Law of heraldic arms

The Belgian law of arms is now regulated by the country's three heraldic authorities: the Council of Nobility, the Council of Heraldry and Vexillology, and the Flemish Heraldic Council.

The Canadian law of arms is now regulated by the Canadian Heraldic Authority.

In Denmark the unlawful use of coats of arms and other insignia of Danish and foreign authorities is a criminal offence (Danish Criminal Code §§ 132–133). Non-official coats of arms are not protected. A specific rendition of a coat of arms is protected through copyright law and a coat of arms can be used as a trademark and will thus be protected by trademark law. There is no official heraldic authority for private arms in Denmark. Most insignia used by municipalities are regulated by the Heraldic Consultant to the Danish State (an office under the Danish National Archives). Registration by the Heraldic Consultant to the Danish State is a prerequisite for protection of official Danish insignia under the Criminal Code's §§ 132–133. Protection of an insignia in terms of trademark law requires registration by the trademark authorities. If an insignia is registered by the Heraldic Consultant, trademark rights are automatically acquired as well.

During the Absolutist era, arms of nobility were granted by the King's herald, but this office was dissolved in 1849 when the absolutist era ended. Since then, the only way to acquire coats of arms in Denmark is through assumption. The Danish state has never claimed any exclusive right to grant arms and families and individuals has always had the freedom to assume arms.

In England the exclusive jurisdiction of deciding rights to arms, and claims of descent, is vested in the Court of Chivalry. As the substance of the common law is found in the judgments of the common law courts, so the substance of the Law of Arms can only be found in the customs and usages of the Court of Chivalry. However, the records of this are sparse, not least because the court never gave reasoned judgments (the Lord Chief Justice who sat in 1954 offering the sole exception to this, no doubt because of his professional background as a common law Judge). The procedure was based on that of the civil law, but the substantive law was recognised to be English, and peculiar to the Court of Chivalry.

Until 1945 the display of coats of arms (engravings, public paintings, etc.) were taxed, with no distinction made in the statute between arms granted by the College of Arms or those which were self-assumed.[2]

In Germany the arms relate to a family, and so a name, and not to an individual. The right to the arms passes from the original bearer to those of his legitimate direct descendants by a male line. Since 1918 heraldic affairs are handled under the Civil Law. The right to arms is now considered analogous to the right to names, expressed in the Bürgerliches Gesetzbuch § 12; this interpretation was confirmed in 1992 by the Federal Court of Justice of Germany. Thus, if one has the right to certain arms, that right is protected by the courts. Personal arms are protected as a part of the name if the arms are officially recorded and published.

In Ireland the granting of arms to Irish citizens or to those who can prove Irish ancestry is considered to be a cultural tradition which is allowed through the Office of the Chief Herald of Ireland. This office was established under the English Crown in 1552 as the Ulster King of Arms and was converted to the Chief Herald's Office after the 1937 Constitution of Ireland.

The Office of Chief Herald was given statutory force in the National Cultural Institutions Act 1997.[3] However some doubts remained as to the effectiveness of the 1997 Act and proposals for further legislative amendment have been made by individual public representatives. For example, on 8 May 2006 Senator Brendan Ryan introduced the Genealogy & Heraldry Bill, 2006,[4] in Seanad Éireann (Irish Senate) to this end.

Speaking very generally, Italian coats of arms may be said to be familial rather than personal. A formal system for indicating cadency is unknown outside the House of Savoy. In Italy there has been no official regulation of familial coats of arms or titles of nobility since abolition of the Consulta Araldica in 1948, and that body addressed itself primarily to state recognition of titles of nobility rather than the heraldry of untitled armigers such as nobili (untitled nobles) and patrizi (of the patriciates in the former city-states). Until the unification of the country in the decade leading to 1870, the issuance and use of familial coats of arms was exercised rather loosely in the various Italian states, with each region applying its own laws, and the principal focus was titles of nobility or (before circa 1800) feudal rights. Indeed, upon ennoblement, a count or baron not from an armigerous family might actually assume his own, original coat of arms without recourse to any authority. For this reason, actual grants of arms were very rare. There is no complete armory of Italian coats of arms, though certain authors, most importantly Giambattista Crollalanza, compiled references which appear to be nearly complete. Until the establishment of the republic (1946) and its constitution two years later, most coats of arms in Italy appertained to noble families, whether titled or not, although a number of blazons were identified with cittadini (burghers) whose families had used these for a century or more. The Blasonario contemplated by the Consulta Araldica would have been an official compilation of blazons (i.e. an armory), but it was still in a very early draft stage when the monarchy was abolished in 1946. In 1967 the Constitutional Court ruled that nobiliary and heraldic matters were "outside the scope of the law". Italy's concordat with the Vatican in 1984, revising the Lateran Treaties, abrogated the article whereby Italy recognises papal titles.

The national arms and the royal arms sort under the Ministry of Foreign Affairs, and military arms are a matter of the heads of each branch of the Norwegian Armed Forces.[5] The National Archives of Norway are the heraldic authority for the royal approbation of municipal arms.[6] Public arms are protected by the Norwegian Penal Code, article 328.[7] The same article prohibits as well unauthorised use of foreign public arms and some distinctive signs of international organizations.[8]

There exists no official authority for private arms and the question of legal protection of private arms has not been asked to a Norwegian legal court.[9] Personal arms, family arms and other private arms have been self assumed in Norway since the Middle Ages, without any grants, interference or protests from the public authorities.[10]

The law of arms as understood in Scotland consists of two principal parts, the rules of heraldry (such as blazoning), and the law of heraldry. In contrast to the position in England, the Law of Arms is a branch of the civil law. A coat of arms is incorporeal heritable property, governed, subject to certain specialities, by the general law applicable to such property. The possession of armorial bearings is therefore unquestionably a question of property. The misappropriation of arms is a real injury, actionable under the common law of Scotland.

Under South African law, which is Roman–Dutch, all citizens have the right to assume and bear arms as they please, provided they do not infringe the rights of others (e.g. by bearing the same arms). The Bureau of Heraldry has the power to register coats of arms to protect against misuse, but registration of arms is voluntary.

In the United States protection of coats of arms is for the most part limited to specific units of the armed forces, with a few exceptions. George Washington, in personal correspondence, expressed opposition to establishment of a national heraldic authority, though he made use of his own ancestral arms. Personal coats of arms may be freely assumed but the right to these blazons is not protected in any way. It is possible that a coat of arms could be successfully protected as a trademark or service mark, but, in general, such protection is reserved for commercial use as a mark connected with a good or service, and not as a heraldic coat of arms. For example, the University of Texas at Austin has registered[11] its emblem and coat of arms for use in its capacity as an institution of higher education. Moreover, such protection presumes a specific graphic design or work of art, while blazon is a description which may be widely interpreted artistically. A specific coat of arms could be protected by copyright as a pictorial, graphic or sculptural work. The usual requirements of originality and artistic creativity would need to be met; neither notice nor registration is required but may be advisable.

In England the officer with power to adjudicate on legal aspects of the law of arms is the Earl Marshal, whose court is known as the Court of Chivalry. The court was established some time prior to the late fourteenth century with jurisdiction over certain military matters, which came to include misuse of arms.

Its jurisdiction and powers were successively reduced by the common law courts to the point where, after 1737, the Court ceased to be convened and was in time regarded as obsolete and no longer in existence. That understanding was authoritatively overturned, however, by a revival of the Court in 1954, when the Earl Marshal appointed the then Lord Chief Justice to sit as his surrogate. The Lord Chief Justice Lord Goddard confirmed that the Court retained both its existence and its powers, and ruled in favour of the suit before him.

However, in his judgement (Manchester Corporation v Manchester Palace of Varieties [1955] P 133) Lord Goddard suggested that

if this court is to sit again it should be convened only where there is some really substantial reason for the exercise of its jurisdiction.

In 1970, Arundel Herald Extraordinary advised Wolfson College, Oxford (who were considering whether to invoke a controversial University privilege in order to avoid paying for a grant of arms) that the effect of Lord Goddard's dictum "must make any further sitting of the court unlikely even for a cause of instance; and the revival of causes of office, which were obsolescent even in the seventeenth century, would be more difficult still". (quoted in "The Coat of Arms of Wolfson College Oxford" by Dr Jeremy Black The College Record 1989–90).

In 1984, Garter King of Arms declined to ask the Court to rule against the assumption of unauthorised arms by a local authority, doubting whether the precedents would give jurisdiction (A New Dictionary of Heraldry (1987) Stephen Friar p 63).

Hence, although the Law of Arms undoubtedly remains part of the law of England, and although the Court of Chivalry in theory exists as a forum in which it may be enforced, there is difficulty in enforcing the law in practice (a point made in Re Croxon, Croxon v Ferrers [1904] Ch 252, Kekewich J). The absence of a practical remedy for the illegal usurpation of arms in the law of England does not mean that there are no rights infringed, merely that it is not within the jurisdiction of the common law courts to act and that the court that is so empowered does not now sit.

In Scotland, Lord Lyon King of Arms is the judge of the Lyon Court, which has jurisdiction over all heraldic matters. An act of the Scottish parliament in 1592 made the unauthorised use of arms a criminal offence and gave Lyon the responsibility to prosecute such misuse, though in practice this might not be legal today. Unlike the Court of Chivalry, the Court of the Lord Lyon is very much alive, and is fully integrated into the Scottish legal system.