Irish Heraldic Jurisdiction
By Dr Andrew Lyall
Lecturer, Faculty of Law, University College, Dublin
Coat of Arms No. 164-5, Winter 1993-Spring 1994

Introduction

From 1943 to 1962 Ireland was unique in that it was as a republic and it also exercised an official heraldic jurisdiction. In 1962 the white minority régime in South Africa left the Commonwealth, to forestall being expelled, and declared a republic. It also instituted a domestic heraldic jurisdiction(1) but the heraldic jurisdiction in Ireland has never been put on a firm legal basis. However, heraldry has flourished in republics in the past and many today protect heraldic bearings in some legal form or other. In this article I will hope to show, among other things, that there is nothing inherently incompatible between a republican form of government and an official heraldic jurisdiction, if exercised, as it must be, in accordance with constitutional principles.

One source of reluctance to deal with the matter may stem from the notion that armorial bearings are associated with British rule, or with a landed aristocracy in the past. There is however, no necessary connection between heraldry and either of these things. Heraldry is European, probably French, in origin. Certainly the language of heraldry, blazon, is French in origin. Heraldry still flourishes in many European countries, some of them monarchies, such as the Netherlands, Sweden, Belgium and Spain, but it also flourishes in republics such as Switzerland, France, Germany, Italy, Portugal and Malta. Of the monarchies only Spain and the United Kingdom maintain official heraldic jurisdictions and while it is true that European republics do not have heraldic jurisdictions in the sense of heraldic officials employed by the state, they do protect heraldic bearings in one form or another, such as through the law of patents or trade marks. In fact, one cannot maintain a clear distinction for all purposes between countries with full legal jurisdictions and those in which they are lacking. It is a matter of degree rather than of kind. At one end of the scale is Scotland which officially grants and registers armorial bearings and protects the unauthorised use of arms through the Court of the Lord Lyon with a range of legal sanctions. At the other end would be France, in which anyone can assume and use arms, and somewhere in the middle, or towards the Scottish end of the scale, is England which grants arms but relies on convention rather than law to protect them.

Heraldry and genealogy are essentially related. Heraldic jurisdictions, Ireland included, maintain genealogical records, since claims to a coat of arms, as distinct from applications for a new grant, will involve genealogical research. Citizens of other countries who are of Irish descent, particularly of course in the United States, have an understandable interest in their Irish heritage and origins which often extends to heraldry. Heraldic jurisdiction thus constitutes a part of the link between Ireland and those of Irish descent overseas and they often wish to cement the link by a grant of personal insignia which refer symbolically to Irish family or local connections. Quite apart from this the Chief Herald of Ireland grants armorial bearings to individuals, local authorities and other bodies within Ireland. If there were no such system such bodies would no doubt invent and adopt devices themselves but without the benefit of a system of heraldic usage which has precision and whose rules are aimed among other things at presenting attractive and readily-recognisable symbolic devices.

Republican Heraldry

The extent to which heraldry survives in republics naturally depends upon their particular history and, often, on the extent to which previous laws are retained. Apart from South Africa, the Republic of Zimbabwe(2) gives full legal protection to heraldic bearings. The system of protection began with the Protection of Names, Uniforms and Badges Act, 1951 of the colony of Southern Rhodesia. Although the present system was instituted by the Smith régime(3) the legislation was validated, with other enactments passed in that period, when Zimbabwe achieved legal independence in 1980. The survival of heraldry in Zimbabwe can thus be attributed to the political compromise following upon the stalemate of the civil war and the reflection of this compromise in the legitimation of the enactments of the Smith regime.

The Armorial Bearings, Names, Uniforms and Badges Act, 1971, amended in 1977, set up a registry of arms under the control of a Registrar. Protection is given to 'heraldic representations' which includes coats of arms, heraldic badges and other insignia. Applications for a grant of arms are referred to a Heraldry Committee appointed by the Minister for Justice. The system has been tested in Zimbabwe since Independence. Appeals lie from the Registrar to the Patents Tribunal and in 1981(4) it was called upon to decide an issue of heraldic jurisdiction. The Registrar, exercising a discretion under the statute, refused to register arms in a case in which the applicant was domiciled outside Zimbabwe. The Registrar, as he was bound by the statute to do, had taken the advice of the Heraldry Committee which had sought the views of the Lord Lyon King of Arms of Scotland. It was established that the applicant had not registered his arms in Scotland and the Registrar decided that, although he had jurisdiction to register arms of a person domiciled outside of Zimbabwe, such an applicant should first obtain registration, or a grant, of arms in his country of domicile.

While on the subject of African republics one should mention that Kenya passed a College of Arms Act in 1968.(5) The College of Arms consists of four members: the Attorney-General, the head of the Department of Design in the University of Nairobi, the Chief Architect of the Ministry of Works and 'a person appointed by the Minister', the latter therefore being the only possibility of a heraldist being appointed unless one of the others also happened to be one.(6) The College also has a Registrar. The act does not impose any sanction for adopting arms without a grant although it does impose a fine for using arms registered in accordance with the statute.(7) Kenya therefore has a compulsory heraldic jurisdiction. Before granting arms the College must consider whether the 'design accords with the principles of heraldry'.(8) This provision therefore incorporates by reference the 'principles of heraldry' into the law of Kenya. New grants from the College contain a formula specifying that the arms granted are to be borne 'according to the law of arms'.(9)

The United States has no official jurisdiction in the sense of state (or federal) officials charged with granting and registering arms, but it does protect arms by law and it certainly has official heraldry in the form of the arms of the United States, borne on the coinage, and the arms of individual states. In 1966 the American College of Heraldry was established in Maryland with the co-operation of the city of Baltimore, the state of Maryland and the Federal Government. The unofficial, or semiofficial, body is separated into two divisions: the American College of Arms, which is concerned with individuals throughout the Americas, and the College of Arms of the United States, which grants arms to corporate bodies. The American College of Heraldry grants arms as well as verifying and registering existing coats. The College of Arms of the United States registers its grants as trade marks.(10) Other unofficial bodies also exist.(11) Individuals may also copyright and record the visual representation of their armorial bearings with the Federal Registrar of Copyrights at the Library of Congress.(12)

The choice of Maryland for the colleges is appropriate, for on 14 December 1790 the legislature of Maryland passed a statute granting to Charles Ridgely Carnan the use of the coat of arms of Ridgely and the right to change his surname to Ridgely. This gave statutory effect to a name and arms clause in the will of Captain Charles Ridgely of Hampton who died without issue and who left his estate, and its 117 slaves, to his nephew, Charles Carnan, subject to the clause.13 Maryland had joined the United States just over two years previously(14) and so we have what may be a unique example of a republican legislature granting arms to an individual by statute.

The attempted suppression of arms following the Revolution in France was not due to any inherent republican antipathy to heraldry but to the oppressive use of heraldry in the preceding period of monarchy. Mathieu(15) relates that in 1696 Louis XIV promulgated an edict which required the registration of armorial bearings. Anyone who wished to bear arms had to register them with local officials and had to pay a substantial fee. In fact, the King saw the system as a means of increasing his revenue, and the suggestion is that many bourgeois were adopting arms at this time. This financial motive led to abuses whereby even those who did not use arms were forced to accept grants and pay for them. If they did not use arms, or did not admit to using them, the royal officials happily invented arms for them and the coercive nature of the exercise is made clear in some of the grants which display the sarcastic contempt with which the heralds treated their 'clients'. Most of them were canting arms based on the surname. Lawyers were particular objects of contempt. A notary by the name of Pierre Pépin of Decize was granted Argent, three grape pips (pépins) sable.(16) Gabriel Emfert, from the same area, was forced to accept Sable, a devil argent, this apparently being a canting reference to his name which sounds similar in French to enfer.(17) Pierre Gigot, an advocate, was granted Or, a leg (gigot) of mutton gules.(18) Even minor clerics were not immune from this treatment. A curé of the small village of Poil, by the name of Claude Bonnamour, was granted Azure, a cupid argent holding in his right hand a flaming heart gules.(19) Another bourgeois of Lille by the name of Phillipe Louanne fared even worse, being granted Or, a wolf (loup) passant gules bearing on its back the skin of an ass (âne) sable.(20) It would not be surprising if this bitter experience turned the professional classes of France against heraldry for ever. At any rate, after the Revolution of 1789 stringent measures were taken to suppress the use of armorial bearings.

The Decree of 27 September 1791 imposed penalties on anyone who should use armorial bearings on his or her house or carriage.(21) Those found guilty were subject to large fines and were banned from holding any civil or military office.(22) The law of 14 August 1792 ordered the destruction of monuments associated with 'feudalism'.(23) Those of bronze were melted down and cast into cannon. Others were destroyed unless they were of artistic value, an exception which shows that the measure was infused with some sensitivity to artistic values. After the abolition of the monarchy on 21 September 1792 the use of crowns or the fleur de lis was suppressed specifically and a decree of the Convention on 4 July 1793 forbade the use of paper embossed with such devices and a decree of the same date ordered their defacement on the public monuments of Paris. Evidence that heraldry nevertheless proved tenacious even under these hostile political conditions is provided by Mathieu. He relates that a virtual hunt for armorial bearings was instituted. Inspectors roamed the city looking for the slightest trace of 'signs of feudalism' which could be a single fleur de lis painted on a doorpost or the initial letter of a king carved on a stone. The inspectors sent in reports of any 'signs of feudalism' they found. Strangely, however, their reports were recorded on paper which bore at the top the arms of Paris which contained a chief semée de lis.(24) Napoleon revived heraldry, as a consequence of bestowing kingdoms and titles on members of his family.(25) Arms could not be used without his authority and the former aristocrats were not permitted to use their arms without a new grant from the Emperor. The Second Republic abolished titles but said nothing about the bearing of arms.(26) The Second Empire of Napoleon III set up the Conseil du sceau des titres in 1859 but did not re-establish heraldic jurisdiction and when the Conseil was abolished in 1872 nothing more was said about heraldry and no further legislation on the subject was enacted by the Third, Fourth or Fifth Republics. Today there is free adoption and free use of arms in France although one civil court did recognise their existence in 1949(27) when it defined them as 'marques de recon-naissance, accessoires au nom de famille, auquel elles se rattachent de manière indissoluble, que cette famille soit ou non d'origine noble'.

Although one has to admit that this has negative connotations in Ireland, heraldic jurisdiction was maintained during the Commonwealth both in England and in Ireland, that is to say, during a régime which had abolished the monarchy and the House of Lords. That heraldry is not dependent on monarchy was shown most vividly when the signatories to the death warrant of Charles I sealed it with their arms.(28) Oliver Cromwell himself bore arms and they appeared in the arms of the Commonwealth. In Ireland Richard Carney was created 'principall Herald at Armes for the whole Dominion of Ireland' during the Commonwealth and an example exists of a grant made by him.(29)

Heraldry flourished in Venice under the Doges. Italy today has the Ufficio Araldico presso La Presidenza del Consiglio dei Ministri, ie the Heraldic Office attached to the Presidency of the Council of Ministers, in Rome.(30) Heraldry is used today in the Republic of San Marino, in the former case the regal crown of monarchy was replaced by the fisherman's hat, the badge of rank of the Doges, while the republican crown of San Marino is taken as a symbol of the sovereignty of the people.(31) The other symbol associated with Venetian Republic was the lion of the seven Ionic islands controlled by Venice, the so-called heptarchy and it continued to be used as a national symbol several centuries after the end of the Republic. In the case of the Netherlands, most burgher arms date from the republic of 1581-1806.(32)

Republics also developed their own heraldic symbols. Republican France used the cap of liberty. San Marino, as we have seen, gave the old crown of monarchy a new meaning, while the Spanish Republic of 1868 turned it into a mural crown to mean the crown of the people. In 1754 Benjamin Franklin used the symbol of a snake divided into sections with the motto 'Join or Die' to urge the New England colonies to unite to oppose British rule. The tree of liberty was a popular symbol of people freeing themselves from oppressive rule, in France and the New England states, both in the form of an actual tree used as a meeting place, as the Basques do today at Guernica, and in a symbolic form. The spruce tree appeared in the flag of New England as early as 1686 and it appears in the flag of Massachusetts today.(33) In William Tell and his successful shooting of the apple from his son's head with a crossbow, Switzerland found its own symbol of defiance.

In many cases the arms of the royal family had taken on a national character and had become so much associated with the nation itself that it was retained after a republican form of government was adopted. Among the more notable example of this are Poland (the white eagle), Finland (the arms of Gustavus Vasa, King of Sweden), Czechoslovakia (the Bohemian lion), and Albania (the black double headed eagle). When the crown was removed from German coats of arms in 1918, the arms themselves were retained, as in the case of Oldenburg and Würtemberg.

The harp has been used in Ireland as a national symbol for centuries and is used as a 'State badge' on it coinage, on police and military uniforms and on the Presidential Seal.(34) Its use is protected by the Trade Marks Act, 1963 (35) which makes it an offence for any person to use without authority in any 'business, trade or calling or profession ... any badge, device, emblem or flag reserved by law for use of, or commonly used by, the State, the Defence Forces, or any officer of the State ...'. It is the practice of the Registry of Trade Marks only to permit the use of the harp as a trademark if it is in a reversed position to that borne by the State.(36) The harp was never the personal arms of a royal family, but it did appear in the arms of the Kingdom of Ireland: Azure, a harp or stringed argent ,(37) which is used today as the banner of the President of Ireland. The crest was: On a wreath of the colours, a tower triple-towered or, and from the gateway a stag springing argent, attired and unguled or. The stag may have had its origin in a badge used by Richard II. His mother, Joan, the Fair Maid of Kent, had used the white hind as a badge, as did Thomas Holland, Earl of Kent, the half-brother of Richard II and heir of their mother. Richard changed the hind to a hart, and possibly the tincture from 'white' to argent, both to differentiate it from his brother and as a pun on his name 'rich-hart'.(38) It is also possible that it is derived from an Irish legend, which exists in various versions, but which usually involves a hare rather than a stag. In the legend the hunters trap or wound a hare which then escapes. The hunters follow the tracks and come upon a woman, sometimes a woman in a hut. Sometimes the woman is wounded, showing that she has indeed changed her form from that of the hare. A stag is also an object of hunting and is shown in the crest as escaping.

History of the Office of Chief Herald

The predecessor of the office of Chief Herald was the Ulster King of Arms, an office which was created by King Edward VI of England, the creation being by Letters Patent dates 1 June 1552(39) and also mentioned in an entry in his diary for 2 February 1553 which states: 'There was a King of Arms made for Ireland, whose name was Ulster and his province was all Ireland'.(40) Edward VI did so in his assumed capacity as 'King of Ireland', Henry VIII being the first English monarch to assume that title. Monarchs before Henry VIII had described themselves merely as 'Lord of Ireland'.

There were heralds before the time of Edward VI. The first, according to Froissart's Chronicles, was Chandos, whom he calls 'le roy d'Irlande', meaning king of arms, in 1392, but this has been doubted by Butler.(41) Butler states that Sir John Chandos, Regent of England in 1369 and who was killed at the battle of Leusac in the same year, had a personal herald known as 'Chandos Herald', but Sir John Chandos had no connection with Ireland. Nevertheless, 'Chandos' continued in office after Sir John's death and is mentioned later, again by Froissart, as the senior English herald.(42) He died in 1385. It may be that he acted as herald in Irish matters. Butler states that the earliest known herald for Ireland was John Kitley appointed 'Ireland King of Arms' by Henry V, the appointment being obtained by James Butler, Earl of Ormonde.(43) The date of the appointment is unknown. The next mention of an Ireland King of Arms is in 1419. The last Ireland King of Arms before the creation of Ulster King of Arms was Walter Bellengier (or Bellingham)(44) created on 9 June 1467.

After 1922, with the creation of the Irish Free State, the Ulster King continued to operate from Dublin Castle in the Ulster Office which was reserved as a Crown Office. The Ulster Office continued even after 1937 with the adoption of the present Constitution. The last Ulster King, Sir Nevile Wilkinson continued in office until his death in 1940. The Deputy Ulster, Thomas Sadleir, continued the work under difficult circumstances until 1943. The budget had been inadequate for some time but Sadleir did not wish to ask for an increase in case the office should be closed down and this had lead to a deficit being incurred. Sadleir was of Unionist sympathies and did not wish to be employed by the Irish government (45) but had expected to be appointed to the College of Arms in London. He was to be disappointed in this and the appointment was not made, it seems, somewhat unfairly, because of the deficit which had been incurred in the Ulster Office.

In 1943 President de Valera asked a political associate, Edward MacLysaght, a genealogist, to take over the genealogical work of the office. After only a few weeks MacLysaght received a request for a confirmation of arms. MacLysaght referred the matter to the government. The government decided that the Chief Genealogical Officer, as the post was called at first, should take over all the functions of the Ulster King of Arms except for matters relating to the moribund Order of St Patrick. The decision was implemented at a conference at which the Attorney-General, the Secretary of the Department of Justice, MacLysaght and others were present. Detailed regulations were drawn up at the conference. The English Garter King of Arms, Sir Algar Howard, after some initial reluctance, agreed to recognise the validity of heraldic patents issued by the new office. Despite the change in function the name of the office remained that of Chief Genealogical Officer until 1945(46) and MacLysaght continued to grant arms until then under that title. In 1945 on the advice of the Lord Lyon King of Arms, the title was changed to Principal Herald, but was finally changed to Chief Herald of Ireland. The word 'Principal' may have been dropped because of its association with the Cromwellian heralds. When the office of Chief Genealogist was instituted it was attached to the National Library at the suggestion of the then Librarian, Dr Hayes. The National Library at that time came under the Department of Education (47) but was later transferred to the Department of the Taoiseach (48) and now, under the present Government, has been transferred to the Department of Culture, Arts and the Gaeltacht.

The Chief Herald is, in terms of heraldic practice, the successor to the Ulster King of Arms, in that he retains the heraldic register of the Ulster Office and this is the only full-colour record of arms in Ireland.

It may be inappropriate to use the word 'jurisdiction' in a strict legal sense in relation to the office of Chief Herald, since no powers were conferred by legislation, either principal or subsidiary, although one can use it to refer to a State practice maintained over the last 50 years. Courts and the judiciary are established by Article 34 of the Constitution, which makes no mention of the Chief Herald, or under legislation made in accordance with the Constitution, and so it is clear that the Chief Herald has no judicial functions, although Grants of arms are made in the name of 'The Government of Ireland'. The expression 'Government' is used in the Constitution and its use corresponds approximately to 'cabinet' in other constitutions. Article 28.1 defines the Government as consisting of between seven and fifteen members appointed by the president in accordance with the Constitution, and Article 28.2 states that the 'executive power of the State shall, subject to the provisions of the Constitution, be exercised by or on behalf of the Government'. Under Article 28.7 members of the Government must be members of the Dáil or the Seanad and so the Chief Herald is clearly not a member of the Government, although could be said to exercise as part of the executive power of the State, in terms of Article 28.2, on the authority of the Government. It could also be concluded from these provisions, although it may be labouring the point, that although grants are made in the name of the Government, since the Government exercises the executive power of the State, grants can also be said to be made by the State.

Grants are made to Irish citizens,(49) to persons domiciled in Ireland, to associations and bodies in Ireland (50) and to those domiciled in other countries who can prove descent from a known Irish ancestor and who have no official jurisdiction in their own country, such as citizens of the United States. Descent must be properly proved by birth certificates or otherwise. Posthumous grants to the ancestor, which can be made under the Scottish practice,(51) are not made, nor is there a system of matriculation. On St Patrick's Day, 1961 the Irish Ambassador to the United States, Dr T J Kiernan, on behalf of the Irish State, presented to President John F Kennedy a grant of arms and a genealogical chart showing the history of the Kennedys in Ireland.(52) Banners in the Irish jurisdiction are not part of the grant (53) although armigers are thought to be entitled to use them, but one was produced for a more sombre occasion when Senator Robert Kennedy carried the banner of his murdered brother to the top of Mount Kennedy in the Yukon Territory of Canada, the mountain having been named in memory of the late president by the Canadian government.

Arms of John Fitzgerald Kennedy (+l963), President of the United States of America

Entries in the Register are made in one of three forms: grants, certificates and confirmations. Certificates are granted to recognise arms originally granted by another heraldic authority. Confirmations maintain the practice of the Ulster King of Arms who recognised arms, by the grant of Letters Patent, on the basis of use over 100 years or three generations.(54) This practice was adopted because of the difficulties in establishing Irish genealogies due to the destruction of many documentary sources. The Chief Herald of Ireland regards the practice as still existing, but less likely to be used today since, first, documentary sources have now been available for a considerable period and, secondly, it could give a carte blanche to the assumption of arms without authority.(55) The register itself is not a public register, but members of the public may inspect it at the discretion of the Chief Herald.(56)

Grants are made to Irish citizens,49 to persons domiciled in Ireland, to associations and bodies in Ireland 50 and to those domiciled in other countries who can prove descent from a known Irish ancestor and who have no official jurisdiction in their own country, such as citizens of the United States. Descent must be properly proved by birth certificates or otherwise. Posthumous grants to the ancestor, which can be made under the Scottish practice,51 are not made, nor is there a system of matriculation. On St Patrick's Day, 1961 the Irish Ambassador to the United States, Dr T J Kiernan, on behalf of the Irish State, presented to President John F Kennedy a grant of arms and a genealogical chart showing the history of the Kennedys in Ireland.52 Banners in the Irish jurisdiction are not part of the grant 53 although armigers are thought to be entitled to use them, but one was produced for a more sombre occasion when Senator Robert Kennedy carried the banner of his murdered brother to the top of Mount Kennedy in the Yukon Territory of Canada, the mountain having been named in memory of the late president by the Canadian government.

Where a foreign national does have an official domestic jurisdiction in his or her own country, there is an understandable reluctance to grant arms unless there is a special reason for doing so. An informal agreement exists between the Chief Herald of Ireland and the Chief Herald of Canada under which Canadian citizens who apply to the Chief Herald of Ireland for a grant of arms would be advised to apply to the Chief Herald of Canada instead. It is possible that an exception would be made similar to one operated by the Lord Lyon King of Arms in Scotland, who in similar circumstances would grant arms for use in Scotland (57) to a chief of a Scottish clan or to one of his or her traditional office bearers, such as a bard.(58)

The right to grant arms, historically, was a royal prerogative. Two questions therefore arise. Did the prerogative, or a right analogous to it, carry over into the Constitution of 1937? If the answer to this question is 'yes', then the second question is as to the present status of such a right.

The question of a survival of prerogative rights was recently reviewed in the Republic in Webb v Ireland and The Attorney-General. (59) The case concerned the Derrynaflan hoard, consisting of a silver chalice and the other objects found with it by a Mr Webb and his son. The State claimed the objects as treasure trove. The Supreme Court was called upon to decide whether the doctrine of treasure trove, which at common law was a prerogative of the Crown, had survived the 1937 Constitution. The court held that a doctrine of treasure trove, or a rule identical to it and with the same limits as the English common law doctrine, applied in the Republic, but based not upon the survival of a prerogative power, which it admittedly was before 1922, but as an aspect of the sovereign rights of the people established by the 1937 Constitution. The larger constitutional principle from which this right was held to be derived, and which had never been stated before the Webb case, was defined by Finlay P in the following terms:

It would, I think, now be universally accepted, certainly by the People of Ireland, and by the People of most modern States, that one of the most important national assets belonging to the people is their heritage and knowledge of its true origins and the buildings and objects which constitute keys to their ancient history.

Since the right of treasure trove survives in the Republic, vested now in the State, the implication must be that other similar rights may also survive. If so, they must be derived from constitutional principles analogous to the one stated by the Supreme Court in the Webb case. The right to grant personal and public insignia may therefore be one of them. How the constitutional principle from which it would be derived would be formulated is matter of speculation, but a principle that a sovereign people have the right to designate distinctive insignia for the use of individuals and such bodies as charities and local authorities would seem to be constitutionally justifiable.

Heraldry and the Constitution

Heraldry and Women In many heraldic jurisdictions women suffer from disabilities so far as the use or grant of arms is concerned. In England women are not 'entitled' to crests or helmets which also means that their achievements do not contain the wreath or mantling.

In the Middle Ages coats of arms were inherited in the same way as land. Land passed to the eldest son, or if there was no son, to a daughter. In Scotland this still applies, except that a Scottish man who succeeds to a coat of arms through his mother has to take her surname alone if he wants to use the plain coat. (60) In England, with the exception of peeresses in their own right, it is probably correct to say that women are not entitled to their own arms at all. Take the English practice which was also the Irish practice before 1937 at least.(61) If X is armigerous and has a daughter D, D may bear her father's arms on a lozenge, but they remain those of her father and are not differenced. There is no system of differencing or cadency in relation to women. If D marries a Mr Y who is also armigerous, Mr Y can impale his wife's arms with his own, but they are still really the arms of X. When X dies the undifferenced coat may then be borne by X's eldest son, who 'inherits' the arms in the same fashion as the old rule of primogeniture in relation to real property. Another similarity to the old rules of descent in real property is that if X dies leaving no sons but several daughters they all inherit the arms as 'coheiresses'. In real property the term is 'coparceners'. In Scotland the eldest daughter in this situation would inherit alone as 'heir-general'.(62) But to return to the English practice: rather different rules apply in the case of heiresses. If X dies without male issue then D becomes an heiress, so far as her father's arms are concerned. Her husband now bears 'her' arms on an inescutcheon of pretence superimposed on his own coat. The 'pretence' is Y's claim to his 'wife's arms' if they have issue of the marriage. If D dies before Y and there are no issue of the marriage, Y can no longer bear the inescutcheon of pretence. From this it can be seen that D as heiress only really represents her deceased father, rather than inheriting his arms in the true sense. Y's 'pretence' to the 'arms of X' is really based upon the notion that Y's children will be descendants of X.

These rules are characterised by assumptions of male superiority over women: that males are more worthy to inherit and that women bear arms as representing their fathers rather than in their own right, etc. Women have also been treated differently from men in regard to crests. In England women are not 'entitled' to crests or helmets which also means that their achievements do not contain the wreath or mantling. In Scotland and Ireland, however, former practices have been modified to put women on a more equal footing. In Scotland women are today (63) granted arms with crests if they wish, usually above an oval or lozenge-shaped shield and without a helmet. Women have also been granted arms in Ireland, a notable example being in 1988 the grant to Carmencita Hederman, Lord Mayor of Dublin.(64) The grants so far have been on a lozenge without a crest.

Any discrimination on grounds of gender must now be open to question in the light of Constitutional principles. The specific right to grant personal insignia vested in the State and exercisable on behalf of the people, would, of course, have to be exercised in accordance with the other principles contained in the Constitution. For example, Article 40.1 declares that 'all citizens, shall, as human persons, be held equal before the law'. The immediate question is 'can the State discriminate in its heraldic practice between men and women?' The second paragraph of Article 40.1 states that 'this [the quality of citizens as human persons] shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function'. The latter phrase probably refers to Article 41 which deals with the family, recognising it as 'the natural primary and fundamental unit group of Society' and in particular Section 2 subsection 1 which declares that 'the state recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved'. Subsection 2 continues: 'The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties on the home'. The subsections are, however, of limited application. The Supreme Court (65) recently ruled that Article 41 cannot be used as a foundation for property rights.(66) Could it be argued that reference in Article 40.1.2 to 'differences of capacity, physical and moral, and of social function' could justify a grant of arms to a woman borne on a lozenge rather than a heater-type shield, in the absence of the woman's consent, on the ground, perhaps, that military accoutrements are inappropriate? Social change here strengthens the argument in favour of a non-discriminatory heraldic practice. In the past women did not participate in the armed forces and so armorial bearings were regarded as unsuitable, but women do so today and this social fact must surely be reflected in the Science of Arms. Changes in the law should also be reflected in an evolving heraldic practice. The inheritance or passing of arms through generations has parallels with the law of property and that area of law has been radically changed by the Succession Act, 1965 which abolished the old rules of primogeniture (67) and put in their place a set of rules which do not discriminate on grounds of gender. All children of a parent succeed to the parent's property regardless of their gender.

It is probably not a legal requirement to comply with the Constitutional principles in relation to non-citizens, in view of the wording of Article 40.1, but it would seem desirable on principle to do so: Article 40.1 bases the quality of citizens on their nature as 'human persons', implying a wider concept of equality beyond that immediately dealt with by the Article.

A New Heraldry

If differences of sex were to be ignored, then some adjustments would have to be made in heraldic practice. If women were to have the same rights to arms as men, then the question would arise as to whose arms, the father's or the mother's, a child would bear on the death of the parents. It could be left to individual preference, or the former practice in relation to heraldic heiresses could be made universal, so that the child would bear the arms of both parent's quartered on a single shield. The disadvantage of the latter option would be that shields would in a few generations become cluttered with numerous unsightly quarterings which would be unrecognisable at a distance. One of the purposes of heraldic devices is to be easily identifiable at a distance, so it might be better to leave it to the choice of the child.

Cadency is the system heraldic jurisdictions have developed to distinguish the arms of members of the same family. The original form of cadencing was for the younger sons to vary the tinctures of the main coat. This was a general practice throughout Europe.(68) Thus, in England and in Ireland before 1937, the eldest son of X, during the life of X, bears the arms of X charged with a label. The second son bears the arms charged with a crescent, the third son, with a mullet, the fourth with a martlet, the fifth with an annulet, and so on.(69) When X died the eldest son then bore the undifferenced arms, but younger sons continued to use their marks of cadency. Their own families, if they had them, would continue to bear the arms with these marks as 'house marks', adding their own marks of cadence if required. Thus if X had a second son, S2, S2 would continue to bear X's arms charged with the crescent even after X's death, since this would serve to distinguish S2 from X's eldest son, S1. If S2 had two sons, GS1 and GS2, then GS2 would bear the arms of X charged with a crescent, his father's 'house', and add a crescent of his own, usually a smaller one charged on top of the larger 'house' crescent.

A number of options would seem to be open to the constitutionally-minded heraldist.(70) One is that the same system may be continued, but without sexual distinction, so that the eldest child would bear the parent's arms with a label, whether the eldest child was a daughter or a son, and so on. The scheme would nevertheless still require modification because of the earlier question of women bearing arms. We say 'the parent's arms' because one would also have abandoned the rule that only the father's arms pass (in the absence of heiresses). If it were left to the child's preference as to which arms to bear, then if the eldest child were a son and he chose his father's arms, he could bear the undifferenced coat after his father's death. If the next child were a daughter, then she could either bear her father's arms charged with a crescent as second child to bear the coat, or if she chose her mother's coat, she might bear it undifferenced after the mother's death since she would be the eldest child to bear the coat. Thus the second child to bear a particular parent's coat would charge it with a crescent, the third child to bear the coat, whether mother or father's would charge it with a mullet, and so on.

A second option would be to invent a new set of cadency marks for females. The first daughter might use a lozenge or a fusil, the second daughter a roundel of suitable tincture, the third daughter an estoile, and so on. Such a scheme would have the advantage of preserving a distinction of gender, which women might welcome, without any discrimination being attached to it. It would make it possible to tell from the arms whether they were those of a son or a daughter, or of a branch of a family descended from a female bearer of arms.

Marks of cadence have not in fact been used as widely as the books would imply. One reason is that after a number of generations coats of arms of branches of a family would be cluttered with several marks. A third option might be more acceptable, and that is to return to the earlier more flexible method of varying the tinctures of the main coat, or varying the charges, or both. Since there is today a system of registration of arms it would probably be desirable to institute a system of matriculation, as there is in Scotland, whereby children other than the eldest child would apply to the Chief Herald for a variation of the main coat.

References

1. Heraldry Act, 1962, amended in 1969. J G Storry 'Developments in the Law of Arms' (1983) The Coat of Arms NS Vol V No 125, 132.
2. Sir Crispin Agnew of Lochnaw, Bt, Rothsay Herald of Arms 'The Conflict of Heraldic Laws' (1988) The Juridical Review 61 at pp 64-65. J G Storry 'A Modern System of Armorial Control' (1977-78) The Coat of Arms NS Vol II, No 104, 206.
3. See Storry, op cit footnote 2.
4. Cowan v Registrar of Names, Uniforms, Badges, and Heraldic Representations. Unreported, Pat. Trib. 6 of 19 November 1981. See Storry op cit footnote 2, p 135.
5. John Hamilton Gaylor, Letter (1971) 12 The Coat of Arms 45-48.
6. College of Arms Act, Cap 98 Laws of Kenya, s3.
7. Ibid, s7.
8. Ibid, s4(3)(c).
9. Op cit footnote 5 p 47.
10. L G Pine International Heraldry (David & Charles, Newton Abbot, 1970), p 140.
11. For example, the American College of Heraldry, Alabama. See Charzempa footnote 12.
12. Rosemary A Charzempa Design Your Own Coat of Arms New York, 1987 p 26.
13. Pine op cit footnote 10.
14. On 28 April 1788.
15. Renée Mathieu Le Système Héraldic Français (Paris, 1946). See also Pine op cit footnote 10, 147-159.
16. Ibid p 82, 'd'argent à trois pépins de raisin de sable'.
17. Ibid p 82, 'un diable d'argent sur champ de sable'.
18. Ibid p 82, 'un gigot de mouton de gueules sur champ d'or'.
19. Ibid p 82, 'd'azure à un Cupidon d'argent tenant de sa main droite un coeur enflammé de gueules'.
20. Ibid p 83, 'd'or à un loup passant de gueules revêtu sur le dos d'une peau d'âne de sable'.
21. Ibid p 244.
22. Ibid.
23. Ibid.
24. Ibid pp 244-5: 'Fait assez curieux, les rapports de ces inspecteurs signalant des blasons à détruire étaient rédigés sur du papier à en-tête de la municipalité de Paris, orné des armes de la ville au chef fleurdelisé, ceci jusqu'au milieu de l'année 1793'. The reports are contained in carton M 666 in the National Archives.
25. See Pine op cit footnote 10, pp 158-9.
26. Michel Pastoureau Traité d'Héraldique (Paris, Picard, 1979) p 84.
27. Ibid.
28. T Woodcock, John Martin Robinson The Oxford Guide to Heraldry (Oxford, 1988) p 52.
29. The grant, dated 10th June 1656, was to Major Richard Tonson (1621-1693) of Colonel Richard Lawrence's regiment which went to Ireland with Cromwell. See A E Tonson 'The Arms of Major Richard Tonson' (1977) 2 The Coat of Arms 163-166.
30. C A von Volborth Heraldry: Customs, Rules and Styles at p 212 shows a coat of arms granted by the Ufficio Araldico to the Savings Bank of the province of Bolzano. The grant is in the name of the President of the Republic.
31. O Neubecker and J P Brooke-Little Heraldry: Sources, Symbols and Meaning (Maidenhead, 1976).
32. Von Volborth op cit footnote 30 p 106.
33. Neubecker and Brooke-Little op cit footnote 31, p 244.
34. The Presidential Seal Act, 1937 provides that the President shall have a seal which shall be officially and judicially noticed as authenticating documents, orders, commissions, etc.
35. Section 65.
36. The Guinness harp and Harp Lager are both examples of this practice. The £20 note introduced in 1992 bears the harp on a small shield on the front of the note and on the reverse, where the harp is in the reverse position, but that is because it is in the nature of a watermark.
37. Fox-Davies The Art of Heraldry (Bloomsbury Books, 1986) p 443.
38. Dr Nicholas Williams has suggested that the crest may have originated as a coat of arms, the arms of McCarthy dimidiating Limerick or possibly Dublin.
39. Sir Christopher Lynch-Robinson, Bt and Adrian Lynch-Robinson intelligible Heraldry 1948 p 111. The first Ulster King of Arms was Bartholomew Butler.
40. Pine op cit footnote 10 p 75.
41. T Blake Butler 'The Officers of Arms of Ireland' (1943-55) 2 Irish Genealogist 2.
42. Pine op cit footnote 10, p 75.
43. Butler op cit footnote 41, p 3.
44. Butler has 'Bellinger', op cit footnote 41, p 3.
45. E MacLysaght Changing Times: Ireland Since 1898 (1978), Chapter XIV.
46. MacLysaght Official Diary MS 527.
47. Allocation of Administration (Genealogical Office) Order, 1943 SI 267 of 1943, 13 July 1943.
48. S 3926 Department of the Taoiseach.
49. Under the law of the Republic this includes persons born in Northern Ireland who, not otherwise being Irish citizens, declare themselves to be citizens of the Republic. The provisions as to Northern Ireland are complex: Irish Nationality and Citizenship Act, 1956 s6, J M Kelly The Irish Constitution (2nd ed, Jurist Publishing, 1984) pp 40-41. The phrase 'not otherwise being Irish citizens' together with other provisions of the statute means that many, perhaps most, persons born in Northern Ireland are citizens of the Republic without declaration and therefore without necessarily their consent.
50. MacLysaght mentions in his Foreword to Lynch-Robinson Intelligible Heraldry (see footnote 39) that the Dublin Stock Exchange was granted arms, as well as schools and colleges.
51. In cases where Lord Lyon makes a grant to a foreign national of Scottish descent, a grant may be made posthumously to the Scottish ancestor, the descendant matriculating in the same grant. A grant in Scotland confers on the grantee the status of 'noble in the noblesse of Scotland' but the status of nobility does not operate posthumously, ie it applies to the matriculating applicant but not to the ancestor.
52. L G Pine op cit footnote 10, p 129-130. The blazon of the coat of arms refers to an ancient Kennedy coat: Sable, three helmets in profile or, within a bordure per saltire gules and ermine. Crest: Between two olive branches a cubit sinister arm in armour erect, the hand holding a sheaf of four arrows, points upwards, all proper. Wreath: Sable and or. Mantling: Gules and argent. The mantling is unusual in that it is normally of the tinctures of the field and principal charges, which is sable and or. The full achievement is illustrated in L G Pine 'Heraldry' in Encyclopaedia Britannica.
53. Ibid, p 130.
54. See Lynch-Robinson op cit footnote 39, p 112.
55. I am grateful to Donal Begley, the Chief Herald of Ireland, for this information.
56. Ditto.
57. The Lord Lyon grants 'Scottish arms', ie arms for use in Scotland and protected by the law of Scotland. What effect they may have if used in other countries is a matter for the law of the country concerned. See Agnew op cit footnote 2.
58. I am grateful to the Lord Lyon King of Arms, The Rt Hon Sir Malcolm Innes of Edingight, KCVO for this information.
59. [1988] IR 353, [19881 ILRM 565.
60. Sir Iain Moncreiffe of That Ilk, Bt, and Don Pottinger, Simple Heraldry, p 22.
61. Lynch-Robinson Intelligible Heraldry op cit footnote 39.
62. This in fact corresponds to the inheritance of land in England in the past under the system of primogeniture as applied to the tenure of Grand Serjeanty, when, if there was no son, the eldest daughter inherited alone. In other tenures daughters inherited together as co-parceners.
63. Formerly it appears to have been the practice not to grant crests to women with the exception of women chiefs of clans.
64. A grant was also made in April 1989 to Norma Rosalie Monahan Reals, a citizen of the United States of America.
65. L v L [1992] ILRM 115, Supreme Court. Barr J in the High Court had attempted to use the Article as a basis for finding that a married woman was entitled to an equity in the matrimonial home produced by her domestic work, as opposed to money payments which, directly or indirectly, contributed to the purchase of the house.
66. The court held that the Article was inappropriate for such a purpose, bearing in mind that Art 41.2.2 refers not simply to women but to 'mothers' although the court also held that the Article, and the subsection, may be taken into account, for example, in assessing the financial contribution to be made by a husband on a decree of judicial separation.
67. Except for entails: Succession Act, 1965, s11(1).
68. See the Bavarian family of Parteneck, Fox-Davies op cit footnote 37 p 341, and the Scottish arms of Hay, Earl of Erroll, and its branches: Moncreiffe and Pottinger op cit footnote 60, p 18.
69. Lynch-Robinson, op cit footnote 39, pp 64-72.
70. I had written the following two paragraphs before being referred to Richenburg's excellent article 'Arms and the Woman' (1985) The Coat of Arms NS Vol VI No 133, p 128.