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Law of names

The following is a complete transcript of pages 1 through 4, and Appendix C, pages 98 through 103 of CHANGE OF NAME AND LAW OF NAMES, from the Legal Almanac Series, No. 34, by Edward J. Bander. Copyright 1973 by Oceana Publications, Inc., Dobbs Ferry, New York - ISBN 0-379-11088-1.

If you desire to change your name you may do so, in practically every state, without making an application to any court for permission to adopt the new name. This was also the rule at the common law, and is qualified only by the condition that there be no criminal or fraudulent intent behind the proposed change.

But while the change of name may be almost everywhere effected without a court decree, provision is also made universally for a means by which a new name may be formally adopted. This procedure, which is statutory and must be followed strictly, involves the submission of a petition to the appropriate court and the granting of the petition by a formal order.

In some states, the law may require that a hearing be held so that interested persons may have an opportunity to appear and interpose objections to the proposed change. Of course, the courts will not entertain frivolous objections, and only if the objections are substantial and meritorious will they be given serious consideration. Such objections are comparatively rare, and the course of the usual court proceeding is smooth and uneventful. . .

The law relating to names, their significance, and their change, has its origin in the dim past, a past when a person bore only one name, which was sufficient in a primitive society to identify him and distinguish him from his fellow men. Names were derived from many diverse sources. (See Appendix C for a scholarly opinion on the origin of names.) A name might have attached itself to an individual quite naturally from the place in which he resided, or the occupation he pursued. Or, again, names might find their source in the names of animals, or in superstitious hopes or fears. Thus we find that a person's family name had a special significance when first used.

With the passage of time, however, and the consequent complication of society, we find the Christian or "given" name used in conjunction with the family name or "surname." At first the given name, being the name given at baptism, was the only name of importance. Then the surname, a kind of qualification or description, came into wide-spread use together with that given at birth. Until comparatively late in legal history, important documents were still signed only with the given name, and legal proceedings could be conducted only in the one given name. For example, in the yearbooks of Edward I we find the following recorded:

"One Matthew came to the market at B. and found in the hands of one Robert his horse, which had been the night before stolen from his house in the town of T., and that he raised the cry on the said Robert, and so both man and horse were taken."

Or the following, taken from the yearbooks of Edward II:

"A certain Alice appealed one John of rape and breach of the peace of our Lord and King. . . . John came and defended all manner of felony . . . and . . . if Alice, by advice of counsel, had not withdrawn her appeal, the judgment of the Court would have been that Alice should tear out John's eyes, etc."

It also became customary for a man to add to his given name that of his father, so that, if his Christian name were John, and his father's name were Patrick, he might be called John Fitzpatrick, the prefix "fitz" being equivalent to the French "fils" or "son."

With time, the surname became hereditary, and we find the appearance of the family name, continuing from father to son from one generation to another.

So important was the baptismal name, that it could not be changed, nor could a person, having once been baptized, be later baptized with an additional name, but it has been said that today, because of the diversity of sects, there is a possibility of more than one baptism which may take place when a person enters a different sect.

We may say that a name is a designation used to identify or distinguish one individual from another. That is the essential purpose of a name, whether, as in ancient times, it consisted of a given name only, or of a family name in addition, derived from a person's parents.

Today, the laws of England and of the United States provide that both given and surnames may be adopted or changed by a person in later life, and it is with such changes, and how they may be effected, that this book is in great part concerned.

At common law, that is, the unwritten law of the courts as distinguished from statutory law, or the law embodied in the acts of a legislature, the right to change one's name without legal proceedings was eventually fully recognized. This common law right was not changed or abrogated by statutes which provided a legal procedure for such change, unless, of course, the statute specifically removed such right. Therefore, unless the statutory method is exclusive, the common law rule is in no way affected.

Under the common law rule, where it is not done for an illegal or fraudulent purpose, an individual may lawfully adopt any name without seeking a court's permission to do so or resorting to any other legal proceeding. When a name is adopted in this manner, it becomes for all purposes the individual's legal name. There is no reason why a person may not change his name as often as he chooses, provided, as indicated above, no criminal or other improper intention is behind the assumption of the new name.

But, in spite of the general principle, one should exercise some care in assuming and acting under a new name, since legal complications may sometimes arise. For example, in California, a court has decided that where a person signs an affidavit of registration as an elector, and states therein a name which is different from that of his birth and which is different from the name he used on passports and other federal matters, he may be convicted of perjury. Such conviction was sustained even though the name used in the affidavit was always used by the person in the state and although he was married under such name. (59 Cal. App. (2) 342, 139 P. (2) 118)

Although the common law rule prevails generally in the United States, many persons follow the statutory proceeding to change their names simply to have, wherever possible, a record of the change.

As will be seen hereafter, the court to which a petition for leave to assume a new name has been presented may generally, in its discretion, refuse to grant the application. However, if it appears that the court's discretion has been abused in refusing to recognize the petition, or that the court acted in an arbitrary manner, then the court's action may be subject to review and correction by an appellate court.

What circumstances will or will not justify a court's refusal to entertain a petition for change of name is difficult to predict. Every case turns on its own facts. In any case, a person desiring to change his or her name will be well advised to consult an attorney and not attempt to prepare the necessary papers without legal counsel.

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