Assize of Arms of 1181
The Assize of Arms of 1181 was a proclamation of King Henry II of England concerning the obligations of certain classes of persons to have arms, their obligation to swear allegiance to the king, and other provisions regarding arms, on pain of "vengeance, not merely on their lands or chattels, but on their limbs".
It is not clear to what extent the Assize of Arms helped to consolidate kingly power, or to what extent the proclamation was enforced.
Some in the United States have claimed that the Assize of Arms is an ancient right to bear arms, though this claim is disputed. The Supreme Court of the United States ruling regarding this right in District of Columbia v. Heller referred only to the English Bill of Rights of 1689 as earlier precedent.
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 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 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
Some have asserted that 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).
The Assize of Arms did not describe an ancient legal or political individual right to arms, rather the Assize of Arms represented an imposed responsibility on subjects.
The Supreme Court of the United States in District of Columbia v. Heller was presented by the petitioners with written evidence 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 create such a right, based on the early settlers experience and on the English Bill of Rights. However the court made no judgement on whether the right dated back to the Assize of Arms.
Text of the Assize of Arms
The Act reads as follows:
- THE ASSIZE OF ARMS (1181)
- 1. Whoever possesses one knight's fee 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.[note 1]
- 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.[note 2]
- 3. Item, all burgesses and the whole community of freemen shall have [each] a gambeson,[note 3] an iron cap, and a lance.
- 4. Besides, each of them shall swear to have these arms before the feast of St. Hilary, 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.
- 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.
- 7. Item, no Jew shall keep in his possession a shirt of mail or a hauberk, 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.
- 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.
- 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; 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.
- 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.
- 11. Item, no one who does not possess 16m. [as specified above] or 10m. in chattels is to swear concerning free and lawful 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.
- 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.
- A padded surcoat.
- Schwoerer, Lois G. (2000). "Tö Hold And Bear Arm: The English Perspective". Chicago-Kent Law Review. "There was no ancient political or legal precedent for the right to arms. The Ancient Constitution did not include it; it was neither in Magna Charta 1215 nor in the Petition of Right 1628. No early English government would have considered giving the individual such a right. Through the old militia laws —Henry II’s Assize of Arms (1181) and Edward I’s Statute of Winchester (1285)— early governments had imposed a responsibility on subjects, according to their income, to be prepared"
- 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.
- Stubbs, Select Charters, pp. 183 f. (Latin)
- Full text at Google Books