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THE LAW OF ARMS IN NEW ZEALANDTHELAW OF ARMS IN NEW ZEALANDoriginallypublished (1998) 18 (2) New Zealand Universities Law Review225-256 The Coat of Armsof New Zealand (pre-1956 pattern) I.INTRODUCTIONThere has been anon-going debate in heraldic circles in the Commonwealth as to therespective jurisdictions of the College of Arms and of Lord LyonKing of Arms(1). Uncertainty has also been expressed as to thevalidity of grants of armorial bearings to subjects of the Queenin Australia, New Zealand, Canada, and her other realms andterritories(2). These debates have however tended to not placeproper emphasis upon what the law actually says, and instead relyon administrative practice, or political or historicalpreference. No correct answer can be given without an analysis ofthe Law of Arms as a part of the laws of England and of the othercountries in which it has, or may have, legal force(3). Inparticular, this involves an examination of the judicial andexecutive aspects of the Law of Arms.The Law of Arms is anarea of law which has, for centuries, been largely the preserveof the antiquary. It is part of the law of the realm, though notof the common law. With the settlement of the overseasterritories of the Crown, this law was apparently extended tothese shores, though its administration abroad appearsproblematic, for reasons which will be developed.Bearing and using arms,variously styled coat armour, armorial bearings, arms, or coatsof arms, is a legally enforceable right. Although their originalfunction was to enable knights to identify each other on thebattlefield, they soon acquired wider, more decorative uses. Theyare still widely used today by countries, public and privateinstitutions and by individuals. The law which governed their usewas called the Law of Arms, or the laws of heraldry. Theofficials who administer these arcane matters are styledpursuivants, heralds, or kings of arms, depending upon theirseniority.Coats of arms areconferred by the Crown upon New Zealanders, and upon New Zealandcorporations and public authorities. Whilst most of these grantsare by Garter King of Arms, the chief English herald, through hisNew Zealand deputy, some are from Lord Lyon King of Arms, theScottish herald. Whether these latter grants are proper is amatter which deserves some attention. In England theregulation of heraldry fell to the Court of Chivalry, the Courtof the Lord High Constable and the Earl Marshal of England, asthis was the body responsible for the regulation of matters ofhonour. That these matters now, and for several centuries havebeen entirely heraldic, is an accident of history(4). Nor must itbe thought that the jurisdiction of the Law of Arms has alwaysbeen concerned, as it is today, only with coats of arms and otherheraldic matters(5). However, disputes overthe use of arms after 1389 took two main forms, those in whichthe defendant was alleged to have taken the arms of anotherperson(6), and those in which he was alleged to have used armswrongfully without infringing the rights of another(7). Sometimesthe fabrication of coats of arms, and sometimes the use ofarmorial insignia, such as supporters, to which the defendant wasnot entitled, was the cause of action(8). There was no doubt thatthere was a law governing such matters, but what then was thenature of this law? II. THENATURE OF THE LAW OF ARMSAccording to the usualdescription of the Law of Arms, coats of arms, armorial badges,flags and standards and other similar emblems of honour may onlybe borne by virtue of ancestral right, or of a grant made to theuser under the authority of the Crown(9). The power to grantarmorial bearings is delegated by the Crown to the kings ofarms(10). However, even within the British Isles there are threeor perhaps four distinct types of arms- Scottish, English, Irishand possibly, Northern Irish(11). Each has its own applicablelaw, but only the laws of England and Scotland will be examinedhere. In England, the Law ofArms is regarded as a part of the laws of England, and the commonlaw Courts will take judicial notice of it as such(12). Thesedignities, as they are called, have legal standing(13). But theLaw of Arms is not part of the common law(14) and the common lawCourts have no jurisdiction over matters of dignities andhonours(15), such as armorial bearings(16), or peerages(17). Inthis respect the Law of Arms may be regarded as similar to theecclesiastical law, which is a part of the laws of England, butnot part of the common law(18). The exclusivejurisdiction of deciding rights to arms, and claims of descent,was vested in the Court of Chivalry(19). As the substance of thecommon law is found in the judgments of the common law Courts, sothe substance of the Law of Arms is to be found in the customsand usages of the Court of Chivalry(20). The procedure was basedon that of the civil law, but the substantive law was recognisedto be English, and peculiar to the Court of Chivalry(21). However, unlike theecclesiastical law, which continues to be administered by a rangeof ecclesiastical Courts(22), there is now no regularlyconstituted Court in which the Law of Arms is administered, theHigh Court of Chivalry being obsolescent. Because the Court ofChivalry is now inactive, it is in the old decisions of thatCourt, and in the practices, ancient and modern, of the heralds,that we must look for the substance of the Law of Arms inEngland. Although the common lawCourts do not regard coats of arms as either property or as beingdefensible by action, armorial bearings are a form of propertynevertheless, generally described as tesserae gentilitatisor insignia of gentility. Armorial bearings are incorporeal andimpartible hereditaments(23), inalienable, and descendableaccording to the Law of Arms(24). Generally speaking, this meansthey are inherited by the male issue of the grantee, though theycan be inherited by the sons of an heraldic heiress, where thereis no surviving male heir.In England a grant ofarms does not ennoble a grantee in any sense, except that anarmiger (one who has the right to bear arms) is deemed to be ofthe status of a gentleman(25). He may of course be of higherrank, as esquire, knight, peer, or prince, but the grant of armsdoes not, in England, confer social rank(26).The Law of Arms asunderstood in Scotland consists of two principal parts, the rulesof heraldry (such as blazoning(27)), and the law ofheraldry(28). In contrast to the position in England, the Law ofArms is a branch of the civil law(29). A coat of arms isincorporeal heritable property, governed, subject to certainspecialities, by the general law applicable to such property. Thepossession of armorial bearings is therefore unquestionably aquestion of property(30). The misappropriation of arms is a realinjury, actionable under the common law of Scotland(31). A coat of arms is a fiefannoblissant, similar to a Scottish territorial peerage orbarony(32), the grant of which provides, as every Scottish patentof arms states, that the grantee is a "noble of the noblesseof Scotland"(33). While the degree towhich the general law recognises arms differs, in both Englandand Scotland a grant of arms confers certain rights upon thegrantee and his (or her) heirs(34), even if they may not beeasily protected. No person may lawfully have the same coat ofarms as another person in the same heraldic jurisdiction(35).Arms may not be assumed or changed at will(36). The absence of a remedyfor the illegal usurpation of arms in the law of England does notmean that there are no rights infringed, merely that it notwithin the jurisdiction of the common law Courts to act(37). Buthow then do armigers acquire arms in the first place? III. THELEGAL PROTECTION FOR COATS OF ARMSIn general, the right tobear coats of arms seems throughout the middle ages to have beenanalogous to the laws which governed the descent of fiefs, thoughclear rules only developed late(38). The Boke of St Alban(39)(1486) mentions four grounds on which a man might claim title toarms. These were inheritance, tenure of a particular fee oroffice, grant by a lord or prince, and capture from an enemy inbattle(40). However, it was a rule of the mediæval civiliansthat titles and matters of honour and dignity were orderedaccording to the customs of the every particular country(41).These grounds might therefore not apply in all countries.Mediæval writersgenerally believed that, in some circumstances at least, onecould assume arms(42). In the fourteenth century, the Italiancivilian Bartolus De Sassoferrato, father of international law,wrote that arms, like names, could be assumed as one pleased,provided that they were not borne by another before(43). Thisprincipal was adopted by Nicholas Upton, in his De StudioMilitarii(44). According to Upton, arms were assumed inEngland as late as the fifteenth century(45). This belief passedinto wide circulation by the publication of the Boke of StAlban(46). However, Bartolus DeSassoferrato's view was not universally held, even on theContinent, and a rival school of civilian writers maintained thatauthority was needed for the adoption of arms(47). Johannes DeBado Aureo(48) wrote in his Tractatus de Armis(49) (1360)that arms could be granted by other people than sovereigns, and,indeed, in the fourteenth century arms were frequently granted bya lord to his followers(50). Private heralds, men learned in theart and science of heraldry, occasionally, though notuniversally, also included the granting of arms among theirresponsibilities(51). Upton's assertion thatarms could be assumed at will was directly contradicted by JohnFerne in 1586(52). It is now accepted that it is illegal toassume arms(53). Nor do private individuals grant arms anylonger. The mere assumption of arms cannot itself establish alegally defensible title according to the laws of England(54).Arms could only be validly borne if acquired by right of birth(from a grant, or user from before the time of legal memory(55)),or grant from the Crown(56).In England (andScotland) the Crown's exclusive prerogative prevailed, as it didin many, though not all, European countries(57). This prerogativeis exercised on the Queen's behalf by her heralds, members of theCollege of Arms. The thirteen members of the Royal Household areappointed by the Sovereign to be her Officers of Arms-in-Ordinarywith special responsibility for armorial, genealogical,ceremonial and other similar matters(58).The kings of arms andheralds were incorporated by letters patent in 1484, as theCorporation of the Kings, Heralds and Pursuivants of Arms(59).The College itself has no authority, and the armorial prerogativeis exercised by individual kings of arms and heralds, subject tothe authority of the Earl Marshal, who authorises each individualgrant, by warrant.The prerogative to grantarms is exercised in New Zealand by the deputy to Garter King ofArms, the New Zealand Herald of Arms Extraordinary to Her MajestyThe Queen(60). These are the ministers of the Crown in relationto the Law of Arms, but what of the Court in which that law inadministered? IV. THECOURT OF CHIVALRYThe High Court ofChivalry, the Court Military of the Earl Marshal(61) and the onlysurviving civil law Court in England(62), originally exercisedboth criminal and civil jurisdiction(63). However, the common lawwas not within the cognisance of the Court of Chivalry, and thelaw administered by the Court, at least from the time of EdwardIII(64), was the Law of Arms, or marshal law, founded on thecivil law. The Court de Chivalrie,or Curia Militaris, should not, however, be confused with theCourts military, although this is the common translation of thename of the Court of Chivalry. Court of Knighthood moreaccurately reflects its role(65).It has generally beenassumed that statutes and ordinances of war were enforced in theCourt of Chivalry(66), and that modern Courts martial wereinstituted on account of the inadequacies of the Court ofChivalry(67). The Court of Chivalry however was never the Courtin which military law was administered, but was a permanentCourt, dedicated to deciding matters touching upon honour.It is in the civiljurisdiction of the Court of Chivalry that the Law of Armsrelating to armorial bearings was administered. The Court sat asa Court of honour, and its jurisdiction consisted in redressinginjuries of honour and correcting encroachments in matters ofcoat armour, precedency, and other distinctions of families.These and kindred matters of honour were not within thejurisdiction of the ordinary Courts of law(68), but were withinthe jurisdiction of the Court of Chivalry by prescription(69).This jurisdiction was limited by two statutes, 8 Ric II c 5(1384) and 13 Ric II st 1 c 2 (1389), both intended to curb theConstable and Marshal.After 1485, the Court ofChivalry was inactive, as its jurisdiction over contractstouching deeds of arms and of war out of the realm had beenrendered obsolete by the replacement of indentured troops by thenational militia as the principal military force of the country.Litigation of war within the realm ended with the end to thecivil wars. The only jurisdiction left was the "other usagesand customs" as defined by the Act of 1389, and appeals ofcrimes, other than treasons, arising outside the realm under astatute of 1399(70).From 1521 to 1563 theEarl Marshal, and his deputies, and Commissioners appointed toexercise the jurisdiction of the office, appear to have purportedto exercise the quasi-judicial jurisdiction over the College ofArms and the heralds, while the Court of Chivalry itself wasinactive(71). After the Civil Wars of the next century thisquasi-judicial jurisdiction was again revived(72).The Court of Chivalrywas revived again in 1687(73), but soon lost a great deal ofbusiness, when the common law Courts deprived the Court ofChivalry of all but a purely armorial jurisdiction(74).The jurisdictionformerly also included actions for slander, but Chambers vJennings(75) established that the Courts will not now permitthe Court of Chivalry to entertain an action which is cognisablein the Courts of common law(76). There is, of course, no suchcommon law jurisdiction over armorial bearings, nor, indeed,honours and precedence(77). However, this could not offer muchhelp to a plaintiff if the Court of Chivalry were no longersitting. After 1716 the Court wasagain in recess, though it enjoyed a brief revival 1732-37(78).But a Court of law does not cease to exist by falling intodisuse(79). The High Court ofChivalry has power to protect the lawful use of arms, but hasbeen singularly inactive(80). Some legislative protection forcertain categories of arms is provided however. In New Zealand ss684 (1) (7) and 696 of the Local Government Act 1974, and theFlags, Emblems, and Names Protection Act 1981 both provideprotection to some types of official arms. In the former case,the statute also empowers local councils to define their owncoats of arms, an action which is tantamount to assuming legallyvalid arms. Neither statute has general application however, andthere is no generally available legal protection for coats ofarms. The Court of Chivalryindeed awoke briefly from its slumbers in 1954 to decide the caseof Manchester Corporation v Manchester Palace of Varieties Ltd(81).The decision was not marked by any particular legal significance,but it did confirm the continued existence of the Court inEngland.It might perhaps havethought that the New Zealand High Court would have thejurisdiction to enforce the Law of Arms in New Zealand, since ithas assumed the full range of the varied jurisdictions of theEnglish Courts. However, for this to be so, the jurisdictionwould have had to have specifically bestowed by the JudicatureActs(82). As will be seen, this was not done. The jurisdiction of theNew Zealand High Court has always been defined in respect of thejurisdiction as previously conferred upon the Court. This wasoriginally defined in terms of the jurisdiction of Her Majesty'sCourts at Westminster, Courts which administered the common lawand equity, but not the Law of Arms(83). The primary source ofthe jurisdiction of the High Court is statutory, now found in theJudicature Act 1908, especially s 16. This general jurisdictioncan be traced through a series of statutes, from the originalconferral of prerogative authority in 1840, and the firststatutory authority, in 1841(84). The present provision is that:"The Court shallcontinue to have all the jurisdiction which it had on the cominginto force of this Act, and all judicial jurisdiction which maybe necessary to administer the laws of New Zealand(85)". This section encompassestwo separate elements, the prior jurisdiction of the Court, andthe necessary derivative common law jurisdiction. The SupremeCourt Act 1882(86) enacted the almost identical provision that:"The Court shallcontinue to have all the jurisdiction which it had at the time ofthe coming into force of this Act, and all judicial jurisdictionwhich may be necessary to administer the laws of NewZealand(87)". The original source ofthis jurisdiction is found in the Supreme Court Act 1860, that:"The Court withinthe Colony shall have jurisdiction in all cases whatsoever asfully as Her Majesty's Courts of Queen's Bench, Common Pleas, andExchequer, at Westminster and each of such Courts have or hath inEngland at the time of the passage of this Act(88)". The 1860 Act, whichclosely followed the wording of the Supreme Court Ordinance1841(89) and the Supreme Court Ordinance 1844(90), went on todescribe the equitable and other non-common law jurisdiction ofthe Supreme Court. Clearly, these enactments did not have theeffect of conferring upon the High Court the jurisdiction of theCourt of Chivalry, a jurisdiction which was never claimed by anyof "Her Majesty's Courts of Queen's Bench, Common Pleas, andExchequer, at Westminster". Specific words would have beenrequired to confer a jurisdiction in any law but the common law,as was done specially for the laws of equity, testacy, andlunacy(91).A prerogative act cannotconfer upon any body (such as the High Court, the College ofArms, New Zealand Herald Extraordinary or some new quasi-judicialbody(92)) the jurisdiction to administer the Law of Arms, as theSovereign cannot establish, merely by the exercise of the royalprerogative, a Court to administer any law but the commonlaw(93). Thus, while theSovereign is the fountain of all honour and dignity(94), andalthough the powers of the Crown in this respect areunlimited(95), the jurisdiction of the Court of Chivalry, whichadministers the Law of Arms and not the common law, must beexercised by that Court or by none, unless Parliament enactsotherwise(96). A revival of the quasi-judicial work of theCommissioners is unlikely, either in England or in New Zealand.But are the Law of Armspart of out legal inheritance, and do they actually apply in NewZealand? V. THEAPPLICABILITY OF THE LAW OF ARMS IN NEW ZEALANDIt was early establishedas a principle of imperial constitutional law that settledcolonies took English law(97). The laws of New Zealand are basedupon the reception of English laws in the middle of the lastcentury, when it was first settled as a colony(98). The EnglishLaws Act 1858(99) provided that the laws of England as existingon 14 January 1840 were deemed to be in force in NewZealand(100). They were however only to be in force so far asapplicable to the circumstances of the colony. The principle of thisAct has been followed in all relevant legislation passed by theNew Zealand Parliament since then. If any laws of arms wereinherited by New Zealand, it was the Law of Arms of England, in1840. The only imperial lawinherited from the United Kingdom now applicable are thoseenactments and subordinate legislation specified in the schedulesto the Imperial Laws Application Act 1988, together with thecommon law of England in so far as it was already part of thelaws of New Zealand(101). While "the laws of arms is notpart of the common law [of England]"(102) and is notdetailed in any of the scheduled legislation, it does not followthat the Law of Arms is not part of New Zealand law, despitedoubts having been raised(103). The Imperial LawsApplication Act 1988 covered Imperial enactments, and Imperialsubordinate legislation: it does not affect the pre-existingcommon law, nor the prerogative, nor any special laws such as theLaw of Arms(104).It has been establishedbeyond reasonable doubt that Canada, Australia and New Zealandeach acquired English law as it existed at the various times ofsettlement. But it was only those laws which were applicable totheir new situation and to the condition of a new colony(105). Itmight be questioned whether the Law of Arms was included(106),and it is not always easy to apply the test(107). English lawswhich are to be explained merely by English social or politicalconditions have no application in a colony, yet the Courts havegenerally applied the land law, which has a feudal origin. However, armorialbearings are a recognised form of personal property, and it mightbe expected that a settler took his armorial ensigns with him.Rules as to real property and conveyancing have been held to begenerally applicable in colonies, both settled andconquered(108).There was nothing in thespecific circumstances of New Zealand to render the reception ofthe Law of Arms less appropriate than elsewhere in the settledcolonies. The New Zealand Constitution Act 1852(109) made nospecial provision for heraldry, or for titles of honour, nor didthe constitutional arrangements of any other Commonwealthcountry. This was not however because it was felt that the Law ofArms was inapplicable to the colonial environment, but simplybecause it was a very minor aspect of the law, about which fewcared. As a part of the royal prerogative it would have beenunusual had it been included. Nor is there any reasonto suppose that coats of arms should be treated as inapplicablejust because peerages may be inapplicable(110). A coat of arms ismuch more portable (literally so) than a peerage. Like a peerage,coats of arms are not recognised by the common law Courts. It issubmitted that the Law of Arms was applicable in New Zealand in1840 and remains applicable whether the judicial jurisdiction ofthe High Court of Chivalry extends overseas or not. This view hasnot gone unchallenged however, particularly by those who wouldargue for an equal jurisdiction for Lord Lyon King of Arms. VI. THEPROPER AUTHORITY RESPONSIBLE FOR THE GRANT OF ARMS IN NEW ZEALANDThere has beensignificant rivalry between Garter King of Arms and Lord Lyon asregards their proper jurisdiction. In 1907 and 1913, in a jointopinion, the Law Officers of England, Scotland and Irelandadvised that Garter King of Arms was the proper authority forgranting arms overseas(111). In 1908 and 1914 the Home Secretarygave the Kings of Arms directions on the exercise of the royalprerogative, on the basis of these opinions. However, the directionsof the Home Secretary have not been accepted by Scottish heralds,who argue that these directions cannot over-rule the statute lawfrom which Lyon's powers are derived(112). This is quite correct,but directions can fetter the exercise, as Lyon is not legallycompelled to grant arms overseas. Her Majesty, through herpolitically-responsible Ministers, can generally instruct herservants how to exercise their powers, unless the exercise isfettered by statute, or they hold judicial office. Lord Lyon doeshold judicial office, but his grants are in his ministerial orexecutive capacity, not his judicial one.It has been said thatthe "constitutional probity of one Minister of the Crowntrying to limit the statutorily delegated executive power ofanother Minister must be open to some doubt"(113). HoweverLord Lyon is not a politically responsible Minister, so theSecretary of State for the Home Department, who was thenresponsible for advising the Crown as to the exercise of theroyal prerogative in Scotland, is constitutionally responsible.As far as the Secretary of State was concerned, Lord Lyon wasexceeding his discretionary authority in granting arms abroad. VII.AUTHORITY VESTED IN GARTERThe jurisdiction of theEarl Marshal, the inherent right of the kings of arms to regulatearms, and the power expressly delegated by the Sovereign to thekings of arms to grant arms, constitute the authority of theCollege of Arms(114). While the two subordinate English kings ofarms (and in Scotland, Lord Lyon King of Arms) exercise ajurisdiction which is territorially limited, Garter King of Armshas for long been held to have an imperial jurisdiction(115). Hehas granted arms in the Empire and Commonwealth, and toforeigners of British ancestry, for many centuries(116). The Earl Marshal, whowas described in 1672 as being "next and immediate Officerunder Us for Determining and Ordering all matters touching Armes,Ensigns of Nobility, Honour, and Chivalry..."(117) possessesboth executive and judicial authority over English arms(118). AsSquibb points out(119), the extension of the executive authorityof the Earl Marshal over the various colonies in the New World inthe seventeenth and early eighteenth centuries was the logicalconsequence of the colonists' continuance in law as Englishsubjects(120). Grants are made byGarter under the 1673 warrant of the Earl Marshal. In hisindividual commission, Garter is granted "authority powerand licence with the consent of the Earl Marshal of England ...of granting and appointing to eminent men Letters Patent of Armsand Crests" jointly with or without Clarenceaux and Norroyand Ulster Kings of Arms "according to the ordinances andstatutes from time to time respectively issued [by the EarlMarshal]"(121). All of these regulations have been regardedas being in force in New Zealand, the Earl Marshal retaining apower to regulate the exercise of the royal prerogative inrespect of the Law of Arms, by a species of delegatedlegislation(122). However, the Law of Armsowed more to the royal prerogative than to the common law, andthe applicability of the prerogative everywhere in the empire,whether settled, ceded or conquered, was never doubted(123). Theimperial jurisdiction of the Earl Marshal was held to extend tothe arms of at least some of the former Indian princes(124), andit must a fortiori extend to those British subjects overseaswhose arms have been granted by the College of Arms. TheSovereign also retains vestigial rights to grant armspersonally(125). The Crown in right ofthe United Kingdom undoubtedly has executive authority overBritish subjects wherever domiciled(126). Grants are validirrespective of the petitioner's place of residence(127).Although the English heralds claim extends to an exclusive rightto grant arms to all Commonwealth citizens, in reality they restrict theclaim to the old dominion countries(128).By virtue of the factthat the laws of New Zealand are legally based upon those ofEngland, the only proper authority for the grant of arms in NewZealand is the College of Arms, now exercising the prerogativedelegated by the Sovereign in right of New Zealand. Indeed, theNew Zealand Government does officially recognise the authority ofthe Earl Marshal and the Kings of Arms of the College ofArms(129). This is made clear bythe official recognition accorded the New Zealand deputy toGarter King of Arms, the New Zealand Herald of Arms Extraordinaryto Her Majesty The Queen(130). A further indication that theauthority of the English heralds is officially recognised is thatthe Statutes of the New Zealand Order of Merit recognises onlythose arms granted or confirmed by Garter King of Arms(131). It has been said thatthe imperial jurisdiction of the Earl Marshal and Garter King ofArms is difficult to support either from a plain reading of theirwarrants and commissions of office, or on the basis of theimportant negative evidence(132). But the weight of authorityappears to be otherwise.The authority of theEarl Marshal's Court to decide the Manchester Corporation vManchester Palace of Varieties Ltd(133) was clear, but theexistence and exercise of its judicial authority had no bearingof the exercise of the prerogative of granting arms belonging tothe Crown. Unfortunately, there has been a tendency in armorialcircles to confuse these executive and judicial functions. The ManchesterCorporation Case was concerned with the judicialauthority of the Earl Marshal's Court to regulate the use ofarms, and did not specifically consider the executive authorityof the kings of arms to grant arms. VIII.AUTHORITY VESTED IN LORD LYONIt is widely believedthat the Court of the Lord Lyon King of Arms has authority togrant arms to New Zealanders and other subjects of Her Majestyabroad, specifically for those who are of Scottish ancestry. Butif has been claimed further that "outside the United Kingdomthe executive armorial functions of the Earl Marshal and LordLyon are co-extensive rather than exclusive". Hence ..."grants of arms to non resident British subjects by theEnglish and Scottish Kings of Arms are entitled to equalrecognition in the British Commonwealth countriesoverseas"(134). This however is incorrect in both Scots andNew Zealand law. The belief in aco-extensive jurisdiction has not gone unanswered. The lateGeorge Squibb, QC has done much to clarify the law. The mostimportant piece of evidence relied upon by him is the Lord LyonAct 1867(135), especially s 1. This shows that, when acting outof his own country, Lyon is subject to the Earl Marshal(136). Bythis Act, the ministerial powers of Lord Lyon in relation to armsare confined to the territorial limits of Scotland(137). In armorial matters theKings of Arms are the Ministers to whom is delegated the exerciseof that part of the Royal Prerogative by which arms aregranted(138). By Commission the Sovereign grants Lord Lyon"Our full power liberty licence and authority of giving andgranting Armorial Bearings to virtuous and well deservingpersons, according to the rules and ordinances alreadyestablished"(139). In this case the ordinance is the LyonKing of Arms Act 1672(140). Agnew of Lochnawbelieved that this provides no limitation as to nationality,except in so far as this is implied by other laws(141). Hecontended that the armorial Ministers of the Crown have anunfettered discretion to exercise the prerogative and grant armsto whom they please, subject to the Law of Arms of theirjurisdiction(142). He contended that it is by convention onlythat Lyon restricts grants of arms to only those of Scottishdomicile or those with heritage in Scotland or to Commonwealthcitizens of Scots descent. He believed that it is similarly onlyby convention that English heralds grant arms only to thosedomiciled in England or the Commonwealth, and that theseconvention are not binding(143). But the Court of theLord Lyon has, by a statute of the former ScottishParliament(144) and more recent British legislation(145),authority only over the territory of Scotland. Garter King ofArms, exercising the authority of the Earl Marshal, is notsimilarly limited. Lord Lyon may in practice grant arms to thoseof Scottish ancestry, but it by no means certain that he shoulddo so, nor that this should extend to corporate bodies, such asthe University of Otago. It is not, as some have sought to argue,merely a question of preference for Scottish or English arms. The Lord Lyon is thesole authority for granting arms in Scotland(146). He hassignificant powers to enforce the Scottish Law of Arms throughthe Courts, for unlike in England, the Law of Arms in Scotland ispart of the general law, and justiciable in the ordinary Courts.The powers and jurisdiction of Lord Lyon are partly customary andpartly statutory in origin, and were confirmed by Acts in 1672and 1867(147). The Lyon King of ArmsAct 1672(148), the principal statutory source for the authorityof Lord Lyon, states that no person or corporate body in Scotlandis entitled to bear arms unless these are recorded in the PublicRegister of All Arms and Bearings in Scotland. The recording maybe due to grant, confirmation or matriculation(149). A granteeand their descendants are permitted to use the arms on apparencyfor three generations, but thereafter a matriculation isnecessary(150). Grants of arms have beenmade solely by Lord Lyon since at least as early as 1542(151).The usual procedure was to grant royal warrants ordering LordLyon to "give and grant" arms(152). Under the 1672 Acthe may grant arms to natural and corporate persons who aredomiciled in Scotland or who own heritage in Scotland(153).According to the Scots, Lord Lyon can also make grants tocitizens of any country of the Commonwealth of Scots descent, orfrom aliens who can show that they require to bear arms inScotland(154). A grant is usually made to the petitioner andother heirs of his grandfather(155). Crawford argued that thewording of Lord Lyon Act 1867(156) did not territorially limitLord Lyon's jurisdiction, but rather preserved it(157). Thisdisregarded the question which should have been asked first,namely, whether the Scottish Law of Arms can have any applicationin common law countries, when it is expressly said to be a partof Scots law(158). It also ignores the fact that the authority ofLord Lyon was already limited under the 1672 Act to persons andcorporate bodies in Scotland. Preservation of his authoritycannot amount to an extension of it. Section 1 of the 1867 Actprovided that:"[T]he Jurisdictionof the Lyon Court in Scotland shall be exercised by the Lyon Kingof Arms, who shall have the same Rights, Duties, Powers,Privileges, and Dignities as have heretofore belonged to the LyonKing of Arms in Scotland, except in so far as these arehereinafter altered or regulated(159)". Nor did the Union withScotland Act 1706(160) specifically preserve the armorialjurisdiction of the Lyon, as has been suggested(161). Article 19the Treaty of Union clearly preserved the authority of theCourt of Session and other Courts, but not necessarily theexecutive powers rather than the judicial jurisdiction of Courtof Lord Lyon. Article 24 refers merely to the rank andprecedence of Lyon being determined as best suited the Queen, anddoes nothing to extend his heraldic jurisdiction overseas. Agnewof Lochnaw argues however that the Lord Lyon Act 1867(162) onlylimits the judicial jurisdiction of Lyon Court, not theministerial powers of Lord Lyon(163), and that since the grantsare of Scottish arms, Lord Lyon is not acting outsideScotland(164).Sir Thomas Innes ofLearney has maintained that since Scotland is an equal partner inthe United Kingdom with England, the legal position regarding anynew grant of arms by the Officers of Arms of either country issomewhat analogous to that regarding English and Scottish peeragecreations between 1603 and 1707(165). This is aninteresting suggestion, but unfortunately it does not help hiscase. Further, it shows an ignorance of constitutional law, as itignores the effect of Calvin's Case(166). Calvin's Case wasapproved by the House of Lords in Lord Advocate v WalkerTrustees(167). The essence of Calvin's Case was thatScottish peers were not recognised as peers in England. Ifthe analogy were properly applied, Scottish arms would not berecognised by English law. Indeed, Scottish and Irish peers haveonly been recognised as entitled to the privileges of peerage inEngland since the Union with Scotland Act 1706(168) and the Unionwith Ireland Act 1800(169), and only then because of expressstatutory provision. Both before and after1867 the letters patent appointing Lord Lyon have included aterritorially descriptive title to the office of Lyon, but ineach the actual concession of armorial authority by the Sovereignis made without such limitation(170). Squibb maintains that theform of appointment of Lyon has changed much since the Lyon CourtAct 1867, but Crawford disagrees(171). On 26 May 1796 LettersPatent (which were in Latin) appointed the notoriouslyincompetent Robert Auriol Hay, 9th Earl of Kinnoull as Lyon.According to Crawford, the wording was no wider than that of the1890 letters patent. Crawford maintains thatif the phrase "in that part of Our United Kingdom calledScotland" were intended to be more than merely descriptive,it might be expected that it would be repeated in connection withsome limitation of the royal "power, liberty, licence andauthority of giving and granting armorial bearings...".However, this view ignore the words "according to the rulesand ordinances already established for that purpose". Armsare not granted in isolation, there must be a Law of Arms. Thereis, but that of Scotland was, and remains, different from that ofEngland. This elementary observation must be made because of thetendency to ignore this point when discussing imperialjurisdiction.Since 1867, the letterspatent creating a new Lyon have described him as "Lord LyonKing of Arms in that part of Our United Kingdom calledScotland"(172). The Royal Warrant of 9 March 1905 forprecedence in Scotland similarly interpolates "inScotland"(173). Lord Lyon has a legal duty to determine theextent of his executive authority in each case(174). However,this is subject to review by the Court of Session. Thejurisdiction of the Court of the Lord Lyon in questions ofprecedence(175) or clan chiefships(176) was rejected by the Courtof Session, but Lord Lyon does not regard those decisions asbeing final(177). Lord Lyon may haveauthority to grant arms overseas which are valid in Scotslaw(178), but they are not recognised by the Law of Arms ofEngland, nor in any country in the Commonwealth, nor recognisedby local laws unless by the rules of private internationallaw(179). Grants of arms had been made to persons not domiciledin Scotland before the passage of the 1867 Act, and nothing hadbeen done to prevent the continuation of this practice(180). Theright to grant arms to persons who sought cadet-matriculations ofpreviously extant Scots arms, or who sought arms by virtue ofownership of land in Scotland still falls to the Lyon as a purelyScottish officer, and does not imply an extra-territorialjurisdiction(181). The holder of a foreigncoat of arms, or of an English, must matriculate his arms in hisown name with such differences as may be necessary to distinguishthem from any recorded Scottish coat of arms, if he wishes tobear them in Scotland(182). Lyon will recognise asubstantive grant by a competent authority. However, honorarygrants of arms by the English kings of arms are not recognisedfor the purpose of recording arms in Scotland. Nor will foreignarms be matriculated by Lyon if the petitioner is subject toLyon's jurisdiction, on the grounds that they should have soughta new grant from Lyon(183). It has been argued that Scotland andEngland have a common Crown, and therefore Garter and Lyon shouldhave equal power(184). This of course is incorrect, since theCrown may be one(185), but the officers are separate. Lord Lyonis a Scottish officer, Garter an English and imperial officer.The Law of Arms inScotland is that administered by the Court of Lord Lyon, andnever constituted a part of the laws of England, so cannot havelegal force in New Zealand. Laws of Arms of Scotland and Englandare different. IX.ADVENT OF DOMINION STATUSWhatever their originalposition, since independence all Commonwealth countries arerecognised by international law as sovereign states. However,where the Queen is head of state, it is in a different capacityfrom that in which she is Queen of the United Kingdom. Garter isappointed by the Sovereign of the United Kingdom, but this doesnot necessarily invalidate any exercise by him of the royalprerogative in those countries(186). Until an independent NewZealand heraldic authority is created, receiving from the Crown adirect delegation of the royal prerogative to grant arms, theproper and legally correct authorities to grant arms in NewZealand are the kings of arms and heralds the College of Arms. Ithas been said that because the Crown of New Zealand (or Canada orAustralia) is different to that of the United Kingdom, then it isinappropriate for members of the College of Arms(187) to be theheraldic authority for these distinct sovereignties. It may bethat it is inappropriate for this to continue, but the kings ofarms have clearly not lost the legal right to regulate arms inthe Queen's overseas dominions. Agnew of Lochnaw asked,if the English claim to an exclusive jurisdiction is correct, arethese English arms being granted to a citizen of a differentsovereign nation, or are they a new species of national arms? Isa grant by Garter to a Canadian a grant of English or of Canadianarms? He thought that if they are Canadian arms, it is for thelaw of Canada to determine how the royal prerogative to grantarms is to be exercised, and what their status is to be inCanada. If they are Canadian arms, then their use in England isthe use of arms which are foreign(188). If they are English arms,which appears more likely, then Canada will apply her privateinternational law rules to determine what effect in Canada willbe given to English grants(189). How does this apply to NewZealand? X. NEWZEALANDIn 1975 it was decidedto not establish an independent heraldic authority in NewZealand, but to continue to make use of the College of Arms(190).This decision was, according to Macaulay constitutionallyinappropriate, but was certainly efficient(191). There had previouslybeen proposals for a New Zealand King of Arms, to be under theEarl Marshal and Garter Principal King of Arms, and within theCollege of Arms, before the 6 February 1978 appointment ofPhillip O'Shea(192) as the New Zealand Herald of ArmsExtraordinary to Her Majesty The Queen(193). The essentialvalidity of the appointment by royal warrant of the Queen of NewZealand addressed to the Earl Marshal of England, without theSovereign of the United Kingdom interponing authority to thewarrant has been questioned(194). But the prerogative of theSovereign may be delegated to whomsoever she pleases. This was a simplerarrangement, and one better reflecting the lower profile ofheraldry in this country. New Zealand Herald Extraordinary is therepresentative in New Zealand of the College of Arms. As anextraordinary herald, he is not a member of the College, and hasthe same (limited) authority as any Herald Extraordinary.However, in practice much of the work in New Zealand of theCollege of Arms is delegated to him(195). Since the appointment ofNew Zealand Herald, letters patent issued by the College of Armsto New Zealanders have de-emphasised their English origins(196).They bear the New Zealand royal style, rather than that of theUnited Kingdom(197). It is not clear whether grants are under theroyal prerogative of the Queen of the United Kingdom, or of NewZealand(198), but this makes little difference in practice, asthe Laws of Arms are the same in each jurisdiction. Since 1978, the positionof armorial bearings in New Zealand has remained largelyunchanged. The Flags, Emblems, and Names Protection Act 1981 wasintended to protect various emblems, such as the royal crown,from false use. It was recommended at that time that protectionought to be extended to coats of arms, but this was notdone(199). The Act does howeverprovide protection against the unauthorised use for the RoyalArms, Royal crown, Royal coronet or Royal cypher, Royal Standardor Sovereign's personal flag for New Zealand or theGovernor-General's Flag(200). It is an offence to alter the NewZealand Flag(201). It is also illegal to use any representationof the coat of arms of New Zealand, the Seal of New Zealand, orany emblem or official stamp of any Government department(202). One recent change, andone which has not pleased some(203), is that the Statutes of thenew New Zealand Order of Merit provide recognition only for thosewith armorial bearings granted or confirmed by Garter King ofArms(204). There is also a Herald for the Order(205). Althoughnot a member of the College of Arms, and not entitled to grantarms in his own right, his duties include preparing certificatesfor the Garter for the grant of supporters for Knights and DamesGrand Companions(206). He is akin to the private heralds of theBritish Orders. XI. THEPOSSIBLE INCORPORATION OF THE LAW OF ARMS INTO THE COMMON LAW BYJUDICIAL DECISIONThe Law of Arms is inthe difficult position of applying in New Zealand, yet having noCourt in which it disputes can be decided. One possible solution,apart from legislation, is indicated by the example of the LawMerchant.Those laws which formpart of the laws of England, but not of the common law, includethe ecclesiastical law and the Law of Arms. However, the moderncommercial law also grew out of the custom and usages of themerchants, known as the Law Merchant. Some of these customs werewritten down, and became a code of international commercialcustoms. In the Statute of the Staple 1352-3(207) this wasrecognised as part of the law of England, though it is unclear towhat extent it was systematised in England. Gerard de Malynesregarded Law Merchant as customary law approved by the authorityof all kingdoms and not as law established by the sovereignty ofany prince(208). Like the canon law-basedecclesiastical law, it was the "law of allnations"(209). However, the growing power of the royalCourts from the fourteenth century weakened that of the localmerchants' Courts(210). The absence of a reception of Roman civillaw, unlike other parts of Europe, the relative geographicalisolation, and the commercial weakness of England before thesixteenth century all contributed to the law merchant developingdifferently in England to on the continent(211).In Tudor times the HighCourt of Admiralty became really active, and developed its fullmercantile and maritime jurisdiction. However, up to 1606 themercantile law remained a special law administered by specialCourts for a special class of people(212). In the period 1606 to1756 the special Courts (known as Pie Powder Courts, andcomprised of merchants) declined(213). This was due in large partto the attacks of the common lawyers. The elasticity of theaction on the case enabled the common law judges in the laterpart of the sixteenth and seventeenth centuries to absorb the lawmerchant into their own system, while preserving its peculiaridentity. Proceedings were brought on an action on the case onthe custom of merchants, the details of the custom being pleadedat first as facts(214). If the contract had been made abroad,jurisdiction was obtained by the fiction that it had been made atthe Royal Exchange or in Cheapside. The decline of theStaple Courts, where the lex mercatoria or Law Merchantwas administered, was largely due to Sir Edward Coke, who oversawthe acquisition by the common law Courts of most of thecommercial litigation from the early part of the seventeenthcentury(215). As early as 1606 Coke was able to assert that thelaw merchant was part of the law of this realm(216). He alsolimited the custom of merchants' cases in the Admiralty Court,the sole surviving Court administering the lex mercatoria,to those instances where the contract had actually beenentered into on the high seas(217). Towards the end of theseventeenth century it became unnecessary to plead that one ofthe parties to an action were a merchant, and once a consideredjudgment on a custom had been given, the custom was judiciallynoticed, and no proof of it were needed in later cases(218).Following upon theinitial groundwork prepared by Chief Justice Holt, from 1756 LordMansfield led the way in the development of the Law Merchant intothe commercial law of modern times. Mansfield, and his followers,built up the Law Merchant as an integral part of the common law,relying on the writings of foreign jurists for internationalcustom, and special juries of merchants for current trade customsand findings of fact. What was onceinternational and customary law has become a national and fixedbody of law by the use of case law and precedent. However, thelaw merchant remains a living body of principles which may beextended by proof of a new custom(219). It would not be beyondthe realms of possibility for a judge like Lord Mansfield to findthat the common law Courts could take cognisance of the Law ofArms, and leave it to others to thereafter gradually incorporateit into the common law. Such an approach would be quite tenable,especially given the absence of a New Zealand Court exercisingthe jurisdiction of the Court of Chivalry. Unfortunately,judicial activism is not what it once was, and stare decisis,together with the constraints imposed by the Judicature Acts,would be likely to prove insurmountable barriers to theassimilation of the Law of Arms into the common law of NewZealand(220). XII.CONCLUSIONThe Law of Arms ofEngland has been incorporated into New Zealand law. The use ofcoats of arms is subject to this special law. However, whilethere is at present no Court to administer the law, the lawitself is clear. Grants of arms are made by the Crown, and in theabsence of any special delegation, this prerogative is exercisedby the Earl Marshal and his servants in the College of Arms. Thusthe absence of a judicial organ in New Zealand does notinvalidate the exercise of the executive powers conferred by theroyal prerogative.A partial delegation ofthe prerogative of arms has in fact been made, with theappointment in 1978 of a New Zealand Herald of Arms Extraordinaryto Her Majesty The Queen, and it is to him that New Zealandersshould turn for grants of arms.topAddendumnot published in the New Zealand Universities Law ReviewXIII.AUSTRALIAN SITUATIONWhile there may be afeeling among some lawyers in Australia that there is no legalsignificance in that country to a grant of arms(221), thatposition is not justified in law. The Australian Pilot toHalsbury's Laws of Englandi(222) included the statement thatthe Laws of England title "peerages anddignities"(223) had no application in that country(224), butthis is clearly incorrect, as that title included knighthood aswell as heraldry. Knighthood is a personal dignity undoubtedlyrecognised in every part of the Queen's dominions(225), not justin one particular kingdom(226). Australians were created knights,both by the Australian Governor-General and state governors, andby the Queen personally. That part relating to knighthood atleast was applicable to Australia. It is clear that the sectionon the Law of Arms was also applicable to Australia(227).The Law of Arms is asapplicable in Australia as elsewhere in the Queen's realms(228).The laws of Australia are based upon the reception of Englishlaws at various dates from the end of the eighteenth century,when parts of the continent were first settled as a colony(229).The states each have their equivalent of the New Zealand EnglishLaws Act 1858, which provide that the laws of England as existingon a certain precise date are deemed to be in force in the state.As in New Zealand, in Australia the Law of Arms of England hasbeen incorporated into domestic law, though not the lawadministered by the common law Courts. A significantdistinction which must however be drawn between the situation inNew Zealand and Australia is that whereas New Zealand is aunitary state, with one set of laws for the whole country,Australia has a federal system of government, with a division ofpowers and responsibilities(230).The authority to grantarmorial bearings is a part of the royal prerogative(231). Likethe Law of Arms itself, the royal prerogative is generallynon-justiciable (or non-reviewable by the Courts), though theirextent is(232). It is a judicial rule that the royal prerogativeis as extensive overseas as it is in the United Kingdom(233). Itis clear that the major prerogatives apply throughout theCommonwealth(234). These are applied as a "pure question of.... common law" even in a country, such as Malta, where thecommon law is not in force(235). A Governor orGovernor-General, although representing the Sovereign, does notautomatically have authority to exercise the royalprerogative(236), since he or she possesses only those powersconferred on him or her(237). In each case the question must turnupon the constitution or statute law of the country concerned orthe terms of the delegation by the Sovereign. In Australia thisis based on ss 2 and 61 of the Commonwealth of AustraliaConstitution Act 1900(238). Section 61 states that:"The executivepower of the Commonwealth is vested in the Queen and isexercisable by the Governor-General as the Queen'srepresentative, and extends to the execution and maintenance ofthis Constitution, and of the laws of the Commonwealth".Section 2 provides that:"A Governor-Generalappointed by the Queen shall be Her Majesty's representative inthe Commonwealth, and shall have and may exercise in theCommonwealth during the Queen's pleasure, but subject to thisConstitution, such powers and functions of the Queen as HerMajesty may be pleased to assign to him".No prerogatives areexpressly delegated to the federal or state governments(239). Inpractice some prerogatives were retained by the Sovereign, othersdelegated to the Governor-General. Yet others may be exercised bythe state Governors, either exclusively, or jointly with theGovernor-General.In 1954 there was anexpress delegation to the Governor-General of the power toappoint ambassadors(240). It was assumed that this power has notbeen conferred upon the Governor-General by the Commonwealth ofAustralia Constitution Act 1900(241), nor included among thepowers conferred by the 1900 Letters Patent Relating to theOffice of Governor-General of the Commonwealth of Australia, 29October 1900. If the power to appoint ambassadors was notdelegated, it was probable that the honours prerogative was noteither. Exercise by the Governor-General or state governors wouldrequire express authorisation by the Queen.The delegated power toconfer certain awards on servicemen for gallantry in Vietnam wasconferred on Australia and New Zealand in 1968(242). But therehas been no delegation of the honours prerogative comparable tothat in Canada in 1947(243). The creation of new awards reservedto the Queen, and appointments made by the governors and by theGovernor-General on the advice of their respective chiefministers(244). In practice, the republican government of PaulKeating instructed the Governor-General to approve honours in theQueen's name. Coats of arms, armorialbadges, flags and standards and other similar emblems of honourmay only be borne by virtue of ancestral right, or of a grantmade to the user under the authority of the Crown(245). As suchthey are akin to honours, though this status should not beexaggerated. Yet, even in Canada, the prerogative to grant armswas not delegated until 1988(246), it having been regarded as notcovered by the 1947 letters patent (though not expresslyexcluded). Nothing was done before 1988 about the heraldicprerogative, probably because it was either overlooked, orbecause it was not personally exercised by the Queen in any case.The situation inAustralia now is that armorial bearings remain the only aspect ofthe royal prerogative not delegated to the AustralianGovernor-General and state governors. Had the prerogative beenexercised by the Queen personally, it is probable that it wouldhave been delegated. While Australia isre-considering its membership of the supra-national family ofnations recognising Elizabeth II as their Sovereign, it is timelyto consider following the example of New Zealand and Canada andestablishing, by a simple act of the prerogative, an Australianheraldic authority. Whether the minimalist New Zealand example,or the much more ambitious Canadian example is followed, willdepend upon the perceived level of interest in heraldry inAustralia. But it is better to make use of existing assets,rather than to develop new forms in the face of political apathyor hostility.topHome(1) The principalScottish herald and head of the Court bearing this title.(2) See Sir CrispinAgnew of Lochnaw, "The Conflict of heraldic laws"(1988) Juridical Review 61; Squibb, "Heraldic Authority inthe British Commonwealth" (1968) 10 Coat of Arms (no 76)125.(3) According to theScottish herald and advocate, Agnew of Lochnaw, the root of thisquestion of jurisdiction is private international law, as well asthe exercise of the royal prerogative: Agnew of Lochnaw, supra n2. (4) G D Squibb, TheHigh Court of Chivalry (1959) xxv-xxvi.(5) It once coveredprisoners of war: Totesham v Garenseres (1351), cited inSquibb, ibid, 166 n 6; and appeals of treason: "solonc laley & usage d'armes", Rotuli Parliamentorum iii604.(6) For example, StGeorge v Tuckfield (1637) Reports of Heraldic Cases in theCourt of Chivalry 24; Prust v Saltren (1637) Reports ofHeraldic Cases in the Court of Chivalry 25.(7) Though the only casein which an undoubtedly armigerous defendant was accused ofmisusing arms was Oldys v Fielding (1702) Reports ofHeraldic Cases in the Court of Chivalry 102.(8) Squibb, supra n 4,138.(9) As in Halsbury'sLaws of England (3rd ed, 1960) vol 29, 239-270.(10) The Crown'sprerogative as fount of honour remains exercisable personally bythe Sovereign. (11) The position ofUlster grants is considered in Sir Christopher Lynch-Robinson& Adrian Lynch-Robinson, Intelligible Heraldry. Theapplication of a Mediæval System of Record and Identification toModern Needs (1948) 112-113. Prior to 1922, arms granted byUlster King of Arms, now an officer of the College of Arms and an"English" herald, were undoubtedly governed by theIrish law: Agnew of Lochnaw, supra n 2, 62. (12) Paston v Ledham(1459) YB 37 Hen VI, Pasch 18 per Nedham J.(13) Manchester Corpv Manchester Palace of Varieties Ltd [1955] 2 WLR 440; [1955]1 All ER 387; [1955] P 133 per Lord Goddard. As early as Scroopv Grosvenor (1389) Calendar of Close Rolls, Ric II, vol 3,586, it was established that a man could have obtained at thattime a definite right to his arms, and that this right could beenforced against another.(14) R v Parker(1668) 1 Sid 352; 82 ER 1151 per Keeling CJ.(15) Manchester Corpv Manchester Palace of Varieties Ltd [1955] 2 WLR 440; [1955]1 All ER 387; [1955] P 133 per Lord Goddard.(16) Duke ofBuckingham's Case (1514) Keil 170; 72 ER 346.(17) Earl Cowley vCountess Cowley [1901] AC 450 (HL).(18) Bishop of Exeterv Marshall (1868) LR 3 HL 17.(19) Scroop vGrosvenor (1389), supra n 13. The Court of Chivalry is thesubject of a chapter by Sir Edward Coke, Coke upon Littleton(1979) vol 4, ch 17. (20) Puryman vCavendish (1397) Close Rolls 21 Ric II p 1 m 5. The opinionamong lawyers is good evidence of what the law is: Isherwood vOldknow (1815) 3 M & S 382, 396; 105 ER 654 per LordEllenborough; applied in Manchester Corp v Manchester Palaceof Varieties Ltd [1955] 2 WLR 440, 448 per Lord Goddard.(21) Cases were triedsecundum legem et consuetudinem curie nostre militaris: Purymanv Cavendish (1397) Close Rolls 21 Ric II p 1 m 5. This wasrecognised by the common law Courts: Paston v Ledham(1459) YB 37 Hen VI, Pasch 18 per Nedham J.(22) Now largelygoverned by the Ecclesiastical Jurisdiction Measure 1963 (UK).(23) For a discussion ofcorporeal and incorporeal property, see Cox, "The BritishPeerage: The Legal Standing of the Peerage and Baronetage in theOverseas Realms of the Crown with Particular Reference to NewZealand" (1997) 17 NZULR 379.(24) Arms descend, withdue and proper differencing, in the first instance to maledescendants of the grantee, and then through females as heraldicheiresses in the event of the failure of the male line, asquarterings: Wiltes Peerage Case (1869) LR 4 HL, 126, 153per Lord Chelmsford.(25) See, for example,AC Fox-Davies, A Complete Guide to Heraldry (1985) ch 2.This has not however always been the case. As the phraseologyused in early English grants show, they were in effectennoblement, the insular equivalent of the grants of nobility byletters patent which were common on the continent, particularlyin France: Lucas, "Ennoblement in late mediævalFrance" (1977) 39 Mediæval Studies 239-60. (26) Gayre mistakenlybelieved that Lord Goddard's acceptance that coats of arms were adignity must mean that they are a nobiliary rank: Robert Gayre ofGayre and Nigg, The Nature of Arms (1961) 58-59. Thepossession of armorial bearings is intended more as a recognitionof an established status, rather than a means of improving socialstatus. Although the right to bear arms must be regarded as adignity since it depends upon the exercise of the royalprerogative, it would be a mistake to assume that this in any waymakes it an honour. (27) The technicaldescription of a coat of arms, written in the peculiar patois ofthe heraldist.(28) It is said thatLord Lyon has authority to prescribe new heraldic rules if theLaws of Arms are deficient: Act in favour of the Lyon King ofArms against painters, goldsmiths and others who issue coats ofarms to persons not privileged to wear them: Registers of thePrivy Council of Scotland, 2nd Series, vol 3,594. It is, however,not clear that this was intended to cover the laws of arms ormerely the rules of heraldry. The latter is more likely.(29) More correctly, ofthe old common law of Scotland: Macrae's Trustees v Lord LyonKing of Arms [1927] SLT 285.(30) M'Donnell vM'Donald (1826) 4 Shaw 371, 372 (NS 374, 376) per LordRobertson.(31) Royal WarrantHolders v Alexander & Co 21 March 1933 Scotsman 22 March(Lyon Court).(32) Maclean ofArdgour v Maclean 1941 SC 683, line 35, reaffirming M'Donnellv M'Donald (1826) 4 Shaw 371. Since Lyon King of Arms Act1672 (24 Chas II c 47) (Sc) all arms in Scotland are regarded asincorporeal heritage: Sir Thomas Innes of Learney, ScotsHeraldry (1978) 13. Ownership of heritage makes the owner afeudal vassal of the Crown: Haldane v York Building Co(1725) Rob 521.(33) The wording used inthe letters patent of Lord Lyon granting armorial bearings are"by demonstration of which Ensigns Armorial he and hissuccessors in the same are, amongst all Nobles and in all Placesof Honour, to be taken, numbered, accounted and received asNobles in the Noblesse of Scotland".(34) Compare Sir AnthonyWagner, The Work of the College of Arms, III: Searches forArms (undated) 1, and Innes of Learney, Scots Heraldry(1956) 95-96, 99.(35) In England a personcan have only one coat of arms, although this rule does not applyin Scotland: J Dallaway, Inquiries with the Origin andProgress of the Science of Heraldry in England. With explanatoryobservations on armorial ensigns (1793) 368.(36) G D Squibb, TheLaw of Arms in England (1967); Innes of Learney, supra n 32,77-79.(37) The Oath whichKings of Arms took reflected their role as arbiters of heraldry,even before they acquired exclusive authority to grant arms. Thismay be seen in the Statutes and Ordinances to be kepedin time of Werre, purported to date from the 27th day ofFebruary of the ninth year of the reign of Richard II, reprintedby Sir Travers Twiss (ed), The Black Book of the Admiralty(1965) Rolls Series vol I, 296, from the Lincoln Inn mss, no xlvi(volume named Liber Niger Admiral. Leg. Exerc. Nobilis).(38) M Keen, Chivalry(1984) 129.(39) W de Worde (ed), d,VII-VIII.(40) The latter groundbeing very rarely found, and all known examples are from a lateperiod, the earliest being by the Black Prince from King John ofFrance, at Poitiers: Keen, supra n 38, 129-130.(41) Gayre of Gayre andNigg, supra n 26, 58-59; Squibb, supra n 4, 164; A Collins, Proceedings,Precedents and Arguments on Claims and Controversies ConcerningBaronies By Writ (1734) 63.(42) The practice ofassuming armorial bearings has continued, at least as regardsburger arms, in a number of countries, such as Switzerland.(43) "De Insigniiset Armis", printed in Jones (ed), Mediæval Heraldry;Some fourteenth century heraldic works (1979) 224-52; Scroopv Grosvenor (1389), supra n 13.(44) F P Barnard (ed), TheEssential Portions of Nicholas Upton's De Studio Militari before1446 (1931) (trans J Blount) 48.(45) Ibid.(46) Wynkyn de Worde(ed), d, VII-VIII, reprinted in Dallaway, supra n 35, AppV, cxii.(47) See Sir GeorgeMackenzie of Roxhaugh, Lord Advocate of Scotland, The Scienceof Heraldry, Treated As A Part of The Civil Law, and The Law ofNations (1680) 11, and the authorities there cited.(48) He has beenidentified as John Trevor, Bishop of St Asaph; Squibb, supra n 4,178-179.(49) Printed in E Jones(ed), supra n 43.(50) The earliestprincely grant seems to be of the Emperor Lewis of Bavaria in1338, although they were common by the end of that century; SirAnthony Wagner, Heralds and heraldry in the Middle Ages (1956)65, 122.(51) Richard Strangways'unpublished Tractatus nobilis de lege et exposicione armorum,written in the 1450s, argued that arms might be granted by aherald or pursuivant: BM Harl ms 2259 f 109b, cited in Squibb,supra n 4, 179 n 3.(52) Blazon ofGentrie (1586) 224; see also Sir Harris Nicolas, TheControversy between Sir Richard Scrope and Sir Robert Grosvenorin the Court of Chivalry, AD 1385-1390 (1832) i, 1-357.(53) Austen v Collins(1886) 5 LT 903.(54) User since timeimmemorial also gives a good title, under civil law as under thecommon law. It has been suggested that it follows thatprescription gives a right to arms: Baildon, "Herald'College and Prescription" (1904) 8 The Ancestor 113; Anon,"The Prescriptive Usage of Arms" (1902) 2 The Ancestor40, 47. Squibb has pointed to the flaws in these views. Use ofarms never gave right, and was only ever evidence of immemorialuse: Squibb, supra n 4, 179-185.(55) For the Law of Armsthis was from 1066, rather than 1189, as for the common law, seeSquibb, ibid, 180-181 n 3. The Court was prepared however toaccept that evidence of user from before the time of livingmemory raised a presumption that the user had continued for thenecessary period: Squibb, ibid, 183; cf Angus v Dalton (1877)3 QBD 85, 89-90 per Lusk J.(56) It has always beenassumed that this is the prerogative of the English Crown: StrathmorePeerage Case (1821) 6 Pat 645, 655 (HL). This was argued byDr William Oldys, King's Advocate, in pleadings before the Courtof Chivalry from 1687: Squibb, supra n 4, 183-184.(57) The jurisdiction ofthe pre-heraldic Court of Chivalry to decide dispute to arms wasbased on the Law of Arms, not the royal prerogative. This wasreinforced by the exclusive jurisdiction of the Court of Chivalryto determine the right to arms: Scroop v Grosvenor (1389),supra n 13.(58) Scroop vGrosvenor, ibid, established that the Crown had supremecontrol and jurisdiction over armorial bearings, and could anddid grant arms. From 1467 the right of the Crown to issue patentsof arms was explicitly asserted. However, until late in thefourteenth century at least, the English royal heralds themselveshad no control over the design of arms, or who bore them, beingresponsible only for recording and identifying the various coatsof arms.(59) On the death ofKing Richard III his acts were declared void, and the College ofArms received a new charter in 1556. However, the existence orabsence of legal authority for the collegiate government of theCollege did not affect the heraldic jurisdiction of theindividual Kings of Arms and heralds.(60) See infra p 240.(61) The Earl Marshal,an office hereditary in the family of the Duke of Norfolk, wasdeputy to the Constable. The latter office is now dormant exceptfor coronations.(62) See Squibb, supra n4. However, the substance of the canon law administered by theecclesiastical Courts of the Church of England is stronglyinfluenced by the civil law: Statutes, Decrees and Regulations ofthe University of Oxford (1973) tit. IV s xiii, 4; Rules of theVice-Chancellor's Court, rule 21. (63) The early pleas ofarms are few, and the reports scanty, except for the three greatcases of the era: Scroop v Grosvenor (1389), supra n 13; Lovelv Morley (1386); and Grey v Hastings (1410). Thelatter two cases are cited by Sir Anthony Wagner, Heraldry inEngland (1946) 14-15.(64) Keen, "TreasonTrials under the Law of Arms" (1962) 12 Transactions of theRoyal Historical Society 85.(65) See Squibb, supra n4, 2-12.(66) As, for example, inR v Nelson & Brand (1867) Special Report (2nd ed) 92per Cockburn CJ. This belief does not, however, appear to datefrom before Hale: Sir Matthew Hale, History of the Common Law (3rded, 1739) 38-39.(67) Sir WilliamHoldsworth, A History of the English Law (1956) vol 1,576.(68) Duke ofBuckingham's Case, supra n 16.(69) Sturla v Freccia(1880) 5 App Cas 623, 628. Pleas of arms were heard by the Courtof Chivalry from at least as early as the fourteenth century, thefirst known case being a dispute between Nicholas Lord Burnelland Robert Lord Morley in 1348. See also Scroop v Grosvenor (1389),supra n 13. (70) 1 Hen IV c 14(Eng). See Squibb, supra n 4, 29-40. The criminal jurisdiction ofthe Court in appeals of treason and homicide were abolished by 59Geo III c 46, though long since obsolete.(71) Squibb, supra n 4,39-40. (72) Royal declarationof 16 June 1673, confirmed by Order in Council 22 January 1674;College of Arms mss I 26 ff 55-56, cited in Squibb, supra n 4,79-80. The Court itself, revived in 1622, had ceased to sit after1641: Letters patent, 1 August 1622, College of Arms mss, SML 3 f228, printed in Squibb, supra n 4, appendix III, 248. (73) Letters patent 13August 1687, printed in Squibb, supra n 4, appendix IV, 240.(74) Oldis v Dommille(1696) Show PC 58; 1 ER 40; Russell's Case (Oldys v Russell)(1692) 1 Show KB 353; 4 Mod Rep 128; 87 ER 301. Russel's Caseestablished that a private person was not punishable for makingarms, ordering funerals without authority, or painting armscontrary to heraldry. This was because infringement of theherald's privilege gave rise to an action on the case, whichcould only be heard in a common law Court. (75) (1702) 7 Mod Rep125; 87 ER 1139.(76) Both on the basisof 8 Ric II c 5 (1384) (Eng), and because of the jealousy of thecommon law Courts, encouraged by Sir Edward Coke in particular. (77) The King's Benchhad held that the Court of Chivalry had jurisdiction overdisputes as to precedence: Ashton v Jennings (1675) 2 Lev133. Squibb could not identify any traces of the exercise of sucha jurisdiction in the surviving records of the Court, thoughinstances of such disputes could be found among the disputesdetermined by Commissioners prior to the revival of the Court in1622: Squibb, supra n 4, 143.(78) The last caseconcluded was Blount's Case (1737) 1 Atk 295; 26 ER 189. (79) R v Mayor &Jurats of Hastings (1882) Dow & Ry KB 148; R v WellsCorporation (1836) 4 Dowl 562.(80) Lord Goddardsuggested that the Court be placed upon a statutory basis beforecommencing any new period of activity: Manchester Corp vManchester Palace of Varieties Ltd [1955] 2 WLR 440, 449,450-1.(81) [1955] P 133;[1955] 2 WLR 440.(82) The reorganisationof the judicial system in England, brought about by theJudicature Act 1873 (36 & 37 Vict c 66) (UK), incorporatedinto the Supreme Court specialised jurisdictions, especiallythose in the Courts formerly the province of the civilians.(83) However, the Law ofArms is regarded as a part of the laws of England, and the commonlaw Courts will take judicial notice of it as such: Paston vLedham (1459) YB 37 Hen VI, Pasch 18 per Nedham J.(84) Royal Charter 16November 1840, "Charter for erecting the Colony of NewZealand, and for creating and establishing a Legislative Counciland an Executive Council"; British Public Papers(1970) 153-155; Ordinance session 2, no 1, ss 2-7 (1841);Ordinance session 3, no 1, ss 2-3 (1844); Supreme Court Act 1860ss 4-6; Supreme Court Act 1882 (46 Vict no 29) s 16.(85) Judicature Act 1908s 16.(86) 46 Vict no 29.(87) Supreme Court Act1882 (46 Vict no 29) s 16.(88) Supreme Court Act1860 s 4.(89) Session 2, no I1,ss 2-7.(90) Session 3 no 1, ss2-3.(91) See for example,the Supreme Court Ordinance 1841 (session 2, no 1), ss 3-5.(92) The authority ofthe Court of Chivalry derives from the authority of the EarlMarshal, not from any jurisdiction which the Kings of Arms mightpossess. The Court could be held before the Earl Marshal alone: ManchesterCorp v Manchester Palace of Varieties Ltd [1955] 2 WLR 440;[1955] 1 All ER 387; [1955] P 133, following Anon (1732) 2Barn KB 169; 94 ER 427. (93) In re the LordBishop of Natal (1864) 3 Moo PCC NS 115; 16 ER 43.(94) Norfolk EarldomCase [1907] AC 10, 17 (HL) per Lord Davey.(95) As with thecreation of new types of dignities, see the Parliamentary Reportas to the Dignity of a Peer of the Realm (1829) vol 2, 37.(96) Thus in Canada thelegal protection of coats of arms is as weak as it is in Englandand New Zealand, because the Canadian Heraldic Authority wasestablished by letters patent in an exercise of the royalprerogative.(97) Scots lawyers donot necessarily agree however: The Laws of Scotland (1987)vol 5, paras 711 et seq; Sir Thomas Smith, "Pretensions ofEnglish Law as 'Imperial Law'" in The Laws ofScotland (1987) vol 5, paras 711-719.(98) R v Symonds(1847) NZ PCC 387; Veale v Brown (1866) 1 CA 152, 157; WiParata v Wellington (Bishop of) (1877) 3 NZ Jur (NS) SC 72; Rv Joyce (1906) 25 NZLR 78, 89, 112 (CA); Re the NinetyMile Beach [1963] NZLR 461, 475-6 (CA). It is a general rulethat common law applies to a colony unless it is shown to beunsuitable, but English statutes do not apply unless shown to beapplicable: Uniacke v Dickinson (1848) 2 NSR 287 (NS); Wallacev R (1887) 20 NSR 283 (NS); R v Crown Zellerbach CanadaLtd (1954) 14 WWR 433 (BC).(99) 21 & 22 Vict no2, considered in King v Johnston (1859) 3 NZ Jur (NS) SC94.(100) This Act waspassed, in the words of the long title, "to declare the Lawsof England, so far as applicable to the circumstances of theColony, to have been in force on and after the Fourteenth day ofJanuary, one thousand eight hundred and forty". The purposeof the statute was really to clarify the uncertainty as towhether or not all Imperial acts passed prior to 1840 were inforce in New Zealand, if applicable. Although the uncertainty hadreally been about statutes, the 1858 Act went further and in s 1expressly stated that: "The Laws of England as existing onthe fourteenth day of January, one thousand eight hundred andforty, shall, so far as applicable to the circumstances of thesaid Colony of New Zealand, be deemed and taken to have been inforce therein on and after that day, and shall continue to betherein applied in the administration of justiceaccordingly."(101) Macaulay,"Honours and Arms: Legal and Constitutional Aspects ofPractice concerning Heraldry and Royal Honours in NewZealand" (1994) 5 Canta LR 381, 387.(102) R v Parker(1668) 1 Sid 352; 82 ER 1151 per Keeling CJ.(103) Macaulay, supra n101, 387.(104) Section 5impliedly preserves the prerogative, and the wording of the Actclearly limits its application to the statutory law.(105) Kielley vCarson (1824) 4 Moo PCC 63; 13 ER 225; Lyons Corp v EastIndia Co (1836) 1 Moo PCC 175; 12 ER 782; Phillips v Eyre (1870)LR 6 QB 1; Sammut v Strickland [1938] AC 678 (PC); Saballyand N'Jie v Attorney-General [1965] 1 QB 273; [1964] 3 All ER377 (CA). Blackstone's statement that "colonists carry withthem only so much of the English Law as is applicable to theirown situation and the condition of the infant colony" is,like so many of his generalisations, misleading. It would havebeen nearer the truth if he had said "colonists carry withthem the mass of English law, both common law and statute, exceptthose parts which are inapplicable to their own situation and theconditions of the infant colony". What became applicable wasfar greater in content and importance that what had to berejected: Sir William Blackstone, Commentaries on the Laws ofEngland (1978) book I, para 107 (ed E Christian).(106) The applicabilityof the Law of Arms has been questioned, see for example,Crawford, "Some views on English and Scots heraldicauthority outside the United Kingdom" (1977) Coat of Arms(no 102) 157, 158-159. The test of course requires an evaluationof the applicability of laws at the time the colony was settled,and not at the time the Court considers the question.(107) Whicker v Hume (1858)7 HLC 124, 161; 11 ER 50 per Lord Carnworth.(108) Lawal v Younan[1961] All Nigeria LR 245, 254 (Nigeria Federal SC). In Highettv McDonald (1878) 3 NZ Jur (NS) SC 102, Johnston J observed,in finding that the statute 24 Geo II c 40 (GB) (The TipplingAct) was in force in New Zealand, that provisions for themaintenance of public morality and the preservation of the publicpeace were, in their general nature, applicable to all thecolonies.(109) 15 & 16 Vict c72 (UK).(110) See Cox, supra n23.(111) In 1907 the LawOfficers held that Garter had an imperial jurisdiction. However,then nor in 1913, was it expressly asserted that there was not anequally wide jurisdiction enjoyed by Lord Lyon: Opinion of theLaw Officers of the Crown on Heraldic Jurisdiction, 13 August1913 cited in Sir Anthony Wagner, Heralds of England: ahistory of the Office and College of Arms (1967) 530.(112) Agnew of Lochnaw,supra n 2, 71.(113) Ibid.(114) The Crown hassupreme control and jurisdiction over arms, and possesses theauthority to grant arms: Scroop v Grosvenor (1389), supran 13. This right is exercised by the Earl Marshal as the deputyto the Constable, both personally, and through the Court ofChivalry. The Earl Marshal's authority originates in the grant on28 June 1483: (1483) Calendar of Patent Rolls 358. The kings ofarms have inherent authority deriving from their function asservants of the Earl Marshal, and the letters patent appointingindividual kings of arms specially authorise them to make grantsof arms. (115) Schell Lannoy,"Heraldic Authority in the Dominion of New Zealand" in(1970) New Zealand Armorist (no 4) 15, 16-17.(116) As officers of theEarl Marshal, the acts of the kings of arms in matters armorialcannot be questioned in any Court of law: Austen v Collins(1886) 5 LT 903.(117) Letters patent ofCharles II creating the office of Earl Marshal in the family ofthe Duke of Norfolk, dated 19 October 1672; Squibb, supra n 2,128.(118) The exact date bywhich the Earl Marshal had acquired authority over the heralds isunclear. However, it was well established by the middle of thesixteenth century, and was confirmed in 1673. In 1708 it wasdeclared that the Earl Marshal was entitled to nominate officersof arms. (119) Squibb, supra n 2,129.(120) Although Crawfordargues that it is not entirely clear whether the Law of Arms wasreally applicable to the settled colonies- an argument whichundermines the authority of Lord Lyon as much as that of Garter.See Crawford, supra n 106, 158-159. (121) Commissionappointing Sir Colin Cole Garter King of Arms, 2 October 1979.The "ordinances and statutes" are a form oflegislation, but their jurisdiction of course only covers the Lawof Arms, not the common or statute law.(122) As is indicated bycl 50 of the Statutes of the New Zealand Order of Merit (SR1996/205) (recognition of grants of arms by Garter King of Arms),and by the appointment of New Zealand Herald by warrant of theEarl Marshal.(123) The Crown couldrely on the royal prerogative to govern colonies: Kielley vCarson (1824) 4 Moo PCC 63; 13 ER 225; Phillips v Eyre(1870) LR 6 QB 1; Sabally and N'Jie v Attorney-General[1965] 1 QB 273; [1964] 3 All ER 377 (CA); Gilbertson v Stateof South Australia [1978] AC 772, 782 (PC).(124) In the opinion ofthe law officers of the Crown, quoted by LG Pine, InternationalHeraldry (1970) 214.(125) Agnew of Lochnaw,supra n 2, 68.(126) Sir Francis Grant,A Manual of Heraldry (1924) 9.(127) Foreign citizensand foreign-domiciled corporations may only receive honorarygrants, which have limited legal effect as they are issued by thekings of arms in their private capacities.(128) Agnew of Lochnaw,supra n 2, 64-65.(129) See Secretary ofthe Cabinet, Cabinet Office Manual (1988) para P.1.1:"The granting, confirmation and control of Armorial Bearings(Coats of Arms) and other Heraldic devices (e.g. badges, emblems,flags) falls within the Sovereign's prerogative as the"Fount of all Honour". Her Majesty's Lieutenants, inexercising this prerogative, are the Earl Marshal of England andthe Kings of Arms (College of Arms). New Zealand recognises thisRoyal prerogative and the authority of the Earl Marshal and Kingsof Arms. Their representative in this country is the New ZealandHerald of Arms Extraordinary to HM The Queen"(130) See Secretary ofthe Cabinet, Cabinet Office Manual (1988) para P.1.1.(131) Statutes of theNew Zealand Order of Merit (SR 1996/205), cl 50. A similar casewas the controversy regarding the Canadian Priory of the Order ofSt John of Jerusalem. By statute 29(4) armorial members of theOrder were entitled to certain privileges. The Genealogist of theOrder was an English herald, who refused to recognise any butgrants of Garter King of Arms. The Statutes have since beenamended to recognise grants approved by the Genealogist, providedhe is "an Officer of Arms in Ordinary to the Sovereign Headof the Order": Order of St John, Royal Charters, Statutesand Regulations of the Order (1993).(132) No Earl Marshalhas ever acted in New Zealand, though they have exercised theirjurisdiction through a deputy in this country. Cf Macaulay, supran 101, 385.(133) [1955] P 133;[1955] 2 WLR 440.(134) Crawford, supra n106.(135) 30 & 31 Vict c17.(136) Squibb, supra n 2,131.(137) In the words ofLord Robertson in M'Donnell v M'Donald (1826) 4Shaw 371, 372 (NS 374, 376).(138) Agnew of Lochnaw,supra n 2, 67.(139) Commissionappointing Sir Malcolm Innes of Edingight Lord Lyon King of Arms,10 April 1981.(140) 24 Chas II c 47.(141) Agnew of Lochnaw,supra n 2, 69.(142) Agnew of Lochnaw,ibid, 68. In Stewart McKenzie v Fraser McKenzie1922 SC (HL) 39, 44, Lord Dunedin approved the dicta of LordRobertson in M'Donnell v M'Donald (1826) 4 S 371 (NS 374)that the Court of Session would never interfere with a coat ofarms granted by Lord Lyon in his ministerial capacity. However,the extent of the jurisdiction is still subject to the scrutinyof the ordinary Courts.(143) Agnew of Lochnaw,supra n 2, 68.(144) Lord Lyon Act 1672(24 Chas II cap 47) (Sc).(145) Lord Lyon King ofArms Act 1867 (30 & 31 Vict c 17) (UK).(146) Lord Lyon Act 1672(24 Chas II cap 47) (Sc).(147) Lord Lyon King ofArms Act 1867 (30 & 31 Vict c 17) (Sc).(148) 24 Chas II c 47.(149) The Laws ofScotland (1990) vol 11, para 1614, 548.(150) Innes of Learney,supra n 32, 117.(151) No Scottish kingsubsequently granted arms personally, the invariable practicebeing a royal warrant ordering the Lyon to grant arms: Innes ofLearney, ibid, 10.(152) Or to "extendand give out" as in the wording of the matriculation of HisRoyal Highness the Duke of Rothesay (Charles Prince of Wales),recorded 13 November 1974.(153) Indeed, owners ofheritage in Scotland are required, by law, to have armorialbearings: Acts vol I 575 February 1400. (154) It is now saidthat this jurisdiction does not extend to Canada since they nowhave their own Heraldic Authority. However, there is noexplanation as to why this should be so, since Lord Lyon hasalways infringed upon the imperial jurisdiction of the EarlMarshal. There is no reason to doubt the authority of Lord Lyonto grant arms to aliens who can show that they require to beararms in Scotland; The Laws of Scotland (1990) vol 11, para1615, 549.(155) The Laws ofScotland (1990) vol 11, para 1615, 550.(156) 30 & 31 Vict c17.(157) Crawford, supra n106.(158) The Laws ofScotland (1990) vol 11, para 1612, 547. The Laws ofCanada, Australia, New Zealand and the other countries of theCommonwealth rely upon legal systems based upon the common law ofEngland, with or without other laws such as the Roman-Dutch orFrench civil law. Scots law never applied anywhere but inScotland. (159) 30 & 31 Vict c17. Emphasis added.(160) 6 Anne c 11.(161) Crawford, supra n106, 158-159.(162) 30 & 31 Vict c17.(163) Agnew of Lochnaw,supra n 2, 70.(164) Ibid, 70-71.(165) Innes of Learney,ibid, 93 and note.(166) (1607) 7 Co Rep156 16a; 77 ER 377, 396. This relied upon Earl of Richmond'sCase (1338) 11 Ed III Fitz Brief 473; 9 Co 117 b: "Anearl of another nation or kingdom is no earl [to be named inlegal proceedings] within this realm".(167) [1912] AC 95 (HL)per Lord Atkinson.(168) 6 Anne c 11.(169) 39 & 40 GeoIII c 67.(170) The Letters Patentcreating Sir James Balfour Paul, Lord Lyon King of Arms read:"We out of Our gracious pleasure have made nominated andappointed the said James Balfour Paul during the term of hisnatural life Our Lyon King of Arms in that part of Our UnitedKingdom called Scotland and also We for Us and Our RoyalSuccessors Give and Grant to the said James Balfour Paul ... Ourfull power, liberty, licence and authority of giving and grantingArmorial Bearings to virtuous and deserving persons according tothe rules and ordinances already established for that purpose: tohave and to hold the said office of Lyon King of Arms from theday of the death of the said George Burnett who last held thesame... with all rights privileges and immunities belonging tothe said office and therewith usually held and enjoyed or whichthereto at any time heretofore pertained but subject always tothe provisions of an Act passed in the Session of Parliamentholden in the 30th and 31st years of Our Reign chapter17...": J H Stevenson, Heraldry in Scotland (1914)vol 1, 454-455.(171) Crawford, supra n106, 160.(172) See for example,the Letters Patent of 12 March 1890 in favour of James BalfourPaul, reprinted in Stevenson, supra n 170, 454-455.(173) Grant, supra n126, 46-49.(174) Royal Collegeof Surgeons of Edinburgh v Royal College of Physicians ofEdinburgh 1911 SC 1054, 1911. The grant of arms by letterspatent by Lord Lyon is an exercise of the delegated armorialprerogative of the Crown, and is not a judicial act: Macleanof Ardgour v Maclean 1941 SC 683, line 35, reaffirming M'Donnellv M'Donald (1826) 4 Shaw 371. (175) Royal Collegeof Surgeons of Edinburgh v Royal College of Physicians ofEdinburgh 1911 SC 1054, 1911. The Crown has the prerogativeto determine precedence: though not in Parliament, where theHouse of Lords Precedence Act 1539 (31 Hen VIII c 10) (Eng)remains in force.(176) Maclean ofArdgour v Maclean 1941 SC 613, SLT 339.(177) The Laws ofScotland (1990) vol 11, para 1614, 548.(178) Sir GeorgeMackenzie of Rosehaugh, Observations upon the Laws and Customsof Nations as to Precedency (1680) 79, quoted in Agnew ofLochnaw, supra n 2, 69-70.(179) Agnew of Lochnaw,ibid, 70.(180) Compare Innes ofLearney, supra n 32, 93-94. There were seventeen grants to Scotsresiding in foreign states prior to 1867, as well as theregistration in 1805-10 of grants to Scots made in 1625 in theProvince of Nova Scotia, and in 1698 in the Colony of Caledonia.There were eight registrations of arms by Lyon to petitionersresident in Australia between 1837 and 1865, and another sixteenpre-1867 Scots grants to residents of other overseas possessionsof the Crown.(181) Innes of Learney,supra n 32, 91-2, 94, 101 and 107-8.(182) M'Donnell vM'Donald (1826) 4 Shaw 371, 372 (NS 374, 376) per LordRobertson. However, a temporary visitor is allowed to use theircoat of arms without matriculation, as a Courtesy: The Laws ofScotland (1990) vol 11, para 1614, 549. Those who possessforeign coats of arms must follow a similar procedure if theywish to make use of their arms in England. (183) The Laws ofScotland (1990) vol 11, para 1625, 555; Agnew of Lochnaw,supra n 2.(184) Michael Crawford,"The Control of Heraldry in Australia- Some legalaspects" (1974) Coat of Arms NS vol I (no 89) 28-33.(185) This of course isa moot point, since in light of contemporary developments inthinking about the status of the Crown, the English and ScottishCrowns may still be distinct, and distinguishable from the Crownof the United Kingdom. See for example, Lord Advocate v WalkerTrustees [1912] AC 95 (HL).(186) The continuedexercise of imperial prerogatives by British officials oradministrative machinery is largely confined to the honoursprerogative, though the continued operation of the JudicialCommittee of the Privy Council is analogous.(187) Either by virtueof the jurisdiction of the Earl Marshal, the inherent right ofthe kings of arms to regulate arms, or the power expresslydelegated by the Sovereign to grant arms.(188) Agnew of Lochnaw,supra n 2, 65.(189) Ibid, 65-66.(190) O'Shea, "TheOffice of the New Zealand Herald of Arms" (1982) 20 NewZealand Armorist 7.(191) Macaulay, supra n101, 387.(192) Mr Phillip O'Shea,Cabinet Office Adviser on Honours. (193) Neither thewarrant of appointment, nor any other mention of the existence ofthe position was ever been published in the New Zealand Gazette:Macaulay, supra n 101, 385n; Sir Malcolm Innes of Edingight,"New Zealand Herald of Arms Extraordinary" (1979) 3Commonwealth Heraldry Bulletin 2. (194) Macaulay, supra n101, 385-386; Sir Malcolm Innes of Edingight, "New ZealandHerald of Arms Extraordinary" (1979) 13 Heraldry in Canada34-36.(195) Mr O'Shea wasappointed by letters patent, rather than by the warrant normallyused for extraordinary heralds. Grants of Arms continue to bemade by the kings of arms (Garter alone for personal grants, allthree for corporate arms), under the authority of a warrant ofthe Earl Marshal. The Queen's royal style in New Zealand is nowused in grants to New Zealanders obtained through the agency ofNew Zealand Herald Extraordinary.(196) The Earl Marshalis simply "Earl Marshal" rather than "Earl Marshaland Hereditary Marshal of England", and the Sovereign'stitles for New Zealand are used.(197) O'Shea has saidthat the letters patent recite the style conferred upon HerMajesty by proclamation under the Royal Titles Act 1953. If thisis so, it is incorrect, as this style was replaced by that givenin the Royal Titles Act 1974. But even if the style is incorrect,this does not mean, as Agnew of Lochnaw believed, that the grantsare of doubtful essential validity as made "in the name of alegally non-existent Sovereign": A message from New ZealandHerald of Arms to 1979 Heraldry Seminar, University of Auckland,26 August 1979; Agnew of Lochnaw, supra n 2, 66. (198) Macaulay, supra n2, 386.(199) The draft bill ofthe Flags, Emblems, and Names Protection Act 1981 did indeedinclude a clause protecting armorial bearings. Clause 16 wasdropped at the select committee stage. The committee consideredthat there was already adequate protection undermisrepresentation or passing off, should a person use the coat ofarms granted to another without his authority. They did notaccept that there was any justification for protecting privateinterests with criminal sanctions. The committee were alsoopposed to what they saw as a monopoly being established for thebenefit of New Zealand Herald. See New Zealand ParliamentaryDebates (1980) vol 440, 2741, vol 441, 3858.(200) Section 12(2)(a),(b), (c), and (d) respectively.(201) Section 11(1)(a).(202) Section 13(2)(a),(b), and (c) respectively.(203) This has beencriticised by Macaulay, who continues to argue that Garter isunknown to New Zealand law: Macaulay, "The NZ Order ofMerit" [1996] NZLJ 457.(204) Clause 50. (205) Clauses 51, 53,54, 55, and 57.(206) Clause 57 (b).(207) 27 Edw III stat 2.(208) Consuetudo velLex Mercatoria, or the Ancient Law Merchant (1622).(209) Luke v Lyde(1759) 2 Burr 882; 97 ER 614 per Lord Mansfield, CJ.(210) This process isexamined in T Plucknett, A Concise History of the Common Law (1956)660.(211) L Trakman, TheLaw Merchant- The Evolution of Commercial Law (1983) 23-26(212) See, for a generaldiscussion, see Scrutton, "General Survey of the History ofthe Law Merchant" in Select Essays in Anglo-AmericanLegal History (1907-1909) vol 3, 7-8.(213) They had beenconsolidated by the Statute of the Staple 1352-3 (27 Edw III stat2 cc 5, 6, 8 and 21) (Eng), and declined for economic reasons,although there are not many reports in the sixteenth centuryindicating that the common law Courts were administrating the lawmerchant.(214) Van Heath vTurner (1621) Winch 24; 124 ER 20; Pillans v Van Mierop(1765) 3 Burr 1663; 97 ER 1035.(215) Sir WilliamHoldsworth, A History of the English Law (1926) vol 8,99-300.(216) Sir Edward Coke, Cokeupon Littleton (1979) 182(217) This led to thecomplete separation of that part of the maritime law, such assalvage and collisions at sea, which remained within thejurisdiction of the Court of Admiralty, from the law merchant andthose parts of the commercial maritime law, such as freight andmarine insurance, which were administered in the common lawCourts.(218) Bromwich vLloyd (1698) 2 Lutwyche 1582; 125 ER 870.(219) Immemorial user isnot necessary: Edelstein v Schuler [1902] 2 KB 144.However, a new custom must not be contrary to an established ruleof law: Goodwin v Robarts (1876) LR 10 Ex 337 per CockburnCJ.(220) The translation ofLord Cooke of Thorndon from the Court of Appeal to the House ofLords in 1996 raised the possibility of such an innovative judgebeing available to adapt the Law of Arms in England. However,virtually insurmountable hurdles would still have to be overcomefor a case to reach the House.(221) A personal letterdated 25 October 1968 from LJ Curtis of the CommonwealthAttorney-General's Office, Canberra to Michael Crawford, referredto in "The Control of Heraldry in Australia" (1974) TheCoat of Arms NS vol 1, 28, 29.(222) Pilot to Volume24-30 (3rd ed, 1960) 327.(223) Halsbury's Lawsof England (3rd ed, 1960) vol 29, 239-270.(224) Crawford,"The Control of Heraldry in Australia" (1974) The Coatof Arms NS vol 1, 28, 29.(225) Calvin's Case (1607)7 Co Rep 156 16a; 77 ER 377, 396; Lord Advocate v WalkerTrustees [1912] AC 95 (HL).(226) Calvin's Case (1607)7 Co Rep 156 16a; 77 ER 377, 396.(227) Though theapplicability or otherwise of a book has no direct bearing on theapplicability of law.(228) The advent of anAustralian republic would have no inherent impact upon heraldry,and it might be assumed that the powers of a president would bedefined in terms of the powers of the Queen, thereby conferringupon him the right to grant arms.(229) New South Wales1788, Tasmania 1803, Queensland 1824, Western Australia 1829,Victoria 1834, South Australia 1836.(230) The position inNew Zealand is complicated, however, by the position of theMaori, who claim, and have been accorded, certain legalprivileges.(231) This could becalled the residue of discretionary or arbitrary authority, whichat any given time is legally left in the hands of the Crown:Dicey, Introduction to the Study of the Law of theConstitution introduction & appendix by ECS Wade (1950)424.(232) Case ofProclamations (1611) 12 Co Rep 74; 77 ER 1352 (KB).(233) LyonsCorporation v East India Co (1836) 1 Moo PCC 175; 12 ER 782; Nyaliv Attorney-General [1956] 1 QB 1; Re Bateman's Trusts(1873) LR 15 Eq 355; 42 LJ Ch 553; 28 LT 395; 37 JP 484; 21 WR435; 12 Cox CC 447.(234) The minorprerogatives, such as those of revenue, tend to be territorial.(235) Sammut vStrickland [1938] AC 678 (PC). This quote is, of course,somewhat misleading since the royal prerogative is not strictlypart of the common law- though that point has been subject ofmuch debate.(236) Though in Nyaliv Attorney-General [1956] 1 QB 1 he had.(237) Chun Teeong Toyv Musgrove (1888) 14 VLR 349.(238) 63 & 64 Vict c12 (UK).(239) In New Zealand theprerogative of mercy is specifically delegated: Letters PatentConstituting the Office of Governor-General of New Zealand 1983(SR 1983/225) cl. XI.(240) CommonwealthGazette, 12 July 1956, 2083.(241) 63 & 64 Vict c12 (UK).(242) Cable fromGovernor-General to Secretary of State for Commonwealth Relations4 November 1968, and the Queen's approval in a cable Secretary ofState to Governor-General 5 November 1968, cited in Stevens,"The Crown, the Governor-General and the Constitution"(1974) unpublished LLM thesis 325-326.(243) By the LettersPatent constituting the Office of Governor-General of Canada,effective 1 October 1947 (Canada Gazette, Part I, vol 81, 3104).(244) The stategovernors acted, in some matters, on the advice of BritishMinisters until after the passage of the Australia Act 1986.(245) As in Halsbury'sLaws of England (3rd ed, 1960) vol 29, 239-270.(246) Letters Patentauthorising the granting of armorial bearings in Canada, 4 June1988.HomePublicationsTopgeovisit();
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