The law of arms in new zealand

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Calvin’s Case was approved by the House of Lords in Lord Advocate v Walker Trustees167. The essence of Calvin’s Case was that Scottish peers were not recognised as peers in England. If the analogy were properly applied, Scottish arms would not be recognised by English law. Indeed, Scottish and Irish peers have only been recognised as entitled to the privileges of peerage in England since the Union with Scotland Act 1706168 and the Union with Ireland Act 1800169, and only then because of express statutory provision.

Both before and after 1867 the letters patent appointing Lord Lyon have included a territorially descriptive title to the office of Lyon, but in each the actual concession of armorial authority by the Sovereign is made without such limitation170. Squibb maintains that the form of appointment of Lyon has changed much since the Lyon Court Act 1867, but Crawford disagrees171. On 26 May 1796 Letters Patent (which were in Latin) appointed the notoriously incompetent Robert Auriol Hay, 9th Earl of Kinnoull as Lyon. According to Crawford, the wording was no wider than that of the 1890 letters patent.

Crawford maintains that if the phrase “in that part of Our United Kingdom called Scotland” were intended to be more than merely descriptive, it might be expected that it would be repeated in connection with some limitation of the royal “power, liberty, licence and authority of giving and granting armorial bearings...”. However, this view ignore the words “according to the rules and ordinances already established for that purpose”. Arms are not granted in isolation, there must be a Law of Arms. There is, but that of Scotland was, and remains, different from that of England. This elementary observation must be made because of the tendency to ignore this point when discussing imperial jurisdiction.

Since 1867, the letters patent creating a new Lyon have described him as “Lord Lyon King of Arms in that part of Our United Kingdom called Scotland”172. The Royal Warrant of 9 March 1905 for precedence in Scotland similarly interpolates “in Scotland”173. Lord Lyon has a legal duty to determine the extent of his executive authority in each case174. However, this is subject to review by the Court of Session. The jurisdiction of the Court of the Lord Lyon in questions of precedence175 or clan chiefships176 was rejected by the Court of Session, but Lord Lyon does not regard those decisions as being final177.

Lord Lyon may have authority to grant arms overseas which are valid in Scots law178, but they are not recognised by the Law of Arms of England, nor in any country in the Commonwealth, nor recognised by local laws unless by the rules of private international law179. Grants of arms had been made to persons not domiciled in Scotland before the passage of the 1867 Act, and nothing had been done to prevent the continuation of this practice180. The right to grant arms to persons who sought cadet-matriculations of previously extant Scots arms, or who sought arms by virtue of ownership of land in Scotland still falls to the Lyon as a purely Scottish officer, and does not imply an extra-territorial jurisdiction181.

The holder of a foreign coat of arms, or of an English, must matriculate his arms in his own name with such differences as may be necessary to distinguish them from any recorded Scottish coat of arms, if he wishes to bear them in Scotland182.

Lyon will recognise a substantive grant by a competent authority. However, honorary grants of arms by the English kings of arms are not recognised for the purpose of recording arms in Scotland. Nor will foreign arms be matriculated by Lyon if the petitioner is subject to Lyon’s jurisdiction, on the grounds that they should have sought a new grant from Lyon183. It has been argued that Scotland and England have a common Crown, and therefore Garter and Lyon should have equal power184. This of course is incorrect, since the Crown may be one185, but the officers are separate. Lord Lyon is a Scottish officer, Garter an English and imperial officer.

The Law of Arms in Scotland is that administered by the Court of Lord Lyon, and never constituted a part of the laws of England, so cannot have legal force in New Zealand. Laws of Arms of Scotland and England are different.

Whatever their original position, since independence all Commonwealth countries are recognised by international law as sovereign states. However, where the Queen is head of state, it is in a different capacity from that in which she is Queen of the United Kingdom. Garter is appointed by the Sovereign of the United Kingdom, but this does not necessarily invalidate any exercise by him of the royal prerogative in those countries186.

Until an independent New Zealand heraldic authority is created, receiving from the Crown a direct delegation of the royal prerogative to grant arms, the proper and legally correct authorities to grant arms in New Zealand are the kings of arms and heralds the College of Arms. It has been said that because the Crown of New Zealand (or Canada or Australia) is different to that of the United Kingdom, then it is inappropriate for members of the College of Arms187 to be the heraldic authority for these distinct sovereignties. It may be that it is inappropriate for this to continue, but the kings of arms have clearly not lost the legal right to regulate arms in the Queen’s overseas dominions.

Agnew of Lochnaw asked, if the English claim to an exclusive jurisdiction is correct, are these English arms being granted to a citizen of a different sovereign nation, or are they a new species of national arms? Is a grant by Garter to a Canadian a grant of English or of Canadian arms? He thought that if they are Canadian arms, it is for the law of Canada to determine how the royal prerogative to grant arms is to be exercised, and what their status is to be in Canada. If they are Canadian arms, then their use in England is the use of arms which are foreign188. If they are English arms, which appears more likely, then Canada will apply her private international law rules to determine what effect in Canada will be given to English grants189. How does this apply to New Zealand?
In 1975 it was decided to not establish an independent heraldic authority in New Zealand, but to continue to make use of the College of Arms190. This decision was, according to Macaulay constitutionally inappropriate, but was certainly efficient191.

There had previously been proposals for a New Zealand King of Arms, to be under the Earl Marshal and Garter Principal King of Arms, and within the College of Arms, before the 6 February 1978 appointment of Phillip O’Shea192 as the New Zealand Herald of Arms Extraordinary to Her Majesty The Queen193. The essential validity of the appointment by royal warrant of the Queen of New Zealand addressed to the Earl Marshal of England, without the Sovereign of the United Kingdom interponing authority to the warrant has been questioned194. But the prerogative of the Sovereign may be delegated to whomsoever she pleases.

This was a simpler arrangement, and one better reflecting the lower profile of heraldry in this country. New Zealand Herald Extraordinary is the representative in New Zealand of the College of Arms. As an extraordinary herald, he is not a member of the College, and has the same (limited) authority as any Herald Extraordinary. However, in practice much of the work in New Zealand of the College of Arms is delegated to him195.

Since the appointment of New Zealand Herald, letters patent issued by the College of Arms to New Zealanders have de-emphasised their English origins196. They bear the New Zealand royal style, rather than that of the United Kingdom197. It is not clear whether grants are under the royal prerogative of the Queen of the United Kingdom, or of New Zealand198, but this makes little difference in practice, as the Laws of Arms are the same in each jurisdiction.

Since 1978, the position of armorial bearings in New Zealand has remained largely unchanged. The Flags, Emblems, and Names Protection Act 1981 was intended to protect various emblems, such as the royal crown, from false use. It was recommended at that time that protection ought to be extended to coats of arms, but this was not done199.

The Act does however provide protection against the unauthorised use for the Royal Arms, Royal crown, Royal coronet or Royal cypher, Royal Standard or Sovereign’s personal flag for New Zealand or the Governor-General’s Flag200. It is an offence to alter the New Zealand Flag201. It is also illegal to use any representation of the coat of arms of New Zealand, the Seal of New Zealand, or any emblem or official stamp of any Government department202.

One recent change, and one which has not pleased some203, is that the Statutes of the new New Zealand Order of Merit provide recognition only for those with armorial bearings granted or confirmed by Garter King of Arms204. There is also a Herald for the Order205. Although not a member of the College of Arms, and not entitled to grant arms in his own right, his duties include preparing certificates for the Garter for the grant of supporters for Knights and Dames Grand Companions206. He is akin to the private heralds of the British Orders.
The Law of Arms is in the difficult position of applying in New Zealand, yet having no Court in which it disputes can be decided. One possible solution, apart from legislation, is indicated by the example of the Law Merchant.

Those laws which form part of the laws of England, but not of the common law, include the ecclesiastical law and the Law of Arms. However, the modern commercial law also grew out of the custom and usages of the merchants, known as the Law Merchant. Some of these customs were written down, and became a code of international commercial customs. In the Statute of the Staple 1352-3207 this was recognised as part of the law of England, though it is unclear to what extent it was systematised in England. Gerard de Malynes regarded Law Merchant as customary law approved by the authority of all kingdoms and not as law established by the sovereignty of any prince208.

Like the canon law-based ecclesiastical law, it was the “law of all nations”209. However, the growing power of the royal Courts from the fourteenth century weakened that of the local merchants’ Courts210. The absence of a reception of Roman civil law, unlike other parts of Europe, the relative geographical isolation, and the commercial weakness of England before the sixteenth century all contributed to the law merchant developing differently in England to on the continent211.

In Tudor times the High Court of Admiralty became really active, and developed its full mercantile and maritime jurisdiction. However, up to 1606 the mercantile law remained a special law administered by special Courts for a special class of people212. In the period 1606 to 1756 the special Courts (known as Pie Powder Courts, and comprised of merchants) declined213. This was due in large part to the attacks of the common lawyers.

The elasticity of the action on the case enabled the common law judges in the later part of the sixteenth and seventeenth centuries to absorb the law merchant into their own system, while preserving its peculiar identity. Proceedings were brought on an action on the case on the custom of merchants, the details of the custom being pleaded at first as facts214. If the contract had been made abroad, jurisdiction was obtained by the fiction that it had been made at the Royal Exchange or in Cheapside.

The decline of the Staple Courts, where the lex mercatoria or Law Merchant was administered, was largely due to Sir Edward Coke, who oversaw the acquisition by the common law Courts of most of the commercial litigation from the early part of the seventeenth century215. As early as 1606 Coke was able to assert that the law merchant was part of the law of this realm216. He also limited 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 been entered into on the high seas217.

Towards the end of the seventeenth century it became unnecessary to plead that one of the parties to an action were a merchant, and once a considered judgment on a custom had been given, the custom was judicially noticed, and no proof of it were needed in later cases218.

Following upon the initial groundwork prepared by Chief Justice Holt, from 1756 Lord Mansfield led the way in the development of the Law Merchant into the 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 international custom, and special juries of merchants for current trade customs and findings of fact.

What was once international and customary law has become a national and fixed body of law by the use of case law and precedent. However, the law merchant remains a living body of principles which may be extended by proof of a new custom219.

It would not be beyond the realms of possibility for a judge like Lord Mansfield to find that the common law Courts could take cognisance of the Law of Arms, and leave it to others to thereafter gradually incorporate it into the common law. Such an approach would be quite tenable, especially given the absence of a New Zealand Court exercising the 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 the assimilation of the Law of Arms into the common law of New Zealand220.

The Law of Arms of England has been incorporated into New Zealand law. The use of coats of arms is subject to this special law. However, while there is at present no Court to administer the law, the law itself is clear. Grants of arms are made by the Crown, and in the absence of any special delegation, this prerogative is exercised by the Earl Marshal and his servants in the College of Arms. Thus the absence of a judicial organ in New Zealand does not invalidate the exercise of the executive powers conferred by the royal prerogative.

A partial delegation of the prerogative of arms has in fact been made, with the appointment in 1978 of a New Zealand Herald of Arms Extraordinary to Her Majesty The Queen, and it is to him that New Zealanders should turn for grants of arms.

1The principal Scottish herald and head of the Court bearing this title.

2See Sir Crispin Agnew of Lochnaw, “The Conflict of heraldic laws” (1988) Juridical Review 61; Squibb, “Heraldic Authority in the British Commonwealth” (1968) 10 Coat of Arms (no 76) 125.

3According to the Scottish herald and advocate, Agnew of Lochnaw, the root of this question of jurisdiction is private international law, as well as the exercise of the royal prerogative: Agnew of Lochnaw, supra n 2.

4G D Squibb, The High Court of Chivalry (1959) xxv-xxvi.

5It once covered prisoners of war: Totesham v Garenseres (1351), cited in Squibb, ibid, 166 n 6; and appeals of treason: “solonc la ley & usage d’armes”, Rotuli Parliamentorum iii 604.

6For example, St George v Tuckfield (1637) Reports of Heraldic Cases in the Court of Chivalry 24; Prust v Saltren (1637) Reports of Heraldic Cases in the Court of Chivalry 25.

7Though the only case in which an undoubtedly armigerous defendant was accused of misusing arms was Oldys v Fielding (1702) Reports of Heraldic Cases in the Court of Chivalry 102.

8Squibb, supra n 4, 138.

9As in Halsbury’s Laws of England (3rd ed, 1960) vol 29, 239-270.

10The Crown’s prerogative as fount of honour remains exercisable personally by the Sovereign.

11The position of Ulster grants is considered in Sir Christopher Lynch-Robinson & Adrian Lynch-Robinson, Intelligible Heraldry. The application of a Mediæval System of Record and Identification to Modern Needs (1948) 112-113. Prior to 1922, arms granted by Ulster King of Arms, now an officer of the College of Arms and an “English” herald, were undoubtedly governed by the Irish law: Agnew of Lochnaw, supra n 2, 62.

12Paston v Ledham (1459) YB 37 Hen VI, Pasch 18 per Nedham J.

13Manchester Corp v Manchester Palace of Varieties Ltd [1955] 2 WLR 440; [1955] 1 All ER 387; [1955] P 133 per Lord Goddard. As early as Scroop v Grosvenor (1389) Calendar of Close Rolls, Ric II, vol 3, 586, it was established that a man could have obtained at that time a definite right to his arms, and that this right could be enforced against another.

14R v Parker (1668) 1 Sid 352; 82 ER 1151 per Keeling CJ.

15Manchester Corp v Manchester Palace of Varieties Ltd [1955] 2 WLR 440; [1955] 1 All ER 387; [1955] P 133 per Lord Goddard.

16Duke of Buckingham’s Case (1514) Keil 170; 72 ER 346.

17Earl Cowley v Countess Cowley [1901] AC 450 (HL).

18Bishop of Exeter v Marshall (1868) LR 3 HL 17.

19Scroop v Grosvenor (1389), supra n 13. The Court of Chivalry is the subject of a chapter by Sir Edward Coke, Coke upon Littleton (1979) vol 4, ch 17.

20Puryman v Cavendish (1397) Close Rolls 21 Ric II p 1 m 5. The opinion among lawyers is good evidence of what the law is: Isherwood v Oldknow (1815) 3 M & S 382, 396; 105 ER 654 per Lord Ellenborough; applied in Manchester Corp v Manchester Palace of Varieties Ltd [1955] 2 WLR 440, 448 per Lord Goddard.

21Cases were tried secundum legem et consuetudinem curie nostre militaris: Puryman v Cavendish (1397) Close Rolls 21 Ric II p 1 m 5. This was recognised by the common law Courts: Paston v Ledham (1459) YB 37 Hen VI, Pasch 18 per Nedham J.

22Now largely governed by the Ecclesiastical Jurisdiction Measure 1963 (UK).

23For a discussion of corporeal and incorporeal property, see Cox, “The British Peerage: The Legal Standing of the Peerage and Baronetage in the Overseas Realms of the Crown with Particular Reference to New Zealand” (1997) 17 NZULR 379.

24Arms descend, with due and proper differencing, in the first instance to male descendants of the grantee, and then through females as heraldic heiresses in the event of the failure of the male line, as quarterings: Wiltes Peerage Case (1869) LR 4 HL, 126, 153 per Lord Chelmsford.

25See, for example, AC Fox-Davies, A Complete Guide to Heraldry (1985) ch 2. This has not however always been the case. As the phraseology used in early English grants show, they were in effect ennoblement, the insular equivalent of the grants of nobility by letters patent which were common on the continent, particularly in France: Lucas, “Ennoblement in late mediæval France” (1977) 39 Mediæval Studies 239-60.

26Gayre mistakenly believed that Lord Goddard’s acceptance that coats of arms were a dignity must mean that they are a nobiliary rank: Robert Gayre of Gayre and Nigg, The Nature of Arms (1961) 58-59. The possession of armorial bearings is intended more as a recognition of an established status, rather than a means of improving social status. Although the right to bear arms must be regarded as a dignity since it depends upon the exercise of the royal prerogative, it would be a mistake to assume that this in any way makes it an honour.

27The technical description of a coat of arms, written in the peculiar patois of the heraldist.

28It is said that Lord Lyon has authority to prescribe new heraldic rules if the Laws of Arms are deficient: Act in favour of the Lyon King of Arms against painters, goldsmiths and others who issue coats of arms to persons not privileged to wear them: Registers of the Privy Council of Scotland, 2nd Series, vol 3,594. It is, however, not clear that this was intended to cover the laws of arms or merely the rules of heraldry. The latter is more likely.

29More correctly, of the old common law of Scotland: Macrae’s Trustees v Lord Lyon King of Arms [1927] SLT 285.

30M’Donnell v M’Donald (1826) 4 Shaw 371, 372 (NS 374, 376) per Lord Robertson.

31Royal Warrant Holders v Alexander & Co 21 March 1933 Scotsman 22 March (Lyon Court).

32Maclean of Ardgour v Maclean 1941 SC 683, line 35, reaffirming M’Donnell v M’Donald (1826) 4 Shaw 371. Since Lyon King of Arms Act 1672 (24 Chas II c 47) (Sc) all arms in Scotland are regarded as incorporeal heritage: Sir Thomas Innes of Learney, Scots Heraldry (1978) 13. Ownership of heritage makes the owner a feudal vassal of the Crown: Haldane v York Building Co (1725) Rob 521.

33The wording used in the letters patent of Lord Lyon granting armorial bearings are “by demonstration of which Ensigns Armorial he and his successors in the same are, amongst all Nobles and in all Places of Honour, to be taken, numbered, accounted and received as Nobles in the Noblesse of Scotland”.

34Compare Sir Anthony Wagner, The Work of the College of Arms, III: Searches for Arms (undated) 1, and Innes of Learney, Scots Heraldry (1956) 95-96, 99.

35In England a person can have only one coat of arms, although this rule does not apply in Scotland: J Dallaway, Inquiries with the Origin and Progress of the Science of Heraldry in England. With explanatory observations on armorial ensigns (1793) 368.

36G D Squibb, The Law of Arms in England (1967); Innes of Learney, supra n 32, 77-79.

37The Oath which Kings of Arms took reflected their role as arbiters of heraldry, even before they acquired exclusive authority to grant arms. This may be seen in the Statutes and Ordinances to be keped in time of Werre, purported to date from the 27th day of February of the ninth year of the reign of Richard II, reprinted by 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).

38M Keen, Chivalry (1984) 129.

39W de Worde (ed), d, VII-VIII.

40The latter ground being very rarely found, and all known examples are from a late period, the earliest being by the Black Prince from King John of France, at Poitiers: Keen, supra n 38, 129-130.

41Gayre of Gayre and Nigg, supra n 26, 58-59; Squibb, supra n 4, 164; A Collins, Proceedings, Precedents and Arguments on Claims and Controversies Concerning Baronies By Writ (1734) 63.

42The practice of assuming armorial bearings has continued, at least as regards burger arms, in a number of countries, such as Switzerland.

43“De Insigniis et Armis”, printed in Jones (ed), Mediæval Heraldry; Some fourteenth century heraldic works (1979) 224-52; Scroop v Grosvenor (1389), supra n 13.

44F P Barnard (ed), The Essential Portions of Nicholas Upton’s De Studio Militari before 1446 (1931) (trans J Blount) 48.


46Wynkyn de Worde (ed), d, VII-VIII, reprinted in Dallaway, supra n 35, App V, cxii.

47See Sir George Mackenzie of Roxhaugh, Lord Advocate of Scotland, The Science of Heraldry, Treated As A Part of The Civil Law, and The Law of Nations (1680) 11, and the authorities there cited.

48He has been identified as John Trevor, Bishop of St Asaph; Squibb, supra n 4, 178-179.

49Printed in E Jones (ed), supra n 43.

50. The earliest princely grant seems to be of the Emperor Lewis of Bavaria in 1338, although they were common by the end of that century; Sir Anthony Wagner, Heralds and heraldry in the Middle Ages (1956) 65, 122.

51Richard Strangways’ unpublished Tractatus nobilis de lege et exposicione armorum, written in the 1450s, argued that arms might be granted by a herald or pursuivant: BM Harl ms 2259 f 109b, cited in Squibb, supra n 4, 179 n 3.

52Blazon of Gentrie (1586) 224; see also Sir Harris Nicolas, The Controversy between Sir Richard Scrope and Sir Robert Grosvenor in the Court of Chivalry, AD 1385-1390 (1832) i, 1-357.

53Austen v Collins (1886) 5 LT 903.

54User since time immemorial also gives a good title, under civil law as under the common law. It has been suggested that it follows that prescription gives a right to arms: Baildon, “Herald’ College and Prescription” (1904) 8 The Ancestor 113; Anon, “The Prescriptive Usage of Arms” (1902) 2 The Ancestor 40, 47. Squibb has pointed to the flaws in these views. Use of arms never gave right, and was only ever evidence of immemorial use: Squibb, supra n 4, 179-185.

55For the Law of Arms this was from 1066, rather than 1189, as for the common law, see Squibb, ibid, 180-181 n 3. The Court was prepared however to accept that evidence of user from before the time of living memory raised a presumption that the user had continued for the necessary period: Squibb, ibid, 183; cf Angus v Dalton (1877) 3 QBD 85, 89-90 per Lusk J.

56It has always been assumed that this is the prerogative of the English Crown: Strathmore Peerage Case (1821) 6 Pat 645, 655 (HL). This was argued by Dr William Oldys, King’s Advocate, in pleadings before the Court of Chivalry from 1687: Squibb, supra n 4, 183-184.

57The jurisdiction of the pre-heraldic Court of Chivalry to decide dispute to arms was based on the Law of Arms, not the royal prerogative. This was reinforced by the exclusive jurisdiction of the Court of Chivalry to determine the right to arms: Scroop v Grosvenor (1389), supra n 13.

58Scroop v Grosvenor, ibid, established that the Crown had supreme control and jurisdiction over armorial bearings, and could and did grant arms. From 1467 the right of the Crown to issue patents of arms was explicitly asserted. However, until late in the fourteenth century at least, the English royal heralds themselves had no control over the design of arms, or who bore them, being responsible only for recording and identifying the various coats of arms.

59On the death of King Richard III his acts were declared void, and the College of Arms received a new charter in 1556. However, the existence or absence of legal authority for the collegiate government of the College did not affect the heraldic jurisdiction of the individual Kings of Arms and heralds.

60See infra p 240.

61The Earl Marshal, an office hereditary in the family of the Duke of Norfolk, was deputy to the Constable. The latter office is now dormant except for coronations.

62See Squibb, supra n 4. However, the substance of the canon law administered by the ecclesiastical Courts of the Church of England is strongly influenced by the civil law: Statutes, Decrees and Regulations of the University of Oxford (1973) tit. IV s xiii, 4; Rules of the Vice-Chancellor’s Court, rule 21.

63The early pleas of arms are few, and the reports scanty, except for the three great cases of the era: Scroop v Grosvenor (1389), supra n 13; Lovel v Morley (1386); and Grey v Hastings (1410). The latter two cases are cited by Sir Anthony Wagner, Heraldry in England (1946) 14-15.

64Keen, “Treason Trials under the Law of Arms” (1962) 12 Transactions of the Royal Historical Society 85.

65See Squibb, supra n 4, 2-12.

66As, for example, in R v Nelson & Brand (1867) Special Report (2nd ed) 92 per Cockburn CJ. This belief does not, however, appear to date from before Hale: Sir Matthew Hale, History of the Common Law (3rd ed, 1739) 38-39.

67Sir William Holdsworth, A History of the English Law (1956) vol 1, 576.

68Duke of Buckingham’s Case, supra n 16.

69Sturla v Freccia (1880) 5 App Cas 623, 628. Pleas of arms were heard by the Court of Chivalry from at least as early as the fourteenth century, the first known case being a dispute between Nicholas Lord Burnell and Robert Lord Morley in 1348. See also Scroop v Grosvenor (1389), supra n 13.

701 Hen IV c 14 (Eng). See Squibb, supra n 4, 29-40. The criminal jurisdiction of the Court in appeals of treason and homicide were abolished by 59 Geo III c 46, though long since obsolete.

71Squibb, supra n 4, 39-40.

72Royal declaration of 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 after 1641: Letters patent, 1 August 1622, College of Arms mss, SML 3 f 228, printed in Squibb, supra n 4, appendix III, 248.

73Letters patent 13 August 1687, printed in Squibb, supra n 4, appendix IV, 240.

74Oldis 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 Case established that a private person was not punishable for making arms, ordering funerals without authority, or painting arms contrary to heraldry. This was because infringement of the herald’s privilege gave rise to an action on the case, which could only be heard in a common law Court.

75(1702) 7 Mod Rep 125; 87 ER 1139.

76Both on the basis of 8 Ric II c 5 (1384) (Eng), and because of the jealousy of the common law Courts, encouraged by Sir Edward Coke in particular.

77The King’s Bench had held that the Court of Chivalry had jurisdiction over disputes as to precedence: Ashton v Jennings (1675) 2 Lev 133. Squibb could not identify any traces of the exercise of such a jurisdiction in the surviving records of the Court, though instances of such disputes could be found among the disputes determined by Commissioners prior to the revival of the Court in 1622: Squibb, supra n 4, 143.

78The last case concluded was Blount’s Case (1737) 1 Atk 295; 26 ER 189.

79R v Mayor & Jurats of Hastings (1882) Dow & Ry KB 148; R v Wells Corporation (1836) 4 Dowl 562.

80Lord Goddard suggested that the Court be placed upon a statutory basis before commencing any new period of activity: Manchester Corp v Manchester Palace of Varieties Ltd [1955] 2 WLR 440, 449, 450-1.

81[1955] P 133; [1955] 2 WLR 440.

82The reorganisation of the judicial system in England, brought about by the Judicature Act 1873 (36 & 37 Vict c 66) (UK), incorporated into the Supreme Court specialised jurisdictions, especially those in the Courts formerly the province of the civilians.

83However, 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 such: Paston v Ledham (1459) YB 37 Hen VI, Pasch 18 per Nedham J.

84Royal Charter 16 November 1840, “Charter for erecting the Colony of New Zealand, and for creating and establishing a Legislative Council and 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 1860 ss 4-6; Supreme Court Act 1882 (46 Vict no 29) s 16.

85Judicature Act 1908 s 16.

8646 Vict no 29.

87Supreme Court Act 1882 (46 Vict no 29) s 16.

88Supreme Court Act 1860 s 4.

89Session 2, no I1, ss 2-7.

90Session 3 no 1, ss 2-3.

91See for example, the Supreme Court Ordinance 1841 (session 2, no 1), ss 3-5.

92The authority of the Court of Chivalry derives from the authority of the Earl Marshal, not from any jurisdiction which the Kings of Arms might possess. The Court could be held before the Earl Marshal alone: Manchester Corp v Manchester Palace of Varieties Ltd [1955] 2 WLR 440; [1955] 1 All ER 387; [1955] P 133, following Anon (1732) 2 Barn KB 169; 94 ER 427.

93In re the Lord Bishop of Natal (1864) 3 Moo PCC NS 115; 16 ER 43.

94Norfolk Earldom Case [1907] AC 10, 17 (HL) per Lord Davey.

95As with the creation of new types of dignities, see the Parliamentary Report as to the Dignity of a Peer of the Realm (1829) vol 2, 37.

96Thus in Canada the legal protection of coats of arms is as weak as it is in England and New Zealand, because the Canadian Heraldic Authority was established by letters patent in an exercise of the royal prerogative.

97Scots lawyers do not necessarily agree however: The Laws of Scotland (1987) vol 5, paras 711 et seq; Sir Thomas Smith, “Pretensions of English Law as ‘Imperial Law’“ in The Laws of Scotland (1987) vol 5, paras 711-719.

98R v Symonds (1847) NZ PCC 387; Veale v Brown (1866) 1 CA 152, 157; Wi Parata v Wellington (Bishop of) (1877) 3 NZ Jur (NS) SC 72; R v Joyce (1906) 25 NZLR 78, 89, 112 (CA); Re the Ninety Mile Beach [1963] NZLR 461, 475-6 (CA). It is a general rule that common law applies to a colony unless it is shown to be unsuitable, but English statutes do not apply unless shown to be applicable: Uniacke v Dickinson (1848) 2 NSR 287 (NS); Wallace v R (1887) 20 NSR 283 (NS); R v Crown Zellerbach Canada Ltd (1954) 14 WWR 433 (BC).

9921 & 22 Vict no 2, considered in King v Johnston (1859) 3 NZ Jur (NS) SC 94.

100This Act was passed, in the words of the long title, “to declare the Laws of England, so far as applicable to the circumstances of the Colony, to have been in force on and after the Fourteenth day of January, one thousand eight hundred and forty”. The purpose of the statute was really to clarify the uncertainty as to whether or not all Imperial acts passed prior to 1840 were in force in New Zealand, if applicable. Although the uncertainty had really been about statutes, the 1858 Act went further and in s 1 expressly stated that: “The Laws of England as existing on the fourteenth day of January, one thousand eight hundred and forty, shall, so far as applicable to the circumstances of the said Colony of New Zealand, be deemed and taken to have been in force therein on and after that day, and shall continue to be therein applied in the administration of justice accordingly.”

101Macaulay, “Honours and Arms: Legal and Constitutional Aspects of Practice concerning Heraldry and Royal Honours in New Zealand” (1994) 5 Canta LR 381, 387.

102R v Parker (1668) 1 Sid 352; 82 ER 1151 per Keeling CJ.

103Macaulay, supra n 101, 387.

104Section 5 impliedly preserves the prerogative, and the wording of the Act clearly limits its application to the statutory law.

105Kielley v Carson (1824) 4 Moo PCC 63; 13 ER 225; Lyons Corp v East India Co (1836) 1 Moo PCC 175; 12 ER 782; Phillips v Eyre (1870) LR 6 QB 1; Sammut v Strickland [1938] AC 678 (PC); Sabally and N’Jie v Attorney-General [1965] 1 QB 273; [1964] 3 All ER 377 (CA). Blackstone’s statement that “colonists carry with them only so much of the English Law as is applicable to their own situation and the condition of the infant colony” is, like so many of his generalisations, misleading. It would have been nearer the truth if he had said “colonists carry with them the mass of English law, both common law and statute, except those parts which are inapplicable to their own situation and the conditions of the infant colony”. What became applicable was far greater in content and importance that what had to be rejected: Sir William Blackstone, Commentaries on the Laws of England (1978) book I, para 107 (ed E Christian).

106The applicability of the Law of Arms has been questioned, see for example, Crawford, “Some views on English and Scots heraldic authority outside the United Kingdom” (1977) Coat of Arms (no 102) 157, 158-159. The test of course requires an evaluation of the applicability of laws at the time the colony was settled, and not at the time the Court considers the question.

107Whicker v Hume (1858) 7 HLC 124, 161; 11 ER 50 per Lord Carnworth.

108Lawal v Younan [1961] All Nigeria LR 245, 254 (Nigeria Federal SC). In Highett v McDonald (1878) 3 NZ Jur (NS) SC 102, Johnston J observed, in finding that the statute 24 Geo II c 40 (GB) (The Tippling Act) was in force in New Zealand, that provisions for the maintenance of public morality and the preservation of the public peace were, in their general nature, applicable to all the colonies.

10915 & 16 Vict c 72 (UK).

110See Cox, supra n 23.

111In 1907 the Law Officers held that Garter had an imperial jurisdiction. However, neither then nor in 1913, was it expressly asserted that there was not an equally wide jurisdiction enjoyed by Lord Lyon: Opinion of the Law Officers of the Crown on Heraldic Jurisdiction, 13 August 1913 cited in Sir Anthony Wagner, Heralds of England: a history of the Office and College of Arms (1967) 530.

112Agnew of Lochnaw, supra n 2, 71.


114The Crown has supreme control and jurisdiction over arms, and possesses the authority to grant arms: Scroop v Grosvenor (1389), supra n 13. This right is exercised by the Earl Marshal as the deputy to the Constable, both personally, and through the Court of Chivalry. The Earl Marshal’s authority originates in the grant on 28 June 1483: (1483) Calendar of Patent Rolls 358. The kings of arms have inherent authority deriving from their function as servants of the Earl Marshal, and the letters patent appointing individual kings of arms specially authorise them to make grants of arms.

115Schell Lannoy, “Heraldic Authority in the Dominion of New Zealand” in (1970) New Zealand Armorist (no 4) 15, 16-17.

116As officers of the Earl Marshal, the acts of the kings of arms in matters armorial cannot be questioned in any Court of law: Austen v Collins (1886) 5 LT 903.

117Letters patent of Charles II creating the office of Earl Marshal in the family of the Duke of Norfolk, dated 19 October 1672; Squibb, supra n 2, 128.

118The exact date by which the Earl Marshal had acquired authority over the heralds is unclear. However, it was well established by the middle of the sixteenth century, and was confirmed in 1673. In 1708 it was declared that the Earl Marshal was entitled to nominate officers of arms.

119Squibb, supra n 2, 129.

120Although Crawford argues that it is not entirely clear whether the Law of Arms was really applicable to the settled colonies- an argument which undermines the authority of Lord Lyon as much as that of Garter. See Crawford, supra n 106, 158-159.

121Commission appointing Sir Colin Cole Garter King of Arms, 2 October 1979. The “ordinances and statutes” are a form of legislation, but their jurisdiction of course only covers the Law of Arms, not the common or statute law.

122As is indicated by cl 50 of the Statutes of the New Zealand Order of Merit (SR 1996/205) (recognition of grants of arms by Garter King of Arms), and by the appointment of New Zealand Herald by warrant of the Earl Marshal.

123The Crown could rely on the royal prerogative to govern colonies: Kielley v Carson (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 State of South Australia [1978] AC 772, 782 (PC).

124In the opinion of the law officers of the Crown, quoted by LG Pine, International Heraldry (1970) 214.

125Agnew of Lochnaw, supra n 2, 68.

126Sir Francis Grant, A Manual of Heraldry (1924) 9.

127Foreign citizens and foreign-domiciled corporations may only receive honorary grants, which have limited legal effect as they are issued by the kings of arms in their private capacities.

128Agnew of Lochnaw, supra n 2, 64-65.

129See Secretary of the 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, in exercising this prerogative, are the Earl Marshal of England and the Kings of Arms (College of Arms). New Zealand recognises this Royal prerogative and the authority of the Earl Marshal and Kings of Arms. Their representative in this country is the New Zealand Herald of Arms Extraordinary to HM The Queen”

130See Secretary of the Cabinet, Cabinet Office Manual (1988) para P.1.1.

131Statutes of the New Zealand Order of Merit (SR 1996/205), cl 50. A similar case was the controversy regarding the Canadian Priory of the Order of St John of Jerusalem. By statute 29(4) armorial members of the Order were entitled to certain privileges. The Genealogist of the Order was an English herald, who refused to recognise any but grants of Garter King of Arms. The Statutes have since been amended to recognise grants approved by the Genealogist, provided he is “an Officer of Arms in Ordinary to the Sovereign Head of the Order”: Order of St John, Royal Charters, Statutes and Regulations of the Order (1993).

132No Earl Marshal has ever acted in New Zealand, though they have exercised their jurisdiction through a deputy in this country. Cf Macaulay, supra n 101, 385.

133[1955] P 133; [1955] 2 WLR 440.

134Crawford, supra n 106.

13530 & 31 Vict c 17.

136Squibb, supra n 2, 131.

137In the words of Lord Robertson in M’Donnell v M’Donald (1826) 4 Shaw 371, 372 (NS 374, 376).

138Agnew of Lochnaw, supra n 2, 67.

139Commission appointing Sir Malcolm Innes of Edingight Lord Lyon King of Arms, 10 April 1981.

14024 Chas II c 47.

141Agnew of Lochnaw, supra n 2, 69.

142Agnew of Lochnaw, ibid, 68. In Stewart McKenzie v Fraser McKenzie 1922 SC (HL) 39, 44, Lord Dunedin approved the dicta of Lord Robertson in M’Donnell v M’Donald (1826) 4 S 371 (NS 374) that the Court of Session would never interfere with a coat of arms granted by Lord Lyon in his ministerial capacity. However, the extent of the jurisdiction is still subject to the scrutiny of the ordinary Courts.

143Agnew of Lochnaw, supra n 2, 68.

144Lord Lyon Act 1672 (24 Chas II cap 47) (Sc).

145Lord Lyon King of Arms Act 1867 (30 & 31 Vict c 17) (UK).

146Lord Lyon Act 1672 (24 Chas II cap 47) (Sc).

147Lord Lyon King of Arms Act 1867 (30 & 31 Vict c 17) (Sc).

14824 Chas II c 47.

149The Laws of Scotland (1990) vol 11, para 1614, 548.

150Innes of Learney, supra n 32, 117.

151No Scottish king subsequently granted arms personally, the invariable practice being a royal warrant ordering the Lyon to grant arms: Innes of Learney, ibid, 10.

152Or to “extend and give out” as in the wording of the matriculation of His Royal Highness the Duke of Rothesay (Charles Prince of Wales), recorded 13 November 1974.

153Indeed, owners of heritage in Scotland are required, by law, to have armorial bearings: Acts vol I 575 February 1400.

154It is now said that this jurisdiction does not extend to Canada since they now have their own Heraldic Authority. However, there is no explanation as to why this should be so, since Lord Lyon has always infringed upon the imperial jurisdiction of the Earl Marshal. There is no reason to doubt the authority of Lord Lyon to grant arms to aliens who can show that they require to bear arms in Scotland; The Laws of Scotland (1990) vol 11, para 1615, 549.

155The Laws of Scotland (1990) vol 11, para 1615, 550.

15630 & 31 Vict c 17.

157Crawford, supra n 106.

158The Laws of Scotland (1990) vol 11, para 1612, 547. The Laws of Canada, Australia, New Zealand and the other countries of the Commonwealth rely upon legal systems based upon the common law of England, with or without other laws such as the Roman-Dutch or French civil law. Scots law never applied anywhere but in Scotland.

15930 & 31 Vict c 17. Emphasis added.

1606 Anne c 11.

161Crawford, supra n 106, 158-159.

16230 & 31 Vict c 17.

163Agnew of Lochnaw, supra n 2, 70.

164Ibid, 70-71.

165Innes of Learney, ibid, 93 and note.

166(1607) 7 Co Rep 156 16a; 77 ER 377, 396. This relied upon Earl of Richmond’s Case (1338) 11 Ed III Fitz Brief 473; 9 Co 117 b: “An earl of another nation or kingdom is no earl [to be named in legal proceedings] within this realm”.

167[1912] AC 95 (HL) per Lord Atkinson.

1686 Anne c 11.

16939 & 40 Geo III c 67.

170The Letters Patent creating Sir James Balfour Paul, Lord Lyon King of Arms read: “We out of Our gracious pleasure have made nominated and appointed the said James Balfour Paul during the term of his natural life Our Lyon King of Arms in that part of Our United Kingdom called Scotland and also We for Us and Our Royal Successors Give and Grant to the said James Balfour Paul ... Our full power, liberty, licence and authority of giving and granting Armorial Bearings to virtuous and deserving persons according to the rules and ordinances already established for that purpose: to have and to hold the said office of Lyon King of Arms from the day of the death of the said George Burnett who last held the same... with all rights privileges and immunities belonging to the said office and therewith usually held and enjoyed or which thereto at any time heretofore pertained but subject always to the provisions of an Act passed in the Session of Parliament holden in the 30th and 31st years of Our Reign chapter 17...”: J H Stevenson, Heraldry in Scotland (1914) vol 1, 454-455.

171Crawford, supra n 106, 160.

172See for example, the Letters Patent of 12 March 1890 in favour of James Balfour Paul, reprinted in Stevenson, supra n 170, 454-455.

173Grant, supra n 126, 46-49.

174Royal College of Surgeons of Edinburgh v Royal College of Physicians of Edinburgh 1911 SC 1054, 1911. The grant of arms by letters patent by Lord Lyon is an exercise of the delegated armorial prerogative of the Crown, and is not a judicial act: Maclean of Ardgour v Maclean 1941 SC 683, line 35, reaffirming M’Donnell v M’Donald (1826) 4 Shaw 371.

175Royal College of Surgeons of Edinburgh v Royal College of Physicians of Edinburgh 1911 SC 1054, 1911. The Crown has the prerogative to determine precedence: though not in Parliament, where the House of Lords Precedence Act 1539 (31 Hen VIII c 10) (Eng) remains in force.

176Maclean of Ardgour v Maclean 1941 SC 613, SLT 339.

177The Laws of Scotland (1990) vol 11, para 1614, 548.

178Sir George Mackenzie of Rosehaugh, Observations upon the Laws and Customs of Nations as to Precedency (1680) 79, quoted in Agnew of Lochnaw, supra n 2, 69-70.

179Agnew of Lochnaw, ibid, 70.

180Compare Innes of Learney, supra n 32, 93-94. There were seventeen grants to Scots residing in foreign states prior to 1867, as well as the registration in 1805-10 of grants to Scots made in 1625 in the Province of Nova Scotia, and in 1698 in the Colony of Caledonia. There were eight registrations of arms by Lyon to petitioners resident in Australia between 1837 and 1865, and another sixteen pre-1867 Scots grants to residents of other overseas possessions of the Crown.

181Innes of Learney, supra n 32, 91-2, 94, 101 and 107-8.

182M’Donnell v M’Donald (1826) 4 Shaw 371, 372 (NS 374, 376) per Lord Robertson. However, a temporary visitor is allowed to use their coat of arms without matriculation, as a Courtesy: The Laws of Scotland (1990) vol 11, para 1614, 549. Those who possess foreign coats of arms must follow a similar procedure if they wish to make use of their arms in England.

183The Laws of Scotland (1990) vol 11, para 1625, 555; Agnew of Lochnaw, supra n 2.

184Michael Crawford, “The Control of Heraldry in Australia- Some legal aspects” (1974) Coat of Arms NS vol I (no 89) 28-33.

185This of course is a moot point, since in light of contemporary developments in thinking about the status of the Crown, the English and Scottish Crowns may still be distinct, and distinguishable from the Crown of the United Kingdom. See for example, Lord Advocate v Walker Trustees [1912] AC 95 (HL).

186The continued exercise of imperial prerogatives by British officials or administrative machinery is largely confined to the honours prerogative, though the continued operation of the Judicial Committee of the Privy Council is analogous.

187Either by virtue of the jurisdiction of the Earl Marshal, the inherent right of the kings of arms to regulate arms, or the power expressly delegated by the Sovereign to grant arms.

188Agnew of Lochnaw, supra n 2, 65.

189Ibid, 65-66.

190O’Shea, “The Office of the New Zealand Herald of Arms” (1982) 20 New Zealand Armorist 7.

191Macaulay, supra n 101, 387.

192Mr Phillip O’Shea, Cabinet Office Adviser on Honours.

193Neither the warrant of appointment, nor any other mention of the existence of the 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) 3 Commonwealth Heraldry Bulletin 2.

194Macaulay, supra n 101, 385-386; Sir Malcolm Innes of Edingight, “New Zealand Herald of Arms Extraordinary” (1979) 13 Heraldry in Canada 34-36.

195Mr O’Shea was appointed by letters patent, rather than by the warrant normally used for extraordinary heralds. Grants of Arms continue to be made by the kings of arms (Garter alone for personal grants, all three for corporate arms), under the authority of a warrant of the Earl Marshal. The Queen’s royal style in New Zealand is now used in grants to New Zealanders obtained through the agency of New Zealand Herald Extraordinary.

196The Earl Marshal is simply “Earl Marshal” rather than “Earl Marshal and Hereditary Marshal of England”, and the Sovereign’s titles for New Zealand are used.

197O’Shea has said that the letters patent recite the style conferred upon Her Majesty by proclamation under the Royal Titles Act 1953. If this is so, it is incorrect, as this style was replaced by that given in the Royal Titles Act 1974. But even if the style is incorrect, this does not mean, as Agnew of Lochnaw believed, that the grants are of doubtful essential validity as made “in the name of a legally non-existent Sovereign”: A message from New Zealand Herald of Arms to 1979 Heraldry Seminar, University of Auckland, 26 August 1979; Agnew of Lochnaw, supra n 2, 66.

198Macaulay, supra n 2, 386.

199The draft bill of the Flags, Emblems, and Names Protection Act 1981 did indeed include a clause protecting armorial bearings. Clause 16 was dropped at the select committee stage. The committee considered that there was already adequate protection under misrepresentation or passing off, should a person use the coat of arms granted to another without his authority. They did not accept that there was any justification for protecting private interests with criminal sanctions. The committee were also opposed to what they saw as a monopoly being established for the benefit of New Zealand Herald. See New Zealand Parliamentary Debates (1980) vol 440, 2741, vol 441, 3858.

200Section 12(2)(a), (b), (c), and (d) respectively.

201Section 11(1)(a).

202Section 13(2)(a), (b), and (c) respectively.

203This has been criticised by Macaulay, who continues to argue that Garter is unknown to New Zealand law: Macaulay, “The NZ Order of Merit” [1996] NZLJ 457.

204Clause 50.

205Clauses 51, 53, 54, 55, and 57.

206Clause 57 (b).

20727 Edw III stat 2.

208Consuetudo vel Lex Mercatoria, or the Ancient Law Merchant (1622).

209Luke v Lyde (1759) 2 Burr 882; 97 ER 614 per Lord Mansfield, CJ.

210This process is examined in T Plucknett, A Concise History of the Common Law (1956) 660.

211L Trakman, The Law Merchant- The Evolution of Commercial Law (1983) 23-26

212See, for a general discussion, see Scrutton, “General Survey of the History of the Law Merchant” in Select Essays in Anglo-American Legal History (1907-1909) vol 3, 7-8.

213They had been consolidated by the Statute of the Staple 1352-3 (27 Edw III stat 2 cc 5, 6, 8 and 21) (Eng), and declined for economic reasons, although there are not many reports in the sixteenth century indicating that the common law Courts were administrating the law merchant.

214Van Heath v Turner (1621) Winch 24; 124 ER 20; Pillans v Van Mierop (1765) 3 Burr 1663; 97 ER 1035.

215Sir William Holdsworth, A History of the English Law (1926) vol 8, 99-300.

216Sir Edward Coke, Coke upon Littleton (1979) 182

217This led to the complete separation of that part of the maritime law, such as salvage and collisions at sea, which remained within the jurisdiction of the Court of Admiralty, from the law merchant and those parts of the commercial maritime law, such as freight and marine insurance, which were administered in the common law Courts.

218Bromwich v Lloyd (1698) 2 Lutwyche 1582; 125 ER 870.

219Immemorial user is not necessary: Edelstein v Schuler [1902] 2 KB 144. However, a new custom must not be contrary to an established rule of law: Goodwin v Robarts (1876) LR 10 Ex 337 per Cockburn CJ.

220The translation of Lord Cooke of Thorndon from the Court of Appeal to the House of Lords in 1996 raised the possibility of such an innovative judge being available to adapt the Law of Arms in England. However, virtually insurmountable hurdles would still have to be overcome for a case to reach the House.

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