early 15th century, the King of England had a number of Kings of Arms or Heralds, and created Garter in 1415. At about that time, it appears that the Constable was in a position to supervise the activities of the Kings of Arms within the context of military expeditions. A document purported to be issued around 1417 by the duke of Clarence, Constable, delineates the duties of the Kings of Arms, but it is of doubtful authenticity (according to Anthony Wagner, Heralds and Heraldry) and may perhaps only reflect the reality of the late 15th or early 16th c. Among those duties are having knowledge of all noble and gentlemen dwelling in their provinces, and especially those who ought to bear coats in the service of the king; no arms are to be given to vile or dishonest persons. Nowhere is there any notion that arms are restricted to any particular class of society.

In any event, over the course of the 16th century, in addition to his military jurisdiction in heraldic matters, the Earl Marshal came to have authority over the English Officers of Arms. When he first came to have such authority is not known, but we find him exercising it in a fully developed form in 1568. In that year the Earl Marshal promulgated "Orders to be observed and kept by the Officers of Arms". These "Orders" recited that before that time the Earl Marshal had had authority by virtue of his office to make orders and statutes to be observed and kept by the Officers of Arms. Among other things it was ordered that no new arms should be granted without the Earl Marshal's consent. A further set of orders for the Officers of Arms was made by the Commissioners for executing the office of Earl Marshal in 1668.

As we have seen, the Earl Marshal also heard disputes about armorial bearings, and it was because of this dual authority of the Marshal, over heraldic disputes and over the Officers of Arms, that the revived Court of Chivalry of 1623 became the tool of enforcement of the Kings of Arms' powers of regulation over heraldic matters.

The Beginnings of Heraldic Regulation and the Visitations

Regulation properly begins in under Henry VIII. The new Statutes of the Order of the Garter of 1522 give Garter "the correction of arms, crests, cognizances and devices unjustly used and borne" and "the power and authority from the sovereign to give arms, crests, cognizances and devices to such as by their merits, virtues and valour are worthy and sufficient to have and bear them according to ancient custom". In 1530, a commission from the king to his kings of arms, ordered them to "reform all false armory and arms devised without authority, marks unlawfully set or made in escutcheons, squares or lozenges, which escutcheons, squares or lozenges be tokens of nobleness; and them to deface and take away wheresoever they be set, whether it be in stone, windows plate or any other matter of ways set, and all such as set upon churches or other places, banners, standards, pennons, or coats or arms not having authority so to do". The king also gave them power to give arms "to any persons spiritual [...] or temporal the which by the service done to us or to other that be increased or augmented to possessions and riches able to maintain the same", excluding persons of "vile blood, rebels to our person or heretics, but men of good honest reputation, and all such which shall be ennobled to have their arms registered in the Earl Marshal's book."

The criterion for granting arms, therefore, was essentially a monetary one. Other documents indicate that the heralds took as lower limit an land-based income of £10 or more, or movable wealth of £300 or more. The fee collected was £5 or £6 for registration. The fee, of course, was the primary motive for the Commission, and one of many ways Henry VIII raised funds for his expenditures, neither the least nor the most honorable.

The 17th Century

In the 17th century, excepting the Commonwealth period, was the heyday of heraldic regulation in England. The three elements were:

  1. The Court of Chivalry
  2. The College of Arms and the Earl Marshal
  3. The Visitations carried out by the Kings of Arms

The Court of Chivalry

The Court of Chivalry was very active, so active in fact that, in the Jacobean period, it was seen as the instrument of some abuse of power, and was listed as a grievance by the House of Commons in 1640, which abolished it in 1646 and replaced it with a Parliamentary committee. It was nevertheless revived in 1667, and active again. Whereas the majority of cases between 1630 and 1640 deal with causes of scandalous words (that is, insults and matters of honor) as well as disputes between parties over armorial bearings, the majority of cases in the period from 1687 to 1707 are causes of office brought by the King's Advocate in the Court against violators of the law of arms. I have analyzed the cases in more detail elsewhere.

The Earl Marshal

In 1673, the Earl Marshal's authority was questioned by Garter, and a Royal Declaration, dated 16th June 1673, defined it in the widest terms. The Earl Marshal was described by the King as "the next and immediate Officer under Us for Determining and Ordering all matters touching Armes, Ensigns of Nobility, Honour and Chivalry". He was declared to have power to order, judge, and determine all matters touching arms, ensigns of nobility, honour, and chivalry; to make laws, ordinances, and statutes for the good government of the Officers of Arms; to nominate Officers to fill vacancies in the College of Arms; to punish and correct Officers of Arms for misbehaviour in the execution of their places. It was further declared that no patents of arms or any ensigns of nobility should be granted and no augmentation, alteration, or addition should be made to arms without the consent of the Earl Marshal. In this capacity the Earl Marshal not only had power to control the Officers of Arms, but he also came to be concerned with kindred matters, such as alterations in the Royal Arms, the assignment of arms to members of the Royal Family, grants of precedence, changes of names and arms, and the use of foreign titles and insignia. Royal Warrants on these matters are addressed to the Earl Marshal, to whom, they state, "the cognizance of matters of this nature doth properly belong".

The Visitations

See the Visitations of Devon, Dorset, Somerset, Cornwall, Berkshire, Worcestershire, Hertfordshire, London, Kent, Wiltshire, Norfolk, and Gloucestershire for the period 1530-1666 online.

The visitations by the Kings of Arms had begun in the 1530s and continued with regularity until 1689, with an interruption during the Commonwealth. They took place on average every 30 or 40 years. The heralds had the authority to summon all individuals who used coats of arms or the style and rank of gentleman or esquire, and to ask them to justify their right to do so. This was, obviously, the most direct enforcement of the restriction of arms to a class defined and regulated by the Kings of Arms.

The Law of Arms, as it was ceaselessly stated in Court of Chivalry proceedings by the advocate, restricted the right to bear arms to grantees or descendants of grantees, or to individuals whose right had been confirmed by heralds during visitations (and their descendants). The first category (grantees) is clear enough: a large number of grants of arms were made (4,000 grants between 1550 and 1640). The second is less clear: it depends on what criteria heralds used in the course of visitations. Presumably, during the first visitations, heralds would have confirmed arms borne "from time immemorial", arms of the nobility, etc. But, after the first two rounds or so, one would imagine that all such pre-existing armory would have been registered, and one wonders why heralds would confirm arms which they had not yet seen. The fact is, that heralds became actually more flexible with time when it came to accepting arms "without authority". Anthony Wagner (1952, p. 57) writes that "the general principles must always have been the same but the only precise instructions I have found as to how the visiting heralds should assess the authenticity of arms claimed, belong to 1668. [...] Arms might be entered if they were already recorded in the Office, or had been allowed by a former King of Arms; if a Grant of Arms was produced-and it was, of course, always contemplated that this might be in a suitable case be made there and then; or if it were made out and proved, either by some ancient monuments, glass windows, impressions of seals, or other credible testimony, that the same arms had been borne and used by the ancestors of the party claiming them for the space of 60 years at the least before the time of that his claim."

This is rather surprising: in 1668, arms used for 60 years, that is, potentially assumed several decades after the first visitations, could very well be allowed by the heralds.

Digression: Nobility and Gentry after the Middle Ages

Some understanding may come if we turn to the other business of heralds, namely the style of gentleman and esquire. This was even less precisely defined, nor is it at all clear why such matters were the heralds' business. A law of 1413 required that an individual's rank be stated in legal documents, but did not say how that was ascertained. An esquire was still a fairly clear concept in the early 15th c.: someone who had trained to become a knight but was not yet one, or someone who could, by reasons of descent and wealth, become a knight but had not. A gentleman was already fuzzier, as discussed earlier for the Middle Ages.

By the 16th century, the categories of gentleman and esquire had lost any connection whatsoever with knighthood. A gentleman was essentially someone who lived like a gentleman, from his landed income, engaging in certain typical pursuits, and was reputed to be a gentleman by his neighbors. Lineage, breeding, lifestyle, income all counted to various degrees, no one factor being exclusively condidered. From the ranks of the upper gentry were drawn members of parliament (in the House of Commons), justices of the peace and other local officials: the gentry thus fulfilled an important political and social role, and the royal government had an obvious interest in controlling who was or wasn't a gentleman, since it thereby controlled who could or could not engage in local (and national) politics.

Some 19th and 20th century writers have tried to conflate nobility and gentry in England, or equate the English gentry with the Continental nobility. Yet the English authorities are quite clear on the legal meaning of "nobility", which is in fact the peerage. Sir Edward Coke (1552-1634), writing in his Institutes, says: "The true division of persons is, that everie man is either of nobilitie, that is, a lord of parliament of the upper house, or under the degree of nobilitie, amongst the commons, as knights, esquires, citizens and burgesses of the lower house of parliament, commonly called the house of commons, and he that is not of the nobilitie is by intendment of law among the commons" (1 Inst. 9.16). This distinction between the peerage, which is the only legal nobility (and the only one which has legal implications) and the commonalty, is also in Sir William Blackstone (1723-80)(Commentaries on the laws of England, 1.397-406).

Coke (2 Inst. 688) follows Sir William Camden (1551-1623, Clarenceux king of arms) who defines as esquire the eldest sons of knights and their eldest sons in perpetuity, the eldest sons of younger sons of peers and their eldest sons in perpetuity, esquires so created by the king, and esquires by office such as justices of the peace and those holding office of trust under the crown. Gentlemen are those who bear coat armour.

In social terms, however, "gentleman" was already defined differently, as early as the 16th century. A contemporary description of who was a gentleman comes from Sir Thomas Smith (in De Republica Anglorum, 1584, p. 27). The author was Regius Professor of Civil Law at Cambridge:
"As for gentlemen they be made good cheape in England. For whosoever studieth the lawes of the realme, who studieth in the Universities, who professeth liverall sciences, and to be short, who can live idly and without manuall labor, and will bear the port, charge and countenance of a gentleman, he shall be called master, for that is the title which men give to esquires and other gentlemen, and shall be taken for a gentleman; for true it is with us as is said, Tanti eris aliis quanti ibi feceris; (and if need be) a king of heraulds shall also give him for money armes newly made and invented, the title whereof shall pretend to have beene found by the sayd Herauld in perusing and viewing olde registers, where his auncestrors in times past had bin recorded to beare the same; or he will do it more truely and of better faith, he will write that for the merites of that man and certain qualities which he doth see in him, and for sundrie noble actes which he hath perfourmed, he by the authoritie which he hath as king of heraldes and armes, giveth to him and to his heires these and these armes, which being done he may be called a squire, for he beareth ever after those armes."

Smith's text is reproduced by a number of later authors, for example William Segar's Honor military, and ciuill (1602; lib. 4, cap. 15, p. 228): "in England whoso studieth liberal Sciences in the Vniuersities, or is accounted learned in the common Lawes, and for the most part, who so can liue idlely, and without manual labour, or will beare the port, charge, and countenance of a Gentleman, shalbe called Master (for that is the title which men giue to Esquires and other Gentlemen) and shall be taken for a Gentleman. For true it is with vs, Tanti eris alijs, quanti tibi fueris. So doth it appeare, that (in England) the King needeth not to make Gentlemen, because euery man may assume that title, or buy it better cheape, then by suite to the Prince, or by expence in his seruice. And who so can make proofe, that his Ancestors or himselfe, haue had Armes, or can procure them by purchase, may be called Armiger or Esquier. Such men are called sometime in scorne Gentlemen of the first head, as Sir Thomas Smith pleasantly writeth."

John Logan, in his Analogia Honorum (1677, p. 155) writes: "Gentlemen have their beginning either of Blood, as that they are born of worshipful Parents; or that they have done something worthy in Peace or War, whereby they deserve to bear Arms, and to be accounted Gentlemen. But in these days he is a Gentleman, who is commonly so taken. And whosoever studieth the Laws of this Realm, who studieth in the University, who professeth Liberal Sciences, and to be short, who can live without Manual Labour, and will bear the port, charge, and countenance of a Gentleman, he shall be called Master, and shall be taken for a Gentleman; for true it is with us, tanti eris aliis, quanti tibi fueris: And if need be, a King at Arms shall grant him a Patent for a new Coat, if that there is none that of right doth appertain unto him from his Ancestors; and if so, confirm that upon him. But some men make a question, whether this manner of making Gentlemen is to be allowed of or no: And it may seem that it is not amiss; For first, the Prince loseth nothing by it, as he should do if it were in France; for the Yeoman or Husbandman is no more subject to Tail or Tax in England than the Gentleman: But on the other side, in every payment to the King the Gentleman is more charged, which he beareth with content; and in any Shew, Muster, or other particular Charge of the Town or County where he dwelleth, he is at a greater Expence for the preservation of his Honour: And for the outward shew, in all respects he deports himself like a Gentleman: and if he be called to the Wars, whatsoever it cost him, he must appear well accoutred, have his attendance, and shew a more manly Courage and tokens of a generous Education, by which means he shall purchase a greater Fame. For as touching the Policy and Government of the Commonwealth, it is not those that have to do with it, which will magnifie themselves, and go above their Estates, but they that are appointed Magistrates, &c. are persons tried and well known. See Sir Thomas Smith Repub. Angl. Chap. of Esquires and Gentlemen. In the five and twentieth of Queen Elizabeth the Case was, That whereas it is required by this Statute of the first of Henry the Fifth, Chap. 5. That in every Writ, Original Process, &c. in which any Exigit shall be awarded, that Additions should be given unto the Defendant of their Estate and Degree, &c. And the Case was, That one was a Yeoman by his Birth, and yet commonly called and reputed a Gentleman; and yet it was adjudged, That a Writ might be brought against him with the addition of Gentleman, for so much as the Intention of the Action is to have such a Name given by which he may be known: This is sufficient to satisfie the Law, and the Act of Parliament; for nomen dicitur, quia notitiam facit."

A later authority, describing the institutions of Scotland and comparing them with England, is Bankton (Institute of the Laws of Scotland, 1751, Book I, Title II, 45) who writes:
"Private persons are distinguished into noblemen, knights, barons, gentlemen, heritors, burgesses, yeomen and servants" (28). "The nobility are of different degrees, as lords, viscounts, earls, marquisses and dukes; but all of them are of the same order of peers" (29). "Gentleman, in a proper sense, may be applied to all above yeomen: the nobility are nobiles majores, the higher or the greater, and the gentry nobiles minores, the lower or lesser nobility. But gentleman, in ordinary discourse, extends only to those under noblemen, and above the commonality; but as a distinct title, constituting a different rank of persons, it must be limited to those under barons and freeholders, and above common feuars, and such are classed with burgessses; therefore, in this sense, those who are descended of barons and freeholders, or of those of superior dignities, are gentlemen; they are generally honoured with the title of esquire, while they support the dignity of their birth, tho' of old they had no other designation than that of gentleman; and of late those of the laicks that have such offices as become gentlemen, as that of a physician, &c. are commonly thought entitled to the rank and degree of esquire. Offices of distinction, civil, military, and ecclesiastical, create those that enjoy them gentlemen: such likewise, as by their virtuous behaviour and worthy deportment have acquired the reputation of gentlemen" (45).

What criteria the heralds used to determine who was a gentleman is not entirely clear. The traditional presumption is that a gentleman was someone who was entitled to bear arms ("gentleman of coat-armor"). But this definition does not correspond to the social reality of the 17th century gentry. People moved up into the gentry, successful city merchants buying country estates, or rich yeomen accumulating enough land to live from its income. Conversely, younger sons of the gentry who did not inherit enough land, or lost it through adverse fortune or squandering, dropped out of the gentry. The limits of the social category were thus fluid. In this respect, the English gentry was completely different from the Continental nobility, which was always defined by precise customs and laws: it was a hereditary quality, and one was either born noble or became so through specific procedures of ennoblement (to quote H.M. Scott and Christopher Storrs in their introduction to The European Nobilities in the 17th and 18th Centuries, 1995: "Nobility was essentially a status that was hereditary and one that conferred important privileges that were political, juridical and social in nature"). Since nobility carried with it important privileges (tax exemptions, reserved access to positions, special representation in Estates), it was naturally important to define who could enjoy them. The English gentry had no privileges attached to it, and therefore it was not necessary that it be defined in law. (See Mingay 1976 for an excellent study of the English gentry).

We can understand the heralds' flexibility in allowing arms as a consequence of the fact that the class of armigers (defined by the law of arms) and the gentry did not and could not coincide. The class of armigers was therefore modified, on an ad-hoc and discretionary basis, to fit the social reality of the gentry.

The Visitations in the 17th Century, continued

Were the heralds successful? English social historians who have studied the origins of the Civil Wars have devoted a lot of attention to the social make-up of the counties, and in particular to the gentry: who belonged to it, what its interests and political proclivities were, etc. The first generation of historians (J.T. Cliffe, Alan Everitt) equated the class of armigers with the gentry. Cliffe (1969) in his study of the Yorkshire gentry, considered only armigers, and found a total of 691 in 1640, of which 589 squires and gentlemen; but, he states, "if men who styled themselves gentlemen without due authority were included," the total would be over 1,000. In fact, Hugh Aveling (1967) estimated that the Yorkshire gentry comprised a core of 600-700 families of armorial gentry and at least as many non-armigerous gentry. When Alan Everitt studied Kent, he tried to follow Cliffe's armiger-based criterion, but found that the visitations of Kent in 1619 and 1663-68 could not be relied upon, as they listed about 300 families, while the gentry he saw (as a historian) included 800-1000 families (Everitt 1966). He therefore defined the gentry as not only proven armigers, but also "men who, while their right to arms is difficult to prove, were widely reckoned as gentry at the time and usually intermingled with other armigerous families", and found 841 gentry, of which 750 squires and gentlemen (Everitt 1969). Thus, in Kent, the heralds undercounted the gentry by two thirds!

As other historians followed their lead, skepticism of the value of the Visitations mounted. In Northumberland in 1615, Watts and Watts (1975) find 89 armigerous families, which they equate with the gentry, and are surprised by the small number in comparison with Yorkshire (which had twice as many in relation to population). J.S. Morrill (1974) used Everitt's criteria for Cheshire, finding 400 families, but criticized them as being too strict. So did many other historians: Anthony Fletcher (1975) in Sussex, J.S. Morrill (1979) in the North, J.P. Cooper (1983). B.G. Blackwood (1978) studying Lancashire states that "some historians have considered that the heralds' visitation lists are the most reliable guides to gentle status and have defined the gentry in the armigerous sense. Unfortunately these visitation lists are not always accurate and in any case seldom give a complete catalogue of those generally recognised as gentry by their contemporaries". Using instead freeholders' books, muster rolls, subsidy rolls and protestation returns, he defines gentry as those consistently called gentlemen, and finds about 770 gentry families in 1600-40. Stephen Roberts (1985), in Devon, finds 430 families in the 1620 Visitations, but notes that the 1641 Protestation for Devon names 590 individuals who styled themselves baronets, knights, esquires or gentlemen, and concludes that, to a nucleus of 400 armigerous families, 150-180 families in a "transition zone" must be added to obtain a correct view of the genty of Devon (a figure confirmed by Mark Stoyle 1994). Roberts concludes: "the group whose members defined themselves as gentlemen was large enough to defy the efforts of heralds and later historians to limit it to a definable sub-elite." Ann Hughes (1987) in Warwickshire "followed those historians who argue that the gentry comprises a wider group than those whose pedigrees and coats of arms were ratified by the heralds, but included also those generally accepted as gentlemen by their neighbors."

Another problem with the Visitations was the less than professional behavior of the heralds: according to Heal and Holmes (1994, p.28) "the visitation process was seriously flawed. The heralds were more concerned to secure a recognition of their authority, and thus the fees of those who appeared before them, than to undertake any serious defence of social distinctions. Squabbles among the heralds, usually concerning their respective authorities and perquisites, were frequent from 1530 to the Civil War, and the mutual denunciations among the professionals only fed public disdain for their incompetence or carelessness. In the course of a vitriolic dispoute in 1616, Ralph Brooke, Yokr Herald, tricked the Garter King of Arms, Segar, into granting, for a fee of 22s, a magnificent coat of arms to the common hangman. Other well-publicised incidents suggested the heralds' venality and their readiness to defer to political pressure. In 1623 the gentry of Shropshire protested that the newly made baronet, Sir Thomas Harris, lacked the pedigree upon which the King had insisted when he established the order. [...] But Harris, whose heir had married one of the Duke of Buckingham's numerous relatives, was a client of the favorite, and, to the mortification of the Shropshire gentlemen, his specious pedigree and armigerous status were triumphantly upheld by a chorus of compliant heralds."

All this led J.V. Beckett (1986, p.34) to conclude: "social historians have found the heraldic records to be more or less unusable as a guide to gentry status." Felicity Heal and Clive Homes (1994, p.10) see the visitations as "of very limited utility after the Restoration and of variable quality before that date."

Another way to measure the distance between the class of armigers and the actual gentry is to see how much assumption of arms or rank of gentleman actually occurred. Since the heralds tried to enforce the equation of gentry with armigerous, those who became part of the gentry (in the social sense), in the sense that they and their neighbours saw them as gentlemen, would naturally assume at least the style of "Gent." Heralds who disagreed would require them to sign disclaimers, statements by which the individuals renounced the use of arms or style of gentleman. The following table compares the number of pedigrees entered and the number of disclaimers for several visitations. The column "No Proof" includes those who were summoned but fail to appear or provide sufficient proof, but did not disclaim. The earliest visitations, as published by the Harleian Society, only include pedigrees, so that information on disclaimers is more abundant for later visitations.

Place, Date Pedigrees Disclaimers No Proof
Derbyshire, 1569 41
Cheshire, 1613 128 135
Huntingdonshire, 1619 20
Dorset, 1623 121 59
Gloucestershire, 1623 123
Derbyshire, 1634 35
Oxfordshire, 1634 100 49
Derbyshire, 1662 113 35 22
Nottinghamshire, 1662 94 38 35
Somerset, 1672 218 110
Oxfordshire, 1669-75 122 172
Warwickshire, 1681-83 81 (360)
Huntingdonshire, 1681-83 58 38 140
Hampshire, 1686 137 64 7

It is apparent from this table that the number of individuals ready to violate the law of arms was substantial at all times (in comparison with the number of armigers) and increasing over time. The last Visitations are almost complete disasters. In Oxfordshire (1669-75), an observer noted that many gentlemen refused to show up before the heralds because they (rightly) saw it as "a trick to get money"; also, there was a horse-race at the same time! Of the 245 individuals summoned to justify their use of arms or the style of gentlemen, 4 were excused, 6 disowned immediately, 5 promised to show up later, 32 came but failed to convince the heralds and had to disclaim, 58 pedigrees were entered (but only 28 coats were entered), and 140 simply ignored the kings of arms altogether. In Warwickshire, in 1681, 441 summonses yielded only 81 pedigrees. In Hampshire in 1686, 7 individuals refused to sign the disclaimer form. In Nottinghamshire in 1662, 29 also refused to disclaim. Clearly, the gentry was resenting royal attempts to control it, and the system of Visitations was already viewed with contempt and ignored by the gentry. The partisan behavior of the heralds did not help, of course (see the introduction to the Lancaster visitations of 1664-5 (Chetham Society vol. 84, 1872) for more on Norroy herald Dugdale's tendency to reject the pedigrees of anti-Royalist families).

Another sign of this disregard is evident in the fall-off in the number of grants made by the Heralds. After the Restoration brought a number of rewards to followers of Charles II, the average number of grants falls below 10 per year, when it was 40 in the pre-Commonwealth era.

A list of the published Visitations is available in the general bibliography.

1688

The Glorious Revolution brought about the end of active heraldic regulation, an exercise of power which the gentry had begun to see, it appears, as excessive. The timing is no coincidence: the Glorious Revolution brought about a limitation of royal power in favor of the landed elite of the country; one of the first things to go was precisely the means that kings were using to try and control the gentry, namely heraldic regulation. But the system had already lost much of its vitality and must eventually have died out for social reasons independent of William III's refusal to grant the authorising commission (Heal and Holmes 1994, p.38).

The Visitations stopped altogether in 1689, and attempts by the Kings of Arms to secure new commissions in the 1730s were totally unsuccessful. At the same time, the Court of Chivalry's activities were repeatedly restricted by other courts. In Oldys vs. Domville, the House of Lords granted prohibition in 1696 against the Court of Chivalry in all cases concerning violations of the Kings of Arms' privilege to marshal funerals for a fee. The Chief Justice stated that remedy laid at common law. In Chambers vs. Jennings, in 1703, the Court of King's Bench granted another prohibition in cases of scandalous words. Although the decisions technically did not refute the validity of the Court of Chivalry, only depriving it of parts of its jurisdiction, they must have cast serious doubt on it; cases ceased to be brought abruptly in 1703. Two batches of cases were brought in 1707-10 and in 1732-37, the last ones apparently leading nowhere at all. The Court ceased to operate for more than 200 years.

Heraldic Free-for-all (19th-20th c.)

The 18th and 19th centuries witnessed quite a bit of heraldic freedom. This is not surprising, given that hundreds if not thousands of people were already usurping arms, even as the Court of Chivalry sat and heralds made their visitations. With the disappearance of the enforcement system, free assumption was bound to increase.

Note, however, that on Feb. 6th, 1758, "it was ordered by the lords spiritual and temporal, in the parliament of Ireland assembled, That the king at arms, attended by by his proper officers, do blot out and deface all ensigns of honour, borne by such persons as have no legal title thereto, upon their carriages, plate and furniture, and to make regular returns of their proceedings therein to the clerk of parliament" (Annual Register 1758, Chronicle, p. 82).

In fact, jurists drew exactly that conclusion. A remarkable passage in the Encyclopaedia of the Laws of England (vol. 1, p. 506; 1906 ed.) states: "No statutes, or cases in the Civil Courts, are to be found dealing with any of the questions with which the Court of Chivalry, or the College, were concerned. Neither had they the power of imposing penalties or imprisoning for a breach of the heraldic laws of arms. So that, as in the cognate case of the assumption of surnames, armorial bearings may be assumed by anyone at pleasure, and they may be either brand new ones, unrecognised by the College of Arms, or those that have been borne by a family for centuries. The 'right to bear arms' is now a phrase of little meaning when a new grant is applied for at the College; and, if made, it carries with it no proof of pedigree, or otherwise, receivable as evidence in the Courts."

How wide was free assumption is of course somewhat difficult to document: the Oxford Guide to Heraldry does not care to provide examples of the disregard in which the authors' authority is really held. Nevertheless, there is plenty of evidence which can be collected. Even before that time, Anthony Wagner has cited a number of famous Brits who used arms without right: Henry Purcell, Wordsworth, John Locke, John Hume, Joshua Reynolds.

Burke's Landed Gentry, a 19th c. publication which published records and claims put forward by families and individuals, contained many coats of arms which had never been registered. The criteria for inclusion was based on land-holdings (2,000 acres minimum), not on grants of arms. The 1833 edition contained 400 families, and by 1906 there were 5000 families (Scott 1982, p.91). Only in 1914, when Fox-Davies took over the editorship, were these self-assumed arms expurgated. Unfortunately, it is not clear how many families were thus eliminated from the volumes. Another indication comes from Burke's General Armory: the 1884 edition contains 60,000 families (Scott 1982, p.91). According to J. Lawrence, The Nobility of the English Gentry (1824), there were 9458 armigerous families in 1798. A total of 8320 grants of arms were made during the 19th century (Sayer 1979). It is likely, then, that in 1884 as many as 40,000 families were usurping arms. In Suffolk only, 3600 arms were listed in an armory of 1848 (See Corder 1965).

In the tradition of Henry VIII, the government found ways to use snobbery as a source of income. The license to use coats of arms (on cutlery or stationery) was required from 1799, as well as a separate, more expensive license to use arms on a four-wheeled, two-horse carriage. The number of licenses bought is as good a guide as any to the use of arms in Britain. The figures are as follows (from Thompson 1977 and various reports in the Times):

       regular       carriages
1830     7,000        20,000
1841                  24,000
1853    17,000        22,000
1855    25,000        12,000  (assessment altered)
1865    39,333        14,701
1868    42,108        15,435
1869    43,478        15,712
1870    39,000        19,000  (assessment altered)
1900    41,000        14,000

The increase by 26,000 between 1853 and 1863 can surely not be explained by new grants of arms, which totaled 869 in the same period. Similarly, the number of carriages licensed to bear arms fluctuates between 20,000 and 24,000 in 1830-53; although carriages rather than families are counted, the numbers are such that they cannot be accounted for by "legal" armigers.

Here are the total revenues from the duty for some years (the effect of a tax increase on Jan 1, 1870 from 13s 2d and L2 12s 3d, to 1 guinea and 2 guineas, is noticeable but short-lived):

1867 L64,515
1870 L29,393
1871 L64,228
1872 L83,615
1873 L81,827
1874 L83,064
1875 L83,527
1876 L82,478
1877 L83,104
1879 L81,854
1880 L79,014
1881 L79,196

The following passage from Boutell's Heraldry (1883 edition) clearly suggests that assumption (or rather usurpation) of arms was common in late 19th c. England. When discussing false arms (i.e. assumed arms), he writes (p. 315): "If a fictitious heraldry is not only prevalent, but in some sense actually on the ascendant, it is not because the counterfeit is preferred to the genuine, but because it is unconsciously mistaken for it. In very many instances, indeed, a determination to obtain "Arms" is coupled with an ignorance of Heraldry so complete, as to ignore the existence of any such thing as Heraldry that is fictitious."

In the second half of the 19th century and the first half of the 20th century, a number of businesses advertised in English newspapers, offering to print or make stationery with assumed crests and arms to whoever was willing to pay, much as mall merchants do nowadays in America (Pine 1952). In fact, all one has to do is read Fox-Davies' diatribes on the topic (where he proclaims that self-assumption has "run riot") to have a feel for the degree of unbridled liberty which prevailed. Boutell's Heraldry, in the 1883 edition, states that this "fictitious heraldry is not only prevalent, but in some sense on the ascendant". Heraldic self-assumption by individuals has probably diminished in the second half of the 20th century, not out of an increased respect for the College of Arms, but rather because the snobbery-driven motives for self-assumption have largely disappeared.

There is one egregious case of self-assumption of arms (two in fact): both the duke of Hamilton and the duke of Abercorn claim the title of duke of Châtellerault in France, and as a consequence both have added an inescutcheon of France on their arms, in total violation of the law of arms. This assumption has been going on since the 1860s and has never been questioned bythe heraldic authorities in Scotland or England. I provide a detailed discussion of the case elsewhere.

One might argue that individuals can assume arms rather discreetly, and not easily be held accountable for their breach of the law of arms. But the law of arms also applies to institutions, whose display of assumed arms cannot fail to be quite public. There is, in fact, a good deal of evidence to show that institutions for the most part ignore the authority of heralds. This can be documented for two categories: schools and cities.

For schools, we have Beaulah's (1936) collection of arms. The author is a herald-painter who collected "arms used by all the Universities and Constituent colleges, and arms and badges of the public schools whose heads are represented on the Headmasters' Conference. A large number of town grammar and secondary schools, and a few training colleges, preparatory schools and girls schools are also included." Apparently, Somerset Herald supplied him with information regarding authenticities of arms, and Beaulah has checked whether arms used were registered with the College of Arms or not.

By my count, out of 300 schools, 106 use legal arms. That's only 1/3. Out of the 2/3 of usurpers, most of which are probably training colleges and grammar schools, I nevertheless picked up a few remarkable names, such as Cardiff University and National University of Wales. But also, surprisingly, a large number of Oxford Colleges used unregistered arms, such as Hertford, Jesus, Keble, Mansfield, Pembroke, St Hilda's, St John's, Trinity, Wadham, Worcester. Simon Kershaw mentioned in an article on rec.heraldry on June 6, 1995, that Oxford University never recognized the authority of heralds over the its arms and those of its colleges, though some colleges did petition for grants. Some Cambridge colleges ranked among the offenders as well: Clare, Fitzwilliam, Madgalene, Pembroke, Ridley Hall, St John's, Selwyn, Sidney Sussex.

For cities, the source is C. W. Scott-Giles (1972). According to the introduction, the 1st edition of 1933 contained 580 arms of which 320 were "of local adoption" (that is, self-assumed and unregistered). The 2d edition of 1953 contained 715 arms of which 210 were self-assumed. The great increase corresponds to some 240 grants made between 1922 and 1953, a good share of which (about 110) in essence confirming existing arms (some of them in use for 100 years or more), with some additions such as supporters etc. Many of the other arms were granted upon incorporation of a new borough.

I'm not familiar enough with English geography to tell the importance or size of the offenders; many were probably small towns. I append a list of some of the names I picked up for which Scott-Giles states explicitly that the arms are assumed ("having no arms, the borough/council/corporation uses/has devised/ has assumed/has adopted the following..."). It does seem to me that London, Warwick, Plymouth, Essex County, Monmouth, Pembrokeshire are not negligible entities.

In a number of cases the date of the grant is recorded, but a mention is made of the fact that the arms had been in use by the city for a while. The self-assumption takes many forms: usurpation of supporters, assumption of a family's arms, assumption of the Prince of Wales' coronet and badge, assumption of just a coat or a coat with crest and supporters, etc.

Note that Scot-Giles counts as legal arms those that are born by ancient prescriptive right and were recorded in the course of Visitations. The examples given here are only of arms which were never recorded or granted, and are the result of pure self-assumption.

Carlisle: granted 1924, but were in use for many years before that date.
Aylesbury: has assumed a local device invented in 1923 by a local jeweler.
Plymouth: supporters granted in 1931, before which date two gold lions were used without authority.
Shaftesbury: no recorded arms, but these arms have been in use since 1570.
Essex County: granted 1932, in use before.
Saltash (Cornwall): uses the Prince of Wales's coronet and badge without authority.
Harwich: granted 1943, in use unofficially before.
East Ham: having no arms, the borough uses a design prepared in 1896 by its then surveyor.
Gloucester: crest and supporters granted 1652, declared void at the Restoration but the Corporation continued to use them, regularized in 1945.
Clacton: granted 1938, but before that date used a similar device of local adoption.
Southport: granted in 1923 based on an unauthorized coat formerly in use.
Denton: granted 1936 based on a former unofficial device.
Little Lever: has no arms, uses the arms of the family of Lever.
Whiston Rural development council: used the arms of Eton College (!)
Cleesthorpes: granted in 1936 based on unauthorized arms.
Louth: having no arms, uses the arms of the family Louth.
London: the supporters were not recorded at the College of Arms until 1957, although they were used long before that date.
Woolwich: granted 1934, used unofficially before that date.
Monmouth: granted 1946, but associated with the town long before that date.
Newport: were in use before 1929 when they were officially confirmed.
Northumberland Co: granted 1951, formerly used the fictitious arms of the kingdom of Bernicia.
Pembrokeshire Co: granted 1937, formerly used the arms of Jasper Tudor, earl of Pembroke.
Wells: granted 1951, but were in earlier use as unauthorized insignia.
Taunton: granted 1934, formerly used unauthorized device based on a 1685 seal.
Bilston: granted 1933, based on arms formerly used.
Beddington & Wallington: granted 1937, in use unofficially from 1921.
Worthing: granted 1919, but were used without authority before that date.
Horsham: granted 1944, in use long before that date (attributed in Burke's General Armory of 1844).
Kendal: no arms recorded at the C of A, but arms in use since 1629.
Doncaster: gr 1927, vased on unauthorized arms.
Halifax County Borough: gr 1948, based on unofficial device adopted a century earlier.
Rotherham Co. Bo.: gr 1947, drawn from device used unofficially before that date.
Wakefield: gr 1932, was previously in use for many years.

Other cities or councils who are explicitly recorded as using unauthorized, self-assumed arms: Dunstable, Breconshire county, Deal, St. Ives, Leaminster, Petersfield, Hampshire, Cirencester, Port Talbot, Colkne, Morsley, Battersea, Deptford, Shoreditch, Berwick-upon-Tweed, Tynemouth, Tenby, Glastonbury, Esher, Warwick, Appleby, Westbury, Dudley County Borough, Kidderminster, Ripon.

The structures of local authorities was changed in 1972, and a number of the new councils formally petitioned for grants (how many is not clear). The fact remains that, clearly, many cities and boroughs found it quite unnecessary to bother and petition the King of Arms for many years.

The Manchester Case (1954)

The Court of Chivalry was revived once, in 1954, in the famous Manchester case, where a private business usurped the arms of the City of Manchester. Specifically, the Manchester Palace of Varieties was using the arms of the city of Manchester (which had been granted to the city in 1842) in two instances, as a display inside the theater and on the corporation's seal. The city asked the theater to cease this usage (which had been ongoing for several decades), met with a refusal, and it then sued. The court was convened under the Earl Marshal, who had chosen Lord Goddard, Chief Justice, as his Surrogate in the proceedings. Squibb pleaded for the city and Cole for the defendant. The Surrogate made clear in his judgment that, had the suit been only over the mere display of arms, it would have met with "considerable difficulty". Elsewhere, he states that the kinds of causes brought by the King's Advocates in the late 17th c. would not be brought nowadays (although there has been no formal change in the law of arms since then). However, the use of the arms of Manchester on the seal of the corporation was seen to be in clear contravention of the law of arms.

My reading of that decision is that the question was one of usurpation of a public authority's arms on a seal, something which any reasonable court would have found to be a problem, and, as it happened, the Court of Chivalry was found to be an adequate venue to address the problem. There is something of a sham in the affiar, since the two parties voluntarily posted bond before the proceedings, making clear that the Court really had no power to enforce its ruling, and was acting as an arbitrator more than a court of law. Furthermore, the Surrogate takes pains to delineate what, in the Manchester case, was worth convening the Court over, and it is not in any way apparent that, for example, self-assumption of invented arms which do not usurp anyone's arms would be seen as sufficient grounds for Court action. Indeed, Lord Goddard declared that, "should there be any indication of a considerable desire to institute proceedings now that this court has been revived, I am firmly of the opinion that it should be put on a statutory basis, defining its jurisdiction and the sanctions which it can impose." In effect, the Court of Chivalry had escaped the legal reforms of the 19th century unnoticed, and, to function today, it would need to be redefined by Parliament.

In short, the question of whether heraldry is regulated in England is, in my opinion, an open one.

And Today...

A couple of recent cases have come up in recent months, which indicate that the Kings of Arms have found a renewed desire to enforce the law of arms, but do not seem quite sure of what their enforcement powers are.

The town of Saint Just in Cornwall had adopted a badge for its own use and was told by the Kings of Arms in April 1996 that it must stop using it, petition for a grant of arms and pay the £5,550 fee (see full details). The town has refused and, so far, the Kings of Arms have done nothing.

Under the current political climate, it is perhaps obvious that the College of Arms has no intention to press the issue. Coats of arms may not garner much favor in a time when the peerage is abolished. In effect, self-assumption is unfettered.

Baroness Thatcher has been using the Royal Arms on her letterhead since 1992. Only after the matter became public in March 1997 with reports in several newspapers, did English heraldic officials pronounce it "inappropriate and was probably a mistake." The difference in tone and behaviour when the Kings of Arms are dealing with a baroness or some Cornish village is quite striking (see full details). Note that Lady Thatcher has been granted her own set of arms in 1994.

References

  • Aveling, Hugh: Some aspects of Yorkshire Catholic recusant history, 1558-1791, in G.J. Cuming ed, Studies in Church History, Leiden, 1967, iv, 117.
  • Beaulah, G. K.: Scholastic Arms. Manchester, 1936.
  • Beckett, J. V.:The Aristocracy in England, 1660-1914. Oxford, 1986; Blackwell.
  • Blackwood, B.G.: The Lancashire Gentry and the Great Rebellion, 1640-60. Manchester, 1978; Chetham Society.
  • Corder, Joan: Dictionary of Suffolk Arms. 1965.
  • Fletcher, Anthony: A County Community in Peace and War: Sussex 1600-60. London, 1975; Longman.
  • Heal, Felicity and Clive Holmes: The Gentry in England and Wales, 1500-1700. London, 1994; Macmillan.
  • Hughes, Ann: Politics, Society, and Civil War in Warwickshire, 1620-60. Cambridge, 1987; Cambridge University Press.
  • Keene, Maurice: Nobles, Knights and Men-at-Arms in the Middle Ages. London, 1996; Hambledon Press.
  • Pine, Leslie Gilbert: The Story of Heraldry. London, 1952; Country Life.
  • Sayer, Michael John: English Nobility: the Gentry, the Heralds and the Continental Context. Norfolk, 1979; Norfolk Heraldry Society.
  • Scott, John: The Upper Classes: Property and Privilege in Britain. London, 1982; Macmillan.
  • Squibb, George Drewry: The High Court of Chivalry: a Study of the Civil Law of England. Oxford, 1959; Clarendon Press.
  • Squibb, George Drewry: Heraldic Cases in the Court of Chivalry . London, 1956; Harleian Society.
  • Scott-Giles, C. W.: Civic Heraldry of England and Wales. 1972.
  • Thompson, F. M. L.: Britain, in European Landed Elites in the 19th century, David Spring ed. Baltimore, 1977; Johns Hopkins University Press.
  • Wagner, Anthony Richard: Heralds and Heraldry in the Middle Ages. Oxford, 1956; Oxford University Press.
  • Wagner, Anthony Richard: The Records and Collections of the College of Arms. London, 1952; Burke's Peerage Editions.
  • Wagner, Anthony Richard: Heralds of England. London, 1967; HM's Stationery Office.
  • Watts, Sheldon J. and Susan J. Watts: From Border to Shire: Northumberland, 1590-1625. Leicester, 1975; Leicester University Press.

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