lords: and fome are of opinion that there must be at least two writs of fummons, and a fitting in two diftinct parliaments, to evidence an hereditary barony: and therefore the most usual, because the fureft, 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'. Yet it is frequent to call up the eldeft fon of a peer to the house of lords by writ of fummons, in the name of his father's barony: because in that cafe there is no danger of his children's lofing the nobility in cafe he never takes his feat; for they will fucceed to their grandfather. Creation by writ has alfo one advantage over that by patent for a perfon 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. For a man or woman may be created noble for their own lives, and the dignity not descend to their heirs at all, or defcend only to fome particular heirs: as where a peerage is limited to a man, and the heirs male of his body by Elizabeth his prefent lady, and not to fuch heirs by any former or future wife. LET us next take a view of a few of the principal incidents attending the nobility, exclufive of their capacity as members of parliament, and as hereditary counsellors of the crown; both of which we have before confidered. And firft we muft obferve, that in criminal cafes a nobleman fhall 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 meaneft fubjects, that of being tried by their equals, which is fecured to all the realm by magna carta, c. 29. It is faid, that this does not extend to bifhops; who, though they are lords of parliament, and fit there by virtue of their baronies which they hold jure ecclefiae, yet are not ennobled in blood, Cc c Whitelocke of parl. ch. 114. s Co Litt. 9. 16. and ; and confequently not peers with the nobility. As to peeresses, no provifion was made for their trial when accused of treafon or felony, till after Eleanor dutchess of Gloucester, wife to the lord protector, had been accused of treafon and found guilty of witchcraft, in an ecclesiastical fynod, through the intrigues of cardinal Beaufort. This very extraordinary trial gave occafion to a special ftatute, 20 Hen. VI. c. 9. which enacts that peeresses, either in their own right or by marriage, fhall be tried before the fame judicature as peers of the realm. If a woman, noble in her own right, marries a commoner, fhe ftill remains noble, and shall be tried by her peers: but if fhe be only noble by marriage, then by a fecond marriage, with a commoner, fhe lofes her dignity; for as by marriage it is gained, by marriage it is alfo loft. Yet if a duchefs dowager marries a baron, fhe continues a duchefs ftill for all the nobility are pares, and therefore it is no degradation . A peer, or peerefs (either in her own right or by marriage) cannot be arrested in civil cafes": and they have alfo many peculiar privileges annexed to their peerage in the course of judicial proceedings. A peer, fitting in judgment, gives not his verdict upon oath, like an ordinary juryman, but upon his honour ": he anfwers alfo to bills in chancery upon his honour, and not upon his oath; but when he is examined as a witness either in civil or criminal cafes, he must be fworn': for the respect, which the law fhews to the honour of a peer, does not extend fo far as to overturn a fettled maxim, that in judicio non creditur nifi juratis. The honour of peers is however fo highly tendered by the law, that it is much more penal to spread falfe reports of them, and certain other great officers of the realm, than of other men: fcandal against them being called by the peculiar name of Jandalum magnatum, and fubjected to peculiar punishment by divers antient ftatutes'. W A PEER cannot lofe his nobility, but by death or attainder; though there was an inftance, in the reign of Edward the fourth, of the degradation of George Nevile duke of Bedford by act of parliament, on account of his poverty, which rendered him unable to fupport his dignity. But this is a fingular inftance : which ferves at the fame time, by having happened to fhew the power of parliament; and, by having happened but once, to Thew how tender the parliament hath been, in exerting fo high a power. It hath been faid indeed, that if a baron wafte his eftate, so that he is not able to fupport the degree, the king may degrade him; but it is exprefsly held by later authorities, that a peer cannot be degraded but by act of parliament. THE Commonalty, like the nobility, are divided into feveral degrees; and, as the lords, though different in rank, yet all of them are peers in respect of their nobility, fo the commoners, though fome are greatly fuperior to others, yet all are in law peers, in refpect of their want of nobility. THE first name of dignity, next beneath a peer, was antiently that of vidames, vice-domini, or valvafors: who are mentioned by our antient lawyers as viri magnae dignitatis; and fir Edward Coke' fpeaks highly of them. Yet they are now quite out of ufe; and our legal antiquarians are not agreed upon even their original or antient office. k Now therefore the firft 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. Next follows a knight banneret; who indeed by ftatutes 5 Ric. II. ft. 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'. But, in order to intitle himself to this rank, he must have been created by the king in perfon, in the field, under the royal banners, in time of open war". Elfe he ranks after baronets; who are the next order: which titic is a dignity of inheritance, created by letters patent, and ufually defcendible to the iffue male. It was first inftituted by king James the first, A. D. 1611. in order to raise a competent fum for the reduction of the province of Ulfter in Ireland; for which reason all baronets have the arms of Ulfter fuperadded to their family coat. Next follow knights of the bath; an order instituted by king Henry IV, and revived by king George the firft. They are fo 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 inftance" of king Alfred's conferring this order on his fon Athelftan. The custom of the antient Germans was to give their young men a fhield 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 houfhold; after it, as part of the public. Hence fome derive the usage of knighting, which has prevailed all over the weflern world, fince it's reduction by colonies from those northern heroes. Knights are called in Latin equites aurati: aurati, from the gilt fpurs they wore; and equites, because they always ferved on horfeback: for it is obfervable ", that almost all nations call their knights by foine appellation derived from an horfe. They k Seld. tit. of hon. 2. 5. 41. 1 Ibid. 2. 11. 3. m 4 luft. 6. n Will. Malmfb. lib. 2. o Tac. de morib. Germ. 13. p Camden. ibid. Co. Litt. 74. They are alfo called in our law milites, becaufe 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 fecond's time amounted to 20 1. 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 firft, 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, fince that time, fallen into great difregard. THESE, fir Edward Coke fays', are all the names of dignity in this kingdom, efquires and gentlemen being only names of worship. But before these last the heralds rank all colonels, ferjeants at law, and doctors in the three learned profeffions. ESQUIRES and gentlemen are confounded together by fir Edward Coke, who obferves', that every efquire 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 fome curule office. It is indeed a matter fomewhat unfettled, what conftitutes the diftinction, or who is a real efquire for it is not an eftate, however large, that confers this rank upon it's owner. Camden, who was himself a herald, diftinguishes them the most accurately; and he reckons up four forts 1. The eldest fons of knights, and their eldest sons, in perpetual fucceffion". 2. The younger fons of peers, and their eldest fons, in like perpetual fucceffion: both which species of efquires fir Henry Spelman entitles armigeri natalitii". 3. Efquires of them'. q Glanvil. 1. 9. 1. 4. 2 init. 667. salt. 668. t lbid. u 2 Inft. 667. w Gloil. 43. created |