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CHAPTER THE TWELFTH.

OF THE CIVIL STATE.

THE lay part of his majesty'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 highest nobleman to the meanest peafant, that are not included under either our former divifion, of 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 peasant, 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 bishops) one of the fupreme branches of the legislature, I have before fufficiently spoken: we are here to confider them according to their several aegrees, or titles of honour.

All degrees of nobility and honour are derived from the king as their fountain': and he may in

4 Inft. 363.

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ftitute what new titles he pleases. Hence it is that all degrees of nobility are not of equal antiquity. Thofe now in ufe are dukes, marqueffes, earls, viscounts and barons".

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1. A duke, though he be with us, in respect of his title of nobility, inferior in point of antiquity to many others, yet is fuperior to all of them in rank; his being the firft title of dignity after the royal family 3. 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 Perezoza; and in the laws of Henry I (as tranflated by Lambard) we find them called heretochii. 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 the title of duke, 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 raised to the like honour. However, in the reign of queen Elizabeth, A. D. 15725, 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 person of George Villiers duke of Buckingham.

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2. A marquefs, marchio, is the next degree of nobility. His office formerly, was (for dignity and duty were never feparated by our ancestors) to guard the frontiers and limits of the kingdom; which were called the marches, from the teutonic word, marche, a limit: fuch as, in particular, were the marches of

For the original of these titles on the continent of Europe, and their subsequent introduction into this ifland, fee Mr. Selden's titles of honour.

3 Camden. Britain. tit. or

nes.

4 This is apparently derived from the fame root as the German HERTZOG, the ancient appellation of dukes in that country. Seld. tit. hon. 2. 1. 12:

5 Camden Britain. tit. ordines. Spelman. Gloj. 191.

Wales and Scotland, while each continued to be an enemy's country. The perfons, who had command there, were called lords marchers, or marqueffes; whose authority was abolished 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 reign".

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3. An earl is a title of nobility fo ancient, that it's original cannot clearly be traced out. Thus much feems tolerably certain: that among the Saxons they were called caldormen, quafi elder men, fignifying the fame as fenior or fenator among the Romans; and alfo fchiremen, because 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 Camden, 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 affociants. After the Norman conqueft they were for fome time called counts or countees, from the French; but they did not long retain that name themselves, though their fhires 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 obferved, is now entirely devolved on the fheriff, the earl's deputy, or vice-comes. In writs, and commiffions, and other formal inftruments, the king, when he mentions any peer of the degree of an earl, ufually ftiles him " trufty and well beloved coufin:" an appellation as ancient as the reign of Henry IV: whe being either by his wife, his mother, or his fifters, actually related or allied to every earl then in the kingdom, artfully and conftantly acknowledged that connexion in all his letters and other public acts:

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from whence the ufage has defcended to his fucceffors, though the reafon has long ago failed.

4. The name of vice-comes or viscount 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 viscount Beaumont, which was the first instance of the kind.

J 5. A baron's is the most general and univerfal title of nobility; for originally every one of the peers of fuperior rank had alfo a barony annexed to his other titles. But it hath fometimes happened that, when an ancient 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 viscounts have been created without annexing a barony to their other honours: fo that now the rule doth not hold univerfally, that all peers are barons. The original and antiquity of baronies have occafioned great inquiries among our English antiquaries. 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 carta, 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 troublesome, 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 parliament',

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2 Inft. 5.
2 Inft. 5, 6.

cap. 14.

2 Gilb. Hift. of exch. c. 3. Seld. tit. of hon. 2. 5. 21.

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 fuch as were fummoned by writ, in refpect of the tenure of their lands or baronies, till Richard the fecond first made it a mere title of honour, by conferring it on divers perfons by his letters patent 3.

Having made this fhort inquiry into the original of our several degrees of nobility, I fhall next confider the manner in which they may be created. The right of peerage feems to have been originally territórial; that is, annexed to lands, honors, caftles, manors, and the like, the proprietors and poffeffors of which were (in right of those estates) 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 bishops fill fit in the houfe of lords in right of fucceffion to certain ancient baronies annexed, or fuppofed to be annexed, to their epifcopal lands: and thus, in 11 Hen. VI, the poffeffion of the caftle of Arundel was adjudged to confer an earldom on it's poffeffor 5. 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 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 him or his ancestors was admitted as a fufficient evidence of the tenure.

Peers are now created either by, writ, or by patent for those who claim by prefcription muft fuppofe either a writ or patent made to their ancestors; 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

3 1 Inft. 9. Seld. Jan. Angl. 2. § 66.

4 Glan. I. 7. c. I.

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Seld. tit. of hon. b. 2、 €.

9. § 5.

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