The Law of Arms in Mediaeval England
Coats of arms are a common sight in England, and have been since the Middle Ages. For all their beauty and complexity, they were devised to serve one purpose: identification. At first, they were placed on the shield, surcoat, and banner of the knight, because his closed helm rendered him unidentifiable in the hurly-burly of a battle or a tourney. Later, coats of arms appeared on seals and signets, taking their identifactory use into civilian life. Civilian use expanded as the Middle Ages proceeded, with coats of arms appearing on male and female garments, especially those designed for formal occasions. Finally, coats of arms were also marks of possession or donation, because they were placed on stained-glass windows, gateways, tombs, and household goods like books, crockery, and tableware.
Because of the coat of arms' use as an mark of identification, and its signifigance as a mark of gentility, it was natural that laws regarding its use and inheritance would arise. Were the case to be otherwise, sooner or later, there would be so many duplicated coats of arms that the purpose for which coats of arms evolved would be lost. This page will examine the evolution of English heraldic law, tracing it from is unformed state in heraldry's youth, to its final development at the beginning of the Renaissance. The history of this rather odd branch of English law has application into the present day, for one of the courts which heard heraldic lawsuits is still sitting, and last heard a case in the 1950's.
Heraldry's origins are unclear. Various authors have posited Roman standards, Teutonic totems, and Frankish imperial seals as heraldry's ancestors. Whatever its sources may have been, heraldry's origins were unheralded and fast to take root. The Normans on the Bayeux Tapestry did not use heraldry.1 Yet, less than three generations later, seals with heraldic designs were being used by French and English aristocrats, and shields with coats of arms were being given in knighting ceremonies.2
Undobtedly, part of their popularity was because they contributed to the colorful appearance of a tournament. What also could have helped was their simplicity of design-the most common elements of heraldry, the ordinaries, are all simple lines marking some large portion of the shield, usually about a third of the area of the shield. By the reign of Henry III, coats of arms were being inherited; previously, sons could take whatever design they preferred.3 This happened at about the same time, all over Europe, without any proclamation or law.
With the inheritance of coats of arms, the display of armory took on a new signifigance. One of the first things that emerged, for the sons of the nobility, was the practice of cadency, which was the process of differentiating one son's coat of arms from another, in order to give each one of them a clear and individual mark that also showed their relationship. This could be done in a variety of fashions: changing the color of the field of the shield or the charges, the addition of a bordure or an ordinary, the elaboration of the lines of partition of the bordure or ordinary, or the addition of secondary charges to the field, ordinary, or bordure. The most popular method in England was the addition of certain special secondary charges, though the practice only became systematized in the fifteenth century.4
Also, the daughters of noblemen began to use arms at this time. It was not long before certain practices arose for the display of the marriage union, called marshalling, and the display of two or more inherited coats.5 The first method of marshalling was compounding, in which the husband added charges from his wife's coat of arms to his own.6 This dropped out of use quickly, because the composed coat of arms could be mistaken for a cadenced coat, perhaps of some other person. Another method was dimidation, in which the two coats, cut in half, would be put on one shield.7 This also went out of use at the same time as composition, because, in some cases, it was unaesthetic, and in other cases, the half coat resembled half coats of other people.8 Three practices remained in use throughout the Middle Ages, and into the present day: impalement, the escutcheon of pretence, and quartering. Impalement involved taking each entire coat of arms, and putting them into the space of half an entire shield.9 The use of an escutcheon of pretence was used only when the wife had no brothers, and could transmit the right to use her familial coat of arms to a man who would act as her family's representative-in this case, her husband. The escutcheon was a small shield with her coat of arms upon it that was placed in the middle of her husband's otherwise unchanged coat.10 Quartering ought to be familiar to anyone who has seen a performance of Henry V: the shield of the man and the wife were placed in alternating quarters of the shield. This was also the practice used when a person had inherited the titles to more than one coat of arms; indeed, the coat of arms of a person in an old noble house could look like a colorful checkerboard, with each coat of arms that they had the right to display laid out one next to the other.11
Despite the development of these techniques to make arms unique, disputes arose over the rights to a basic design. One such dispute was recorded in the reign of Edward I, in a poem recording one of his campaigns into Scotland, called The Seige of Carlaverock. Unfortunately, the poem does not reveal any of the details, just the names of the parties: Hugh Pointz and Brian Fitzalan.12 The poem is also important as a source for demonstrating that, even at that date, cadencing was in use.
The pre-regulation era of heraldry in England came to a close when the royal permission was expected to be sought when an armiger (a person who had the rights to a coat of arms) wanted to select an heir for his arms, when he himself lacked sons or daughters. The first instance of this was in 1317, when Edmund Deincourt got a patent letter from the king giving him permission to alienate his coat of arms along with part of his estate, in order to keep his name and coat of arms "alive." Later, in the reign of Henry VI, Lord Hoo's alienation of his coat of arms without the king's permission was judged void, although this is after the appearance of heraldic legislation and written jurisprudence.13 Also, in the reign of Edward III, English kings began to emulate a practice of the Holy Roman Emperors-the granting of coats of arms to favored commoners.14 As we shall see later on, heralds and lawyers considered a granted coat to be superior to an assumed coat. The reign of Edward III was also witness to several heraldic lawsuits, which were the last recorded before the appearance of heraldic jurisprudence. Because one of them was well documented, and was used in a later case, it will be looked at later in this paper.
Like heraldry itself, heraldic jurisprudence is international. It started in Italy, moved to France, and the English, always attuned to French culture, picked it up and made it their own from there. As it is Continental in origin, it looks not to Bracton or Glanvill for its principles, but to the Corpus Juris Civilis.15 As one might also expect from heraldry's military use, works on heraldic law, in some cases, were also discussions of the laws of war.
The first work of heraldic jurisprudence, De Insigniis et Armiis was written by a professor of law at the University of Padua, Bartolo of Sasso Ferrato, in the 1350's, in Edward III's lifetime.16 Bartolo of Sasso Ferrato was more than an obscure professor, but an advisor to Emperor Karl IV, and, mainly, his legal research dealt with the relationship of Roman law, which he considered universal law, and the constellation of local customs all over Europe.17 This led him to examine the principles of heraldic law, especially when, in 1354, Karl IV granted him a coat of arms, giving Bartolo a personal stake in discerning what heraldic law was.18
De Insigniis et Armiis begins with a brief section on the virtues appertaining to the colors and some of the popular charges used in the heraldry of his time and place.19 This study, often reviled in modern heraldric works, was therefore an important part of the mediaeval study of heraldry. However, Bartolo turns rather swiftly from this area, which was developed in far greater detail by certain English authors of the Elizabethan period, and heads to the greener fields of law.
As odd as it may sound, one of the first things that Bartolo denies is the notion that a coat of arms can be possessed only by one person or his heirs.20 Instead, he draws an analogy between a name and a coat of arms, saying that if two unrelated people can have the same name, nothing prevents unrelated people from having the same coat of arms.21 Bartolo also says that a coat of arms is an image, and an image cannot be owned-only the material thing upon which the image is depicted can be owned.22
Then, Bartolo contradicts himself by discussing heraldic inheritance, the circumstances under which a person can be made to cease and desist from using a certain coat of arms, and the qualities that make a coat of arms granted by a prince different from those which a person has assumed by their own volition to use. For the first issue, that of inheritance, Bartolo is very brief. All he says on the matter is that bastards ought not to inherit coats of arms, but says that local custom, like that of Tucany, can allow them to do so.23
Bartolo says that there are three ways that a person may be barred from using a coat of arms which another person is using. The first is when the plaintiff proves he would incur damages, should the defendant persist in using 'his' coat of arms. The second is when a third party can prove that he, himself, will incur damages if the defendant persists in using that coat of arms. Finally, a magistrate can order someone to stop using his coat of arms if the magistrate can foresee scandal or civil disturbance arising from the use of that coat of arms by that person.24 Bartolo says that the coats of arms of princes would be certainly protected under this method, and that other coats of arms would as well, for the purpose of a coat of arms is identification, much like a notary's seal, and he quotes the Pandects, which says that he who forges a notary's seal must be punished.25
Bartolo also draws several differences in quality between coats of arms which their owner has decided to use of his own accord, which are called assumed coats, and those awarded or granted by a sovereign prince. First, a granted coat of arms cannot be taken for use by another person, which, as has been mentioned above, would otherwise be a licit action.26 Second, if a grantee's coat of arms looks like that of a non-grantee's, the grantee's title is better than the non-grantee's.27 Third, granted coats of arms carry more precedence: that is to say, if individuals or their coats of arms are being arranged in order of rank, all other things being equal, a grantee ranks above a non-grantee.28
Bartolo's book became popular in legal circles, but most heralds and knights did not speak the Latinate jargon in which De Insigniis et Armiis was written. Because of this linguistic divide, the field of heraldic law bifurcated. One was vernacular, and includes the works of Honore Bonet and Christine de Pisan. The other remained in Latin, and, in Wales and England, is represented by the works of De Bado Aureo and Upton. This Latin continuation of heraldic legal thought spawned, in England, other vernacular heraldic texts, which are the direct antecedents of Tudor and modern studies of heraldry.
The works of the first tradition of heraldic legal texts are interesting on another level, not just because they discussed heraldry, but also jus belli, the law of war. Jus belli, as one might expect, was an area of law which dealt not just with philosophical topics of international law (ie., "Who has the authority to declare a just war?"), but also the practical issues of mustering and disciplining an army. Since coats of arms played an important role in military identification, heraldic law fell into the practical side of jus belli.
The first tradition began in 1387 with the appearance of Honore Bonet's Arbre des Batailles, or Tree of Battles. Bonet was an Occitan Doctor of Decretals and prior of the monastery of Salon in Occitania, who wrote the book in order to garner the patronage of Charles V of France.29 Although the book was only moderately successful in doing that, it was a smash hit as a handbook for commanders seeking to control their armies.30 It has been found in the libraries of kings and gentlemen all over Europe, and was certainly in the British Isles by the middle of the fifteenth century.31
Bonet's format for the Tree of Battles was the scholastic dialogue. A "yes/no" question forms the head of each chapter, evidence for each side is addressed in the body, and Bonet's conclusions form the tail. Compared to Bartolo's coverage of heraldic law, Bonet is quite brief. Also, Bonet does not mention Bartolo, or his book, by name; generally, when pressed for a source, he puts the wite on "the masters" or "our masters," which, for heraldic matters, might have been heralds, as opposed to canonists or civilians.32 Bonet does not give a separate section to heraldic law, but has sandwiched it into his discussion on judicial duels.33 The questions before and after the section of heraldry are, at least in Coopland's translation, unrelated to heraldic matters.
Bonet begins his discussion of heraldic law with a discussion of what are commonly called coats of arms of dominion and coats of arms of office. These are special kinds of coats of arms, because they stand not for a specific man and his descendants, but for a kingdom, a feudal lordship (like Brittany), or an office (for example, that of mayor). Bonet considers these coats of arms to be of such great importance that those who use them without having the right to do so deserve to be punished for fraud. Because of this, the members of the king's family had to cadence their familial coat of arms, which were usually the same as the kingdom's coat of arms of dominion.34
Bonet turns from these special coats of arms to granted coats of arms. First, he says that granted coats can be borne and inherited only by the grantee's descendants, though this ban cannot be enforced beyond the boundaries of the grantor's jurisdiction.35 Bonet says that the right to assume a coat of arms is not removed, and implies that people might change their coats of arms at whim.36 However, he does argue that copying the coat of arms of another person ought to be forbidden, because confusion over the possession of articles marked by that coat would arise, causing injury to the original bearer.37
Bonet then turns to the issue of heraldic international law, and concludes much as Bartolo did. In general, according to Bonet, if two people from two different jurisdictions have the same coat of arms, neither can complain to the lord of the jurisdiction they are in for justice.38 However, if one of them had knowingly adopted the coat of arms of the other, in order to masquerade as him to commit fraud or other crimes, the adoptor was to be punished to the full extent of the law.39
Bonet's work may have been a success, but the work that was adapted from it was the mediaeval equivalent of a best-seller. This work was the Book of Fayttes of Armes and of Chyvalrye, by Christine de Pisan.40 De Pisan was one of the most interesting women of the Middle Ages, for she was the first female author outside of the cloister to be supported by her work as an author since the death of Hypatia of Alexandria, who was one of the last patrons of the famous library there.41 At first, she seems to be an unlikely authoress of a book on warfare, for the works that she is most noted for are her proto-feminist writings like the City of Ladies and the Letter to Othea, and much of the rest of her work is didactical in character.42 However, she spent her childhood in the court of the Valois kings of France, and lived in close contact with it until she withdrew to a cloister some time after 1429.43 The Valois court at that time was naturally concerned with matters of war-her birth in 1363 was just missed the end of the first half of the Hundred Years War, and De Pisan's death followed upon the heels of he victories of Joan of Arc.44 De Pisan herself had written at least one history, and seems to have been well-read in ancient history, which would have exposed her to still more talk of war and how it ought to be conducted.45
The Book of Fayttes of Armes and of Chyvalrye was written in or about 1408, almost a generation after Bonet wrote the Tree of Battles.46 It crossed the Channel in manuscript form not too long after, and Caxton translated it and set it to print at the behest of Henry VII, the first Tudor king. His translation is said to be excellent, and I have used the E.E.T.S. version of Caxton as my source for De Pisan.47
Like Bonet, De Pisan's discussion of heraldry is but a small part of a greater work. Her format is not dissimilar from his own, and, indeed, she makes no secret of having read and used Bonet's work, unlike Bonet, who did not credit his sources. However, unlike Bonet, her discussion of heraldry is not sandwiched between other subjects, but is at the end of a section.48
De Pisan has, unfortunately, little to say that is different from the material in the Tree of Battles.49 Considering how vociferously she defends women and asks for them to have a better place in mediaeval society in other works, the absence of any discussion of how heraldry was used by women is disappointing. However, this would have been unfaithful to her source, and a discussion of women's activities in a book which had no previous concern of them would, no doubt, have seemed inappropriate. De Pisan's book represents the end of the French vernacular tradition of heraldic law in England; by the end of the century in which it was written, it had to be translated into English to reach a large audience. By then, a native tradtion, starting at first in Latin, and then in Welsh and English, had come to fill the gap.
This second tradition is represented by the books of three people: Johannes de Bado Aureo, Nicholas Upton, and Juliana Bernes. Unlike the first tradition, the second tradition did not have a militaristic focus. Only one of the books, Upton's De Studio Militari, contained an exposition of heraldic law within the greater framework of jus belli. De Bado Aureo's Tractatus de Armis and its translations into Welsh and English dealt only with heraldry, and Bernes' Boke of Saint Albans included sections about hunting and other pursuits suitable for knights.
Johannes de Bado Aureo, according to Evan Jones, was, in reality, John Trevor.50 He was trained in Roman law, and rose through the Catholic hierarchy until he became Bishop of Saint Asaph's, and he was also a high-level envoy for both Richard II and Henry IV, until breaking from Henry to support Owen Glendower, and dying in exile.51 Trevor also had been appointed as a judge to hear the evidence in a heraldic lawsuit, of which no records remain, aside from the patent letter appointing him and several other people to sit as substitute judges for those who would normally sit in judgement, of whom this paper will discuss below.52 His book on heraldry, the Tractatus de Armis, was written at the behest of Queen Anne, Richard's wife.53
A great deal of the book consist of some rather fantastic stuff on the supposed correspondences between personal characteristics of an armiger and the elements of his coat of arms. However, he did note that it was illegal for someone to adopt another's coat of arms-and made no exceptions for any cause, unlike Bartolo.54 Unlike the earlier writers, he did not make any remarks about the difference between granted coats and assumed coats, nor does he say anything new about coat of arms of office or dominion. This is probably because De Bado Aureo decided to break new ground in heraldic law: he removed the previously attested right of a man to assume a coat of arms.55
Unfortunately, De Bado Aureo did not give any reasons for removing this right. As will be seen later in this paper, Richard II's reign was witness to several heraldic lawsuits, including one in which De Bado Aureo himself had sat in judgement, and perhaps his experience on the bench had provided him with his reasons. It is a pity that the records of the case have not survived.
De Bado Aureo got around any accusation of coming up with this new dictum independently by attributing his idea to Bartolo. Translated from the Latin, De Bado Aureo states: "Besides, I ask: 'Who can give coats of arms?' It is said: a king, a prince, a king of arms or herald, as Bartolo said.'"56 De Bado Aureo does not openly denounce assumption of coats of arms, but he quotes a section of the Pandects in which the assumption of military insignia was outlawed. Since coats of arms were and are, after all, military insignia, the handwriting on the wall is clear. It is also not too surprising to note that De Bado Aureo condemns without exception the practice of adopting a coat of arms identical to another person's, even without malice.57
The Tractatus de Armis was translated from Latin into Welsh and English in the early fifteenth century. The Welsh translation appears to have been done by De Bado Aureo himself, and appears to be complete.58 The English translation, of unknown origin, is extremely brief, and leaves out the correspondences. It does, however, include the first mention of the modern English cadency system of secondary charges.59
Most of the Lancastrian period in England passed without the appearance of a new heraldic treatise. This is odd, considering that this same time was coincident on the Continent with the reopening of the Hundred Years War and the elaboration of the cult of chivalry, especially in the court of England's ally, Burgundy. Also, as will be explained below, it was a time in which heraldic statute law and bureaucratic practice were being put on a firm footing.
The next heraldic treatise, Nicholas Upton's De Studio Militari, appeared in 1446.60 Upton's treatise is, in form and content, similar to those by Bonet or De Pisan, as one can tell from its title, which are more concerned with jus belli.
Upton was born just after the Tractatus de Armis appeared, to a family of Devonshire gentry. In 1415, he entered Oxford University, and graduated with a degree in Roman law in 1421, and at the same time, he entered the priesthood. From there, he seems to have become the chaplain to the Earl of Salisbury, who was, at that time, captain of a large army in France. Heraldry was part of the Roman law curriculum at Oxford, and it seems that Upton acted as the earl's herald, designing coats of arms for the members of his company who had ennobled themselves by valiant service. After the Earl of Salisbury died in 1428, Upton returned to England for a brief period, and then went back to France for another two years. He seems to have caught the attention of the Duke of Gloucester at that time, and, with his help, climbed from post to post in the English ecclesiastical establishment. Upton dedicated De Studio Militari to the duke, in the last year of the duke's life.61
Upton's book became immensely popular, doubtless because he had the experience in court and camp of how military matters, including heraldry, were handled by the largest armies of the day in Europe. The work was copied many times over, and was finally put into print in 1654 by Sir Edward Bysshe.62 Another version, called Baddesworth's version, cuts out some of the strictly martial sections of De Studio Militari, but leaves the heraldic sections.63
As was mentioned above, Upton's heraldic discussions followed De Bado Aureo's, but with one exception. The one exception was with respect to assumption of coats of arms. Where De Bado Aureo frowned on the practice, Upton condones it, just as Bartolo did, and also treats granted coats of arms in Bartolo's fashion. He cites his experience at war for the practice, instead of citing one of his predecessors.64
It is unknown why he broke with De Bado Aureo. The law of the land did not agree with him, as will be shown below. His sympathies seem to have been solidly Lancastrian, despite the storm clouds presaging the Wars of the Roses that were appearing on the horizon in the last years of his life, so it was not a question of refusing to recognize the laws and judgements of the Lancastrian kings. Perhaps he saw a discrepancy between the theory of the law and its practice, and reasoned that there can be no theory without practice.
In any case, Upton's authority was of such magnitude that the last English mediaeval heraldic treatise lifted his opinions bodily without ever crediting him for his labors. This was The Boke of Saint Albans, by Julianna Bernes.65 It was printed in 1486, which means that if one defines the end of the Middle Ages in England as the end of the Wars of the Roses, it might be considered the first English heraldry book of the Renaissance.66 Bernes' book is a miscellany, composed of several smaller treatises, on gentlemanly pursuits, like hunting, fishing, horsemanship, and heraldry.67 As she was more of a paraphraser than an orginal thinker, like De Pisan, her book, like De Pisan's, is worth noting only in that it got into print, and was read by many people.
Since jus belli, even in England, was a recognized part of Roman law, heraldic disputes were not adjudicated in the common-law courts. Instead, they were adjudicated in one of two ways. The first way was by the royal appointment of a commission made up of experienced gentlemen and lawyers who would hear the evidence of the heralds and other deponents for both parties, and arrive at a conclusion.68
The second way arose in the reign of Edward III, as disputes involving jus belli became more frequent.69 The reason for the increase in the number of disputes is simple: before the Hundred Years War, the entire gentry was not mobilized. Members of the gentry who had assumed coats of arms without knowing that others had previously assumed similar coats were now in contact, and accused each other of usurping their coats of arms. Also, the very nature of the Hundred Years War increased the number of disputes that were properly covered under the jus belli, aside from heraldic disputes.
In order to settle these disputes in an orderly fashion, Edward III established a permanent court to deal with them.70 This court has gone by several names, including Curia Militaris, Court of Chivalry, Court of the Constable and the Marshal, and, in the Tudor era, as the Earl Marshal's Court.71 To simplify matters, it will be referred to here as the Court of the Constable and the Marshal. The Lord Constable and the Earl Marshal were both offices that had existed since time immemorial, as the leaders of the royal host under the king himself. The establishment of the Court of the Constable and the Marshal was a natural outgrowth of their offices.72
The Court of the Constable and the Marshal became a very popular court for the adjudication of all sorts of disputes, some not necessarily matters covered under the jus belli. In Richard II's reign, the court had to be restrained twice from encroaching upon the jurisdiction of the common-law courts by Parliament. The last statute defined its jurisdiction, which included heraldic disputes.73 The Court of the Constable and the Marshal could have its decisions overturned by the word of the king.74
In 1417, Henry V proclaimed the first criminal law in heraldic law: he outlawed the practice of assuming coats of arms. The proclamation also empowered the sheriffs or other representatives of the king to deface the malefactor's coat of arms, wherever it may have been-on his banner, his shield, or other chattels.75 The proclamation was related to the practice of heraldic visitations, which, though its earliest records date from the reign of Edward IV, probably goes as far back as the reign of Henry V.
Heraldic visitations were made by the heads of the king's heraldic establishment, the College of Arms, which was only formally organized in the reign of Richard III.76 However, the seeds had been sown years before. England was divided into "provinces," similar to the archdiocesan division of England, with Norroy in the North, starting at the Trent, and Clarenceux south of the Trent.77
The king's chief heralds, called the Kings of Arms, were usually given the name of a province or one of his dominions (there were, in addition to Norroy and Clarenceaux, Ireland and Guyenne Kings of Arms, for example, and Garter, without a province, but he is the paramount King of Arms and had special duties towards the knights of the Garter), and were required by oaths dating from the reign of Henry V to take a survey of all the armigers in their provinces, which came to be called visitations, after the ecclesiastical inspections.78 Rolls of coats of arms arranged by shire had been made before this time, but they were more like mnemonic aids for the herald who made them.79 These, on the other hand, were more than rolls of coats of arms, as shall be seen below.
Usually, a visitation was preceded by a royal writ to the sheriff of the shire in which the king of arms, or his chosen representative, usually one of the king's lesser heralds, was to visit. The writ ordered the sheriff, or his subordinates, to give the visitor a list of all the men who used coats of arms, or who styled themselves gentlemen, in the shire. Once the visitor arrived at the shire, he got the list of gentry, and either visited the gentry in their own houses, or had them summoned to the chief town in their wapentake.80
When the visitor had met the gentry, he asked them to prove their right, either by grant or demonstrating ancient use (that is, use since time out of mind), to the coats of arms that they used. Since grants of coats of arms were fairly uncommon, as they were a display of royal favor, most gentlemen proved their rights by demonstrating ancient use, usually by displaying old sealed documents, stained glass, or other church monuments. If one could not prove his right to use a coat of arms, he was forced to disclaim his rights, and whatever bore this illegitimate coat of arms had to have it removed or defaced. The kings of arms were also required to know the family ties of the gentlemen in their provinces, in order to cadence and quarter their coats of arms properly, and so, after proving their right to their coats of arms, the gentlemen stated their genealogy, as far back as they could.81
The visitors wrote the results of their surveys in visitation books, and went home, after collecting their fees of office.82 If a person with a dubious claim to a coat of arms refused to disclaim, or never bothered to show up to the visitation, he was to be brought into the Court of the Constable and the Marshal.83 On the other hand, the kings of arms were empowered to grant coats of arms to deserving persons, after certain fees were paid and the permission of the Marshal was obtained.84 In that fashion, a man with dubious claims to gentility could save himself the humiliation of disclaiming by proving that he was wealthy enough to live like a gentleman.
However, the mediaeval heraldic cases for which we have detailed records are not concerned with the proclamation of Henry V and the visitations associated with them, which one might analogize to criminal law and enforcement. Instead, they are concerned with the older body of heraldic jurisprudence, which one might analogize to civil law and lawsuits. A few of these recorded lawsuits were heard before one or another of the temporary commissions of gentlemen which existed before the Court of the Constable and Marshal.
There are only five cases which have a great deal of documentation. They can be further subdivided into three groups: the Morley cases, the Scrope cases, and Grey v. Hastings. Other cases can be shown to have existed, on the basis of royal writs appointing commissioners to hear appeals from the Court of the Constable and the Marshal, or to substitute for the Constable and the Marshal in their court. There are two reasons why documentation does not exist for the majority of heraldic cases. One is that the Court of the Constable and the Marshal is not a court of record, and, in general, the civil lawyers who practiced in England rarely recorded their cases.85 The second reason is that the court sat idle for over two centuries, from 1735 until 1955, and the records for it might have been thrown out as rubbish in the intervening period.86
The Morley cases, Burnell v. Morley and Lovell v. Morley, have the oldest roots out of the five cases. Burnell v. Morley was heard at the walls of Calais in 1340. This was one of the only heavily recorded cases to be heard by an ad hoc tribunal, even though the Earl Marshal and the Lord Constable were part of the tribunal. The case arose because Burnell accused Morley of usurping his coat of arms. The tribunal decided in favor of Burnell, but let Morley use the coat of arms as long as he was alive, and prohibited his heirs from using the coat of arms.87
Lovell v. Morley arose about thirty years afterwards. Lovell was the rightfull heir to the Burnell coat of arms, through a heraldic heiress, but a Morley decided that he could use the Burnell coat, despite the decision at the walls of Calais. It was decided in favor of Lovell in 1385.88
Some time in the reign of Edward III, the first Scrope suit was heard and decided. This suit was Carminow v. Scrope, whose records have been lost; what little is recorded of the suit is found in depositions from the other Scrope lawsuit. Richard le Scrope, at that time, was an important member of Edward III's court, the Chancellor of the Exchequer, while William Carminow was Sheriff of Cornwall.89 Scrope and Carminow were both with the king when he went to Paris, and Carminow noticed that Scrope was using nearly the same coat of arms as he was, which was Azure, a Bend Or. He sued Scrope in a tribunal in which the Lord Constable, but not the Earl Marshal, was present.90
In this case, and in the other case involving Scrope, we do know what sort of evidence was presented. Witnesses were called by both parties in the case, to testify that their party, their relatives, and their ancestors had used that coat of arms without let or hindrance. This was done in a fashion similar to the heraldic visitations which were, at that time, decades away: ancient documents were brought forth, and eyewitness accounts of present use and testimonies of use on monuments were recorded.91 Scrope claimed that the coat of arms had been his family's since the Conquest, which was unlikely, as has been discussed above, while Carminow put forth an equally impossible claim: that they were his family's by a lost grant from King Arthur.92
There is something of a dispute about the court's decision. One version has Scrope receiving sole rights to the coat of arms, and Carminow was required to difference the coat of arms by adding a label gules to the coat, much like a cadency mark.93 Another has Carminow and Scrope receiving joint title to the coat of arms in question.94 The former version of the verdict, if one were to examine the visitation record for Cornwall, would appear to be the more likely one. In that visitation, Carminow appears to have the label on his coat of arms.95 However, a problem arises if one examines the rolls of coats of arms made by a herald during the reign of Edward III, before the suit: Carminow is listed as having the label on his coat of arms.96
One may posit a possible solution to this dilemma, which unites elements of both versions of the verdict. Carminow, and his ancestors, always used the coat of arms with the label. Carminow saw Scrope's coat of arms, which, aside from the label, was identical to his, and sued Scrope. The suit went to court, and the court decided that the label was a sufficient mark of distinction, either in spite of, or perhaps because of, the label's use in cadency.
In 1385, after Carminow v. Scrope had exited the Court of the Constable and the Marshal, Scrope was in the court once more. This time, he decided to sue Robert Grosvenor. Scrope encountered Grosvenor when Richard II called his forces for a campaign into Scotland.97 Grosvenor seems to have had an earlier run-in with a Carminow relative, too, but all the reports we have of it are even vaguer than those of Carminow v. Scrope.
The same sort of procedure for evidence gathering was initiated, and much the same sort of evidence was gathered. In fact, many of Scrope's witnesses against Grosvenor were the same people who helped him against Carminow.98 Although Grosvenor was also a prominent man of the realm, he could not muster the quality and quantity of witnesses that Scrope could, and the court decided to Scrope once more, and ordered Grosvenor to place a bordure Argent around the coat of arms which they once shared.99 Grosvenor appealed the decision, because, like the label, the bordure was a sign of cadency or relatedness. Also, some relatives of Richard le Scrope used coats of arms with bordures, and Grosvenor would naturally have wanted to avoid getting dragged into court again.
The case appeared before the king on appeal, and the king modified the court's decision in 1390. Instead of making Grosvenor adopt the court's coat of arms, he made Grosvenor adopt a new, totally different coat of arms. Grosvenor, a native of Cheshire, adopted a coat of arms similar to that of the old Earls of Cheshire: Azure, a Garb (a wheatsheaf) Or.100
The last well-documented mediaeval heraldic case was Grey v. Hastings, which was decided in 1408.101 This, unlike the other cases, was a dispute between cousins. Hence, the dispute was not over the rights to the basic design, but over which side of the family had to attach cadency marks to the coat of arms.
The story begins two generations before the case came to court, when a man named John Hastings married Isabel, the daughter of the Earl of Pembroke, by whom he had two children, John, Jr. and Elizabeth. John, Jr. became Earl of Pembroke and Lord Hastings, and Elizabeth married Rodger, Lord Grey. Isabel died, and John married another Isabel, the daughter of Hugh Spenser, by whom he had Thomas and Hugh. John himself died, and John, Jr. inherited. Eventually, John, Jr.'s descendants died out, and the heirs of Rodger and Elizabeth, the Greys, and the heirs of Hugh, the Hastings, fought in court for the Hastings estate.102
The Greys got the land, on the basis of the legal dictum "possessio fratris de feodo simplici facit sororem esse haeredem". The new head of the Hastings family removed the cadency mark from his coat of arms. The head of the Greys sued him in the Court of the Constable and the Marshal, and won, because the ancestral estate of Hastings was in his hands, resulting in the odd circumstance of a head of a family with neither the family's chief estate nor the undifferenced coat of arms.103
The less well-documented cases generally have very little attached to them, besides the surnames of the plaintiff and the defendant. A few have just the decision of the court, for one side or the other.104 For others, there is a list of substitutes of the Lord Constable and Earl Marshal to conduct hearings while they were on other business, or to act as legal advisors for the king, if the case was appealed from the Court of the Constable and the Marshal, and no decision.105
Heraldic cases did not cease to be heard after the end of the Wars of the Roses. In fact, with the death of the old gentry families, and the rise of new ones, the heralds of the king had their hands full with illegal assumptions and usurpations of coats of arms. The system of visitations, in fact, reached a zenith in the Elizabethan or Jacobean period.106 However, by the Glorious Revolution, the military and political need to restrict the use of coats of arms had dwindled, and the last visitation was held in 1686.107 The Court of the Constable and the Marshal, bereft of its partner in heraldic control, limped on until 1737, and then became dormant until 1954, when City of Manchester v. Manchester Palace of Varieties, a case of usurpation, was heard in its chambers.108 The College of Arms, which grants coats of arms under the warrant of the Marshal, remains a living part of the royal household.
The practice of heraldic law, while rather unexciting in itself, did have two useful spinoffs. One of them is the extensive series of heraldic visitations, which are useful for genealogists and for those who wish to identify materials with coats of arms upon them. The other, the post-mediaeval records of the Court of the Constable and the Marshal, provides a window into the customs and the way of life in England among the rural and urban middle and upper class of the Stuart dynasty.
Materials exist for a further examination of heraldic law in Scotland. There, the court of first instance for heraldic cases, the Court of the Lord Lyon, never became dormant, and Scotland's royal heralds are organized differently from England's. Also, the Continent has been largely unexplored in this field. The French heralds formed a collegium in 1406, but it is unknown if their records, or the records of the Juge d'Armes, have ever been completely edited. Other states had heraldic establishments, too, but little is known of them, or their heraldic jurisprudence, in the English speaking world.
1 Arthur Charles Fox-Davies, A Complete Guide to Heraldry (New York: Bonanza Books, 1978), pp. 14-16.
2 Henry Bedingfeld and Peter Gwynn-Jones, Heraldry (Secaucus: Chartwell Books, Inc., 1993), pp. 12-14.
3 James Dallaway, Inquiries into the Origin and Progress of the Science of Heraldry in England (London: T. Cadell, 1793), p. 47.
4 Fox-Davies, pp. 477-492.
5 Thomas Woodcock and John Martin Robinson, The Oxford Guide to Heraldry (New York: Oxford University Press, 1988), p. 116.
6 Ibid., pp. 117-118.
7 Ibid., p. 118.
9 Ibid., pp. 118-119.
10 Ibid., p. 123.
11 Ibid., pp. 125, 129.
12 Harris Nicolas, The Seige of Carlaverock (London: J. B. Nichols and Son, 1828), p. 37.
13 Anthony Wagner, Heralds and Heraldry in the Middle Ages (New York: Oxford University Press, 1960), p. 20.
14 Ibid., p. 66.
15 G. D. Squibb, The High Court of Chivalry (Oxford: Clarendon Press, 1959), p. 162.
16 Rodney Dennys, The Heraldic Imagination (London: Barrie and Jenkins, Ltd., 1975), p. 62.
17 Manlio Bellomo, The Common Legal Past of Europe(Washington: CUA Press, 1995), pp. 190-191.
18 Dennys, p. 62.
19 Ibid., p. 63.
20 Evan Jones, Medieval Heraldry (Cardiff: William Lewis, Ltd., 1943), pp. 229-230.
23 Ibid., p. 235.
24 Ibid., pp. 231-232.
25 Ibid., p. 233.
26 Ibid., p. 234.
28 Ibid., p. 235.
29 Honore Bonet, The Tree of Battles (Cambridge: Harvard University Press, 1949) pp. 15-16.
30 Ibid., pp. 21-23.
32 Ibid., p. 25.
33 Ibid., pp. 202-206.
34 Ibid., p. 203.
35 Ibid., pp. 203-204.
36 Ibid., p. 204.
38 Ibid., pp. 204-205.
39 Ibid., p. 205.
40 Christine de Pisan, The Book of Fayttes of Armes and of Chyvalrye (London: EETS, 1937), pp. xii- xxvii.
41 Dictionary of the Middle Ages
46 De Pisan, p. xii.
47 Ibid., pp. xxviii, liii.
48 Ibid., p. 293.
49 Ibid., p. xlvi.
50 Jones, p. xxx.
51 Ibid., pp. xxx-l.
52 Ibid., p. xliv.
53 Dennys, p. 67.
54 Jones, p. 142.
56 Ibid., pp. 142, 171.
57 Ibid., p. 142.
58 Dennys, p. 70.
59 Jones, p. 214.
60 Dennys, p. 79.
61 Dennys, pp. 76-78.
62 Ibid., p. 79.
63 Ibid., p. 82.
64 Francis Pierpont Barnard, ed. The Essential Portions of Nicholas Upton's De Studio Militari (Oxford: Clarendon Press, 1938), p. 48.
65 Dennys, p. 86.
67 Compton Reeves, Pleasures and Pastimes in Medieval England (Phoenix Mill: Alan Sutton Publishing, Ltd., 1995), p. 113.
68 Squibb, p. 14.
69 Ibid., p. 15.
71 Ibid., p. 2.
72 Ibid., p. 1.
73 Ibid., p. 6.
74 Ibid., p. 221.
75 Wagner, p. 64.
76 Reeves, p. 88
77 Woodcock and Robinson, p. 139-140.
78 Wagner, pp. 58-59.
79 Ibid., p. 21.
80 Ibid., pp. 2-4.
83 "X" The Right to Bear Arms (London: Elliot Stock, 1900), p. 132.
84 Wagner, pp. 9-10.
85 Squibb, p. 163.
86 Ibid., p. xxv.
87 Wagner, p. 21-22.
88 Ibid., p. 22
89 Joseph Polsue, A Complete Parochial History of the County of Cornwall (London: John Camden Hotten), p. 275.
90 Col. Vivian and H. H. Drake, The Visitation of Cornwall, 1620 (London: Harleian Society, 1874), p. vii.
91 Ibid., p. vi-vii.
93 Polsue, p. 276.
94 Vivian and Drake, p. vii.
95 Ibid., p. 33.
96 Joseph Foster, Feudal Coats of Arms (London: Senate, 1995), p. 47.
97 Harris Nicolas, The Scrope and Grosvenor Controversy (London: Samuel Bentley, 1832), p. 49.
98 Vivian and Drake, p. vii.
99 Nicolas, Controversy, p. 7.
100 Ibid., pp. 10-11.
101 William Dugdale, The Ancient Usage in bearing such Ensigns of Honour as are commonly called Arms (London: Richard Danis, 1682), p. 29
104 Squibb, pp. 14-15, for example.
105 Ibid., p. 221.
106 Wagner, p. 2.
108 Squibb, p. 118, 123.