TESTAMENTARY BEQUESTS. 421 other children having a right to bear the same surname by virtue of their birth, and who might perhaps be able to connect themselves with the pedigree of the testator. We happen to know of a case in the north of Scotland, where it was seriously contemplated to make a change of surname with the avowed object of enjoying some such testamentary benefit; but if it was actually carried into execution, it is to be hoped that the administrators of the bequest considered it to be their duty to ignore the barefaced claim. Mr. Innes mentions the case of an Irish gentleman of the name of Morris, living in Paris, who assumed the surname of De Montmorenci, and persuaded his relatives to follow his example; "but the descendants of the premier baron Chrétien called a council of the family, and published an Act enumerating all those whom they recognised as genuine, in which the Irish cousins were not included." In the English case of Barlow to which we have already referred, the House of Lords, reversing the decision of the Master of the Rolls, held that a voluntary change of name from Bateman to Barlow on the part of the husband did not bring the wife within the scope of her kinsman's bequest, and that her marriage to such a person was not a fulfilment of the condition of the will. She was not required to marry any person connected by blood with the testator, and was free to choose from the world at large any person bearing the name of Barlow, i.e., bearing it either by birth, or by virtue of an Act of Parliament, by which it appears to be universally admitted that a name can be 1 Scottish Surnames, p. 41. 422 SUGGESTED CHANGE OF LAW. actually conferred.' Again, in the case of Leigh, to which we have also already referred, the assumption of a name by royal license, even by the first and nearest of kin of the devisor of a certain estate, was held to be insufficient to satisfy the limitation in the deed, which required that the heir should be a person bearing the family name of Leigh from his agnation to the testator. In all such cases, it is manifest that the intention is to benefit those who bear a particular name by derivation from their ancestors. Various suggestions have been made respecting the propriety of some change in the law with regard to the use of surnames. Some writers have recommended the enactment of greater restrictions than at present appear to exist, with the view of checking the increasing mania of assuming new names. Even if duly fortified by fines and penalties, it is to be feared that any such legislative interference, while perhaps needlessly creating a new class of offences, would prove practically inoperative. Others, again, are of opinion that greater facilities should be afforded, and propose the establishment of a special register, upon easier terms than at present, either at the College of Arms, or at the Office of the RegistrarGeneral. Extending the suggestion embraced in the latter alternative, Mr. Falconer considers that "it should be enough to register the change in any office for the registration of births, deaths, and marriages, and a small fee only should be payable. There should be no com 14 Brown, Par. Cases, 194. existing practice of the Lyon Office with reference to changes of name. DECLARATION AND DEED POLL. 423 pulsion to make this registration. Whatever name may suggest a sentiment of pleasure or happiness, or which may promote the interest of any person, he should remain as free to adopt as the law at all times has left open to him." Of course, the chief objection to the system of royal licenses is their expense, which we are told forms an insuperable barrier in the case of every poor man who is ashamed of his father's name ; but it may be gravely doubted whether this is a sufficient argument to encourage the modern propensity to arbitrary changes of surname. In addition to advertisement in the public prints, Mr. Thomas Wetherell suggests a "Declaration and Deed Poll," somewhat similar to that adopted by Mr. Jones of Clytha, to be executed, stamped, and enrolled in Chancery, of which the total cost would not exceed £2, 16s.3 Such enrolment is, of course, nothing more than a personal declaration, and the document is merely recorded "for safe keeping." What effect may follow such procedure, will necessarily depend not, of course, on the enrolment, but on the amount of success which the party meets with, in his attempts, by advertisement or otherwise, to persuade the public to acknowledge him under his new name. It is alleged that, even under the free trade system, there are sufficient obstacles of a personal kind to check the tendency in question; such as force of 424 CHANGE OF LAW UNDESIRABLE. habit, fear of ridicule, and, even in the case of the bearers of the most offensive patronymics, a certain degree of family pride, which becomes a positive virtue when contrasted with the mauvaise honte to which we have referred. The advocates of voluntary assumption triumphantly point to the statement of Lord Chief-Justice Coke, that "a man cannot have two names of baptism (ie., a name assumed in addition to his original baptismal name), as he may have divers surnames;"1 but the assertion that a man may have divers surnames does not necessarily imply that the great English jurist went the length of holding that the voluntary and capricious assumption of surnames is absolute and unlimited. The anonymous writer whom we have already quoted comes to the conclusion that no useful change of the law can at present be made. "We are of opinion," he observes, "that it would be unwise to extend further encouragement to such changes; as it might tend to supply unscrupulous men with readier means of defrauding others, and afford to silly men greater opportunities for sowing the seeds of future confusion and inconvenience to themselves and their posterity." "2 2 Herald and Genealogist, i. 27. [A judgment on the law of proper names has been very recently pro nounced by the Hon. Judge Daly, in the Court of Common Pleas at New York, which will appear in a future page of the Herall and Genealogist.] CHAPTER X. THE ROYAL ARMS IN SCOTLAND. EVEN those matter-of-fact individuals who profess to look upon the "noble science" as an unintelligible remnant of medieval barbarism, must be tolerably familiar with the constituent portions of the heraldic insignia of the United Kingdom-the three golden lions (or leopards) of England, "passant gardant in pale," carried since the reign of Henry II.; the red rampant lion of Scotland, within the double tressure flory counterflory, of which the origin is veiled by the mists of antiquity;' and the 1 In common with earlier writers, Nisbet adopts the tradition which assigns the assumption of the rampant lion to Fergus I., who is alleged to have flourished, as King of Scotland, about 330 years before Christ. He also refers to the celebrated league which Charlemagne is said to have entered into, in the beginning of the ninth century, with Achaius, King of Scotland, on account of his assistance in war; "for which special service performed by the Scots, the French King encompassed the Scots lion, which was famous all over Europe, with a double tressure flowered and counterflowered with flower-de-luces (the armorial figures of France) of the colour of the lion, to show that it had formerly de fended the French lilies, and that these thereafter shall continue a defence for the Scots lion, and as a badge of friendship." (System of Heraldry, vol. ii. part iii. p. 98.) On the other hand, Chalmers observes that these two monarchs were probably not even aware of each other's existence, and suggests that the lion (which, as we have seen, first appears on the seal of Alexander II.) may have been derived from the arms of the old Earls of Northumberland and Huntingdon, from whom some of the Scottish Kings were descended. He adds, however, that the lion was the cognizance of Galloway, and perhaps of all the Celtic nations. Chalmers also mentions an "ould roll of armes," preserved by Leland, see p. 191. |