Right to Bear Arms

First published May 20, 1995.

The question of the right to bear arms (who has the right to bear which arms) is a controversial one. What follows is an exposition of my own opinions, supported, I think, by a lot of evidence, but be aware that others think differently.

Contents

This page shows that the right to bear coats of arms was unrestricted in the Middle Ages. The question is viewed in terms of existing laws and regulations (de jure) as well as in terms of actual practice (de facto). The later evolution is also discussed: heraldry remained unregulated in most countries, with the significant exception of Britain.

Introduction

A common prejudice has associated heraldry exclusively with nobility or gentry. This has no foundation in fact, law or history of European armory. Although heraldry began with the feudal nobility, it quickly extended to all classes of society, beginning with knights (who did not become part of the nobility until the late 13th century, long after they started using arms) all the way to peasants by the 14th century; and self-assumption was the only existing way (along with inheritance, of course) to acquire arms until the mid-14th c. After that date, sovereigns began to grant arms (the first known grant of arms was made in 1338 by the Emperor, although the French national archives display a grant of arms of 1334 by the duke of Bourbon) but self-assumption remained a normal way to acquire arms, and it was in no way restricted by status. In fact, even in England grants of arms to individuals remained very rare until the end of the 15th century.

The only restriction on self-assumption acknowledged by jurists was against consciously assuming arms already borne by another family within a given jurisdiction, at least when harm could ensue for the family. The problem of conflict of arms between knights is what brought heraldry into the jurisdiction of the Court of Chivalry in England in the late 14th century.

Since heraldry was unregulated, arms could and were adopted by all sorts of people, and arms borne by peasants or tradesmen weren't necessarily different from noble arms, either in style or in appearance. Only in the 16th century does one see some attempts at regulating heraldry, in two ways: by limiting the acquisition of arms to grants, and by restricting the right to bear arms to certain social categories. Most attempts were half-heartedly enforced, and whole-heartedly ignored. Some countries never experienced either: Switzerland, as well as France save for two minor and short-lived episodes. England and Scotland stand out as historical exceptions in this regard. The regulation of heraldry in Scotland is based on a statute of 1672 and is enforced to this day by the Scottish judicial system. The situation in England is rather more complex, and the extent to which regulation is actually enforced, or enforceable, is a matter of debate.

De Jure

In the Middle Ages, anyone could bear arms. This is a simple fact, which is abundantly clear from the following citations.

Bartolo da Sassoferrato, famous Italian jurist of the 14th century, wrote a Tractatus de Insigniis et Armis ca. 1355, the first treatise on heraldry: there, he discusses the right to bear arms, and comes to the conclusion that not only can any man assume arms as he pleases, but he can even assume the arms of another, subject to certain restrictions. (I provide more details in a note on Bartolo's De Insigniis et Armis).

Honoré Bonet, a French prior, wrote a treatise of the law of war between 1382 and 1387. Although he distinguished arms of dominion and arms of office, which are protected, he recognizes that there are arms "lesquelles chacun a pris a son plaisir" (which each has taken at his pleasure), which can also be changed at will, subject to the same proviso about not injuring others. Bonet is more inclined, however, to advocate that, within a jurisdiction like a town or a region, arms be kept unique, and that the first one to assume arms be protected from others assuming the same arms, but only on the grounds that confusion and injury must be avoided. Bonet's book proved to be extremely popular among the general public, as Bartolo was influential among jurists and scholars, and was cited and copied in many countries. More details are given in a note on Bonet's Arbre des Batailles.

Bonet's book was circulated throughout Europe; for example, a copy exists in Scotland in Gilbert of the Haye's prose manuscript of 1456, titled The buke of the law of armys (published by J. H. Stevenson in 1901-14).

Nicholas Upton, canon of Salisbury, repeats the same ideas in his legal tract De Studio Militari, written in 1440 and dedicated to the duke of Gloucester. The treatise covers knighthood (books 1 and 2) and heraldry (books 3 and 4). Upton takes up the question of whether one can freely assume arms in book 1 (1654 ed., p. 58): 

Et tunc solent Principes concedere sic nobilitato certa arma; per dictum
nobilitatum, et suos heredes, portanda.  Et talia arms sunt majoris
auctoritatis quam alia arma per sic nobilitatum assumpta, ut refert
Bartholus in tractato suo, de armis pingendis circa medium.  Unde jam 
oritur questio.  Nunquid liceat nobili unicuique, sibi Arma, aut 
insignia, ad libitum assumere?  Cujus questionis partem affirmativam sic
justifico.  Nam sicut nomina sunt inventa ad recognoscendum homines, ut
in l. ad recognoscend. C. de ingenuis manumissis(Cod. 7.14.10), ita 
arma et insignia ad 
cognoscendum homines sunt inventa, ut F. de rerum di l. sanctum (Dig. 
1.8.8)  xxi. d.  cleros, in versiculo, et ideo, set talia nomina cuilibet 
licet imponere ad libitum, ut F. de fals. l. falsi. (Dig. 48.10.13),
C. de codicill. l.  si idem (Cod. 6.36.7), per Cy. et Pe..  
Ita insignia et arma ad libitum cuilibet
nobili licet suis clipeis inpingere, et portate.  Pro majori, est textus,
l. predictar. et minor sufficienter probatur per Cy. et Pe. in
l. si idem superius alleg.  Ergo titulos, signa, vel insignia, 
unicuique Nobili licet assumere.  Patet modus arguendi a pari, sive
a simili, pro quo F. de le. 3 l. 3 (Dig. 32.1.3)
et F. de furt. l. a Ticio (Dig. 47.2.65(64)),
Extr. de bap. et e.f.c. majores, in versiculo sacro per Will. in cle.
quod tamen est verum, si nobilis fuerit, qui talia arma assumit, et alius 
in illo regno vivens, ipsa arma vel insignia non portavit.  Civitates autem, 
per statuta earum faciunt, ut aliqui habeantur nobiles simpliciter, 
nec adiciunt qua nobilitate, set credo quod nobilitate infima, que 
est nobilitas innominata, de qua dixit Barth. C. de dignitatibus
l. 1. in pr. questione li. 12 (Cod. 12.1.1)..  

He concludes the treatise by taking up
the following question (1654 edition, p. 257): 



Nunc autem ad questionem sepius motam, videlicet nunquid Arma ex
largitione Principum vel aliorum Dominorum sunt meliora, aut tante
dignitatis,  sicut Arma propria auctoritate assumpta?  cum superius
dictum sit quod licitum est unicuique nobili sibi Arma aut Insignia
ad libitum assumere.  De qua questione aliqua dixi supra li. pr. ca.
quid sit feudum, &c. in verbo ostenditur prope finem cap.  Ad
cujus quidem questionis intellectuma notandum est quod quatuor modis
habemus Arma aut insignia.  Primo modo, Habemus nostra Arma que portamus
ex parentela nostra, qui modus est communis et famosus.  In quo 
non opportet diu stare, quia optime approbatur modus ille.  Secundo
modo Habemus Arma per nostra merita ut clarissime patet per ea que
supradixi in lib. tertio in cap. de colore rubio, ubi tractavi de
appositione Armorum Regis Francie facta Armis Domini nostri suppremi
Domini Henrici nunc Regis Anglie per ipsum invictimum Principem Edwardum
primogenitum Edwardi tercii tunc Regis Anglie, post capturam dicti
Regis Francorum Johannis in bello de Poyters.  Que quidem appositio
licita fuit et juste facta, ut ibi dixi.  Sic autem potuit alius pauper
sagittarius unum cepisse Principem, vel alium notabliem Dominum, Cujus
quidem prisonarii per eum sic capti Arma sibi et heredibus suis juste
adquiruntur, ut ibi dixi.  Tercio modo Habemus Arma que portamus ex
largitione Principis et aliorum Dominorum.  Et hic nota, quod illa Arma
que habemus ex largitione Principis non recipiunt questionem, quoniam
nec hoc Princeps vult, ut Institut.  de jure naturalis Gentium et civilis,
§ se[d et] quod placuit Principi (Inst. I.1.2,6), nisi aliquis ipsa Arma prius portaverit.
Quod quidem meum est justo titulo, postea sine facto meo a me evelli non 
debet, nec hoc facere Princeps potest, ut C. de legibus in l. digna 
vox (Cod. 1.14.4), qui quamvis legibus sit solutus, legibus tamen se vivere profitetur.
Quarto modo.  Habemus illa Arma que portamus assumpta ex propria 
auctoritate, ut hiis diebus aperte videmus quomodo multi pauperes in
guerris Francie laborantes facti sunt nobiles, quidam per suam prudentiam,
quidam per strenuitatem, quidam per fortitudinem, 
quidam per alias suas virtutes, que,
ut supra dixi, homines nobilitam quorum multi ex sua propria auctoritate
Arma portanda sibi et suis heredibus assumpserunt, quorum insuper nomina non
oportet hic retexere.  Fateor tamen quod Arma sic assumpta quamvis 
libere et licite portentur adhuc tante dignitatis aut auctoritatis esse
non possunt, sicut illa sunt que Principum aut dominorum auctoritate indies
largiuntur.  Arma tamen propria actoritate assumpta, si tamen alius illa
per prius non portaverit, sunt satis valida.  Nec invenio cautum quin
talia Arma sint satis bona auctoritate illius legis, ad recognoscendum
C. de ingenuis manumissis (Cod. 7.14.10)
et lege facta in § si vero nominis F. ad
senatusconsultum [T]rebellianum (Dig. 36.1.65(63).10), 
et legis qui prior F. de regulis juris (Dig 50.17.?).
Nec approbare audeo opinionem quorundam dicentium quod Haraldi possunt
dare Arma, set dico, si que talia Arma portentur, per Haraldum aliquem
cuicumque collata, quod illa Arma non sunt majoris auctoritatis quam illa
que auctoritate propria sunt assumpta.







"as in these days we see openly how many poor men through their
service in the French wars have become noble, some by their prudence, some
by their energy, some by their valour, and some by the virtures which,
as I said above, ennoble men. And many of thse have upon their own authority
taken arms to be borne by themselves and their heirs". 





He recognizes them as valid, though of less authority and dignity than
arms granted by the prince (he denies heralds the right to grant arms).
Note that this is written 23 years after the writs of 1417, which shows
that these writs must not have been enforced very well, even for soldiers
fighting in France (let alone the rest of society, which they did not cover
in any case). 



The Book of Saint-Albans, which dates from the late 15th c., follows
Upton closely.





The Argentaye Tract, a ca. 1480 treatise from Brittany, also contains
a passage on heraldry and the right to arms.




Diego de Valera, a Spaniard, wrote a treatise on nobility in 1440, the
Espejo de verdadera nobleza. In it, he writes: "we see a common
usage in France and Germany for burghers to take arms as they please, which
they put on their houses and in the churches of which they are parishioners,
in which they keep a distinction with noblemen, because noblemen display
their arms wherever they want and wear tunics of arms." When discussing
the several ways of acquiring arms, he mentions the "fourth and last
kind are self-assumed arms, as do burghers, rich landowners and powerful
merchants." 



Juan Rodrigues del Padrón, a Spanish gentleman writing around
1439, differs somewhat from Bartolo whose text he comments. He thinks that
coats of arms are a mark of nobility, a conclusion to which he comes from
the notion that arms were first invented to allow fighters whose features
were covered to be recognized in battle, and from the fact that non-nobles
did not wear full-face helmets. He does think that, among noblemen, anyone
can assume arms, although arms granted by a prince are more honorable.
He also disagrees with Bartolo on assumption of existing arms, again based
on the notion that arms were invented to identify individuals: free assumption
of existing arms would lead to confusion and fraud. But he accepts that
a Pole can assume the arms of a Spaniard, or a Spaniard those of a Cypriot,
or a Cypriot those of a German. 



So we have texts from Germany, France, England attesting the fact that
self-assumed arms were common, and deemed perfectly legal, without regard
to distinction between nobles and commoners, which shows that, as of 1350
at least, the law was in accord with actual practice, since seals show
arms borne by commoners as well as nobles, with no visible difference (even
the use of helmets is not consistent: some merchants use it, some nobles
don't). 



Some have argued that Bartolo's ideas were merely parroted by later
writers without thinking. but it is hard to believe that so many writers
in so many countries could have repeated those ideas on heraldry and that
their books would have enjoyed the success that they did, if such ideas
had been at variance with actual practice. 



It is strange that Anthony Wagner, in Heralds and Heraldry (where
a number of these texts are cited) acknowledges that "the notion that
arms belong to the nobility seems here entirely absent...this may perhaps
be characteristic of the juristic as against the chivalric point of view."
However, the evidence he cites to expound the "chivalric point of
view" show no such notion that arms belong to the nobility, and he
makes in essence a logical mistake: since arms were required to enter into
tournaments, he reasons, only those who participated in tournaments could
bear arms. True, heralds asked for arms to be displayed so they could verify
the nobility of the participants; heralds knew, or had listings of, the
armorial bearings of the nobility and knightly class, and showing one's
arms was like showing an identification document. But, if it is true that,
in the US, one must be 21 or older to drink beer, it is not true that all
those aged 21 or more drink beer. 



Likewise, the texts which Wagner cites from 14th c. grants of arms show
that ennoblement carried with it a grant of arms, but that does not prove
that arms were an exclusive mark of nobility. If it were, wouldn't find
evidence to that effect in royal regulations? But there is none to be found
before the 16th c. anywhere in Europe, with the only exceptions
are Savoy in 1430, and Portugal in 1466, and those regulations had no immediate
effect. 



De Facto



In practice, all sorts of people had arms in the Middle Ages. There
is no doubt that heraldry originated with the feudal nobility in the mid
12th century, but the spread to other classes of society was rather rapid.




The following is translated from Galbreath and Jéquier's Manuel
du Blason (Lausanne, 1977): 





Here are a few marker dates for the spread of heraldry to other classes,
according to Pastoureau: 





He says the speed might have been a bit greater in England; conversely,
the spread from nobiles to milites takes place after 1250 in the Low Countries
and Germany. It is important to understand, then, that heraldry is a military
phenomenon, not a nobiliary phenomenon, as knights did not form part of
the nobility until the late 13th century.





The oldest women arms appear in the
mid-12th c. (Rohaise de Clare, niece of the earl of Pembroke, 1156 in England;
Yseult de Dol, 1183 in France; 1222 in Germany), and multiply from 1220-30
on. Ecclesiastical arms: the first arms
of a see are Langres, 1210-15. For higher prelates (e.g. bishops) arms
of sees preceded the use of familial arms, or both were shown on the seal,
for quite some time. Parish priests and monks started displaying personal
arms fairly early. The first papal arms were probably
those of Innocent IV (1243-54). 



The oldest arms used by burghers, craftsmen and tradesmen
are from around 1240 in France and Rhenish and Flemish countries (1248
in Liége), somewhat later elsewhere (1283 in Tyrol, 1309 in Switzerland,
14th c. in Poland, 1360 in Navarre, etc) . They proliferate in the 14th
c. The first peasant arms appear about the same time, and are particularly
common in Normandy, southern England, Switzerland, Flanders. Pastoureau
cites a collection of 1017 seals from Normandy, ranging from 1202 to 1317.




The earliest town seals are those of Cologne (1149); Trier, Soest,
Mainz, Milan, Rome, Pisa, Siena, Verona all used seals before 1200. The
first urban seal with armory would be Hertford (1180-90); initially the
towns used the arms of their lord, but by 1230-40 a number of towns of
all sizes adopt their own arms. Arms of corporations are rare before the
mid-14th c. Monasteries and religious communities rarely have arms before
the beginning of the 14th c. 



Perhaps the most striking proof of the widespread use of armory is the
fact that 14th c. Jews used arms. There are seals
used by Jews in Southern France, Spain and elsewhere, in their dealings
with municipal authorities for example, which display unmistakable armorial
bearings. 



There is evidence of commoners' arms in 14th
century England and in other countries as well. The rule reserving
helmets for nobles (and therefore recognizing as legal commoners' arms)
can be found in Italy as well (see L'Araldo Veneto, 1680). In Portugal,
Alfonso V imposed restrictions on how commoners' arms could be devised,
and ultimately in the early 16th c. Manuel I reserved arms for nobles (references?)
In Switzerland, which never had a feudal nobility, peasant arms are quite
commonly found on seals beginning in the 14th c. (article by Cottu in the
Archives Héraldiques Suisses, 1971). I have discussed the
case of France elsewhere. 



Later Evolution



The only real legislation in France until the late 17th century is an
ordinance of 1561 restricting the use of helmets to nobles. This was renewed
by Edict of 1620. In 1696, pressed for money, Louis XIV created a heraldic
legislation: no arms could be displayed if they hadn't been registered
with the King of Arms. But anyone could, and was indeed strongly urged,
if not forced, to register arms. Out of 115,000 arms registered in the
few years after 1696, 80,000 belonged to commoners. The real purpose of
the Edict was fiscal, since the fee charged for registration served to
finance the war effort. People who were forcibly assigned arms did not
get to choose the design, and there are many examples of serially manufactured
arms, as well as cruel canting arms (one Lemarié was given deer
antlers on his coat!). The system fell into disuse within a few years,
and self-assumption and usurpation of exterior ornaments became the norm
again. A 1760 attempt by the king to restrict arms to the nobility was
struck down by the courts as against the fundamental laws of the kingdom.
By 1789 Mirabeau complained that, as a true gentleman, he had to have a
ducal coronet engraved on his signet ring, since any commoner used a count's
coronet. 



From 1808 to 1814, Napoleonic heraldry was in place. After the end of
the Empire, laisser-faire returned.



Examples of regulations in other countries. No arms were ever granted
in Switzerland, which never had a heraldic authority. In Austrian lands
arms were used by nobles and commoners alike, and the Austrian Emperor
in the 19th century was still granting arms to non-nobles.



The earliest known statute tending to restrict the use of heraldry is
in Savoie in 1430. In Portugal, a law of May 21, 1466, promulgated by Alfonso
V, prohibited the use of metals (presumably as tincture of the field) on
arms of commoners: 



"que nenhum plebeu nem outra alguma pessoa traga nenhumas armas com metal em seu escudo."



In 1583, the Cortes of Navarre ordered that all arms publicly displayed
by non-nobles in the last 40 years be removed. A law of 1642 reiterated
the prohibition. The intent was more against the simulation of noble status
rather than against arms used by commoners.



The evolution of heraldic regulation in England is unique. Aside from
Scotland, where an act of 1672 has defined
the status and powers of the Lord Lyon, there is no country where heraldry
has been as closely regulated by governmental authorities as in England.
The process by which this came about, however, is long and complex. Succinctly,
heraldry was unregulated as elsewhere until the early 16th c., when the
system of Visitations was established. The enforcement was provided by
the Court of Chivalry, a medieval court whose jurisdiction had been narrowed
to heraldic matters over time. The law of arms of England, defined by the
uses and customs of the Court of Chivalry, reached a point at the end of
the 17th c. where the only legal arms were arms registered at the College
of Arms. The Court of Chivalry ceased to operate in 1737, and was revived
only once, in 1954. Thus, the status of heraldic regulation and enforcement
has been in limbo. 



More details on England are provided elsewhere.




For the case of the United States, look here.