Friday, May 30, 2008

Blackstone ss41

"Section 41. Chapter 12 of the Commentaries on the Laws of England, Book 1. - This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information, or to volunteer, please visit: librivox DOT org" "Recording by [your name]" "Commentaries on the Laws of England by William Blackstone (pronounced "Blexstun"), book 1. Chapter 12"

Chapter the twelfth.


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

All degrees of nobility and honour are derived from the
king as their fountain[a]: and he may institute what new titles
he pleases. Hence it is that all degrees of honour are not of equal
antiquity. Those now in use are dukes, marquesses, earls, viscounts,
and barons[b].

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[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 [**Old English: h[Þ]eretocha][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 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 honour. However, in the reign of
queen Elizabeth, A. D. 1572[c], 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: 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; whole 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].

3. An earl is a title of nobility so antient, that it's 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. 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 antient 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 acknowleged that connexion in all
his letters and other public acts; from whence the usage has descended
to his successors, though the reason has long ago failed.

4. The name of vice-comes or viscount was afterwards made
use of as an 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].

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[k]. But it hath sometimes
happened that, when an antient 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 does not hold universally, that all peers are barons. The
original and antiquity of baronies has occasioned great enquiries
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[l], that originally
all lords of manors, or barons, that held of the king in capite,
had seats in the great council or parliament, till about the reign
of that prince the conflux of them became so large and troublesome,
that the king was obliged to divide them, and summon
only the greater barons in person; leaving the small ones to be
summoned by the sheriff, and (as it is said) to sit by representation
in another house; which gave rise to the separation of the
two houses of parliament[m]. By degrees the title came to be confined
to the greater barons, or lords of parliament only; and there
were no other barons among the peerage but such as were summoned
by writ, in respect of the tenure of their lands or baronies,
till Richard the second first made it a mere title of honor,
by conferring it on divers persons by his letters patent[n].

Having made this short enquiry 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 antient baronies
annexed, or supposed to be annexed, to their episcopal
lands[o]: and thus, in 11 Hen. VI, the possession of the castle of
Arundel was adjudged to confer an earldom on it's possessor[p]. 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 antient way; but a man is not ennobled
thereby, unless he actually takes his seat in the house of
lords: 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 grand-father. Creation by writ has
also one advantage over that by patent: for a person created 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 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

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.
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[**delete . (or spot?)][**spot--outside right margin--removed it. ~P3]
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[s]. As to peeresses,
no provision was made for their trial when accused of treason or
felony, till after Eleanor dutchess 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, 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. 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[t].
A peer, or peeress (either in her own right or by marriage) cannot
be arrested in civil cases[u]: and they have also many peculiar
privileges annexed to their peerage in the course of judicial proceedings.
A peer, sitting in judgment, gives not his verdict upon
oath, like an ordinary juryman, but upon his honour[w]: he answers
also to bills in chancery upon his honour, and not upon his
oath[x]; but, when he is examined as a witness either in civil or
criminal cases, he must be sworn[y]: for the respect, which the
law shews to the honour of a peer, does not extend so far as to
overturn a settled maxim, that in judicio non creditur nisi juratis[z].
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
; and subjected to peculiar punishment by divers
antient statutes[a].

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[b], on account of his poverty, which rendered him unable
to support his dignity[c]. But this is a singular instance:
which serves at the same time, by having happened, to shew the
power of parliament; and, by having happened but once, to
shew how tender the parliament hath been, in exerting so high
a power. It hath been said indeed[d], 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[e], 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[f].

The first name of dignity, next beneath a peer, was anciently
that of vidames, vice domini, or valvasors[g]: who are mentioned
by our antient lawyers[h] as viri magnae dignitatis; and sir Edward
Coke[i] 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[k]. 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[l].
But, in order to intitle 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 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 antient, though the
lowest, order of knighthood amongst us: for we have an instance[n]
of king Alfred's conferring this order on his son Athelstan.
The custom of the antient 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 houshold; after it, as part of the public[o]. Hence
some derive the usage of knighting, which has prevailed all over
the western world, since it's 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 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
feodal tenures; one condition of which was, that every one who
held a knights fee (which in Henry 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: but it was, at
the restoration, together with all other military branches of the
feodal law, 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 the heralds rank all colonels, serjeants
at law, and doctors in the three learned professions.

Esquires and gentlemen are confounded together by sir
Edward Coke, who observes[s], 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 it's owner. Camden, who was himself a herald, distinguishes
them the most accurately; and he reckons up four sorts
of them[t]: 1. The eldest sons of knights, and their eldest sons,
in perpetual succession[u]. 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[w]. 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[x]. 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 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. A
yeoman is he that hath 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[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 stiled by the name and addition of their
estate, degree, or mystery, in all actions and other legal proceedings.

End of section 41