M'DONNELL v. MACDONALD.

21

any man, secmeth to have offered indignity to the person of their Bearer, so as (according to some authors) their owner shall right himself against such an offender, actione injuriarum."

In the case of M'Donnell v. Macdonald, in the year 1826, Lord (William) Robertson remarks that "the Lord Lyon's power to grant new Armorial Bearings is merely discretionary and ministerial, and with that the Court of Session cannot interfere. But if the Lord Lyon should grant to one person Arms which another is entitled to bear, and should refuse to give redress, there could be no doubt of the jurisdiction of the Court of Session to entertain an action at the instance of the party to have his right declared, as this would involve a question of property, which a right to bear particular Ensigns Armorial undoubtedly is." In the same case, Lord Pitmilly observes :-" As to the abstract principle, it is clear that wherever there is a competition as to the right to Armorial Bearings, an appeal lies to the Court of Session by advocation, and also by reduction, which is the proper remedy when the Arms are already granted."

1 Abridgement of Guillim, by Samuel Kent, i. 5.

See also Hopingius De Insigniis (1642), Cap. ii. Par. xii. Membr. 3. "De propriis et alienis Insignibus ;" and cap. xiv., "De actionibus Insignium Nomine competentibus."

That the term "injury" has long been regarded as synonymous with affront or contumely, will appear from the following passages, which are quoted in Wallace's Principles of the Law of Scotland, p. 509 :-" In

66

22

CUNINGHAME v. CUNYNGHAM.

In accordance with these established principles, Lord (Patrick) Robertson remarks, in the very latest Heraldic case that found its way into the Court of Session:-" It is enough for the Lord Ordinary to be satisfied that the subject of the wearing of Coats of Arins is matter of legal right; and this being once settled, the dispute must be considered and determined with a due regard to the interest of the parties, just as much as if it involved large patrimonial interests."1

Note to Interlocutor in case of Cuninghame ». Cunyngham, 13th June 1849, 11 D. 1139.

CHAPTER II.

EARLY JURISDICTION OF HERALDS IN MATTERS RELATING TO ARMORIAL BEARINGS, PARTICULARLY IN SCOTLAND.

It is generally supposed that, in ancient times, every Knight who had taken part in the Holy Wars was allowed to use a Coat of Arms, but the number who assumed heraldic ensigns so rapidly increased, that it was soon found necessary to establish rules and regulations respecting their adoption. As of old the jus imaginum was only bestowed by Magistrates and other lawful Authorities, "ita hodie tantum illi jus insignium vel armorum conferre possunt. Sunt enim Arma tesseræ et symbola dignitatis, et nemo potest dignitatem sibi arrogare sine Principis licentia."1 The Officers by

whom these rules were carried into execution, under the authority of the Sovereign as the sole Fountain of Honour, were known by the general designation of Heralds,2

1 See Mackenzie's Science of Heraldry, chap. ii.

In the year 1417, King Henry v. issued a writ addressed to the sheriffs of the several counties, forbidding all manner of persons thenceforth to bear any arins not derived from their

ancestors, without license from himself or the officers of arms, excepting such as had borne arms at Agincourt. -(See Sir H. N. Nicolas' History of the Battle of Agincourt, p. 169.)

2 Herald est vox incertæ radicis, sed vere similior derivatio est a

24

INSTITUTION OF HERALDS.

who are believed to have been introduced into our own island from France-where they were first incorporated, by Charles the Sixth, in 1406-and whose principal employment, in days of yore, consisted in the declaration of peace and war. Besides the recording of Armorial Bearings, they had to publish royal proclamations, to marshal processions, and to arrange the pageantry of coronations and other great public ceremonies; and in the days of Chivalry their office was held in very high repute. The chief of their Society, styled "Kings-ofArms," was solemnly crowned at his installation by the Sovereign himself, and, corresponding to the Armiger, or armour-bearer, of the Monarch and his Nobles, every Herald had his attendant in the shape of a Signifer or Pursuivant.2 "Some authors," says Lord Bankton, "are of opinion that the principal of the Heralds are designed Kings-of-Arms, because in some measure they represent the Sovereign; and a kind of ceremony of crowning them is used by the Lord Marshal of England, and they are adorned with a sort of royal ensigns; and hence it is thought there ought to be but only one King-atArms. This is the case with us, but in England there are three."

Saxon hepe, exercitus, et ald, famulus sive minister, quasi minister exercitus vel armorum."- (Spel. Gloss. Herald.)

Among the Romans, Heralds acted as Priests, under the name of "Feciales," and are said to have been instituted by Numa Pompilius. Their office is described by several distin

guished authors.-(See Dio. Halicar. Lib. ii.; Cicero De Legibus, Lib. ii. ; Livy, i. 24, 32; x. 45.)

2 This is still the case in Scotland, but in England and Ireland the num ber of Heralds and Pursuivants do not at present correspond.

3 Institute of the Law of Scotland, Book iv. Tit. 6. 2 14.

HERALDS OF THE NOBILITY.

25

Both in England and Scotland, several of the chief Nobility appear to have had special Heralds or Pursuivants at a pretty early period. Thus, the Percys, Earls of Northumberland, had a Herald bearing their titular designation, and a Pursuivant called "Esperance." In like manner, in an Exchequer Roll for the year 1460, we find a notice of " Endure,” the Signifer or Pursuivant of the Earl of Craufurd; while another Roll, four years later, bears a payment to "Endure Signifero num Lindesay Heraldo nuncupato." In England, at the beginning of the same century, the celebrated Scottish Earl of March (George Dunbar) had a Pursuivant under the title of "Shrewsbury," evidently given to him, according to Mr. Riddell, "from having been a main instrument of the victory gained there over Hotspur and his adherents, which fixed Henry IV. upon the throne." 1

The Heralds of England were incorporated, in 1484, by King Richard III., whose charter was confirmed by subsequent Sovereigns, and, in a code of regulations ordered by Queen Elizabeth, they are styled the "College of Heralds". an institution which exists in London at the present day. The head of the Corporation is the Duke of Norfolk, hereditary Earl Marshal, who has the right of nominating its various members, viz., three Kings of Arms, six Heralds, and four Pursuivants. Of the three Kings-of-Arms, "Garter," who is the first and principal, was created by Henry v., in 1417, to attend on the illustrious Order of the same name; and to him

1 Law and Practice in Scottish Perages, i. 265.

See also Quentin Durward, vol. ii. chap. xvi.