Chapter THE TENTH (2)

IF the bishop hath no objections, but admits the patron's presentation, the clerk so admitted is next to be instituted by him; which is a kind of investiture of the spiritual part of the benefice: for by institution the care of the souls of the parish is committed to the charge of the clerk. When a vicar is instituted, he (besides the usual forms) takes, if required by the bishop, an oath of perpetual residence; for the maxim of law is, that _vicarius non habet vicarium_: and as the non-residence of the appropriators was the cause of the perpetual establishment of vicarages, the law judges it very improper for them to defeat the end of their constitution, and by absence to create the very mischiefs which they were appointed to remedy: especially as, if any profits are to arise from putting in a curate and living at a distance from the parish, the appropriator, who is the real parson, has undoubtedly the elder title to them. When the ordinary is also the patron, and _confers_ the living, the presentation and institution are one and the same act, and are called a collation to a benefice. By institution or collation the church is full, so that there can be no fresh presentation till another vacancy, at least in the case of a common patron; but the church is not full against the king, till induction: nay, even if a clerk is instituted upon the king's presentation, the crown may revoke it before induction, and present another clerk[i]. Upon institution also the clerk may enter on the parsonage house and glebe, and take the tithes; but he cannot grant or let them, or bring any action for them, till induction.

[Footnote i: Co. Litt. 344.]

INDUCTION is performed by a mandate from the bishop to the arch-deacon, who usually issues out a precept to other clergymen to perform it for him. It is done by giving the clerk corporal possession of the church, as by holding the ring of the door, tolling a bell, or the like; and is a form required by law, with intent to give all the parishioners due notice, and sufficient certainty of their new minister, to whom their tithes are to be paid. This therefore is the investiture of the temporal part of the benefice, as institution is of the spiritual. And when a clerk is thus presented, instituted, and inducted into a rectory, he is then, and not before, in full and complete possession, and is called in law _persona impersonata_, or parson imparsonee[k].

[Footnote k: Co. Litt. 300.]

THE rights of a parson or vicar, in his tithes and ecclesiastical dues, fall more properly under the second book of these commentaries: and as to his duties, they are principally of ecclesiastical cognizance; those only excepted which are laid upon him by statute. And those are indeed so numerous that it is impracticable to recite them here with any tolerable conciseness or accuracy. Some of them we may remark, as they arise in the progress of our enquiries, but for the rest I must refer myself to such authors as have compiled treatises expressly upon this subject[l]. I shall only just mention the article of residence, upon the supposition of which the law doth stile every parochial minister an incumbent. By statute 21 Hen. VIII. c. 13. persons wilfully absenting themselves from their benefices, for one month together, or two months in the year, incur a penalty of 5_l._ to the king, and 5_l._ to any person that will sue for the same: except chaplains to the king, or others therein mentioned[m], during their attendance in the houshold of such as retain them: and also except[n] all heads of houses, magistrates, and professors in the universities, and all students under forty years of age residing there, _bona fide_, for study. Legal residence is not only in the parish, but also in the parsonage house: for it hath been resolved[o], that the statute intended residence, not only for serving the cure, and for hospitality; but also for maintaining the house, that the successor also may keep hospitality there.

[Footnote l: These are very numerous: but there are only two, which can be relied on with any degree of certainty; bishop Gibson's _codex_, and Dr Burn's ecclesiastical law.]

[Footnote m: Stat. 25 Hen. VIII. c. 16. 33 Hen. VIII. c. 28.]

[Footnote n: Stat. 28 Hen. VIII. c. 13.]

[Footnote o: 6 Rep. 21.]

WE have seen that there is but one way, whereby one may become a parson or vicar: there are many ways, by which one may cease to be so. 1. By death. 2. By cession, in taking another benefice. For by statute 21 Hen. VIII. c. 13. if any one having a benefice of 8_l._ _per annum_, or upwards, in the king's books, (according to the present valuation[p],) accepts any other, the first shall be adjudged void; unless he obtains a dispensation; which no one is entitled to have, but the chaplains of the king and others therein mentioned, the brethren and sons of lords and knights, and doctors and bachelors of divinity and law, _admitted by the universities_ of this realm. And a vacancy thus made, for want of a dispensation, is called cession. 3. By consecration; for, as was mentioned before, when a clerk is promoted to a bishoprick, all his other preferments are void the instant that he is consecrated. But there is a method, by the favour of the crown, of holding such livings _in commendam_. _Commenda_, or _ecclesia commendata_, is a living commended by the crown to the care of a clerk, to hold till a proper pastor is provided for it. This may be temporary, for one, two, or three years, or perpetual; being a kind of dispensation to avoid the vacancy of the living, and is called a _commenda retinere_. There is also a _commenda recipere_, which is to take a benefice _de novo_, in the bishop's own gift, or the gift of some other patron consenting to the same; and this is the same to him as institution and induction are to another clerk[q]. 4. By resignation. But this is of no avail, till accepted by the ordinary; into whose hands the resignation must be made[r]. 5. By deprivation, either by canonical censures, of which I am not to speak; or in pursuance of divers penal statutes, which declare the benefice void, for some nonfeasance or neglect, or else some malefeasance or crime. As, for simony[s]; for maintaining any doctrine in derogation of the king's supremacy, or of the thirty nine articles, or of the book of common-prayer[t]; for neglecting after institution to read the articles in the church, or make the declarations against popery, or take the abjuration oath[u]; for using any other form of prayer than the liturgy of the church of England[w]; or for absenting himself sixty days in one year from a benefice belonging to a popish patron, to which the clerk was presented by either of the universities[x]; in all which and similar cases[y] the benefice is _ipso facto_ void, without any formal sentence of deprivation.

[Footnote p: Cro. Car. 456.]

[Footnote q: Hob. 144.]

[Footnote r: Cro. Jac. 198.]

[Footnote s: Stat. 31 Eliz. c. 6. and 12 Ann. c. 12.]

[Footnote t: Stat. 1 Eliz. c. 1 & 2. and 13 Eliz. c. 12.]

[Footnote u: Stat. 13 Eliz. c. 12. 14 Car. II. c. 4. and 1 Geo. I. c. 6.]

[Footnote w: Stat. 1 Eliz. c. 2.]

[Footnote x: Stat. 1 W. & M. c. 26.]

[Footnote y: 6 Rep. 29, 30.]

VI. A CURATE is the lowest degree in the church; being in the same state that a vicar was formerly, an officiating temporary minister, instead of the real incumbent. Though there are what are called _perpetual_ curacies, where all the tithes are appropriated, and no vicarage endowed, (being for some particular reasons[z] exempted from the statute of Hen. IV) but, instead thereof, such perpetual curate is appointed by the appropriator. With regard to the other species of curates, they are the objects of some particular statutes, which ordain, that such as serve a church during it's vacancy shall be paid such stipend as the ordinary thinks reasonable, out of the profits of the vacancy; or, if that be not sufficient, by the successor within fourteen days after he takes possession[a]: and that, if any rector or vicar nominates a curate to the ordinary to be licenced, the ordinary shall settle his stipend under his hand and seal, not exceeding 50_l._ _per annum_, nor less than 20_l._ and on failure of payment may sequester the profits of the benefice[b].

[Footnote z: 1 Burn. eccl. law. 427.]

[Footnote a: Stat. 28 Hen. VIII. c. 11.]

[Footnote b: Stat. 12 Ann. st. 2. c. 12.]

THUS much of the clergy, properly so called. There are also certain inferior ecclesiastical officers of whom the common law takes notice; and that, principally, to assist the ecclesiastical jurisdiction, where it is deficient in powers. On which officers I shall make a few cursory remarks.

VII. CHURCHWARDENS are the guardians or keepers of the church, and representatives of the body of the parish[c]. They are sometimes appointed by the minister, sometimes by the parish, sometimes by both together, as custom directs. They are taken, in favour of the church, to be for some purposes a kind of corporation at the common law; that is, they are enabled by that name to have a property in goods and chattels, and to bring actions for them, for the use and profit of the parish. Yet they may not waste the church goods, but may be removed by the parish, and then called to account by action at the common law: but there is no method of calling them to account, but by first removing them; for none can legally do it, but those who are put in their place. As to lands, or other real property, as the church, church-yard, &c, they have no sort of interest therein; but if any damage is done thereto, the parson only or vicar shall have the action. Their office also is to repair the church, and make rates and levies for that purpose: but these are recoverable only in the ecclesiastical court. They are also joined with the overseers in the care and maintenance of the poor. They are to levy[d] a shilling forfeiture on all such as do not repair to church on sundays and holidays, and are empowered to keep all persons orderly while there; to which end it has been held that a churchwarden may justify the pulling off a man's hat, without being guilty of either an assault or trespass[e]. There are also a multitude of other petty parochial powers committed to their charge by divers acts of parliament[f].

[Footnote c: In Sweden they have similar officers, whom they call _kiorckiowariandes_. Stiernhook. l. 3. c. 7.]

[Footnote d: Stat. 1 Eliz. c. 2.]

[Footnote e: 1 Lev. 196.]

[Footnote f: See Lambard of churchwardens, at the end of his _eirenarcha_; and Dr Burn, tit. _church, churchwardens, visitation_.]

VIII. PARISH clerks and sextons are also regarded by the common law, as persons who have freeholds in their offices; and therefore though they may be punished, yet they cannot be deprived, by ecclesiastical censures[g]. The parish clerk was formerly always in holy orders; and some are so to this day. He is generally appointed by the incumbent, but by custom may be chosen by the inhabitants; and if such custom appears, the court of king's bench will grant a _mandamus_ to the arch-deacon to swear him in, for the establishment of the custom turns it into a temporal or civil right[h].

[Footnote g: 2 Roll. Abr. 234.]

[Footnote h: Cro. Car. 589.]

CHAPTER THE TWELFTH.

OF THE CIVIL STATE.

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 honour.

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].

[Footnote a: 4 Inst. 363.]

[Footnote b: For the original of these titles on the continent of Europe, and their subsequent introduction into this island, see Mr Selden's _titles of honour_.]

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 [Anglo-Saxon: heretoga][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[e], 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.

[Footnote c: Camden. Britan. _tit. ordines_.]

[Footnote d: This is apparently derived from the same root as the German [Fraktur: hertzogen], the antient appellation of dukes in that country. Seld. tit. hon. 2. 1. 22.]

[Footnote e: Camden. Britan. _tit. ordines_. Spelman. _Gloss._ 191.]

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; whose 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].

[Footnote f: 2 Inst. 5.]

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.

[Footnote g: _Ibid._]

[Footnote h: Bracton. _l._ 1. _c._ 8. Fleta. _l._ i. _c._ 5.]

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].

[Footnote i: 2 Inst. 5.]

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].

[Footnote k: 2 Inst. 5, 6.]

[Footnote l: _cap._ 14.]

[Footnote m: Gilb. hist. exch. c. 3. Seld. tit. of hon. 2. 5. 21.]

[Footnote n: 1 Inst. 9. Seld. _Jan. Angl._ 2. Sec. 66.]

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.

[Footnote o: Glanv. _l._ 7. _c._ 1.]

[Footnote p: Seld. tit. of hon. b. 2. c. 9. Sec. 5.]

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 wife.

[Footnote q: Co. Litt. 16.]

[Footnote r: Co. Litt. 9. 16.]

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 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 magnatum_; and subjected to peculiar punishment by divers antient statutes[a].

[Footnote s: 3 Inst. 30, 31.]

[Footnote t: 2 Inst. 50.]

[Footnote u: Finch. L. 355. 1 Ventr. 298.]

[Footnote w: 2 Inst 49.]

[Footnote x: 1 P. Wms. 146.]

[Footnote y: Salk. 512.]

[Footnote z: Cro. Car. 64.]

[Footnote a: 3 Edw. I. c. 34. 2 Ric. II. st. 1. c. 5. 12 Ric. II. c. 11.]

A PEER cannot lose his nobility, but by death or attainder; hough [Transcriber's Note: 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_.

[Footnote b: 4 Inst. 355.]

[Footnote c: The preamble to the act is remarkable: "forasmuch as oftentimes it is seen, that when any lord is called to high estate, and hath not convenient livelyhood to support the same dignity, it induceth great poverty and indigence, and causeth oftentimes great extortion, embracery, and maintenance to be had; to the great trouble of all such countries where such estate shall happen to be: therefore, &c."]

[Footnote d: By lord chancellor Ellesmere. Moor. 678.]

[Footnote e: 12 Rep. 107. 12 Mod. 56.]

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].

[Footnote f: 2 Inst. 29.]

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.

[Footnote g: Camden. _ibid._]

[Footnote h: Bracton. _l._ 1. _c._ 8.]

[Footnote i: 2 Inst. 667.]

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 20_l._ _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.

[Footnote k: Seld. tit. of hon. 2. 5. 41.]

[Footnote l: Seld. tit. hon. 2. 11. 3.]

[Footnote m: 4 Inst. 6.]

[Footnote n: Will. Malmsb. _lib._ 2.]

[Footnote o: Tac. _de morib. Germ._ 13.]

[Footnote p: Camden. _ibid._ Co. Litt. 74.]

[Footnote q: Glanvil. _l._ 9. _c._ 4.]

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.

[Footnote r: 2 Inst. 667.]

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].

[Footnote s: 2 Inst. 668.]

[Footnote t: _Ibid._]

[Footnote u: 2 Inst. 667.]

[Footnote w: Gloss. 43.]

[Footnote x: 3 Inst. 30. 2 Inst. 667.]

[Footnote y: Commonw. of Eng. book 1. c. 20.]

[Footnote z: 2 Inst. 668.]

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.

CHAPTER THE THIRTEENTH.

OF THE MILITARY AND MARITIME STATES.

THE military state includes the whole of the soldiery; or, such persons as are peculiarly appointed among the rest of the people, for the safeguard and defence of the realm.

IN a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitution, which is that of governing by fear: but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy. In these no man should 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 because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier. The laws therefore and constitution of these kingdoms know no such state as that of a perpetual standing soldier, bred up to no other profession than that of war: and it was not till the reign of Henry VII, that the kings of England had so much as a guard about their persons.

IN the time of our Saxon ancestors, as appears from Edward the confessor's laws[a], the military force of this kingdom was in the hands of the dukes or heretochs, who were constituted through every province and county in the kingdom; being taken out of the principal nobility, and such as were most remarkable for being "_sapientes, fideles, et animosi_." Their duty was to lead and regulate the English armies, with a very unlimited power; "_prout eis visum fuerit, ad honorem coronae et utilitatem regni_." And because of this great power they were elected by the people in their full assembly, or folkmote, in the same manner as sheriffs were elected: following still that old fundamental maxim of the Saxon constitution, that where any officer was entrusted with such power, as if abused might tend to the oppression of the people, that power was delegated to him by the vote of the people themselves[b]. 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 state. The dukes were elective, the kings hereditary: for so only can be consistently understood that passage of Tacitus[c], "_reges ex nobilitate, duces ex virtute sumunt_;" in constituting 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[d]. This large share of power, thus conferred by the people, though intended to preserve the liberty of the subject, was perhaps unreasonably detrimental to the prerogative of the crown: and accordingly we find a very ill use made of it by Edric duke of Mercia, in the reign of king Edmond Ironside; who, by his office of duke or heretoch, was entitled to a large command in the king's army, and by his repeated treacheries at last transferred the crown to Canute the Dane.

[Footnote a: _c. de heretochiis._]

[Footnote b: "_Isti vero viri eliguntur per commune consilium, pro communi utilitate regni, per provincias et patrias universas, et per singulos comitatus, in pleno folkmote, sicut et vice-comites provinciarum et comitatuum eligi debent._" _LL. Edw. Confess._ _ibid._ See also Bede, _eccl. hist._ _l._ 5. _c._ 10.]

[Footnote c: _De morib. German._ 7.]

[Footnote d: "_Quum bellum civitas aut illatum defendit, aut infert, magistratus qui ei bello praesint deliguntur._" _De bell. Gall._ _l._ 6. _c._ 22.]

IT seems universally agreed by all historians, that king Alfred first settled a national militia in this kingdom, and by his prudent discipline made all the subjects of his dominion soldiers: but we are unfortunately left in the dark as to the particulars of this his so celebrated regulation; though, from what was last observed, the dukes seem to have been left in possession of too large and independent a power: which enabled duke Harold on the death of Edward the confessor, though a stranger 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 conquest the feodal law was introduced here in all it's rigor, the whole of which is built on a military plan. I shall not now enter into the particulars of that constitution, which belongs more properly to the next part of our commentaries: but shall only observe, that, in consequence thereof, all the lands in the kingdom were divided into what were called knight's fees, in number above sixty thousand; and for every knight's fee a knight or soldier, _miles_, was bound to attend the king in his wars, for forty days in a year; in which space of time, before war was reduced to a science, the campaign was generally finished, and a kingdom either conquered or victorious[e]. By this means the king had, without any expense, an army of sixty thousand 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 personal attendance of all knights and others; "_quod habeant et teneant se semper in armis et equis, ut decet et oportet; et quod semper sint prompti et parati ad servitium suum integrum nobis explendum et peragendum, cum opus adfuerit, secundum quod debent de feodis et tenementis suis de jure nobis facere_." This personal service in process of time degenerated into pecuniary commutations or aids, and at last the military part of the feodal system was abolished at the restoration, by statute 12 Car. II. c. 24.

[Footnote e: The Poles are, even at this day, so tenacious of their antient constitution, that their pospolite, or militia, cannot be compelled to serve above six weeks, or forty days, in a year. Mod. Univ. Hist. xxxiv. 12.]

[Footnote f: c. 58. See Co. Litt. 75, 76.]

IN the mean time we are not to imagine that the kingdom was left wholly without defence, in case of domestic insurrections, or the prospect of foreign invasions. Besides those, who by their military tenures were bound to perform forty days service in the field, the statute of Winchester[g] obliged every man, according to his estate and degree, to provide a determinate quantity of such arms as were then in use, in order to keep the peace: and constables were appointed in all hundreds to see that such arms were provided. These weapons were changed, by the statute 4 & 5 Ph. & M. c. 2. into others of more modern service; but both this and the former provision were repealed in the reign of James I[h]. While these continued in force, it was usual from time to time for our princes to to [Transcriber's Note: duplicate word] issue commissions of array, and send into every county officers in whom they could confide, to muster and array (or set in military order) the inhabitants of every district: and the form of the commission of array was settled in parliament in the 5 Hen. IV[i]. But at the same time it was provided[k], that no man should be compelled to go out of the kingdom at any rate, nor out of his shire but in cases of urgent necessity; nor should provide soldiers unless by consent of parliament. About the reign of king Henry the eighth, and his children, lord lieutenants began to be introduced, as standing representatives of the crown, to keep the counties in military order; for we find them mentioned as known officers in the statute 4 & 5 Ph. & M. c. 3. though they had not been then long in use, for Camden speaks of them[l], in the time of queen Elizabeth, as extraordinary magistrates constituted only in times of difficulty and danger.

[Footnote g: 13 Edw. I. c. 6.]

[Footnote h: Stat. 1 Jac. I. c. 25. 21 Jac. I. c. 28.]

[Footnote i: Rushworth. part 3. pag. 667.]

[Footnote k: Stat. 1 Edw III. st. 2. c. 5 & 7. 25 Edw. III. st. 5. c. 8.]

[Footnote l: Brit. 103. Edit. 1594.]

IN this state things continued, till the repeal of the statutes of armour in the reign of king James the first: after which, when king Charles the first had, during his northern expeditions, issued commissions of lieutenancy and exerted some military powers which, having been long exercised, were thought to belong to the crown, it became a question in the long parliament, how far the power of the militia did inherently reside in the king; being now unsupported by any statute, and founded only upon immemorial usage. This question, long agitated with great heat and resentment on both sides, became at length the immediate cause of the fatal rupture between the king and his parliament: the two houses not only denying this prerogative of the crown, the legality of which right perhaps might be somewhat doubtful; but also seizing into their own hands the intire power of the militia, the illegality of which step could never be any doubt at all.

SOON after the restoration of king Charles the second, when the military tenures were abolished, it was thought proper to ascertain the power of the militia, to recognize the sole right of the crown to govern and command them, and to put the whole into a more regular method of military subordination[m]: and the order, in which the militia now stands by law, is principally built upon the statutes which were then enacted. It is true the two last of them are apparently repealed; but many of their provisions are re-enacted, with the addition of some new regulations, by the present militia laws: the general scheme of which is to discipline a certain number of the inhabitants of every county, chosen by lot for three years, and officered by the lord lieutenant, the deputy lieutenants, and other principal landholders, under a commission from the crown. They are not compellable to march out of their counties, unless in case of invasion or actual rebellion, nor in any case compellable to march out of the kingdom. They are to be exercised at stated times: and their discipline in general is liberal and [Transcriber's Note: 'and' missing here but is in printer's mark on previous page] easy; but, when drawn out into actual service, they are subject to the rigours of martial law, as necessary to keep them in order. This is the constitutional security, which our laws have provided for the public peace, and for protecting the realm against foreign or domestic violence; and which the statutes[n] declare is essentially necessary to the safety and prosperity of the kingdom.

[Footnote m: 13 Car. II. c. 6. 14 Car. II. c. 3. 15 Car. II. c. 4.]

[Footnote n: 30 Geo. II. c. 25, &c.]

WHEN the nation is engaged in a foreign war, more veteran troops and more regular discipline may perhaps be necessary, than can be expected from a mere militia. And therefore at such times particular provisions have been usually made for the raising of armies and the due regulation and discipline of the soldiery: which are to be looked upon only as temporary excrescences bred out of the distemper of the state, and not as any part of the permanent and perpetual laws of the kingdom. For martial law, which is built upon no settled principles, but is entirely arbitrary in it's decisions, is, as sir Matthew Hale observes[o], in truth and reality no law, but something indulged, rather than allowed as a law: the necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king's courts are open for all persons to receive justice according to the laws of the land. Wherefore Edmond earl of Kent being taken at Pontefract, 15 Edw. II. and condemned by martial law, his attainder was reversed 1 Edw. III. because it was done in time of peace. And it is laid down[p], that if a lieutenant, or other, that hath commission of martial authority, doth in time of peace hang or otherwise execute any man by colour of martial law, this is murder; for it is against _magna carta_[q]. And the petition of right[r] enacts, that no soldier shall be quartered on the subject without his own consent[s]; and that no commission shall issue to proceed within this land according to martial law. And whereas, after the restoration, king Charles the second kept up about five thousand regular troops, by his own authority, for guards and garrisons; which king James the second by degrees increased to no less than thirty thousand, all paid from his own civil list; it was made one of the articles of the bill of rights[t], that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.

[Footnote o: Hist. C.L. c. 2.]

[Footnote p: 3 Inst. 52.]

[Footnote q: _cap._ 29.]

[Footnote r: 3 Car. I. See also stat. 31 Car. II. c. 1.]

[Footnote s: Thus, in Poland, no soldier can be quartered upon the gentry, the only freemen in that republic. Mod. Univ. Hist. xxxiv. 23.]

[Footnote t: Stat. 1 W. & M. st. 2. c. 2.]

BUT, as the fashion of keeping standing armies has universally prevailed over all Europe of late years (though some of it's potentates, being unable themselves to maintain them, are obliged to have recourse to richer powers, and receive subsidiary pensions for that purpose) it has also for many years past been annually judged necessary by our legislature, for the safety of the kingdom, the defence of the possessions of the crown of Great Britain, and the preservation of the balance of power in Europe, to maintain even in time of peace a standing body of troops, under the command of the crown; who are however _ipso facto_ disbanded at the expiration of every year, unless continued by parliament.

TO prevent the executive power from being able to oppress, says baron Montesquieu[u], it is requisite that the armies with which it is entrusted should consist of the people, and have the same spirit with the people; as was the case at Rome, till Marius new-modelled the legions by enlisting the rabble of Italy, and laid the foundation of all the military tyranny that ensued. Nothing then, according to these principles, ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people. Like ours therefore, it should wholly be composed of natural subjects; it ought only to be enlisted for a short and limited time; the soldiers also should live intermixed with the people; no separate camp, no barracks, no inland fortresses should be allowed. And perhaps it might be still better, if, by dismissing a stated number and enlisting others at every renewal of their term, a circulation could be kept up between the army and the people, and the citizen and the soldier be more intimately connected together.

[Footnote u: Sp. L. 11. 6.]

TO keep this body of troops in order, an annual act of parliament likewise passes, "to punish mutiny and desertion, and for the better payment of the army and their quarters." This regulates the manner in which they are to be dispersed among the several inn-keepers and victuallers throughout the kingdom; and establishes a law martial for their government. By this, among other things, it is enacted, that if any officer and soldier shall excite, or join any mutiny, or, knowing of it, shall not give notice to the commanding officer; or shall defect, or list in any other regiment, or sleep upon his post, or leave it before he is relieved, or hold correspondence with a rebel or enemy, or strike or use violence to his superior officer, or shall disobey his lawful commands; such offender shall suffer such punishment as a court martial shall inflict, though it extend to death itself.

HOWEVER expedient the most strict regulations may be in time of actual war, yet, in times of profound peace, a little relaxation of military rigour would not, one should hope, be productive of much inconvenience. And, upon this principle, though by our standing laws[w] (still remaining in force, though not attended to) desertion in time of war is made felony, without benefit of clergy, and the offence is triable by a jury and before the judges of the common law; yet, by our militia laws beforementioned, a much lighter punishment is inflicted for desertion in time of peace. So, by the Roman law also, desertion in time of war was punished with death, but more mildly in time of tranquillity[x]. But our mutiny act makes no such distinction: for any of the faults therein mentioned are, equally at all times, punishable with death itself, if a court martial shall think proper. This discretionary power of the court martial is indeed to be guided by the directions of the crown; which, with regard to military offences, has almost an absolute legislative power. "His majesty, says the act, may form articles of war, and constitute courts martial, with power to try any crime by such articles, and inflict such penalties as the articles direct." A vast and most important trust! an unlimited power to create crimes, and annex to them any punishments, not extending to life or limb! These are indeed forbidden to be inflicted, except for crimes declared to be so punishable by this act; which crimes we have just enumerated, and, among which, we may observe that any disobedience to lawful commands is one. Perhaps in some future revision of this act, which is in many respects hastily penned, it may be thought worthy the wisdom of parliament to ascertain the limits of military subjection, and to enact express articles of war for the government of the army, as is done for the government of the navy: especially as, by our present constitution, the nobility and gentry of the kingdom, who serve their country as militia officers, are annually subjected to the same arbitrary rule, during their time of exercise.