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Irish gaelic Heraldic Jurisdiction

by Dr Andrew Lyall Lecturer, Faculty of Law, University College, Dublin Coat of Artillery nos 164-5 Winter 1993-Spring 1994.

An Irish gaelic grant of arms

Introduction

From 1943 to 1962 Republic of ireland was unique in that information technology was as a democracy and it as well 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 jurisdiction¹ but the heraldic jurisdiction in Republic of 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 class or other. In this article I will promise to show, among other things, that there is nil inherently incompatible betwixt a republican grade of government and an official heraldic jurisdiction, if exercised, every bit it must exist, in accordance with ramble principles.

1 source of reluctance to deal with the matter may stem from the notion that armorial bearings are associated with British dominion, or with a landed elite in the past. There is withal, no necessary connection between heraldry and either of these things. Heraldry is European, probably French, in origin. Certainly the linguistic communication of heraldry, blazon, is French in origin. Heraldry yet flourishes in many European countries, some of them monarchies, such as kingdom of the netherlands, Sweden, Belgium and Spain, simply information technology likewise flourishes in republics such equally Switzerland, French republic, Germany, Italy, Portugal and Malta. Of the monarchies only Spain and the United kingdom maintain official heraldic jurisdictions and while it is truthful that European republics practise not accept heraldic jurisdictions in the sense of heraldic officials employed past the land, they exercise protect heraldic bearings in one form or another, such every bit through the police of patents or trade marks. In fact, one cannot maintain a clear stardom for all purposes between countries with full legal jurisdictions and those in which they are lacking. Information technology is a thing of caste rather than of kind. At 1 end of the scale is Scotland which officially grants and registers armorial bearings and protects the unauthorised utilize of arms through the Court of the Lord Lyon with a range of legal sanctions. At the other stop would exist France, in which anyone tin presume and use arms, and somewhere in the center, 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 substantially related. Heraldic jurisdictions, Ireland included, maintain genealogical records, since claims to a glaze of artillery, equally 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 The states, accept an understandable involvement in their Irish heritage and origins which often extends to heraldry. Heraldic jurisdiction thus constitutes a part of the link betwixt 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 at that place were no such organization such bodies would no dubiety invent and adopt devices themselves but without the benefit of a arrangement 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 detail history and, often, on the extent to which previous laws are retained. Apart from South Africa, the Republic of Zimbabwe² 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 past the Smith régime³ the legislation was validated, with other enactments passed in that period, when Republic of zimbabwe accomplished legal independence in 1980. The survival of heraldry in Republic of 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, ready a registry of artillery 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 artillery are referred to a Heraldry Committee appointed by the Minister for Justice. The system has been tested in Republic of zimbabwe since Independence. Appeals lie from the Registrar to the Patents Tribunal and in 1981⁴ it was called upon to decide an consequence of heraldic jurisdiction. The Registrar, exercising a discretion nether the statute, refused to annals arms in a case in which the applicant was domiciled exterior 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 Artillery of Scotland. Information technology was established that the bidder had not registered his arms in Scotland and the Registrar decided that, although he had jurisdiction to register artillery of a person domiciled outside of Zimbabwe, such an applicant should showtime obtain registration, or a grant, of arms in his country of dwelling house.

This decision was upheld by the Patents Tribunal. The presiding judge took the opportunity to express an boosted reason for upholding the Registrar's determination. If it were otherwise, he said, confusion might result. The Zimbabwe legislation provides for persons interested to oppose the grant, equally where they claim that the proposed arms are too similar to their ain. If an bidder domiciled in state X could apply for a grant in Zimbabwe without get-go obtaining a grant in country X, the approximate reasoned, so persons also domiciled in country Ten who might take wished to oppose the application would probably not even be aware that an application had been made, given that notification of a proposed grant together with the blazon, appears only in the Government Gazette of Zimbabwe which would not have a wide circulation outside the jurisdiction. This would as well place the Republic of zimbabwe heraldic authority at a disadvantage in that it would not know if the proposed grant would exist like or identical to some unrelated arms in other jurisdictions. This is an interesting point and may accept implications in other jurisdictions. In the past, while it was a cardinal rule of heraldic practice that no 2 persons should acquit the same arms inside the same jurisdiction, there was less business organization, and niggling power, to maintain the same rule beyond different jurisdictions. Today, notwithstanding, the great speed and ease of international communications means that it would exist possible to ensure that no jurisdiction grants arms which would indistinguishable a grant in another jurisdiction.

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 caput 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 beingness the only possibility of a heraldist being appointed unless one of the others also happened to be one.^six The College too has a Registrar. The deed does not impose any sanction for adopting arms without a grant although information technology does impose a fine for using arms registered in accordance with the statute.⁷ Kenya therefore has a compulsory heraldic jurisdiction. Earlier 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 police of Kenya. New grants from the College contain a formula specifying that the arms granted are to be borne 'according to the police of arms'.^nine

The United States has no official jurisdiction in the sense of land (or federal) officials charged with granting and registering arms, just it does protect arms by law and it certainly has official heraldry in the form of the arms of the U.s., 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 Regime. 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 Artillery of the United States, which grants arms to corporate bodies. The American College of Heraldry grants arms likewise as verifying and registering existing coats. The Higher of Artillery of the U.s. registers its grants as trade marks.¹⁰ Other unofficial bodies also exist.^eleven 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 glaze of arms of Ridgely and the right to change his surname to Ridgely. This gave statutory effect to a proper name and arms clause in the will of Captain Charles Ridgely of Hampton who died without issue and who left his manor, and its 117 slaves, to his nephew, Charles Carnan, subject to the clause.¹³ Maryland had joined the United States only over 2 years previously^xiv and then 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 contempt to heraldry simply to the oppressive use of heraldry in the preceding period of monarchy. Mathieu¹⁵ relates that in 1696 Louis 14 promulgated an edict which required the registration of armorial bearings. Anyone who wished to behave artillery had to annals them with local officials and had to pay a substantial fee. In fact, the King saw the system as a means of increasing his acquirement, and the suggestion is that many bourgeois were adopting arms at this fourth dimension. This financial motive led to abuses whereby even those who did not utilise arms were forced to have grants and pay for them. If they did non 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 brandish the sarcastic antipathy 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 Silver, three grape pips (pépins) sable. ¹⁶ Gabriel Emfert, from the same expanse, was forced to accept Sable, a devil argent, this apparently existence a canting reference to his name which sounds similar in French to enfer. ¹⁷ Pierre Gigot, an abet, was granted Or, a leg (gigot) of mutton gules. ^xviii Even small clerics were not allowed from this treatment. A curé of the modest hamlet of Poil, by the name of Claude Bonnamour, was granted Azure, a cupid argent holding in his correct hand a flaming eye gules. ^xix Another conservative of Lille by the name of Phillipe Louanne fared even worse, existence granted Or, a wolf (loup) passant gules begetting on its dorsum the pare 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 whatsoever rate, later 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 utilize armorial bearings on his or her business firm or carriage.²¹ Those found guilty were field of study to big fines and were banned from holding any civil or military function.²² The law of 14 August 1792 ordered the devastation of monuments associated with 'feudalism'.²³ Those of bronze were melted downwardly 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 prescript 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 nonetheless 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 bullwork' they institute. Strangely, withal, their reports were recorded on newspaper which bore at the top the arms of Paris which contained a principal semée de lis.²⁴ Napoleon revived heraldry, as a effect of bestowing kingdoms and titles on members of his family unit.²⁵ Arms could not be used without his authority and the quondam aristocrats were not permitted to use their artillery without a new grant from the Emperor. The Second Democracy abolished titles but said nothing nearly 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 zip more than was said about heraldry and no farther legislation on the subject was enacted past the Tertiary, Fourth or Fifth Republics. Today in that location is free adoption and free use of arms in France although one ceremonious courtroom did recognise their existence in 1949²⁷ when information technology defined them every bit '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 ane has to admit that this has negative connotations in Ireland, heraldic jurisdiction was maintained during the Republic 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 information technology with their arms.²⁸ Oliver Cromwell himself bore arms and they appeared in the artillery of the Commonwealth. In Ireland Richard Carney was created 'principall Herald at Armes for the whole Dominion of Republic of ireland' during the Commonwealth and an example exists of a grant fabricated past 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 Part attached to the Presidency of the Council of Ministers, in Rome.³⁰ Heraldry is used today in the Republic of San Marino, in the quondam case the royal crown of monarchy was replaced by the fisherman'due south chapeau, the bluecoat of rank of the Doges, while the republican crown of San Marino is taken every bit a symbol of the sovereignty of the people.³¹ The other symbol associated with Venetian Republic was the panthera leo of the seven Ionic islands controlled by Venice, the and then-called heptarchy and information technology continued to exist used every bit a national symbol several centuries after the terminate of the Commonwealth. In the case of the Netherlands, most burgher artillery 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 accept seen, gave the one-time crown of monarchy a new meaning, while the Spanish Democracy 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 'Bring together or Dice' to urge the New England colonies to unite to oppose British rule. The tree of freedom was a popular symbol of people freeing themselves from oppressive dominion, in France and the New England states, both in the grade of an actual tree used as a meeting identify, as the Basques do today at Guernica, and in a symbolic form. The spruce tree appeared in the flag of New England as early equally 1686 and it appears in the flag of Massachusetts today.³³ In William Tell and his successful shooting of the apple from his son'due south caput with a crossbow, Switzerland constitute its own symbol of defiance.

In many cases the arms of the royal family had taken on a national grapheme and had go so much associated with the nation itself that it was retained after a republican form of authorities was adopted. Among the more notable example of this are Poland (the white eagle), Finland (the arms of Gustavus Vasa, Rex of Sweden), Czechoslovakia (the Bohemian lion), and Albania (the black double headed eagle). When the crown was removed from High 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 every bit a national symbol for centuries and is used as a 'State bluecoat' on information technology coinage, on law and military uniforms and on the Presidential Seal.³⁴Its use is protected past the Trade Marks Act, 1963 ³⁵ which makes it an offence for whatever person to use without authority in whatever 'business organization, trade or calling or profession … any badge, device, emblem or flag reserved by law for employ of, or unremarkably used past, the State, the Defence Forces, or whatsoever officer of the State …'. It is the practice of the Registry of Merchandise Marks merely to permit the utilize of the harp as a trademark if information technology 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 imprint 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 silver, attired and unguled or. The stag may accept had its origin in a bluecoat used by Richard 2. His female parent, 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 Two and heir of their female parent. Richard changed the hind to a hart, and possibly the tincture from 'white' to silverish, both to differentiate information technology 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 and so 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 grade from that of the hare. A stag is as well 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 Artillery, an role which was created by King Edward VI of England, the cosmos being by Letters Patent dates i June 1552³⁹ and also mentioned in an entry in his diary for 2 February 1553 which states: 'There was a King of Arms fabricated for Republic of ireland, whose proper name was Ulster and his province was all Ireland'.⁴⁰ Edward Half dozen did so in his assumed capacity as 'King of Ireland', Henry VIII being the first English language monarch to assume that title. Monarchs before Henry VIII had described themselves merely every bit 'Lord of Ireland'.

There were heralds before the fourth dimension 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, merely this has been doubted past 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 connexion with Ireland. Nevertheless, 'Chandos' continued in role afterwards Sir John's death and is mentioned later, over again by Froissart, as the senior English herald.⁴² He died in 1385. Information technology may be that he acted every bit herald in Irish matters. Butler states that the earliest known herald for Republic of ireland was John Kitley appointed 'Ireland Rex of Artillery' by Henry V, the appointment existence obtained by James Butler, Earl of Ormonde.⁴³ The date of the date is unknown. The next mention of an Ireland Rex of Arms is in 1419. The last Ireland King of Arms before the creation of Ulster Rex of Arms was Walter Bellengier (or Bellingham)⁴⁴ created on 9 June 1467.

Subsequently 1922, with the creation of the Irish gaelic Costless State, the Ulster Rex connected to operate from Dublin Castle in the Ulster Function which was reserved as a Crown Office. The Ulster Office continued fifty-fifty after 1937 with the adoption of the present Constitution. The last Ulster King, Sir Nevile Wilkinson continued in office until his decease in 1940. The Deputy Ulster, Thomas Sadleir, connected the work nether difficult circumstances until 1943. The budget had been inadequate for some time but Sadleir did not wish to inquire for an increase in case the office should be airtight downwards and this had lead to a deficit being incurred. Sadleir was of Unionist sympathies and did not wish to exist 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 Function.

In 1943 President de Valera asked a political associate, Edward MacLysaght, a genealogist, to have 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, equally the post was called at first, should take over all the functions of the Ulster King of Artillery except for matters relating to the moribund Gild of St Patrick. The decision was implemented at a briefing 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 Male monarch of Arms, Sir Algar Howard, after some initial reluctance, agreed to recognise the validity of heraldic patents issued by the new part. Despite the change in part the name of the office remained that of Main Genealogical Officer until 1945⁴⁶ and MacLysaght connected to grant arms until then nether 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 Main Herald of Republic of ireland. The word 'Principal' may have been dropped considering of its association with the Cromwellian heralds. When the part of Chief Genealogist was instituted it was attached to the National Library at the proffer of the then Librarian, Dr Hayes. The National Library at that time came under the Department of Education ⁴⁷ just was later on transferred to the Department of the Taoiseach ⁴⁸ and now, nether the present Government, has been transferred to the Section of Culture, Arts and the Gaeltacht.

The Principal Herald is, in terms of heraldic practise, the successor to the Ulster King of Arms, in that he retains the heraldic register of the Ulster Function and this is the only total-colour record of arms in Ireland.

Jurisdiction

It may be inappropriate to employ 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 information technology to refer to a State practice maintained over the concluding 50 years. Courts and the judiciary are established past Commodity 34 of the Constitution, which makes no mention of the Principal Herald, or under legislation made in accordance with the Constitution, and so it is articulate that the Chief Herald has no judicial functions, although Grants of arms are fabricated in the name of 'The Government of Ireland'. The expression 'Authorities' is used in the Constitution and its use corresponds approximately to 'cabinet' in other constitutions. Article 28.ane defines the Government as consisting of between seven and 15 members appointed by the president in accord with the Constitution, and Commodity 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 Regime'. Nether Article 28.7 members of the Government must be members of the Dáil or the Seanad and so the Primary Herald is clearly not a member of the Authorities, although could be said to exercise as role of the executive ability of the State, in terms of Article 28.ii, on the authority of the Government. It could also exist concluded from these provisions, although information technology may exist labouring the indicate, that although grants are made in the name of the Government, since the Government exercises the executive ability of the Land, grants tin can also be said to be made past the State.

Grants are made to Irish citizens,⁴⁹ to persons domiciled in Ireland, to associations and bodies in Ireland ^l and to those domiciled in other countries who tin can prove descent from a known Irish gaelic ancestor and who have no official jurisdiction in their ain country, such equally citizens of the United states of america. Descent must be properly proved by birth certificates or otherwise. Posthumous grants to the ancestor, which tin be made under the Scottish exercise,⁵¹ are not made, nor is there a system of matriculation. On St Patrick's Twenty-four hour period, 1961 the Irish Ambassador to the United States, Dr T J Kiernan, on behalf of the Irish gaelic 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 gaelic jurisdiction are not part of the grant ⁵³ although armigers are thought to exist entitled to use them, but 1 was produced for a more sombre occasion when Senator Robert Kennedy carried the banner of his murdered brother to the pinnacle of Mountain Kennedy in the Yukon Territory of Canada, the mount having been named in retention of the late president by the Canadian government.

Entries in the Register are fabricated in one of three forms: grants, certificates and confirmations. Certificates are granted to recognise artillery originally granted by another heraldic authorisation. Confirmations maintain the do of the Ulster King of Arms who recognised artillery, by the grant of Messages Patent, on the basis of use over 100 years or three generations.⁵⁴ This exercise was adopted because of the difficulties in establishing Irish genealogies due to the devastation of many documentary sources. The Chief Herald of Ireland regards the practice as nonetheless 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 Primary Herald.⁵⁶

Arms of John Fitzgerald Kennedy ( d. l963), President of the U.s.

Where a strange national does have an official domestic jurisdiction in his or her own country, at that place is an understandable reluctance to grant arms unless there is a special reason for doing then. An informal agreement exists between the Chief Herald of Ireland and the Principal Herald of Canada under which Canadian citizens who apply to the Chief Herald of Ireland for a grant of arms would exist brash to use to the Chief Herald of Canada instead. Information technology is possible that an exception would be fabricated similar to i operated past the Lord Lyon King of Arms in Scotland, who in similar circumstances would grant artillery for use in Scotland ⁵⁷ to a chief of a Scottish clan or to ane 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 correct analogous to information technology, carry over into the Constitution of 1937? If the respond to this question is 'yep', then the second question is equally to the present condition of such a right.

The question of a survival of prerogative rights was recently reviewed in the Republic in Webb 5 Republic of ireland and The Attorney-Full general. ⁵⁹ The instance concerned the Derrynaflan hoard, consisting of a silver chalice and the other objects found with it by a Mr Webb and his son. The Land claimed the objects as treasure trove. The Supreme Court was called upon to decide whether the doctrine of treasure trove, which at mutual police force was a prerogative of the Crown, had survived the 1937 Constitution. The court held that a doctrine of treasure trove, or a dominion identical to it and with the aforementioned limits as the English common police doctrine, practical in the Commonwealth, but based not upon the survival of a prerogative power, which it admittedly was before 1922, but equally an aspect of the sovereign rights of the people established by the 1937 Constitution. The larger constitutional principle from which this correct was held to be derived, and which had never been stated before the Webb instance, was defined past 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 almost mod 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 institute 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 and then, they must be derived from constitutional principles analogous to the 1 stated past the Supreme Court in the Webb case. The right to grant personal and public insignia may therefore be ane of them. How the constitutional principle from which it would be derived would be formulated is thing of speculation, but a principle that a sovereign people have the right to designate distinctive insignia for the use of individuals and such bodies equally 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 then far as the employ or grant of arms is concerned. In England women are not 'entitled' to crests or helmets which too means that their achievements do non contain the wreath or mantling.

In the Middle Ages coats of artillery were inherited in the aforementioned mode every bit state. Country 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 artillery through his mother has to take her surname lone if he wants to use the plain coat. ^threescore 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. Accept the English practice which was likewise the Irish practice before 1937 at least.⁶¹ If 10 is armigerous and has a daughter D, D may behave her father'due south arms on a lozenge, but they remain those of her father and are not differenced. In that location is no system of differencing or cadence in relation to women. If D marries a Mr Y who is also armigerous, Mr Y can impale his wife'south artillery with his own, merely they are still actually the artillery of X. When 10 dies the undifferenced coat may then exist borne by 10'southward eldest son, who 'inherits' the arms in the same mode as the onetime rule of primogeniture in relation to real property. Some other similarity to the old rules of descent in real property is that if X dies leaving no sons simply several daughters they all inherit the artillery 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 render to the English practice: rather different rules employ in the instance of heiresses. If X dies without male person consequence and so D becomes an heiress, so far as her father'due south arms are concerned. Her husband now bears 'her' arms on an inescutcheon of pretence superimposed on his own coat. The 'pretence' is Y'due south claim to his 'wife's arms' if they take event of the marriage. If D dies before Y and there are no issue of the matrimony, Y can no longer bear the inescutcheon of pretence. From this information technology tin can be seen that D as heiress but really represents her deceased father, rather than inheriting his artillery 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 behave arms every bit representing their fathers rather than in their own correct, etc. Women have besides been treated differently from men in regard to crests. In England women are not 'entitled' to crests or helmets which as well means that their achievements do not contain the wreath or mantling. In Scotland and Republic of ireland, nonetheless, sometime practices accept 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 likewise been granted artillery in Ireland, a notable example beingness in 1988 the grant to Carmencita Hederman, Lord Mayor of Dublin.⁶⁴The grants so far accept 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 Land and exercisable on behalf of the people, would, of course, have to be exercised in accordance with the other principles independent in the Constitution. For example, Commodity 40.one declares that 'all citizens, shall, equally human persons, be held equal before the constabulary'. The firsthand question is 'tin the Land discriminate in its heraldic practice betwixt men and women?' The second paragraph of Article twoscore.ane states that 'this [the quality of citizens as human persons] shall not be held to mean that the State shall non in its enactments accept due regard to differences of capacity, concrete and moral, and of social function'. The latter phrase probably refers to Article 41 which deals with the family, recognising information technology as 'the natural primary and cardinal unit of measurement grouping of Society' and in particular Section ii subsection 1 which declares that 'the state recognises that past her life inside the dwelling house, adult female gives to the State a support without which the common expert cannot be accomplished'. Subsection 2 continues: 'The State shall, therefore, try to ensure that mothers shall not be obliged by economical necessity to engage in labour to the fail of their duties on the home'. The subsections are, still, of limited application. The Supreme Court ⁶⁵ recently ruled that Commodity 41 cannot be used as a foundation for holding rights.⁶⁶ Could information technology be argued that reference in Article 40.1.2 to 'differences of capacity, concrete and moral, and of social office' could justify a grant of arms to a adult female borne on a lozenge rather than a heater-type shield, in the absence of the adult female'south consent, on the footing, maybe, that military accoutrements are inappropriate? Social change hither strengthens the statement 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 equally unsuitable, just women do so today and this social fact must surely be reflected in the Scientific discipline of Artillery. Changes in the constabulary 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 former rules of primogeniture ⁶⁷ and put in their place a fix of rules which do not discriminate on grounds of gender. All children of a parent succeed to the parent'due south belongings regardless of their gender.

It is probably not a legal requirement to comply with the Constitutional principles in relation to not-citizens, in view of the wording of Article 40.ane, only it would seem desirable on principle to do and so: Article 40.i bases the quality of citizens on their nature equally 'human persons', implying a wider concept of equality beyond that immediately dealt with by the Commodity.

A New Heraldry

If differences of sex were to be ignored, and then some adjustments would have to be made in heraldic do. If women were to accept the same rights to arms equally men, and then the question would arise equally to whose arms, the father'due south or the female parent's, a kid would bear on the death of the parents. It could be left to individual preference, or the former exercise in relation to heraldic heiresses could exist made universal, so that the child would bear the artillery of both parent'south quartered on a single shield. The disadvantage of the latter option would be that shields would in a few generations get chaotic with numerous cruddy 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 information technology to the choice of the child.

Cadency is the system heraldic jurisdictions have developed to distinguish the artillery of members of the aforementioned family unit. The original form of cadencing was for the younger sons to vary the tinctures of the main glaze. This was a full general practice throughout Europe.⁶⁸ Thus, in England and in Ireland earlier 1937, the eldest son of Ten, 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 quaternary with a martlet, the 5th with an annulet, and so on.⁶⁹ When X died the eldest son then bore the undifferenced arms, merely younger sons connected to use their marks of cadence. Their own families, if they had them, would continue to bear the arms with these marks as 'business firm marks', calculation their ain marks of cadence if required. Thus if X had a second son, S2, S2 would continue to acquit Ten'due south artillery charged with the crescent fifty-fifty after Ten's death, since this would serve to distinguish S2 from X'due south eldest son, S1. If S2 had two sons, GS1 and GS2, then GS2 would comport the arms of 10 charged with a crescent, his father'due south 'business firm', and add a crescent of his own, ordinarily a smaller one charged on top of the larger 'business firm' 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, then that the eldest child would conduct the parent's arms with a label, whether the eldest child was a daughter or a son, and so on. The scheme would all the same still require modification because of the before question of women bearing arms. We say 'the parent's arms' considering one would also have abased the rule that just the begetter's arms pass (in the absence of heiresses). If information technology were left to the child'southward 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 kid were a girl, then she could either carry her father'southward arms charged with a crescent as second child to bear the coat, or if she chose her mother's glaze, she might acquit it undifferenced after the mother's death since she would be the eldest child to bear the coat. Thus the 2nd child to bear a particular parent'due south coat would charge information technology with a crescent, the tertiary child to comport the coat, whether female parent or father'south would accuse it with a mullet, and then on.

A 2nd option would be to invent a new set up 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 and then on. Such a scheme would have the reward of preserving a distinction of gender, which women might welcome, without whatsoever discrimination being fastened to it. It would brand information technology possible to tell from the arms whether they were those of a son or a girl, or of a branch of a family descended from a female person bearer of artillery.

Marks of cadency take non 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 selection might be more acceptable, and that is to return to the earlier more than flexible method of varying the tinctures of the main coat, or varying the charges, or both. Since there is today a organisation of registration of arms it would probably be desirable to institute a system of matriculation, every bit there is in Scotland, whereby children other than the eldest child would employ to the Main Herald for a variation of the chief coat.

References

1. Heraldry Human action, 1962, amended in 1969. J G Storry 'Developments in the Law of Artillery' (1983) The Glaze of Artillery 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 Organisation of Armorial Control' (1977-78) The Glaze of Artillery NS Vol II, No 104, 206.
3. See Storry, op cit footnote 2.
4. Cowan 5 Registrar of Names, Uniforms, Badges, and Heraldic Representations. United nations¬reported, Pat. Trib. 6 of nineteen Nov 1981. See Storry op cit footnote two, p 135.
5. John Hamilton Gaylor, Letter (1971) 12 The Coat of Arms 45-48.
6. College of Arms Human activity, Cap 98 Laws of Kenya, s3.
7. Ibid, s7.
8. Ibid, s4(3)(c).
9. Op cit footnote 5 p 47.
10. Fifty Chiliad Pino International Heraldry (David & Charles, Newton Abbot, 1970), p 140.

11. For instance, the American Higher of Heraldry, Alabama. Come across Charzempa footnote 12.
12. Rosemary A Charzempa Pattern Your Ain 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). Encounter likewise Pine op cit   footnote ten, 147-159.

16. Ibid p 82, 'd'argent à trois pépins de raisin de sable'.
17. Ibid p 82, 'un diable d'silvery sur gnaw de sable'.
18. Ibid p 82, 'un gigot de mouton de gueules sur gnaw d'or'.
19. Ibid p 82, 'd'azure à un Cupidon d'silvery 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-nine.
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. Run into A East 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 xxx p 106.
33. Neubecker and Brooke-Little op cit footnote 31, p 244.
34. The Presidential Seal Act, 1937 provides that the President shall accept 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 do. The £xx note introduced in 1992 bears the harp on a minor 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. Flim-flam-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 artillery, 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. Southward 3926 Department of the Taoiseach.
49. Nether the police 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 Human activity, 1956 s6, J K Kelly The Irish gaelic Constitution (2nd ed, Jurist Publishing, 1984) pp xl-41. The phrase 'non 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 announcement 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 artillery, as well as schools and colleges.
51. In cases where Lord Lyon makes a grant to a strange national of Scottish  descent, a grant may be made posthumously to the Scottish antecedent, 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 bidder but not to the ancestor.

52. 50 Thousand Pino op cit footnote x, p 129-130. The type of the coat of arms refers to an ancient Kennedy coat: Sable, iii helmets in profile or, within a bordure  per saltire gules and ermine. Crest: Between 2 olive branches a cubit sinister arm in armour cock, the hand holding a sheaf of four arrows, points upward, all proper. Wreath: Sable and or. Mantling: Gules and argent. The mantling is unusual in that information technology is normally of the tinctures of the field and main charges, which is sable and or. The total achievement is illustrated in L Thousand 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 Republic of ireland, for this  data.
56. Ditto.
57. The Lord Lyon grants 'Scottish artillery', 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. Run into Agnew op cit footnote 2.
58. I am grateful to the Lord Lyon Male monarch of Arms, The Rt Hon Sir Malcolm Innes of Edingight, KCVO for this data.
59. [1988] IR 353, [19881 ILRM 565.
60. Sir Iain Moncreiffe of That Ilk, Bt, and Don Pottinger, Uncomplicated Heraldry, p 22.
61. Lynch-Robinson Intelligible Heraldry op cit footnote 39.
62. This in fact corresponds to the inheritance of state in England in the past nether the system of primogeniture as applied to the tenure of G Serjeanty, when, if in that location was no son, the eldest daughter inherited alone. In other tenures daughters inherited together every bit co-parceners.
63. Formerly it appears to take been the practice non to grant crests to women with the exception of women chiefs of clans.
64. A grant was as well made in Apr 1989 to Norma Rosalie Monahan Reals, a citizen of the The states.
65. Fifty five L [1992] ILRM 115, Supreme Court. Barr J in the High Court had attempted to use the Article as a ground for finding that a married woman was entitled to an equity in the matrimonial habitation produced by her domestic piece of work, as opposed to money payments which, directly or indirectly, contributed to the purchase of the house.
66. The courtroom held that the Article was inappropriate for such a purpose, begetting in mind that Art 41.2.2 refers not just to women but to 'mothers' although the court besides held that the Article, and the subsection, may exist taken into account, for example, in assessing the fiscal contribution to exist fabricated 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, Play a joke on-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 eighteen.
69. Lynch-Robinson, op cit footnote 39, pp 64-72.
70. I had written the following two paragraphs earlier being referred to  Richenburg's excellent commodity 'Arms and the Woman' (1985) The Coat of Arms  NS Vol Vi No 133, p 128.

Source: https://www.theheraldrysociety.com/articles/irish-heraldic-jurisdiction/

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