Many readers will have read in the press some account of the case of the Lord Mayor, Aldermen and Citizens of the City of Manchester versus the Manchester Palace of Varieties Ltd. It was held in the High Court of Chivalry (sitting for the first time in over 200 years) before the Earl Marshal's Lieutenant or Surrogate in the Court, Lord Goddard, Lord Chief Justice of England, in the latter's Court at the Royal Courts of Justice. The Earl Marshal's own Court at the College of Arms was considered to be too small. Few papers reported the case at all comprehensively and some, perhaps fortunately, did not even mention it. However I shall not attempt a full report here because, as mentioned in the Editorial, the Heraldry Society will shortly be publishing a complete account of the proceedings. I shall merely outline the argument.
The fact that the Court is a civil law court was brought home sartorially by the Surrogate being attired in his robes as a Doctor of Civil Law of the University of Oxford, and by both counsel being Bachelors of Civil Law, although in their case both had robed as barristers. The Earl Marshal and the six Officers of Arms who sat on either side of the bench, were in levee dress. Mr. A. R. Wagner, Richmond Herald and one of the Joint Registers of the Court, was in academic dress and Mr. Phillips, Notary Public, the other Joint Register, wore his livery gown as Past Master of the Scriveners' Company.
The proceedings opened with the reading of various Letters Patent. From these it was made clear that the Duke of Norfolk was indeed Hereditary Earl Marshal, that he had appointed Lord Goddard his Lieutenant or Surrogate in the Court and that he (the Earl Marshal) was competent to sit without the Constable, an office which has not been held as an hereditary dignity since the execution of Stafford, Earl of Buckingham in 1521.
The case itself was simple. Manchester Palace of Varieties had displayed the Arms of the City of Manchester in their theatre for upwards of twenty years, and on their common seal for upwards of sixty years and denied that Manchester's leave or licence was necessary for such display. They contended that the Court had no jurisdiction in this particular case : alternatively they contended that, by certain decisions in the Court of King's Bench and by the House of Lords, which applied mutatis mutandis to the present case, private persons were not answerable to proceedings in the Earl Marshal's Court for assuming to themselves to make arms, order funerals without authority or paint arms contrary to heraldry. They further contended that their display of the City's arms was not, in the circumstances, contrary to the laws, usages or customs of arms. The plaintiffs sought the equivalent of an injunction to restrain the defendants in their uses of the City's arms.
The Surrogate seemed anxious to be sure in his mind as to whether the Court were obsolete or not. True, no Act of Parliament had ever abolished the Court, but had it been so shorn of its powers that, ipso facto, it had become obsolete? Mr. G. D. Squibb, Counsel for the Plaintiffs, submitted that the Court still had certain powers. It was certainly able to grant the injunction which his clients required and, although there was no question of its exercise in the present case, it probably still had power to fine and imprison. Anyone who did not comply with the Court's sentence was in contempt of court and the High Court had power to issue a writ of attachment for his committal. Counsel pointed out that it would be a great injustice for the Court not to sit, as it was the only court which had jurisdiction in causes armorial.
Mr. A. Colin Cole, for the Defendants, submitted that Statutes of Richard II, defining the powers of the Court of the Constable and Earl Marshal, excluded, if properly interpreted, the present case from the jurisdiction of the Court. Since (but not in consequence of) the abolition of the Hereditary Constable, the practice of the Court had been in excess of its statutory jurisdiction, and the precedents provided by the cases it had decided since then ought not to be followed.
In the Statute of 13 Richard II Chapter 2 the Constable was to have cognizance of contracts touching "faitz darmes and of war out of the realm . . . and arms or war within the realm". Mr. Cole submitted that the expression faitz darmes meant deeds of arms and had nothing to do with armorial bearings and that "arms" must be construed eiusdem generis with deeds of arms. Thus the Court could not take cognizance of the present cause which, although within the realm, did not arise out of deeds of arms or war. There was in fact no redress at law. Mr. Squibb contended that these Statutes were merely limiting statutes, designed to prevent the Constable's Court from extending its authority to matters which more properly fell within the province of the Common Law Courts. GJ Coke had said that the Court was governed by its own usages and customs, and that it was clear that among these was jurisdiction in heraldic matters. The Surrogate said that he did not see how he could hold, against such weighty authorities as Blackstone, CJ Holt and CJ Coke that the Court had no jurisdiction in the present case. However, he did not give judgment on this question until the end of the case, but asked Counsel to deal with the merits.
Mr. Cole's final submission was that his clients used the City's arms decoratively, and that such use did not constitute " bearing " the arms in the heraldic sense of that word. He said that the seal of the Palace of Varieties bore their name, and that the arms of Manchester in the centre were only an embellishment. Moreover, he argued that in Mediaeval times, it was not uncommon for men to seal with another's seal, and quoted examples. He also submitted that, as in Russel's Case (1692) and Donmille's Case (1692), if there were a wrong, it was a wrong done to the office of the King of Arms (Norroy) and that, consequently, redress lay in the Divisional Court of the Queen's Bench.
The Surrogate retired before giving this judgment: " As Surrogate to the Earl Marshal, I declare that the Court has jurisdiction in this matter. I give judgment for the agreed amount of costs (£300). The reasons for the judgment will be put into writing. I shall deliver them at an early date, and, by the permission of the Earl Marshal, I shall do so in his absence".
Most students of heraldry had no doubts in their minds that the Court of Chivalry was still extant and that if a case of misuse of armorial bearings were alleged, the Court was competent to hear it. There was, however, grave doubt as to whether the Court's powers were now sufficient to enforce any sentence it might pronounce, and perhaps the most important consequence of this case is to remind the ignorant that there is an enforceable law of arms. The bearing of arms in England will no doubt remain controlled by custom, good manners and a sense of the fitness of things; yet it is good that those who have forgotten their manners, should be reminded that the law takes as much notice of bad heraldic manners as it does of more violent forms of discourtesy. The prevalent and regrettable philosophy that so long as something is not illegal, it cannot be unethical, has been even more confined. The arm of the law stretches far. In an unchivalrous age, a legal decision may well be an useful weapon in the hands of those who would protect their own arms, as also the ancient usages of heraldry.
Although Lord Goddard has now delivered his reasoned judgment it was, unfortunately, too late to be included in this article.
It is almost five years ago now that The Heraldry Society published the only full verbatim report of the case of The Lord Mayor, Aldermen and Citizens of the City of Manchester v. The Manchester Palace of Varieties Limited, heard in the Court of Chivalry on 21st December 1954.
This included not only the judgment of Lord Goddard, sitting as Lieutenant and Surrogate to the Earl Marshal, but also the arguments and submissions of counsel, and the whole constitutes a valuable repository where much may be garnered concerning the law of arms in England.
However, there still seems to be some confusion in the public mind, deriving possibly from the intricacies of the case, touching what is and what is not permissible by way of display of armorial bearings. This is notably the case with local authorities, which are perhaps more concerned with the public display of arms than ordinary persons. It should be recognised that there is more than one passage in the case which is not as clear as it might be, and together these may be regarded as contributing something towards the prevalent uncertainties. The following remarks and reflections, under two heads, are offered in an attempt to clarify such confusion as there may be and to help heraldists, or anyone else faced with the like problem, to decide by the application of a simple test, whether or not any actual or contemplated display of arms offends the law of arms.
I. There is one passage in the judgment of Lord Goddard which is particularly open to misunderstanding, because it might be thought that to every allegation of wrongful display of Arms it is an answer to say that the display was only by way of decoration. This is the passage:
"I am by no means satisfied that nowadays it would be right for this court to be put in motion merely because some Arms, whether of a Corporation or of a family, have been displayed by way of decoration or embellishment.... It is common knowledge that armorial bearings are widely used as a decoration or embellishment without complaint. To take one instance, hundreds, if not thousands, of inns and licensed premises throughout the land are known as the so-and-so Arms, and the achievements of a nobleman or landowner are displayed as their sign. It may be and frequently is the case that the family whose arms are those displayed have parted with their lands in the neighbourhood and perhaps have never owned the inn or, at least, do so no longer. The arms of universities, colleges or dioceses displayed on tobacco jars, ash trays, teapots and other articles of domestic use are to be found in shops all over the country and are dear to the heart of souvenir hunters, tourists, American and others, as well as sea-side visitors. In strictness, I suppose none of these people have any right to use or display articles thus emblazoned. Then again, at the present day, many a gracious ancient house bears over its porch the arms of the family who built but no longer lives in it. Could this court be asked to deface the fabric by ordering the removal of the original achievement which has adorned the house, it may be for hundreds of years ? The vendor could not complain if he sold the house without first removing the device, nor can I conceive of the Attorney-General, in whom is vested such of the powers and duties of the former King's Advocate as may still remain, emulating the activities of Dr. Duck or Dr. Oldys in the seventeenth and early eighteenth centuries and seeking to have the new owner declared to be 'no gentleman and disentitled to bear arms', or, at least, the arms thus displayed.... Where, then, is one to draw the line ? It can, I think, only be done by the exercise of common sense and by saying that use or display in such circumstances would not be a ground for intervention by this court."
This passage seems to be directed to the point raised in the pleadings, in the Answer of the Defendant Company:
"The display of armorial bearings by a person other than the grantee of the same or a person to whom the same have been allowed or otherwise authorised by the Kings of Arms... is not in itself an assertion that the arms are those of the person who displays them or are his to the exclusion of the grantee or other person as aforesaid."(2)
In order properly to appreciate the contention here made (and note particularly the words "in itself") it is submitted that it is necessary to understand that there is a difference between mere display of armorial bearings, and a bearing and using of armorial bearings. Display of one sort or another is of course involved in almost every bearing and using of arms; but it is clear from the early cases in the Court of Chivalry that "bearing and using" is a term of art, denoting more than display, in that it means a display of arms such as it is appropriate only for a person entitled to arms to make. Thus in Grey v. Hastings, 1400-10, the Plaintiff alleged that the Defendant had wrongfully "borne and used" arms,(3) and not merely that the Defendant had displayed arms contrary to the laws of arms. Similarly in Lovell v. Morley, 1385/91, the allegation is of arms being borne and used and not merely displayed.
Again, two and a half centuries later, in a cause of office brought in the Court of Chivalry against one Edmund Underwood, the defendant was alleged to have borne the arms of Underwood of Norfolk without any right thereto.(4) In 1687, William Oldys, LL.D., King's Advocate in the Court of Chivalry, promoted a cause of office against Sir James Tyllie, Knight, and alleged in particular that the Defendant had borne certain arms and crest without any right.(5) In Oldys v. Booth in 1693, the law of arms was pleaded in similar fashion.(6)
Now while it cannot be contended that either Oldys, or his successor as Advocate in the Court of Chivalry, Nathaniel Lloyd, LL.D., was particularly consistent in maintaining the language of the articles used in the cases of Oldys v. Tyllie and Oldys v. Booth, or that either sought to draw any precise distinction between wrongfully bearing and using arms and wrongfully displaying them, it is submitted that the interpretation now advanced, in an endeavour to induce an appreciation of such a distinction, at least has the merit of providing a convenient touchstone whereby various modes of display of arms, some of which do, and some of which do not, offend against the law of arms, can be readily distinguished.
Applying this test to the instances cited by the Surrogate in that part of his judgment quoted above, it is manifest that these are all instances of display of arms, and are not instances of "bearing and using" arms. In each case the prime purpose of the arms is to decorate or commemorate. Although almost every bearing and using of arms, in the legal sense as defined above, is in itself decorative or commemorative, yet a display of arms whether decorative or commemorative, by a person not entitled to arms, does not offend the laws of arms unless the circumstances are such that the display amounts to an assertion that the arms are those of the person displaying them.
Thus if a non-armigerous person displays arms on a souvenir ashtray or outside a public house of which he is licencee be is not "bearing and using" arms, for he does not display the arms as his own. If however, on being asked — "Whose are those arms?" pretends they are his own, his display of them becomes something more, a wrongful bearing and using, for he is asserting the arms are his when the truth is that he has none. To the circumstances of mere decorative display, he has added the assertion of his entitlement to the arms, and these circumstances combine at once to bring him into conflict with the laws of arms. Again, if a non-armigerous person invents arms for himself or takes those of an armigerous family with a like surname, and has a book plate of the arms made for his own use, once the book plate is in his book this, of itself, is an assertion that the arms are those of the book owner and that the owner of the book has arms of his own. In such a case it would be no answer to say that the arms displayed were merely decorating the book and therefore not contrary to the laws of arms.
Similarly, there could be no greater assertion by anyone that he was entitled to arms than by putting arms on his seal, or on his father's tomb. Both these instances, without any added circumstances, amount to an assertion that the arms thus decoratively and commemoratively displayed are those of the persons displaying them or for whom they are displayed. They are instances of display "plus", that is, they are displays which only an armigerous person may make; they are instances of "bearing and using" arms and as such are a wrongful bearing and using if done by a non-armigerous person. But if the same non-armigerous person puts up in his hall or study the arms of his school, college, or, say, livery company, unless and until he says or pretends or by the manner of the display infers that any one of these shields is his own, he is merely displaying arms and not wrongfully bearing and using them.
Thus, pace Lord Goddard, when deciding when to draw the line in cases where arms are used by a person not entitled to them, it is not so much a question of common sense, but of deciding as a question of mixed fact and law in each case, whether the circumstances are those of mere display or tantamount to a "bearing and using". This is a question which an officer of arms, preferably a King of Arms, is eminently qualified to decide and it is much to be desired that all questions of doubt should in the first place be referred to an officer, with ultimate resort if necessary to the Court of Chivalry itself.
1. Also Verbatim Report of the Case, pub. Heraldry Society, 1955, pp. 60-61.
2. Ibid, p. 82.
3. Printed Account, by Young, 1841, p. 9; cited by counsel in a r g u e n d o , Verbatim Report, pub. Heraldry Society, 1955, pp. 40-41.
4. The Office of the Judge v. Underwood, 1634, Reports of Heraldic Cases in the Court of Chivalry , 1623-1732, prepared by G. D . Squibb, Q.C, F.S.A., Harleian Society, Vol. cvii, 1955 (pub. 1956), p. 6.
5. Ibid , pp. 59-60.
6. Ibid, pp. 79-80.