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Differencing in England, France and Scotland
by Ian de Minvielle-Devaux
Coat of Arms No.147, Autumn 1989.

In mediaeval times it became a common practice for successive heads of a family to use identical arms, and for cadets to use "differenced" versions of the arms. The practice became conventional and eventually a legal rule, enforceable by legal action.

As time went by and arms ceased to be a principal means of identifying individuals, the practical utility of differencing the arms of each member of a family was less evident.

The mandatory character of differencing in the English law of arms was brought out in the judgement of the Court of Chivalry in 1410 in the case of Grey v. Hastings, of which one account may be found in the Herald and Genealogist in 1865. The court held that the heir general was entitled to the undifferenced arms and accordingly that the other party, although heir male, must bear a differenced version.

The fifteenth century "Ordinances of the Duke of Clarence" required the Kings of Arms to record the names and arms of all nobles and gentlemen as well as "the names of their issue with their true differences".(1)

According to a set of rules which may have been written by Glover, the sixteenth century antiquary and herald, all the male line descendants of the first bearer of a coat of arms can bear it "with their ordinary differences or extraordinary, as they bear in degrees of kindred to him that first bore it, and to him that is lineally heir to the first bearer of it".(2)

In the seventeenth century Dugdale cited (with apparent approval) Camden's dictum that "when younger brethren do marry, erect, and establish new houses, (they) are accordingly to bear their arms with such distinctions and differences, that they may be known from their elder families". Dugdale also cited other writers of the sixteenth and seventeenth centuries, including Sir Henry Spelman who said that it was not lawful for several persons to bear the same arms, without a due difference, even if they were brothers.(3)

It was felt by at least some Kings of Arms in the seventeenth century that the differencing of arms should not be done informally but should be settled by the heralds. In the passage from Camden which is cited by Dugdale and which is partly quoted above, it is also stated that, with regard to the differences to be borne by the younger brothers who establish "new houses", the King of Arms of the province should be consulted and the differences should be established with his consent, so that he can provide advice and keep a record of the matter. In the instructions given by Clarenceux St. George in 1681 to the heralds who were to conduct Visitations on his behalf, he told them (with regard to "the differences of younger branches") to insert "the known filial distinctions for the immediate younger sons of the eldest house, but for more remote descendants, and for the younger sons of younger sons, you shall respite the assigning such differences to the King of Arms of the Province."(4)

There seems, however, to be little evidence (at least in published material) that much use was made of the opportunities to obtain from the Kings of Arms settlements of permanently differenced arms for the cadet branches of armorial families. Two seventeenth century Letters Patent from the Kings of Arms settling such differences may be instanced. In one, the tincture of the principal charges (two bars) was changed from argent to ermine. In the other, a chief was added to the arms. (In both, the crests were also differenced.)(5)

King James II, during his exile in France after the Revolution of 1688, granted warrants to his herald, Athlone, to examine the pretensions of various persons claiming to be descended from certain English families and, if such descents were established, to grant these persons the arms of the relevant families "with the proper distinctions".(6)

The differencing of arms was considered to be so important a feature of the English law of arms that in addition to stating that the descendants of grantees of arms were to bear them "according to the laws of arms", many English grants of arms have explicitly stated that they were to bear the arms with "due differences". Already common in the sixteenth century, this feature appeared in the majority of grants and confirmations of arms by Letters Patent of the Kings of Arms between the seventeenth and nineteenth centuries.(7)

The Court of Chivalry continued to apply the law regarding differences. An example is found in a decision of the court in the last decade of the seventeenth century. In that case the defendant had been accused of unlawfully bearing arms. The matter was referred to the heralds for their report. A Chapter of the heralds reported that the defendant's father was descended from someone who had been entered at the Visitation of Yorkshire in 1612, and that in consequence the heralds were of opinion that the defendant's father had the right to use the arms in question, but "with a due difference, as being the 4th son of a third house, of a second branch". The Court of Chivalry accordingly monished the defendant to bear the arms with a proper difference.

Notwithstanding all this, the actual practice of differencing fell away sharply in England in the sixteenth century, and by the seventeenth century there were few examples of the practice, apart from some use of the minor cadency marks. Even this use, which was never a general one, soon died out almost completely, although it continued to be described and recommended by writers on heraldry until the twentieth century.(9)

While English grants of arms of the first half of the twentieth century continued for a time to specify that the arms were to be borne by the grantee and his descendants "with due and proper differences according to the laws of arms", the words "with due and proper differences" have been omitted from at least some of the most recent grants. No attempt seems to be made to enforce the differencing of arms (except in the arms of the Royal Family), either by means of the older brisures or by means of minor cadency marks or in any other way. Indeed the English system of differencing according to seniority has recently been described by an English herald as being "permissive rather than mandatory".(10)

The usual English practice is now (as it has been for a long time) for all legitimate male line descendants of a grantee of arms to use the arms without any difference, although some authors suggest that it is "discourteous" of younger branches not to use some mark of difference from the head of the family.(11)

English women outside the Royal Family do not use differences. As it is the rule that they cannot transmit their father's arms, whole and unquartered, there is generally no point in their differencing these arms, which they can use unaltered.

The practice of differencing in France evolved in a manner not very different from that followed in England. In France as in England it came to be well established law that only the head of a family had full rights in the arms, and that other members of the family were entitled only to differenced versions thereof (although, in France as elsewhere, most women were allowed to use their father's arms undifferenced). The bearer of each differenced version transmitted it to his heir; his other descendants were supposed to introduce further differences. All these points had been established in law by the sixteenth century.(13)

So important was the principle of distinguishing the arms of cadets from those of the head of the family that it was explicitly embodied in certain of the codifications of customary law which were made in various parts of France in the fifteenth and sixteenth centuries.(14) In those parts of France in which women could transmit arms (as in Champagne) differencing was in principle applicable to their arms. In the absence of sons the eldest daughter was alone entitled to be the holder of the undifferenced arms, and therefore her sisters (if any) were presumably under an obligation to difference their arms from hers.(15)

The law did not specify the system of differencing to be used. It was up to those concerned to select an appropriate method. Guidance could be found in tradition, supplemented by the writings of theorists. Arrangements involving the use of labels, bordures or bastons continued to be advocated and used. Some of the later writers suggested the use of small brisures in the form for example of mullets or annulets, which are reminiscent of the English "minor cadency marks".(16)

As in other non-criminal matters, the enforcing of the law was generally left (at least in the period after the decline of the authority of the heralds) to those whose rights were infringed. The head of the family, as the only "holder" of the undifferenced arms (that is, the person entitled not only to bear but also to transmit the arms), could bring an action before the Royal Courts in order to force other members of the family to difference their arms from his. Similarly, the head of a cadet branch of the family could in principle obtain a court order directing junior members of his branch to difference their arms from his. In response to such actions a head of a branch might adopt a brisure and a cadet of a branch might adopt a further brisure (known in French as a "surbrisure").(17)

One dispute lasted nearly a century, beginning in 1424, when the elder of two brothers of a Norman family attempted to persuade the other to difference his arms. An agreement made between the brothers proved abortive, and twenty-five years later the elder brother began an action in the Bailiwick court. This dragged on, until eventually the sons of the two brothers settled the matter by an agreement made before two notaries in 1522; the cadet gave up the use of the disputed arms but, rather than difference them, he preferred to assume completely new arms.(18)

In 1509 a judgment in an action between two members of the Espagne family ordered one of them not to bear the whole arms undifferenced, since he was descended from a cadet branch.(19) In 1541 the highest judicial authority, the Royal Council itself, pronounced the final judgment in an action brought by Louis de Pierre-Buffière, head of the family, against François de Pierre-Buffière. The latter was the holder of the principal lands of the family, from which it derived its name. Nevertheless he was ordered, as a cadet, not to bear the undifferenced arms.(20)

In 1636 a revised edition of a collection of legal rules and judgments contained a report of a case heard by the Parlement of Grenoble, the judgment having been given in 1494. This settled a dispute between two branches of the Salvaing family, and ordered the cadet not to bear the undifferenced arms to which only the head of the family was entitled in law. This judgment has been relied on by later writers on both sides of the Channel as illustrating the French rule on differencing. However, it appears that the entire report may be fictitious, having been devised by a member of the Salvaing family who had it inserted in the 1636 book.

His purpose was to provide corroboration for a claim that his family had long been an illustrious one (the arms said to have been litigated in 1494 included an alleged "Royal" augmentation). The culprit was a prominent lawyer and student of heraldry, a subject he knew well enough for the alleged judgment (including the rule of law expressed therein) to have the necessary verisimilitude.(21)

His purpose was to provide corroboration for a claim that his family had long been an illustrious one (the arms said to have been litigated in 1494 included an alleged "Royal" augmentation). The culprit was a prominent lawyer and student of heraldry, a subject he knew well enough for the alleged judgment (including the rule of law expressed therein) to have the necessary verisimilitude.(21)

Some complaints were made about the widespread neglect of differencing, in the hope that the royal authorities would themselves take steps to enforce the law. For example, during the Estates General of 1614 the representatives of the nobility complained that it was no longer possible to tell, from the arms actually borne, who was the eldest and who was the cadet, or who were the descendants of the main line of a family and who were collaterals. This complaint was mentioned in the preamble to the Edict of 1615, creating the office of Juge d'Armes, and it may have been intended that this officer should help to remedy these abuses.(22)

Scotland is the only country in which the practice of differencing the arms of branches of a family has survived in full vigour. This has been termed "the most striking peculiarity of Scottish heraldry".(24)

Many Scottish grants and matriculations of arms emphasize the requirement of differencing. One older method was to state that the arms concerned were to be borne by the person stated and by his heirs (only); in this way no arms were attributed to descendants other than the heir in each generation, and such other descendants were obliged to obtain arms from the Lord Lyon, who made sure that these arms were differenced versions of the "original" arms. A method commonly used since the mid-nineteenth century is to state that the arms are to be borne by the person stated and his descendants with such "congruent differences" as might subsequently be matriculated for them.(25)

The practical difference between English and Scottish heraldry in modern times does not arise from the content of grants of arms in the two countries since, as we have seen, most modern English grants have recited the need for "due differences". It arises from the fact that the Scottish heraldic authority has, and uses, adequate powers to enforce the law.

This Scottish Act of Parliament of 1592 affirmed the authority of the Lord Lyon to distinguish the arms of cadets with "congruent differences". The Act of 1662 ordered younger brothers to bear arms only with "such distinctions as shall be given by the Lyon King of Arms". The 1662 Act was repealed in 1663, but in 1672 another Act came to reinforce that of 1592. The 1672 Act forbade the use of any arms unless they had been matriculated by the Lord Lyon, who might introduce appropriate differences. Since that time (at least), the Lord Lyon has had all the power he needs to enforce the law, which he does by insisting, when matriculating the arms of a cadet, that they are properly differenced from the arms of the head of the family and from those of other cadets.(26)

As long as he remains a part of the parental household, a younger son of a holder of Scottish arms is permitted to make use, without any formality, of the parental arms with the addition of a "minor cadency mark" of the class described above in connection with English heraldry (a small crescent for a second son, etc.). When a younger son marries and establishes his own household, he is required (if he wishes to use arms) to apply to the Lord Lyon to matriculate a permanently differenced version of the parental arms. This differencing may be effected in various ways, but the most common is to surround the parental arms with one of a wide variety of bordures. The differenced arms which have thus been matriculated are themselves subject to the rules governing Scottish arms; for example they may be transmitted to their holder's own successive heirs while his other descendants must matriculate differenced versions of these differenced arms.(27)

In Scotland as elsewhere, daughters can use their parental arms undifferenced (although of course they cannot transmit them unless they are heiresses). This is considered to be a privilege rather than a disability, and is not insisted on if a daughter living independently desires to use arms which are specific to herself. Thus we find, as early as the sixteenth century, the sister of a Scottish peer bearing a differenced version of her paternal arms. An unmarried daughter who is not the heir to her parental arms can petition the Lord Lyon to matriculate a differenced version of these arms. If she marries and has issue, she can transmit her arms to her heirs, either as their whole arms if they retain her name, or as a quartering if they take her husband's name.(28)

During the lifetime of the holder of any Scottish arms, the heir may use them with a label of three points. This is correct whether the heir is male or female. The use of a label by a female heir is not a modern innovation. Thus Janet Fentoun, daughter and heir-apparent of Walter Fentoun of Blaikie, bore her father's arms with a label in 1448, and dropped the label after his death.(29)

There have been a number of judicial decisions, not only of Lyon Court but also of the Court of Session, which have affirmed and enforced the rule that only one person at a time can be the holder of any Scottish arms, and the concomitant rule that only the heir can be this person. A striking instance is provided by the Dundas case. In 1744 a member of that family matriculated certain arms in Lyon Register. Later the Lord Lyon cancelled this matriculation because he decided that the person who had matriculated the arms was not in fact entitled to those particular arms. The matter was brought before the Court of Session. The interlocutor (judgement) of this court in 1762 in effect confirmed that of the Lord Lyon. The Court of Session found that the arms which had been matriculated were those of the heir of the Dundas family who therefore had "the sole right to use and bear the coat of arms of Dundas of that ilk". The person who had matriculated the arms in 1744 was not the heir; he had obtained the matriculation "by obreption" (deceit) and this gave him no right to use them; the matriculation was to be expunged from the records of the Lord Lyon.(30)

Notes
1. While the dates at which individual parts of the "Ordinances of the Duke of Clarence" were formulated are somewhat uncertain, it appears that all these Ordinances were accepted as governing the activities of the Kings of Arms towards the end of the fifteenth century. A clause in the oath taken by the provincial Kings of Arms during that century required them to record the "noble gentlemen" of their province "and such arms as they bear with the differences due in aims to be given". Cf. Wagner (1956) pp. 59, 137.
2. Dallaway (1793) pp. 369-370.
3. Dugdale (1811) pp. 23-32.
4. Dugdale (1811) pp. 25; Seton (1863) p. 86; Baildon (1904) (July) p. 59; Wagner (1956) p. 148.
5. Bannerman (1904) pp. 296-299; Littledale (1925) pp. 44-45.
6. Ruvigny (1904) pp. 195, 197, 201.
7. Howard (1866-1902) passim;) Bannerman (1904-16) passim; Clarke (1916-38) passim; Littledale (1925) passim; (1926) passim. Of about 150 grants and confirmations of the sixteenth century published in these works, about two fifths stipulated that the descendants were to bear the arms with differences; of about 200 grants and confirmations of the seventeenth, eighteenth and nineteenth centuries, about three quarters contained this stipulation.
8. Squibb (1956) pp. 84-86.
9. Dallaway (1793) p. 381; Woodward and Burnett (1982) p. 397; Brooke-Little (1978) pp. 116-118.
10. Clarke (1920-1922) pp. 155, 178-179, 191; Fox-Davies (1949) pp. 345, 489; Squibb (1959 p. 189; (1981) p. 445; Brooke-Little (1978) Plate XXVIII; Dennys (1982) p. 19.
11. Full Report (1955) p. 54.
12. Fox-Davies (1949) p. 492; Brooke-Little (1978) p. 118.
13. Scohier (1597) pp. 21-25, 69; Favyn (1620) I pp. 18-19; Expilly (1636) p. 712; Segoing (1657) pp. 457-459; Geliot and Palliot (1661) p. 100, 107-115; Menestrier (1696) pp. 216-226; Brillon (1711) I p. 155; La Roche-Flavin and Graverol (1745) p. 635; Dupuy Demportes (1754) I pp. 91-92, 95; Mathieu (1946) pp. 99-114.
14. Mathieu (1946) p. 102.
15. Mathieu (1946) p. 127.
16. Scohier (1597) pp. 30-33 , 68-70; Favyn (1620) I pp. 18-19; Varennes (1640) pp. 517-535; Segoing (1657) p. 459; Geliot and Palliot (1661) pp. 100, 107; Menestrier (1696) pp. 216-226; Dupuy Demportes (1754) I pp. 92-94.
17. Mathieu (1946) pp. 68, 99-104.
18. Mathieu (1946) p. 106.
19. Brillon (1711) I p. 155; La Roche-Flavin and Graverol (1745) p. 635.
20. Mathieu (1946) pp. 105-106, 110-111. It has been pointed out that this case shows how the medieval nexus between arms and fief (land) had become loosened (Mathieu (1946) p. 106).
21. The report of the Salvaing case appears in Expilly (1636) pp. 709-711. There are references to the case in Varennes (1640) pp. 157-158; Mackenzie (1680) p. 71 (cited in Innes (1940A) p. 273) and in Mathieu (1946) pp. 104, 180. That the case was a hoax is shown in Terrebasse (1850) pp. 171-176.
22. Cherin (1788) pp. 91-93; Grolée-Virville (1978) p. 18.
23. Menestrier (1696) pp. 216-226; Brillon (1711) I p. 155; Dupuy Demportes (1754) I p. 95; Ferrières and Boucher d'Argis (1787) I p. 123; Cherin (1788) pp. 245-250; Mathieu (1946) pp. 102-104, 109. The practice of differencing survived to some extent in the Royal Family and in some great families. Traces of the practice are occasionally found in other families. Examples may be found in the Marcé and perhaps the Prevost families of the region of Tours (Chambois and Farcy (1895) pp. 494-495, 615-617). The general abandonment of the practice is illustrated by the arms registered in the Armorial General of 1696-1709; the various members of each family usually gave in the same arms, and the officials, intent only on maximizing the financial yield, made no attempt to difference them. Eventually the sons and grandsons of the King himself were permitted to use the undifferenced royal arms of France (Pinoteau (1976) pp. xxiv, xxvi-xxvii, xxxvii and publications there cited). Nevertheless, some writers continued to insist that the differencing of the arms of cadets was obligatory, even after the final abolition of the monarchy (for example, Maigne (W), Abrégé méthodique de la Science des Armoiries (1860) p. 122

24. Woodward and Burnett (1892) pp. 397-398.
25. Seton (1863) pp. 130-131; Howard (1874) p. 356; (1884) pp. 179, 189, 259; Stevenson (1914) p. 126; Clarke (1916-1917) pp. 254-256; Littledale (1925) pp. 33-34; 79-80, 82-83; Haraldica (1940) p. 75; Fox-Davies (1949) p. 500.
26. Act (1592); Act (1672); Nichols (1865) pp. 397-398, 404; Paul (1903) pp. xi-xii; Stevenson (1914) pp. 464, 466; Clarke (1916-1917) pp. 254-256; Fox-Davies (1949) p. 500; Innes and Innes (1978) pp. 49, 54-60.
27. Innes (1940A) p. 297; Fox-Davies (1949) pp. 500-503; Innes and Innes (1978) pp. 51, 54-56.
28. Stevenson (1914) pp. 281-282; Heraldica (1940) pp. 77, 132; Innes and Innes (1978) pp. 50, 53, 58, 66, 69, 75, 79, 80, 81. Cf. The Complete Peerage, revised edition VIII (1932) p. 475, note f.
29. Woodward and Burnett (1892) p. 419; Innes (1938A) p. 97; Innes and Innes (1978) pp. 50, 65 (and see the Second Edition (1956) Plate XXIX). The eldest son of the heir may use the arms with a label of five points, which he may replace with his father's label of three points if his father dies before succeeding to the whole arms (Innes 1938A) p. 97; Innes and Innes (1978) pp. 50, 65. There is a somewhat analogous practice in English heraldry (Fox-Davies (1949) p. 487).
30. Nichols (1865) pp. 399-400, 404; Stevenson (1914) pp. 70-71, 350, 466-467; Innes (1940A) p. 295; Gayre and Gayre (1964-69) I p. 115; Innes and Innes (1978) p. 60. In 1795 the Lyon Depute declared that a Patent of the arms of the chief of Clan Cameron given in 1792 to Cameron of Erracht was void because he had obtained it by misrepresenting himself as the representative of the family; the arms were declared to be those of Cameron of Lochiel, the true chief of Clan Cameron (Stewart (1974) pp. 147, 303-304).

Editor’s note