1. A duke, though he be with us, in respect of his title of nobility, inferior in point of antiquity to many others, yet is superior to all of them in rank; his being the first title

of dignity after the royal family. Among the Saxons [397] 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 peperolad; and in the laws of Henry I. (as translated by Lambard) we find them called heretochii. 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 honor any subjects with the title of duke, till the time of Edward III; who, claiming to be king of France, and thereby losing the ducal in the royal dignity (1), 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 like honor. However, in the reign of queen Elizabeth, A. D. 1572, the whole order became utterly extinct; but it was revived about fifty years afterwards by her successor, who was remarkably prodigal of honors, in the person of George Villiers duke of Buckingham.

e Camden. Britan. tit. ordines,

d This is apparently derived from the same root as the German hertzog, the ancient appellation of dukes in that country. Seld,

tit, hon, 2, 1, 12,

e Camden, Britan, tit. ordines. Spelman, Gloss. 191.

(1) This reason is not very satisfactory, and, in fact, this order of nobility was created before Edward assumed the title of king of France. Dr. Henry, in his excellent history of England, informs us, that "about a year before Edward III. assumed the title of king "of France, he introduced a new order of nobility, to inflame the "military ardor and ambition of his earls and barons, by creating his "eldest son prince Edward duke of Cornwall. This was done with "great solemnity in full parliament at Westminster, March 17, A. D. "1337." Hen. Hist. 8 vol. 135. 8vo. edition. See ante, p. 224, note 10.

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: such as, in particular, were the marches of Wales and Scotland, while each continued to be an enemy's country. 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 honor; Robert Vere, earl of Oxford, being created marquess of Dublin, by Richard II. in the eighth year of his reign f

[398] 3. An earl is a title of nobility so ancient, that its original cannot clearly be traced out. Thus much

seems tolerably certain: that among the Saxons they are called caldormen, quasi elder men, signifying the same as senior 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 Camden 8, 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 socie"tate nomen sumpserunt, reges enim tales sibi associanth." 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. The name of carls 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 observed, is now entirely devolved on the sheriff, the earl's deputy, or vice-comes. In writs and commissions, and other formal instruments, the king, when he mentions any peer of the degree of an earl, usually styles him, "trusty and well beloved "cousin" an appellation as ancient as the reign of Henry IV who being either by his wife, his mother, or his

:

f 2 Inst. 5.

g Britan. tit. ordines.

h Bracton. 1. 1. c. 8. Flet, L. 1. c 5.

sisters, actually related or allied to every earl then in the kingdom, artfully and constantly ackowledged that connection in all his letters and other public acts: from whence the usage has descended to his successors, though the reason has long ago failed.

4. THE name of vice-comes or viscount (2) was afterwards made use of as an arbitrary title of honor, 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 kindi.

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 titles (3). But

i 2 Inst. 5.

k 2 Inst. 5, 6..

(2) These Latin and French words are the same as sheriff in English. This proves the high respect that was shewn to this officer in ancient times, for his name alone was thought an honorable title of nobility. See note 8. p. 346.

(3) At the time of the conquest, the temporal nobility consisted only of earls and barons; and by whatever right the earls and the mitred clergy before that time might have attended the great council of the nation, it abundantly appears that they afterwards sat in the feudal parliament in the character of barons. It has been truly said, that, for some time after the conquest, wealth was the only nobility, as there was little personal property at that time, and a right to a seat in parliament was entirely territorial, or depended upon the tenure of landed property. Ever since the conquest, it has been true, that all land is held either immediately or mediately of the king; that is, either of the king himself, or of a tenant of the king, or it might be after two or more subinfeudations. And it was also a general principle in the feudal system, that every tenant of land, or land owner, had both a right and obligation to attend the court of his immediate superior. Hence every tenant in capite, i. e. the tenant of the king, was at the same time entitled and bound to attend the king's court or parliament, being the great court baron of the nation.

it hath sometimes happened that when an ancient baron hath been raised to a new degree of peerage, in the course of a

It will not be necessary for me here to enlarge farther upon the ori ginal principles of the feudal system, and upon the origin of peerage; but I shall briefly abridge the account which Selden has given in the second part of his Titles of Honor, c. 5. beginning at the 17th section, being perhaps the clearest and most satisfactory that can be found. He divides the time from the conquest into three periods: 1. From the conquest to the latter end of the reign of king John. 2. From that time to the 11th of Richard II. 3. From that period to the time he is writing, which may now be extended to the present time. In the first period, all, who held any quantity of land of the king, had, without distinction, a right to be summoned to parliament; and this right being confined solely to the king's tenants, of consequence all the peers of parliament during that period sat by virtue of tenure and a writ of sum

mons.

In the beginning of the second period, that is, in the last year of the reign of king John, a distinction, very important in its consequences, (for it eventually produced the lower house of parliament,) was introduced, viz. a division of these tenants into greater and lesser barons: for king John in his magna charta declares, faciemus summoneri archiepiscopos, episcopos, abbates, comites, et majores barones regni sigillatim per literas nostras, et præterea faciemus summoneri in generali per vicecomites et ballivos nostros omnes alios, qui in capite tenent de nobis ad certum diem, &c. See Bl. Mag. Ch. Joh. p. 14. It does not appear that it ever was ascertained what constituted a greater baron, and it probably was left to the king's discretion to determine; and no great inconvenience could have resulted from its remaining indefinite, for those who had not the honor of the king's letter, would have what in effect was equivalent, a general summons from the sheriff. But in this second period tenure began to be disregarded, and persons were summoned to the parlia ment by writ, who held no lands of the king. This continued to be the case till the 11th of Rich. II. when the practice of creating peers by letters patent first commenced.

In that year John de Beauchamp, steward of the household to Rich. II. was created by patent lord Beauchamp baron of Kidderminster in tail male; and since that time peerages have been created both by writ and patent, without any regard to tenure or estate.

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 viscounts have been created without annexing a barony to their other honors: so that now the rule doth not hold universally, that all peers are barons. The original and antiquity of baronies have occasioned great inquiries among our English antiquaries. 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 (4). It may be collected from king John's magna carta1, 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

1 cap. 14.

The king's prerogative of creating peers by patent may seem a great innovation, or a violation of the original principles of the system; yet it is one of those great changes, which are produced at the first by a gentle deviation from the former practice. For though this prerogative was not granted to the king by the express authority of parliament, yet it was obtained by its acquiescence; for I have been assured by Mr. Townshend, the Windsor herald, a gentleman well acquainted with this subject, that patents of nobility in ancient times generally stated, either that the patent was granted by the assent of parliament, or, if granted in the vacation, they stated such special reasons why the peer was created, as it might be presumed would afterwards meet with the approbation of the parliament.

(4) Lords of manors, who had granted to others by subinfeudation part of that estate which they held of the king, would necessarily be barons; but it does not follow conversely that a baron was of necessity a lord of a manor: for the king's tenant, who retained all the estate granted him, and alienated no part of it, would certainly be as complete a baron as a lord of a manor.