Chapter 36

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. §. 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. §. 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.]