Martin Goldstraw wrote:In a recent discussion in the Heraldry Society of Scotland forum I was reminded that Lord Lyon Balfour Paul wrote in Heraldry in Relation to Scottish History and Art, p.126: “What should be put on liveries is the badge which can be selected at the individual will of the owner.” I am of course aware that more recent Lords Lyon have lent the impression that they have assumed authority over the granting of badges [snip] Balfour Paul was quoted as an authoritative ( = knowledgeable) source.”
More than merely knowledgeable, but authoritative in that he was himself Lyon King of Arms. If, in the late 19th century, Lyon had no power to control badges (they "can be selected at the individual will of the owner"), we must ask whence subsequent Lyons obtained the authority to control them. The Court of Session (Scotland's highest courts) has repeatedly ruled that Lyon's powers are those and only those granted to him by statute, vouched for by institutional writers (i.e., a handful of authoritative commentators on Scottish law), upheld by decisions of higher courts, or long "continued and accepted practice." (Royal College of Surgeons of Edinburgh v. Royal College of Physicians of Edinburgh [1911]; Maclean of Ardgour v. Maclean [1941])
Control over badges is not addressed in any statute, nor in any judicial decision, nor in any institutional writer, and the very fact that Lyon King of Arms said that badges could be assumed at will is definitive evidence that granting or regulating them was not "continued and accepted practice" of Lyon Office at that time. And if it was not the continued and accepted practice at that time, then it could not suddenly become the continued and accepted practice by the unilateral act of a subsequent Lord Lyon.