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Book I. created by the king's letters patent, or other inveftiture; and their eldest fons. 4. Efquires by virtue of their offices; as juftices of the peace, and others who bear any office of trust under the crown, To these may be added the efquires of knights of the bath, each of whom conftitutes three at his inftallation : and all foreign, nay, Irish peers; for not only thefe, but the eldeft fons of peers of Great Britain, though frequently titular lords are only efquires in the law, and muft fo be named in all regal proceedings. As for gentlemen, says fir Thomas Smith', they be made good cheap in this kingdom; for whofoever ftudieth the laws of the realm, who studieth in the universities, who profeffeth liberal fciences, 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 fhall be taken for a gentleman. A yeoman is he that hath free land of forty fhillings by the year; who is thereby qualified to ferve on juries, vote for knights of the shire, and do any other act, where the law requires one that is probus et legalis home".

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THE reft of the commonalty are tradefmen, artificers, and labourers; who, (as well as all others) muft in pursuance of the ftatute 1 Hen. V. c. 5. be ftiled by the name and addition of their eftate, degree, or myftery, in all actions and other legal proceedings.

X 3 Inft. 30. 2 Inft. 667.

y Commonw. of Eng. b. 1. c. 20.

z 2 Inft. 668.





HE military state includes the whole of the foldiery; or, fuch perfons as are peculiary appointed among the rest of the people, for the fafeguard and defence of the realm.

In a land of liberty it is extremely dangerous to make a dif tinct order of the profeffion of arms. In abfolute monarchies this is neceflary for the fafety of the prince, and arifes from the main principle of their conftitution, which is that of governing by fear but in free ftates the profeffion of a foldier, taken fingly and merely as a profeffion, is juftly an object of jealousy. In these no man fhould take up arms, but with a view to defend his country and it's laws: he puts not off the citizen when he enters the camp; but it is becaufe he is a citizen, and would with to continue fo, that he makes himself for a while a foldier. The laws therefore and conftitution of these kingdoms know no fuckt ftate as that of a perpetual ftanding foldier, bred up to no other profeflion than that of war: and it was not till the reign of Henry VII, that the kings of England had fo much as a guard about their perfons.


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In the time of our Saxon ancestors, as appears from Edward the confeffor's laws, the military force of this kingdom was in the hands of the dukes or heretochs, who were conftituted through every province and county in the kingdom; being taken out of the principal nobility, and fuch as were most remarkable for being "fapientes, fidèles, et animofi." Their duty was to lead and regulate the English armies, with a very unlimited power; prout eis vifum fuerit, ad honorem coronae et utilitatem regni." And because of this great power they were elected by the people in their full affembly, or folkmote, in the fame manner as sheriffs were elected: following ftill that old fundamental maxim of the Saxon conftitution, that where any officer was entrusted with such power, as if abused might tend to the oppreffion of the people, that power was delegated to him by the vote of the people themfelves. So too, among the antient Germans, the ancestors of our Saxon forefathers, they had their dukes, as well as kings, with an independent power over the military, as the kings had over the civil ftate. The dukes were elective, the kings hereditary: for fo only can be confiftently understood that paffage of Tacitus, "reges ex nobilitate, duces ex virtute fumunt ;" in conftituting their kings, the family or blood royal was regarded, in chusing their dukes or leaders, warlike merit: just as Caesar relates of their ancestors in his time, that whenever they went to war, by way either of attack or defence, they elected leaders to command them. This large share of power, thus conferred by the people, though intended to preserve the liberty of the fubject, was perhaps unreasonably detrimental to the prerogative of the crown: and accordingly we find a very ill ufe made of it by Edric duke of Mercia, in the reign of king Edmond Ironfide; who, by his office of duke or heretoch, was entitled to a large command in the

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the king's army, and by his repeated treacheries at laft transferred the crown to Canute the Dane.

It seems univerfally agreed by all hiftorians, that king Alfred first settled a national militia in this kingdom, and by his prudent discipline made all the fubjects of his dominion foldiers: but we are unfortunately left in the dark as to the particulars of this his fo celebrated regulation; though, from what was last observed, the dukes feem to have been left in poffeffion of too large and independent a power: which enabled duke Harold on the death of Edward the confeffor, though a ftranger to the royal blood, to mount for a short space the throne of this kingdom, in prejudice of Edgar Atheling the rightful heir.

UPON the Norman conqueft the feodal law was introduced here in all it's rigor, the whole of which is built on a military plan. I fhall not now enter into the particulars of that conftitution, which belongs more properly to the next part of our commentaries: but shall only obferve, that, in confequence thereof, all the lands in the kingdom were divided into what were called knight's fees, in number above fixty thousand; and for every knight's fee a knight or foldier, miles, was bound to attend the king in his wars for forty days in the year; in which space of time, before war was reduced to a fcience, the campaign was generally finished, and a kingdom either conquered or victorious. By this means the king had, without any expenfe, an army of fixty thoufand men always ready at his command. And accordingly we find one, among the laws of William the conqueror f, which in the king's name commands and firmly enjoins the perfonal attendance of all knights and others; "quod habeant et teneant fe femper in "armis et equis, ut decet et oportet: et quod femper fint prompti et parati ad fervitium fuum integrum nobis explendum et peragendum, "cum opus adfuerit, fecundum quod debent de feodis et tenementis fuis



e-pelled to ferve above fix weeks, or forty days, in a year. Mod. Un. Hift. xxxiv. 12. fc. 58. See Co. Litt. 75, 76.

e The Poles, even at this day, are fo nacious of their antient conftitution, that their pofpolite, or militia, cannot be com

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"de jure nobis facere." This perfonal service in process of time degenerated into pecuniary commutations or aids, and at laft the military part of the feodal fyftem was abolished at the restoration, by ftatute 12 Car. II. c. 24.

In the mean time we are not to imagine that the kingdom was left wholly without defence, in case of domestic infurrections, or the profpect of foreign invafions. Befides thofe, who by their military tenures were bound to perform forty days fervice in the field, the ftatute of Winchefter obliged every man, according to his estate and degree, to provide a determinate quantity of fuch arms as were then in ufe, in order to keep the peace: and conftables were appointed in all hundreds to fee that fuch arms were provided. Thefe weapons were changed, by the ftatute 4 & 5 Ph. & M. c. 2. into others of more modern fervice; but both this and the former provifion were repealed in the reign of James I. While these continued in force, it was ufual from time to time for our princes to iffue commiffions of array, and fend into every county officers in whom they could confide, to mufter and array (or fet in military order) the inhabitants of every district: and the form of the commiflion of array was fettled in parliainent in the 5 Hen. IV. But at the fame time it was provided, that no man should be compelled to go out of the kingdom at any rate, nor out of his fhire but in cafes of urgent neceffity; nor fhould provide foldiers unless by confent of parliament. About the reign of Henry the eighth, and his children, lord licutenants began to be introduced, as flanding reprefentatives of the crown, to keep the counties in military order; for we find them mentioned as known officers in the ftatute 4 & 5 Ph. & M. c. 3. though they had not been then long in ufe, for Camden fpeaks of them', in the time of queen Elizabeth, as extraordinary magiftrates conftituted only in times of difficulty and danger.

g 13 Edw. I. c. 6.

Stat. Jac. I. . 25. 21 Jac. I. c. 28.
Rushworth. part 3. pag. 667.


k Stat. 1 Edw. III. ft. 2. c. 5 & 7.

25 Edw. III. ft. s. c. 8.

1 Brit. 103. Edit. 1594.

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