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CHAPTER THE TWELFTH.
OF THE CIVIL STATE.
THE lay part of his majefty's fubjects, or fuch of the people as are not comprehended under the denomination of clergy, may be divided into three diftinct ftates, the civil, the military, and the maritime.
THAT part of the nation which falls under our firft and moft comprehenfive divifion, the civil ftate, includes all orders of men, from the higheft nobleman to the meaneft peafant; that are not included under either our former divifion, or clergy, or under one of the two latter, the military and maritime ftates: and it may fometimes include individuals of the other three orders; fince a nobleman, a knight, a gentleman, or a peafant, may become either a divine, a foldier, or a feaman.
THE civil ftate confifts of the nobility and the commonalty. Of the nobility, the peerage of Great Britain, or lords temporal, as forming (together with the bifhops) one of the fupreme branches of the legiflature, I have before fufficiently fpoken: we are here to confider them according to their feveral degrees, or titles of honour.
ALL
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ALL degrees of nobility and honour are derived from the king as their fountaina : and he may inftitute what new titles he pleafes. Hence it is that all degrees of honour are not of equal antiquity. Thofe now in ufe are dukes, marqueffes, earls vifcounts, and baronsb .
1. A duke, though it be with us, as a mere title of nobility, inferior in point of antiquity to many others, yet it is fuperior to all of them in rank; being the firft title of dignity after the royal familyc . Among the Saxons the Latin name of dukes, duces, is very frequent, and fignified, as among the Romans, the commanders or leaders of their armies, whom in their own language they called perecozad ; and in the laws of Henry I (as tranflated by Lambard) we find them called beretocbii. But after the Norman conqueft, which changed the military polity of the nation, the kings themfelves continuing for many generations dukes of Normandy, they would not honour any fubjects with that title, till the time of Edward III; who, claiming to be king of France, and thereby lofing the ducal in the royal dignity, in the eleventh year of his reign created his fon, Edward the black prince, duke of Cornwall: and many, of the royal family efpecially, were afterwards raifed to the fame honour. However, in the reign of queen Elizabeth, A. D. 1572e , the whole order became utterly extinct: but it was revived about fifty years afterwards by her fucceffor, who was remarkably prodigal of honours, in the perfon of George Villiers duke of Buckingham.
2. A marquefs, marchio, is the next degree of nobility. His office formerly was (for dignity and duty were never feparated by our anceftors) to guard the frontiers and limits of the kingdom;
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a 4 Inft. 363.
b For the original of thefe titles on the continent of Europe, and their fubfequent introduction into this ifland, fee Mr Selden's titles of honour.
c Camden. Brian. tit. ordines.
d This is apparently derived from the fame root as the German herrzagen, the antient appellation of dukes in that country. Seld. tit. hon. 2. 1. 22
c Camden. Britan. tit. ordines. Spelman. Gloff. 191.
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A a a
which
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which were called the marches, from the teutonic word, marche, a limit: as, in particular, were the marches of Wales and Scotland, while they continued to be enemies countries. The perfons who had command there, were called lords marchers, or marqueffes; whofe authority was abolifhed by ftatute 27 Hen. VIII. c. 27. though the title had long before been made a mere enfign of honour; Robert Vere, earl of Oxford, being created marquefs of Dublin, by Richard II in the eighth year of his reignf .
3. AN earl is a title of nobility fo antient, that it's original cannot clearly be traced out. Thus much feems tolerably certain: that among the Saxons they were called ealdormen, quafi elder men, fignifying the fame as fen'or or fenator among the Romans; and alfo fchiremen, becaufe they had each of them the civil government of a feveral divifion or fhire. On the irruption of the Danes, they changed the name to eorles, which, according to Camdeng , fignified the fame in their language. In Latin they are called comites ( a title firft ufed in the empire) from being the king's attendants; “a focietate nomen fumpferunt, reges enim tales “fibi affocianth .” After the Norman conqueft they were for fome time called counts, or countees, from the French; but they did not long retain that name themfelves, though their fhires are from thence called counties to this day. It is now become a mere title they having nothing to do with the government of the county; which, as has been more than once obferved, is now entirely devolved on the fheriff, the earl's deputy, or vice-comes. In all writs, and commiffions, and other formal inftruments, the king, when he mentions nay peer of the degree of an earl, always ftiles him “trufty and well beloved coufin:” an appellation as antient as the reign of Henry IV; who being either by his wife, his mother, or his fifters, actually related or allied to every earl in the kingdom, artfully and conftantly acknowleged that connexion in all his letters and other public acts; from whence the ufage has defcended to his fucceffors, though the reafon has long ago failed.
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f 2 Inft. 5.
g Ibid.
h Bracton. l. 1. c. 8. Fleta. l. 1 c. 5.
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4. THE
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4. THE name of vice-comes or vifcount was afterwards made ufe of as an arbitrary title of honour, without any fhadow of office pertaining to it, by Henry the fixth; when in the eighteenth year of his reign, he created John Beaumont a peer, by the name of vifcount Beaumont, which was the firft inftance of the kindi .
5. A baron's is the moft general and univerfal title of nobility; for originally every one of the peers of fuperior rank had alfo a barony annexed to his other titlesk . But it hath fometimes happened that, when an antient baron hath been raifed to a new degree of peerage, in the courfe of a few generations the two titles have defcended differently; one perhaps to the male defcendants, the other to the heirs general; whereby the earldom or other fuperior title hath fubfifted without a barony: and there are alfo modern inftances where earls and vidcounts have been crated without annexing a barony to their other honours: fo that now the rule does not hold univerfally, that all peers are barons. The original and antiquity of baronies has occafioned great enquiries among our Englifh antiquarians. The moft probable opinion feems to be, that they were the fame with our prefent lords of manors; to which the name of court baron, (which is the lord's court, and incident to every manor) gives fome countenance. It may be collected from king John's magna cartal , that originally all lords of manors, or barons, that held of the king in capite, had feats in the great council or parliament, till about the reign of that prince the conflux of them became fo large and troublefome, that the king was obliged to divide them, and fummon only the greater barons in perfon; leaving the fmall ones to be fummoned by the fheriff, and (as it is faid) to fit by reprefentation in another houfe; which gave rife to the feparation of the two houfes of parliamentm . By degrees the title came to be confined to the greater barons, or lords of parliament only; and there
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i 2 Inft. 5.
k 2 Inft. 5, 6.
l cap. 14.
m Gilb. Hift. exch. c. 3. Seld. tit. of hon. 2. 5. 21.
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A a a 2
were
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were no other barons among the peerage but fuch as were fumoned by writ, in refpect of the tenure of their lands or baronies, till Richard the fecond firft made it a mere title of honor, by conferring it on divers perfons by his letters patentn .
HAVING made this fhort enquiry into the original of our feveral degrees of nobility, I fhall next confider the manner in which they may be created. The right of peerage feems to have been originally territorial; that is, annexed to lands honors, caftles, manors, and the like the proprietors and poffeffors of which were (in right of thofe eftates) allowed to be peers of the realm, and were fummoned to parliament to do fuit and fervice to their fovereign: and, when the land was alienated, the dignity paffed with it as appendant. Thus the bifhops ftill fit in the houfe of lords in right of fucceffion to certain antient baronies annexed, or fuppofed to be annxed, to their epifcopal landso : and thus, in 11 Hen. VI, the poffeffion of the caftle of Arundel was adjudged to confer an carldom on it's poffefforp . But afterwards, when alienations grew to be frequent, the dignity of peerage was confined to the lineage of the party ennobled, and inftead of territorial became perfonal. Actual proof of a tenure by barony became no longer neceffary to conftitute a lord of parliament; but the record of the writ of fummons to them or their anceftors was admitted as a fufficient evidence of the tenure.
PEERS are now created either by writ, or by patent: for thofe who claim by prefcription muft fuppofe either a writ or patent made to their anceftors; though by length of time it is loft. The creation by writ, or the king's letter, is a fummons to attend the houfe of peers, by the ftile and title of that barony, which the king is pleafed to confer: that by patent is a royal grant to a fubject of any dignity and degree of peerage. The creation by writ is the more antient way; but a man is not ennobled thereby, unlefs he actually takes his feat in the houfe of
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n 1 Inft. 9. Seld. Tan. Angl. 2. §. 66.
o Glanv. l. 7. c. 1.
p Seld. tit. of hon. b. 2. c. 9. §. 5.
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lords:
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lords: and therefore the moft ufual, becaufe the fureft, way is to grant the dignity by patent, which enures to a man and his heirs according to the limitations thereof, though he never himfelf makes ufe of itq . Yet it is frequent to call up the eldeft fon of a peer to the houfe of lords by writ of fummons, in the name of his father's barony: becaufe in that cafe there is no danger of his children's lofing the nobility in cafe he never takes his feat; for they will fucceed to their grand-father. Creation by writ has alfo one advantage over that by patent: for a perfon crated by writ holds the dignity to him and his heirs, without any words to that purport in the writ; but in letters patent there muft be words to direct the inheritance, elfe the dignity enures only to the grantee for lifer . For a man or woman may be crated noble for their own lives, and the dignity not defcend to their heirs at all, or defcend only to fome particular heirs: as where a peerage is limited to a man, and the heirs male of his body by Elizabeth his prefent lady, and not to fuch heirs by any former of future wife.
LET us next take a view of a few of the principal incidents attending the nobility, exclufive of their capacity as members of parliament, and as he editary counfellors of the crown; both of which we have before confidered. And firft we muft obferve, that in criminal cafes, a nobleman fhall be tried by his peers. 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 meaneft fubjects, that of being tried by their equals, which is fecured to all the realm by magna carta, c. 29. It is faid, that this does not extend to bifhops; who, though they are lords of parliament, and fit there by virtue of their baronies which they hold jure ecclefiae, yet are not ennobled in blood, and confequently not peers with the nobilitygf . As to peerffes, no provifion was made for their trail when accufed of treafon or
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q Co. Litt. 16.
r Co. Litt. 9 16.
s 3 Inft. 30, 31.
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felony
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felony, till after Eleanor dutchefs of Gloucefter, wife to the lord protector, had been accufed of treafon and found guilty of witchcraft, in an ecclefiaftical fynod, through the intrigues of cardinal Beaufort. This very extraordinary trial gave occafion to a fpecial ftatute, 20 Hen. VI. c. 9. which enacts that peereffes either in their own right, or by marriage, fhall be tried before the fame judicature as peers of the realm. If a woman, noble in her own right, marries a commoner, fhe ftill remains noble, and fhall be tried by her peers: but if fhe be only noble by marriage, them by a fecond marriage, with a commoner, fhe lofes her dignity; for as by marriage it is gained, by marriage it is alfo loft. Yet if a duchefs dowager marries a baron, fhe continues a duchefs ftill; for all the nobility are pares, and therefore it is no degradationt . A peer, or peerefs (either in her own right or by marriage) cannot be arrefted in civil cafesu : and they have alfo many peculiar privileges annexed to their peerage in the courfe of judicial proceedings. A peer, fiting in judgment, gives not his verdict upon oath, like an ordinary juryman, but upon his honourw : he anfwers alfo to bills in chancery upon honour, and not upon his oathx ; but, when he is examined as a witnefs either in civil or criminal cafes, he muft be fworny : for the refpect, which the law fhews to the honour of a peer, does not extend fo far as to overturn a fettled maxim, that in judicio non creditur nifi juratisz . The honour of peers is however fo highly tendered by the law, that it is much more penal to fpread falfe reports of them, and certain other great officers of the realm, than of other men: fcandal againft them being called by the peculiar name of fcandalum magnatum; and fubjected to peculiar punifhment by divers antient ftatutesa .
APEER cannot lofe his nobility, but by death or attainder; hough there was an inftance, in the reign of Edward the fourth,
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t 2 Inft. 50.
u Finch. L. 355. 1 Ventr. 298.
w 2 Inft. 49.
x 1 P. Wms. 146.
y Salk. 512.
z Cro. Car. 64.
a 3 Edw. I. c. 34. 2 Ric. II. ft. 1. c. 5. 12 Ric. II. c. 11.
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of
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of the degradation of George Nevile duke of Bedford by act of parliamentb , on account of his poverty, which rendered him unable to fupport his dignityc . But this is a fingular inftance: which ferves at the fame time, by having happened, to fhew the power of parliament; and, by having happened but once, to fhew how tender the parliament hath been, in exerting fo high a power. It hath been faid indeedd, that if a baron wafte his eftate, fo that he is not able to fupport the degree, the king may degrade him: but it is expreffly held by later authoritiese , that a peer cannot be degraded but by act of parliament.
THE commonalty, like the nobility, are divided into feveral degrees; and, as the lords, though different in rankl, yet all of them are peers in refpect of their nobility, fo the commoners though fome are greatly fuperior to others, yet all are in law peers, in refpect of their want of nobilityf .
THE firft name of dignity, next beneath a peer, was antiently that of vidames, vice dominni, or valvaforsg : who are mentioned by our antient lawyersh as viri magnae dignitatis; and fir Edward Cokei fpeaks highly of them. Yet they are now quite out of ufe; and our legal antiquarians are not fo much as agreed upon their original or antient office.
NOW therefore the firft dignity after the nobility, is a knight of the order of St. George, or of the garter; firft inftituted by Edward III, A. D. 1344k . Next follows a knight banneret; who indeed by ftatutes 5 Ric. II. ft. 2. c. 4. and 14 Ric. II. c. 11. is
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b 4 Inft. 355.
c The preamble to the act is remarkable: “forafmuch as oftentimes it is feen, that “when any lord is called to high eftate, “and hath not convenient livelyhood to “fupport the fame dignity, it induceth “great poverty and indigence, and caufeth “otentimes great extortion, embracery, “and maintenanace to be had; to the great “trouble o all fuch counties where fuch “eftate fhall happen to be: therefore & c.”
d By lord chancellor Ellefmere. Moor. 678.
e 12 Rep. 107. 12 Mod. 56.
f 2 Inft. 29.
g Camden. Ibid.
h Bracton. l. 1. c. 8.
i 2 Inft. 667.
k Seld. tit. of hon. 2. 5. 41.
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ranked
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ranked next after barons: and that precedence was confirmed to him by order of king James I, in the tenth year of his reignl . But, in order to intitle himfelf to this rank, he muft have been created by the king in perfon, in the field, under the royal banners, in time of open warm . Elfe he ranks after baronets; who are the next order: which title is a dignity of inheritance, created by letters patent, and ufually defcendible to the iffue male. It was firft inftituted by king James the firft, A. D. 1611. in order to raife a competent fum for the reduction of the province of Ulfter in Ireland; for which reafon all baronets have the arms of Ulfter fuperadded to their family coat. Next follow knights of the bath; an order inftituted by king Henry IV, and revived by king George the firft. They are fo called from the ceremony of bathing, the night before their creation. The laft of thefe inferior nobility are knights bachelors; the moft antient, though the loweft, order of knighthood amongft us: for we have an inftancen of king Alfred's conferring this order on his fon Athelftan. The cuftom of the antient Germans was to give their young men a fhield 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 houfhold; after it, as part of the publico . Hence fome derive the ufage of knighting, which has prevailed all over the weftern world, fince it's reduction by colonies from thofe northern heroes. Knights are called in Latin equites aurati; aurati, from the gilt fpurs they wore; and equites, becaufe they always feryed on horfeback: for it is obfervablep , that almoft all nations call their knights by fome appellation derived from an horfe. They are alfo called in our law milites, becaufe they formed a part, or indeed the whole of the royal army, in virtue of their feodal tenures; one condition of which was, that every one who held a knights fee (which in Henry the fecond's timeq amounted to 20 l. per annum) was obliged to be knighted, and attend the
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l Seld. tit. hon. 2. 11. 3.
m 4 Inft. 6.
n Will. Malmfb. lib. 2.
o Tac. De morib. Germ. 13.
p Camden. ibid. Co. Litt. 74.
q Glanvil. l. 9. c. 4.
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king
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king in his wars, or fine for his non-compliance. The exertion of this prerogative, as an expedient to raife money in the reign of Charles the firft, gave great offence; though warranted by law, and the recent example of queen Elizabeth: but it was, at the reftoration, together with all other military branches of the feodal law, abolifhed; and this king of knighthood has, fince that time, fallen into great difregard.
THESE, fir Edward Coke faysr , are all the names of dignity in this kingdom, efquires and gentlement being only names of worfhip. But before thefe laft the heralds rank all colonels, ferjeants at law, and doctors in the three learned profeffions.
ESQUIRES and gentlemen are confounded together by fir Edward Coke, who obfervess , that every efquire is a gentleman, and a gentleman is defined 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 anceftor at leaft, who had borne fome curule office. It is indeed a matter fome-what unfettled, what conftitutes, the diftinction, or who is a real efquire: for it is not an eftate, however large, that confers this rank upon it's owner. Camden, who was himfelf a herald, diftinguifhes them the moft accurately; and he reckons up four forts of themT : 1. The eldeft fons of knights, and their eldeft fons, in perpetual fucceffionu. 2. The younger fons of peers, and their eldeft fons, in like perpetual fucceffion: both which fpecies of efquires fir H. Spelman entitles armigeri natalitiiw . 3. Efquires created by the king's letters patent, or other inveftiture; and their eldeft fons. 4. Efquires by virtue of thier offices; as juftices of the peace, and others who bear any office of truft under the crown. To thefe may be added the efquires of knights o the bath, each of whom conftitutes three at his inftallation; and all foreign,
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r 2 Inft. 667.
s 2 Inft. 668.
t Ibid.
u Inft. 667.
w Gloff. 43.
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B b b
nay,
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nay, Irifh peers; and the eldeft fons of peers of Great Britain, who, though generally titular lords, are only efquires in the law, and muft fo be named in all legal profceedingsx . As for gentlemen, fays fir Thomas Smithy, they be made good cheap in this kingdom: for whofoever ftudieth the laws of the realm, who ftudieth in the univerfities, who profeffeth liberal fciences, and (to be fhort) who can live idly, and without manual labour, and will bear the port, charge, and countenance of a gentleman, he fhall be called mafter, and fhall be taken for a gentleman. A yeoman is he that hath free land of forty fhillings by the year; who is thereby qualified to ferve on juries, vote for knights o the fhire, and do any other act, where the law requires one that is probus et legalis homox .
THE reft of the commonalty are tradefmen, artificers, and labourers: who (as well as all others) muft in purfuance of the ftatute 1 Hen. V. c. 5. be ftiled by the name and addition of their eftate, degree, or myftery, in all actions and other legal proceedings.
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x 3 Inft. 30. 2. Inft. 667.
y Common w. of Eng. Book 1. c. 20.
z .{FE}