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CHAPTER THE TWELFTH.
OF THE CIVIL STATE.
HE 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 first and most comprehenfive divifion, the civil ftate, includes all orders of men from the highest nobleman to the meanest peasant, that are not included under either our former divifion, of clergy, or under one of the two latter, the military and maritime states: and it may fometimes include individuals of the other three orders; fince a nobleman, a knight, a gentleman, or a peafant, may become either a divine, a foldier, or a feaman.
THE Civil ftate confifts of the nobility and the commonalty. Of the nobility, the peerage of Great-Britain, or lords temporal, as forming (together with the bifhops) one of the fupreme branches of the legislature, I have before fufficiently spoken: we are here to confider them according to their several degrees, or titles of honour.
ALL degrees of nobility and honour are derived from the king as their fountain': and he may institute what new titles he pleases. Hence it is that all degrees of honour are not of equal antiquity. Thofe now in use are dukes, marqueffes, earls, viscounts, and barons'.
1. A duke, though it be with us, as a mere title of nobility, inferior in point of antiquity to many others, yet it is fuperior to all of them in rank; being the firft title of dignity after the royal family. 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 weretoga; 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 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 fon, Edward the black prince, duke of Cornwall and many, of the royal family especially, were afterwards raised to the fame honour. However, in the reign of queen Elizabeth, A. D. 1572°, the whole order became utterly extinct: but it was revived about fifty years afterwards by her fucceffor, who was remarkably prodigal of honours, in the perfon of George Villiers duke of Buckingham.
2. A marquefs, marchio, is the next degree of nobility. His office formerly was (for dignity and duty were never separated by our ancestors) to guard the frontiers and limits of the kingdom;
a 4 Inst. 363.
b For the original of thefe titles on the continent of Europe, and their fubfequent introduction into this ifland, fee Mr Selden's titles of honour.
c Camden. Britad. tit. ordines.
d This is apparently derived from the fame root as the German hertzogen the antient appellation of dukes in that country. Seld. tit. hon. 2. 1. 12.
e Camden. Britan. tit. ordines. Spelman. Glof. 191.
which were called the marches, from the teutonic word, marche, a limit: as, in particular, were the marches of Wales and Scotland, while they continued to be enemies countries. The perfons who had command there, were called lords marchers, or marqueffes; whofe authority was abolished by statute 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 marquess of Dublin, by Richard II in the eighth year of his reign'.
3. An earl is a title of nobility fo antient, that it's original cannot clearly be traced out. Thus much seems tolerably certain : that among the Saxons they were called saldermen, quafi elder men, fignifying the fame as fenior or fenator among the Romans; and alto fchiremen, because they had each of them the civil government of a feveral divifion or fhire. On the irrupton 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 first used in the empire) from being the king's attendants; "a focietate nomen fumpferunt, régés enim tales fibi afficiant." After the Norman conqueft they were for fome time called counts, or counters, from the French; but they did not long retain that name themfelves, though their fhires are from thence called counties to this day. It is now become a mere title, they having nothing to do with the government of the county; which, as has been more than once obferved, is now entirely devolved on the sheriff, the earl's deputy, or vice-comes. In writs, and comnilions, 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 antient as the reign of Henry IV; who being either by his wife, his mother, or his fifters, actually related or allied to every earl in the kingdom, artfully and conftantly acknowleged that connexion in all his letters and other public acts; from whence the ufage has defcended to his fucceffors, though the reafon has long ago failed.
4. THE h Bracton. 1. 1. c. 8. Flet. I. 1. c. 5.
f 2 Inft.
g Britan. t. ordines.
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 inftance of the kind'.
5. A baron's is the moft general and univerfal title of nobility; for originally every one of the peers of fuperior rank had also a barony annexed to his other titles. But it hath fometimes happened that, when an antient baron hath been raised to a new degree of peerage, in the courfe of a few generations the two titles have defcended differently; one perhaps to the male descendants, the other to the heirs general; whereby the earldom or other fuperior title hath fubfifted without a barony: and there are also 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 has occafioned great enquiries among our English antiquarians. The moft probable opinion seems 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 some 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 seats in the great council or parliament: till about the reign of that prince the conflux of them became fo large and troublefome, that the king was obliged to divide them, and fummon only the greater barons in perfon; leaving the small ones to be fummoned by the sheriff, and (as it is faid) to fit by reprefentation in another house; which gave rise to the feparation of the two houfes of parliament". By degrees the title came to be confined to the greater barons, or lords of parliament only; and there
i 2 Inft. 5. ka Inft. 5, 6 I cap. 14
m Gilb. hift. of exch. e. 3. Sud. tit. of hon. 2. 5. 21.
were no other barons among the peerage but fuch as were fum, moned by writ, in respect of the tenure of their lands or baronies, till Richard the fecond firft made it a mere title of honour, by conferring it on divers perfons by his letters patent".
HAVING made this fhort enquiry into the original of our feveral degrees of nobility, I shall next confider the manner in which they may be created. The right of peerage seems to have been originally territorial; that is, annexed to lands, honours, caftles, manors, and the like, the proprietors and poffeffors of which were (in right of thofe eftates) allowed to be peers of the realm, and were fummoned to parliament to do fuit and fervice to their fovereign: and, when the land was alienated, the dig, nity paffed with it as appendant. Thus the bishops ftill fit in the house of lords in right of fucceffion to certain antient baronies annexed, or fuppofed to be annexed, to their epifcopal lands': and thus, in 11 Hen, VI, the poffeffion of the castle of Arundel was adjudged to confer an earldom on it's poffeffor". 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 constitute a lord of parliament; but the record of the writ of fummons to him or his ancestors was admited as a fufficient evidence of the tenure.
PEERS are now created either by writ, or by patent: for those who claim by prescription must 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 house of peers, by the ftile and title of that barony, which the king is pleafed to confer that by patent is a royal grant to a fubject of any dignity and degree of peerage. The creation by writ is the more antient way; but a man is not ennobled thereby, unless he actually takes his feat in the house of
A I Inft. 9. Seld. Jun. Angi. 2. §. 66.
p Seld. tit. of hon. b. 2. c. 9. §. 5.