he is a knight by our law in England. The reason of this seems to be, that knighthood was a dignity equally recognised throughout Christendom; and Coke, to show the dignity of knighthood, relates, that at the coronation of king Richard II., William Furneval exhibited his petition in the court of the lord high steward of England, setting forth that he held the manor of Farnham, in the county of Bucks, with the hamlet of Cene in the same county, by service to find to the king at his coronation a glove for his right hand, and to support the king's right hand the same day while he held in his hand the virge royal: and it was adjudged that William Furneval, though descended of an honourable family, should be created a knight before he could perform that high service in his own person. And it was held by chief justice Prisot, that if a knight be made a nobleman, he still retains the name of knight and ought to be so styled in all writs.3 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 a part of the community. 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. 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 that held a knight's fee immediately under the crown 5 1 2 Inst. 667. 7 Rep. Calvin's case, 15, 16. Co. Litt. 16, b. And Year-Book, 26 Ed. IV. 6. and 29 Ed. III. 36. Doderidge on Nobil. 164. D. of Brunswick v. K. of Hanover, 6 Beaven, 2. Fleta, lib. ii. c. iii. § 9. Coke, in Calvin's case, adds, that “if a king of a foreign nation come into England by leave of the king of this realm (as it ought to be), in this case he shall sue and be sued by the name of a king," p. 16. It would therefore appear, that the king of Hanover would have place here not as Duke of Cumberland, but as king. And this is in accordance with the law of nations. But see D. of Brunswick v. King of Hanover, 6 Beav. 1. 2 Co. Litt. 107. 3 Year-Book, 32 H. VI. 29. 4 Tacit. de Morib. Germ. 13. 5 Ashmole (Hist. of the Order of the Garter, ch. vii. sect. viii.) holds that the golden collar of SS. was the undoubted badge of a knight, and legally appropriate to that degree, though it had grown out of fashion in his time. And that ornament is mentioned as anciently belonging to knights in a letter of the Heralds to the Earl of Holland, 16th July, 1627. MS. L. 2. Founder's Kin. Her. Coll. And in the stat. of apparell, 31 Hen. VIII. c. 13., is a proviso that knights might publicly wear a gold collar of SS. And see Doderidge on Nobil. p. 123. Favine, B. V. p. 66. As to the origin of this collar, vide Anstis, "Reg. of the Order of the Garter," vol. ii. p. 117. (which in Edward II.'s time' amounted to 201. per annum) was obliged to be knighted, and attend the king in his wars, or fined for his non-compliance. The exertion of this prerogative as an expedient to raise money, in the reign of Charles I., gave great offence, though warranted by law and the recent example of queen Elizabeth; but it was by statute 16 Car. I. c. xx. abolished; and this kind of knighthood has since that time fallen into great disregard.2 The right of conferring knighthood was not originally a flower of the royal prerogative, because the order of knighthood was not a dignity belonging to the constitution of any state, but a military institution pervading the whole of Christendom, and invested with a religious sanction. The order might be conferred by any man that was himself a knight; but Selden says, that it has long since grown to be clear that none gives it with us but the sovereign, or some other by his command or commission.3 Knighthood, which is now conferred merely by stroke of the sword, or letters patent, has fallen into great disrepute; but if ever it should be found convenient to introduce any additional reward for services, or ornament for honour, that dignity, granted with some unusual but ancient solemnity, would probably answer the purpose better than any newly invented title, according to the remark of Coke,—probably referring to the then recently created order of baronets,-that it would have been more fit to have revived some of the ancient dignities than to have created any of a new invention.4 These, as Sir Ed. Coke says, are all the names of dignity in this kingdom, esquires and gentlemen being only names of worship.5 And there is this distinction between a name of dignity and a name of worship, that a lesser dignity does not merge in a greater, but a name of worship merges in a dignity. So, if a knight be made a nobleman he remains a knight, and if a baron be made an earl, yet his title of baron continues, but if an esquire be made a knight he loses the name of esquire. Before esquires and gentlemen, the heralds, Stat. de Milit. 1 Ed. II. 2 Blackst. Com. b. i. c. xii. p. 403, 404. 3 Seld. Tit. of Hon. part ii. c. v. § 34. Selden refers to Brooke, Abridg. Tit. Addition 17., but that passage is obscure as well as the original text in the Year-Book of 7 Hen. IV. 6, 7; and seems to be a mere dictum of one of the judges. However, the law is clearly as laid down by Selden. If it were otherwise the prerogative of compelling the tenants of knights' fees to receive knighthood from the king would have been easily defeated. The opinion of Selden is supported by MSS. Ashmol. Oxon. vol. 842. p. 111., where 6 Co. Rep. 64. is cited. And see Spelman de Milite Op. p. 182. See also Camden, p. 199, who holds that none but the king or the prince by his father's authority, or the king's representative, could make knights. 4 2 Inst. 667. 5 Ibid. 6 If an esquire be made knight he loseth the name of esquire; but if a knight be made a nobleman he doth still retain the name of knight, and so ought to be stiled in all writs. Per Prisot C. J. 32 H. VI. 29. If the plaintiff in a quare according to Blackstone, rank all colonels, sergeants-at-law, and doctors, in the three learned professions.1 Cam Of esquires and gentlemen, Blackstone gives the following account:-"Esquires and gentlemen are confounded together by Sir Edward Coke, who observes 2 that every esquire is a gentleman, and a gentleman is defined to be one qui arma gerit, who bears coatarmour, 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 its owner. den, who was himself a herald, distinguishes them the most accurately; and he reckons up four sorts of them3: 1. the eldest sons of knights, and their eldest sons in perpetual succession; 2. the eldest sons of younger sons of peers, and their eldest sons in like perpetual succession, both which species of esquires Sir Henry Spelman entitles armigeri nataliti5; 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 the knights of the Bath, each of whom constitutes three at his installation, and all foreign peers; for not only these, but the eldest sons of peers of Great Britain, though frequently titular lords, are only esquires in the law, and must be so named in all legal proceedings. As for gentlemen,' says Sir Thomas Smith, they be made good cheap in this kingdom; for whosoever studieth the laws of the realm, who studieth in the universities, who professeth the 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 be taken for a gentleYet it would seem that, strictly speaking, according to the law, lord Coke's definition is correct: "Every gentleman must be arma gerens; and the best trial of a gentleman in blood (which is the lowest degree of nobility) is by bearing of arms. . . So in these days man.' "9 impedit be made knight hanging the writ, the writ shall abate," 7 Rep. 17, b. And Coke, 4 Rep. 118, a, saith that if a baron be created an earl, yet his title of baron doth continue. But in Plowden's book, 213, it is agreed that if the crown of England do descend to a duke within England, his name of a duke is gone, for omne majus tollit minus. Doderidge on Nobil. 35. 1 Blackst. Com. b. i. 3 Ibid. 6 Spelman says c. xii. 404. 4 Ibid. 667. 2 2 Inst. 668. that the office must be munus armigero designatum. 7 3 Inst. 30. 2 Inst. 667. 8 Commonw. of England, b. i. c. xx. Blackst. Com. b. i. c. xii. the rule is, nobiles sunt qui insignia gentilicia generis sui proferre possunt.'" And hence we may deduce that there are gentlemen by hereditary descent, and gentlemen by grant of coat-armour. But with respect to all degrees of rank in this kingdom the rule in general holds good, that the common law takes no notice of them, unless for the purposes of honour and the due subordination and orderly constitution of the commonwealth; except with regard to the peers of parliament, to whom divers privileges are given, necessary, or at least convenient, for the discharge of the high functions with which the law has invested them. All her majesty's subjects, not members of, or represented in, the upper house of parliament, are in the eye of the law equal, or each other's peers in point of privilege and civil and political capacity; though differences of fortune, station or parts, must necessarily give to some a greater power of enjoying that capacity than to others. And herein our constitution essentially differs from that of France before the Revolution and those of some other continental states, where the nobility are a caste or privileged order, enjoying divers important immunities, capacities, and franchises, above the rest of the community. Whereas in England, even the privileges of the peers, which they enjoy on account of their hereditary functions in the government of the state, are but small; while the remainder of the aristocracy possess no privileges whatever, beyond mere honorary distinctions and social advantages arising from wealth, station, or personal qualities. Thus, as there is no privileged caste separated by clear lines of demarcation from the rest of the community (the younger branches of the nobility constantly falling into and mingling with the gentry, and the limits of the gentry being incapable of any positive definition), there is a gentle gradation from the highest to the most humble commoner in the kingdom. And this not only amalgamates the whole nation together, preventing the different classes from becoming arrayed against each other, which is a natural consequence of their too abrupt separation, but facilitates the rise of eminent and meritorious men from obscurity to the highest stations in the kingdom. But we must return to civil estates or degrees. Citizens, burgesses, and yeomen, are of the lowest estates or degrees. Citizens and burgesses comprehend merchants, tradesmen, 2 12 Inst. 667. 2 2 Inst. 666. Coke, commenting on the statute of additions, says, “Mistier derivatur a maistre, Latine magisterium, because no man ought to exercise it but he that is a master of it. Mistier is a large word, and includeth all lawful arts, trades, and occupations, as taylor, merchant, mercer, husbandman, labourer, and the like. But servant, groome, or fermor, are no additions within this act, because they are not of any mysterie. And chamberer, butler, pantler, or the like, are additions of artificers, and labourers, who (as well as all others) must, in pursuance of the stat. 1 Hen. V. c. v., be styled by the name and addition of their estate, degree or mystery, and the place to which they belong, or where they have been conversant, in all original writs of actions personal and indictments, upon which process of outlawry may be awarded; in order, as it should seem, to prevent any clandestine or mistaken outlawry, by reducing to a specific certainty the person who is the object of its process.1 CHAPTER XXVII. OF THE MILITARY AND NAVAL STATES. THE military state includes the whole of the soldiery, or such persons as are particularly appointed among the rest of the people for the defence and safeguard of the realm. Blackstone informs us, that in a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. "In absolute monarchies," continues our illustrious commentator, "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 its 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 but 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." 2 These principles are no doubt those of the common law; and it is most important that they should never be lost sight of. But the changes that have taken place in the public law of Europe, and the constitution of England, since the abolition of military tenures, render great modifications in their application necessary. A review of the offices, and not of any mysterie or occupation. Neither doth this act extend to unlawful practices, as extortioner, maintainer, abetter, hereticke, &c." 2 Inst. 668. As to yeomen, see Fortesc. De Laudibus (by Amos), 104. 106., and Whitelock on the Parl. Writ. vol, i. p. 68. 1 Blackst. Com. b. i. c. xii. in fin. 2 Blackst. Com. b. i. c. xiii. p. 408. |