Thursday, November 1, 2012


Wednesday 24 October 1990

A court, dormant for over two centuries, was revived to decide an issue arising in the 20th century which created great interest in heraldic circles. An account of the case, published by the Heraldry Society, included the pleadings, counsels' arguments and judgment (The Lord Mayor, Aldermen and Citizens of Manchester v The Manchester Palace of Varieties Ltd, Heraldry Society 1955) provides an illuminating account of the law of arms and the history and jurisdiction of the Court of Chivalry.
In 1842 Queen Victoria's kings of arms granted a coat of arms and crest to the Borough of Manchester, later to become the City of Manchester. At the same time garter principal king of arms grnted supporters, which have a special significance in heraldry and consist of additions to the arms, in this case, in the form of an heraldic antelope and a lion supporting a shield. For more than 20 years prior to 1954 the arms and supporters had been displayed, without the permission of the corporation, on a pelmet above the main curtain in the auditorium of the Palace Theatre, Manchester and for at least 60 years they were incorporated in the common seal of Manchester Palace of Varieties Ltd who owned the theatre. This usage, it was alleged, usurped the corporation's sole right to display the arms and a remedy was sought against the company.
No doubt to the surprise of the solicitors advising the company, proceedings to stop the unauthorised use of the plaintiff corporation's arms were instituted in the High Court of Chivalry (Manchester Corporation v Manchester Palace of Varieties Ltd [1955] 1 All ER 387). This court was shown to have existed from a time many years before the reign of Richard II (1377 to 1399) but had not sat since 1737.
Originally the Court of the Constable and Marshal, it had, since 1522, been held before the earl marshal actinv through his duly appointed surrogate. The marshal's right to hold the court and to adjudicate on heraldic matters was confirmed by letters patent of James I in 1622 and of Charles II in 1684. The court had, to the exclusion of the common law courts, dealt with matters relating to armorial bearings and was now called upon to do so again in the 20th century, so beginning a demonstration of the remarkable continuity of English law and its institutions.
Lord Goddard presided as surrogate and enlivened what might have been a tedious and dull academic exercise. Prompted by his customary terse comments, argument was guided through a maze of ancient law, points he thought irrelevant being disposed of quickly. GD Squibb QC, a scholarly expert on the law of armorial bearings, appeared for the plaintiffs. His obvious knowledge and grasp of the subject ensured that ancent law was fully explored.
In the verbatim report are the formal documents required to constitute and convene the court and a full account of the procedure and conduct of the hearing. The court regi stry was at the premises of the College of Arms, a department of the royal household, incorporated, as now constituted, in 1556 and consisting of six heralds, four pursuivants and three kings of arms. With the documents is an English translation of extracts from the letter patent of Charles II appointing the earl marshal hereditary in the family of the Duke of Norfolk, the earl marshal's warrant appointing Lord Goddard as surrogate and the appointment of the joint court 'registers'.
Among authorities relied upon to establish the existence of the court were Lord Coke, who wrote at length about the court, its procedure and jurisdiction (Fourth Institute, chapter 17, p.125). Blackstone, who in his Commentaries (8th edition vol 3, book 3, chapter 7, p.103), written not long after the court last sat, confirmed that the court had jurisdiction in any matters concerning arms. Later still Sir William Holdsworth, in his History of English Law, although very uncomplimentary to the court, acknowledged its existence (History of English Law vol 1, pp. 578 to 580).
Jurisdiction dispute
The court's existence was accepted but its jurisdiction was disputed. It was contended that the court only had power to act in armorial matters where arms were carried on certain military occasions or at a tournament and that earlier binding judgments had decided that private persons were not answerable for the matters alleged by the plaintiffs.
Armorial bearings are medieval in origin and the power to grant arms is delegated by the sovereign to the kings of arms under the general control of the earl marshal. About 200 grants of armorial bearings are made each year, mainly to private individuals.
The College of Arms, a self-financing corporation, not subsidised by the Crown or government, is responsible for recording grants of arms and pedigrees. Officers of arms act as agents for grantees and the kings of arms and undertake genealogical and historical research. They also participate in the state opening of Parliament and greater service at Windsor.
The legal status of armorial bearings has never been clearly established. Lord Goddard mischievously asked A Colin Cole, counsel for the defendants, whether a coat of arms was property or merely a dignity. 'That is an extremely difficult question, my Lord,' he replied. 'I thought it was,' retorted Lor Goddard. It was not contended that armorial bearings were an incorporeal hereditament. In the judgment it was observed obiter dictum that the right to bear a coat of arms should be regarded as a dignity because, if it were property, the ordinary courts would have taken cognisance of it.
Formal records of arms were prepared by the Visitation commission of 1530. During the century-and-a-half between 1530 and 1687 every county in England was visited by the heralds to record all arms born by right. Only two ways of acquiring arms appear to have been recognised: by birth or grant by lawful authority (Oldys v Tyllie (1687) Her Cas 59). Those acquired by birth must have originated either in a grant or be proved to have been in ancestral use from time immemorial.
A modern summary of the law is that arms should not be acknowledged 'which cannot be shown to have been either granted by the King of Arms or entered at a visistation bearing in mind the possibility of the very exceptional case where proof could be adduced of the open user of unentered arms before the recording of grants in 1673' (Law of Arms in England, GD Squibb QC, FSA, Norfolk Herald Extraordinary, Heraldry Society, London, revised edition 1967).
The earliest recorded case in which two persons claimed the same coat of arms is the famous one of Scrope v Grosvenor (unreported) which lasted from 1385 to 1390. The plaintiff Scrope asserted that he had borne arms which descended from his ancestors from time immemorial. Grosvenor was seen bearing the same arms on the occasion of a military expedition to Scotland and he maintained, similarly, that they were his by descent. Judgment was given in favour of Scrope and this was upheld on appeal by the King in Council.
In the Palace of Varieties case Lord Goddard cut through the conventional language and legal obscurity of the pleadings: 'Let us get down to the essentials of this case,' he said, and continued: 'Is not the complaint this: 'We the City of Manchester have got and paid for a grant of arms from the appropriate authority, and you, the Palace of Varieties Ltd, have got no grant and do not want to apply for one and pay for it, are simply pirating our arms and using tem as if the grant had been made to you'? That is the sum and substance of the case, is it not?'
Mr Cole responded: 'It is not alleged precisely like that.'
The surrogte retorted: 'I have put it precisely like that, because it seems to me that that will do away with all the trimmings. That is the substance of the case, is it not?'
Mr Cole did not make any further comment.
Lord Goddard pointed out in his judgment that armorial bearings were widely used as a decoration or embellishment, without complaint. The arms of universities, colleges and dioceses could be found on ashtrays, vases and dozens of articles of domestic use. Many houses bear the arms of families who no longer live there. Their use on inn signs is common although the families concerned may have never owned an inn or have left the district long ago.
Today the question is still relevant commercially. Advertisements offering to supply arms related to surnames often appear in the national press. Carefully phrased, upon the insistence of the College of Arms, they refer only to 'arms associated with your name' -- in the case of 'Smith' there are over 70 distinct and separate families each with a different coat of arms. And arms relate to particular male lines of descent, so a buyer of family related arms is unlikely to possess the customary right to bear them.
The plaintiffs succeeded in their claim and the definitive sentence, as it was termed, read: '. . . we inhibit and strictly enjoin the defendants that they do not presume to display the said arms crest motto or supporters . . .'
Costs payable by the defendants were fixed and agreed at £300 as, in the past, it had not been the custom to order taxation. The reasoning behind the decision related to the purpose and effect of the use of the arms rather than merely displaying them. Being incorporated in the company's common seal the plaintiffs objected to any impression this might give that they were the patrons of the Palace Theatre or that it was in any way being conducted under their auspices.
Lord Goddard recognised that ancient law and custom could become inappropriate to modern times. He suggested that one of the reasons for this particular court falling into disuse was uncertainty over the way in its decisions could be enforced. Nevertheless he was adamant that once a court was proved to exist there was no way of putting an end to it, except by Act of Parliament.
He then went on to explain when it was permissible to ignore the powers once possessed by a court, which had become obsolete, by referring to Blunt v park Lane Hotel Ltd [1942] 2 KB 253). The illustration given in that case was the ancient power of the spiritual courts to decree the excommunication of lay persons for immorality and order them to pay costs. That law was long considered obsolete and beyond recall. Lord Goddard justified its disuse, without the intervention of statute, by accepting the general opinion of eminent ecclesiastical lawyers. They, having considered that such power was not in accordance with modern thought, believed that it should no longer be enforced. Not until the Ecclesiastical Jurisdiction Measure 1963 was passed was jurisdiction of the ecclesiastical courts over the laity abolished.
A rule governing the future use of the Court of Chivalry was laid down by Lord Goddard. To prevent frivolous actions, leave must be obtained before instituting proceedings and the court should only be convened where some really substantial reason for the exercise of its jurisdiction arose. Deciding where the line should be drawn when invoking ancient powers was not new. Long ago Francis Bacon (1561 to 1626) had given guidance when he wrote: 'Penal laws if they have been sleepers for a long time or if they be grown unfit for present use should be by wise judges confined in the execution' (Bacon's 'Essay on judicature').

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