gunt eos gladiis, &c. And from thence is derived the French title of count, whence our counties are named. Madox seems to be of opinion that titular earldoms, distinct from the government of a county, were as ancient as the Conquest; but lord Lyttleton holds that they were considered irregular so late as the reign of king Henry II.2 The name of earls, however, became in process of time, and is now, a mere title; and the government of the county has entirely devolved on the sheriff, who was originally the vice-comes, or the earl's deputy. Earls are privileged to be addressed by the king or queen, in all commissions, writs, and other formal instruments, with the style of "trusty and well-beloved cousin ;" an appellation, according to Blackstone, as ancient as the reign of Henry IV.; who being, either by his wife, his mother, or his sisters, actually related or allied to every earl then in the kingdom, artfully and constantly acknowledged 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.3 The next title of dignity in point of antiquity, and the first of all in point of rank, is that of dux, duke, which originally signified the commander of an army, both among the Romans and Saxons. This title (which in elder times, Selden says, was synonymous with that of earl) was first granted in the eleventh year of king Edward III., when that monarch created his eldest son the Black Prince, being then earl of Chester, duke of Cornwall.4 In the Bract. 1. i. c. viii. §. 2. Fleta, 1. i. c. v. And see Nevil's case, 7 Rep. 34. 2 Madox, Baronia Angl. b. i. c. i. p. 143. Lyttleton, Hist. Hen. II. vol. ii. p. 217. 3 Blackst. Com. b. i. c. xii. p. 398. • Cruise on Dign. c. i. § 52, 53. reign of queen Elizabeth the whole order became 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.1 The title of marquess, distinct from other titles of honour, was unknown in England till the reign of king Richard II., who created Robert de Vere, then earl of Oxford, marquess of Dublin for life, by a charter which is entered on the rolls of parliament." But the name of marchio, or marquess, had long before been applied to both earls and barons, especially those who were entrusted with the defence of the frontiers or marches of the kingdom, whence they were also called lords marchers; and afterwards (as we have seen) it became a special dignity, placed next beneath that of duke, and immediately above that of earl.3 The office of lords marchers of the Welsh frontier was abolished by stat. 27 Hen. VIII. c. xxvi.; but those on the Scottish frontier seem to have existed till the accession of James I. to the English crown. The next creation of a marquess was that of John Beaufort, earl of Somerset, which gave rise to a singular circumstance. The earl was created marquess of Dorset by king Richard II., but was deprived of that title by king Henry IV. The commons afterwards petitioned the king that he might be restored to the rank of marquess; but the roll of parliament informs us, that sur ceo, le dit conte, engenulant, moult humblement pria au roy, que comme le noun de marquis fust estrange noun en cest roialme, q'il ne luy vorroit ascunement donner cel noun de marquis. Car jamais par congie du roy il ne vorroit porter 1 Blackst. Com. b. i. c. xii. p. 397. 2 Cruise on Dign. c. i. § 56. n'accepter sur luy nul tel noun en ascun maniere; mais nientmeins le conte moult cordialement remercia les seigneurs et les commens de leur bones coers et volonte, celle partie.1 The most modern title of dignity in the peerage is that of viscount, which in point of rank is between that of earl and of baron, and is the same name that designates the office of sheriff converted into a dignity. This title was first introduced into England by king Henry VI., who created John lord Beaumont viscount Beaumont by letters patent; and it is remarkable that though lord Beaumont was created an English viscount, his title was derived from a place in France.3 With respect to the precedence of peers among themselves, it is, in the first place, to be observed, that at common law the king by his prerogative royal might give such honour and precedence to his councillors and other subjects as should be seeming to his wisdom, which prerogative was so declared by act of parliament.* Coke accordingly cites cases where precedence was given at the creation of peers above peers of more ancient creation. But the relative rank of the different orders of duke, marquess, earl, viscount, and baron, was originally determined at common law; and there do not appear to be any cases where that arrangement of classes was interfered with by the prerogative. King Henry VIII. was content to bind and limit his prerogative by act of parliament, 31 Hen. VIII. c. x., concerning the precedency of his great officers and his nobility, to avoid controversies for precedency, and probably at the desire of the ancient nobility. On this statute, so far as it regards the precedency of the 1 Selden, Tit. of Hon. c. v. p. 629. 4 4 Inst. 360. 3 Seld. ibid. great officers of state and the royal family, sufficient has already been said. It is thereby enacted, after defining the precedency of dukes and other lords, being of the blood royal, or holding great offices of state, that all other dukes not before mentioned, marquesses, earls, viscounts, and barons, not having any of the offices aforesaid, shall sit and be placed after their ancientie, as hath been accustomed. And thereupon lord Coke holds, that if the king should create an archduke, yet by force of the words all other dukes, he shall not take place of any duke that was his ancient; et sic de similibus. Thus it appears, that the prerogative is restrained not only from altering the precedence of the nobility in parliament, but from conferring precedence on any new order of dukes, marquesses, earls, viscounts, or barons, excepting with the ancient orders, and according to the rules laid down in the act. But the statute only extends to regulate precedence in the parliament and council; and the prerogative of the crown, as the fountain of honour, is therefore unlimited, as at common law, excepting in those assemblies. Thus it seems, that the crown may create a baron with precedency above more ancient barons, except in the parliament and council-chambers. But though the prerogative can, excepting in those assemblies, grant any precedence to any subject, yet it does not follow that the prerogative extends to create a baron with precedence in right of his barony above peers of higher rank; because 1 4 Inst. 362. In the case of the earl of Banbury, 28 March, &c. 1628, it was clearly held that the crown could not interfere with the placing of the lords according to their ancienties; but the earl was allowed the precedence granted to him above more ancient earls at the request of the king, and by the consent of those lords, on the express understanding that, the earl being old and childless, that exception to the law could not continue beyond his life. Lords' Journals, iii. p. 703, 708, 715, 732. it may be argued that the orders and degrees of the peers are settled by the common law, and cannot therefore be altered by any other authority than that of parliament. If any question be moved in parliament for privilege or precedency of any lord of parliament, it is to be decided by the lords of parliament in the house of lords, as all privileges and other matters concerning the lords' house of parliament are, as privileges and other matters concerning the house of commons are by the house of commons to be decided.' But the determination of the places and precedences of others belongs to the court of the constable and marshal, unless any question should arise upon the act of parliament 31 Hen. VIII.; for that being part of the law of the realm, as all other statutes are, is to be decided by the judges of the common law.2 We must now briefly consider the manner in which peers are created. The right of peerage was originally territorial; that is, annexed to lands, honours, castles, manors, or 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. And thus in the 11th Hen. VI., the possession of the castle of Arundel was adjudged to confer an earldom on its possessor. But the earldom of Arundel has been mentioned as an instance of an earldom by prescription; and it is 14 Inst. 363. 13 Rep. 63. Hale, Jurisd. of H. of L. c. xvii. p. 104, 105. 24 Inst. 363. Co. Litt. 391, b. Hale, Hist. of the Com. Law, c. ii. p. 37, 38. 3 Seld. Tit. of Hon. 2d part, c. ix. § 5. 1 Bulstr. 196. And see Lords' Report on the Dignity of the Peerage, Rep. 3, p. 57. EE |