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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

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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 noble- man, 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 sig- nified, 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 lib- erty, 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 after- wards 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 per- sons 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 king- dom, 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 supe- rior 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.
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