The Law of Arms in New Zealand

Abstract

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 Arms. 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 territories. 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 force. 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 history . 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 matters.

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 person, and those in which he was alleged to have used arms wrongfully without infringing the rights of another. 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 action.

There was no doubt that there was a law governing such matters, but what then was the nature of this law?

Keywords: law of arms, armorial beaings, coats of arms, Lord Lyon, College of Arms, royal prerogative, honours, prerogative, Crown, monarchy

JEL Classification: K39