Lecturer in Law, Auckland Institute of Technology
There has been an on-going debate in heraldic circles in the Commonwealth as to the respective jurisdictions of the College of Arms and of Lord Lyon King of Arms1. Uncertainty has also been expressed as to the validity of grants of armorial bearings to subjects of the Queen in Australia, New Zealand, Canada, and her other realms and territories2. These debates have however tended to not place proper emphasis upon what the law actually says, and instead rely on administrative practice, or political or historical preference. No correct answer can be given without an analysis of the Law of Arms as a part of the laws of England and of the other countries in which it has, or may have, legal force3. In particular, this involves an examination of the judicial and executive aspects of the Law of Arms.
The Law of Arms is an area of law which has, for centuries, been largely the preserve of the antiquary. It is part of the law of the realm, though not of the common law. With the settlement of the overseas territories of the Crown, this law was apparently extended to these shores, though its administration abroad appears problematic, for reasons which will be developed.
Bearing and using arms, variously styled coat armour, armorial bearings, arms, or coats of arms, is a legally enforceable right. Although their original function was to enable knights to identify each other on the battlefield, they soon acquired wider, more decorative uses. They are still widely used today by countries, public and private institutions and by individuals. The law which governed their use was called the Law of Arms, or the laws of heraldry. The officials who administer these arcane matters are styled pursuivants, heralds, or kings of arms, depending upon their seniority.
Coats of arms are conferred by the Crown upon New Zealanders, and upon New Zealand corporations and public authorities. Whilst most of these grants are by Garter King of Arms, the chief English herald, through his New Zealand deputy, some are from Lord Lyon King of Arms, the Scottish herald. Whether these latter grants are proper is a matter which deserves some attention.
In England the regulation of heraldry fell to the Court of Chivalry, the Court of the Lord High Constable and the Earl Marshal of England, as this was the body responsible for the regulation of matters of honour. That these matters now, and for several centuries have been entirely heraldic, is an accident of history4. Nor must it be thought that the jurisdiction of the Law of Arms has always been concerned, as it is today, only with coats of arms and other heraldic matters5.
However, disputes over the use of arms after 1389 took two main forms, those in which the defendant was alleged to have taken the arms of another person6, and those in which he was alleged to have used arms wrongfully without infringing the rights of another7. Sometimes the fabrication of coats of arms, and sometimes the use of armorial insignia, such as supporters, to which the defendant was not entitled, was the cause of action8.
There was no doubt that there was a law governing such matters, but what then was the nature of this law?
II. THE NATURE OF THE LAW OF ARMS
According to the usual description of the Law of Arms, coats of arms, armorial badges, flags and standards and other similar emblems of honour may only be borne by virtue of ancestral right, or of a grant made to the user under the authority of the Crown9. The power to grant armorial bearings is delegated by the Crown to the kings of arms10. However, even within the British Isles there are three or perhaps four distinct types of arms- Scottish, English, Irish and possibly, Northern Irish11. Each has its own applicable law, but only the laws of England and Scotland will be examined here.
In England, the Law of Arms is regarded as a part of the laws of England, and the common law Courts will take judicial notice of it as such12. These dignities, as they are called, have legal standing13. But the Law of Arms is not part of the common law14 and the common law Courts have no jurisdiction over matters of dignities and honours15, such as armorial bearings16, or peerages17. In this respect the Law of Arms may be regarded as similar to the ecclesiastical law, which is a part of the laws of England, but not part of the common law18.
The exclusive jurisdiction of deciding rights to arms, and claims of descent, was vested in the Court of Chivalry19. As the substance of the common law is found in the judgments of the common law Courts, so the substance of the Law of Arms is to be found in the customs and usages of the Court of Chivalry20. The procedure was based on that of the civil law, but the substantive law was recognised to be English, and peculiar to the Court of Chivalry21.
However, unlike the ecclesiastical law, which continues to be administered by a range of ecclesiastical Courts22, there is now no regularly constituted Court in which the Law of Arms is administered, the High Court of Chivalry being obsolescent. Because the Court of Chivalry is now inactive, it is in the old decisions of that Court, and in the practices, ancient and modern, of the heralds, that we must look for the substance of the Law of Arms in England.
Although the common law Courts do not regard coats of arms as either property or as being defensible by action, armorial bearings are a form of property nevertheless, generally described as tesserae gentilitatis or insignia of gentility. Armorial bearings are incorporeal and impartible hereditaments23, inalienable, and descendable according to the Law of Arms24. Generally speaking, this means they are inherited by the male issue of the grantee, though they can be inherited by the sons of an heraldic heiress, where there is no surviving male heir.
In England a grant of arms does not ennoble a grantee in any sense, except that an armiger (one who has the right to bear arms) is deemed to be of the status of a gentleman25. He may of course be of higher rank, as esquire, knight, peer, or prince, but the grant of arms does not, in England, confer social rank26.
The Law of Arms as understood in Scotland consists of two principal parts, the rules of heraldry (such as blazoning27), and the law of heraldry28. In contrast to the position in England, the Law of Arms is a branch of the civil law29. A coat of arms is incorporeal heritable property, governed, subject to certain specialities, by the general law applicable to such property. The possession of armorial bearings is therefore unquestionably a question of property30. The misappropriation of arms is a real injury, actionable under the common law of Scotland31.
A coat of arms is a fief annoblissant, similar to a Scottish territorial peerage or barony32, the grant of which provides, as every Scottish patent of arms states, that the grantee is a “noble of the noblesse of Scotland”33.
While the degree to which the general law recognises arms differs, in both England and Scotland a grant of arms confers certain rights upon the grantee and his (or her) heirs34, even if they may not be easily protected. No person may lawfully have the same coat of arms as another person in the same heraldic jurisdiction35. Arms may not be assumed or changed at will36.
The absence of a remedy for the illegal usurpation of arms in the law of England does not mean that there are no rights infringed, merely that it not within the jurisdiction of the common law Courts to act37. But how then do armigers acquire arms in the first place?
III. THE LEGAL PROTECTION FOR COATS OF ARMS
In general, the right to bear coats of arms seems throughout the middle ages to have been analogous to the laws which governed the descent of fiefs, though clear rules only developed late38. The Boke of St Alban39 (1486) mentions four grounds on which a man might claim title to arms. These were inheritance, tenure of a particular fee or office, grant by a lord or prince, and capture from an enemy in battle40. However, it was a rule of the mediæval civilians that titles and matters of honour and dignity were ordered according to the customs of the every particular country41. These grounds might therefore not apply in all countries.
Mediæval writers generally believed that, in some circumstances at least, one could assume arms42. In the fourteenth century, the Italian civilian 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 before43. This principal was adopted by Nicholas Upton, in his De Studio Militari44. According to Upton, arms were assumed in England as late as the fifteenth century45. This belief passed into wide circulation by the publication of the Boke of St Alban46.
However, Bartolus De Sassoferrato’s view was not universally held, even on the Continent, and a rival school of civilian writers maintained that authority was needed for the adoption of arms47. Johannes De Bado Aureo48 wrote in his Tractatus de Armis49(1360) that arms could be granted by other people than sovereigns, and, indeed, in the fourteenth century arms were frequently granted by a lord to his followers50. Private heralds, men learned in the art and science of heraldry, occasionally, though not universally, also included the granting of arms among their responsibilities51.
Upton’s assertion that arms could be assumed at will was directly contradicted by John Ferne in 158652. It is now accepted that it is illegal to assume arms53. Nor do private individuals grant arms any longer. The mere assumption of arms cannot itself establish a legally defensible title according to the laws of England54. Arms could only be validly borne if acquired by right of birth (from a grant, or user from before the time of legal memory55), or grant from the Crown56.
In England (and Scotland) the Crown’s exclusive prerogative prevailed, as it did in many, though not all, European countries57. This prerogative is exercised on the Queen’s behalf by her heralds, members of the College of Arms. The thirteen members of the Royal Household are appointed by the Sovereign to be her Officers of Arms-in-Ordinary with special responsibility for armorial, genealogical, ceremonial and other similar matters58.
The kings of arms and heralds were incorporated by letters patent in 1484, as the Corporation of the Kings, Heralds and Pursuivants of Arms59. The College itself has no authority, and the armorial prerogative is exercised by individual kings of arms and heralds, subject to the authority of the Earl Marshal, who authorises each individual grant, by warrant.
The prerogative to grant arms is exercised in New Zealand by the deputy to Garter King of Arms, the New Zealand Herald of Arms Extraordinary to Her Majesty The Queen60. These are the ministers of the Crown in relation to the Law of Arms, but what of the Court in which that law in administered?
IV. THE COURT OF CHIVALRY
The High Court of Chivalry, the Court Military of the Earl Marshal61 and the only surviving civil law Court in England62, originally exercised both criminal and civil jurisdiction63. However, the common law was not within the cognisance of the Court of Chivalry, and the law administered by the Court, at least from the time of Edward III64, was the Law of Arms, or marshal law, founded on the civil law.
The Court de Chivalrie, or Curia Militaris, should not, however, be confused with the Courts military, although this is the common translation of the name of the Court of Chivalry. Court of Knighthood more accurately reflects its role65.
It has generally been assumed that statutes and ordinances of war were enforced in the Court of Chivalry66, and that modern Courts martial were instituted on account of the inadequacies of the Court of Chivalry67. The Court of Chivalry however was never the Court in which military law was administered, but was a permanent Court, dedicated to deciding matters touching upon honour.
It is in the civil jurisdiction of the Court of Chivalry that the Law of Arms relating to armorial bearings was administered. The Court sat as a Court of honour, and its jurisdiction consisted in redressing injuries of honour and correcting encroachments in matters of coat armour, precedency, and other distinctions of families. These and kindred matters of honour were not within the jurisdiction of the ordinary Courts of law68, but were within the jurisdiction of the Court of Chivalry by prescription69. 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 the Constable and Marshal.
After 1485, the Court of Chivalry was inactive, as its jurisdiction over contracts touching deeds of arms and of war out of the realm had been rendered obsolete by the replacement of indentured troops by the national militia as the principal military force of the country. Litigation of war within the realm ended with the end to the civil wars. The only jurisdiction left was the “other usages and customs” as defined by the Act of 1389, and appeals of crimes, other than treasons, arising outside the realm under a statute of 139970.
From 1521 to 1563 the Earl Marshal, and his deputies, and Commissioners appointed to exercise the jurisdiction of the office, appear to have purported to exercise the quasi-judicial jurisdiction over the College of Arms and the heralds, while the Court of Chivalry itself was inactive71. After the Civil Wars of the next century this quasi-judicial jurisdiction was again revived72.
The Court of Chivalry was revived again in 168773, but soon lost a great deal of business, when the common law Courts deprived the Court of Chivalry of all but a purely armorial jurisdiction74.
The jurisdiction formerly also included actions for slander, but Chambers v Jennings75 established that the Courts will not now permit the Court of Chivalry to entertain an action which is cognisable in the Courts of common law76. There is, of course, no such common law jurisdiction over armorial bearings, nor, indeed, honours and precedence77. However, this could not offer much help to a plaintiff if the Court of Chivalry were no longer sitting.
After 1716 the Court was again in recess, though it enjoyed a brief revival 1732-3778. But a Court of law does not cease to exist by falling into disuse79.
The High Court of Chivalry has power to protect the lawful use of arms, but has been singularly inactive80. Some legislative protection for certain categories of arms is provided however. In New Zealand ss 684 (1) (7) and 696 of the Local Government Act 1974, and the Flags, Emblems, and Names Protection Act 1981 both provide protection to some types of official arms. In the former case, the statute also empowers local councils to define their own coats of arms, an action which is tantamount to assuming legally valid arms. Neither statute has general application however, and there is no generally available legal protection for coats of arms.
The Court of Chivalry indeed awoke briefly from its slumbers in 1954 to decide the case of Manchester Corporation v Manchester Palace of Varieties Ltd81. The decision was not marked by any particular legal significance, but it did confirm the continued existence of the Court in England.
It might perhaps have thought that the New Zealand High Court would have the jurisdiction to enforce the Law of Arms in New Zealand, since it has assumed the full range of the varied jurisdictions of the English Courts. However, for this to be so, the jurisdiction would have had to have specifically bestowed by the Judicature Acts82. As will be seen, this was not done.
The jurisdiction of the New Zealand High Court has always been defined in respect of the jurisdiction as previously conferred upon the Court. This was originally defined in terms of the jurisdiction of Her Majesty’s Courts at Westminster, Courts which administered the common law and equity, but not the Law of Arms83.
The primary source of the jurisdiction of the High Court is statutory, now found in the Judicature Act 1908, especially s 16. This general jurisdiction can be traced through a series of statutes, from the original conferral of prerogative authority in 1840, and the first statutory authority, in 184184. The present provision is that:
The Court shall continue to have all the jurisdiction which it had on the coming into force of this Act, and all judicial jurisdiction which may be necessary to administer the laws of New Zealand85.
This section encompasses two separate elements, the prior jurisdiction of the Court, and the necessary derivative common law jurisdiction. The Supreme Court Act 188286 enacted the almost identical provision that:
The Court shall continue to have all the jurisdiction which it had at the time of the coming into force of this Act, and all judicial jurisdiction which may be necessary to administer the laws of New Zealand87.
The original source of this jurisdiction is found in the Supreme Court Act 1860, that:
The Court within the Colony shall have jurisdiction in all cases whatsoever as fully as Her Majesty’s Courts of Queen’s Bench, Common Pleas, and Exchequer, at Westminster and each of such Courts have or hath in England at the time of the passage of this Act88.
The 1860 Act, which closely followed the wording of the Supreme Court Ordinance 184189 and the Supreme Court Ordinance 184490, went on to describe the equitable and other non-common law jurisdiction of the Supreme Court. Clearly, these enactments did not have the effect of conferring upon the High Court the jurisdiction of the Court of Chivalry, a jurisdiction which was never claimed by any of “Her Majesty’s Courts of Queen’s Bench, Common Pleas, and Exchequer, at Westminster”. Specific words would have been required to confer a jurisdiction in any law but the common law, as was done specially for the laws of equity, testacy, and lunacy91.
A prerogative act cannot confer upon any body (such as the High Court, the College of Arms, New Zealand Herald Extraordinary or some new quasi-judicial body92) the jurisdiction to administer the Law of Arms, as the Sovereign cannot establish, merely by the exercise of the royal prerogative, a Court to administer any law but the common law93.
Thus, while the Sovereign is the fountain of all honour and dignity94, and although the powers of the Crown in this respect are unlimited95, the jurisdiction of the Court of Chivalry, which administers the Law of Arms and not the common law, must be exercised by that Court or by none, unless Parliament enacts otherwise96. A revival of the quasi-judicial work of the Commissioners is unlikely, either in England or in New Zealand.
But are the Law of Arms part of out legal inheritance, and do they actually apply in New Zealand?
V. THE APPLICABILITY OF THE LAW OF ARMS IN NEW ZEALAND
It was early established as a principle of imperial constitutional law that settled colonies took English law97. The laws of New Zealand are based upon the reception of English laws in the middle of the last century, when it was first settled as a colony98. The English Laws Act 185899 provided that the laws of England as existing on 14 January 1840 were deemed to be in force in New Zealand100. They were however only to be in force so far as applicable to the circumstances of the colony.
The principle of this Act has been followed in all relevant legislation passed by the New Zealand Parliament since then. If any laws of arms were inherited by New Zealand, it was the Law of Arms of England, in 1840.
The only imperial law inherited from the United Kingdom now applicable are those enactments and subordinate legislation specified in the schedules to the Imperial Laws Application Act 1988, together with the common law of England in so far as it was already part of the laws of New Zealand101. While “the laws of arms is not part of the common law [of England]”102 and is not detailed in any of the scheduled legislation, it does not follow that the Law of Arms is not part of New Zealand law, despite doubts having been raised103.
The Imperial Laws Application Act 1988 covered Imperial enactments, and Imperial subordinate legislation: it does not affect the pre-existing common law, nor the prerogative, nor any special laws such as the Law of Arms104.
It has been established beyond reasonable doubt that Canada, Australia and New Zealand each acquired English law as it existed at the various times of settlement. But it was only those laws which were applicable to their new situation and to the condition of a new colony105. It might be questioned whether the Law of Arms was included106, and it is not always easy to apply the test107. English laws which are to be explained merely by English social or political conditions have no application in a colony, yet the Courts have generally applied the land law, which has a feudal origin.
However, armorial bearings are a recognised form of personal property, and it might be expected that a settler took his armorial ensigns with him. Rules as to real property and conveyancing have been held to be generally applicable in colonies, both settled and conquered108.
There was nothing in the specific circumstances of New Zealand to render the reception of the Law of Arms less appropriate than elsewhere in the settled colonies. The New Zealand Constitution Act 1852109 made no special provision for heraldry, or for titles of honour, nor did the constitutional arrangements of any other Commonwealth country. This was not however because it was felt that the Law of Arms was inapplicable to the colonial environment, but simply because it was a very minor aspect of the law, about which few cared. As a part of the royal prerogative it would have been unusual had it been included.
Nor is there any reason to suppose that coats of arms should be treated as inapplicable just because peerages may be inapplicable110. A coat of arms is much more portable (literally so) than a peerage. Like a peerage, coats of arms are not recognised by the common law Courts. It is submitted that the Law of Arms was applicable in New Zealand in 1840 and remains applicable whether the judicial jurisdiction of the High Court of Chivalry extends overseas or not. This view has not gone unchallenged however, particularly by those who would argue for an equal jurisdiction for Lord Lyon King of Arms.
VI. THE PROPER AUTHORITY RESPONSIBLE FOR THE GRANT OF ARMS IN NEW ZEALAND
There has been significant rivalry between Garter King of Arms and Lord Lyon as regards their proper jurisdiction. In 1907 and 1913, in a joint opinion, the Law Officers of England, Scotland and Ireland advised that Garter King of Arms was the proper authority for granting arms overseas111. In 1908 and 1914 the Home Secretary gave the Kings of Arms directions on the exercise of the royal prerogative, on the basis of these opinions.
However, the directions of the Home Secretary have not been accepted by Scottish heralds, who argue that these directions cannot over-rule the statute law from which Lyon’s powers are derived112. This is quite correct, but directions can fetter the exercise, as Lyon is not legally compelled to grant arms overseas. Her Majesty, through her politically-responsible Ministers, can generally instruct her servants how to exercise their powers, unless the exercise is fettered by statute, or they hold judicial office. Lord Lyon does hold judicial office, but his grants are in his ministerial or executive capacity, not his judicial one.
It has been said that the “constitutional probity of one Minister of the Crown trying to limit the statutorily delegated executive power of another Minister must be open to some doubt”113. However Lord Lyon is not a politically responsible Minister, so the Secretary of State for the Home Department, who was then responsible for advising the Crown as to the exercise of the royal prerogative in Scotland, is constitutionally responsible. As far as the Secretary of State was concerned, Lord Lyon was exceeding his discretionary authority in granting arms abroad.
VII. AUTHORITY VESTED IN GARTER
The jurisdiction of the Earl Marshal, the inherent right of the kings of arms to regulate arms, and the power expressly delegated by the Sovereign to the kings of arms to grant arms, constitute the authority of the College of Arms114. While the two subordinate English kings of arms (and in Scotland, Lord Lyon King of Arms) exercise a jurisdiction which is territorially limited, Garter King of Arms has for long been held to have an imperial jurisdiction115. He has granted arms in the Empire and Commonwealth, and to foreigners of British ancestry, for many centuries116.
The Earl Marshal, who was described in 1672 as being “next and immediate Officer under Us for Determining and Ordering all matters touching Armes, Ensigns of Nobility, Honour, and Chivalry...”117 possesses both executive and judicial authority over English arms118. As Squibb points out119, the extension of the executive authority of the Earl Marshal over the various colonies in the New World in the seventeenth and early eighteenth centuries was the logical consequence of the colonists’ continuance in law as English subjects120.
Grants are made by Garter under the 1673 warrant of the Earl Marshal. In his individual commission, Garter is granted “authority power and licence with the consent of the Earl Marshal of England ... of granting and appointing to eminent men Letters Patent of Arms and Crests” jointly with or without Clarenceaux and Norroy and Ulster Kings of Arms “according to the ordinances and statutes from time to time respectively issued [by the Earl Marshal]”121. All of these regulations have been regarded as being in force in New Zealand, the Earl Marshal retaining a power to regulate the exercise of the royal prerogative in respect of the Law of Arms, by a species of delegated legislation122.
However, the Law of Arms owed more to the royal prerogative than to the common law, and the applicability of the prerogative everywhere in the empire, whether settled, ceded or conquered, was never doubted123. The imperial jurisdiction of the Earl Marshal was held to extend to the arms of at least some of the former Indian princes124, and it must a fortiori extend to those British subjects overseas whose arms have been granted by the College of Arms. The Sovereign also retains vestigial rights to grant arms personally125.
The Crown in right of the United Kingdom undoubtedly has executive authority over British subjects wherever domiciled126. Grants are valid irrespective of the petitioner’s place of residence127. Although the English heralds claim extends to an exclusive right to grant arms to all Commonwealth citizens, in reality they restrict the claim to the old dominion countries128.
By virtue of the fact that the laws of New Zealand are legally based upon those of England, the only proper authority for the grant of arms in New Zealand is the College of Arms, now exercising the prerogative delegated by the Sovereign in right of New Zealand. Indeed, the New Zealand Government does officially recognise the authority of the Earl Marshal and the Kings of Arms of the College of Arms129.
This is made clear by the official recognition accorded the New Zealand deputy to Garter King of Arms, the New Zealand Herald of Arms Extraordinary to Her Majesty The Queen130. A further indication that the authority of the English heralds is officially recognised is that the Statutes of the New Zealand Order of Merit recognises only those arms granted or confirmed by Garter King of Arms131.
It has been said that the imperial jurisdiction of the Earl Marshal and Garter King of Arms is difficult to support either from a plain reading of their warrants and commissions of office, or on the basis of the important negative evidence132. But the weight of authority appears to be otherwise.
The authority of the Earl Marshal’s Court to decide the Manchester Corporation v Manchester Palace of Varieties Ltd133 was clear, but the existence and exercise of its judicial authority had no bearing of the exercise of the prerogative of granting arms belonging to the Crown. Unfortunately, there has been a tendency in armorial circles to confuse these executive and judicial functions. The Manchester Corporation Case was concerned with the judicial authority of the Earl Marshal’s Court to regulate the use of arms, and did not specifically consider the executive authority of the kings of arms to grant arms.
VIII. AUTHORITY VESTED IN LORD LYON
It is widely believed that the Court of the Lord Lyon King of Arms has authority to grant arms to New Zealanders and other subjects of Her Majesty abroad, specifically for those who are of Scottish ancestry. But if has been claimed further that “outside the United Kingdom the executive armorial functions of the Earl Marshal and Lord Lyon are co-extensive rather than exclusive”. Hence ... “grants of arms to non resident British subjects by the English and Scottish Kings of Arms are entitled to equal recognition in the British Commonwealth countries overseas”134. This however is incorrect in both Scots and New Zealand law.
The belief in a co-extensive jurisdiction has not gone unanswered. The late George Squibb, QC has done much to clarify the law. The most important piece of evidence relied upon by him is the Lord Lyon Act 1867135, especially s 1. This shows that, when acting out of his own country, Lyon is subject to the Earl Marshal136. By this Act, the ministerial powers of Lord Lyon in relation to arms are confined to the territorial limits of Scotland137.
In armorial matters the Kings of Arms are the Ministers to whom is delegated the exercise of that part of the Royal Prerogative by which arms are granted138. By Commission the Sovereign grants Lord Lyon “Our full power liberty licence and authority of giving and granting Armorial Bearings to virtuous and well deserving persons, according to the rules and ordinances already established”139. In this case the ordinance is the Lyon King of Arms Act 1672140.
Agnew of Lochnaw believed that this provides no limitation as to nationality, except in so far as this is implied by other laws141. He contended that the armorial Ministers of the Crown have an unfettered discretion to exercise the prerogative and grant arms to whom they please, subject to the Law of Arms of their jurisdiction142. He contended that it is by convention only that Lyon restricts grants of arms to only those of Scottish domicile or those with heritage in Scotland or to Commonwealth citizens of Scots descent. He believed that it is similarly only by convention that English heralds grant arms only to those domiciled in England or the Commonwealth, and that these convention are not binding143.
But the Court of the Lord Lyon has, by a statute of the former Scottish Parliament144 and more recent British legislation145, authority only over the territory of Scotland. Garter King of Arms, exercising the authority of the Earl Marshal, is not similarly limited. Lord Lyon may in practice grant arms to those of Scottish ancestry, but it by no means certain that he should do so, nor that this should extend to corporate bodies, such as the 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 the sole authority for granting arms in Scotland146. He has significant powers to enforce the Scottish Law of Arms through the Courts, for unlike in England, the Law of Arms in Scotland is part of the general law, and justiciable in the ordinary Courts. The powers and jurisdiction of Lord Lyon are partly customary and partly statutory in origin, and were confirmed by Acts in 1672 and 1867147.
The Lyon King of Arms Act 1672148, the principal statutory source for the authority of Lord Lyon, states that no person or corporate body in Scotland is entitled to bear arms unless these are recorded in the Public Register of All Arms and Bearings in Scotland. The recording may be due to grant, confirmation or matriculation149. A grantee and their descendants are permitted to use the arms on apparency for three generations, but thereafter a matriculation is necessary150.
Grants of arms have been made solely by Lord Lyon since at least as early as 1542151. The usual procedure was to grant royal warrants ordering Lord Lyon to “give and grant” arms152. Under the 1672 Act he may grant arms to natural and corporate persons who are domiciled in Scotland or who own heritage in Scotland153. According to the Scots, Lord Lyon can also make grants to citizens of any country of the Commonwealth of Scots descent, or from aliens who can show that they require to bear arms in Scotland154. A grant is usually made to the petitioner and other heirs of his grandfather155.
Crawford argued that the wording of Lord Lyon Act 1867156 did not territorially limit Lord Lyon’s jurisdiction, but rather preserved it157. This disregarded the question which should have been asked first, namely, whether the Scottish Law of Arms can have any application in common law countries, when it is expressly said to be a part of Scots law158. It also ignores the fact that the authority of Lord Lyon was already limited under the 1672 Act to persons and corporate bodies in Scotland. Preservation of his authority cannot amount to an extension of it. Section 1 of the 1867 Act provided that:
[T]he Jurisdiction of the Lyon Court in Scotland shall be exercised by the Lyon King of Arms, who shall have the same Rights, Duties, Powers, Privileges, and Dignities as have heretofore belonged to the Lyon King of Arms in Scotland, except in so far as these are hereinafter altered or regulated159.
Nor did the Union with Scotland Act 1706160 specifically preserve the armorial jurisdiction of the Lyon, as has been suggested161. Article 19 the Treaty of Unionclearly preserved the authority of the Court of Session and other Courts, but not necessarily the executive powers rather than the judicial jurisdiction of Court of Lord Lyon. Article 24 refers merely to the rank and precedence of Lyon being determined as best suited the Queen, and does nothing to extend his heraldic jurisdiction overseas. Agnew of Lochnaw argues however that the Lord Lyon Act 1867162 only limits the judicial jurisdiction of Lyon Court, not the ministerial powers of Lord Lyon163, and that since the grants are of Scottish arms, Lord Lyon is not acting outside Scotland164.
Sir Thomas Innes of Learney has maintained that since Scotland is an equal partner in the United Kingdom with England, the legal position regarding any new grant of arms by the Officers of Arms of either country is somewhat analogous to that regarding English and Scottish peerage creations between 1603 and 1707165.This is an interesting suggestion, but unfortunately it does not help his case. Further, it shows an ignorance of constitutional law, as it ignores the effect of Calvin’s Case166.