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 ances tors; 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 takes his seat in the house of lords: 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: (9) 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. 10 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 [401] 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. (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. "

q Whitelocke of parl. ch. 114.

r Co. Litt. 16.

s Co. Litt. 9. 16.

(9) Lord Coke, Co. Lit. 16. (b) is of opinion, that if a man summoned to parliament by writ, once sit in the house of peers, though there be no words of inheritance in the writ, he gains a ba rony to him and his heirs. See this subject discussed in Sullivan's Lectures, 190.; and see Com. Dig. Dignity, C. 3. But in Mr. Christian's ed. and 1 Woodd. 37. it is said, that this doctrine of lord Coke is now understood to be erroneous, and that a creation by writ does not confer a fee simple in the title, but only an estate tail general.

When a lord is newly created, he is introduced into the house of peers by two lords of the same rank, in their robes, garter king at arms going before; and his lordship is to present his writ of summons, &c. to the chancellor, which, being read, he is conducted to his place; and lords by descent, where nobility comes down from the ancestors, and is enjoyed by right of blood, are introduced with the same ceremony, the presenting of the writ excepted. Lex Constitutionis, 79. (10) Where the father's barony was limited by patent to him and the heirs male of his body, and his eldest son was called up to the house of lords by writ with the title of this barony, it was held, that the writ in this case did not create a free 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 united, or became one and the same. Case of the claim to the barony of Sidney of Penshurst disallowed. Dom. Proc 17 June 1782.

(11) 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. Lit. 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 Lit. 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 transferrable 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, 6, 7. 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.

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. 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 subjects, that of being tried by their equals, which is secured to all the realm by magna charta, 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. () 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 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 (1) 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. If a woman, noble in her own right, marries a commoner, she still remains noble, 13 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) 14 Yet if a duchess dowa

s Inst. 30, 31.

t Moor. 769. 2 Inst. 50. 6 Rep. 152. Staundf. P. C. 152.
u Dyer, 79. Co. Litt. 16.

(12) But this is only in treason, felony, and misprision of the same. See inagna charta, 9 Hen. 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 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 4 vol. 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. ch. 44. sect. 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 bere than commoners. Co. Lit. 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. See the act of union, 59 & 40 Geo. III. c. 67. 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. A Roman catholic peer has not the privilege of franking letters. 2 B. & P. 139. Chitty.

(13) 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 courtesy ; 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. Chitty

(14) 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. Chitty

ger marries a baron, she continues a duchess still; for all the nobi lity are pares, and therefore it is no degradation. (v) A peer, or [402] peeress (either in her own right or by marriage), cannot be arrested

15

in civil cases; (w) 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: (a) 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) 16 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 punishments by divers ancient statutes. (a)

17

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, (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 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, (e) that a peer cannot be degraded but by act of parliament.

The commonalty, like the nobility, are divided into several degrees;

v 2 Inst. 50.

x 1 P. Wms. 146.

w Finch. L. $55. 1 Vent. 298.
y Salk. 512.

a 3 Edw. I. c. 34, 2 Ric. II. st. 1. c. 5. 12 Ric. II. c. 11.

w 2 Inst. 49.
z Cro. Car. 64.
b 4 Inst. 355.

e 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 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."

d Moor. 678.

e 12 Rep. 107. 12 Mod. 56.

(15) See Tidd. 8 ed. 194. This privilege is extended, by the act of union with Scotland, to Scotch peers and peeresses. 5 Ann. c. 8. art. 23. and see Fort. 165. 2 Stra. 990. And, by the act of union with Ireland, to Irish peers and peeresses. 39 & 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. Lit. 16. The servants of peers are liable 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. & R. 126.

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 shew cause why a sequestration should not go; 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

(16) 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 (ther lord Stormont,) in that of Mr. Hastings.

(17) Though these statutes do not expressly give an action, yet the party injured may maintain it on the 2 Rich. II. st. 1. c. 5. 2 Inst. 118. 10 Co. Rep. 75, 6. Though the dignity of viscount was not created when this statute was passed, yet such dignity is within the statute, Cro. Car. 135.; and a peer of Scotland, since the union, may also take advantage of the statute. Com. Rep. 439. No writ of error can be brought on this action in the exchequer chamber. Cro. Car. 142. There is a dictum in 2 Show. 506, that in this action the plaintiff is not entitled to costs. Words are actionable in the case of a peer, which are not so in that of a common person. As to say of a peer," he is an unworthy man, and acts against law and ." Ld. Townshend v. Dr. Hughes, 2 Mod. 150. Freem. 49. Comyn. Rep. 439. Chilly. VOL. I. 39

reason.

and as the lords, though different in rank, yet all of them are peers [403] 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)

The first name of dignity, next beneath a peer, was anciently that of vidames, vice-domini, or valvasors: (g) who are mentioned by our ancient lawyers (h) as viri magnae dignitatis; and sir Edward Coke (1) 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 is a dignity of inheritance, created by letters patent, and usually descendible to the issue male. It was first instituted by king James First, A. D. 1611; in order to raise a com

petent sum for the reduction of the province of Ulster in Ireland; for [404] 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; 19 the most ancient, 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 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. (o) 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 an horse. 20 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 (9)

(19) 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.

(20) It does not appear that the English word knight has any reference to a horse; for knight, or cniht in the Saxon, signifies puer, servus, or attendant. 2 Seld, tit, hon. c. 5. s. 33.

pre

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 rogative 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 last the heralds rank all colonels, serjeants at law, [405] and doctors in the three learned professions. (s)

r 2 Inst. 667.

s 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. & 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 t, 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. p. 3. ch. 3. TABLE OF PRECEDENCE.

† Speaker of the house of commons.
Lords commissioners of the great seal.
Viscounts' eldest sons.

Earl's younger sons.
Barons' eldest sons.
Knights of the Garter.

Privy counsellors.

Chancellor of the exchequer.

Il Chancellor of the duchy.

Chief justice of the king's bench.
Master of the Rolls. (22)

Chief justice of the common pleas.
Chief baron of the exchequer.
Judges and barons of the coif.

Knights bannerets royal.

Viscounts' younger sons.

Baron's younger sons.
Baronets.

Knights bangerets.

Knights of the Bath.

Knights bachelors.

Baronets' eldest sons.

Knights' eldest sons.

Baronet's younger sons.

Knights' younger sons.
Colonels.

Serjeants at law.

Doctors.

Esquires.

Gentlemen.

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.

(21) 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 bishop's 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. Comm. de Præsul. 665.

But the archbishop 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 archbi shop 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 archishop of Canterbury is primate of all England, and the archbishop of York is primate of England.-Mr. Christian's note.

(22) By the statute 53 Geo. III. c. 24. which creates the office, the vice-chancellor takes prece dence next to the master of the rolls. His salary is 5000l. a year clear of all deductions what

ever.