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Rank Among the Commonalty. The commonalty, like the nobility, are divided into several degrees, yet in law they are all peers, in respect to their want of nobility. Originally the first name of dignity beneath a peer, was a vidame or valvasor. No such title now exists, and that rank is held by the knight of the order of St. George, or of the garter, first instituted by Edward III, in 1344. Next, after certain official dignities, follows a knight banneret, succeeded by baronets, which title is a dignity of inheritance, created by letters patent, and usually descendible to the issue male. It was first instituted by James I, to raise a sum for the reduction of the province of Ulster, in Ireland," whence all baronets have the arms of Ulster superadded to their family coat.” Next follow knights of the bath, an order instituted by Henry IV, and revived by George I. They are so called from bathing on the night before their creation. The last of these inferior nobility are knights bachelors, the most ancient, though the lowest order of knighthood.
Esquires and Gentlemen. Esquires and gentlemen are only names of respect. Colonels, serjeants of law, and doctors in the three learned professions, outrank them. Coke says any esquire is a gentleman, who is defined to be one qui arma gerit, who bears coat armor, the grant of which adds gentility to a man's family. An estate does not confer the title of esquire, of whom there are four sorts: (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 succession. (3) Esquires created by the king's letter patent, or other investiture. (4) Esquires by virtue of their offices, as justices of the peace, and others.
Definition of a Gentleman. “As for gentlemen,” says Sir Thomas Smith, “they may be cheaply made in this kingdom, for whoever 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 labor, and will bear the port, charge and countenance of a gentleman, shall be called master, and shall be taken for a gentleman."
Yeoman. A yeoman is he, that hath free land of forty shillings a year. He was anciently qualified thereby to serve on juries, and vote for knights of the shire.
1 One hundred gentlemen advanced 1,0001. each, for which this title was conferred upon them.
2 The arms of Ulster are a hand gules or a bloody hand in a field argent.
Tradesmen, Artificers and Laborers. The rest of the commonalty are tradesmen, artificers and laborers, who, as well as all others, under the statute of Henry V, must be styled by the name and addition of their estate, degree or mystery, and the place to which they belong, in all original writs of actions personal, appeals and indictments, in order to clearly specify the person.
CHAPTER XIII.-MILITARY AND MARITIME STATES.
The Profession of a Soldier. This includes the whole of the soldiery, appointed for the defence of the realm. In a land of liberty, it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies, this is necessary for the safety of the prince, but in free states, the profession of a soldier is justly an object of jealousy. 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. The laws of England know no such state, as that of a perpetual standing soldier, bred up to no other profession than that of war, and it was not until the reign of Henry VII, that the kings of England had even a guard about their persons.
In Saxon Times. It appears from the laws of Edward the Confessor, that the military force was in the hands of the dukes, or heretochs, who were constituted through every county, being taken out of the principal nobility. Their duty was to lead and regulate the English armies, and their power was almost unlimited. They were elected by the people in full assembly, or folk
. mote. This large share of power, thus conferred by the people, though intended to preserve the liberty of the subject, was detrimental to the prerogative of the crown. This was evidenced by the use made of it in the reign of Edmund Ironside by Edric, duke of Mercia, who, by his repeated treacheries, finally transferred the crown to Canute the Dane. Alfred first settled a national militia in the kingdom, and by his prudent discipline, made all his subjects soldiers. The dukes however were left with too much power, which enabled duke Harold, on the death of Edward the Confessor, to mount, for a short space, the throne of the kingdom, in prejudice of Edgar Atheling, the rightful heir.
Effect of the Norman Conquest. At the conquest, the feudal law was introduced here in all its rigor, the whole of which law is built on a military plan. All the lands in the kingdom were divided into knight's fees, about 60,000 in number, and for every knight's fee a knight or soldier, miles, was bound to attend the king in his wars for forty days in the year, in which space of time, before war was reduced to a science, the campaign was generally finished. By this means, without any expense, an army of 60,000 men was always at the king's command. This personal service, in time, degenerated into pecuniary commutations or aids, and at last the military part of the feudal system was abolished at the restoration of Charles II.
Military Tenures. Meanwhile the kingdom was not left wholly without defence, in case of domestic insurrections, or the prospect of foreign invasions. Besides those, who by their military tenures were bound to serve forty days in the field, statutes of Henry II and Edward I obliged every man to provide arms, in order to keep the peace, and constables were appointed to see that this was done. These acts were repealed under James I. While they were in force, the princes from time to time, sent into every county under commission of array, officers in whom they could confide, to muster and array the inhabitants of
district. No man was compelled to leave the kingdom for any cause, nor go out of his shire, except on urgent necessity, nor should provide soldiers, unless by consent of parliament. The immediate cause of the fatal rupture between Charles I and the parliament was, how far the power of the militia inherently resided in the king, the two houses denying this prerogative of the king, and illegally seizing the entire control.
Rights of the Crown. Soon after the restoration of Charles II, when the military tenures were abolished, the sole right of the crown to govern and command the militia was again recognized.
Standing Armies. While the nation was engaged in war, more veteran troops and regular discipline were deemed necessary, than could be expected from a mere militia. Hence more vigorous methods were put in use for the raising of armies. Martial law, which is built on no settled principles, but is entirely
arbitrary in its decisions, is in reality no law, and hence should never be permitted in times of peace, when the king's courts are always open. The petition of right enacts, that no soldier shall be quartered on the subject, without his consent, and the raising or keeping a standing army in time of peace, cannot be done, unless with the consent of parliament. The retention of standing armies was first introduced during the reign of Charles VII, in France, and has of late years universally prevailed over Europe. For the safety of the kingdom, the defence of the possessions of Great Britain, and the preservation of the balance of power in Europe, it has been deemed necessary to maintain even in time of peace, a standing body of troops, under the command of the crown, who are ipso facto disbanded at the expiration of every year, unless continued by parliament. Nothing ought to be more guarded against, in a free state, than making the military power, a body too distinct from the people. It should wholly be composed of natural subjects, who ought to be enlisted for a limited time, and should live intermixed with the people. No camp or inland fortress should be allowed.
Mutiny and Desertion. To keep this body of troops in order, mutiny and desertion are punishable, even by death itself. In times of peace, there should be a relaxation of military rigor, hence by our militia laws, a much lighter punishment is inflicted for desertion in time of peace. By the Roman law, this distinction was made in tranquil times, but it is not so made with us. The discretionary power of a court martial is almost an absolute legislative one.
Penalties Fixed and Certain. One of the greatest advantages of our law is, that not only the crimes themselves, which it punishes, but also the penalties which it inflicts, are ascertained and notorious; nothing is left to arbitrary discretion. Two
precautions should be observed : (1) To prevent the introduction of slavery. (2) If introduced, not to entrust slaves with arms.
Soldiers' Last Wills. Soldiers in actual military service may make nuncupative wills, and dispose of their goods, wages and other personal chattels, without those forms, which the law requires in other cases. Under the civil law, if a soldier, in articulo mortis, wrote anything in bloody letters on his shield, or in the dust of the field with his sword, it was a good will. THE MARITIME STATE.
Naval Supremacy. This is more agreeable to the princi
ples of our free constitution than the military state. The royal navy of England has ever been its greatest defence and ornament. To such perfection had it attained in the twelfth century, that the code of maritime laws, called the laws of Oleron, compiled by Richard I of England, at the isle of Oleron, on the coast of France, then part of the English possessions, was adopted by all the nations of Europe, as the substructure of their maritime constitutions.
The Navigation Act. The present condition of our marine is in a great measure owing to the salutary provisions of the statutes, called the navigation acts, which encouraged the increase of English shipping and seamen. The rudiments of this beneficial act were framed in 1650, with a narrow, partial view, being intended to annoy our own sugar islands, by stopping the opulent trade they were carrying on with the Dutch. This prohibited all ships of foreign nations from trading with any English plantations, without license from the council of state. The next year it was extended to England itself, and no goods were suffered to be imported into England in any other than English vessels.
Impressing Seamen. The power of impressing seamen for the sea service by the king's commission, has been a matter of dispute, though it is of ancient origin. No statute expressly declares such power. Fishermen and ferrymen appear to have been exempted. Besides this method of impressing, which is only defensible from public necessity, to which all private considerations must yield, there are other ways to obtain seamen. Parishes may bind out poor boys apprentices to masters of merchantmen.
Discipline and Punishment. Discipline in the royal fleet is directed by certain express rules, articles and orilers, first enacted by the authority of parliament soon after the restoration. 'In these articles of the navy, almost every possible offence is set down, and the punishment thereof annexed, in which respect seamen have much the advantage over the land service, whose articles of war are not enacted by parliament, but framed at the pleasure of the crown.
Privileges. The privileges conferred on sailors are similar to those extended to soldiers. They are relieved, when maimed, or wounded, or superannuated, either by county rates, or the