MARKS OF BASTARDY
IT has been remarked that the knowledge of "the man in the street" is least incorrect when he knows nothing. Probably the only heraldic knowledge that a large number possess is summed up in the assertion that the heraldic sign of illegitimacy is the "bar sinister."
No doubt it is to the novelists--who, seeking to touch lightly upon an unpleasant subject, have ignorantly adopted a French colloquialism--that we must attribute a great deal of the misconception which exists concerning illegitimacy and its heraldic marks of indication. I assert most unhesitatingly that there are not now and never have been any unalterable laws as to what these marks should be, and the colloquialism which insists upon the "bar sinister" is a curiously amusing example of an utter misnomer. To any one with the most rudimentary knowledge of heraldry it must plainly be seen to be radically impossible to depict a bar sinister, for the simple reason that the bar is neither dexter nor sinister. It is utterly impossible to draw a bar sinister--such a thing does not exist. But the assertion of many writers with a knowledge of armory that "bar sinister" is a mistake for "bend sinister" is also somewhat misleading, because the real mistake lies in the spelling of the term. The "barre sinistre" is merely the French translation of bend sinister, the French word "barre" meaning a bend. The French "barre" is not the English "bar."
In order to properly understand the true significance of the marks of illegitimacy, it is necessary that the attempt should be made to transplant oneself into the environment when the laws and rules of heraldry were in the making. At that period illegitimacy was of little if any account. It has not debarred the succession of some of our own sovereigns, although, from the earliest times, the English have always been more prudish upon the point than other nations. In Ireland, even so late as the reign of Queen Elizabeth, it is a striking genealogical difficulty to decide in many noble pedigrees which if any of the given sons of any person were legitimate, and which of the ladies of his household, if any, might be legally termed his wife. In Scotland we find the same thing, though perhaps it is not quite so blatant to so late a date, but considering what are and have been the Scottish laws of marriage, it is the fact or otherwise of marriage
which has to be ascertained; and though in England the legal status was recognised from an earlier period, the social status of the illegitimate offspring of a given man depended little upon the legal legitimacy of birth, but rather upon the amount of recognition the bastard received from his father. If a man had an unquestionably legitimate son, that son undoubtedly succeeded; but if he had not, any technical stain upon the birth of the others had little effect in preventing their succession. A study of the succession to the Barony of Meinill clearly shows that the illegitimate son of the second Lord Meinill succeeded to the estates and peerage of his father in preference to his legitimate uncle. There are many other analogous cases. And when the Church juggled at its pleasure with the sacrament of marriage--dispensing and annulling or recognising marriages for reasons which we nowadays can only term whimsical--small wonder is it that the legal fact, though then admitted, had little of the importance which
we now give to it. When the actual fact was so little more than a matter at the personal pleasure of the person most concerned, it would be ridiculous to suppose that any perpetuation of a mere advertisement of the fact would be considered necessary, whilst the fact itself was so often ignored; so that until comparatively recent times the Crown certainly never attempted to enforce any heraldic marks of illegitimacy. Rather were these enforced by the legitimate descendants if and when such descendants existed.
The point must have first arisen when there were both legitimate and illegitimate descendants of a given person, and it was desired to make record of the true line in which land or honours should descend. To effect this purpose, the arms of the illegitimate son were made to carry some charge or alteration to show that there was some reason which debarred inheritance by their users, whilst there remained those entitled to bear the arms without the mark of distinction. But be it noted that this obligation existed equally on the legitimate cadets of a family, and in the earliest periods of heraldry there is little or no distinction either in the marks employed or in the character of the marks, which can be drawn between mere marks of cadency and marks of illegitimacy. Until a comparatively recent period it is absolutely unsafe to use these marks as signifying or proving either legitimate cadency or illegitimacy. The same mark stood for both, the only object which any distinctive change accomplished, being the distinction which it was necessary to draw between those who owned the right to the undifferenced arms, and owned the land, and those who did not. The object was to safeguard the right of the real possessors and their true heirs, and not to penalise the others. There was no particular mark either for cadency or for illegitimacy, the distinctions made being dictated by what seemed the most suitable and distinctive mark applicable to the arms under consideration.
When that much has been thoroughly grasped, one gets a more accurate understanding of the subject. One other point has to be borne in mind (and to the present generation, which knows so well how extensively arms have been improperly assumed, the statement may seem startling), and that is, that the use of arms was formerly evidence of pedigree. As late as the beginning of the nineteenth century evidence of this character was submitted to the Committee of Privileges at the hearing of a Peerage case. The evidence was admitted for that purpose, though doubt (in that case very properly) was thrown upon its value.
Therefore, in view of the two foregoing facts, there can be very little doubt that the use of armorial marks of bastardy was not invented or instituted, nor were these marks enforced, as punishment or as a disgrace.
It is a curious instance how a careful study of words and terms employed will often afford either a clue or confirmation, when the true meaning of the term has long been overlooked.
The official term for a mark of cadency is a "difference" mark, i.e. it was a mark to show the difference between one member of a family and another. The markused to signify a lack of blood relationship, and a mark used to signify illegitimacy are each termed a "mark of distinction," i.e. a mark that shall make something plainly "distinct." What is that something? The fact that the use of the arms is not evidence of descent through which heirship can be claimed or proved. This, by the way, is a patent example of the advantage of adherence to precedent.
The inevitable conclusion is that a bastard was originally only required to mark his shield sufficiently that it should be distinctly apparent that heirship would never accrue. The arms had to be distinct from those borne by those members of the family upon whom heirship might devolve. The social position of a bastard as "belonging" to a family was pretty generally conceded, therefore he carried their arms, sufficiently marked to show he was not in the line of succession.
This being accepted, one at once understands the great variety of the marks which have been employed. These answered the purpose of distinction, and nothing-more was demanded or necessary. Consequently a recapitulation of marks, of which examples can be quoted, would be largely a list of isolated instances, and as such they are useless for the purposes of deduction in any attempt to arrive at a correct conclusion as to what the ancient rules were. In brief, there were no rules until the eighteenth, or perhaps even until the nineteenth century. The only rule was that the arms must be sufficiently marked in some way. This is borne out by the dictum of Menêstrier.
Except the label, which has been elsewhere referred to, the earliest marks of either cadency or illegitimacy for which accepted use can be found are the bend and the bordure; but the bend for the purpose of illegitimacy seems to be the earlier, and a bend superimposed over a shield remained a mark of illegitimate cadency until a comparatively late period. This bend as a difference naturally was originally depicted as a bend dexter, and as a mark of legitimate cadency is found in the arms of the younger son of Edmund Crouchback, Earl of Lancaster, before he succeeded his elder brother.
There are scores of other similar instances which a little research will show. Whether the term "left-handed marriage" is the older, and the sinister bend is derived there from, or whether the slang term is derived from the sinister bend, it is perhaps not necessary to inquire. But there is no doubt that from an early period the bend of cadency, when such cadency was illegitimate, is frequently met with in the sinister form. But concurrently with such usage instances are found in which the dexter bend was used for the same purpose, and it is very plainly evident that it was never at that date looked upon as a penalty, but was used merely as a distinction, or for the purpose of showing that the wearer was not the head of his house or in possession of the lordship. The territorial idea of the nature of
arms, which has been alluded to in the chapter upon marks of cadency, should be borne in mind in coming to a conclusion.
Soon after the recognition of the bend as a mark of illegitimacy we come across the bordure; but there is some confusion with this, bordures of all kinds being used indiscriminately to denote both legitimate and illegitimate cadency. There are countless other forms of marking illegitimacy, and it is impossible to attempt to summarise them, and absolutely impossible to draw conclusions as to any family from marks upon its arms when this point is under discussion. To give a list of these instances would rather seem an attempt to deduce a rule or rules upon the point, so I say at once that there was no recognised mark, and any plain distinction seems to have been accepted as sufficient; and no distinction whatever was made when the illegitimate son, either from failure of legitimate issue or other reason, succeeded to the lands and honours of his father. Out of the multitude of marks, the bend, and subsequently the bend sinister, emerge as most frequently in use, and finally the bend sinister exclusively; so that it has come to be considered, and perhaps correctly as regards one period, that its use was equivalent to a mark of illegitimacy in England.
But there has always remained to the person of bastard descent the right of discarding the bastardised coat, and adopting a new coat of arms, the only requirement as to the new coat being that it shall be so distinct from the old one as not to be liable to confusion therewith. And it is a moot point whether or not a large proportion of the instances which are tabulated in most heraldic works as examples of marks of bastardy are anything whatever of the kind. My own opinion is that many are not, and that it is a mistake to so consider them; the true explanation undoubtedly in some--and outside the Royal Family probably in most--being that they are new coats of arms adopted as new coats of arms, doubtless bearing relation to the old family coat, but sufficiently distinguished there from to rank as new arms, and were never intended to be taken as, and never were bastardised examples of formerly existing coats. It is for this reason that I
have refrained from giving any extensive list such as is to be found in most other treatises on heraldry, for all that can be said for such lists is that they are lists of the specific arms of specific bastards, which is a very different matter from a list of heraldic marks of illegitimacy.
Another objection to the long lists which most heraldic works give of early instances of marks of bastardy as data for deduction lies in the fact that most are instances of the illegitimate children of Royal personages. It is singularly unsafe to draw deductions, to be applied to the arms of others, from the Royal Arms, for these generally have laws unto themselves.
The bend sinister in its bare simplicity, as a mark of illegitimacy, was seldom used, the more frequent form being the sinister bendlet, or even the diminutive of that, the cottise. There is no doubt, of course, that when a sinister bend or bendlet debruises another coat that that is a bastardised version of an older coat, but examples can be found of the sinister bend as a charge which has no reference whatever to illegitimacy. Two instances that come to mind, which can be found by reference to any current peerage, are the arms of Shiffner and Burne-Jones. Certainly in these cases I know of no illegitimacy, and neither coat is a bastardised version of an older existing coat. Anciently the bendlet was drawn across arms and
quarterings, and an example of a coat of arms of some number of quarterings debruised for an illegitimate family is found in the registration of a Talbot pedigree in one of the Visitation Books. As a mark of distinction upon arms the bend sinister for long past has fallen out of use, though for the purpose of differencing crests a bendlet wavy sinister is still made use of, and will be again presently referred to.
Next to the bend comes the bordure. Bordures of all kinds were used for the purposes of cadency from practically the earliest periods of heraldic differencing. But they were used indiscriminately, as has been already stated, both for legitimate and illegitimate cadency. John of Gaunt, as is well known, was the father of Henry IV. and the ancestor of Henry VII., the former being the issue of his legitimate wife, the latter coming from a son who, as one of the old chroniclers puts it, "was of double advowtrie begotten." But, as every one knows, John of Gaunt's children by Catherine Roet or Swynford were legitimated by Act of Parliament, the Act of Parliament not excepting the succession to the Throne, a disability later introduced in Letters Patent of the Crown when giving a
subsequent confirmation of the Act, but which, nevertheless, they could not overrule. But taking the sons of the latter family as legitimate, which (whatever may have been the moral aspect of the case) they were undoubtedly in the eyes of the common law after the passing of the Act referred to, they existed concurrently with the undoubtedly senior descendants of the first marriage of John of Gaunt with Blanche of Lancaster, and it was necessary--whether they were legitimate or not--to distinguish the arms of the junior from the senior branch. The result was that as legitimate cadets, and not as bastards, the arms of John of Gaunt were differenced for the line of the Dukes of Somerset by the addition of the bordure compony argent and azure--the livery colours of Lancaster. It is a weird position, for these colours were derived from the family of the legitimate wife.
The fight as to whether these children were legitimate or illegitimate was, of course, notorious, and a matter of history; but from the fact that they bore a bordure compony, an idea grew up both in this country and in Scotland also from the similarity of the cases of the doubtful legitimacy of the Avondale and Ochiltree Stewarts, who both used the bordure compony, that the bordure compony was a sign of illegitimacy, whereas in both countries at an earlier period it undoubtedly was accepted as a mark of legitimate cadency.
As a mark of bastardy it had subsequently some extensive use in both countries, and it still remains the only mark now used for the purpose in Scottish heraldry. Whether it was that it was not considered as of a fixed nature, or whether it was that it had become notorious and unacceptable, it is difficult to say, though the officers of arms have been blamed for making a change on the assumption that it was the latter.
Some writers who clamour strongly for the penalising of bastard arms, and for the plain and recognisable marking of them as such (a position adopted rather vehemently by Woodward, a singularly erudite heraldic writer), are rather uncharitable, and at the same time rather lacking in due observation and careful consideration of ancient ideas and ancient precedents. That the recognised mark has been changed at different periods, and as a consequence that to a certain extent the advertisement it conveys has been less patent is, of course, put down to the "venality" of mediæval heralds (happily their backs are broad) by those who are too short-sighted to observe that the one thing an official herald moves heaven and earth to escape from is the making of a new precedent; and that, on the score of signs of illegitimacy, the official heralds, when the control of arms passed into their
hands, found no established rule. So far from having been guilty of venality, as Woodward suggests, they have erred on the other side, and by having worked only on the limited number of precedents they found they have stereotyped the advertisement, and thereby made the situation more stringent than they found it.
We have it from biblical sources that the sins of the fathers shall be visited upon the children unto the third and fourth generations, and this spirit has undoubtedly crept into the views of many writers, but to get into the true perspective of the matter one needs to consider the subject from the point of view of less prudish days than our own.
I have no wish to be misunderstood. In these days much heraldic reviewing of the blatant and baser sort depends not upon the value of the work performed, a point of view which is never given a thought, but entirely upon the identity of the writer whose work is under review, and is largely composed of misquotation and misrepresentation. It may perhaps be as well, therefore, to state that I am not seeking to condone illegitimacy or to combat present opinions upon the point. I merely state that our present opinions are a modern growth, and that in the thirteenth, fourteenth, fifteenth, and sixteenth centuries, when the fundamental principles of heraldry were in the making, it was not considered a disgrace to have an illegitimate son, nor was it considered then that to be of illegitimate birth carried the personal stigma that came later.
At any rate, the fact remains that a new mark was called into being in England about the year 1780 when in a grant to Zachary to quarter the arms of Sacheverell, from which family he was in the female line illegitimately descended, the bordure wavy was first met with as a sufficient and proper mark of illegitimacy. The curious point is that before that date in Scotland and in England the bordure wavy possessed nothing of this character, and to the present day the bordure wavy in Scotland is undoubtedly nothing more than a legitimate mark of legitimate cadency, for which mark Mr. Stodart provides a place in the scheme of differencing which he tabulated as the basis of
cadency marks in Scotland (Fig. 732). Since that date the bordure wavy has remained the mark which has been used for the purpose in England, as the bordure compony has remained the mark in Scotland.
Bearing in mind that the only necessity was some mark which should carry sufficient distinction from the arms of the family, it follows, as a natural consequence of human nature, that as soon as any particular mark became identified with illegitimacy (after that was considered to be a stigma), that mark was quietly dropped and some other substituted, and no one should be surprised to find the bordures wavy and compony quietly displaced by something else. If any change is to be made in the future it is to behoped that no existing mark will be adopted, and that the marks in England and Scotland shall not conflict even if they do not coincide.
The bendlet sinister, however, survives in the form of the baton sinister, which is a bendlet couped placed across the centre of the shield. The baton sinister, however, is a privilege which, as a charge on a shield, is reserved, such as it is, for Royal bastards. The latest instance of this was in the exemplification of arms to the Earl of Munster and his brothers and sisters early in the nineteenth century. Other surviving instances are met with in the arms of the Duke of St. Albans and the Duke of Grafton. Another privilege of Royal bastards is that they may have the baton of metal, a privilege which is, according to Berry, denied to those of humbler origin.
According to present law the position of an illegitimate person heraldically is based upon the common law of the country, which practically declares that an illegitimate child has no name, no parentage, and no relations. The illegitimacy of birth is an insuperable bar to inheritance, and a person of illegitimate birth inherits no arms at all, the popular idea that he inherits a right to the arms subject to a mark of distinction being quite incorrect. He has none at all. There has never been any mark which, as a matter of course and of mere motion, could attach itself automatically to a shield, as is the case with the English marks of difference, e.g. the crescent of the second son or the mullet of the third. This is a point upon which I have found mistaken ideas very frequently held, even by those who have made some study of heraldry.
But a very little thought should make it plain that by the very nature of the fact there cannot be either a recognised mark, compulsory use, or an ipse facto sign. Illegitimacy is negative, not positive--a fact which many writers hardly give sufficient weight to.
If any one of illegitimate birth desires to obtain a right to arms he has two courses open to him. He can either (not disclosing the fact of his illegitimacy, and not attempting to prove that he is a descendant of any kind from any one else) apply for and obtain a new grant of arms on his own basis, and worry through the College the grant of a coat as closely following in design that of the old family as he can get, which means that he would be treated and penalised with such alterations (not "marks of distinction") as would be imposed upon a stranger in blood endeavouring to obtain arms founded upon a coat to which he had no right. The cost of such a proceeding in England is £76, 10s., the usual fees upon an ordinary grant.
The alternative course is simple. He must avow himself a bastard, and must prove his paternity or maternity, as the case may be (for in the eye of the law--common and heraldic--he bears the same relation, which is nil, and the same right to the name and arms, which is nil, of both his father and his mother).
Illegitimacy under English law affords one of the many instances in which anomalies exist, for, strange as the statement is, a bastard comes into the world without any name at all.
Legally, at birth a bastard child has then no name at all, and no arms. It must subsequently acquire such right to a name (whatever right that may amount to) as user of and reputation therein may give him. He inherits no arms at all, no name, and no property, save by specific devise or bequest. The lack of parents operates as a chasm which it is impossible to bridge. It is not a case of a peculiar bridge or a faulty bridge; there is no bridge at all.
Names, in so far as they are matters of law, are subject to canon law; at any rate, the law upon the subject, such as it is, originated in canon law, and not in statute or common law. Canon law was made, and has never since been altered, at a time when surnames were not in existence. A bastard no more inherits the surname of the mother than it does the surname of its father; and the spirit of petty officialism, so rampant amongst the clergy, which seeks to impose upon a bastard nolens volens the surname of its mother, has no justification in law or fact. A bastard has precisely as little right to the surname of its mother as it has to the surname of its father. Obviously, however, under the customs of our present social life, every person must have a surname of one kind or another; and it is here that the anomaly in the British law exists, inasmuch as neither statute nor canon law provide any means for conferring a surname. That
the King has the prerogative, and exercises it, of conferring or confirming surnames is, of course, unquestioned, but it is hardly to be supposed that the King will trouble himself to provide a surname for every illegitimate child which may be born; and outside this prerogative, which probably is exercised about once a year, there is no method provided or definitely recognised by the law to meet this necessity. To obviate the difficulty, the surname has to be that which is conferred upon the child by general custom; and as an illegitimate child is in ninety-nine cases out of a hundred brought up by its mother, it is usually by the same custom which confers the surname of its owner upon a dog in so many parts of the country that a bastard child gets known by its mother's surname, and consequently has that surname conferred upon it by general custom. The only names that an illegitimate child has an inalienable right to are the names by which it is baptized; and if two names are
given, and the child or its guardians elect that it should be known only by those baptismal names, and if common repute and general custom, as would be probable, uses the last of those names as a surname, there is no legal power on earth which can force upon the child any other name; and if the last of the baptismal names happens to be its father's surname, the child will have an absolute right to be known only by its Christian names, which to all intents and purposes will mean that it will be known by its father's surname.
In the same way that an illegitimate child inherits no surname at all, it equally inherits no arms. Consequently it has no shield upon which to carry a mark of bastardy, if such a mark happened to be in existence. But if under a will or deed of settlement an illegitimate child is required to assume the name and arms of its father or of its mother, a Royal Licence to assume such name and arms is considered to be necessary. It may be here noted that voluntary applications to assume a name and arms in the case of an illegitimate child are not entertained unless it can be clearly shown (which is not always an easy matter) what the parentage really was.
It will be noticed that I have said he will be required to prove his paternity. This is rigorously insisted upon, inasmuch as it is not fair to penalise the reputation of a dead man by inflicting upon him a record of bastard descendants whilst his own life might have been stainless.
An illegitimate birth is generally recorded under the name of the mother only, and even when it is given, the truth of any statement as to paternity is always open to grave suspicion. There is nothing, therefore, to prevent a person asserting that he is the son of a duke, whereas his real father may have been in a very plebeian walk in life; and to put the arms of the duke's family at the mercy of any fatherless person who chose to fancy a differenced version of them would be manifestly unjust, so that without proof in a legal action of the actual paternity, or some recognition under a will or settlement, it is impossible to adopt the alternative in question. But if such recognition or proof is forthcoming, the procedure is to petition the Sovereign for a Royal Licence to use (or continue to use) the name desired and to bear the arms of the family. Such a petition is always granted, on proper proof of the facts, if made in due form
through the proper channels. The Royal Licence to that effect is then issued. But the document contains two conditions, the first being that the arms shall be exemplified according to the laws of arms "with due and proper marks of distinction," and that the Royal Licence shall be recorded in the College of Arms, otherwise "to be void and of none effect." The invariable insertion of this clause puts into the hands of the College one of the strongest weapons the officers of arms possess.
Under the present practice the due and proper marks of distinction are, for the arms, a bordure wavy round the shield of the most suitable colour, according to what the arms may be, but if possible of some colour or metal different from any of the tinctures in the arms. The crest is usually differenced by a bendlet sinister wavy, but a pallet wavy is sometimes used, and sometimes a saltire wavy, couped or otherwise. The choice between these marks generally depends upon the nature of the crest. But
even with this choice, the anomaly is frequently found of blank space being carefully debruised. Seeing that the mark of the debruising is not a tangible object or thing, but a mark painted upon another object, such a result seems singularly ridiculous, and ought to be avoided. Whilst the ancient practice certainly appears to have been to make some slight change in the crest, it does not seem to have been debruised in the present manner. There are some number of more recent cases where, whilst the existing arms have been charged with the necessary marks of distinction, entirely new, or very much altered crests have been granted without any recognisable "marks of distinction." There can be no doubt that the bendlet wavy sinister upon the crest is a
palpable penalising of the bearer, and I think the whole subject of the marks of bastardy in the three kingdoms might with advantage be brought under official consideration, with a view to new regulations being adopted. A bendlet wavy sinister is such an absolute defacement of a crest that few can care to make use of a crest so marked. It carries an effect far beyond what was originally the intention of marks of distinction.
A few recent bastardised exemplifications which have issued from Ulster's Office have had the crest charged with a baton couped sinister. The baton couped sinister had always hitherto been confined to the arms of Royal bastards, but I am not aware of any Royal crest so bastardised. Of course no circumstances can be conceived in which it is necessary to debruise supporters, as under no circumstances can these be the subject of a Royal Licence of this character, except in a possible case where they might have been granted as a simple augmentation to a man and his descendants, without further limitation. I know of no bastardised version consequent upon such a grant. Supporters signify some definite honour which cannot ordinarily
The bordure wavy is placed round the pronominal arms only, and no right to any quarterings the family may have enjoyed previously is conferred, except such right to a quarterly coat as might ensue through the assumption of a double name. Quartering is held to signify representation which cannot be given by a Royal Licence, but a quartering of augmentation or a duplicate coat for the pronominal name which had been so regularly used with the alternative coat as to constitute the two something in the nature of a compound coat, would be exemplified "all within a bordure wavy." Each illegitimate coat stands on its own basis, and there is a well-known instance in which a marriage was subsequently found to be illegal, or
to have never taken place, after which, I believe, some number of brothers and sisters obtained Royal Licences and exemplifications. The descendants of one of the brothers will be found in the current Peerage Books, and those who know their peerage history well will recognise the case I allude to. All the brothers and sisters had the same arms exemplified, each with a bordure wavy of a different colour. If there were descendants of any of the sisters, those descendants would have been entitled to quarter the arms, because the illegitimacy made each sister an heiress for heraldic purposes. This is a curious anomaly, for had they been legitimate the descendants would have enjoyed no such right.
In Scotland the mark of illegitimacy for the arms is the bordure compony, which is usually but not always indicative of the same. The bordure counter-compony has been occasionally stated to have the same character. This is hardly correct, though it may be so in a few isolated cases, but the bordure chequy has nothing whatever of an illegitimate character. It will be noticed that whilst the bordure compony and the bordure counter-company have their chequers or "panes," to use the heraldic term, following the outline of the shield, by lines parallel to those which mark its contour, the bordure chequy is drawn by lines parallel to and at right angles to the palar line of the shield, irrespective of its outline. A bordure chequy must, of course, at one point or another show three distinct rows of checks.
The bastardising of crests even in England is a comparatively modern practice. I know of no single instance ancient or modern of the kind in Scottish heraldry, though I could mention scores of achievements in which the shields carry marks of distinction. This is valuable evidence, for no matter how lax the official practice of Scottish armory may have been at one period, the theory of Scottish armory far more nearly approaches the ancient practices and rules of heraldry than does the armory of any other country. That theory is much nearer the ideal theory than the English one, but unfortunately for the practical purposes of modern heraldic needs, it does not answer so well. At the present day, therefore, a Scottish crest is not marked in anyway.
Most handbooks refer to a certain rule which is supposed to exist for the differencing of a coat to denote illegitimacy when the coat is that of the mother and not the father, the supposed method being to depict the arms under a surcoat, the result being much the same as if the whole of the arms appeared in exaggerated flaunches, the remainder of the shield being left vacant except for the tincture of the surcoat. As a matter of fact only one instance is known, and consequently we must consider it as a new coat devised to bear reference to the old one, and not as a regularised method of differencing for a particular set of circumstances.
In Ireland the rules are to all intents and purposes the same as in England, with the exception of the occasional use of a sinister baton instead of a bendlet wavy sinister upon the crest. In Scotland, where Royal Licences are unknown, it is merely necessary to prove paternity, and rematriculate the arms with due and proper marks of distinction.
It was a very general idea during a former period, but subsequently to the time when the bend and bendlet sinister and the bordure were recognised as in the nature of the accepted marks of bastardy, and when their penal nature was admitted, that whatever mark was adopted for the purpose of indicating illegitimacy need only be borne for three generations. Some of the older authorities tell us that after that length of time had elapsed it might be discarded, and some other and less objectionable mark be taken in its place. The older writers were striving, consciously or unconsciously, to reconcile the disgrace of illegitimacy, which they knew, with heraldic facts which they also knew, and to reconcile in certain prominent families undoubted illegitimacy with unmarked arms, the probability being that their sense of justice and regard for
heraldry prompted them to the remark that some other mark of distinction ought to be added, whilst all the time they knew it never was. The arms of Byron, Somerset, Meinill, and Herbert are all cases where the marks of illegitimacy have been quietly dropped, entire reversion being had to the undifferenced original coat. At a time when marks of illegitimacy, both in fact and in theory, were nothing more than marks of cadency and difference from the arms of the head of the house, it was no venality of the heralds, but merely the acceptance of current ideas, that permitted them to recognise the undifferenced arms for the illegitimate descendants when there were no legitimate owners from whose claim the arms of the others needed to be differentiated, and when lordships and lands had lapsed to a bastard branch. To this fact must be added another. The armorial control of the heralds after the days
of tournaments was exercised through the Visitations and the Earl Marshal's Court. Peers were never subject to the Visitations, and so were not under control unless their arms were challenged in the Earl Marshal's Court by the rightful owner. The cases that were notorious are cases of the arms of peers.
The Visitations gave the officers of arms greater control over the arms of Commoners than they had had thereto fore, and the growing social opinions upon legitimacy and marriage brought social observances more into conformity with the technical law, and made that technical law of no inheritance and no paternity an operative fact. The result is that the hard legal fact is now rigidly and rightly insisted upon, and the claim and right to arms of one of illegitimate descent depends and is made to depend solely upon the instruments creating that right, and the conditions of "due and proper marks of distinction" always subject to which the right is called into being. Nowadays there is no release from the penalty of the bordures wavy and compony save through the avenue of a new and totally different grant and the full fees payable therefor. But, as the bearer
of a bordure wavy once remarked to me, "I had rather descend illegitimately from a good family and bear their arms marked than descend from a lot of nobodies and use a new grant." But until the common law is altered, if it ever is, the game must be played fairly and the conditions of a Royal Licence observed, for the sins of the fathers are visited upon the children.
Although I have refrained from giving any extended list of bastardised coats as examples of the rules for indicating illegitimacy, reference may nevertheless be made to various curious examples.
The canton has occasionally been used. Sir John de Warren, a natural son of John, Earl of Surrey, Sussex, and Warenne (d. 1347), bore a canton of the arms of his mother, Alice de Nerford ["Gules, a lion rampant ermine"], over the chequy shield of Warren. A similar instance can be found in modern times, the arms of Charlton of Apley Castle, co. Salop, being bastardised by a sinister canton which bears two coats quarterly, these coats having formerly been quarterings borne in the usual manner.
The custom of placing the paternal arms upon a bend has been occasionally adopted, but this of course is the creation of a new coat. It was followed by the Beauforts before their legitimation, and by Sir Roger de Clarendon, the illegitimate son of the Black Prince. The Somerset family, who derived illegitimately from the Beauforts, Dukes of Somerset, first debruised the Beau fort arms by a bendlet sinister, but in the next generation the arms were placed upon a wide fess, this on a plain field of or. Although the Somersets, Dukes of Beaufort, have discarded all signs of bastardy from their shield, the version upon the fess was continued as one of the quarterings upon the arms of the old Shropshire family of Somerset Fox. One of the most curious bastardised coats is that of Henry Fitz-Roy, Duke of Richmond and Somerset, illegitimate son of Henry VIII. This shows the Royal Arms within a bordure quarterly ermine and counter-compony or and azure, debruised by a baton sinister argent, an inescutcheon quarterly gules and vairé, or and vert [possibly hinting at the Blount arms of his mother, barry nebuly or and sable], over all a lion rampant argent, on a chief azure a tower between two stags' heads caboshed argent, attired or.
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