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.10 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." (*) Co. Litt. 9, 16. See 1 Woodd. 37, where the opinion of lord Coke is controverted and shown to be erroneous; and Mr. Wooddeson observes, further, that a creation by writ confers only an estate tail general, there being in English law no peerages in fee simple. But lord Coke differs from himself; for, although he certainly states the law to be that a peerage descends to other than lineal heirs, (Co. Litt. 9,) yet, in the same book, 16, he adds, that the writ has no operation until the person named in it sits in parliament, and that thereby his blood is ennobled to him and his heirs lineal.-CHITTY. 10 Peerage may be gained for life by act of law, as if a duke take a wife, she is a duchess in law by the intermarriage; so of a marquis, earl, &c. Co. Litt. 16, b. Also the dignity of an earl may descend to a daughter, if there be no son, who shall be a countess; and if there are many daughters, it is said the king shall dispose of the dignity to which daughter he pleases. Co. Litt. 165, a. If a person has been summoned as a baron to parliament by writ, and, after sitting, die, leaving two or more daughters, who all die, one of them only leaving issue a son, such issue has a right to demand a seat in the house of peers. Skin. 441. Though dignities of peerage are granted from the crown, yet they cannot be surrendered to the crown, except it be in order to new and greater honours, nor are they transferable unless they relate to an office; and notwithstanding there are instances of earldoms being transferred, and wherein one branch of a family sat in the house of peers by virtue of a grant from the other branch, particularly in the reigns of Henry III. and Edw. II., these precedents have been disallowed. Lex. Const. 85, 86, 87. And it seems now settled, that a peerage cannot be transferred (unless we consider the summoning of the eldest son of a peer by writ as a transfer of one of his father's baronies) without the concurrence of parliament, at least in those cases where the noble personage has no barony to remain in himself, as, otherwise, on the transfer he would himself be deprived of his peerage, and be made ignoble by his own act. See Watkins's Notes on Gilbert's Tenures, note xi. on p. 11, and p. 361.-CHITTY. But the grant of a peerage for life merely does not make the grantee a lord of parliament. Wensleydale Peerage, Sept. 1855-56.-Kerr. "But this is only in treason, felony, and misprision of the same. See magna carta, 9 Henry III. 29. 2 Inst. 49. And a peer, it seems, cannot waive the trial by his peers. Kel. 56. 1 Stat. Trial, 265. 2 Rush. 64. And if he refuses to put himself on his peers, he may be dealt with as one who stands mute; yet if one who has a title to peerage be indicted and arraigned as a commoner, and plead not guilty, and put himself upon the country, he cannot afterwards suggest he is a peer, and pray trial by his peers. 2 Hawk. P. C. c. 44, s. 19; and see further, post, 4 book 260. In all misdemeanours, as libels, riots, perjury, conspiracies, &c., a peer is tried like a commoner, by a jury. 3 Inst. 30. Hawk. P. C. b. 2, ch. 44, sects. 13, 14. So in case of an appeal of felony, he is to be tried by a jury, (9 Co. Rep. 30, 2 Inst. 49;) and the indictments of peers for treason or felony are to be found by freeholders of the county, and then the peers are to plead before the high steward, &c. 1 Inst. 156. 3 Inst. 28. Peers (Fortesc. 359) and members of parliament have no exemption from arrest in case of treason, felony, or actual breach of the peace, (4 Inst. 24, 5. 2 Wils. 159, 160. 11 Hargr. St. Tr. 305;) but a peer menacing another person, whereby the latter fears his life is in danger, no writ of supplicavit, but a subpoena, issues, and when the peer appears, instead of surety, he only promises to keep the peace. 35 Hen. VI. The privilege of peers does not extend to foreign noblemen, who have no more privileges here than commoners. Co. Litt. 156. 2 Inst. 48. Lex. Const. 80, 81. The peers of Scotland and Ireland had no privilege in this kingdom before the union; but, by clauses in the respective articles of union, the elected peers have all the privileges of peers of parliament; also all the rest of the peers of Scotland and Ireland have ail the privileges of the peerage of England, excepting only that of sitting and voting in parliament; and Irish peers, who are members of the house of commons, are not entitled to the privilege of peerage. See the act of union, 39 & 40 Geo. III. c. 67. An Irish 12 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 subject, 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 parlia ment, and sit there by virtue of their baronies, which they hold jure ecclesiæ, yet are not ennobled in blood, and consequently not peers with the nobility.(s) As to peeresses, there was no precedent for their trial when accused of treason or felony, till after Eleanor duchess of Gloucester, wife to the lord protector, was accused of treason, and found guilty of witchcraft, in an established synod, through the intrigues of cardinal Beaufort. This very extraordinary trial gave occasion to a special statute, 20 Hen. VI. c. 9, which declares(t) the law to be, that peeresses, either in their own right or by marriage, shall be tried before the same judicature as other peers of the realm.13 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.(u)15 Yet if a duchess dowager marries a baron, she continues a duchess still; for all the *nobility are pares, and therefore it is no degra *402] dation.(v) A peer, or peeress, either in her own right or by marriage, cannot be arrested in civil cases: (w) and they have also many peculiar privileges annexed to their peerage in the course of judicial proceedings. A peer, sitting (4) 3 Inst. 30, 31. () Moor, 769. 2 Inst. 60. 6 Rep. 52. Staundf. P. C. 152. () Dyer, 79. Co. Litt. 16. (*) 2 Inst. 50. Finch, 1. 355. 1 Ventr. 298. 16 peer ought not to serve upon a grand jury, unless he is a member of the house of commons. Russell & Ryl. Cro. C. 117. A Roman Catholic peer has not the privilege of franking letters. 2 B. & P. 139.-CHITTY. 12 The bishops being summoned to parliament as peers might thereby have become entitled to trial by peers; but, unless bishops were to try bishops, none others are properly peers of bishops. These peers of lords are peculiarly designated spiritual. It may be observed that, although lords of parliament, they never sit upon matters of treason or of blood; and it would be a strange anomaly that upon a bishop all other lords of parliament, save bishops, who are also lords, might, in capital cases, pass judgment of death. Bishops Cranmer and Fisher were tried by jury. It is to the honour of this high order of men, that, through a long succession of its members, few, comparatively, have been exposed to public trial. Laud, who had miscalculated his times, and mistaken the men whom he had goaded into enmity, was, indeed, impeached.—CHITTY. 13 The last peeress tried was the late duchess of Kingston, for bigamy. See 20 H. St. Tr. 355.-CHITTY. 14 But she communicates no rank or title to her husband. Harg. Co. Litt. 326, b. There have been claims, and these are supported by authorities, by a husband after issue to assume the title of his wife's dignity, and after her death to retain the same as tenant by the curtesy; but, from Mr. Hargrave's statement of this subject, in Co. Litt. 29, b. n. 1, there is no probability that such a claim would now be allowed.-CHRISTIAN. 15 Yet she is commonly called and addressed by the style and title which she bore before her second marriage, but this is only by courtesy; as the daughters of dukes, marquesses, and earls are usually addressed by the title of lady, though in law they are commoners. In a writ of partition brought by Ralph Haward and lady Anne Powes his wife, the court held that it was a misnomer, and that it ought to have been by Ralph Haward and Anne his wife, late wife of lord Powes deceased. Dyer, 79.-CHRISTIAN. 16 See Tidd, 8 ed. 194. This privilege is extended, by the act of union with Scotland, to Scotch peers and peeresses, (5 Anne, c. 8, art. 23; and see Fort. 165. 2 Stra. 990.) and, by the act of union with Ireland, to Irish peers and peeresses. 30 & 40 Geo. III. c. 67, art. 4; but see 7 Taunt. 679. 1 Moore, 410, S. C. But this privilege does not protect them from attachments for not obeying the process of the courts, (1 Wils, 332;) nor does it extend to peeresses by marriage, if they afterwards intermarry with commoners. Co. Litt. 16. The servants of peers are liable to arrest. 10 Geo. III. and see 1 Chit. Rep. 83. Peers of the realm cannot be bail. 2 Marsh, 232; and see 1 D. & R. 126. C. 50: A subpoena is not in the first instance awarded out of chancery in a suit, but a letter from the lord chancellor, or lord keeper in lieu thereof, which if he does not answer, then a subpoena issues, then an order to show cause why a sequestration should not go; in judgment, gives not his verdict upon oath, like an ordinary juryman, but upon his honour:(x) he answers also to bills in chancery upon his honour, and not upon his oath ;(y) but, when he is examined as a witness either in civil or criminal cases, he must be sworn (2)" for the respect which the law shows to the honour of a peer, does not extend so far as to overturn a settled maxim, that in judicio non creditur nisi juratis. (a) 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 magnatnm, and subjected to peculiar punishments by divers ancient statutes.(b) A peer cannot lose his nobility, but by death or attainder; 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, (c) on account of his poverty, which rendered him unable to support his dignity.(d) But this is a singular instance, which serves at the same time, by having happened, to show the power of parliament; and, by having happened but once, to show how tender the parliament hath been, in exerting so high a power. It hath been said indeed,(e) that if a baron wastes his estates so that he is not able to support the degree, the king may degrade him: but it is expressly held by later authorities,(ƒ) that a peer cannot be degraded but by act of parliament. *The commonalty, like the nobility, are divided into several degrees; [*403 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.(g) The first name of dignity, next beneath a peer, was anciently that of vidames, vice-domini, or valvasors: (h) who are mentioned by our ancient lawyers(i) as viri magnæ dignitatis; and Sir Edward Coke(j) speaks highly of them. Yet they are now quite out of use; and our legal antiquaries are not agreed upon even their original or ancient office. Now therefore the first personal 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 (but not till after certain official dignities, as privy-counsellors, the chancellors of the exchequer and duchy of Lancaster, the chief justice of the King's Bench, the Master of the Rolls, and the other English judges) 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 his precedence before the younger sons of viscounts was confirmed to him by order of king James I., in the tenth year of his reign.(1) But, in order to entitle 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 and if he still stands out, then a sequestration; and the reason is, because there is no process of contempt against his person. 2 Vent. 342.-CHITTY. 17 If he is examined as a witness in the high court of parliament, he must be sworn. The bishop of Oxford was sworn in the impeachment of lord Macclesfield, and lord Mansfield (then lord Starmont) in that of Mr. Hastings.-CHRISTIAN. Now, by the statute of 3 & 4 Gul. IV. c. 49, it is enacted that all Quakers and Moravians shall be permitted to make an affirmation instead of taking an oath, in all places and for all purposes whatsoever where an oath is or shall be required, either by common or statute law. Declarations have been substituted, by the statute of 5 & 6 Gul. IV. c. 62, in many cases where oaths were formerly required.—HOVEDEN. 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;18 for which reason all baronets have the arms of Ulster superadded to their family coat.19 Next follow knights of the bath; an order instituted by king Henry IV., *and revived by king George the First. They are so called *404] from the ceremony of bathing the night before their creation. The last of these inferior nobility are knights bachelors; the most ancient, though the lowest, order of knighthood amongst us :22 for we have an instance(n) of king Alfred's conferring this order on his son Athelstan. The custom of the ancient 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 household; after it, as part of the community.(0) Hence some derive the usage of knighting, which has prevailed all over the western world, since its 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 a horse. They are also called in our law milites, because they formed a part of the royal army, in virtue of their feodal tenures; one condition of which was, that every one who held a knight's fee immediately under the crown, which in Edward the Second's time() amounted to 201. 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 by the statute 16 Car. I. c. 16, abolished; and this kind of knighthood has, since that time, fallen into great disregard. 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 (n) Will. Malmsb. lib. 2. () Tac. de Morib Germ. 13. (P) Camd. ibid. Co. Litt. 74. (9) Stat. de Milit. 1 Ed. II. 18 One hundred gentlemen advanced each one thousand pounds, for which this title was conferred upon them. 2 Rap. 185, fo.-CHRISTIAN. 19 The arms of Ulster are a hand gules, or a bloody hand, in a field argent.-CHRISTIAN. 20 Upon the conclusion of the continental war, the original constitution of this order became so modified and extended as to admit of naval or military members bearing a grand cross, and the name or title of military knight grand cross.-CHITTY. 21 The most probable derivation of the word "bachelor" is from bas and chevalier, an inferior knight, and thence Latinized into the barbarous word baccalaureus. Ducange, Bac. The lowest graduates in the universities are styled bachelors, and were, till lately, addressed with sir before their surname; as in Latin they are still called domini. It is somewhat remarkable, that whilst this feudal word has long been appropriated to single men, another feudal term of higher dignity-viz., baron-should, in legal language, be applied to those who are married.-CHRISTIAN. There are also other orders of knights, as knights of the chamber, knights of the order of St. John of Jerusalem, knights of Malta, the knight marshal, knights of the Rhodes, knights of the shire, knights templars, knights of the thistle, and knights of St. Patrick.-CHITTY. 23 It does not appear that the English word knight has any reference to a horse; for knight, or cnih in the Saxon, signified puer, servus, or attendant. 2 Seld. Tit. Hon. c. 5, 33.-CHRISTIAN. 24 Considerable fees accrued to the king upon the performance of the ceremony. Edward VI. and queen Elizabeth had appointed commissioners to compound with all persons who had lands to the amount of 401. a year, and who declined the honour and expense of knighthood. Charles the First followed their example; upon which Mr. Hume artfully remarks that "nothing proves more plainly how ill disposed the people were to the measures of government, than to observe that they loudly complained of an expedient founded on positive statute, and warranted by such recent precedents." Vol. vi. 296.-CHRISTIAN. last(s) the heralds rank all *colonels, serjeants at law, and doctors in the three learned professions. [*405 [*406 *Esquires and gentlemen are confounded together by Sir Edward Coke, who observes,(t) 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 its owner. Camden, who was himself a herald, distinguishes them the most accurately; and he reckons up four sorts of them :(u) 1. The eldest sons of knights, and their eldest sons, in perpetual succession:(v) 2. The eldest sons of younger sons of peers, and their eldest sons in like perpetual succession: both which species of esquires Sir Henry Spelman entitles armigeri natalitii.(w) 3. Esquires created (*) The rules of precedence in England may be reduced to the following table, in which those marked are entitled to the rank here allotted them, by statute 31 Hen. VIII. c. 10; marked †, by statute 1 W. and M. c. 21, marked, by letterspatent, 9, 10, and 14 Jac. I., which see in Seld. Tit. of Hon. ii. 5, 46, and ii. 11, 3; marked, by ancient usage and established custom, for which see, among others, Camden's Britannia, tit. Ordines; Milles's Catalogue of Honour, edit. 1610; and Chamberlayne's Present State of England, b. 3, ch. 3. *Barons. + Speaker of the House of Commons. + Lords Commissioners of the Great Seal. Privy Counsellors. Chief Justice of the King's Bench. Chief Justice of the Common Pleas Barons' younger sons. Knights Bannerets. Knights Bachelors. Knights' eldest sons. Colonels. Doctors. Yeomen. Tradesmen. Artificers. Labourers. N.B. Married women and widows are entitled to the same rank among each other as their husbands would respectively have borne between themselves, except such rank is merely professional or official, and unmarried women to the same rank as their eldest brothers would bear among men during the lives of their fathers. (t) 2 Inst. 688. 25 It is said that before the conquest, by a constitution of pope Gregory, the two archbishops were equal in dignity, and in the number of bishops subject to their authority, and that William the Conqueror thought it prudent to give precedence and superiority to the archbishop of Canterbury; but Thomas, archbishop of York, was unwilling to acknowledge his inferiority to Lanfranc, archbishop of Canterbury, and appealed to the pope, who referred the matter to the king and barons; and in a council held at Windsor Castle, they decided in favour of the archbishop of Canterbury. Godw. Com. de Præsul. 665. But the archbishops of York long afterwards refused to acquiesce in this decision; for bishop Godwin relates a curious and ludicrous struggle, which took place in the reign of Hen. II., above one hundred years afterwards, between Roger, archbishop of York, and Richard, archbishop of Canterbury, for the chair on the right hand of the pope's legate. Ib. 79. Perhaps to this decision, and their former equality, we may refer the present distinction between them; viz., that the archbishop of Canterbury is primate of all England, and the archbishop of York is primate of England.-CHRISTIAN. 2 Vice-chancellor, by stat. 53 Geo. III. c. 24.—CHitty. |