Assize of Arms
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Background
Henry II came from a Norman line of kings and inherited the kingship of England which had fallen into Norman hands after the Battle of Hastings in 1066. This turned out to be the last successful foreign invasion of England.
England had been a unified nation for only a short time prior to this. It had been successfully invaded and conquered with military power from the Roman Empire, with periodic incursions from Gaul, over about 400 years. This was followed with periodic waves of Viking invasions. It was not until the end of the first millennium that England had become unified by the conjoining of various local kingdoms and defeat of the many kingdoms in Northern and Eastern England paying Danegeld[1] and having some ties (which became quite loose over time) to Viking kings on the continent. It is not clear cut who was the first King of England. Offa and Athelstan are strong candidates. History would have told Henry of the earlier Viking invasions along the North Sea, the English Channel (including Normandy) and the Irish Sea (Ireland and Wales). Because his immediate ancestors had themselves conquered England, he was well aware of the potential for external threats to his kingdom, as well as the more common risk of divided loyalties among those beneath him.
The Norman invasion of 1066 led to the introduction to England of a very structural form of feudalism. This was a strong social hierarchy with the king at its apex with most people owing fealty to another. The Norman and Viking armies had been very loose gatherings of fighting men, and looting and pillage was common among them, and therefore, as far as their kings were concerned, had only loose loyalties to them. Their armies did not match the power, might and discipline of the Roman army that had been formed a thousand years earlier.
The power of the Norman kings ruling at that time in England was not founded on any form of standing army. If a king needed to raise forces this would often have to be mercenary forces paid for by the king or his followers. The Assize of Arms needs to be seen in this context. Although it did not create a standing army in the modern sense, it did lay down conditions which would enable the King to call up a fighting force at any time which would be adequately armed to preserve the social order within the country and to ward off any external threat, and did not require any formal form of taxation to achieve this.
Connection to the English and American Bill of Rights
The Assize of Arms is part of the legal basis for the English Bill of Rights and the right to keep and bear arms mentioned in the United States Bill of Rights (specifically in the Second Amendment to the United States Constitution[2][3][4][5].)
The Supreme Court of the United States in District of Columbia v. Heller was presented by the petitioners with written evidence claiming that Assize of Arms merely marked the beginning of the militia system in England. It claimed that a lower court's citation of the English Bill of Rights of 1689 as a source of a preexisting right had "misinterpreted it to guarantee a private right to possess guns, when it rather laid down the right of a class of citizens, Protestants, to take part in the military affairs of the realm. Nowhere was an individual’s right to arm in self-defense guaranteed." The court's final judgement on the right to bear arms concluded that the writers of the second amendment had intended to acknowledge such a right and enshrine it in law, based on the early settlers experience and on the English Bill of Rights. However the court made no explicit judgement on whether the right dated back to the Assize of Arms.[6]
Text of the Act
The complete text of the act, along with commentary, are listed in this section. Clarification of some of the more archaic terms can be found in the notes section of this page. Any emphasis shown in the following text has been added here and does not appear in the original document.
The keeping of arms
- 1. Whoever possesses one knight's fee[7] shall have a shirt of mail, a helmet, a shield, and a lance; and every knight shall have as many shirts of mail, helmets, shields, and lances as he possesses knight's fees in demesne.[8]
- 2. Moreover, every free layman who possesses chattels or rents to the value of 16m. shall have a shirt of mail, a helmet, a shield, and a lance; and every free layman possessing chattels or rents to the value of 10m. shall have a hauberk, an iron cap, and a lance.[9]
- 3. Item, all burgesses and the whole community of freemen shall have [each] a gambeson, an iron cap, and a lance.
The meaning of these first three declarations is clear: all free men "shall have" arms; not "may have".
While the first two articles may appear to limit the finest of arms to those of higher station, the third clearly shows that "the whole community of freemen" shall keep and bear arms. The reference (and limitation implied thereby) to "freemen" is somewhat analogous to modern prohibitions against convicted criminals possessing firearms; a prohibition found even in the laws of the United States, where the right to keep and bear arms is guaranteed by their Constitution's Second Amendment.
In defense of the state
- 4. Besides, each of them shall swear to have these arms before the feast of St. Hilary[10], to be faithful to the lord king Henry — namely, the son of the Empress Matilda — and to bear these arms in his service according to his command and in fealty to the lord king and his kingdom. And henceforth no one having these arms shall sell them or pledge them or lend them or alienate them in any other way; nor shall a lord in any way alienate them from his men, either through forfeiture or through gift or through pledge or in any other way.
- 5. If any one having these arms dies, his arms shall remain to his heir. If, however, the heir is not of age to use arms in time of need, that person who has wardship over him shall also have custody of the arms and shall find a man who can use the arms in the service of the lord king until the heir is of age to bear arms, and then he shall have them.
Limitations on arsenals
The sixth declaration of the Act also may often be cited by gun control advocates as an indication that the arms in question are subject to limitation by the Crown. The text is:
- 6. Any burgess who has more arms than he ought to have by this assize shall sell them, or give them away, or in some way alienate them to such a man as will keep them for the service of the lord king of England. And none of them shall keep more arms than he ought to have by this assize.
While this may, at first glance, appear to be a precedent for the state imposing limitations on the right of its citizens to arm themselves, the purpose was in fact quite the opposite. The sixth declaration was not intended as a limitation on the right to keep arms (although that was one undeniable effect of the second sentence) but rather to prevent the more powerful feudal lords of the day from hoarding weapons and, thereby, denying others access to them.
The first sentence makes it plain that if you have more arms than you can use, you must provide some of them to someone else who can make use of them; even if you have to do so free of charge. It is worth noting that nothing whatsoever is said advocating confiscation by the state (and the fourth declaration, above, explicitly forbids such action on the part of lords).
Concerning Jews
While the Assize, when taken as a whole, is an admirable example of early English traditions of upholding the rights of citizens to self-defense, the distastefulness of the seventh declaration is glaringly obvious:
- 7. Item, no Jew shall keep in his possession a shirt of mail or a hauberk[11], but he shall sell it or give it away or alienate it in some other way, so that it shall remain in the king's service.
One can be forgiven if this brings to mind the 1938 German Weapons Act, by which the Nazis similarly denied means of defense to Jews and others they just plain didn't like. While King Henry's prohibitions did not bring about the outright slaughter of English Jewry in the manner seen in 20th century Germany, the provision is nonetheless disgusting by any reasonable modern standards.
Exporting of arms
- 8. Item, no one shall carry arms out of England except by the command of the lord king: no one is to sell arms to another to carry out of England; nor shall a merchant or any other man carry them out of England.
The purpose behind this declaration is quite obvious: don't give weapons to someone who might be the enemy. It would seem that, even in the twelfth century, governments felt the itch to pass laws against the commission of idiocies.
Administration
The ninth declaration is somewhat rambling and as such, needs to be dealt with at greater length:
- 9. Item, the justices shall have [a report] sworn by lawful knights, or by other free and lawful men of the hundreds and neighbourhoods and boroughs — as many as they see fit to employ — as to what persons possess chattels to the amount that they should have a shirt of mail, a helmet, a lance, and a shield according to what has been provided; so that they shall separately name for those [justices] all men of their hundreds and neighbourhoods and boroughs who are worth 16m. in either chattels or rents, and likewise those who are worth 10m. And then the justices shall have written down [the names of] all those jurors and other men, [recording] how much in chattels or rents they [each] have and what arms, according to the value of the chattels or rents, they should [each] have. Then, in their presence and in a common assembly of those men, they shall have read this assize regarding the possession of arms, and they shall have those men swear to have arms according to the value of the aforesaid chattels or rents, and to keep them for the service of the lord king according to this aforesaid assize, under the command of and in fealty to the lord king Henry and his kingdom. If, moreover, it should happen that any one of them, who ought to have these arms, is not in the county during the period when the justices are in that county, the justices shall set a time for him [to appear] before them in another county. And if he does not come to them in any county through which they are to go, and is not in that land [at all], they shall set him a time at Westminster toward the octave of St. Michael[12]; so that, as he loves his life and all that he has, he shall be there for swearing his oath. And they shall command him, before the aforesaid feast of St. Hilary, to have arms according to the obligation resting on him.
Obligation to bear arms
The tenth declaration makes it clear that bearing arms is not only a right, but also the obligation of a free man:
- 10. Item, the justices shall have proclamation made in the counties through which they are to go that, with respect to those who do not have such arms as have been specified above, the lord king will take vengeance, not merely on their lands or chattels, but on their limbs.
Or, to put it in more modern English, the king expects that you should be armed and if you aren't, he will take it out on your arms and legs.
Exceptions to the obligation
While the tenth declaration makes plain that failing to arm oneself will be met with severe penalties in the name of the king, the eleventh recognizes that there were some people who simply could not afford to purchase or maintain arms and as such, should not face punishment for their lack of resources:
- 11. Item, no one who does not possess 16m. [as specified above] or 10m. in chattels is to swear concerning free and lawful men.
Ships and timber
The final declaration returns to the subject of international trading in things which could be used by enemies against England. It also reiterates the limitations of the oath of arms to only free men.
- 12. Item, the justices shall command through all the counties that no one, as he loves his life and all that he has, shall buy or sell any ship to be taken away from England, and that no one shall carry any timber or cause it to be carried out of England. And the lord king commands that no one shall be received for the oath concerning arms unless he is a freeman.
Considering that a) international trade in lumber is a fact of life in the modern world market; and b) few people have taken up the hobby of collecting aircraft carriers, the likelihood of ever having to worry about this one is extremely slim.
The final sentence makes clear, again, that those who are not free men (such as criminals) shall not be received for the oath.
Notes
- ↑ The Danegeld ("Danish tax", literally "Dane's gold") was a tax raised to pay tribute to the Viking raiders to save a land from being ravaged (i.e., an early form of protection racket). It was called the geld or gafol in eleventh-century sources; the term Danegeld did not appear until the early twelfth century. It was characteristic of royal policy in both England and Francia during the ninth through eleventh centuries, collected both as tributary, to buy off the attackers, and as stipendiary, to pay the defensive forces.
- ↑ Weir, William (1997). A well regulated militia. Hamden, Conn: Archon Books. p. 5. ISBN 0-208-02423-9.
- ↑ Ely, James W.; Bodenhamer, David J. (2008). The Bill of Rights in modern America. Bloomington: Indiana University Press. p. 73. ISBN 0-253-35159-6.
- ↑ Taylor, Hannis (1911). The origin and growth of the American Constitution. Boston: Houghton Mifflin. p. 232.
- ↑ Cottrol, Robert J. (1994). Gun control and the Constitution: sources and explorations on the Second Amendment. New York: Garland Pub. p. xii. ISBN 0-8153-1666-6.
- ↑ Supreme Court finding in District of Columbia v. Heller.
- ↑ A "knight's fee" was a feudal term used in mediæval England and Anglo-Norman Ireland to describe the value of land. It is also sometimes called scutage.
- ↑ That is to say, as many knights as remain charged against his demesne; cf. no. 36.
- ↑ Presumably less elaborate armour than that required of the other group.
- ↑ The 17th of November
- ↑ A hauberk is a shirt of mail armour. The term is usually used to describe a shirt reaching at least to mid-thigh and including sleeves.
- ↑ On about the 7th of October
Sources
- (Latin) Stubbs, Select Charters, pp. 183 f.
- Full text at Google Books
