Bartolo's De Insigniis et Armis

Bartolo da Sassoferrato

Bartolo da Sassoferrato (1314-57) was an internationally renowned jurist of the Middle Ages. Born in Sassoferrato, he became a doctor at 21 in Bologna, where he taught; he later taught in Pisa from 1339 to 1343 and in Perugia from 1343 to his death. In 1355, he participated in an embassy to the emperor Charles IV in Pisa, upon which occasion Charles IV granted him a number of insign honors and a coat of arms. His reputation and influence lasted for two centuries at least, and he was considered the preeminent civil law jurist of Western Europe.

the Tractatus de Insignis et Armis

Jurists in the Middle Ages were mainly of two kinds: canonists, who specialized in Canon or Church law, and legists or romanists, who specialized in civil law based on Roman law. In practice, canonists were also very familiar with civil law and relied on it to a large extent.

Writings by legists were generally in the form of Commentaries or Lectures on the corpus of civil law (the Justinian Code, the Digest, the Institutions, the Novellae), which followed closely the text of the corpus and added comments which often turned into long, detailed analyses. Also, legists would put together material pertaining to a single subject in a treatise, or tractatus. Bartolo's treatise is the earliest work to tackle the legal aspects of heraldry.

The Tractatus is traditionally thought to have been written after the grant of arms to Bartolo by Charles IV in 1355. Cavallar, Dengenring and Kirshner consider this grant of arms as a fable, although it is mentioned in the Tractatus itself, confirmed by the contemporary jurist Angelo degli Ubaldi, and perfectly plausible. The arms granted were Or a lion with forked tail gules (a variation of the Bohemian arms). The Tractatus was unfinished when Bartolo died and it was completed and edited by his son-in-law Nicolò Alessandri in January 1358. More than 100 manuscript copies of the Tractatus survive from the Middle Ages, attesting to its popularity and widespread influence. It was quoted or used by most early works dealing with heraldry, such as Johannes de Bado Aureo (John Guildford [= de Vado Aureo] according to some, Siôn Trevor bishop of St. Asaph from 1395 to 1410, according to Evan J. Jones)) in his Tractatus de Armis of 1395, Honoré de Bonet's Arbre des Batailles of 1387, Christine de Pisan's livre des fais d'armes et de chevalerie of 1410 and thence William Caxton's translation Fayttes of Armes of 1489, Nicholas Upton's De studio militari of ca. 1446, Clément Prinsault's Traité du blason of 1465, the Argentaye Tract (late 15th c.), Felix Hemmerlin's Dialogus de nobilitate et rusticitate of 1444, Peter de Andlau's De imperio Romano-Germanico of 1460, Barthélemy de Chasseneuz' Catalogus de gloria mundi of 1529.

Roman Law rose to preeminence in the 12th century, after the independent scholar Irnerius began teaching in Bologna at the end of the 11th c. By 1280, Bologna and several European cities had an established university. Roman law, as transformed and adapted by the Glossators (up to ca. 1260) and the post-Glossators, was particularly influential in Southern Europe and Germany, and contributed to the formation of the European jus commune, the body of rules and procedures which complemented, or underlied, local customs. When local custom was found insufficient, lawyers and judges turned to Roman law.

England was a country where common law prevailed and Roman law was not used in common law courts. But those were not the only courts: ecclesiastical courts followed canonical- law, which relied heavily on Roman law. However, Bartolo's influence is known to have been great in English ecclesiastical law, which was based on civil law (Lyndwood's Provinciale, still a standard work in the 17th c., is full of references to Bartolo). Civil law was taught in the English universities, and Bartolo's work was well known and admired. Any "civilian" (jurist trained in civil law) of the late 14th c. or 15th c. would have been familiar with Bartolo. It should also be noted that the Court of chivalry was not a court of common law, but operated under the rules of civil law, itself based on Roman law. Walter Ullmann, professor of law at Cambridge University, expressed the opinion that Bartolo's influence may have been felt among the civilian lawyers of the Court of Chivalry:

« Whilst we have here within the precincts of ecclesiastical jurisdiction a manifest direct influence of Bartolus, in the other courts in which Roman law alone came to be applied, his influence can only be conjectural, although highly probable,. The one other court which administered Roman law was the court of the Constable and Marshal, the so-called Curia militaris sub conestabili et marescallo Angliae. Like the ecclesiastical courts this court too was composed entirely by graduates and must therefore be presumed to have become acquainted with Bartolus' teachings during their legal education. This all the more so, as the jurisdiction of this court dealt in general with matters which arose outside the kingdom, and for this reason an acquantance with up to date civilian literature appears to have been necessary; crimes committed outside England, contracts entered into beyond the shores of England, and, above all, matters pertaining to warfare, came within the competency of this court. These issues themselves would suggest that, because virtually impossible to be dealt with according to pure Roman law, the judges of this court had to be familiar with the accomodation of Roman law to the contemporary situation. As I have said, although the influence of Bartolus appears highly likely, no clear verdict can be given, until the records of this court are made available.»

An indication of the influence of Bartolo can be garnered from the diffusion of manuscripts of his works. The Bodleian library in Oxford has a 15th c. copy of the Tractatus in the original Latin, as well as a translation into English. The Cotton Library has another 16th c. copy, and so does Cambridge University. The British Museum owns a copy made before 1426 (in the Arundel manuscripts). Most interestingly, the Bodleian has a 16th c. copy annotated as follows by Richard Rawlinson in 1586: "This was wrote by William Smith Rouge Dragon, a very industrious officer in the college of arms, temp. Elizabeth. Reg. Thus Mr. Anstis." The British Museum (in the Stowe manuscripts) has another 15th c. copy which belonged to Richard Glover, Somerset Herald (d. 1588), who also owned a French translation. Thus, the Tractatus was not only known in England, but was also of interest to 16th c. heralds of the College of Arms (of course, one cannot presume that they endorsed his views on the subject!).

(See Bartolo di Sassoferrato: Studi e Documenti per il VI. Centenario. Milan, 1962. In particular, Walter Ullmann's essay and Bruno Paradisi's article on the European diffusion of Bartolo's thought.)

Scotland, where Roman law was much more influential than England, presents more evidence of Bartolo's impact in heraldic matters in the British Isles David M. Walker (A Legal History of Scotland, Edinburgh, 1990; vol. 2, p. 7) notes: "It is interesting that the subject to which some of the earliest surviving Scottish legal literature relates is heraldry and the law of arms. The earliest extant treatise on heraldry is the Tractatus de Insigniis et Armis of Bartolus of Sassoferrato of about 1356. A fifteenth century manuscript of this treatise, made for William Cuming of Inverallochy, the Marchmont Herald of the time, and a manuscript copy of about the same time which belonged to John Meldrum, his successor, are both extant. Honoré Bonet's Arbre des Batailles or Book of the Law of Arms, written about 1386, translated by Gilbert de la Haye in Rosslyn Castle in 1456 at the request of the Earl of Orkney and Caithness, Chancellor of Scotland, and noteworthy as a very early specimen of Scottish literary prose, includes sections on armorial bearings directly founded on Bartolus' Tractatus. Accordingly it seems that knowledge of Bartolus' work and of this branch of law was at least indirectly known in Scotland before 1500."

This is paradoxical, since recent Scottish heralds (Innes of Learney) have claimed that regulation of armory in Scotland is grounded in medieval practice!

Bartolo on the Right to Arms

The text is taken from Osvaldo Cavallar, Susanne Dgenring and Julius Kirshner, A Grammar of Signs: Bartolo da Sassoferrato's Tract on Insignia and Coats of Arms, Berkeley CA 1994, Robbins Collection Publications. Their excellent introduction provides much context and analysis of the tract, although (as said above) I dispute their conclusion that the grant of arms to Bartolo is a fable.

Let us consider the insignia and coats of arms that are borne on banners and shields.

§1. First, whether it is permitted to bear them, and second, if it is permitted, how they are to be painted and borne.

I say that some insignia are proper to a rank or office, and that anyone may bear them if he holds that rank or office, as for example the insignia or proconsuls or legates (Dig. 1.16.1, 1.8.8), or, as we can see today, the insignia of bishops. And anyone who has that rank can bear these insignia. This is not permitted to others, and if someone who is not entitled to them bears them, he incurs the charge of fraud (Dig. 48.10.27.2). And so I think that those who bear the insignia of the doctor of law when they are not doctor are liable to that penalty.

§2. Some insignia are proper to anyone of a particular rank---for example, any king, prince, or other potentate has his own coat of arms and insignia, and is is permitted to no one else to bestow them or depict them on their own belongings (Cod. 2.14[15], Nov. 17 = A 3.4.16). I believe that this means that one cannot copy the insignia as such; however, it is not prohibited to use such insignia as an accompaniment---for instance, to place the insignia of a king, lord, count, or commune on one's own coat of arms as a sign of subjection. And this is common practice.

§3. Some insignia or coats of arms belong to private persons, either nobles or commoners, and some of these have coats of arms and insignia which they bear by the grant of an emperor or other lord. I have seen the Serene Prince Charles IV, Emperor of the Romans and King of Bohemia, grant many insignia and coats of arms. Among other concessions, the prince gave me (his counselor) and my agnates a red lion on a golden field. And there is no doubt that it is permitted to such persons to bear such insignia, for it is sacrilegious to question the power of a prince (Cod. 9.29.2, Cod. 2.16[17]). If something is forbidden without the authority of a judge, then it is certainly permissible by his authority.

§4. Some assume coats of arms and insignia on their own initiative, and we should consider whether they are permitted to do it. I think that they are permitted. Just as names are created to identify persons (Cod. 7.14.10), so insignia and coats of arms are devised for this purpose (Dig. 1.8.8). Anyone is permitted to use such names for himself (Dig. 1.8.8, Dig. 48.1.13), and thus anyone can bear these insignia and depict them on his own belongings, but not on another's (Cod. 2.16(17).2, X 5.31.14, and gloss).

§5. I ask whether someone is permitted to bear the same coat of arms or insignia as another or whether he can be prohibited. It seems that he is permitted because anyone can assume the name of another (Dig. 36.1.65[66].10, Dig 31.76.5), and many may have the same name (Dig. 26.2.30, Dig. 31.1.8.3). Therefore, anyone can assume the coat of arms of another, and many can bear the same insignia and place them on their belongings since this is done for the purpose of identification. It also seems, however, that he can be prohibited (Dig. 50.17.11), for if we were the first to adopt the sign and thus it belongs to us, it cannot be taken away except by our own consent. But this fundamental principle of ownership cannot be applied here. It applies when several persons cannot use the same object at the same time; however, it does not apply to the use of a facility such as a square, a bath, or a theater (Dig. 13.6.5.15)

Furthermore, the sign that someone bears is not really identical to the same sign borne by another; rather, they are different,although they might appear alike. Therefore, concerning the initial question, I say first that one can prohibit or seek to prohibit another from using his sign if he is injured by it because the other party bears the coat of arms with contempt or treats it shamefully (Cod. 1.9.11, Cod. 1.4.4, X 5.31.14).

Second, a third party who is harmed can lodge a complaint about the improper use of the coat of arms, and by his petition the bearer can be prohibited from using it (Cod. 2.14(15).1, Nov. 17 = 3.4.16).

Third, if a judge, by virtue of his office, sees that such use may cause public scandal and confusion among the subjects, he can prohibit it (Cod. 7.6.1.5) lest the people be deceived (X 5.6.15).

§6. Having established these three points, I make the following distinctions. Sometimes one assumes a coat of arms that another has borne from antiquity and it does not affect or damage the original bearer, nor can he be harmed because of the likeness. For example, a German went to Rome at the time of the jubilee (1350), where he found a certain Italian bearing a coat of arms and insignia of his ancestors, and he wanted to lodge a complaint against the other bearer. Certainly, he could not do it, for the distance between their respective permanent places of residence is so great that the original bearer could not be harmed by the other. Therefore, as in those cases in which someone uses a facility accessible to all, a complaint cannot be lodged without a good reason (Dig. 43.13.1.6).

§7. Sometimes it may happen that the use of a coat of arms or insignia by one individual may impinge on another who uses the same insignia. If a person who has many enemies and against whose life many are plotting assumes the coat of arms and insignia of another peaceful or quiet person, certainly it matters much to the latter, and he can see to it that the former is prohibited. Just as a complaint can be lodged against someone who bears a coat of arms or insignia contemptuously, all the more can a complaint be lodged to pervent one from being mistakenly killed or injured in place of another who has adopted the identical coat of arms. Similarly, one can appeal to a judge whose concern is the peace of the people, if the person assuming the coat of arms of another is a public threat (Dig. 1.12.1.12).

[...] §9. Next, I ask what are the advantages of having coats of arms by imperial grant. There are many.

First, they are of greater dignity, as we say in the case of a testament made before the emperor (Cod. 6.23.19).

Second, one cannot be prohibited by another from bearing such coats of arms (Cod. 6.8.2, Dig. 4.4.1.1).

Third, if two persons assumed the same coat of arms and it is not clear who had them first, the one who had them from the prince is preferred (Dig. 27.1.6).

Fourth, if a question of precedence arises regarding military persons on the battlefield or somewhere else, then the coat of arms granted by the prince should have precedence (Dig. 50.3.2, X 1.33.7, Dig. 27.1.6). The aforesaid applied when all other things are equal---namely, when those who have coats of arms are of equal rank; otherwise, the coat of arms of the one of greater dignity should have precedence (Dig. 50.3.1, Cod. 12.3.1).

Bartolo goes on to discuss inheritance of coats of arms: for him, some coats of arms belong to a house or agnation and pass to all agnates, whether or not they are heirs of the father or his ancestors. They do not belong to the cognates or those related by marriage, nor can they be inherited by illegitimate children. He also discusses in great details merchants' marks, what happens to them when a partnership is dissolved, craftsmen's trademarks, etc. This part is particularly interesting, since it prefigures modern trademark laws. He takes as an example a maker of swords who puts his mark on his products, and has a legitimate interest in protecting his mark from being used by competitors.

(On merchant marks, see Ed. Elmhirst, Merchant's Marks; London, 1959; with a catalogue of 1280 merchants' marks from the 13th to the 18th c. found in England, some displayed on a heraldic shield).

The second part of the tract, which was probably left unfinished and completed by the son-in-law, deals with the pictorial display of the arms, how the animals should be depicted, which colors are used, etc.

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