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Book I: The Rights of Persons · Chapter 12 · first edition pages 384-394 · about 15 minutes

Of the Civil State

Section headings, the boxes marked "Added by the editor" and the reading list at the end are not part of Blackstone's text. Everything else is Blackstone's, from the Oxford first edition, with the long s printed as a modern s.

The lay part of his majesty's subjects, or such of the people as are not comprehended under the denomination of clergy, may be divided into three distinct states, the civil, the military, and the maritime.

That part of the nation which falls under our first and most comprehensive division, the civil state, includes all orders of men, from the highest nobleman to the meanest peasant; that are not included under either our former division, or clergy, or under one of the two latter, the military and maritime states: and it may sometimes include individuals of the other three orders; since a nobleman, a knight, a gentleman, or a peasant, may become either a divine, a soldier, or a seaman.

Nobility and commonalty

The civil state consists of the nobility and the commonalty. Of the nobility, the peerage of Great Britain, or lords temporal, as forming (together with the bishops) one of the supreme branches of the legislature, I have before sufficiently spoken: we are here to consider them according to their several degrees, or titles of honour.

Degrees of nobility

All degrees of nobility and honour are derived from the king as their fountain1: and he may institute what new titles he pleases. Hence it is that all degrees of honour are not of equal antiquity. Those now in use are dukes, marquesses, earls viscounts, and barons2.

Dukes

1. A duke, though it be with us, as a mere title of nobility, inferior in point of antiquity to many others, yet it is superior to all of them in rank; being the first title of dignity after the royal family3. Among the Saxons the Latin name of dukes, duces, is very frequent, and signified, as among the Romans, the commanders or leaders of their armies, whom in their own language they called perecoza4; and in the laws of Henry I (as translated by Lambard) we find them called beretocbii. But after the Norman conquest, which changed the military polity of the nation, the kings themselves continuing for many generations dukes of Normandy, they would not honour any subjects with that title, till the time of Edward III; who, claiming to be king of France, and thereby losing the ducal in the royal dignity, in the eleventh year of his reign created his son, Edward the black prince, duke of Cornwall: and many, of the royal family especially, were afterwards raised to the same honour. However, in the reign of queen Elizabeth, A. D. 15725, the whole order became utterly extinct: but it was revived about fifty years afterwards by her successor, who was remarkably prodigal of honours, in the person of George Villiers duke of Buckingham.

Marquesses

2. A marquess, marchio, is the next degree of nobility. His office formerly was (for dignity and duty were never separated by our ancestors) to guard the frontiers and limits of the kingdom; which were called the marches, from the teutonic word, marche, a limit: as, in particular, were the marches of Wales and Scotland, while they continued to be enemies countries. The persons who had command there, were called lords marchers, or marquesses; whose authority was abolished by statute 27 Hen. VIII. c. 27. though the title had long before been made a mere ensign of honour; Robert Vere, earl of Oxford, being created marquess of Dublin, by Richard II in the eighth year of his reign6.

Earls

3. An earl is a title of nobility so antient, that it's original cannot clearly be traced out. Thus much seems tolerably certain: that among the Saxons they were called ealdormen, quasi elder men, signifying the same as fen'or or senator among the Romans; and also schiremen, because they had each of them the civil government of a several division or shire. On the irruption of the Danes, they changed the name to eorles, which, according to Camden7, signified the same in their language. In Latin they are called comites (a title first used in the empire) from being the king's attendants; "a societate nomen sumpserunt, reges enim tales sibi associant8." After the Norman conquest they were for some time called counts, or countees, from the French; but they did not long retain that name themselves, though their shires are from thence called counties to this day. It is now become a mere title they having nothing to do with the government of the county; which, as has been more than once observed, is now entirely devolved on the sheriff, the earl's deputy, or vice-comes. In all writs, and commissions, and other formal instruments, the king, when he mentions nay peer of the degree of an earl, always stiles him "trusty and well beloved cousin:" an appellation as antient as the reign of Henry IV; who being either by his wife, his mother, or his sisters, actually related or allied to every earl in the kingdom, artfully and constantly acknowleged that connexion in all his letters and other public acts; from whence the usage has descended to his successors, though the reason has long ago failed.

Viscounts

4. The name of vice-comes or viscount was afterwards made use of as an arbitrary title of honour, without any shadow of office pertaining to it, by Henry the sixth; when in the eighteenth year of his reign, he created John Beaumont a peer, by the name of viscount Beaumont, which was the first instance of the kind9.

Barons

5. A baron's is the most general and universal title of nobility; for originally every one of the peers of superior rank had also a barony annexed to his other titles10. But it hath sometimes happened that, when an antient baron hath been raised to a new degree of peerage, in the course of a few generations the two titles have descended differently; one perhaps to the male descendants, the other to the heirs general; whereby the earldom or other superior title hath subsisted without a barony: and there are also modern instances where earls and vidcounts have been crated without annexing a barony to their other honours: so that now the rule does not hold universally, that all peers are barons. The original and antiquity of baronies has occasioned great enquiries among our English antiquarians. The most probable opinion seems to be, that they were the same with our present lords of manors; to which the name of court baron, (which is the lord's court, and incident to every manor) gives some countenance. It may be collected from king John's magna carta11, that originally all lords of manors, or barons, that held of the king in capite, had seats in the great council or parliament, till about the reign of that prince the conflux of them became so large and troublesome, that the king was obliged to divide them, and summon only the greater barons in person; leaving the small ones to be summoned by the sheriff, and (as it is said) to sit by representation in another house; which gave rise to the separation of the two houses of parliament12. By degrees the title came to be confined to the greater barons, or lords of parliament only; and there were no other barons among the peerage but such as were summoned by writ, in respect of the tenure of their lands or baronies, till Richard the second first made it a mere title of honor, by conferring it on divers persons by his letters patent13.

The creation of peers

Having made this short enquiry 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 honors, castles, manors, and the like the proprietors and possessors of which were (in right of those estates) allowed to be peers of the realm, 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 antient baronies annexed, or supposed to be annxed, to their episcopal lands14: and thus, in 11 Hen. VI, the possession of the castle of Arundel was adjudged to confer an carldom on it's possessor15. 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 them or their 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 stile 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 antient way; but a man is not ennobled thereby, unless he actually takes his seat in the house of lords: 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 it16. 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 grand-father. Creation by writ has also one advantage over that by patent: for a person crated by writ holds the dignity to him and his heirs, without any words to that purport in the writ; but in letters patent there must be words to direct the inheritance, else the dignity enures only to the grantee for life17. For a man or woman may be crated 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 of future wife.

Privileges and incidents of the peerage

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 he editary 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 nobilitygf. As to peersses, no provision was made for their trail 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, them 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 degradation19. A peer, or peeress (either in her own right or by marriage) cannot be arrested in civil cases20: and they have also many peculiar privileges annexed to their peerage in the course of judicial proceedings. A peer, siting in judgment, gives not his verdict upon oath, like an ordinary juryman, but upon his honour21: he answers also to bills in chancery upon honour, and not upon his oath22; but, when he is examined as a witness either in civil or criminal cases, he must be sworn23: 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 juratis24. 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 statutes25.

Apeer cannot lose his nobility, but by death or attainder; hough there was an instance, in the reign of Edward the fourth, of the degradation of George Nevile duke of Bedford by act of parliament26, on account of his poverty, which rendered him unable to support his dignity27. 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 indeed28, 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 authorities29, that a peer cannot be degraded but by act of parliament.

The commonalty

The commonalty, like the nobility, are divided into several degrees; and, as the lords, though different in rankl, 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 nobility30.

The first name of dignity, next beneath a peer, was antiently that of vidames, vice dominni, or valvasors31: who are mentioned by our antient lawyers32 as viri magnae dignitatis; and sir Edward Coke33 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 antient office.

Knights

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. 134434. 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 reign35. 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 war36. 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 instance37 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 public38. 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 feryed on horseback: for it is observablep,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 time40 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 king of knighthood has, since that time, fallen into great disregard.

These, sir Edward Coke says41, 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.

Esquires and gentlemen

Esquires and gentlemen are confounded together by sir Edward Coke, who observes42, 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 some-what 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 them43: 1. The eldest sons of knights, and their eldest sons, in perpetual succession44. 2. The younger sons of peers, and their eldest sons, in like perpetual succession: both which species of esquires sir H. Spelman entitles armigeri natalitii45. 3. Esquires created by the king's letters patent, or other investiture; and their eldest sons. 4. Esquires by virtue of thier 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 o 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 prosceedings46. As for gentlemen, says sir Thomas Smith47, 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 o the shire, and do any other act, where the law requires one that is probus et legalis homo.

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.

The original and more to read

Blackstone's notes

  1. 1. 4 Inst. 363.
  2. 2. For the original of these titles on the continent of Europe, and their subsequent introduction into this island, see Mr Selden's titles of honour.
  3. 3. Camden. Brian. tit. ordines.
  4. 4. This is apparently derived from the same root as the German herrzagen, the antient appellation of dukes in that country. Seld. tit. hon. 2. 1. 22
  5. 5. Camden. Britan. tit. ordines. Spelman. Gloss. 191.
  6. 6. 2 Inst. 5.
  7. 7. Ibid.
  8. 8. Bracton. l. 1. c. 8. Fleta. l. 1 c. 5.
  9. 9. 2 Inst. 5.
  10. 10. 2 Inst. 5, 6.
  11. 11. cap. 14.
  12. 12. Gilb. Hist. exch. c. 3. Seld. tit. of hon. 2. 5. 21.
  13. 13. 1 Inst. 9. Seld. Tan. Angl. 2. §. 66.
  14. 14. Glanv. l. 7. c. 1.
  15. 15. Seld. tit. of hon. b. 2. c. 9. §. 5.
  16. 16. Co. Litt. 16.
  17. 17. Co. Litt. 9 16.
  18. 18. 3 Inst. 30, 31.
  19. 19. 2 Inst. 50.
  20. 20. Finch. L. 355. 1 Ventr. 298.
  21. 21. 2 Inst. 49.
  22. 22. 1 P. Wms. 146.
  23. 23. Salk. 512.
  24. 24. Cro. Car. 64.
  25. 25. 3 Edw. I. c. 34. 2 Ric. II. st. 1. c. 5. 12 Ric. II. c. 11.
  26. 26. 4 Inst. 355.
  27. 27. 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 otentimes great extortion, embracery, and maintenance to be had; to the great trouble o all such counties where such estate shall happen to be: therefore & c."
  28. 28. By lord chancellor Ellesmere. Moor. 678.
  29. 29. 12 Rep. 107. 12 Mod. 56.
  30. 30. 2 Inst. 29.
  31. 31. Camden. Ibid.
  32. 32. Bracton. l. 1. c. 8.
  33. 33. 2 Inst. 667.
  34. 34. Seld. tit. of hon. 2. 5. 41.
  35. 35. Seld. tit. hon. 2. 11. 3.
  36. 36. 4 Inst. 6.
  37. 37. Will. Malmsb. lib. 2.
  38. 38. Tac. De morib. Germ. 13.
  39. 39. Camden. ibid. Co. Litt. 74.
  40. 40. Glanvil. l. 9. c. 4.
  41. 41. 2 Inst. 667.
  42. 42. 2 Inst. 668.
  43. 43. Ibid.
  44. 44. Inst. 667.
  45. 45. Gloss. 43.
  46. 46. 3 Inst. 30. 2. Inst. 667.
  47. 47. Common w. of Eng. Book 1. c. 20. z