Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
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, or 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 honor.
ALL degrees of nobility and honor are derived from the king as their fountain:1 and he may institute what new titles he pleases. Hence it is that all degrees of honor are not of equal antiquity. those now in use are dukes, marquesses, earls viscounts, and barons.2
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 superior to all of them in rank; being the first title of dignity after the royal family.3 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 penetoza;4 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 honor any subjects with that title, till the time of Edward III; who, claiming to be king of France, and thereby losing the ducal in the royal dignity, 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 same honor. However, in the reign of queen Elizabeth, A. D. 1572,5 the whole order became utterly extinct: but it was revived about fifty years afterwards by her successor, who was remarkably prodigal of honors, 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: as, in particular, were the marches of Wales and Scotland, while they continued to be enemies countries. 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 had long before been made a mere ensign of honor; Robert Vere, earl of Oxford, being created marquess of Dublin, by Richard II in the eighth year of his reign.6
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 sen’or 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,7 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.”8 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. 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 observed, is now entirely devolved on the sheriff, the earl’s deputy, or vice-comes. In all writs, and commissions, and other formal instruments, the king, when he mentions any peer of the degree of an earl, always stiles 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 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 honor, 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.9
5. A baron’s is the most general and universal title of nobility; for originally every one of the peers of superior rank had also a barony annexed to his other titles.10 But it has sometimes happened that, when an ancient baron has 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 has subsisted without a barony: and there are also modern instances where earls and viscounts have been crated without annexing a barony to their other honors: so that now the rule does not hold universally, that all peers are barons. The original and antiquity of baronies has occasioned great inquiries among our English antiquarians. 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. It may be collected from king John’s magna carta,11 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.12 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 honor, by conferring it on diverse persons by his letters patent.13
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 honors, castles, manors, and the like the proprietors and possessors of 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 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:14 and thus, in 11 Hen. VI, the possession of the castle of Arundel was adjudged to confer an earldom on its possessor.15 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 them or their 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 stile 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 takes 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:16 and therefore the most usual, because the surest, way is to grant the dignity by patent, which inures to a man and his heirs according to the limitations thereof, though he never himself makes use of it.17 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 grand-father. Creation by writ has also one advantage over that by patent: for a person 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 must be words to direct the inheritance, else the dignity inures only to the grantee for life.18 For a man or woman may be crated 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 of future wife.
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 counselors 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. 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 subjects, 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 ecclesiae, yet are not ennobled in blood, and consequently not peers with the nobility.19 As to peeresses, no provision was made for their trail when accused of treason or felony, till after Eleanor duchess of Gloucester, wife to the lord protector, had been 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 enacts that peeresses either in their own right, or by marriage, shall be tried before the same judicature as peers of the realm. If a woman, noble in her own right, marries a commoner, she still remains noble, and shall be tried by her peers: but if she be only noble by marriage, them by a second marriage, with a commoner, she loses her dignity; for as by marriage it is gained, by marriage it is also lost. Yet if a duchess dowager marries a baron, she continues a duchess still; for all the nobility are pares, and therefore it is no degradation.20 A peer, or peeress (either in her own right or by marriage) cannot be arrested in civil cases:21 and they have also many peculiar privileges annexed to their
peerage in the course of judicial proceedings. A peer, siting in judgment, gives not his verdict upon oath, like an ordinary juryman, but upon his honor:22 he answers also to bills in chancery upon honor, and not upon his oath;23 but, when he is examined as a witness either in civil or criminal cases, he must be sworn:24 for the respect, which the law shows to the honor of a peer, does not extend so far as to overturn a settled maxim, that in judicio non creditur nisi juratis.25 The honor 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 punishment by diverse ancient statutes.26
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,27 on account of his poverty, which rendered him unable to support his dignity.28 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 has been, in exerting so high a power. It has been said indeed,29 that if a baron waste 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,30 that a peer cannot be degraded but by act of parliament.
THE 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.31
THE first name of dignity, next beneath a peer, was anciently that of vidames, vice domini, or valvasors:32 who are mentioned by our ancient lawyers33 as viri magnae dignitatis; and Sir Edward Coke34 speaks highly of them. Yet they are now quite out of use; and our legal antiquarians are not so much as agreed upon their original or ancient office.
NOW therefore the first dignity after the nobility, is a knight of the order of St. George, or of the garter; first instituted by Edward III, A. D. 1344.35 Next 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 that precedence was confirmed to him by order of king James I, in the tenth year of his reign.36 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.37 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; 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 called from the ceremony of bathing, the night before their creation. The last of these inferior nobility are knights bachelors; the most ancient, though the lowest, order of knighthood amongst us: for we have an instance38 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 public.39 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,40that 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, or indeed the whole of the royal army, in virtue of their feudal tenures; one condition of which was, that every one who held a knights fee (which in Henry the second’s time41 amounted to 20£ 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 offense; though warranted by law, and the recent example of queen Elizabeth: but it was, at the restoration, together with all other military branches of the feudal law, abolished; and this king of knighthood has, since that time, fallen into great disregard.
THESE, Sir Edward Coke says,42 are all the names of dignity in this kingdom, esquires and gentlemen being only names of worship. But before these last the heralds rank all colonels, sergeants at law, and doctors in the three learned professions.
ESQUIRES and gentlemen are confounded together by Sir Edward Coke, who observes,43 that every esquire is a gentleman, and a gentleman is defined to be one qui arma gerit, who bears coat armor, 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:44 1. The eldest sons of knights, and their eldest sons, in perpetual succession.45 2. The younger sons of peers, and their eldest sons, in like perpetual succession: both which species of esquires Sir H. Spelman entitles armigeri natalitii.46 3. Esquires created by the king’s letters patent, or other investiture; 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. 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; and the eldest sons of peers of Great Britain, who, though generally titular lords, are only esquires in the law, and must so be named in all legal proceedings.47 As for gentlemen, says Sir Thomas Smith,48 they be made good cheap in this kingdom: for whosoever studies the laws of the realm, who studies in the universities, who professes 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. A yeoman is he that has free land of forty shillings by the year; who is thereby qualified to serve on juries, vote for knights of the shire, and do any other act, where the law requires one that is probus et legalis homo.49
THE rest of the commonalty are tradesmen, artificers, and laborers: 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, in all actions and other legal proceedings.
1. 4 inst. 363.
2. For the original of these titles on the continent of Europe, and their subsequent introduction into this island, see Mr. Selden’s titles of honor.
3. Camden. Brian. tit. ordines.
4. 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. 22
5. Camden. Britan. tit. ordines. Spelman. Gloss. 191.
6. 2 inst. 5.
8. Bracton. l. 1. c. 8. Fleta. l. 1 c. 5.
9. 2 inst. 5.
10. 2 inst. 5, 6.
11. cap. 14.
12. Gilb. Hist. exch. c. 3. Seld. tit. of hon. 2. 5. 21.
13. 1 inst. 9. Seld. Tan. Angl. 2. §. 66.
14. Glanv. l. 7. c. 1.
15. Seld. tit. of hon. b. 2. c. 9. §. 5.
16. Whitelocke of parl. c. 114.
17. Co. Litt. 16.
18. Co. Litt. 9 16.
19. 3 inst. 30, 31.
20. 2 inst. 50.
21. Finch. L. 355. 1 Ventr. 298.
22. 2 inst. 49.
23. 1 P. Wms. 146.
24. Salk. 512.
25. Cro. Car. 64.
26. 3 Edw. I. c. 34. 2 Ric. II. St. 1. c. 5. 12 Ric. II. c. 11.
27. 4 inst. 355.
28. The preamble to the act is remarkable: “forasmuch as oftentimes it is seen, that when any lord is called to high estate, and has not convenient livelihood to support the same dignity, it induces great poverty and indigence, and causes oftentimes great extortion, embracery, and maintenance to be had; to the great trouble of all such counties where such estate shall happen to be: therefore etc.”
29. By lord chancellor Ellesmere. Moor. 678.
30. 12 Rep. 107. 12 Mod. 56.
31. 2 inst. 29.
32. Camden. Ibid.
33. Bracton. l. 1. c. 8.
34. 2 inst. 667.
35. Seld. tit. of hon. 2. 5. 41.
36. Seld. tit. hon. 2. 11. 3.
37. 4 inst. 6.
38. Will. Malmfb. lib. 2.
39. Tac. De morib. Germ. 13.
40. Camden. ibid. Co. Litt. 74.
41. Glanvil. l. 9. c. 4.
42. 2 inst. 667.
43. 2 inst. 668.
45. inst. 667.
46. Gloss. 43.
47. 3 inst. 30. 2. inst. 667.
48. Common w. of Eng. Book 1. c. 20.
49. 2 inst. 668.