Chap. 1. of TECIVIL STATE.. 395 Ish Clerk Was Formerly Very Frequently in Holy Orders, and Some Are So to This Day

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Chap. 1. OF TECIVIL STATE.. 395 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 chosen by the inhabitants; 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- 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 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 it may sometimes include individuals of the other three orders; since a nobleman, a knight, a gentleman, or a peasant, may become either a divine, a soldier or a seaman. The civil state consists of the nobility and the commonalty. (1) Of the nobility, the peerage of Great Britain, or lords temporal, as forming, together with the bishops, one of the supreme branches of the legislature, I have before sufficiently spoken: we are here to consider them according to their several degrees, or titles of honour. All degrees of nobility and honour are derived from the king as their foun- tain: (a) and he may institute what new titles he pleases. Hence it is that all degrees of nobility are not of equal antiquity. Those now in use are dukes, marquesses, earls, viscounts and barons. (b) (2) *1. A duke, though he be with us, in respect of his title of nobility, *39,, inferior in point of antiquity to many others, yet is superior to all of [3 ] them in rank; his being the first title of dignity after the royal family. (c) Among the Saxons, the Latin name of dukes, duces, is very frequent, and signified, as among the Romans, the commanders or leaders of their armies, whom, in their own language, they called hepecoga; (d) and in the laws of Henry I, as translated by Lambard, we find them called keretochii. But after the Nor- man conquest, which changed the military polity of the nation, the kings themselves continuing for many generations dukes of Normandy, they would (i) Cro. Car. 589. (a) 4 Inst. 363. (b) For the original of these titles on the continent of Europe, and their subsequent introduction into this island, see Mr. Selden's Titles of Honour. (c) Camden, Britan. tit. Ordines. (d) This is apparently derived from the same root as the German hertzogen, the ancient appellation of dukes in that country. Seld. tit. lon. 2, 1, 12.

(1) A decided jealousy of titles, as inconsistent with our institutions and dangerous to liberty, has always appeared in America. By the constitution of the United States, both the national and state governments are forbidden to grant titles of nobility. Art. 1, § 9 and 10. 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 congress . A Any alien possessing a foreign title, or belonging to an order of nobility, is required to renounce the same before being admitted to citizenship. Act of Con- gress of April 14, 1802, 1 Story's Laws, 850. Perhaps the jealousy spoken of was never more forcibly illustrated than in the debates in congress at the time the government was first put in operation, respecting the proper formula of address to the president. See 4 Hildreth's U. 5. 59; Annals of Congress, vol. 1, pp. 247, 318; Benton's Abridgement of Debates, vol. 1, p. 11, et seq. (2) See further upon this subject Hallam's Middle Ages, ch. 2, part 1. 397 OF THE CIVIL STATE. [Book I. 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 Prince, duke of Cornwall: and many, of the royal family especially, were afterwards raised to the like honour. However, in the reign of Queen Elizabeth, A. D. 1572, (e) the whole order became utterly extinct; but it was revived about fifty years afterwards by her successor, who was remarkably prodigal of honours, in the person of George Villiers, duke of Buckingham. 2. A marquess, marchio, is the next degree of nobility. His office formerly was (for dignity and duty were never separated by our ancestors) to guard the frontiers and limits of the kingdom; which were called the marches, from the Teutonic word, marche, a limit: such as, in particular, were the marches of Wales and Scotland, while each continued to be an enemy's country. The persons who had command there were called lords marchers, or marquesses, whose authority was abolished by statute 27 Hen. VIII, c. 27, though the title bad long before been made a mere ensign of honour; Robert Vere, earl of Oxford, being created marquess of Dublin by Richard II, in the eighth year of his reign. (f) *3.An earl is a title of nobility so ancient, that its original cannot clearly be traced out. Thus much seems tolerably certain; that among the Saxons they were called ealdormen, quasi elder men, signifying the same 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- tion of the Danes, they changed the name to eorles, which according to Camden, (g) signified the same in their language. In Latin they are called comites (a title first used in the empire) from being the king's attendants: "a societale nomen sumpserunt, reges enirn tales sibi associant." (h) After the Norman conquest, they were for some time called counts or countees, from the French; but they did not long retain that name themselves, though their shires are from thence called counties to this day. The name of earls or comites is now become a mere title, they having nothing to do with the government of the county; which, as has been more than once observed, is now entirely devolved on the sheriff, the earl's deputy, or vice-comes. In writs and commis- sions, and other formal instruments, the king, when he mentions any peer of the degree of an earl, usually styles him "trusty and well-beloved cousin," an appellation as ancient as the reign of Henry IV, who being either by his wife, his mother, or his sisters, actually related or allied to every earl then in the kingdom, artfully and constantly acknowledged that connexion in all his letters and other public acts ; from whence the usage has descended to his successors, though the reason has long ago failed. 4. The name of vice-comes or viscount, was afterwards made use of as an ar- bitrary title of honour, without any shadow of office pertaining to it, by Henry the Sixth; when, in the eighteenth year of his reign, he created John Beau- mont a peer, by the name of Viscount Beaumont, which was the first instance of the kind.(i) 5. A baron's is the most general and universal title of nobility; for originally [*399] every one of the peers of superior rank *had also a barony annexed to his other titles.(k) (4) But it hath sometimes happened that, when an an- (e) Camden, Britan. tit. Ordines. Spelman, Gloss. 191. (f)2 Inst. 5. (g) Britan. tit. Ordines. 4) Bracton, 1. 1, c. 8. Flet. 1. 1, C.5. (i) 2 Inst. 5. (k)2 Inst. 5, 6.

(3)[Com. Dig. Dignity, B. 2; 9 Co. 49, a. This order of nobility was created before Edward assumed the title of king of France. Dr. Henry, in his excellent history of England, informs us, that "about a year before Edward III assumed the title of king of France, he introduced a new order of nobility, to inflame the military ardor and ambition of his earls and barons, by creating his eldest son, Prince Edward, duke of Cornwall. This was done with great solemnity in full parliament at Westminster, March 17. A. D. 1337."1 (4) [At the time of the conquest, the temporal nobility consisted only of earls and barons; and by whatever right the earls and the mitred clergy before that time might have attended the great council of the nation, it abundantly appears that they afterwards sat in the feudal parliament in the character of barons. It has been truly said, that, for some time after the 252 Chap. 12.] OF THE CIVIL STATE. 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 descendants, the other to the heirs general; whereby the earldom or other superior title hath subsisted without a barony; and there are also modern instances 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 barons. The original and antiquity of baronies has occasioned great inquiries 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 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,(1) that originally all lords of manors, or barons, that held of the king in capite, had seats in the great council or parliament; till about the reign of that prince the conflux of them became so large and troublesome, that the king was obliged to divide them, and summon only the greater barons in person; leaving the small ones to be summoned by the sheriff, and, as it is said, to sit by representation in another house; which gave rise to the separation of the two houses of parliament.(m) By degrees the title came to be confined to the greater barons, or lords of parliament only; and there were no other barons among the peerage but such as were summoned by writ, in respect of the tenure of their lands or baronies, till Richard the Second first made it a mere title of honour, by conferring it on divers persons by his letters patent.(n) (1) Cap. 14. (m) Gilb. Hist. of Exch. c. 3. Seld. Tit. of Hon. 2, 5. 21. 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 a right to a seat in parliament was entirely territorial, or depended upon the tenure of landed 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 might be after two or more subinfeudations. And it was also a general principle in the feudal system, that every tenant of land, or land owner, had both a right and obligation to attend the court of his immediate superior. Hence every tenant in eapte, i. e., the tenant of the king, was at the same time entitled and bound to attend the king's court or parliament, being the great court baron of the nation. It will not be necessary here to enlarge farther upon the original principles of the feudal system, and upon the origin of peerage; but we will briefly abridge the account which Selden has given in the second part of his Titles of Honor, c. 5, beginning at the 17th section, being perhaps the clearest and most satisfactory that can be found. He divides the time from the conquest into three periods: 1. From the conquest to the latter end of the reign of King John. 2. From that time to the 11th of Richard II. 8. From that period to the time he is writing, which may now be extended to the present time. In the first period, all who held any quantity of land of the king had, without distinction, a right to be summoned to pariament; and this right being confined solely to the king's tenants, of conse- quence all the peers of parliament during that period sat by virtue of tenure and a writ of summons. In the beginning of the second period, that is, in the last year of the reign of King John, a distinction, very important in its consequences (for it eventually produced the lower house of parliament), was introduced, viz.: a division of these tenants into greater and lesser barons: for King John, in his magna charta, declares, faciemus summoneri archepigeopos, episcopos, abates, comites et majores baronesregni sigillatimperliteras nostras, etprmtereafaciemus summoned in generaliper ricecomites et ballivos nostros omnes ales, qui in capite tenent de nobis ad certurm diem, &e. It does not appear that it ever was ascertained what constituted a greater baron, and it probably was left to the king's discretion to determine; and no great inconvenience could have resulted from its remaining indefinite, for those who had not the honor of the king's letter would have, what in effect was equivalent, a general summons from the sheriff. But, in this second period, tenure began to be disregarded, and persons were summoned to the parliament by writ, who held no lands of the king. This continued to be the case till the 11th of Richard II, when the practice of creating peers by letters patent first commenced. In that year John de Beauchamp, steward of the household to Richard II, was created by patent Lord Beauchamp, baron of Kidderminster in tail male ; and since that time peerages have been created both by writ and patent, without any regard to tenure or estate.] (5) [Lords of manors, who had granted to others, *by subinfeudation, part of that estate which they held of the king, would necessarily be barons; but it does not follow conversely that a baron was of necessity a lord of a manor, for the king's tenant, who retained all the estate granted him, and alienated no part of it, would certainly be as complete a baron as a lord of a manor.] 399 OF THE CIVIL STATE [Book L

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 right of peerage seems to have been originally territorial; that is, annexed to lands, honours, castles, manors, and the like, the proprietors and possessors of [*400] which were, in right .of those estates, allowed to be *peers of the realm, and were summoned to parliament to do suit and service to their sovereign; and, when the land was alienated, the dignity passed with it as appen- dant. Thus the bishops still sit in the house of lords in right of succession to certain ancient baronies annexed, or supposed to be annexed, to their episcopal lands: (o) and thus, in 11 Hen. VI, the possession of the castle of Arundel was adjudged to confer an earldom on its possessor.(p) But afterwards, when alien- ations grew to be frequent, the dignity of peerage was confined to the lineage of the party ennobled, and instead of territorial became personal. Actual proof of a tenure by barony became no longer necessary to constitute a lord of parliament; but the record of the writ of summons to him or his ancestors was admitted as a sufficient evidence of the tenure. 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; though by length of time it is lost. The creation by writ, or the king's letter, is a summons to attend the house of peers, by the style and title of that barony, which the king is pleased to confer; that by patent is a royal grant to a subject of any dignity and degree of peerage. The creation by writ is the more ancient way; but a man is not ennobled thereby, unless he actually take his seat in the house of lords: (6) and some are of opinion that there must be at least two writs of summons, and a sitting in two distinct parliaments, to evidence an hereditary barony: (q) and therefore the most usual, because the surest, way is to grant the dignity by patent, which enures to a man and his heirs, according to the limitations thereof, though he never himself makes use of it.(r) Yet it is frequent to call up the eldest son of a peer to the house of lords by writ of summons in the name of his father's barony; because in that case there is no danger of his children's losing the nobility in case he never takes his seat; for they will succeed to their grandfather.(7) Creation by writ has also one advan- tage over that by patent: for a person created by writ holds the dignity to him [*401] and his *heirs,(8) without any words to that purport in the writ; but in letters patent there must be words to direct the inheritance, else the dignity enures only to the grantee for life.(s) For a man or woman may be created noble for their own lives, and the dignity not descend to their heirs at all, or descend only to some particular heirs: as, where a peerage is limited to a man, and the heirs male of his body by Elizabeth, his present lady, and not to such heirs by any former or future wife.(9) (o) Glan. 1. 7, c. 1. (p) Seld. Tit. of Hon. b. 2, c. 9, § 5. (q) Whitelocks of Parl. ch. 144. (r) Co. Litt. 16. (8) Co. Litt. 9, 16.

(6) See the Wharton Peerage, 12 Cl. and F. 295. (7) [And where the father's barony is limited by patent to him and the heirs male of his body, and his eldest son is called up to the house of lords by writ with the title of this barony, 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 and the same. Case of the claim to the barony of Sidney of Penshurst disal- lowed. Dom. Proc. 17 June, 1782.] (8) [But every claimant of the title must be descended from the person first ennobled. 1 Woodd. 37.] (9) [Peerage may be gained for life by act of law, as if a duke take a wife, she is a duchess in law by the intermarriage; so of a marquess, earl, &c. Co. Litt. 16, b. Also the dignity of an earl may descend to a daughter, if there be no son, who shall be a countess; and if there are many daughters, it is said the king shall dispose of the dignity to which daughter he pleases. Co. Litt. 165, a. If a person has been summoned as a baron to parliament by writ, and after sitting, die, leaving two or more daughters, who all die, one of them only leaving issue, a son, such issue has a right to demand a seat in the house of peers. Skin. 441.] The practice of granting peerages for life was never common in England, and in a debate in parliament on the subject in 1856, it was stated that for four hundred years there was no 254 Chap. 12.] OF THE CIVIL ST _TE.

Let us next take a view of a few of the principal incidents attending the nobility, exclusive of their capacity as members of parliament, and as hereditary counsellors of the crown; both of which we have before considered. And first we must observe, that in criminal cases a nobleman shall be tried by his peers.(10) The great are always obnoxious to popular envy: were they to be judged by the people, they might be in danger from the prejudice of their judges; and would, moreover, be deprived of the privilege of the meanest subject, that of being tried by their equals, which is secured to all the realm, by magna carta, c. 29. It is said, that this does not extend to bishops; who, though they are lords of parliament, and sit there by virtue of their baronies, which they hold jure ecelesiw, yet are not ennobled in blood, and consequently not peers with the nobility.(t) (11) As to peeresses, there was no precedent for their trial when accused of treason or felony, till after Eleanor, duchess of Gloucester, wife to the lord protector, was accused of treason, and found guilty of witchcraft, in an ecclesiastical synod, through the intrigues of Cardinal Beaufort. This very extraordinary trial gave 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

(t) 3 Inst. 30, 31. (u) Moor, 769. 2 Inst. 60. 6 Rep. 52. Staundf. P. C. 152. instance on record in which any man had been admitted to a seat in the house of lords as a 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 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 the right to a seat under these letters was disputed, and the question referred to a committee of the house, upon whose report it was resolved, after full examination of precedents, that "neither the letters patent, nor the letters patent with the usual writ of summons issued in pursuance thereof, can entitle the grantee to sit and vote in parliament." The crown was forced to submit to this decision, and Lord Wensleydale soon after took his seat under a new patent, as hereditary peer. Later than this the lords resolved to empower the queen by statute to confer life-peerages with seats in parliament upon two judges, but the commons refused their assent. See Hansard's Debates, 3d series, vol. 160, p. 1152, et seq. ; id. vol. 162, pp. 780, 899, 1059; id. vol. 163, pp. 428, 583, 613. Also 5 H. L. Cas. 958. (10) [But this is only in treason, felony, and misprision of the same. See magna charta, 9 Henry 111, 29; 2 Inst. 49. And a peer, it seems, cannot waive the trial by his peers. Kel. 56 ; 1 State Trials 265; 2 Rush. 64. And, if he refuse to put himself on his peers, he may be dealt with as one who stands mute: yet, if one who has a title to peerage be indicted and arraigned as a commoner, and plead not guilty, and put himself upon the country, he cannot afterwards suggest he is a peer, and pray trial by his peers. 2 Hawk. P. C. c. 44, s. 19 ; and see further, post, book 4, 260. In all misdemeanors, as libels, riots, perjury, conspiracies, &c., a peer is tried like a commoner by a jury. 3 Inst. 30 ; Hawk. P. C. b. 2, c. 44, ss. 13, 14. So in case of an appeal of felony he is to be tried by a jury: 9 Co. Rep. 30; 2 Inst. 49; and the indictments of peers for treason or felony, are to be found by freeholders of the county, and then the peers are to plead before the high steward, &c. 1 Inst. 156 ; 3 id. 28. Peers (Fortese. 359) and members of parliament have no exemption from arrest in case of treason, felony, or actual breach of the peace. 4 Inst. 24, 25; 2 Wils. 159, 160; 11 Hargr. St. Tr. 305. But a peer menacing another person, whereby the latter fears his life is in danger, no writ of supplicavit, but a subpna issues, and when the peer appears, instead of surety, he only promises to keep the peace. 35 Hen. VI. The privilege of peers does not extend to foreign noblemen, who have no more privileges here than commoners. Co. Litt. 156; 2 Inst. 48; Lex. Const. 80, 81. The peers of Scotland or Ireland had no privilege in this kingdom before the union; but, by clauses in the respective articles of union, the elected peers have all the privileges of peers of parliament; also all the rest of the peers of Scotland and Ireland have all the privileges of the peerage of England, excepting only that of sitting and voting in parliament; and Irish peers, who are members of the house of commons, are not entitled to the privilege of peerage. An Irish peer ought not to serve upon a grand jury unless he is a member of the house of commons. Russell & Ryl. Cro. C. 117.] (11) [The bishops being summoned to parliament as peers might thereby have become entitled to trial by peers; but, unless bishops were to try bishops, none others are properly peers of bishops. These peers of lords are peculiarly designated spiritual. It may be observed that, although lords of parliament, they never sit upon matters of treason or of blood; and it would be a strange anomaly, that upon a bishop all other lords of parliament, save bishops, who are also lords, might, m capital cases, pass judgment of death. Bishops Cranmer and Fisher were tried by jury.] OF THE CIVIL STATE. [Book 1. judicature 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: but, if she be only noble by marriage, then, by a second marriage with a commoner, she loses her dignity; for as by marriage it is gained, by marriage it is also lost. (v) (13) Yet if a duchess dowager marries a baron, she continues a [*402] duchess still; for all the *nobility are pares, and therefore it is no degradation.(w) A peer, or peeress, either in her own right or by marriage, cannot be arrested in civil cases: (x) and they have also many peculiar privileges annexed to their peerage in the course of judicial proceedings.(14) A peer, sitting in judgment, gives not his verdict upon oath, like an ordinary juryman, but upon his honour: (y) he answers also to bills in chancery upon his honour, and not upon his oath; (z) but, when he is examined as a witness either in civil or criminal cases, he must be sworn: (a) for the respect which the law shows to the honour of a peer, does not extend so far as to overturn a settled maxim, that in judicio non creditur nisi juratis.(b) The honour of peers is, however, so highly tendered by the law, that it is much more penal to spread false reports of them and certain other great officers of the realm, than of other men: scandal against them being called by the peculiar name of scandalum magnatum, and subjected to peculiar punishments by divers ancient statutes.(c) 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 Nevile, duke of Bedford, by act of parliament,(d) on account of his poverty, which rendered him unable to support his dignity.(e) But this is a singular instance, which serves at the same time, by having happened, to shew the power of parliament; and, by having happened but once, to shew how tender the parliament hath been, in exerting so high a power. It hath been said, indeed, (.f ) that if a baron wastes his estate so that he is not able to support the degree, the king may degrade him: but it is expressly held by later authorities,(g) that a peer cannot be degraded but by act of parliament. [*403] *The commonalty, like the nobility, are divided into several degrees; [*403 and, as the lords, though different in rank, yet all of them are peers in respect of their nobility, so the commoners, though some are greatly superior to others, yet all are in law peers, in respect of their want of nobility. (h) The first name of dignity, next beneath a peer, was anciently that of vidames, vice-domini, or valvasors:(i) who are mentioned by our ancient lawyers (j)as viri magnce dignitatis: and Sir Edward Coke (k) speaks highly of them. Yet they are now quite out of use; and our legal antiquaries are not agreed upon even their original or ancient office. Now, therefore, the first personal dignity, after the nobility, is a knight of the order of St. George, or of the garter; first instituted by Edward III, A. D. 1344. (1) Next, (but not till after certain official dignities, as privy-counsellors, the chancellors of the exchequer and duchy of Lancaster, the chief justice of the king's bench, the master of the rolls, and the other English judges,) follows a knight (v) Dyer, 79. Co. Litt. 16. (W) 2 Inst. 50. () Finch. 1. 355. 1 Ventr. 298. (y) 2 Inst. 49. (z) 1 P. Wms. 146. (a) Salk. 512. (b) Cro. Car. 64. (c) Edw. I, c. 34. 2 Ric. II, st. 1, c. 5. 12 Ric. II, c. 11. (d) 4 Inst. 355. (e) The preamble to the act is remarkable: "Forasmuch as oftentimes It is seen, that when any lord is called to high estate and hath not convenient livelihood to support the same dignity, it induceth great poverty and Indigence, ana causeth oftentimes great extortion, embracery, and maintenance to be had, to the great tiouble of all such countries where such estate shall happen to be ;therefore," &c. (f) Moor. 678. (g) 12 Rep. 107. 12 Mod. 56. (X) 2 Inst. 29. (i) Camden, Britan. t. Ordines. (j) Bracton, 4,1, c. 8. (k) 2 Inst. 667. (1) Seld. Tit. of Hon. 2, 5, 41. (12) [But she communicates no rank or title to her husband. Harg. Co. Litt. 326, b.] (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 earls, are usually addressed by the title of lady, though in law they are commoners. Dyer, 79.] (14) [See Tidd, 8th ed. 194. This privilege does not protect them from attachments for not obeying the process of the courts: 1 Wils. 332; nor does it extend to peeresses by marriage, if they afterwards intermarry with commoners. Co. Litt. 16. The servants of peers are liable to arrest. 10 Geo. III, c. 50. And see 1 Chit. Rep. 83. Peers of the realm cannot be bail. 2 Marsh. 232. And see 1 D. and R. 126.] 256 Chap. 12.] OF THE CrvIL STATE. banneret; who indeed by statutes 5 Ric. II, st. 2, c. 4, and 14 Rie. 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.(m) 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.(n) Else he ranks after baronets, who are the next order: which title is a dignity of inheritance, created by letters patent, and usually descendible 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 instituted by King Henry IV, *and revived by King George the First. They are so [*4041 called from the ceremony of bathing the night before their creation. L 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 of the 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 northern 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 201. 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 knighthood 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) (i) Ibid. 2, 11. 3. (n) 4 Inst. 6. (o) Will. Malmsb. lib. 2. (p) Tac. de Morib. Germ. 13. q Camd. ibid. Co. Litt. 74. (r) Stat. de Milit. 1 Ed. I. (s) 2 Inst. 667. () The rules of precedence in England may be reduced to the following table: in which those marked * ari entitled to the rank here allotted them, by statute 31 Hen. VIHI, c. 10; marked t, by statute 1 W. and M. c. 21; iarked I, by letters patent 9, 10, and 14 Jac. I, which see in Seld. Tit. of Hon. ii. 5, 46, and ii. 11, 3; marked $, ancient usage and estalished custom; for which see, among others, Camden's Britannia, nSt. Ordine les's Catalogue of Honour, edit. 1610; and Chamberlayne's Present State of England, b. 3, ch. 3. TABLE OF PRECEDENCE. * The king's children and grandchildren. * Lord Great Chamberlain. But • brethren, see private stat. 1 Geo. I, c. 3, * uncles. * Lord High Constable, 1 • nephews. * Lord Marshal, Labove all peers of "" LordArchbishop Chancellor of Canterbury or Keeper, (18).if a baron. * Lord StewardAdmiral, ofI the Household, their own degree. " Archbishop of York. * Lord Chamberlain of the House- * Lord Treasurer, hold, • Lord President of the Council, if barons. * Dukes. • Lord Privy Seal, * 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.] (18) [It is said, that before the conquest, by a constitution of Pope Gregory, the two archbishops were equal in dignity, and in the number of bishops subject to their authority; and that William the Conqueror thought it prudent to give precedence and superiority to the archbishop 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.-33 257 405 OF THE CIvIL STATE. [Book I. [*405] the heralds rank all *colonels, sergeants at law, and doctors in the three learned professions. ['406] *Esquires and gentlemen are confounded together by Sir Edward Coke, who observes,(u) that every esquire is a gentleman, and a gentleman is ( efined to be one qui arma gerit, who bears coat armour, the grant of 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- cestor at least, who had borne some curule office. It is indeed a matter somewhat 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, 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 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 Henry Spelman entitles armigerinatalitiz.(x) 3. Esquires created by the king's letters patent, or other investiture; (19) and their eldest sons. 4. Esquires by $ Dukes' eldest sons. I Master of the Rolls. * Earls. I Chief Justice of the Common Pleas. t Marquesses' eldest sons. 0 Chief Baron of the Exchequer. Dukes' younger sons. Judges, and Barons of the Coil. Viscounts. Knights Bannerets, royal. Earls' eldest sons. Viscounts' younger sons. Marquesses' younger sons. Barons' younger sons. Secretary of State, if a bishop. I Baronets. Bishop of London. 0 Knights Bannerets. - Durham. t Knights of the Bath. * Winchester. t Knights Bachelors. * Bishops. 5 Baronets' eldest sons. * Secretary of State, if a baron. g Knights' eldest sons. * Barons. r Baronets' younger sons. t Speaker of the House of Commons. I Knight's younger sons. t Lords Commissioners of the Great Seal. Colonels. t Viscounts' eldest sons. * Serjeauts-at-law. Earls' younger sons. : Doctors. Barons' eldest sons. $ Esquires. n Knights of the Garter. Gentlemen. I Privy Counsellors. Yeomen. I Chancellor of the Exchequer. Tradesmen. | Chancellor of the Duchy. Artificers. C Chief Justice of the King's Bench. Labourers. (20) N. B.-Married women an widows are entitled to the same rank among each other, as their husbands would 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 fathers. (u) 2 Inst. 668. (v) 2 Inst. 668. (w) 2 Inst. 667. (.) Gloss. 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 Presul. 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, archbishop of Canterbury, for the chair on the right hand of the pope's legate. 1b. 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 primate of England.] (19) Now disused. (20) The present order of precedence is as follows: The Prince of Wales. Dukes. The Sovereign's younger sons and grandsons. Marquises. " " brothers. Dukes' eldest sons. " " nephews. Earls. i i uncles. Marquises' eldest sons. Archbishop of Canterbury. Dukes' youngest sons. Lord Chancellor. Viscounts. Archbishop of York. Earl's eldest sons. " Armagh. Marquises'_younger sons. " " Dublin. Bishop of London. Lord President of the Council, . " " Durham. Lord Privy Seal, if a baron. ,, " Winchester. LodSwrdlofthLord Great Chamberlain, hoshl abovepeoe ofall Bishops.ar LordEarl Marshal,Steward of the household, peers-- Barons.Secretary of State, If a baron. Lord Chamberlain of the house- their own Speaker of House of Commons. hold, degree. Treasurer of the household. Chap. 13.] MILITARY AID MARITIME STATES. 406 virtue of their offices; as justices of the peace, and others who bear any office 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, nay, Irish peers; for not only these, but the eldest sons of peers of Great Britain, though frequently titular lords, are only esquires in the law, and must be so named in all legal proceedings.(y) As for gentlemen, says Sir Thomas Smith,(z) they be made good cheap in this kingdom: for whosoever studieth the laws of the realm, who studieth in the universities, who professeth the liberal sciences, and, to be short, who can live idly, and without manual labor, and will bear the port, charge, and countenance of a gentleman, he shall be called master, and shall be taken for a gentleman.(21) A yeoman is he that hath free land of forty shil- lings by the year; who was anciently thereby qualified to serve on juries, vote for knights of the *shire, and do any other act, where the law requires [*407] one that is probus et legalis homo.(a) The rest of the commonalty are tradesmen, artificers, and labourers; who, as well as all others, must in pursuance of the statute 1 Hen. V, c. 5, be styled by the name and addition of their estate, degree, or mystery, and the place to which they belong, or where they have been conversant, in all original writs of actions personal, appeals, and indictments, upon which process of outlawry may be awarded; in order, as it should seem, to prevent any clandestine or mistaken outlawry, by reducing to a specific certainty the person who is the object of its process.(22)

CHAPTER XIII. OF THE MILITARY AND MARITIME STATES. The military state includes the whole of the soldiery; or such persons as are 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) Commonw. of Eng. b. 1, e. 20. (a) 2 Inst. 668.

Comptroller of the household. Knights bannerets royal. Master of the horse. Viscounts' younger sons. Vice-Chamberlain of the household. Barons' younger sons. Secretary of State if not a baron. Baronets. Viscounts' eldest sons. Knights bannerets. Earls' younger sons. Knights of the bath. Barons' eldest sons. Knights bachelors. Knights of the garter. Baronets' eldest sons. Privy Councillors. Knights' eldest sons. 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. Master of the Rolls. Masters in Lunacy. Chief Justice of the Common Pleas. Doctors of Divinity. Chief Baron of the Exchequer. " " Law. Lords Justices. " " Medicine. Vice Chancellors. Esquires. Judges of the Queen's Bench. Gentlemen. " " Common Pleas. Yeomen. Barons of the Exchequer. Tradesmen. Judge of the Court of Probate. Artificers. Commissioners in Bankruptcy. Laborers. (21) [The eldest son has no prior claim to the degree of gentlemen; for it is the text of Littleton, that "everr son is as great a gentleman as the eldest." Sect. 210.] (22) Professor Christian adds in this place a somewhat len thy note, which we may perhaps 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 against all good order and peaceful government," namely; "that all men are by nature equal." 259