Front Page Titles (by Subject) CHAPTER XII.: OF THE CIVIL STATE. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER XII.: OF THE CIVIL STATE. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF THE CIVIL STATE.
The lay part of his majesty’s subjects, or such of the people as are not comprehended 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. 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 fountain:(a) and he may institute what new titles he pleases.1 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
*[*3971. A duke, though he be with us, in respect of his title of nobility, inferior in point of antiquity to many others, yet is superior to all of 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 ;(d) and in the laws of Henry I., as translated by Lambard, we find them called heretochii. But after the Norman conquest, which changed the military polity of the nation, the kings themselves continuing for many generations dukes of Normandy, they would 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, ad 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 marches, or marquesses, whose authority was abolished by statute 27 Hen. VIII. c. 27, though the title had 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)
**398]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 irruption 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 societate nomen sumpserunt, reges enim 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 commissions, 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 connection 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 arbitrary 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 Beaumont a peer, by the name of viscount Beaumont, which was the first instance of the kind.(i)4
5. A baron’s is the most general and universal title of nobility; for originally every one of the peers of superior rank **399]had also a barony annexed to his other titles.(j)5 But it hath sometimes happened that, when an ancient 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.6 It may be collected from king John’s magna carta,(k) 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.(l) 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.(m)
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 which were, in right of those estates, allowed to be **400]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 appendant. 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:(n) and thus, in 11 Hen. VI. the possession of the castle of Arundel was adjudged to confer an earldom on its possessor.(o) But afterwards, when alienations 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; 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:(p)7 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.(q) 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.8 Creation by writ has also one advantage over that by patent: for a person created by writ holds the dignity to him and his **401]heirs,9 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.(r) 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.10
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.11 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 ecclesiæ, yet are not ennobled in blood, and consequently not peers with the nobility.(s)12 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 established synod, through the intrigues of cardinal Beaufort. This very extraordinary trial gave occasion to a special statute, 20 Hen. VI. c. 9, which declares(t) the law to be, that peeresses, either in their own right or by marriage, shall be tried before the same judicature as other peers of the realm.13 If a woman, noble in her own right, marries a commoner, she still remains noble,14 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.(u)15 Yet if a duchess dowager marries a baron, she continues a duchess still; for all the **402]nobility are pares, and therefore it is no degradation.(v) A peer, or peeress, either in her own right or by marriage, cannot be arrested in civil cases:(w) and they have also many peculiar privileges annexed to their peerage in the course of judicial proceedings.16 A peer, sitting in judgment, gives not his verdict upon oath, like an ordinary juryman, but upon his honour:(x) he answers also to bills in chancery upon his honour, and not upon his oath;(y) but, when he is examined as a witness either in civil or criminal cases, he must be sworn:(z)17 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.(a) 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 magnatnm, and subjected to peculiar punishments by divers ancient statutes.(b)
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,(c) on account of his poverty, which rendered him unable to support his dignity.(d) But this is a singular instance, which serves at the same time, by having happened, to show the power of parliament; and, by having happened but once, to show how tender the parliament hath been, in exerting so high a power. It hath been said indeed,(e) that if a baron wastes his estates so that he is not able to support the degree, the king may degrade him: but it is expressly held by later authorities,(f) that a peer cannot be degraded but by act of parliament.
*[*403The commonalty, like the nobility, are divided into several degrees; 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.(g)
The first name of dignity, next beneath a peer, was anciently that of vidames, vice-domini, or valvasors:(h) who are mentioned by our ancient lawyers(i) as viri magnæ dignitatis; and Sir Edward Coke(j) 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., ad 1344.(k) 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 banneret; who indeed by statutes 5 Ric. 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.(l) 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.(m) Else he ranks after baronets, who are the next order: which title is a dignity of inheritance, created by letters-patent, and usually descondible to the issue male. It was first instituted by king James the First, ad 1611, in order to raise a competent sum for the reduction of the province of Ulster in Ireland;18 for which reason all baronets have the arms of Ulster superadded to their family coat.19 Next follow knights of the bath; an order instituted by king Henry IV., **404]and revived by king George the First. They are so called from the ceremony of bathing the night before their creation.20 The last of these inferior nobility are knights bachelors;21 the most ancient, though the lowest, order of knighthood amongst us:22 for we have an instance(n) 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.(o) 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,(p) that almost all nations call their knights by some appellation derived from a horse.23 They are also called in our law milites, because they formed a part of the royal army, in virtue of their feodal 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(q) amounted to 20l. 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;24 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,(r) are all the names of dignity in this kingdom, esquires and gentlemen being only names of worship. But before these last(s) the heralds rank all *[*405colonels, serjeants at law, and doctors in the three learned professions.
*[*406Esquires and gentlemen are confounded together by Sir Edward Coke, who observes,(t) that every esquire 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 ancestor 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:(u) 1. The eldest sons of knights, and their eldest sons, in perpetual succession:(v) 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 armigeri natalitii.(w) 3. Esquires created by the king’s letters-patent, or other investiture;27 and their eldest sons. 4 Esquires by virtue of their offices; as justices of the peace, and others who bear any office of trust under the crown.28 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.(x)29 As for gentlemen, says Sir Thomas Smith,(y) 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 labour, and will bear the port, charge, and countenance of a gentleman, he shall be called master, and shall be taken for a gentleman.30 A yeoman is he that hath free land of forty shillings by the year; who was anciently thereby qualified to serve on juries, vote for knights of the **407]shire, and do any other act, where the law requires one that is probus et legalis homo.(z)
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;31 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.32
[(a) ] 4 Inst. 363.
[1 ] “No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” Const. U. S. art. 1, s. 9. “No State shall grant any title of nobility.” Ibid. s. 10.
[(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.
[2 ] A superior degree of nobility does not extinguish the inferior. 2 Inst. 6. Com. Dig. Dignity, b. 6.—Chitty.
[(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. Hon. 2, 1, 12.
[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 ardour 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, ad 1337.” Hen. Hist. vol. viii. p. 135, 8vo edition.—Chitty.
[(e) ] Camden, Britan. tit. Ordines. Spelman, Gloss. 191.
[(f) ] 2 Inst. 5.
[(g) ] Britan. tit. Ordines.
[(h) ] Bracton, l. 1, c. 8. Flet. l. 1, c. 5.
[(i) ] 2 Inst. 5.
[4 ] But this peer, if so he might be deemed, never sat in parliament, by reason that his creation was never recognised there. The experiment made to create him a peer without such assent failed, and it was not repeated; for the next patent-creation was of Sir John Cornwall, in whose patent occur these remarkable words:—“—ejusdem parliamenti de gratia sua speciali et ex certa scientia sua, ac de advisamento et consensu ducia Gloucester et cardinalis Winton ac cæterorum dominorum spiritualium et temporalium in parliamento.” Rot. Parl. 11 Hen. VI. p. 1, m. 16.—Chitty.
[(j) ] 2 Inst. 5, 6.
[5 ] 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 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 capite—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 further 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 Honour, 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. 3. 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 parliament; and, this right being confined solely to the king’s tenants, of consequence 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 archiepiscopos, episcopos, abbates, comites et majores barones regni sigillatim per literas nostras, et præterea faciemus summoneri in generali per vicecomites et ballivos nostros omnes alios, qui in capite tenent de nobis ad certum diem, &c. See Bl. Mag. Ch. Joh. p. 14. 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 honour 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 Ric. II., when the practice of creating peers by letters-patent first commenced.
In that year John de Beauchamp, steward of the household to Ric. 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.
The king’s prerogative of creating peers by patent may seem a great innovation, or a violation of the original principles of the system; yet it is one of those great changes which are produced at the first by a gentle deviation from the former practice. For though this prerogative was not granted to the king by the express authority of parliament, yet it was obtained by its acquiescence: for I have been assured by Mr. Townshend, the Windsor herald, a gentleman well acquainted with this subject, that patents of nobility in ancient times generally stated, either that the patent was granted by the assent of parliament, or, if granted in the vacation, they stated such special reasons why the peer was created, as it might be presumed would afterwards meet with the approbation of the parliament. See further Comyn’s Dig. Dignity, C. 4.—Christian.
[6 ] 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.—Christian.
[(k) ] Cap. 14.
[(l) ] Gilb. Hist. of Exch. c. 3. Seld. Tit. of Hon. 2, 5, 21.
[(m) ] 1 Inst. 9 Seld. Jan. Angl. 2, 66.
[(n) ] Glanv. l. 7, c. 1.
[(o) ] Seld. Tit. of Hon. b. 2, c. 9, 5.
[(p) ] Whitelocke of Parl. ch. 144.
[7 ] Lord Coke, Co. Litt. 16, b., is of opinion, that if a man summoned to parliament by writ once sit in the house of peers, though there be no words of inheritance in the writ, he gains a barony to him and his heirs. See this subject discussed in Sullivan’s Lectures, 190; and see Com. Dig. Dignity, C. 3. But in Mr. Christian’s ed. and 1 Woodd. 37, it is said that this doctrine of lord Coke is now understood to be erroneous, and that a creation by writ does not confer a fee simple in the title, but only an estate tail general.
When a lord is newly created, he is introduced into the house of peers by two lords of the same rank, in their robes, garter king at arms going before; and his lordship is to present his writ of summons, &c. to the chancellor, which being read, he is conducted to his place: and lords by descent, where nobility comes down from the ancestors, and is enjoyed by right of blood, are introduced with the same ceremony, the presenting of the writ excepted. Lex Constitutionis, 79.—Chitty.
[(q) ] Co. Litt. 16.
[8 ] 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 Pensnurst disallowed. Dom. Proc. 17 June, 1782.—Christian.
[9 ] But every claimant of the title must be descended from the person first ennobled See 1 Woodd. 37, where the opinion of lord Coke is controverted and shown to be erroneous; and Mr. Wooddeson observes, further, that a creation by writ confers only an estate tail general, there being in English law no peerages in fee simple. But lord Coke differs from himself; for, although he certainly states the law to be that a peerage descends to other than lineal heirs, (Co. Litt. 9,) yet, in the same book, 16, he adds, that the writ has no operation until the person named in it sits in parliament, and that thereby his blood is ennobled to him and his heirs lineal.—Chitty.
[(r) ] Co. Litt. 9, 16.
[10 ] 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 marquis, 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.
Though dignities of peerage are granted from the crown, yet they cannot be surrendered to the crown, except it be in order to new and greater honours, nor are they transferable unless they relate to an office; and notwithstanding there are instances of earldoms being transferred, and wherein one branch of a family sat in the house of peers by virtue of a grant from the other branch, particularly in the reigns of Henry III. and Edw. II., these precedents have been disallowed. Lex. Const. 85, 86, 87. And it seems now settled, that a peerage cannot be transferred (unless we consider the summoning of the eldest son of a peer by writ as a transfer of one of his father’s baronies) without the concurrence of parliament, at least in those cases where the noble personage has no barony to remain in himself, as, otherwise, on the transfer he would himself be deprived of his peerage, and be made ignoble by his own act. See Watkins’s Notes on Gilbert’s Tenures, note xi. on p. 11, and p. 361.—Chitty.
But the grant of a peerage for life merely does not make the grantee a lord of parliament. Wensleydale Peerage, Sept. 1855-56.—Kerr.
[11 ] But this is only in treason, felony, and misprision of the same. See magna carta, 9 Henry III. 29. 2 Inst. 49. And a peer, it seems, cannot waive the trial by his peers. Kel. 56. 1 Stat. Trial, 265. 2 Rush. 64. And if he refuses 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, 4 book 260.
In all misdemeanours, as libels, riots, perjury, conspiracies, &c., a peer is tried like a commoner, by a jury. 3 Inst. 30. Hawk. P. C. b. 2, ch. 44, sects. 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 Inst. 28.
Peers (Fortesc. 359) and members of parliament have no exemption from arrest in case of treason, felony, or actual breach of the peace, (4 Inst. 24, 5. 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 subpœna, 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 and 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. See the act of union, 39 & 40 Geo. III. c. 67. 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. A Roman Catholic peer has not the privilege of franking letters. 2 B. & P. 139.—Chitty.
[(s) ] 3 Inst. 30, 31.
[12 ] 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, in capital cases, pass judgment of death. Bishops Cranmer and Fisher were tried by jury. It is to the honour of this high order of men, that, through a long succession of its members, few, comparatively, have been exposed to public trial. Laud, who had miscalculated his times, and mistaken the men whom he had goaded into enmity, was, indeed, impeached.—Chitty.
[(t) ] Moor, 769. 2 Inst. 60. 6 Rep. 52. Staundf. P. C. 152.
[13 ] The last peeress tried was the late duchess of Kingston, for bigamy. See 20 H. St. Tr. 355.—Chitty.
[14 ] But she communicates no rank or title to her husband. Harg. Co. Litt. 326, b. There have been claims, and these are supported by authorities, by a husband after issue to assume the title of his wife’s dignity, and after her death to retain the same as tenant by the curtesy; but, from Mr. Hargrave’s statement of this subject, in Co. Litt. 29, b. n. 1, there is no probability that such a claim would now be allowed.—Christian.
[(u) ] Dyer, 79. Co. Litt. 16.
[15 ] 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. In a writ of partition brought by Ralph Haward and lady Anne Powes his wife, the court held that it was a misnomer, and that it ought to have been by Ralph Haward and Anne his wife, late wife of lord Powes deceased. Dyer, 79.—Christian.
[(v) ] 2 Inst. 50.
[(w) ] Finch, l. 355. 1 Ventr. 298.
[16 ] See Tidd, 8 ed. 194. This privilege is extended, by the act of union with Scotland, to Scotch peers and peeresses, (5 Anne, c. 8, art. 23; and see Fort. 165. 2 Stra. 990,) and, by the act of union with Ireland, to Irish peers and peeresses. 30 & 40 Geo. III. c. 67, art. 4; but see 7 Taunt. 679. 1 Moore, 410, S. C. But 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. & R. 126.
A subpœna is not in the first instance awarded out of chancery in a suit, but a letter from the lord chancellor, or lord keeper in lieu thereof, which if he does not answer, then a subpœna issues, then an order to show cause why a sequestration should not go; and if he still stands out, then a sequestration; and the reason is, because there is no process of contempt against his person. 2 Vent. 342.—Chitty.
[(x) ] 2 Inst. 49.
[(y) ] 1 P. Wms. 146.
[(z) ] Salk. 512.
[17 ] If he is examined as a witness in the high court of parliament, he must be sworn. The bishop of Oxford was sworn in the impeachment of lord Macclesfield, and lord Mansfield (then lord Starmont) in that of Mr. Hastings.—Christian.
Now, by the statute of 3 & 4 Gul. IV. c. 49, it is enacted that all Quakers and Moravians shall be permitted to make an affirmation instead of taking an oath, in all places and for all purposes whatsoever where an oath is or shall be required, either by common or statute law.
Declarations have been substituted, by the statute of 5 & 6 Gul. IV. c. 62, in many cases where oaths were formerly required.—Hoveden.
[(a) ] Cro. Car. 64.
[(b) ] 3 Edw. I. c. 34. 2 Ric. II. st. 1, c. 5. 12 Ric. II. c. 11.
[(c) ] 4 Inst. 355.
[(d) ] 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, and causeth oftentimes great extortion, embracery, and maintenance to be had; to the great trouble of all such countries where such estate shall happen to be; therefore,” &c.
[(e) ] Moor, 678.
[(f) ] 12 Rep. 107. 12 Mod. 56.
[(g) ] 2 Inst. 29.
[(h) ] Camden, Britan. t. Ordines.
[(i) ] Bracton, l. 1, c. 8.
[(j) ] 2 Inst. 667.
[(k) ] Seld. Tit. of Hon. 2, 5, 41.
[(l) ] Ibid. 2, 11, 3.
[(m) ] 4 Inst. 6.
[18 ] One hundred gentlemen advanced each one thousand pounds, for which this title was conferred upon them. 2 Rap. 185, fo.—Christian.
[19 ] The arms of Ulster are a hand gules, or a bloody hand, in a field argent.—Christian.
[20 ] Upon the conclusion of the continental war, the original constitution of this order became so modified and extended as to admit of naval or military members bearing a grand cross, and the name or title of military knight grand cross.—Chitty.
[21 ] The most probable derivation of the word “bachelor” is from bas and chevalier, an inferior knight, and thence Latinized into the barbarous word baccalaureus. Ducange, Bac.
The lowest graduates in the universities are styled bachelors, and were, till lately, addressed with sir before their surname; as in Latin they are still called domini. It is somewhat remarkable, that whilst this feudal word has long been appropriated to single men, another feudal term of higher dignity—viz., baron—should, in legal language, be applied to those who are married.—Christian.
[22 ] There are also other orders of knights, as knights of the chamber, knights of the order of St. John of Jerusalem, knights of Malta, the knight marshal, knights of the Rhodes, knights of the shire, knights templars, knights of the thistle, and knights of St. Patrick.—Chitty.
[(n) ] Will. Malmsb. lib. 2.
[(o) ] Tac. de Morib Germ. 13.
[(p) ] Camd. ibid. Co. Litt. 74.
[23 ] It does not appear that the English word knight has any reference to a horse; for knight, or cnih in the Saxon, signified puer, servus, or attendant. 2 Seld. Tit. Hon. c. 5, 33.—Christian.
[(q) ] Stat. de Milit. 1 Ed. II.
[24 ] Considerable fees accrued to the king upon the performance of the ceremony. Edward VI. and queen Elizabeth had appointed commissioners to compound with all persons who had lands to the amount of 40l. a year, and who declined the honour and expense of knighthood. Charles the First followed their example; upon which Mr. Hume artfully remarks that “nothing proves more plainly how ill disposed the people were to the measures of government, than to observe that they loudly complained of an expedient founded on positive statute, and warranted by such recent precedents.” Vol. vi. 296.—Christian.
[(r) ] 2 Inst. 667.
[(s) ] The rules of precedence in England may be reduced to the following table, in which those marked * are entitled to the rank here allotted them, by statute 31 Hen. VIII. c. 10; marked †, by statute 1 W. and M. c. 21, marked ∥, by letters-patent, 9, 10, and 14 Jac. I., which see in Seld. Tit. of Hon. ii. 5, 46, and ii. 11, 3; marked ‡, by ancient usage and established custom, for which see, among others, Camden’s Britannia, tit. Ordines; Milles’s Catalogue of Honour, edit. 1610; and Chamberlayne’s Present State of England, b. 3, ch. 3.
N.B. Married women and 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.
[(t) ] 2 Inst. 688.
[(u) ] 2 Inst. 688.
[(v) ] 2 Inst. 667.
[(w) ] Gloss. 43.
[27 ] This creation has long been disused. Esquires thus created were invested calcaribus argentatis, to distinguish them from the equites aurati. In the life of Chaucer, we are told that he was created scutifer to Edward III. Scutifer is the same as armiger; and our word esquire is derived from scutum, or the French escu, a shield.—Christian.
[28 ] I cannot but think that this is too extensive a description of an esquire, for it would bestow that honour upon every exciseman and custom-house officer: it probably ought to be limited to those only who bear an office of trust under the crown, and who are styled esquires by the king in their commissions and appointments; and all, I conceive, who are once honoured by the king with the title of esquire have a right to that distinction for life.—Christian.
[(x) ] 3 Inst. 30. 2 Inst. 667.
[29 ] It is rather remarkable that the learned judge should have forgotten to mention another class of esquires, who, upon all occasions, assume that distinction with a peculiar and an ostentatious degree of confidence: I mean our profession, or the gentlemen at the bar. This arises, perhaps, from an anxiety to retain what they know originally to have been a usurpation; for Sir Henry Spelman, with some spleen, informs us, certè altero hinc sæculo nominatissimus in patriâ jurisconsultus, ætate provectior, etiam munere gaudens publico et prædiis amplissimis generosi titulo bene se habuit; fortè, quod togatæ genti magis tunc conveniret civilis illa appellatio quam castrensis altera. Gloss. voc. Arm. But this length of enjoyment has established such a right to this distinction, that the court of Common Pleas refused to hear an affidavit read, because a barrister named in it was not called an esquire. 1 Wils. 244.—Christian.
It was mentioned at the time that the late Mr. Justice Heath refused knighthood, saying, “I am John Heath, Esquire, one of his majesty’s justices of the court of Common Bench, and so will die.”—Chitty.
[(y) ] Common w. of Eng. b. 1, c. 20.
[30 ] The eldest son has no prior claim to the degree of gentleman; for it is the text of Littleton, that “every son is as great a gentleman as the eldest.” Sect. 210.—Christian.
[(z) ] 2 Inst. 668.
[31 ] Informations in the nature of quo warranto are not within the statute of additions 1 Wils. 244.—Christian.
Now, however, no indictment, information, writ, or pleading, is vitiated by the omission of such addition. 14 & 15 Vict. c. 100.—Kerr.
[32 ] These are the ranks and degrees into which the people of England are divided, and which were created, and are preserved, for the reciprocal protection and support of each other. But in order to excite discontent, and to stir up rebellion against all good order and peaceful government, a proposition has lately been industriously propagated, viz.: that all men are by nature equal. If this subject is considered even for a moment, the very reverse will appear to be the truth, and that all men are by nature unequal. For though children come into the world equally helpless, yet in a few years, as soon as their bodies acquire vigour, and their minds and passions are expanded and developed, we perceive an infinite difference in their natural powers, capacities, and propensities; and this inequality is still further increased by the instruction which they happen to receive.
Independent of any positive regulations, the unequal industry and virtues of men must necessarily create unequal rights. But it is said that all men are equal because they have an equal right to justice, or to the possession of their rights. This is an insignificant, self-evident truth, which no one ever denied; and it amounts to nothing more than to the identical proposition, that all men have equal rights to their rights; for when different men have perfect and absolute rights to unequal things, they are certainly equal with regard to the perfection of their rights, or the justice that is due to their respective claims. This is the only sense in which equality can be applied to mankind. In the most perfect republic that can be conceived in theory, the proposition is false and mischievous: the father and child, the master and servant, the judge and prisoner, the general and common soldier, the representative and constituent, must be eternally unequal, and have unequal rights.
And where every office is elective, the most virtuous and the best qualified to discharge the duties of any office have rights and claims superior to others.
One celebrated philosopher has endeavoured to prove the natural equality of mankind, by observing that “the weakest has strength enough to kill the strongest, either by secret machinations, or by confederacy with others that are in the same danger with himself.” Hobbes’s Lev. c. xiii.
From such a doctrine, supported by such reasons, we cannot be surprised at the consequences when an attempt is made to reduce it to practice.
Subordination in every society is the bond of its existence: the highest and the lowest individuals derive their strength and security from their mutual assistance and dependence; as in the natural body, the eye cannot say to the hand, I have no need of thee; nor, again, the head to the feet, I have no need of you. Milton, though a favourer of a republic, was so convinced of the necessity of subordination and degrees, that he makes Satan, even when warring against heaven’s King, address his legions thus:—
True liberty results from making every higher degree accessible to those who are in a lower, if virtue and talents are there found to deserve advancement.
In this happy country, the son of the lowest peasant may rise by his merit and abilities to the head of the church, law, army, navy, and every department of the state. The doctrine that all men are, or ought to be, equal, is little less contrary to nature, and destructive of their happiness, than the invention of Procrustes, who attempted to make men equal by stretching the limbs of some, and lopping off those of others.—Christian.