• Legal Status of Irish Grants of Arms ISSN 1393-3183 • First GSI Board Meeting at the Martello Tower Editor: E-mail: [email protected] TEL: +353.1. 284 2711 • News, Views & Queries from the World of Genealogy The Newsletter of the Genealogical Society of Ireland Volume 8 • Issue 10 The Genie Gazette October 2003 LEGISLATION REQUIRED FOR GRANTS OF ARMS Attorney General Casts Doubt on the Present Legal Basis for the Granting of Arms by the State As we all bid a fond farewell to the much turbulent history of the Office of Arms. position of Section 13 of the National Cultural respected and widely admired Chief But, unbeknown to many and only Institutions Act, 1997, what next for Irish Herald, Brendan O’Donoghue , who discovered under the Freedom of heraldry? retired as Director of the National Library Information Act , the Attorney General “Royal Prerogatives Real or Imaginary” and Chief Herald of Ireland on Friday 12 th went further and stated that there was There is much fanciful speculation about “Royal Prerogatives” and whether, the State September 2003, speculation on the future indeed, no legislative basis for the on achieving independence became the natural of Ireland’s heraldic authority is rife . granting of arms by the Chief Herald on inheritor of such prerogatives in Ireland, “An Eventful Tenure at the Helm” behalf of the State. So what does this including the right to grant Arms. However, Mr. O’Donoghue’s tenure as Chief Herald mean for all the grants made since 1943 this situation is far from clear following the was certainly an eventful one with the when the Office of Arms in Dublin Castle enactment of the 1937 Constitution of Ireland. staging in Dublin Castle of the 25 th transferred from British to Irish control? Indeed, many thought that the Supreme Court International Congress on Genealogical & “Hundreds of Grantees of Arms” decision in “Webb v Ireland” in 1988 (I.R. 353) settled, for good, the whole question of Heraldic Sciences in 2002 which The hundreds of Irish based grantees of “Royal Prerogatives” in Ireland. Whilst, this th Arms received from the Office of the coincided with the 450 anniversary of particular case was in relation to treasure-trove, the establishment of the Irish heraldic Chief Herald since 1943, include, this the court found that such prerogatives authority. His tenure at the helm of Irish Society, County, City and Town Councils, emanating from the British crown could not heraldry witnessed probably the lowest Irish government agencies, universities, have survived the enactment of the 1937 point in the history of the Office – the colleges, clubs, professional and academic Constitution. However, the Supreme Court also publicity surrounding the MacCarthy Mór bodies. Hundreds of individuals received held that in certain instances the Constitution hoax. However, Mr. O’Donoghue personal grants of Arms also, including substituted Irish versions of the old imperial demonstrated a bold determination to Presidents of Ireland, foreign dignitaries, prerogatives. Therefore, it’s inevitable that such prerogatives as may have been held by the clean up the mess of the “bogus chiefs”. leading churchmen and businesspersons. old regime, in the absence of any clear Irish The State too received its Grant of Arms Firstly, by withdrawing recognition of legislative basis, will continue to fuel a debate “The MacCarthy Mór” in 1999 and then in 1945 which is now the National Arms amongst constitutional lawyers here and progressively removing or cancelling of Ireland featured on all official elsewhere. But does the State now claim such grants of arms associated with this hoax. documents, coinage and insignia. a prerogative exists in respect of the granting of Finally, he recommended the “Grants neither Illegal nor Lawful?” Arms? discontinuation of the sixty-year old Each of the beautifully hand-painted “Early Advice Ignored” practice of the State providing “courtesy Letters Patent granting Arms were signed Dr. Susan Hood in her book “Royal Roots – recognition” to Irish Gaelic chiefs. In his and sealed by successive Chief Heralds Republican Heritage” gives a fascinating dispassionately equitable approach to under the authority of the “Government of insight to the mindset of the government at the Ireland” – but in the absence of a time of the transfer of the Office of Arms to its these matters Mr. O’Donoghue was control in 1943. Indeed, it appears from a always pragmatic, determined to restore legislative basis, what now is the legal memorandum to government of March 30 th and strengthen the reputation of the Office status of these grants of Arms? Clearly it 1943 that, “it was not clear whether legislation of the Chief Herald of Ireland. is not illegal for the State to grant Arms would be necessary to regulate the position and “Attorney General’s Advice” because there is no specific legislative or define the authority” of the heraldic functions In the end, it was the Attorney General’s constitutional prohibition on making such of the Office. The persistence of the first Chief advice to the Minister that there was no grants to either corporate bodies or Herald, Dr. Edward MacLysaght, ensured that legislative basis for “courtesy recognition” individuals. But on what authority does the heraldic functions were continued and, indeed, grants of Arms were made as early July of the Gaelic Chiefs that closed this the State make such grants and, given that 1943. This situation was facilitated by serious doubt is now cast upon the legal chapter in the long and sometimes decisions of the Cabinet and the Minister for GSI Website: www.gensocireland.org THE GENIE GAZETTE 2 DEIREADH FÓMHAIR SEPTEMBER 2003 Education, however, without the enactment of Bill” and now it appears that the Attorney promotional material / programmes for enabling legislation or the issuance of a General’s advice makes the introduction of genealogy Statutory Instrument under current legislation. such legislation an imperative for the • Legislative establishment of the “Prerogative or Memorandum” continuance of the State’s heraldic functions. prerogative rights of the Office of the It appears that the Cabinet realised the risk of It’s now very clear, as we said in October 2000 Chief Herald of Ireland offending republican sensibilities or being it’s time to “stop tinkering at the edges of • Legislative protection for armorial accused of contravening Article 40.2 of the existing legislation and to repeal Section 13 of bearings in the Republic 1937 Constitution of Ireland. Therefore, an ad- the National Cultural Institutions Act, 1997, in • Legislative regulation in the application hoc arrangement of unclear legal origin that order to bring forward an all-embracing Irish for and granting of Arms and Letters endures until this day was established by Genealogy & Heraldry Bill”. Are we to wait Patent memorandum. It certainly was no oversight another three years before the Minister acts on • Legislative framework for fees charged that no mention is made of “prerogatives” or the advice of his Attorney General or has by the Chief Herald of Ireland any other legal basis for the granting of Arms common sense prevailed at last? • Protection of copyright in respect of in these government memoranda. Is this how “A Comprehensive Legislative Framework” armorial bearings the Republic of Ireland should base its heraldic The main points for inclusion in such a Bill are • Legislative regulation and requirements in affairs – “on a memo” – surely not? as follows:- respect of heraldic records • “National Cultural Institutions Act” Clear definition of genealogy and • Protection of rights to inheritance in As no firm legislative basis was introduced to genealogical records / material / heritage respect of armorial bearings in the • take account of the 1943-45 memoranda, the Clear definition of heraldry and the nature Republic debate on the National Cultural Institutions Bill of armorial bearings • Definition of types of grantee, i.e. raised many more questions than it answered. • Designation of place of deposit for corporation, individual, local authority etc Indeed, the final compromise as contained in genealogical and heraldic records • Assure access to Arms for a greater Section 13 of the Act covering the Office of the • Establishment of the Office of Chief number of our citizens by providing for Chief Herald erroneously assumes that a legal Genealogical Officer, based at the basis for the granting of Arms existed prior to the introduction of a “Certificate of a National Library of Ireland, to oversee the Grant of Arms” describing the details of the enactment of this legislation. On the face of formulation, planning and execution of it, the advice by the Attorney General now puts the Arms granted, this would be a less policy in respect of genealogy and expensive alternative to the existing that position in some considerable doubt. Time associated records, especially, the public has now come for the Irish Minister for Arts, Letters Patent presented on beautifully accessibility to such hand painted vellum. Sport & Tourism, Mr. John O’Donoghue, • Establishment of a supervisory / advisory • Rights of grantees to the free use of TD, to end the ambiguity caused by this role for the Chief Genealogical Officer in situation and to announce his intention to armorial bearings and protection of such respect of government departments, local • Protection and defined use of the Arms of repeal the now unsound Section 13 of the government or State agencies holding National Cultural Institutions Act, 1997 and to Ireland such records • Establishment of a Standing Advisory introduce new legislation. • Establishment of a National Inventory of “Statement on the Rights of Grantees” Committee on Heraldry and Vexillology Genealogical Records held by the State or to assist and advise the Chief Herald of The rights of grantees as set forth in Letters by private institutions and the publication Patent received from the Chief Herald must be Ireland on such matters of such • Legislative establishment of Office of the upheld and the Minister must, as matter • Establishment of a mechanism to urgency, make a statement on this matter.