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.