Book I. 3. AN earl is a title of nobility fo antient, that it's original cannot clearly be traced out. Thus much feems tolerably certain that among the Saxons they were called ealdormen, quafi elder men, fignifying the fame as fenior or fenator among the Romans; and alfo fchiremen, because they had each of them the civil government of a several divifion or shire. On the irruption of the Danes, they changed the name to eorles, which, according to Camden, fignified the fame in their language. In Latin they are called comites (a title first used in the empire) from being the king's attendants; "a focietate " nomen fumpferunt, reges enim tales fibi affociant." After the Norman conqueft they were for fome time called counts or counters, from the French; but they did not long retain that name themselves, though their fhires are from thence called counties to this day. The name of earls or comites is now become a mere title, they having nothing to do with the government of the county; which, as has been more than once obferved, is now entirely devolved on the sheriff, the earl's deputy, or vice-comes. In writs, and commiffions, and other formal inftruments, the king, when he mentions any peer of the degree of an earl, usually stiles him " trufty and well beloved coufin:" 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 then in the kingdom, artfully and conftantly acknowleged that connexion in all his letters and other public acts: from whence the ufage has defcended to his fucceffors, though the reason has long ago failed. 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 fixth; when, in the eighteenth year of his reign, he created John Beaumont a peer, by the name of viscount Beaumont, which was the fir inftance of the kind'. 5. A baron's is the moft general and universal title of nobility; for originally every one of the peers of fuperior rank gitan. tit. ordines. h Bracton. l. 1. c. 8. Flet. l. 1. c. 5. i 2 Inft. 5. had had also a barony annexed to his other titles. But it hath fometimes 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 defcended differently; one perhaps to the male defcendants, the other to the heirs general; whereby the earldom or other fuperior title hath fubfifted without a barony: and there are alfo modern inftances, where earls and viscounts have been created without annexing a barony to their other honours: so that now the rule doth not hold univerfally, that all peers are barons. The original and antiquity of baronies have occafioned great inquiries among our English antiquaries. The most probable opinion feems to be, that they were the fame with our prefent lords of manors; to which the name of court baron (which is the lord's court, and incident to every manor) gives fome countenance. It may be collected from king John's magna carta', that originally all lords of manors, or barons, that held of the king in capite, had feats in the great council or parliament till about the reign of that prince the conflux of them. became fo large and troublesome, that the king was obliged to divide them, and fummon only the greater barons in perfon; leaving the fmall ones to be fummoned by the sheriff, and (as it is faid) to fit by reprefentation in another house; which gave rife to the feparation of the two houses of parliament ". 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 fuch as were fummoned by writ, in respect of the tenure of their lands or baronies, till Richard the second first made it a mere title of honour, by conferring it on divers perfons by his letters patent ". HAVING made this fhort inquiry into the original of our feveral degrees of nobility, I fhall next confider 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 poffeffors of which were (in right of those eftates) allowed to be peers of the realm, and were fummoned to parliament to do fuit and fervice to their fovereign: and, when the land was alienated, the dignity paffed with it as appendant. Thus the bishops ftill fit in the houfe of lords in right of fucceffion to certain antient baronies annexed, or supposed to be annexed, to their epifcopal lands: and thus, in 11 Hen. VI, the poffeffion of the caftle of Arundel was adjudged to confer an carldom on it's poffeffor P. 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 perfonal. Actual proof of a tenure by barony became no longer neceflary to conflitute a lord of parliament; but the record of the writ of fummons to him or his anceftors was admitted as a fufficient evidence of the tenure. PEERS are now created either by writ, or by patent: for thofe who claim by prefcription muft fuppofe either a writ or patent made to their ancestors; though by length of time it is loft. The creation by writ, or the king's letter, is a fummons to attend the houfe of peers, by the ftile and title of that ba rony, which the king is pleafed to confer that by patent is a royal grant to a fubject 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 take his seat in the house of lords: and fome are of opinion that there mult be at least two writs of fummons, and a fitting in two dif tinct parliaments, to evidence an hereditary barony: and therefore the mott ufual, becaufe the fureft, way is to grant the dignity by patent, which enures to a man and his heirs according to the limitations thereof, though he never himfelf makes use of it. Yet it is frequent to call up the eldest fon of a peer to the houfe of lords by writ of fummons, in the name of his father's barony: because in that cafe there is no danger of his children's lofing the nobility in cafe he ne ver takes his feat; for they will fucceed to their grandfather. Creation by writ has alfo one advantage over that by patent: for a perfon created by writ holds the dignity to him and his • Glan. i. . C. I. Seid. tit. or hon. b. 2. c. 0. § 1. q Whitelocke of pari. ch. 114. heirs, without any words to that purport in the writ; but in letters patent there must be words to direct the inheritance, elfe the dignity enures only to the grantee for life. For a man or woman may be created noble for their own lives, and the dignity not defcend to their heirs at all, or defcend only to fome particular heirs as where a peerage is limited to a man, and the heirs male of his body by Elizabeth his prefent lady, and not to fuch heirs by any former or future wife. LET us next take a view of a few of the principal incidents attending the nobility, exclufive of their capacity as members of parliament, and as hereditary counfellors of the crown; both of which we have before confidered. And first we must observe, that in criminal cafes a nobleman fhall 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 meaneft fubjects, that of being tried by their equals, which is fecured to all the realm by magna carta, c. 29. It is faid, that this docs not extend to bishops: who, though they are lords of parliament, and fit there by virtue of their baronies which they hold jure ecclefiac, yet are not ennobled in blood, and confequently not peers with the nobility. As to peereffes, there was no precedent for their trial when accused of treafon or felony, till after Eleanor duchefs of Gloucefter, wife to the lord protector, was accused of treafon and found guilty of witchcraft,, in an ecclefiaftical fynod, through the intrigues of cardinal Beaufort. This very extraordinary trial gave occafion to a fpecial ftatute, 20 Hen. VI. c. 9. which declares the law to be, that peereffes, either in their own right or by marriage, fhall be tried before the fame judicature as other peers of the realm. If a woman, noble in her own right, marries a commoner, fhe still remains noble, and shall be tried by her peers: but if the be only noble by marriage, then by a fecond marriage with a commoner, fhe lofes her dignity; for as by marriage it is gained, by marriage it is alfo loft". Yet if a duchefs dowager : A marries a baron, fhe continues a duchefs ftill; for all the nobility are pares, and therefore it is no degradation". peer, or peerefs, (either in her own right or by marriage) cannot be arrested in civil cafes": and they have also many peculiar privileges annexed to their peerage in the course of judicial proceedings. A peer, fitting in judgment, gives not his verdict upon oath, like an ordinary juryman, but upon his honour" he answers alfo to bills in chancery upon his honour, and not upon his oath ; but, when he is examined as a witness either in civil or criminal cafes, he must be fworn: for the respect, which the law fhews to the honour of a peer, does not extend fo far as to overturn a fettled maxim, that in judicio non creditur nifi juratis, The honour of peers is however fo 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: fcandal against them being called by the peculiar name of scandalum magnatum, and fubjected to peculiar punishments by divers antient statutes 2, A PEER cannot lose his nobility, but by death or attainder; though there was an inftance in the reign of Edward the fourth, of the degradation of George Nevile duke of Bedford by act of parliament, on account of his poverty, which rendered him unable to support his dignity. But this is a fingular instance : which serves at the fame time,by having happened, to fhew the power of parliament; and, by having happened but once, to shew how tender the parliament hath been, in exerting fo high a power. It hath been faid indeed, that if a baron wastes his eftate, fo that he is not able to fupport the degree, the king may degrade him but it is exprefsly held by later authorities", that a peer cannot be degraded but by act of parliament. |