Commentaries on the Laws of England Part 36

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 c.o.ke[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 n.o.bility, is a _knight_ of the order of St. George, or _of the garter_; first inst.i.tuted 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 int.i.tle 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 t.i.tle is a dignity of inheritance, created by letters patent, and usually descendible to the issue male. It was first inst.i.tuted 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 inst.i.tuted 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 n.o.bility 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. t.i.t. of hon. 2. 5. 41.]

[Footnote l: Seld. t.i.t. 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 c.o.ke 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 c.o.ke, 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 n.o.bility, 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 const.i.tutes 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 ent.i.tles _armigeri natalitii_[w].

3. Esquires created by the king's letters patent, or other invest.i.ture; 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 const.i.tutes three at his installation; and all foreign, nay, Irish peers; and the eldest sons of peers of Great Britain, who, though generally t.i.tular 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 h.o.m.o_[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 const.i.tution, 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 const.i.tution 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 const.i.tuted through every province and county in the kingdom; being taken out of the princ.i.p.al n.o.bility, 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 a.s.sembly, or folkmote, in the same manner as sheriffs were elected: following still that old fundamental maxim of the Saxon const.i.tution, 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 pa.s.sage of Tacitus[c], "_reges ex n.o.bilitate, duces ex virtute sumunt_;" in const.i.tuting 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 ent.i.tled 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 s.p.a.ce 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 const.i.tution, 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 s.p.a.ce 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 n.o.bis explendum et peragendum, c.u.m opus adfuerit, secundum quod debent de feodis et tenementis suis de jure n.o.bis 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 const.i.tution, that their pospolite, or militia, cannot be compelled to serve above six weeks, or forty days, in a year. Mod.

Univ. Hist. x.x.xiv. 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 quant.i.ty 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 const.i.tuted 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 princ.i.p.ally 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 princ.i.p.al 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 const.i.tutional 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.]