Commentaries on the Laws of England

Having made this short inquiry 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, honours, castles, manors, and the like, the proprietors and possessors of which were, in right of those estates, allowed to be *peers of the realm, [*400] 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 ancient baronies annexed, or supposed to be annexed, to their episcopal lands; (0) and thus, in 11 Hen. VI, the possession of the castle of Arundel was adjudged to confer an earldom on its 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 him or his ancestors was admitted as a sufficient evidence of the tenure.

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 style 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 ancient way; but a man is not ennobled thereby, unless he actually take his seat in the house of lords: (6) and some are of opinion that there must be at least two writs of summons, and a sitting in two distinct parliaments, to evidence an hereditary barony: (g) 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. (r) 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 grandfather. (7) 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, (8) without any words to that purport in the writ; but [*401] in letters patent there must be words to direct the inheritance, else the dignity enures only to the grantee for life. (s) 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. (9)

(6) See the Wharton Peerage case 12 Cl. and Fin. 295.

(g) Whitlocks of Parl. ch. 144.

(7) [And where the father's barony is limited by patent to him and the heirs male of his body, and his eldest son is called up to the house of lords by writ with the title of this barony, the writ in this case will not create a fee or a general estate tail, so as to make a female capable of inheriting the title, but upon the death of the father the two titles unite, or become one and the same. Case of the claim to the barony of Sidney of Penshurst disallowed Dom. Proc. 17 June, 1782.]

(8) [But every claimant of the title must be descended from the person first ennobled. 1 Woodd. 37.]

(9) [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 marquess, 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.]

The practice of granting peerages for life was never common in England, and in a debate in parliament on the subject in 1856, it was stated that for four hundred years there was no

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. (10) The great are always obnoxious to popular envy: were they to be judged by the people, they might be in danger from the predjudice 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 parliament, 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. (t) (11) 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 ecclesiastical synod through the intrigues of Cardinal Beaufort. This very extraordinary trial gave occasion to a special statute, 20 Hen. VI, c. 9, which declares (u) the law to be, that peeresses, either in their own right or by marriage, shall be tried before the same

(t) 3 Inst. 30, 31.

(u) Moor, 769. 2 Inst. 60. 6 Rep. 52. Staundf. P. C. 152.

instance on record in which any man had been admitted to a seat in the house of lords as a peer for life. Many life peerages however had been created, principally by Charles II, and the first two Georges. In the year above mentioned it was proposed to increase the judicial strength of the house of peers by admitting some of the more eminent judges to seats there for life only, and Sir James Parke received letters patent creating him Lord Wensleydale for life. But the right to a seat under these letters was disputed, and the question referred to a committee of the house, upon whose report it was resolved, after full examination of precedents, that "neither the letters patent, nor the letters patent with the usual writ of summons issued in pursuance thereof, can entitle the grantee to sit and vote in parliament." The crown was forced to submit to this decision, and Lord Wensleydale soon after took his seat under a new patent, as hereditary peer. Later than this the lords resolved to empower the queen by statute to confer life-peerages with seats in parliament upon two judges, but the commons refused their assent. See Hansard's Debates, 3d series, vol. 160, p. 1152, et seq.; id. vol. 162, pp. 780, 899, 1059; id. vol. 163, pp. 428, 583, 613. Also 5 H. L. Cas. 958.

(10) [But this is only in treason, felony, and misprision of the same. See magna charta, 9 Henry III, 29; 2 Inst. 49. And a peer, it seems, cannot waive the trial by his peers. Kel. 56; 1 State Trials 265; 2 Rush. 64. And, if he refuse 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, book 4, 260.

In all misdemeanors, as libels, riots, perjury, conspiracies, &c., a peer is tried like a commoner by a jury: 3 Inst. 30; Hawk. P. C. b. 2, c. 44, ss. 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 id. 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, 25; 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 suplicavit, 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 or 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 all 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. An Irish peer ought not to serve upon a grand jury unless he is a member of the house of commons. Russell & Ryl. Cro. C. 117.]

(11) [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.]

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judicature as other peers of the realm. If a woman, noble in her own right, marries a commoner, she still remains noble, (12) 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. (v) (13) Yet if a duchess dowager marries a baron, she continues a duchess still; for all the *nobility are pares, and therefore it is no deg[*402] radation. (w) A peer, or peeress, either in her own right or by marriage, cannot be arrested in civil cases: (x) and they have also many peculiar privileges annexed to their peerage in the course of judicial proceedings. (14) A peer, sitting in judgment gives not his verdict upon oath, like an ordinary juryman, but upon his honour: (y) he answers also to bills in chancery upon his honour, and not upon his oath; (2) but, when he is examined as a witness either in civil or criminal cases, he must be sworn: (a) 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. (b) 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 punishments by divers ancient statutes. (c)

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, (d) on account of his poverty, which rendered him unable to support his dignity. (e) 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, (ƒ) that if a baron wastes 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, (g) 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. (h),

The first name of dignity, next beneath a peer, was anciently that of vidames, vice-domini, or valvasors: (i) who are mentioned by our ancient lawyers (j) as viri magnæ dignitatis: and Sir Edward Coke (k) 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. (7) 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

(w) 2 Inst. 50.

(z) 1 P. Wms. 146

(x) Finch. 1. 355. 1 Ventr. 298. (b) Cro. Car. 64. (v) Dyer, 79. Co. Litt. 16. (a) Salk. 512. (d) 4 Inst. 355. (y) 2 Inst. 49. (c) Edw. I, c. 34. 2 Ric. II, st. 1, c. 5. 12 Ric. II, c. 11. (e) The premable to the act is remarkable: Forasmuch as oftentimes it is seen, that when any lord is called to high estate, and hath not convenient livelihood 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.

(f) Moor. 678.

(j) Bracton, l. 1, c. 8.

(g) 12 Rep. 107. 12 Mod. 56.
(k) 2 Inst. 667.

(h) 2 Inst. 29. (i) Camden, Britan. t. Ordines. (1) Seld. Tit. of Hon. 2, 5, 41.

(12) [But she communicates no rank or title to her husband. Harg. Co. Litt. 326, b.] (13) [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. Dyer, 79.]

(14) [See Tidd, 8th ed. 194. This privilege does not protect them from attachments for not The servants of peers are liable 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.

to arrest. 10 Geo. III, c. 50. And see 1 Chit. Rep. 83. Peers of the realm cannot be bail. 2 Marsh. 232. And see 1 D. and R. 126.]

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. (m) 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. (n) 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; (15) 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 knight before their creation.

[*404]

The last of these inferior nobility are knights bachelors; the most ancient though the lowest, order of knighthood amongst us: (16) for we have an instance (0) 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. (p) 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, (q) 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 of the royal army, in virtue of their feudal 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 (r) 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; (17) 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, (s) are all the names of dignity in this kingdom, esquires and gentlemen being only names of worship. But before these last (t)

(p) Tac. de Morib. Germ. 13.
(8) 2 Inst. 667.

(m) Ibid. 2. 11. 3. (n) 4 Inst. 6. (0) Will. Malmsb. lib. 2. (9) Camd. ibid. Co. Litt. 74. (r) Stat. de Milit. 1 Edw. II. (t) 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 t, by statute 1 W. and M. c. 21; marked, by letters patent, 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 Bri tannia, Tit. Ordines. Milles's Catalogue of Honour, edit. 1610; and Chamberlayne's Present State of Eng land, b. 3, ch. 3. TABLE OF PRECEDENCE.

The king's children and grandchildren.

brethren.

uncles.

nephews.

Archbishop of Canterbury (18)

Lord Chancellor or Keeper, if a baron. *Archbishop of York.

* Lord Treasurer

}

* Lord Great Chamberlain. But)
see private stat. 1 Geo. I, c. 3,
* Lord High Constable,

* Lord Marshal,

* Lord Admiral,

* Lord Steward of the household

* Lord Chamberlain of the house

hold,

* Dukes.
Marquesses.

above all peers of their own degree.

(15) [One hundred gentlemen advanced each one thousand pounds; for which this title was conferred upon them. 2 Rap. 185, fo.]

(16) [There are also other orders of knights; as knights of the chamber; knights of the order of St. John of Jerusalem; knights of Malta; knight marshal; knights of the Rhodes; knights of the shire; knights templars; knights of the thistle, and knights of St. Patrick.]

(17) [Considerable fees accrued to the king upon the performance of the ceremony.]

(18) [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 257

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the heralds rank all *colonels, sergeants at law, and doctors in the three learned professions.

[*405] [*406] *Esquires and gentlemen are confounded together by Sir Edward Coke, who observes, (u) 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: (v) 1. The eldest sons of knights, and their eldest sons in perpetual succession: (w) 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. (x) 3. Esquires created by the king's letters patent, or other investiture; (19) and their eldest sons. 4. Esquires by

Chancellor of the Exchequer.

Chief Justice of the King's Rench.

Master of the Rolls.

Chief Justice of the Common Pleas
Chief Baron of the Exchequer.

Judges, and Barons of the Coif.
Knights Bannerets, royal.

Viscounts' younger sons.

Barons' younger sons.
Baronets.

Knights Bannerets.
Knights of the Bath.

Knights Bachelors.

Baronets' eldest sons.

Knights' eldest sons.

Baronets' younger sons.
Knight's younger sons.
Colonels.

Serjeants-at-law.
Doctors.
Esquires.
Gentlemen.

Yeomen.
Tradesmen.

Artificers.
Labourers. [20]

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.

(u) 2 Inst. 668.

(v) 2 Inst. 668.

(w) 2 Inst. 667.

(x) Gloss. 43.

the matter to the king and barons; and in a council held at Windsor-castle, they decided in favor of the archbishop of Canterbury. Godw. Comm. 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 Henry 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.]

(19) Now disused.

(20) The present order of precedence is as follows: The Prince of Wales.

The Sovereign's younger sons and grandsons.

66 brothers.