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goods of another Englishman or made a contract with him abroad, that actions may in either respect be supported in the courts of common law here by a suggestion which the opposite party may not deny, that the goods were taken or the contracts entered into in some place within this kingdom. Just as the testaments of Roman citizens captured by hostile nations were supported by the fictions postlimii and of the lex Cornelia; for when a Roman citizen had become a slave to any hostile people he at once lost not merely his freedom but all the rights and privileges of a Roman citizen, so that his will previously made would have became inoperative, but for the aid of these expedients, for it was considered that if he returned to his country his testament might be set up by the fiction (postlimii) which supposed him never to have been captured or absent from his country, and if on the other hand he died a captive, by the fiction that he had died before captured, a Roman citizen.‡
The main and essential difference between the English and the civil law in this respect being, that the expedients in the former case originated with the lawyers, in the latter with the legislative authority; and in the former, were devised to gain a jurisdiction, in the latter to remedy a defect in legal principle.
3. Of Things that pertain to War and Arms whether within the Realm or in Foreign Parts.-These constituted another branch of the jurisdiction of the constable and marshal, who were said to have the sole cognizance of all controversies arising out of war or arms.* Where an alien
entered England and levied war upon our sovereign he could not formerly be proceeded against or punished by the law of England anywhere but in the Court of Chivalry,† wherefore the constable and marshal were styled keepers of the peace of the realm.
And as order is one of the first principles of a monarchy, and as order supposes inequalities of ranks and suggests the necessity of an ordering or marshalling, all that attended the court or the camp of the sovereign had to be arranged in their proper stations, and these were regulated by certain armorial bearings or insignia which were worn either in their own right or in his right whom they served or followed. The cognizance of all controversies springing out of the user or assumption of these insignia belonged wholly to the Court of Chivalry; and serious indeed were the quarrels and dissensions to which they gave rise, when two or more families laid claim to the same arms: sanguinary feuds were often the consequence; this was more especially the case amongst the feudal nobles of France and Italy.
As an instance of the jealousy that was then felt at any interference with armorial ensigns, may be cited the deposition of John Charnels, who says of Sir William Scrope of Masham : "Being in garrison during the old war in a castle, called Quarranteau, he with forty of his comrades made a chivauchée to the castle of Timbre, higher up the country, designing to take any other castle or to perform some piece of service in their route. Among them was Sir William Scrope, brother he believed of Sir Henry Scrope; and finding the garrison of Geneville, without the town, and in disorder, Charnels and his comrades attacked
+ Duck de Authoritate Juris Civilis, lib. ii, c. 8 pars 8, s. 18.
* Sta. 13 Richard I., c. 2.
Finch in Nomotechn. lib. 4. c. 1.
them and made about forty prisoners. A knight, called Sir Philip de la Monstue, became prisoner to Charnels and because he was armed in the entire arms of Sir William Scrope, he wished to kill him. Charnels therefore made his prisoner divest himself of his arms, or Scrope would certainly have put him to death." It may indeed have been that doubts, which had been raised as to the Scrope right in this particular, had made the members of the family more than ordinarily sensitive upon the subject; and we find several depositions of the Grosvenor witnesses in which old soldiers somewhat sneeringly insinuate that two lawyers were the first of the family who had borne the arms; and it is expressly stated that at an early period of his life, Sir Richard Scrope made proposals for the daughter of Sir Robert Hilton; but the terms not being accepted, he married a daughter of Sir William de la Pole; at which Hilton was so enraged that he said: "I am glad that he did not marry my daughter, for I have heard that he is not a grand gentil homme."" To which however Sir John Hasethorpe, then more than an hundred years old, replied: "Sir, say not so, for I assure you, on my soul, he is descended from grands gentils hommes from the times of the conquest." In addition to this, there were about that time two other rival claimants to the arms in question, a Carminow and a Grosvenor; even Sir Richard Scrope's right to bear his crest, a crab issuing from a ducal crown, had been challenged at Calais forty years before the suit of Scrope v. Grosvenor, which might render Sir William Scrope still more tender upon the point.
In Italy political subdivisions, fortunately for the domestic peace of that country, tended in some measure to keep adverse claimants of similar arms asunder, so that their animosity could only display itself upon rare occasions. For the local government would only interfere between families in the same state; consequently the ancient Florentine family of Della Presa were suffered with impunity to bear the same arms as the equally ancient Venetian family Cornari, of which descendants are said to exist in this country under the Anglicised form, Corner. So the Dandoli of Venice, of whom was
"blind old Dandalo
The octogenarian chief, Byzantium's conquering foe,"
and the Giandonati of Florence, houses of almost equal antiquity had the same heraldic insignia. The same was the case with the Fieschi of Genoa and the Inbangati of Florence.
The Scotti of Parma bear, we believe, the Douglas arms, but then they are said to be of the same race.
The same reason which hindered the supreme authority in the different states of Italy from interfering where the same arms were borne by foreign families, weighed, it would seem in influencing the decision of a cause of arms in which Sir Richard Scrope had been engaged before his contest with Sir Robert Grosvenor. Sir Richard had been challenged by an esquire of Cornwall, named Carminow, as to his right to bear tho arms, azure a bend or, and the dispute was decided by the Duke of Lancaster, the Earl of Northampton, the constable, and the Earl of Warwick, the marshal of the army, who adjudged that they might both bear the said arms entire, on the ground that Carminow was of
Cornwall which was a large country and was formerly a kingdom, and that the Scropes had borne them since the conquest.
In this country discussions not seldom arose, which were brought before the Court of Chivalry: such were the cases of Sir Reginald Grey de Ruthven and Sir Edward Hastings, Thomas Bawdy and Nicholas Singleton, and many others which after long litigation and debate were finally settled either by a judicial sentence of the curia militaris, by an appeal to the arbitrament of the duel, or to the king himself, as was the course taken in the most celebrated case of them all, that of Sir Richard Scrope and Sir Robert Grosvenor.*
The cause of Hastings and Gray de Ruthven, before the constable and marshal, regarded the right to bear the arms of Hastings, or a maunch gu. It lasted twenty years and was finally decided against Hastings, who was condemned in heavy costs and imprisoned sixteen years for disobeying the judgment of the court.
The cause of Baudy and Singleton respected the right to the arms. gules three chevronels or, and it is singular enough that Sir Richard Scrope was one of the peers commanded by the king (18 Richard II.) to settle the affair so similar to the one in which he had himself been a party.
The proceedings in the Scrope and Grosvenor controversy extend from 1385 to 1389, during the whole of which period Thomas of Woodstock, Duke of Gloucester, youngest son of Edward III., was Lord High Constable, and Thomas de Mowbray, Earl of Nottingham, subsequently created Duke of Norfolk, was Earl Marshal, the first who had the title of earl prefixed to the name of office. It is noted that the high appointments of Presidents of the Court of Chivalry were assigned to each of these unfortunate personages on account of female connections, the latter representing, on the mother's side, the Brotherton branch of the house of Plantagenet, the former having married the Lady Alianore de Bohun, one of the daughters and coheirs of Humphrey, last Earl of Hereford, Essex and Northampton, in whose powerful family the office of Lord High Constable of England had been hereditary for the two preceding centuries. The Lady Margaret Plantagenet, Duchess of Norfolk, grandmother of Lord Mowbray, challenged a right to the office of Marshal at the coronation of Richard II., and prayed that she might perform the duties by deputy; the claim however was not then allowed, Henry, Lord Percy having been specially appointed to act as Marshal upon that occasion. The prefix of earl to the subsequent appointment of her grandson might perhaps be used to obviate any slight to the Duchess who was then living. Once assumed however it was ever afterwards retained. This illustrious personage, the Duke of Norfolk, lost by his hostility to the king's favourite De Vere the favour of the crown, and subsequently bis life. The Earl Marshal thinking to ingratiate himself with King Richard, became one of the main tools of his murderous designs, a subserviency that did not save himself from subsequent ruin and destruction consequent upon the denunciation of his own treasonous language by Henry Duke of Hereford, afterwards Henry IV., of which so graphic and vivid a picture is drawn by the immortal pen of our great dramatist in which Bolingbroke is made to say,
* Duck op. cit. lib. 11. c. 8. s. xx.
"Now Thomas Mowbray, do I turn to thee,
RICHARD II., Act I, Scene I.
In the proceedings in the case of Scrope and Grosvenor, however, Thomas of Gloucester took the principal share, and the Earl Marshal seems not to have been present upon any of the occasions, but to have been represented by his deputy (Lieutenant) Johan de Multon; the commissions to examine witnesses run in the name of the constable alone, and it is noteworthy that the writs in the appeal are not from the sentence of the Court of Chivalry, nor from the joint judgment of the constable and the marshal, but from that of the constable alone.* And yet Dr. Duck tells us that the "conestabilis et marescallus Angliæ pari potestate in causis pronunciant." But it is manifest from the history of the Court of Chivalry and from royal reluctance to revive the office, that if, to use Sir Edward Coke's language, the Lord High Admiral was the Neptune of our courts, the Lord High Constable was the Mars; and the equality of jurisdiction assumed by the Marshal was perhaps not prior to the 20th Rich. II., when he was first named in the King's Patent Earl (comes marescallus.) The terms of the stat. 13 Rich. II., stat. 1, c. 2, seem also to favour the superior authority of the constable. "To the constable," it says, "belongs the cognizance of contracts touching deeds of arms," &c., and yet in a subsequent clause it permits a privy seal to issue to the constable and marshal to surcease certain pleas.
Thomas of Woodstock would seem to have been the first recognised head of the Court of Chivalry who took any great or active part in giving a regular and legal form to its proceedings; and there are extant in the libraries of Lincoln's Inn, and of the Inner Temple, copies of a book dedicated and presented by Thomas Fitz au Roy, Duke of Gloucester to his cousin, King Richard, containing ordinances regulating trial by battle.
The ancient Norman house of Scrob, Scroby, Lescrope or Scrope, which subsequently became severed in the kindred branches of the Scropes of Bolton, and of Masham, acted a conspicuous part in almost all the great occurrences of British history, from the reign of Edward II. to the First Charles, during which period it has been observed that the family produced two earls, and twenty barons, one chancellor, four treasurers, and two chief justices of England, five knights of the garter and numerous bannerets, the highest military order in the days of chivalry. Even at an earlier period the family had been one of station
Sciatis quod cum constabularius noster Angliæ in quadam causa de et super armis de azura cum una benda de auro inter Ric. Le Scropum militem partem actricem ex parte una et Robertum Grosvenour partem defendentem ex altera parte in curia nostra militari mota et pendente procedens quandam sentenciam definitivam injustam ut asseritur tulisset, &c. vol. i. p. 11, and p. 354, 356.
Op. cit. lib. ii., cap. 8, s. xiii.
Lincoln's Inn Library MSS., Sir Thomas Hale, vol. xi. pl. 6. The ordinances of Thomas, Duke of Gloucester, constable of England, touching battails armed within lists, with an historical and legal commentary. Inner Temple Library MSS. the same, with a comment by Sir John Burgh, Knight, and proceedings upon an appeal of treason before the constable and marshal in a court military.
VOL. IV NO. XIV,
and consideration, and if a chronicle can be relied on, and the evidence of the Prior of Bardeney and Welton, (one of the deponents in favour of Scrope) can be esteemed sufficient identifications, its original founder was a Norman settled in this country in the time of Edward the Confessor, and as a favourite with that monarch, excepted out of the general proscription, which it seems, drove for a time all Normans from the realm to which, not long afterwards, they were to give laws. But be this how it may, and the coincidence of name and proximity of estates countenance the position, certain it nevertheless is that for its peculiar splendour the Scropes, like many noble families of more recent date, were indebted to the profession of the law. Sir Henry le Scrope, eldest son of Sir William le Scrope, according to the deposition of Sir William Aton, was with the assent of his relatives put to the law, mys al le ley, and was made a judge of the Court of King's Bench, 27 Nov. 1308, 2 Edward II.; he afterwards became the chief justice. He was a knight banneret, and is so named in a roll of arms compiled between the 2 and 7 Edward II., which describes his bearings as azure a bend or, charged in the upper part of the bend, with a lion passant purpure. The Prior of Gisburgh, (Sir Harris Nicolas says the Abbot of Coverham, a slight inaccuracy,) deposed that the lion was introduced into the bend in consequence of a grant to one of the Scropes for the term of his life by the Earl of Lincoln, a mode of marking affection and friendship by no means unusual at that early period, although it was afterwards considered that as honours could alone emanate from the crown, royal assent was essential to the validity of any such grants; so the devise of his arms by Lord D'Eincourt was questioned, according to Sir Edward Coke, in the House of Lords. However Selden and Camden have alluded to the practice, and Cheshire historians have commented upon the frequency of the garb in the bearing of families of that county which was assumed as a mark of respect for or connection with the Earls of Cheshire.
By far the most illustrious member of the house of Scrope, of Bolton, was however Sir Richard, the plaintiff in this suit of arms, who appears to have been conspicuous for the rare union of the qualities essential to the judge, the statesman and the warrior. Present in the battles of Cressy, Durham, Najarra, the friend and comrade-in-arms of the most eminent noblemen of the time, he filled amongst other high offices, those of treasurer, steward of the king's household, and lord high chancellor. He appears to have been honoured by the respect and confidence of those sovereigns. John of Gaunt was his especial patron; the Black Prince presented him with a covered tankard: a sword of Edward III. (probably also a gift from the monarch) Sir Richard bequeathed by his will to his son Stephen; Richard II. heaped dignities upon him and his family, and we find Henry IV. in the first year of his reign protesting "that he then considered him, and had always deemed him, a loyal knight."
The termination of his long and eventful career was embittered by the downfall of his eldest son the Earl of Wilts, who fell a sacrifice to the cause of the dethroned monarch whose favorite he had been. “Few incidents," says Sir H. Nicolas, "can be imagined of a more affecting description than the scene in Parliament, when the attainder of the Earl of Wiltshire was confirmed. Rising from his seat, his eyes streaming with tears, the venerable peer implored that the proceedings might not affect the inheritance of himself or his children, and after