Bartolo's De Insigniis et ArmisLast revised September 1997
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.
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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