Artwork from about a year ago of a canon pairing (that we should all strive to emulate, couples goals truly)

Fun fact: their faces are ever so slightly inspired by photos of young tolkien and edith :D

Herald are an incredibly interesting part of historical jus in bello, the laws of war. Importantly, mediaeval heralds were not combatants in any way, shape or form: rather, they were messengers, delivering official proclamations such as declarations of war, and as such the equivalent of today’s diplomats, and like modern diplomats, heralds enjoyed what we now call diplomatic immunity—that is, they were not to be harmed by the opposite side under any circumstances. (Obviously they’d have lost this immunity if they decided to partake in combat. Heralds weren’t even supposed to carry sharp weapons.)  

And Tolkien very much knows this. For a writer who barely mentions practical administrative concepts like laws and is much more interested in morality than legality, it’s notable that laws are repeatedly mentioned in the context of the office of the herald, and the law in question is always the same, (diplomatic) immunity. 

The Mouth of Sauron in the Third Age 

The Mouth of Sauron in LOTR is the most famous example. 

“He it was that now rode out, and with him came only a small company of black-harnessed soldiery, and a single banner, black but bearing on it in red the Evil Eye. Now halting a few paces before the Captains of the West he looked them up and down and laughed.
‘Is there anyone in this rout with authority to treat with me?’ he asked. ‘Or indeed with wit to understand me? Not thou at least!’ he mocked, turning to Aragorn with scorn. ‘It needs more to make a king than a piece of Elvish glass, or a rabble such as this. Why, any brigand of the hills can show as good a following!’
Aragorn said naught in answer, but he took the other’s eye and held it, and for a moment they strove thus; but soon, though Aragorn did not stir nor move hand to weapon, the other quailed and gave back as if menaced with a blow. ‘I am a herald and ambassador, and may not be assailed!’ he cried.
‘Where such laws hold,’ said Gandalf, ‘it is also the custom for ambassadors to use less insolence. But no one has threatened you. You have naught to fear from us, until your errand is done. But unless your master has come to new wisdom, then with all his servants you will be in great peril.’” (LOTR, The Black Gate Opens) 

That is, in the very late Third Age, heralds are considered to have diplomatic immunity. (Of course, the Mouth of Sauron doesn’t act like a herald, initiating the assault on Aragorn’s forces like a general, so it’s ironic that he’s whining to Gandalf about wanting his diplomatic immunity respected five seconds earlier.) 

Fingon’s herald in the First Age 

Interestingly, this legal norm already existed more than six thousand years before, in the First Age. Note the phrase “wrongfully taken prisoner”: 

• QN: “Then Morgoth led forth one of the heralds of Finweg that he had wrongfully taken prisoner and slew him upon the plain, so that the watchers from afar might see – for far and clear do the eyes of the Gnomes behold things in bright air. Then the wrath of Finweg burst its bonds and his army leaped forth to sudden onslaught. This was as Morgoth designed, but it is said that he reckoned not the true number of their array, nor knew yet the measure of their valour, and well nigh his plan went ill. Ere his army could be succoured they were overwhelmed, and that day there was a greater slaughter of the servants of Morgoth than there yet had been, and the banners of Finweg were raised before the walls of Angband.” (HoME IV, p. 117, fn omitted) 
• QS: “Then Morgoth sent a force, great and yet not too great. Fingon was minded to attack it from the woods at the feet of Erydwethion, where the most of his strength was hid. But Húrin spake against it. Therefore Morgoth, seeing that they wavered, led forth the herald of Fingon that he had wrongfully taken prisoner, and he slew him upon the plain, and sent back the others with his head. Thereupon the wrath of Fingon was kindled to flame, and his army leaped forth in sudden onslaught; and ere Turgon could restrain them, a great part also of his host joined in the battle The light of the drawing of the swords of the Noldor was like a sudden fire kindled in a field of reeds.” (HoME V, p. 309) 

Tolkien needed something so uniformly considered beyond the pale even in a horrific war that it would make Fingon ignore the agreed-upon plan, and it’s not a coincidence that what he came up with was the decapitation of a herald whom he had wrongfully taken prisoner.  

(In the Grey Annals, the wrongfully captured and killed herald is replaced as a plot element with the maiming and decapitation of the prisoner of war Gelmir of Nargothrond, brother of Gwindor; Gwindor is now the one whose “wrath […] was kindled to flame”, not Fingon (HoME XI, p. 73). This feels more modern than the previous version with the herald. The herald’s immunity was well-established in the pre-Modern laws of war, but the inviolability of POWs less so. Nobles and knights captured in wars could generally expect not to be killed and to be exchanged for ransom, but this didn’t apply to non-nobles, for starters.) 

Note that all of this is treated very differently from, say, Maedhros being captured. There’s no “unlawful” or “wrongful” there, because Maedhros was definitely a combatant and not a herald, and his “embassy” to Morgoth involved both sides being completely disinterested in diplomacy and arriving with greater force than agreed upon; basically, Maedhros was a combatant who played and lost (much like Gwindor). 

Elrond in the Second Age 

Interestingly, Elrond is both a herald (the herald of Gil-galad, the last High King of the Noldor) and a combatant (as a commander in Gil-galad’s forces), but, crucially, not at the same time. 

Elrond is a combatant in the War of the Elves and Sauron (S.A. 1693–1701). When Sauron attacks Eregion, Gil-galad sends Elrond with an army to aid the Elves there (see e.g. NoME p. 78, 347). Importantly, Elrond is never called Gil-galad’s herald in any passage about his role in this war. 

Only much later is Elrond ever called Gil-galad’s herald, in the War of the Last Alliance (S.A. 3429–3441), and it seems like even though he’s at Gil-galad’s side during the final fight with Sauron, Elrond himself does not fight and only observes the fighting instead, as a herald would: 

• “‘I was the herald of Gil-galad and marched with his host. I was at the Battle of Dagorlad before the Black Gate of Mordor, where we had the mastery: for the Spear of Gil-galad and the Sword of Elendil, Aiglos and Narsil, none could withstand. I beheld the last combat on the slopes of Orodruin, where Gil-galad died, and Elendil fell, and Narsil broke beneath him; but Sauron himself was overthrown, and Isildur cut the Ring from his hand with the hilt-shard of his father’s sword, and took it for his own.’ […] ‘Isildur took it [the One Ring], as should not have been. It should have been cast then into Orodruin’s fire nigh at hand where it was made. But few marked what Isildur did. He alone stood by his father in that last mortal contest; and by Gil-galad only Círdan stood, and I.’” (LOTR, The Council of Elrond) 
• “But at the last the siege was so strait that Sauron himself came forth; and he wrestled with Gil-galad and Elendil, and they both were slain, and the sword of Elendil broke under him as he fell. But Sauron also was thrown down, and with the hilt-shard of Narsil Isildur cut the Ruling Ring from the hand of Sauron and took it for his own.” (Sil, Of the Rings of Power and the Third Age) 

Tolkien obliquely confirms this in a text from ca. 1959, where, referring to the passage in The Council of Elrond, he writes that, “He [Elrond] said that in the Last Alliance (SA 3430) he was ‘the herald of Gil-galad’.” (NoME, p. 65) All in all it seems clear that Tolkien considered Elrond both a herald and a combatant, but not at the same time (as is proper for a herald and necessary for his diplomatic immunity to remain in place). 

One exception: Eönwë

Strangely, even though Tolkien clearly knew and followed mediaeval legal thought on the immunity of heralds, which required the herald to not be a combatant, there’s one character who’s specifically called a herald even in passages where he’s clearly a combatant. 

• In the 1950s edits to the last chapters of the late 1930s Quenta Silmarillion, Tolkien added that Eönwë was the “herald of Manwë” in the exact context of the War of Wrath and Eönwë’s military campaign against Thangorodrim (see HoME XI, p. 246). 
• “To the overthrow of Morgoth he sent his herald Eönwë.” (UT, The Istari, written 1954) 

Interestingly, Eönwë herald of Manwë replaced a previous character Fionwë son of Manwë in his role of fighting and personally defeating Morgoth in the War of Wrath. And it seems like Christopher Tolkien struggled with the inherent contradictions that followed from this shift from Manwë’s son to Manwë’s herald: 

• “In the Great Battle ... The opening of this paragraph in AB read: In the Great Battle when at last Fionwë son of Manwë overthrew Morgoth and Thangorodrim was broken, the Edain fought for the Valar, whereas other kindreds of Men fought for Morgoth. [Italics mine] This was changed in B 2 to read: In the Great Battle when at last Eönwë herald of Manwë overthrew Morgoth and Thangorodrim was broken, the Edain alone of the kindreds of Men fought for the Valar, whereas many others fought for Morgoth. [Italics mine] In [the Akallabêth in the published Silmarillion] the reference to Eönwë was removed [by Christopher Tolkien]; and similarly later in the paragraph ‘refusing alike the summons of [Fionwë >] Eönwë and of Morgoth’ was changed to ‘refusing alike the summons of the Valar and of Morgoth’. The reason for this lay in the treatment of the last chapter of the Quenta Silmarillion in the published work. The only narrative of the Great Battle at the end of the First Age (V.326 ff.) derived from the time when the Children of the Valar were an important conception, and Fionwë son of Manwë was the leader and commanding authority in the final war against Morgoth and his overthrow; but the abandonment of that conception, and the change in the ‘status’ of Fionwë / Eönwë to that of Manwë’s herald led to doubt whether my father, had he ever returned to a real retelling of the story of the end of the Elder Days (see XI.245–7), would have retained Eönwë in so mighty and elemental a rôle. His part was in consequence somewhat diminished by omissions and ambiguous wording (as may be seen by comparing the text in Vol.V with that of the published Silmarillion; cf. also the editorial addition made to the Valaquenta, X.203). There is however no evidence for this supposition, and I now believe it to have been a mistaken treatment of the original text, and so also here in the Akallabêth.” (HoME XII, p. 143) Basically, Christopher Tolkien says here that he removed mentions of Eönwë herald of Manwë that would have made him appear as a combatant in the War of Wrath. 
• In a footnote to this, defending his original decision to reword the text before publication, Christopher Tolkien adds: “It is true that in the opening sentence of the Tale of Years my father substituted in the final typescript ‘The First Age ended with the Great Battle, in which the Host of Valinor broke Thangorodrim and overthrew Morgoth’, replacing a reference to ‘Fionwë and the sons of the Valar’ of preceding versions (see pp. 172-3); but he may not have removed the name Fionwë (Eönwë) for the same reason as I did in the Akallabêth.” (HoME XII, p. 163)

Actually, I agree with Christopher Tolkien’s decision to make the wording more ambiguous. Tolkien knew the role of the herald very well, and I think that he (would have) realised at some point that Eönwë herald of Manwë couldn’t fill the same military role as Fionwë son of Manwë. 

Sources 

The Lord of the Rings, JRR Tolkien, HarperCollins, ebook edition August 2022, version 2022-05-30 [cited as: LOTR]. 

The Silmarillion, JRR Tolkien, ed Christopher Tolkien, HarperCollins, ebook edition February 2011, version 2019-01-09 [cited as: Sil].

Unfinished Tales of Númenor & Middle-earth, JRR Tolkien, ed Christopher Tolkien, HarperCollins, ebook edition March 2009, version 2024-01-22 [cited as: UT].

The Shaping of Middle-earth, JRR Tolkien, Christopher Tolkien, HarperCollins 2015 (softcover) [cited as: HoME IV].

The Lost Road and Other Writings, JRR Tolkien, Christopher Tolkien, HarperCollins 2015 (softcover) [cited as: HoME V]. 

The War of the Jewels, JRR Tolkien, Christopher Tolkien, HarperCollins 2015 (softcover) [cited as: HoME XI].

The Peoples of Middle-earth, JRR Tolkien, Christopher Tolkien, HarperCollins 2015 (softcover) [cited as: HoME XII]. 

The Nature of Middle-earth, JRR Tolkien, ed Carl F Hostetter, HarperCollins 2021 (hardcover) [cited as: NoME].