This case must be one of the most unexpected to appear in the English law reports, it concerns the Court of Chivalry, also known as the Court of the Earl Marshall whose jurisdiction is over heraldic symbols:
"On 1 March 1842, the Kings of Arms of Her late Majesty Queen Victoria granted a coat of arms and crest to the recently incorporated borough of Manchester, since enhanced to the dignity of a city, and supporters were granted by Garter's warrant on the following day. The Corporation of the City of Manchester now allege and complain that the defendant company, the Manchester Palace of Varieties Ltd have over a period of years usurped the achievement granted to them by displaying the arms in the auditorium of the theatre and by using them as their common seal...
It is not contended that this court, however long a period may have elapsed since it last sat, is no longer known to the law. It was originally the Court of the Constable and Marshal and has probably existed since the Conquest. At least it had been in existence for very many years before the reign of Richard II, who reigned from 1377 to 1399, and during his time the famous case of Scroop v Grosvenor was heard before it. The hereditary office of Lord High Constable was abolished on the attainder of the Duke of Buckingham in 1521, since when the court has always been held before the Earl Marshal or his surrogate alone and his right to hold the court and to adjudicate at least on heraldic matters was recognised and confirmed by Letters Patent of James I in 1622 and those of Charles II, which were read at the opening of this court...
Hawkins' opinion is of particular value, as he was in practice as a serjeant at the time when this court last sat, that is, in 1737..."
Nonetheless it seems to have slipped through the cracks and whether by accident or ignorance none of the many reforms of English justice between 1737 and 1955 abolished it:
"I have no hesitation in holding that this court has jurisdiction to deal with complaints relating to the usurpation of armorial bearings. Blackstone, it is true, regarded the court as obsolete when he was writing not many years after its last recorded sitting, and his view is indorsed by Sir William Holdsworth in his History Of English Law, vol 1, pp 578-580. No doubt, one of the reasons why the court fell into disuse was because the way in which its decisions are to be enforced is a matter of great doubt and obscurity, but once it is established that this court exists, whatever interval may have elapsed since its last sitting, there is no way, so far as I know, of putting an end to it save by an Act of Parliament. There may be very good reasons for a court no longer exercising powers which were undoubted ... "
A caution however:
"and if this court is to sit again it should be convened only where there is some really substantial reason for the exercise of its jurisdiction. Moreover, should there be any indication of a considerable desire to institute proceedings now that this court has been revived, I am firmly of opinion that it should be put on a statutory basis, defining its jurisdiction and the sanctions which it can impose."
The idea of discovering a long lost court is a thrillng and amusing one, unfortunately not something that is likely to happen in one's everyday line of work.
Manchester Corporation v Manchester Palace of Varieties Ltd, [1955] 1 All ER 387
No comments:
Post a Comment