A Complete Guide to Heraldry

by Arthur Charles Fox-Davies

Names, in so far as they are matters of law, are subject to canon law; at any rate, the law upon the subject, such as it is, originated in canon law, and not in statute or common law. Canon law was made, and has never since been altered, at a time when surnames were not in existence. A bastard no more inherits the surname of the mother than it does the surname of its father; and the spirit of petty officialism, so rampant amongst the clergy, which seeks to impose upon a bastard nolens volens the surname of its mother, has no justification in law or fact. A bastard has precisely as little right to the surname of its mother as it has to the surname of its father. Obviously, however, under the customs of our present social life, every person must have a surname of one kind or another; and it is here that the anomaly in the British law exists, inasmuch as neither statute nor canon law provide any means for conferring a surname. That the King has the prerogative, and exercises it, of conferring or confirming surnames is, of course, unquestioned, but it is hardly to be supposed that the King will trouble himself to provide a surname for every illegitimate child which may be born; and outside this prerogative, which probably is exercised about once a year, there is no method provided or definitely recognised by the law to meet this necessity. To obviate the difficulty, the surname has to be that which is conferred upon the child by

general custom; and as an illegitimate child is in ninety-nine cases out of a hundred brought up by its mother, it is usually by the same custom which confers the surname of its owner upon a dog in so many parts of the country that a bastard child gets known by its mother's surname, and consequently has that surname conferred upon it by general custom. The only names that an illegitimate child has an inalienable right to are the names by which it is baptized; and if two names are given, and the child or its guardians elect that it should be known only by those baptismal names, and if common repute and general custom, as would be probable, uses the last of those names as a surname, there is no legal power on earth which can force upon the child any other name; and if the last of the baptismal names happens to be its father's surname, the child will have an absolute right to be known only by its Christian names, which to all intents and purposes will mean that it will be known by its father's surname.

In the same way that an illegitimate child inherits no surname at all, it equally inherits no arms. Consequently it has no shield upon which to carry a mark of bastardy, if such a mark happened to be in existence. But if under a will or deed of settlement an illegitimate child is required to assume the name and arms of its father or of its mother, a Royal Licence to assume such name and arms is considered to be necessary. It may be here noted that voluntary applications to assume a name and arms in the case of an illegitimate child are not entertained unless it can be clearly shown (which is not always an easy matter) what the parentage really was.

It will be noticed that I have said he will be required to prove his paternity. This is rigorously insisted upon, inasmuch as it is not fair to penalise the reputation of a dead man by inflicting upon him a record of bastard descendants whilst his own life might have been stainless. An illegitimate birth is generally recorded under the name of the mother only, and even when it is given, the truth of any statement as to paternity is always open to grave suspicion. There is nothing, therefore, to prevent a person asserting that he is the son of a duke, whereas his real father may have been in a very plebeian walk in life; and to put the arms of the duke's family at the mercy of any fatherless person who chose to fancy a differenced version of them would be manifestly unjust, so that without proof in a legal action of the actual paternity, or some recognition under a will or settlement, it is impossible to adopt the alternative in question. But if such recognition or proof is forthcoming, the procedure is to petition the Sovereign for a Royal Licence to use (or continue to use) the name desired and to bear the arms of the family. Such a petition is always granted, on

proper proof of the facts, if made in due form through the proper channels. The Royal Licence to that effect is then issued. But the document contains two conditions, the first being that the arms shall be exemplified according to the laws of arms "with due and proper marks of distinction," and that the Royal Licence shall be recorded in the College of Arms, otherwise "to be void and of none effect." The invariable insertion of this clause puts into the hands of the College one of the strongest weapons the officers of arms possess.

Under the present practice the due and proper marks of distinction are, for the arms, a bordure wavy round the shield of the most suitable colour, according to what the arms may be, but if possible of some colour or metal different from any of the tinctures in the arms. The crest is usually differenced by a bendlet sinister wavy, but a pallet wavy is sometimes used, and sometimes a saltire wavy, couped or otherwise. The choice between these marks generally depends upon the nature of the crest. But even with this choice, the anomaly is frequently found of blank space being carefully debruised. Seeing that the mark of the debruising is not a tangible object or thing, but a mark painted upon another object, such a result seems singularly ridiculous, and ought to be avoided. Whilst the ancient practice certainly appears to have been to make some slight change in the crest, it does not seem to have been debruised in the present manner. There are some number of more recent cases where, whilst the existing arms have been charged with the necessary marks of distinction, entirely new, or very much altered crests have been granted without any recognisable "marks of distinction." There can be no doubt that the bendlet wavy sinister upon the crest is a palpable penalising of the bearer, and I think the whole subject of the marks of bastardy in the three kingdoms might with advantage be brought under official consideration, with a view to new regulations being adopted. A bendlet wavy sinister is such an absolute defacement of a crest that few can care to make use of a crest so marked. It carries an effect far beyond what was originally the intention of marks of distinction.

A few recent bastardised exemplifications which have issued from Ulster's Office have had the crest charged with a baton couped sinister. The baton couped sinister had always hitherto been confined to the arms of Royal bastards, but I am not aware of any Royal crest so bastardised. Of course no circumstances can be conceived in which it is necessary to debruise supporters, as under no circumstances can these be the subject of a Royal Licence of this character, except in a possible case where they might have been granted as a simple augmentation to a man and his descendants, without further limitation. I know of no bastardised version consequent upon such a grant.

Supporters signify some definite honour which cannot ordinarily survive illegitimacy.

The bordure wavy is placed round the pronominal arms only, and no right to any quarterings the family may have enjoyed previously is conferred, except such right to a quarterly coat as might ensue through the assumption of a double name. Quartering is held to signify representation which cannot be given by a Royal Licence, but a quartering of augmentation or a duplicate coat for the pronominal name which had been so regularly used with the alternative coat as to constitute the two something in the nature of a compound coat, would be exemplified "all within a bordure wavy." Each illegitimate coat stands on its own basis, and there is a well-known instance in which a marriage was subsequently found to be illegal, or to have never taken place, after which, I believe, some number of brothers and sisters obtained Royal Licences and exemplifications. The descendants of one of the brothers will be found in the current Peerage Books, and those who know their peerage history well will recognise the case I allude to. All the brothers and sisters had the same arms exemplified, each with a bordure wavy of a different colour. If there were descendants of any of the sisters, those descendants would have been entitled to quarter the arms, because the illegitimacy made each sister an heiress for heraldic purposes. This is a curious anomaly, for had they been legitimate the descendants would have enjoyed no such right.

In Scotland the mark of illegitimacy for the arms is the bordure compony, which is usually but not always indicative of the same. The bordure counter-compony has been occasionally stated to have the same character. This is hardly correct, though it may be so in a few isolated cases, but the bordure chequy has nothing whatever of an illegitimate character. It will be noticed that whilst the bordure compony and the bordure counter-company have their chequers or "panes," to use the heraldic term, following the outline of the shield, by lines parallel to those which mark its contour, the bordure chequy is drawn by lines parallel to and at right angles to the palar line of the shield, irrespective of its outline. A bordure chequy must, of course, at one point or another show three distinct rows of checks.