Chap. 12.] OF THE CIVIL ST.A.TE. 3DG

Chap. 12.] OF THE CIVIL STATE. 395 ish clerk was formerly very frequently in holy orders, and some are so to this ish clerk was formerly very frequently in holy orders, and some are so to this day. He is generally appointed by the incumbent, but by custom may be day. He is generally appointed by the incumbent, but by custom may be chosen by the inhabitants; and, if such custom appears, the court of king's chosen by the inhabit.ants ; and, if such custom appears, the court of king's bench will grant a mandamus to the archdeacon to swear him in, for the estab- bench will grant a mandamus to the archdeacon to swear him in, for the estab­ lishment of the custom turns it into a temporal or civil right, (i) lishment of the custom turns it into a temporal or civil right. (i)

CHAPTER XII.

OF THE CIVIL STATE.

THE lay part of his majesty's subjects, or such of the people as are not com-

prehended under the denomination of clergy, may be divided into three distinct

states, the civil, the military, and the maritime.

That part of the nation which falls under our first and most comprehensive division, the civil state, includes all orders of men from the highest nobleman CHAPTER XIL

to the meanest peasant, that are not included under either our former division, of clergy, or under one of the two latter, the military and maritime states: and OF THE CIVIL STATE.

it may sometimes include individuals of the other three orders; since a noble- man, a knight, a gentleman, or a peasant, may become either a divine, a soldier, THE lay part of his majesty's subjects, or such of the people as are not com­ or a seaman. prehended under the denomination of clergy, may be divided into three distinct

The civil state consists of the nobility and the commonalty. (1) Of the states, the civil, the military, and the maritime. nobility, the peerage of Great Britain, or lords temporal, as forming, together That part of the nation which falls under our first and most comprehensive with the bishops, one of the supreme branches of the legislature, I have before division, the civil state, includes all orders of men from the higheat nobleman sufficiently spoken: we are here to consider them according to their several to the meanest pe.asant, that are not included under either our former division, degrees, or titles of honour. of clergy, or under one of the two latter, the military and maritime states: and All degrees of nobility and honour are derived from the king as their foun- it may sometimes include individuals of the other three orders; since a noble­ tain : (a) and he may institute what new titles he pleases. Hence it is that all man, a knight, a gentleman. or a peasant, may become either a divine, a soldier, degrees of nobility are not of equal antiquity. Those now in use are dukes, or a seaman. marquesses, earls viscounts and barons. (5) (2) The civil state consists of the nobility and the commonalty. (1) Of the *1. A duke, though he be with us, in respect of his title of nobility, r *ogiy -i nobility, the peerage of Great Britain, or lords temporal, as forming, together inferior in point of antiquity to many others, yet is superior to all of "- "' ' ' I them in rank; his being the first title of dignity after the royal family, (c) with the bishops, one of the supreme branches of the legislature, have before

Among the Saxons, the Latin name of dukes, duces, is very frequent, and* sig- sufficiently spoken: we are here to consider them according to their several

nified, as among the Romans, the commanders or leaders of their armies, whom, degrees, or titles of honour. in their own language, they called Jjejiocoja j (d) and in the laws of Henry All degrees of nobility and honour are derived from the king as their foun­

I, as translated by Lam bard, we find them called hereiochii. But after the Nor- tain: (a) and he may institute what new titles he pleases. Hence it is that all man conquest, which changed the military polity of the nation, the kings degrees of nobility are not of equal antiquity. Those now in use are dukes, themselves continuing for many generations dukes of Normandy, they would marquesses, earls viscounts and barons. (b) (2) (i) Cro. Car. 889. (a) 4 lust. 863. *I. A duke, though he be with us, in respect of his title of nobility, [ •397 ] (6) For the original oftbese titles on tbe continent of Europe, nod their subsequent introduction Into this inferior in point of antiquity to man1 others, yet is superior to all of island, see Mr. Selden's Titles of Honour. them in rank; his being the first title of dignity after the royal family. (c) (c) Camden, Britan. lit. Ortlinet. Among the Saxons, the Latin name of dukes, duces, is very frequent, and sig­ (a) This is apparently derived from the same root as tho German hertsogeti. the ancient appellation of nified, as among the Romans, the commanders or leaders of their armies. whom, (hikes In that country. Sold. tit. Hon. 2, 1, 12. in their own language, they called .heJllcop; (d) and in the laws of Henry (1) A decided jealousy of titles, as inconsistent with our institutions and dangerous to lib' I, as transia.t.ed by Lam bard, we find them called heretockU. But after the Nor­ erty, has always appeared in America. By the constitution of the United States, both the man conquest,_ which changed the military polity of the nation, the kings national and state governments are forbidden to grant titles of nobility. Art. 1, $§ 9 and 10. themselves continuing for many generations dukes of Normandy, they would And no person holding any office of profit or trust under the United States, can accept an

office or title of any kind, from any king, prince or foreign state, unless by the consent of con- (4) Cro. Car. &89. (a)

Perhaps the jealousy spoken of was never more forcibly illustrated than in the debates in con-

gress at the time the government was first put in operation, respecting the proper formula of (1) A decided jealousy. of titles, as inconsistent with our institutions and dangerous to libf address to the president. See 4 Hildreth's U. S. 59; Annals of Congress, vol. 1, pp. $247, 318; erty, ho.i; nlway11 appeared in America. By the constitution of the United State~. both the Benton's Abridgement of Debates, vol. 1, p. 11, et setji national and state govcrnment11 a.re forbidden to grant titles of nobility. .Art. 1, ~§ 9 and 10. (2) See further upon this subject Hallam's ii iilcllr Ages, eh. 2, part 1. .And no pel'!lon holding any office of profit or truRt under the United States, can accert an

251 office or title of any kind, from any king, prince or foreign state, unless by the COl\Bent o con­ gre~. ~.\rt. 1, § 9. Any alien posses~ing a foreign title, or belonging to an order of nobility, is rcquireu to renounce the S11me before being admitted to citizenship. Act of Congress of April 14, 1!30"..!, 1 Story's Laws, 850. Perhaps the jealousy 11poken of we.e never more forcibly ilftistre.ted the.n in the 1fohnte~ in con­ gress at the time the government WM first put in operation, rer1pecting the pmper ti1rrnul11 of addrcR!l to the prcf'ident. See 4 Hildreth'e U. 8. 59; Annals of Congrel!S, Yol. 1, pp. 247, :us; Benton'R Abridg11ment of DebateA, vol. 1, p. 11, et seq, (2) See further upon thl~ ~uhject Hallam's :Middle Agee, eh. 2, part 1. 251 Generated for asbigham (University of Michigan) on 2013-04-29 18:51 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google 897 OF THE CIVIL STATE. [Book I. 397 OF THE CIVIL STATE. [Book I. not honour any subjects with the title of duke, till the time of Edward III, not honour any subjects with the title of duke, till the time of Edward III, who claiming to be king of France, and thereby losing the ducal in the royal

dignity, (3) in the eleventh year of his reign created his son, Edward the Black who claiming to be king of France, and thereby losing- the ducal in the royal

Prince, duke of Cornwall: and many, of the royal family especially, were after- dignity, (3) in the eleYenth year of his reign created his son, Edward the Black

wards raised to the like honour. However, in the reign of Queen Elizabeth, A. Prince, duke of Cornwall : and many, of the royal family especially, were afttlr­

D. 1572, (e) the whole order became utterly extinct; but it was revived about wards raised to the like honour. However, iu the reign of Queen Elizabeth, A. fifty years aftewards by her successor, who was remarkably prodigal of honours, D. 1572, (e) the whole order became utterly extinct; but it was revived about in the person of George Villers, duke of Buckingham. fifty years aftewards by her successor, who was remarkably prodigal of honours,

2. A marquess, marchio, is the next degree of nobility. His office formerly in the person of George Villers, duke of Buckingham. was (for dignity and duty were never separated by our ancestors) to guard the 2. A marquess, marchio, is the next degree of nobility. His office formerly frontiers and limits of the kingdom ; which were called the marches, from the was (for dignity and duty were never separated by our ancestors) to guard the Teutonic word, marche, a limit: such as, in particular, were the marches of frontiers and hmits of the kingdom ; which were called the marches, from the Wales and Scotland, while each continued to be an enemy's country. The per- Teutonic word, marche, a limit: such as, in 1mrticular, were the marches of sons who had command there were called lords marchers, or marquesses, whose Wales and Scotland, while each continued to be an enemy's country. The per­ authority was abolished by statute 27 Hen. VIII, c. 27, though the title had long sons who had command there were called lords marchers, or marquesses, whose before been made a mere ensign of honour; Robert Vere, earl of Oxford, being authority was abolished by statute 27 Hen. VIII, c. 27, though the title had long created marquess of Dublin by Richard II, in the eighth year of his reign. (/) before been made a mere ensign of honour; Robert Vere, earl of Oxford, being­ f *398 1 *^° ^n ear^ ls a ^e °^ Bounty so ancient, that its original cannot created marquess of Dublin by Richard II, in the eighth year of his reign. (f) L ' -I clearly be traced out. Thus much seems tolerably certain ; that among • ] *3. An ea1·l is a title of nobility so ancient, that its original cannot the Saxons they were called ealdormen, quasi elder men, signifying the same [ 398 ' · clearly be traced out. Thus much seems tolerably certain; that among as senior or senator among the Romans; and also schiremen, because they had

each of them the civil government of a several division or shire. On the irrup- the Saxons they were called ealdormen, quasi elder men, signifying the same

tion of the Danes, they changed the name to eorks, which according to as senior or senator among the Romans; and also scltiremen, because thev had

Camden, (g) signified the same in their language. In Latin they are called each of them the civil government of a se\·eral division or shire. On the irrup­ comites (a title first used in the empire) from being the king's attendants: " a tion of the Danes, they changed the name to rorf.es, which according to societate nomen sumpserunt, reges enim tales siM associant." (h) After the Camden, (g) signified the same in their language. In Latin they are called

Norman conquest, they were for some time called counts or countees, from the c

French; but they did not long retain that name themselves, though their shires societate nom.en sumpserunt, reges enim tales 8'1.:bi associant." (It) After the are from thence called counties to this day. The name of earls or comites is Norman conquest, they were for some time called counts or countee~, from the now become a mere title, they having nothing to do with the government of French; but they did not long retain that name themselves, though their shires the county; which, as has been more than once observed, is now entirely are from thence called counties to this day. The name of earls or comites is devolved on the sheriff, the earl's deputy, or vice-comes. In writs and commis- now become a mere title, they having uothmg to do with the government of sions, and other formal instruments, the king, when he mentions any peer of the county; which, as has been more than once observed, is now entirely the degree of an earl, usually styles him "trusty and well-beloved cousin" an devolved on the sheriff, the earl's deputy, or vice-corrUJs. In wrira and commis­ appellation as ancient as the reign of Henry IV, who being either by his wife, sions, and other formal instruments, the king, when he mentions any peer of his mother, or his sisters, actually related or allied to every earl then in the king- the degree of an earl, usually styles him "trusty and well-beloved cou.itin," an dom, artfully and constantly acknowledged that connexion in all his letters and a{>pellation as ancient as the reign of Henry IV, who being either by his wife, other public acts; from whence the usage has descended to his successors, tnough

the reason has long ago failed. his mother, or his sist.ers, actually related or allied to every earl then in the king­

4. The name of vice-comes or viscount, was afterwards made use of as an arbi- dom, artfully and constantly acknowledged that connexion in all bis letters and

trary title of honour, without any shadow of office pertaining to it, by Henry other public acts; from whence the usage has descended to his successors, though the Sixth; when, in the eighteenth year of his reign, he created John Beau- the reason has long ago failed. . mont a peer, by the name of Viscount Beaumont, which was the first instance 4. The name of vice-comes or viscount, was aft.erwards made use of as an arbi­ of the kind, (i) trary title of honour, without any shadow of office pertaining t.o it, by Henry

5. A barows is the most general and universal title of nobility; for originally the Sixth; when, in the eighteenth year of his reign, he created John Beau­ F *399 1 eTerv one °f ^ne P661"8 °f superior rank *had also a barony annexed to his mont a peer, by the name of Viscount Beaumont, which was the first instance L J other titles.(£) (4) But it hath sometimes happened that, when an an- of the kmd. ~i) te) Camden, Britan. tit. Online*. Siiclmavi, Olo»t. 191. (/) 2 lust. 5. (<;) Briton, tit. Online. 5. A barons is the most general and universal title of nobility; for originally (h) Bracton, 1.1, c. 8. Flet. 1.1, c. 8. (i) 2 Inst. 6. ft) 2 Inet. 8,«. [ •399 ] every one of the peers of superior rank *had also a barony annexed to his (3) [Com. Die. Dignity, B. 2; 9 Co. 49, a. This order of nobility was created before Edward other titles.(k) (4) But it hath sometimes happened that, when an an- assumed the title of king of France. Dr. Henry, in his excellent history of Borland, informs us, (e) Camden, Brltan. til. Or-tUtiu. Rpelman. Glau. 191. (/) 2 Inst. II. (g) Bri&an. tit. that " about a year before Edward III assumed the title of king of France, he introduced a new Ord'-· (h) Bracton, l. 1, c. s. Flet. l. 1, c. II. f'J 2 Inst. II. (J:) 2 Inat. II, 6.

order of nobility, to inflame the military ardor and ambition of nis earls and barons, by creating his eldest son, Prince Edward, duke of Cornwall. This was done with great solemnity in fuU (3) [Com. Dig. Dignity, B. 2; 9 Co. 49, a. This order of nobilit.Y wa.s created before Edward parliament at Westminster, March 17. A. D. 1337."] BSRumed the title of kinl" of F.rance. Dr. Henry, in his excellent history of En~land, inform<' us, (4) [At the time of the conquest, the temporal nobility consisted only of earls and barons; that " about a yoor before Edward III a.ssumed the title of king of France, he mtruduced a n1>w ana by whatever right the earls and the mitred clergy before that time might have attended order of nobility. to inflame the military ardor and ambition of his earls and barons, by- creating This the great council of the nation, it abundantly appears* that they afterwards sat in the feudal hiH eldest son, Prince Edward, duke ot Cornwall. was done with great solemmty in full parliament at Wel!tminster, March i7. A. D. 1337."] parliament in the character of barons. It has been truly said, that, for some time after the ( 4) [At the time of the conquetit, the temporal nobility consisted only of earls and baroru;; 252 and by whatever right the earls and the mitred clergy before that time might have attended the great council of tho nation, it abundantly appew'I! that they afterwards ;;at in the feudal parliament In the character of bal'

Chap. 12.] OF THE CIVIL STATE. 399 cient baron hath been raised to a new degree of peerage, in the course of a few cient baron hath been raised to a new degree of peerage, in the course of a few generations the two titles have descended differently; one perhaps to the male generations the two titles have descended differently; one perhaps to the male descendants, the other to the heirs general; whereby the earldom or other supe- descendants, the other to the heirs general; whereby the earldom or other supe­ rior title hath subsisted without a barony; and there are also modern instances rior title hath subsisted without a barony; and there are also modern instance.a where earls and viscounts have been created without annexing a barony to their where earls and viscounts have been created without annexing a barony to their other honours : so that now the rule doth not hold universally, that all peers are other honours : so that now the rule doth not hold universally, that all peers are barons. The original and antiquity of baronies has occasioned great inquiries barons. 'rhe original and antiquity of baronies has occasioned great inquiries among our English antiquaries. The most probable opinion seems to be, that among our English antiquaries. The most probable opinion seems to be, that they were the same with our present lords of manors; to which the name of they were the same with our present lords of manors; to which the name of court baron (which is the lord's court, and incident to every manor,) gives some

countenance. (5) It may be collected from King John's magna carta, (I) that court baron (which is the lord's court, and incident to every manor,) gives some

originally all lords of manors, or barons, that held of the king in capite, had countenance. (5) It may be collect.ed from King John's magna carta. (l) that

seats in the great council or parliament; till about the reign of that prince the originally all lords of manors, or barons, that held of the kin~ in capite, had conflux of them became so large and troublesome, that the king was obliged to seats in the great council or parliament; till about the reign of that prince the divide them, and summon only the greater barons in person; leaving the small conflux of them became so large and troublesome, that the king was obliged to ones to be summoned by the sheriff, and, as it is said, to sit by representation in divide them, and summon only the greater barons in person; leaving the small another house; which gave rise to the separation of the two houses of parlia- ones to be summoned by the sheriff, and, as it is said, to sit by representation in ment, (m) By degrees the title came to be confined to the greater barons, or another house; which gave rise to the separation of the two houses of parlia­ lords of parliament onlv; and there were no other barons among the peerage but ment. (m) By degrees the title came to be confined to the greater barons, or such as were summoned by writ, in respect of the tenure of their lands or baro- lords of parliament onlv; and there were no other barons amon~ the peerage but nies, till Richard the Second first made it a mere title of honour, by conferring such as were summoned by writ, in respect of the tenure of their lands or baro­ it on divers persons by his letters patent, (n) nies, till Richard the Second first made it a mere title of honour, by conferring (I) Cap. 14 (m) Gilb. Hist, of Exch. c. 8. Said. Tit. of Hon. 3, 5. 21. it on divers persons by his letters patent. (n)

(n) 1 Inst. 9. Seld. Jan. Angl. 2, * 66. conquest, wealth was the only nobility, as there was little personal property at that time, and {l) Cap. 1' (m) Gilb. Hist. or Exch. c. 8. Seid. Tll or Hon. 2, 6. ii. a right to a seat in parliament was entirely territorial, or depended upon the tenure of landed (n) I Inst. 9. Seid. Jan . ..4ngl. 2, t 66.

property. Ever since the conquest, it is true that all land is held either immediately or

mediately of the king; that is, either of the king himself, or of a tenant of the king, or it conqnest, wealth wae the only nobility, ae there wae little personal property at that time, and might be after two or more subinfeudations. And it was also a general principle in the feudal e. right to a seat in parliament We.B entirely territorial, or depended upon the tenure of landed svstem, that every tenant of land, or land owner, had both a right and obligation to attend property. Ever since the conquest, it is true that all land is held either immediately or tne court of his immediate superior. Hence every tenant in capita, i. e., the tenant of the mediately of the king; that is, either of the king himself, or of a tenant of the king, or it king, was at the same time entitled and bound to attend the king's court or parliament, being might be after two or more subinfeude.tions. .And it was also a general principle in the feudal the great court baron of the nation. It will not be necessary here to enlarge farther upon the l!Vstem, that every tenant of land, or land owner, had both a right and obligation to attend the conrt of hi11 immediate superior. Hence every tenant in capite, i. e., the tenant of the original principles of the feudal system, and upon the origin of peerage; but we will briefly king, was at the 1:1ame time entitled and bound to attend the king's court or parliament, being abndge the account which Selden has given in the second part of his Titles of Honor, c. 5, the great court baron of the nation. It will not be necessarr here to enlarge farther upon the beginning at the 17th section, being perhaps the clearest and most satisfactory that can be ori19nal principles of the feudal system, and upon the origm of peerage; but we will briefly found. He divides the time from the conquest into three periods: 1. From the conquest to the abndge the Mcount which Selden has given in the second part of hi!! Titles of Honor, c. 5, latter end of the reign of King John. 2. From that time to the llth of Richard II. 3. From that beginning at the 17th section. being perhaps the clearest and most 11atisfactory that can be 1. period to the time he is writing, which may now be extended to the present time. In the first found. He divides the time from the conqnest into three periods: From the conquest to the latter end of the reign of King J oho. 2. From th!\t time to the 11th of Richard II. 3. From that period, all who held any quantity of land of the king had, without distinction, a right to be period to the time he is writing, which may now be extended to the present time. In the first summoned to parliament; and this right being confined solely to the king's tenants, of conse- period, all who held any quantity of land of the king had, without distinction, a right to be quence all the peers of parliament during that period sat by virtue of tenure and a writ of summoned to parliament; and this right being confined solely to the king'li tenant

In the beginning of the second period, that is, in the last year of the reign of King John, a dis- summons. Jn the beginning of the second period, that is. in the last year of the reign of King John, a dis­ tinction, very important in its consequences (for it eventually produced the lower house of par- t!nction, very i!llportant in i~11 conse9~e.nces (for it eventuall,r produced the lower liouse of par­ liament), was introduced, viz.: a division of these tenants into greater and lesser barons: for liament), was mtroduced, viz.: a div1s1on of these tenants mto greater and leilller barons: for King John, in his magna charta, declares fatiemus summoneri archiepiscopos, tpiscopos, abates, Kin15 John, in his magna cliarta, declares/acittm1'8 sumnwneri archiepiscopos, tTpiscopos, abates, cmnites et majores barones regni sigillatim perliteras nostras, et praiterea faciemus summoneri in cmmtes et majores barones regni .'?igillatim perlitera.s nostras, et prreterea faciemus summo-neri in

generaliper vicecomites et battivos nostros omnes aUos, qiti in capite tenent de nobis ad cerium ge11erali per vicecomites et ballitios nostros omnes alios, qui in capjte tenent de nobts ad oortum diem,

(5) [Lords of manors, who had granted to others, by snbinfeudation, part of that estate which baron was of necet1ffity a lord of a manor, for the king's tenant, who retamed all the estate granted him, and alienated no pw:t of it, would certainly be as complete a baron as a lord of u. they held of the king, would necessarily be barons; but it does not tollow conversely that a manor. baron was of necessity a lord of a manor, for the king's tenant, who retained all the estate 253 granted him, and alienated no part of it, would certainly be as complete a baron as a lord of a

manor.

253 Generated for asbigham (University of Michigan) on 2013-04-29 18:51 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google 399 OF THE CIVIL STATE. [Book L 399 OF THE CIVIL STATE. [Book I.

Having made this short inquiry into the original of our several degrees of

nobility, I shall next consider the manner in which they may be created. The HaYing made this short inquiry into the original of our several degrees of

right of peerage seems to have been originally territorial; that is, annexed to nobility, I shall next consider the manner in which they may be created. The lands, honours, castles, manors, and the like, the proprietors and possessors of right of peerage seems to have been originally territonal; that is, annexed to r * ,QQ -, which were, in right of those estates, allowed to be *peers of the realm, lauds, honours, castles, manors, and the hke, the proprietors and possessors of L J and were summoned to parliament to do suit and service to their sov- [ •400 ] which were, in right of those est.ates, allowed to be *peers of the realm, ereign ; and, when the land was alienated, the dignity passed with it as appen- and were summoned to parliament to do suit and service to their sov­ dant. Thus the bishops still sit in the house of lords in right of succession to ereign; and, when the land was alienated, the dignity passed with it as appen­ certain ancient baronies annexed, or supposed to be annexed, to their episcopal dant. Thus the bishops still sit in the house of lords in right of succession to lands; (o) and thus, in 11 Hen. VI, the possession of the castle of Arundel was certain ancient baronies annexed, or supposed to be annexed, to their episcopal adjudged to confer an earldom on its possessor. (p) But afterwards, when alien- lands ; ( o) and th us, in 11 Hen. VI, the possession of the castle of Arundel WRB ations grew to be frequent, the dignity of peerage was confined to the lineage of adjudged to confer an earldom on its possessor. (p) But afterwards, when alien­ the party ennobled, and instead of territorial became personal. Actual proof of ations grew to be frequent, the dignity of peerage was confined to the lineage of a tenure by barony became no longer necessary to constitute a lord of parlia- the party ennobled, and instead of territorial became personal. Actual proof of ment ; but the record of the writ of summons to him or his ancestors was a tenure by barony became no longer necessary to constitute a lord of parlia­ admitted as a sufficient evidence of the tenure. ment; but the record of the writ of summons to him or his ancestors wa.s Peers are now created either by writ, or by patent: for those who claim by

prescription must suppose either a writ or patent made to their ancestors; admitted as a sufficient evidence of the tenure.

though by length of time it is lost. The creation by writ, or the king's letter, is Peers a.re now created either by writ, or by patent: for those who claim by

a summons to attend the house of peers, by the style and title of that barony, prescription must su;ppose either a writ or patent made to their ancestors; which the king is pleased to confer; that by patent is a royal grant to a subject though by length of time it is lost. The creation by writ, or the king's letter, is of any dignity and degree of peerage. The creation by writ is the more ancient a summons to attend the house of peers, by the style and title of that barony, way; but a man is not ennobled thereby, unless he actually take his seat in which the king is ple.a.aed to confer; that by patent is a royal grant to a subject the house of lords: (6) and some are of opinion that there must be at least two of any dignity and degree of peerage. The creation by writ is the more ancient writs of summons, and a sitting in two distinct'parliaments, to evidence an hered- way; but a man is not ennobled thereby, unless he actually take his seat in itary barony: (q) and therefore the most usual, because the surest, way is to the house of lords: (6) and some are of opinion that there must be at least two grant the dignity by patent, which enures to a man and his heirs, according to writs of summons, and a sitting in two distinct.parliaments, to evidence an hered­ the limitations thereof, though he never himself makes use of it (r) Yet it is itary barony: (q) and therefore the most usual, because the surest, way is to frequent to call up the eldest son of a peer to the house of lords by writ of grant the dignity by patent, which enures to a man and his heirs, accordin~ to summons in the name of his father's barony; because in that case there is no the limitations thereof, though he never himself makes use of it. (r) Yet it is danger of his children's losing the nobility in case he never takes his seat; for frequent to call up the eldest son of a peer to the house of lords by writ of they will succeed to their grandfather. (7) Creation by writ has also one advan- summons in the name of his father's barony; because in that case there is no tage over that by patent: for a person created by writ holds the dignity to him danger of his children's losing the nobility in case he never takes his seat; for F *4011 anc^ '"'* *^ri>> (8) without any words to that purport in the writ; but will ' -I in letters patent there must be words to direct the inheritance, else the they succeed to their lP°andfather. (7) Creation by writ has also one advan­

dignity enures only to the grantee for life, (s) For a man or woman may be tage over that by patent: tor a person created by writ holds the dignity to him created noble for their own lives, and the dignity not descend to their heirs at [ • 401 ] and Ms *hefr,q, (8) without any words to that purport in the writ; but all, or descend only to some particular heirs: as, where a peerage is limited to a in letters patent there must be words to direct the inheritance, else the man, and the heirs male of his body by Elizabeth, his present lady, and not to dignity ennres only to the grantee for life. (s) For a man or woman may be such heirs by any former or future wife. (9) created noble for their own lives, and the dignity not descend to their heirs at foj Glan. 1.7, c. 1. (p) Seld. Tit. of lion. b. 2, o. 9, I 6. (q) Whitlockg of Purl, eh. 144. all, or descend only to some particular heirs: as, where a peerage is limited to a

(r) Co. Lltt. 16. (I) Co. Lltt. 9,10. man, and the heirs male of his body by Elizabeth, his present lady, and not to (6) See the "Wharton Peerage case 12 CL and Fin. 295. such heirs by any former or future wife. (9)

(7) [And where the father's barony is limited by patent to him and the heirs male of his body, (o) and his eldest son is called up to the house of lords by writ with the title of this barony, Gian. 1. 7, c. i. (p) Seid. Tit. of Hon. b. 2, o. 9, t 6. (q) Whitlocks of Parl. ch. JU. (f') Co. Litt. ia. (1) Co. Litt. 9, io. the writ in this case will not create a fee or a general 'estate tail, so as to make a female

capable of inheriting the title, but upon the death of the father the two titles unite, or become one (6) See the Wbarton Peerage case 12 CL and Fin. 295. and the same. Case of the claim to the barony of Sidney of Penshurst disallowed Dom. Proc. 17 (7) [.And where the father's barony is limited by patent to him and tho heirs male of his bod~, June, 1782.] and his eldest son is called up to the house of lords b:v writ with the title of this baron)·, (8) [But every claimant of the title must be descended from the person first ennobled. 1 the writ in this case will not create a fee or a general ·estate tail, so IM! to make a female Woodd. 37.] capable of inheriting the title, but upon the death of the father the two titles unite, or become one

(9) [Peerage may be gained for life by act of law, as if a duke take a wife, she is a duchess in and the 8&1Ile. Case of the claim to the barony of Sidney of Penshurst disallowed Dom. Proc. 17

law by the intermarriage; so of a marquess, earl,

issue has a right to demand a seat in the house of peers. Skin. 441.] many d11ughu•r,;, it is Ro.ill the ldng t1hq.ll disposo of the dignity to which daughter he pleases.. Co. Litt. 1115, a. If a. person has been summoned as a baron t~> parliament by writ, and aft.er sit­ The practice of granting peerages for life was never common in England, and in a debate ting, die, leaving two or more dau~htem, who all die, one of them only leaving i~sue, a son, such in parliament on the subject in 1856, jt was stated that for four hundred years there was no ii;:;trn ha~ 11 right to demand a :>eat m the hcuse of pelll·s. Skin. 441.] 254 The priu:tice of grantia~ pmmigeR for life W88 never common in England, and in a debate in varliament ou the ~ubject in 1856, i~ was t1tated that for four hundred ye&r11 there was no 254 Generated for asbigham (University of Michigan) on 2013-04-29 18:51 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google OF THE C1vn, STATE. 401 Ghap. 12.] OF THE CIVIL STATE. 401 Chap. 12.]

Let us next take a view of a few of the principal incidents attending the no-

bility, exclusive of their capacity as members of parliament, and as hereditary Let us next take a view of a few of the principal incidents attending the no­ counsellors of the crown ; both of which we have before considered. And first bility, exclusive of their capacity as members of parliament, and aa hereditary we must observe, that in criminal cases a nobleman shall be tried by his peers. (10) counsellors of the crown ; both of which we have before considered. And first

The great are always obnoxious to popular envy: were they to be judged by the we must observe, that in criminal cases a nobleman shall be tried by his peers. (10) people, they might be in danger from the predjudiceof their judges ; and would, 'rhc great are always obnoxious to popular envy: were they to be judged by the moreover, be deprived of the privilege of the meanest subject, that of being people, they might be in danger from the predjudice of their judges; and would, tried by their equals, which is secured to all the realm, by magnet carta, c. 29. It moreover, be deprived of the privilege of the meanest subject, that of being is said, that this does not extend to bishops; who, though they are lords of par- tried by their equals, which is secured to all the realm, by magna carta, c. 29. It liament, and sit there by virtue of their baronies, which they hold jure ecclesice, is said, that this does not extend to bishops ; who, though they a.re lords of par­ yet are not ennobled in blood, and consequently not peers with the nobility, (t) (11) liament, and sit there by virtue of their baronies, which they hold .fure ecclesim, As to peeresses, there was no precedent for their trial when accused of treason yet are not ennobled in blood, and consequently not peers with the nobility. (t) (11) or felony, till after Eleanor, duchess of Gloucester, wife to the lord protector, As to peeresses, there was no precedent for their trial. when accused of treason was accused of treason, and found guilty of witchcraft, in ecclesiastical synod or felony, till after Eleanor, duchess of Gloucester, wife to the lord protector, through the intrigues of Cardinal Beaufort. This very extraordinary trial gave was accused of treason, and found guilty of witchcraft, in ecclesiastical synod occasion to a special statute, 20 Hen. VI, c. 9, which declares (u) the law to be, that

peeresses, either in their own right or by marriage, shall be tried before the same through the intrigues of Cardinal Beaufort. 'rhis very extraordinary trial gave

ftJUlaat. 30,31. fuj Moor, 769. 2 Inst. 60. 6Bep. 52. Stanndf. P. C. lfl». occasion to a special statute, 20 Hen. VI, c. 9, which declares ( u) the law to be, that instance on record in which any man had been admitted to a seat in the house of lords as a peeresses, either in their own right or by marriage, shall be tried before the same

peer for life. Many life peerages however had been created, principally by Charles II, and the first two Georges. In the year above mentioned it was proposed to increase the judicial (I) 3 Inst. 30, 31. (")Moor, 789. ~Hnat. 60. 6Rep. 62. Stanndt. P. C. IM.

strength of the house of peers by admitting some of the more eminent judges to seats there for

life only, and Sir James Parke received letters patent creating him Lord Wensleydale for life. But instance on record in which any man had been admitted to a seat in the house of lords 88 a the right to a seat under these letters was disputed, and the question referred to a committee of peer for life. Many life peerage" however had been created, principally by Charles II, and the house, upon whose report it was resolved, after full examination of precedents, that the first two Georges. In the year above mllntioned it was proposed to increase the judicial. " neither the letters patent, nor the letters patent with the usual writ of summons issued in strength of the house of peen1 by admitting some of the more eminent judges to seats there for pursuance thereof, can entitle the grantee to sit and vote in parliament." The crown was life only, and Sir J amea Parke received letters patent creating him Lord Wensleydale for life. But

forced to submit to this decision, and Lord "Wenslcydale soon after took his seat under a new the right t.o a seat under these letters wa11 disputed, and the question referred to a committee of the honse, upon whose report it wa.s resolved, after fnll examination of precedents, that patent, as hereditary peer. Later than this the lords resolved to empower the queen by stat- "neither the letters patent, nor the letters patent with the usual writ of RUnllllons istmed in ute to confer life-peerages with seats in parliament upon two judges, but the commons refused pur.:iuance thereof, cau entitle tho grantee to 11it and vote in parliament." The crown was their assent. See Hansard's Debates, 3d series, vol. 160, p. 1152, et seq.; id. vol. 16SJ, pp. 780, forced to Rnbmit to this dccbion, and Lord Wenslcyd&e l!Oon after took his seat under a new 899, 1059; id. vol. 163, pp. 428, 583, 613. Also 5 H. L. Gas. 958. patent, 1\8 her~ditary peer. ~ator th~ this t~e lords resolved. to empower the queen by stat­

(10) [But this is only in treason, felony, and misprision of the same. See magna charta, 9 ute to confer life-peerages \nth seat.~ m parliament upon two Judges, but the commons refused their nsKent. See Hammrd'"' Debates, 3d series, vol. 160, p. 1152, et seq.; id. vol. 162, pp. 780, Henry III, 29; 2 lust. 49. And a peer, it seems, cannot waive the trial by his peers. Kel. 56; 899, 1059; id. vol. 163, pp. 428, 58'J, 613. .Also 5 H. L. Ca.s. 9"J8. 1 State Trials 265; 2 Rush. 64. And, if he refuse to put himself on his peers, he may be (10) [Dut this i8 only in tree.."lou, felony, and misprision of the same. See magna charts, 9 dealt with as one who stands mute: yet if one who has a title to peerage be indicted and Henry III, 29; 2 lmit. 49. And a peer, 1t seems, cannot waive the trial by his peers. Kel. 56; arraigned as a commoner, and plead not guilty, and put himself upon the country, he cannot 1 State Trials 265 ; 2 Rush. 64. And, if he refuse to put himself on hit1 peeni, he may be afterwards suggest he is a peer, and pray trial by his peers. 2 Hawk. P. C. e. 44, s. 19; and dealt with as one who stands mute : yet if one who has a title to peerage be indicted and

see further, po-tt, book 4, 260. arraigned as a commoner, and plead not guilty, and put himself upon the country, he cannot afterwards suggest he is a ~eer, and pray trial by his peers. 2 Hawk. P. C. c. 44, s. 19 ; and In all misdemeanors, as libels, riots, perjury, conspiracies, &<•.. a peer is tried like a com- see further, po.~t, book 4, 260. moner by a jury: 3 Inst. 30; Hawk. P. C. b. 2, c. 44, ss. 13. 14. So in case of an appeal In a!l misd~meanors. as libels, riots, perjury, conspiracies, &c., a peer i.s tried like a com­ of felony he is to be tried by a jury : 9 Co. Rep. 30; 2 Inst. 49 ; and the indictments of peers moner by a )UfY: 3 Inst. 30; Hawk. P. C. b. 2, o. 44, se. 13. 14. So m case of an appeal for treason or felony, are to be found by freeholders of the county, and then the peers are to of felony he 1s to be tried by a jury: 9 Co. Rep. 30; 2 Imit. 49; and the indictments of peera plead before the high steward,

The privilege of ] 'rho privilege of peers does. not extend to foreign noblemen, who have no more privileges here than commoners. Co. Litt. 156 i 2 In.rt. 48; Lex. Com1t. 80, 81. „ -' peers d°es not extend to foreign noblemen, who have no more privileges The peel'\! of Scotland or Ireland had no privilege in this kingdom before the union; but, here than commoners. Co. Litt. 156; 2 Inst. 48; Lex. Const. 80, 81. by clause~ in the re8pective articles of union, the elected pellrs have all tho pririlcge:1 of peers The peers of Scotland or Ireland had no privilege in this kingdom before the union; but, of parliament; al~o all the re11t of the peers of Scotland and Ireland h1mi all the privilegeK by clauses in the respective articles of union, the elected peers have all the privileges of peers of the peerage of England, excepting oiily that of sitting and voting in parliament; and Im1h of parliament; also all the rest of the peers of Scotland and Ireland have all the privileges peers, who arc membel'll of the house of commons, are not entitled to the privilege of peerage. All lriilh peer ought not to serve upon a grand jury unless he is a member of the house of of the peerage of England, excepting only that of sitting and voting in parliament; and Irish commom1. Russell & Ryl. Cro. C. 117.] peers, who are members of the house of commons, are not entitled to the privilege of peerage. (11) (The bishops being summoned to parliament 88 peers might thereby have become enti­ All Irish peer ought not to serve upon a grand jury unless he is a member of the house of tled to trial by peera; but, unless bishops were to try biehopK, none othert1 are properly peera commons. Russell

(11) [The bishops being summoned to parliament as peers might thereby have become enti- that, although lords of parliament, they never sit upon matters of treason or of blood; and it

tled to trial by peers; but, unless bishops were to try bishops, none others are properly peers would be a strange anomaly, that upon a bishop all other lords of parliament, save bishops, "'·ho are also lords, might, in capital cases, pass judgment of death. Bishops Cranmer and .l!'ibher of bishops. These peers of lords are peculiarly designated spiritual. It may be observed were tried by jury.] · · · that, although lords of parliament, they never sit upon matters of treason or of blood; and it 255 would be a strange anomaly, that upon a bishop all other lords of parliament, save bishops,

who are also lords, might, in capital cages, pass judgment of death. Bishops Cranmer and Fibber

were tried by jury.]

255 Generated for asbigham (University of Michigan) on 2013-04-29 18:51 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google 401 OF THE CIVIL STATE. [Book L'

401 OF THE CIVIL STATE. [Book I. judicature as other peers of the realm. If a woman, noble in her own right, judicatme as other peers of the realm. If a woman, noble in her own right, marries a commoner, she still remains noble, (12) and shall be tried by her peers : marries a commoner, she still remains noble, (12) and shall be tried by her peers: but, if she be only noble by marriage, then, by a second marriage with a com-

moner, she loses her dignity ; for as by marriage it is gained, by marriage it is but, if she be only noble by marriage, then, by a secon

also lost, (v) (13) Yet if a duchess dowager marries a baron, she continues a moner, she loses her dignity; for as by marriage it is gained, by ma.rri~e it is

F *402 1 Duchess st^ > *or a^ *ne *n°bility are pares, and therefore it is no deg- also lost. (v) (13) Yet if a duchess dowager marries a baron, she contmues a.

L J radation. (w) A peer, or peeress, either in her own right or by marriage, [ •402 ] duchess still ; for all the •nobility are pares, and therefore it is no deg­ cannot be arrested in civil cases : (a;) and they have also many peculiar privi- radation. ( w) A peer, or peeress, either in her own right or by manfage, leges annexed to their peerage in the course of judicial proceedings. (14) A peer, cannot be arrested in civil cases: (x) and they have also many peculiar privi­ sitting in judgment gives not his verdict upon oath, like an ordinary juryman, leges annexed to their peerage in the course of judicial proceedings. (14) A peer, but upon his honour: (y) he answers also to bills in chancery upon nis honour, sitting in judgment gives not his verdict upon oath, like an ordinary juryman, and not upon his oath ; (z) but, when he is examined as a witness either in civil but upon his honour: (y) he answers also to bills in chancery upon his honour, or criminal cases, he must be sworn : (a) for the respect which the law shows to and not upon his oath; (zi but, when he is examined as a witne-ss either in civil the honour of a peer, does not extend so far as to overturn a settled maxim, that or criminal cases, he must be sworn: (a) for the respect which the law shows to in judicio non creditur nisi juratis. (b) The honour of peers is, however, so the honour of a peer, does not extend so far as to overturn a settled maxim, thti.t highly tendered by the law, that it is much more penal to spread false reports of in judicio non creditur ni&i juratis. (b) The honour of peers is, howenr, so them and certain other great officers of the realm, than of other men : scandal highly tendered by the law, that it is much more pen&! to spread false reports of against them being called by the peculiar name of scandalum magnatum, and them and certain other great officers of the realm, than of other men: scandal subjected to peculiar punishments by divers ancient statutes, (c) against them bein~ called by the peculiar name of scandalum magnatum, and A peer cannot lose his nobility, but by death or attainder; though there was

an instance in the reign of Edward the Fourth, of the degradation of George subjected to pecnbar punishments by divers ancient statutes. (c)

Nevile, duke of Bedford, by act of parliament, (d) on account of his poverty, A peer cannot lose his nobility, but by death or attainder; though there was

which rendered him unable to support his dignity, (e) But this is a singular an instance in the reign of Edward the Fourth, of the degradation of George instance, which serves at the same time, by having happened, to shew the power Nevile, duke of Bedford, by act of parliament, (d) on account of his poverty, of parliament; and by having happened but once, to shew how tender the which rendered him unable to support his dignity. (e) But this is a singular parliament hath been in exerting so high a power. It hath been said, indeed, (f) instance, which serves at the same time, by having happened, to shew the power that if a baron wastes his estate so that he is not able to support the degree, the of parliament; and by having happened but once, to shew how tender the king may degrade him : but it is expressly held by later authorities, (g) that a parliament ha.th been in exerting so high a power. It hath been said, indeed,(/) peer cannot be degraded but by act of parliament. that if a baron wastes his estate so that he is not able to support the degree, the T *403 1 *rJ1he commonalty, like the nobility, are divided into several degrees ; Icing may degrade him : but it is expressly held by later authorities, (g) that a. L J and, as the lords, though different in rank, yet all of them are peers in peer cannot be degraded but by act of parliament. respect of their nobility, so the commoners, though some are greatly superior to • ] "''l'he commonalty, like the nobility, are divided into several degrees; others, yet all are in law peers, in respect of their want of nobility, (h) [ 403 and, as the lords, though different in rank, yet all of them a.re peers in The first name of dignity, next beneath a peer, was anciently that of mdamef, respect of their nobility, so the commoners, though some are gre.atly superior to vice-domini, or valvasors : (i) who are mentioned by our ancient lawyers (/) as others, yet all are in law peers, in respect of their want of nobility. (/t) viri magnm dignitatis : and Sir Edward Coke (k) speaks highly of them. Yet The first name of dignity, next beneath a peer, was anciently that of vidame.s, they are now quite out of use ; and our legal antiquaries are not agreed upon

even their original or ancient office. vice-domini, or valvasors: (i) who are mentioned by our ancient lawyers (j) as

Now, therefore, the first personal dignity, after the nobility, is a knight of the viri magnm dign#atis: and Sir Edward Coke (k) speaks highly of them. Yet

order of St George, or oftlw garter; first instituted by Edward III, A. D. 1344. (?) they are now quite out of use; and our legal antiquaries are not agreed upon

Next, (but not till after certain official dignities, as privy-counsellors, the chan- even their original or ancient office. cellors of the exchequer and duchy of Lancaster, the chief justice of the king's Now, therefore, the first personal dignity, after the nobility, is a knigltt of the bench, the master of the rolls, and the other English judges,) follows a knight order of St Geor~e, or oftlw garter; first instituted by Edward III, A. D. 1344. (l)

(v) Dyer, 79. Co. Litt. 10. (w) 2 Inat. 80. (x) Finch. 1. 355. 1 Vcntr. 288. Next, (but not till after certain official dignities, as priv,Y-counsellors, the chan­ (y) 2 Inst. 49. (z) 1 P. Wms. 1*6 (a) Salk. 512. (b) Cro. Car. 64. cellors of the exchequer and duchy of Lancaster, the chief justice of the king's fcj Edw. I, c. 31. 2 Uic. II, st. 1, o. S. 12 Ric. II, o. 11. (d) 4 lust. 356. bench, the master of the rolls, and the other English judges,) follows a km'gll.t

(e) The premable to the act is remarkable : '• Forasmuch as oftentimes it is seen, that when any lord is (fJ) Dyer, 79. Co. Litt. lG. (w} 2 Inst. 60. (x} Finch. l . 3M. l Ventr. Zll8. called to high estate, and hath not convenient livelihood to support the same dignity, it induceth great pov- (fl) 2 Inst. •!l. (z) l P. Wms. H6 (a) Salk. 612. (b) Cro. Car. 6'. (c) Edw. I, c. St. 2 Uic. II, st. 1, c. IS. 12 Ric. II, o. 11. (d) t Inst. 366. erty and indigence, and causeth oftentimes grant extortion, embracery, and maintenance to be lu.l. to (e) The ~remable to the act ia remarkable : •· 1''or111mnch as oftentimes It is seen, that when any lord Is the great trouble 01 all such countries where such estate shall happen to be : therefore," *c. called to high estate, and hath not r,onveniont lirnlihood to support the same dignity, it lntluceth great_poy­ crty and Indigence, and causeth ol\entimes great extortion, embrace1·y. and malnteOAnce to had, &o (f) Moor. 678. (g) 12 Rep. 107. 12 Mod. 66. (kj 2 Inst. 29. (i) Camden, Britan. t. Online*. oo the jO"eat tron!Jle o(all such conntries where snch estate shall happen to be: theretbre," .te. (j) Bracton, I. I, c. 8. (k) 2 Inat. 667. (I) Seld. Tit. of Hon. 2, S, 41. ( f) Moor. 678. (g) 12 ReJ!. 107. 12 Mod. 66. (h) 2 Ins,. 29. ('J Camden, B"'4a. I. ~-

(12) [But she communicates no rank or title to her husband. Harg. Co. Litt. 326, b.] ( j) Bnulton, l. 1, c. 8. (k) 2 ln1t. 667. (l} 8eld. Tit. ot Hon. 2, ll, il.

(13) [Yet she is commonly called and addressed by the style and title which she bore before

her second marriage, but this is only by courtesy ; as the daughters of dukes, marquesses, and (12) [But ,;he communicates no rank or title to her husband. Har~. Co. Litt. 3-26, b.] (13) [Yet she is commonly called and addressed by the style and title which she bore before earls, are usually addressed by the title of 'lady, though in law they are commoners. her second marriage, but this is only by conrtesv ; as the daughters of dukes, marqu68888, and Dyer, 79.] earl.;i, sre usually addressed by the title of 'lady, though in law they are commoners. (14) [See Tidd, 8th ed. 194. This privilege does not protect them from attachments for not Dyer, 7U.] obeying the process of the courts : 1 Wils. 332 ; nor does it extend to peeresses by marnajre. (H) [See Tidd, 8th ed. 194. Thie pri".iloge does not prot;oot them from attachments foi::: not

if they afterwards intermarry with commoners. Co. Litt. 16. The servants of peers are liable obeying tbe process of the court.'!: 1 Wilt;. 332 ; nor docs 1t extend to peereBSeB by mazn.agc. if they afterwardB intennaITy with commoners. Co. Litt. 16. The servants of peers are liable to arrest. 10 Geo. Ill, c. 50. And see 1 Chit. Rep. 83. Peers of the realm cannot be bail. to arrest. 10 Geo. III, c. 50. .And see 1 Chit. Rep. tIB. PeenJ of the realm cannot be bail. 2 Marsh. 232. And see 1 D. and R. 126.] 2 Marsh. 23'2. And see 1 D. and R. 126.] 256 256 Generated for asbigham (University of Michigan) on 2013-04-29 18:51 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google Chap. 12.] OF THE CIVIL STATE. 408

banneret; who indeed by statutes 5 Eic. II, st. 2, c. 4, and 14 Ric. II, c. 11, is

ranked next after barons: and his precedence before the younger sons of

viscounts was confirmed to him by order of King James I, in the tenth year

of his reign. (»i) But, in order to entitle himself to this rank, he must have

been created by the king in person, in the field, under the royal banners, in time

of open war. («) Else he ranks after baronets, who are the next order; which

title is a dignity of inheritance, created by letters patent, and usually descendi-

ble to the issue male. It was first instituted by King James the First, A. D.

1611, in order to raise a competent sum for the reduction of the province of

Ulster in Ireland; (15) for which reason all baronets have the arms of Ulster

superadded to their family coat Next follow knights of the bath ; an order insti-

tuted by King Henry IV, *and revived by King George the First. They r ^ ,Q , -i

are so called from the ceremony of bathing the Knight before their crea- <- *

tion. The last of these inferior nobility are knights bachelors ; the most ancient

though the lowest, order of knighthood amongst us: (16) for we have an instance

(o) of King Alfred's conferring this order on his son Athelstan. The custom of

the ancient Germans was to give their young men a shield and a lance in the

great council: this was equivalent to the toga virilis oLthe Romans: before this

they were not permitted to bear arms, but were accounted as part of the father's

household; after it, as part of the community. (p) Hence, some derive the usage

of knighting, which has prevailed all over the western world, since its reduction

by colonies from those northejrn heroes. Knights are called in Latin equites

aurati: aurati, from the gilt spurs they wore; and equites, because they always

served on horseback: for it is observable, (q) that almost all nations call their

knights by some appellation derived from an horse. They are also called in our

law milites, because they formed a part of the royal army, in virtue of their

feudal tenures; one condition of which was, that every one who held a knight's

fee immediately under the crown, which in Edward the Second's time (r)

amounted to 20Z. per annum, was obliged to be knighted, and attend the king

in his wars, or fine for his non-compliance. The exertion of this prerogative,

as an expedient to raise money in the reign of Charles the First, gave great

offence; though warranted by law, and the recent example of Queen Elizabeth;

(17) but it was, by the statute 16 Car. I, c 16, abolished; and this kind of knight-

hood has, since that time, fallen into great disregard.

These, Sir Edward Coke says, (s) are all the names of dignity in this kingdom,

esquires and gentlemen being only names of worship. But before these last (t)

(m) Ibid. 2.11. 3. (Hj4Inst.fi. (o) Will. Malmsb. lib. 2. (p) Tac. de Aforib. Germ. 13.

('/} Uorad. ihiil. Co. l.itt. 74. (r) Stat. de MUU. 1 Edw. II. («) 2 Inst. 667.

(t) The rules of prenedence in England may be roilucetl to the following table : in which those marked *

are entitled to the runk here allotted them, by statute 31 Hen. VIII, c. 10 ; marked t, by statute 1 W. and

H. c. 21; marked II. by letters patent, 9,10, and 14 Jac. I, which see in Seld. Tit. of Hon. ii. 5, 46, and II.

11, 3 ; marked t. by ancient usage and established custom ; for which see. among others, Camdon'a Bri-

tannia, Tit. Ordinei. MUles's Catalogue of Honour, edit, kiln; and Chamberlayne's Present State of Eng

land, b. 3, ch. 3.

TABLE OF PRECEDENCE.

The king's children and grandchildren.

Lord Great Chamberlain. But 1

orotiirtn.

uncics.

Mve all peers of the!

Archbishop of Canterbury (18)

Lord Chancellor or Keeper, if a baron.

Archbishop of York.

Lord Treasurer l

Lord President of the Council, > if barons.

Lord Privy Seal, >

Lord Admiral! j

Lord Steward of the household

Lord Chamberlain of the house- 1

hold,

DokM.

Marquesses.

(15) [One hundred gentlemen advanced each one thousand pounds; for which this title was

conferred upon them. 2 Rap. 185, fo.]

(16) [There are also other orders of knights; as knights of the chamber; knights of the order

of St. John of Jerusalem; knights of Malta; knight marshal; knights of the Rhodes; knights

of the shire; knights templars; knights of the thistle, and knights of St. Patrick.]

(17) [Considerable fees accrued to the king upon the performance of the ceremony.] Generated for asbigham (University of Michigan) on 2013-04-29 18:51 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google

(18) [It is said, that before the conquest, by a constitution of Pope Gregory, the two arch-

bishops were equal in dignity, and in the number of bishops subject to then- authority; and that

"William the Conqueror thought it prudent to give precedence and superiority to the arch-

bishop of Canterbury; but Thomas, archbishop of York, was unwilling to acknowledge

his inferiority to Lanfranc, archbishop of Canterbury, and appealed to the pope, who referred

VOL. I.—33 357 405 405 OF THE CIVIL STATE. [Book I.

[Book I. OF THE CIVIL STATE. [ •405 ] the heralds rank all *colonels, sergeants at law, and doctors in the three r *^Qg -1 the heralds rank all *colonels, sergeants at law, and doctors in the three learned professions. •• J learned professions. [ •406 ] *Esquires and gentlemen a.re confounded together by Sir Edward T *406 1 *Esquires and gentlemen are confounded together by Sir Edward Coke, who observes, (u) that every esquire is a gentleman, and a gentle­ ' •* Coke, who observes, (u) that every esquire is a gentleman, and a gentle- man is defined to be one qui arma gerit, who bears coat armour, the grant of man is defined to be one qui arma c/erit, who bears coat armour, the grant of which adds gentility to a man's family: in like manner as civil nobility, among which adds gentility to a man's family: in like manner as civil nobility, among the Romans, was founded in the jus imaginum, or having the image of one an­ the Romans, was founded in the jus imaginum, or having the image of one an- ceator at least, who had borne some curule office. It is indeed a matter some­ cestor at least, who had borne some curule office. It is indeed a matter some-

what unsettled, what constitutes the distinction, or who is a real esquire ; for it what unsettled, what constitutes the distinction, or who is a real esquire; for it

is not an estate, however large, that confers this rank upon its owner. Camden, is not an estate, however large, that confers this rank upon its owner. Camden, who was himself a herald, distinguishes them the most accurately; and he reckons who was himself a herald, distinguishes them the most accurately; and he reckons up four sorts of them: (v) 1. The eldest sons of knights, and their eldest sons in up four sorts of them: (v) 1. The eldest sons of knights, and their eldest sons in perpetual succession : (w) 2. The eldest sons of younger sons of peers, and their perpetual succession: (w) 2. The eldest sons of younger sons of peers, and their eldest sons in like perpetual succession: both which species of esquires Sir eldest sons in like perpetual succession: both which species of esquires Sir Henry Spelman entitles armiqeri natalitii. (x) 3. Esquires created by the king's Henry Spelman entitleil armif,eri natalit-ii. (x) 3. Esquires created by the kin~s letters patent, or other investiture; (19) and their eldest sons. 4. Esquires by letters patent, or other investiture; (19) and their eldest sons. 4. Esquires by

t Dukes' eldest BODS. t Dnkee' eldeat 911118. llllaater of tbe Bolla. * Earls. * Baria. Chief Juetlce or tbe Comman Pleu.

J Marquesses' eldest sans. t Marqueaaea' eldeat Mn&. Chief Baron or the B1:ehNjuer. ! DuVleokeuen' younger eona. Judgea, and Barone of the Coif. t Dukes' younger sous. ta. Knlghta Bannel'1'ta, royal. t Barie' eldeet eona. Vleeounta' younger eona. · * VlcounU. t Marqneaaee' younlfer eonL Barona' younger 8011& i Earls' eldest son*. * Beoretaq of State, It a blabop. Baronet.. * Biabopo1 London. Knlghta Bannereta. t Marquesses' younger sons. * ---Durbam. Knighta or tbe Bath. I Winchester. t Knlghta BachelorL Secretary of State, If a bishop. * --- • Bl1hopL Baroneta' eldeat Min&. Bishop of London. * Secretary of State, if a baron. IKnlghta' eldeet aonL * BaronL Baronets' yonnger eona. Durham. f Speaker of the Home of CommonL Knight' a younger 8011& t LOrda Commlulonera of the Great Seal. Colonela. Winchester. t Vlaeounte' e ldeat aona. t 8erjeanta-at-law. I Bishops. t Earle' younger aonL i Docltol'L t Barona' eldeat aona. t Beqnlrea. Secretary of State, If a barou. Kulghta of the Garter. i Gentlemen. Privy Connaellora. t Yeomen. Barons. ChDncellor or the B1:chequer. i Tradeamen.

{Speaker of the House of Commons. Chancellor of the Duchy. t Arttllcel'L lChief Justice of the KlnK'a Rench. t Labourel'L [JO] Lords Commissioners of the Great Seal. • B. Married women ana widows are entitled to the same rank amoq each other, aa their hD8banda would respectively have borne between themeelvea, except auoh rank 18 merely profeuional or olllolal; and unmarried I Viscounts' eldest sons. women to the same rank aa their eldeat brothera would btiar among men, during the llvea of their tathera.

Earls' younger sous. (u) 2 Inst. 068. (ti) 2 Inst. 668. (ID) 2 Inst. 007. (ii:) GI088. 43.

Barons' eldest sons.

Knights of the Garter.

Privy Counsellors. the matter to the king and barom ; and in a council held at Windsor-castle, they decided in Chancellor of the Exchequer. favor of the archbishop of Canterbury. Godw. Comm. de Prmsul. 665.

Chancellor of the Duchy. But the archbishops of York lon~ afterwards refused to acquiesce in this decieion1 for bishop Master of the Rolls. Godwin relates a curiom:i and ludicrous struggle which took place in the reign ot Henry II,

Chief Justice of the Common Pleas. above one hundred years afterwards, between Roger, archbishoP. of York, and Richard arch­

Chief Baron of the Exchequer. bishop of Canterbury1 for the chair on the right hana of the pope s legate. lb. 79. Perhaps to this decision, and their former equality, we may refer the present distinction between them ; vis. : Judges, and Btirous of the Coif. that the archbil!ho_p of Canterbury is primate of all England, and the archbishop of York is pri­ Knights Bannerets, royal. me.to of England.] Viscounts' younger sons. (19) Now disused. Barons' younger sons. (20) The present order of precedence is as follows:

Baronets. The Prince of Wales. Dukes.

Knights Bannerets. The Sovereign'11 younger Eions and grandsons. Marquises. " " brothers. Dukes' eldest eons Knights of the Bath. " " nephews. Earls. i Knights Baehelors. " " uncles. Marquises' eldest eons • Baronets' eldest sons. .Archbishop of Canterbury. Dukes' youngest eons.

Knights' eldest sons. Lord Chancellor. Viscounts.

Baronets' younger sons. .Archbishop of York. Earl's eldest SOWi. " " .A.rm.agh. Marquises' younger sons, Knight's younger sons. " " Dubliri. Bi.shop of London. Colonels. Lord President of the Council, l if a baron. " " Durham. SerJeanU-at-law. Lord Privy See.I, S " " Winchester. I Doctor*. Lord Great Chamberlain, } above all Bi.shops, i Enquires. Earl M:a~hal, eers of Secretary of Stat.e, if a baron. Lord Steward of the household, . Barons. t Gentlemen, J . Lord Chamberlain of the pouse- d:greo;n Speaker of House of Clommona, i Yeomen. hold, ' ~r pf tbe Q0118!'~ol4, i Tradesmen. ')l;Q

» Artificers.

Labourers. [20]

.

Chief Justice of the King's Bench. .

. B. Married women and widows are entitled to the same rank among each other, as their husbands would Generated for asbigham (University of Michigan) on 2013-04-29 18:51 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google

respectively have borne between themselves, except such rank is merely professional or official ; and unmarried

•women to the same rank as their eldest brothers would bear among men, during the lives of their father*.

(u) 2 lust G68.

(r) 2 last. 668.

(10) 2 Inst. 607.

(z) Glow. 43.

the matter to the king and barons; and in a council held at "Windsor-castle, they decided in

favor of the archbishop of Canterbury. Godw. Comm. de Prfesul. 665.

But the archbishops of York long afterwards refused to acquiesce in this decision, for bishop

Godwin relates a curious and ludicrous struggle which took place in the reign of Henry II,

above one hundred years afterwards, between Roger, archbishop of York, and Richard arch-

bishop of Canterbury, for the chair on the right hand of the pope's legate. Ib. 79. Perhaps to

this decision, and their former equality, we may refer the present distinction between them; viz.:

that the archbishop of Canterbury is primate of all England, and the archbishop of York is pri-

mate of England.]

(19) Now disused.

(20) The present order of precedence ia as follows:

The Prince of "Wales. Dukes.

The Sovereign's younger sons and grandsons. Marquises.

Dukes' eldest sons

brothers.

" " nephews.

" " uncles.

Archbishop of Canterbury.

Lord Chancellor.

Archbishop of York.

" " Armagh.

" " Dublin.

Lord President of the Council,

Lord Privy Seal,

Lord Great Chamberlain,

Earl Marshal,

Lord Steward of the household,

Lord Chamberlain of the house-

hold,

Earls.

Marquises' eldest sons.

Dukes' youngest sons.

Viscounts.

Earl's eldest sons.

Marquises'younger sons.

Bishop of London.

" " Durham.

" " •Winchester.

Bishops.

, Secretary of State, if a baron,

peers of Barons *

their own Speaker of Houge of Commons,

degree. Treasurer pf the household,

f if a baron,

above all

258 Chap. 13.] MILITARY AND MARITIME STATES. 406 MILITARY AND MARITIME STATES. 406 virtue of their offices; as justices of the peace, and others who bear any office Chap. 13.]

of trust under the crown. To these may be added, the esquires of knights of the bath, each of whom constitutes three at his installation; and all foreign, virtue of their offices; as justices of the peace, and others who bear any office nay, Irish peers; for not only these, but the eldest sons of peers of Great Britain, of trust under the crown. To these may be added, the esquires of knights of though frequently titular lords, are only esquires in the law, and must be so the bath, each of whom constitutes three at his installation; and all forei~n, named in all legal proceedings, (y) As for gentlemen, says Sir Thomas Smith, (z) nay, Irish peers ; for not only these, but the eldest sons of peers of Great Britam, they be made good cheap in this kingdom: for whosoever studieth the laws though frequently titular lords, are only esquires in the law, and must be so of the realm, who studieth in the universities, who professeth the liberal sci- named in all legal lroceedings. (y) As for gentlemen, says Sir Thomas Smith, (z) ences, and, to be short, who can live idly, and without manual labor, and will they be made goo( cheap in this kingdom: for whosoever studieth the laws bear the port, charge, and countenance of a gentleman, he shall be called master, of the realm, who studieth in the universities, who professeth the liberal sci­ and shall be taken for a gentleman. (21) A yeoman is he that hath free land of ences, and, to be short, who can live idly, and without mauual labor, and will forty shillings by the year; who was aUciently thereby qualified to serve on juries, bear the port, charge, and countenance of a gentleman, he shall be called master, vote for knights of the *shire, and do any other act, where the law re- p ,Q~ -• and shall be taken for a gentleman. (21) A yeoman is he that hath free land of quires one that isprobus etlegalis homo, (a) ' "" ' ' forty shillings by the year; who was a1iciently thereby qualified to serre on juries, The rest of the commonalty are tradesmen, artificers, and labourers ; who, as vote for kni~hts of the *shire, and do any other act, where the law re- ] well as all others, must in pursuance of the statute 1 Hen. V, c. 5, be styled by [* 407

the name and addition of their estate, degree, or mystery, and the place to which quires one that is probus et legalis lwmo. (a)

they belong, or where they have been conversant, in all original writs of actions The rest of the commonalty are trades·men, artificers, and labourers~· who, as

personal, appeals, and indictments, upon which process of outlawry may be well as all others, must in pursuance of the statute 1 Hen. V, c. 5, be styled by awarded; in order, as it should seem, to prevent any clandestine or mistaken the name and addition of their estate, degree, or mystery, and the place to which outlawry, by reducing to a specific certainty the person who is the object of its they belong, or where they have been conversant, in all original writs of actions process. (22) personal, appeals, and indictments, upon which process of outlawry may be

CHAPTEK XIII. t awarded; in order, as it should seem, to prevent any clandestine or mistaken OF THE MILITARY AND MARITIME STATES. outlawry, by reducing to a specific certainty the person who is the object of its THE military state includes the whole of the soldiery; or such persons as are process. (22)

peculiarly appointed among the rest of the people, for the safeguard and defence

of the realm.

In a land of liberty it is extremely dangerous to make a distinct order of the

(y) 3 Inst. 30. 2 Inst. 667. (z) Uommonw. of Eng. b. 1, c. 20. (a) 2 Inst. 688.

Comptroller of the household. Knights banuerets royal. CHAPTER XIII.

if aster of the horse. Viscounts' younger sons.

Vice-Chamberlain of the household. Barons' younger sons. 0, THE MILITARY AND MARITIME STATES.

Secretary of State if not a baron. Baronets.

Viscounts' eldest sons. Knights bannerets. THE military state includes the whole of the soldiery-; or such persons as are Earls' younger sons. Knights of the bath. peculiarly appointed among the rest of the people, for the safeguard and defence Barons' eldest sons. Knights bachelors. of the realm. Knights of the garter. Baronets' eldest sons. In a land of liberty it is extremely dangerous to make a distinct order of the

Privy Councillors. Knights' oldest sons. (ti) 3 Inst. SO. 2 Inst. 867. (ri:) Uommonw. of Eng. b. 1, c. 20. (a) 2 Inst. 668. Chancellor of the Exchequer. Baronets' younger sons.

Chancellor of the Duchy of Lancaster. -^Knights' younger sons.

Chief Justice of the Queen's Bench. Sergeants at Law. Comptroller of the household. Knights bannerets royal. .MMter of the horse. · Viscounts' younger sons. Master of the Rolls. Masters in Lunacy. Vice-Chamberlain of the household. Barons' younger sons. Chief Justice of the Common Fleas. Doctors of Divinity. Secretary of State if not a baron. Baronets. Chief Baron of the Exchequer. " " Law. Viscounts' eldest sons. Knights bannerets.

Lords Justices. " Medicine. Earls' younger sons. Knights of the bath.

Vice Chancellors. Esquires. BaroDll' eldest sons. Knights bachelors. Kni1thts of the garter. Baronets' eldest sons. Judges of the Queen's Bench. Gentlemen. Privy Councillors. Knights' oldest sons. " " Common Pleas. Yeomen. Chancellor of the Exchequer. Baronets' younger SODS. Barons of the Exchequer. Tradesmen. Chancellor of the Duehy of Lancaster. '1rirlghts' younger BODS. Judge of the Court of Probate. Artificers. Chief Justice of the Queen's Bench. Sergeants at Law.

Commissioners in Bankruptcj. Laborers. Master of the Rolls. .Masters in Lunacy.

(21) [The eldest son has no prior claim to the degree of gentlemen; for it is the text ol Lit- Chief Justice of the Common PleBS. Doctors of Divinity. Chief Baron of the Exchequer. " " Law. tleton, that " every son is as great a gentleman as the eldest." Sect. 210.] Lords Justices. " Medicine. (22) Professor Christian adds in this place a somewhat lengthy note, which we may perhaps Vice Chancellors. EsquireR. with propriety omit. Its purpose is to show the unsoundness of a proposition that " has Judires of the Queen's Bench. Gentlemen. lately been industriously propagated," "in order to excite discontent and stir up rebellion it " Common PleBS. Yeomen.

against all good order and peaceful government," namely; '• that all men are by nature equal," Barons of the Exchequer. Tradesmen. Judge of the Court of Probate. Artificers. 259 Commis Joners in Bankruptcy. Laborers. (21) [The eldest son hlW no prior claim to the degree of gentlemen; for it is the text ot Lit­ tleton, that " every son is as great a ~entleman a.a the eldest." Sect. 210.] (2'l) Professor Christian adds in this place a somewhat lengthy note, which we may perbays with propriety omit. Its purpose is to show the unsoundness of a proposition that " has lately been industriously propagated/' "in order to excite discontent and stir up rebellion al!'llinst all 1mod order and neaceful .cmvemment.'' namelv : '·that all men are bv natnrA AnnA.J.I' Generated for asbigham (University of Michigan) on 2013-04-29 18:51 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google