56

MARKS OF CADENCY.

the accomplishment of these objects, he is empowered, by the Act of 1592, to visit the whole Arms of Noblemen, Barons, and Gentlemen; while the later Statute enjoins all such persons, who make use of any signsarmorial, to bring or send an account of the same, accompanied by duly authenticated certificates of their descent, either to the clerk of the jurisdiction within which they reside, or to the Lyon-Clerk in Edinburgh. This latter provision applies more especially to the Cadets of families, of which only the Chief is entitled to wear the simple arms, without abatement. The preamble of the Act of 1672 sets forth, " amongst the many irregularities of these late times," not only that numerous persons have adopted Armorial Ensigns "who should bear none," but also that "many of these who may in law bear, have assumed to themselves the Arms of their Chief, without distinctions, or Arms which were not carried by them or their predecessors." To these younger branches of families the Lyon is commanded to assign suitable marks of Cadency, in conformity with the opinion of learned Doctors, to the following effect:-"Non solum potestas conferendi nova insignia, sed potestas augendi, mutandi, diminuendi, et conformandi insignia vetera, est penes Principem et ejus Heraldos."

2. As the grand fountain of honour, the Sovereign has at all times exercised the prerogative of conferring Armorial Bearings without any restriction, "although," in the words of Sir George Mackenzie, “he cannot properly 1 Mackenzie's Science of Heraldry, chap. ii.

make a Gentleman, for that comes by Blood and not by Patent." As a general rule, however, the intervention of the Lyon is considered necessary, and accordingly, by both Statutes, he is allowed to give Arms to certain persons who do not inherit them from their ancestors. In this respect, he appears to have possessed an indirect power under the Act of 1592, which authorized him "to put inhibition to all the common sort of people not worthy, by the law of Arms, to bear any signs-armorial." But the later enactment expressly declares that he may grant Arms to "virtuous and well-deserving persons," the interpretation of these rather ambiguous words being left to his own discretion. A similar provision has long been contained in the Lord Lyon's patent of creation. Sir Charles Erskine of Cambo, for example, who was appointed King-at-Arms in 1663, is invested " plena potestate, libertate, licentia, et auctoritate, personis virtute præditis, et de nobis bene meritis, diplomata armorum, secundum ordinem et constitutiones eatenus præscriptas, concedendi." An elaborate dissertation on the persons who are worthy to use Armorial Bearings, or rather, on the signification of Civil or Politic, as distinguished from Moral, "Nobility," will be found in the second chapter of Sir George Mackenzie's Science of Heraldry. That learned author considers that the right to bear Armorial Ensigns extends to Soldiers, Ecclesiastics, Orators, and Laureate Poets; but not, at least in

1 Science of Heraldry, chap. ii.

2 This nice distinction of civil lawyers repudiates the motto of

more than one illustrious family"sola virtus nobilitat."

58

HERALDIC VISITATIONS.

every case, to Heritors of Land, and never to the mere possessors of Wealth. He shows, moreover, that while the privilege is extinguished by infamy and the exercise of mean trades (viles et mechanicas artes), it cannot be lost by those who follow liberal professions, as Advocates and Physicians, and still less in consequence of poverty, " even in the longest course of time."1

Notwithstanding the terms of the Act of 1592, no regular system of armorial visitation appears to have been adopted by the Heralds of Scotland. In England, on the other hand, the practice extended over a considerable period, and resulted in the collection of a large amount of heraldic and genealogical information. The most ancient English Visitation on record is said to have been made at the commencement of the fifteenth century; but the earliest Visitation, by virtue of a Royal Commission, took place during the reign of Henry VIII., in the year 1528-9, and embraced the counties of Gloucester, Worcester, Oxford, Wilts, Berks, and Stafford. From that time till the end of the seventeenth century, the different counties were visited at irregular intervals, and the Registers made during these visitations contain the pedigrees and arms of the Nobility and Gentry, authenticated by the heads of their respective families. Several of these important records are now lost or scattered, but many of them are still preserved among the archives of the College of Arms and at the British Museum. Others are to be found in the Bodleian as well as in various College libraries, while not a few are

1 Science of Heraldry, chap. ii.

VISITATION OF YORKSHIRE.

59

in private custody.' The Visitation of the county of York, in 1665-6, by the celebrated Dugdale (then Norroy and afterwards Garter King-of-Arms) was printed in 1859 as the thirty-sixth volume of the publications of the Surtees Society. It appears from the Preface that "nearly one-third of the whole number of gentry whom the Herald called upon to appear before him with proofs of their arms and pedigrees treated his summons with neglect." Two years after the Visitation, he issued a precept, to which a list of these families was annexed, formally interdicting them against using their arms and titles. The list contains "a few of the well-known ancient gentry of the county, besides many heads of families, whose descendants at this day would have rejoiced had they then placed their pedigrees upon record. But the majority of the names were probably then of little note, and are now wholly lost sight of."2

Besides declaring that the Lyon's Official Register is to be respected as the true and unrepealable rule of all

60

EXTRACTS AND PENALTIES.

Arms and Bearings in Scotland, the Act of 1672 contains an additional provision with regard to Extracts (or authenticated copies) of the same, under the hand and seal of the Lyon, which he is authorized to furnish on payment of certain fees already enumerated.

The Penalties imposed by both enactments, for the unlawful assumption of Armorial Bearings, are almost identical, being

1. Escheat to the Sovereign of all goods and gear whereon "false Arms" are found graven, painted, or otherwise represented.

2. Payment of one hundred pounds, toties quoties, to the Lyon. Failing payment of the fine, the Act of 1592 ordains incarceration in the nearest prison "during the pleasure of the Lyon," but this alarming alternative is not repeated in the later Statute, which, in a remarkable spirit of leniency, also remits any penalties that may have been incurred " before the proclamation to be issued thereupon."

These remarks may be brought to a conclusion by the following

SUMMARY

of the duties and powers of the Lyon King-at-Arms, in. heraldic matters, under the Statutes of 1592 and 1672:

--

1. To assign suitable differences to the Cadets, or younger branches of families having a right to Armorial Bearings.

2. To record the Genealogies of persons descended