u them the most accurately; and he reckons up four sorts of them t: 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 natalitii". 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. (15) To these may be added the esquires of knights of the bath, each of whom constitutes three at his installation: and all foreign, nay, Irish peers (16); 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 so be 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 shall be taken for a gentleman. A yeoman is he that hath free land of forty shillings by the year; who was antiently thereby qualified to serve on juries, vote for knights [407] of the shire, and do any other act, where the law requires one that is probus et legalis homo2. 2 Inst. 668. u 2 Inst. 667. w Gloss. 43. x 3 Inst. 30. 2 Inst. 667. y Commonw. of England, b. 1. c.20. (15) I should be disposed to add sir H. Spelman's qualification, that it must be munus armigero designatum; but what is the precise definition of such an office is not very easy to say. (16) By the fourth article of the Irish union, an Irish peer (except when a member of the house of commons, which he may be as representative of any county, city, or borough in Great Britain) is a peer of the united kingdom, and has every privilege of peerage, except the right of sitting in the house of peers with the privileges dependent thereon, and the right of sitting on the trial of peers. Irish peerages existing at the time of the union take precedence next after the then existing peers of Great Britain of the same rank; and all Irish peerages created subsequently take precedence with peerages of Great Britain of the same rank, created subsequently, according to the date of creation. THE rest of the commonalty are tradesmen, artificers, and labourers; who (as well as all others) must in pursuance of the statute 1 Hen. V. c. 5. 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, appeals, 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 it's process. CHAPTER THE THIRTEENTH. OF THE MILITARY AND MARITIME THE 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, 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 it's 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 than 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. In the time of our Saxon ancestors, as appears from Ed- [ 409 ] ward the Confessor's laws, the military force of this kingdom was in the hands of the dukes or heretochs, who were constituted through every province and county in the king : dom; being taken out of the principal nobility, and such as were most remarkable for being "sapientes, fideles, et ani"mosi." Their duty was to lead and regulate the English armies, with a very unlimited power; "prout eis visum fu"erit, ad honorem coronae et utilitatem regni." And because of this great power they were elected by the people in their full assembly, or folkmote, in the same manner as sheriffs were elected following still that old fundamental maxim of the Saxon constitution, that where any officer was intrusted with such power, as if abused might tend to the oppression of the people, that power was delegated to him by the vote of the people themselves b. So too, among the antient Germans, the ancestors of our Saxon forefathers, they had their dukes as well as kings, with an independent power over the military, as the kings had over the civil state. The dukes were elective, the kings hereditary: for so only can be consistently understood that passage of Tacitus, reges ex nobilitate, duces ex virtute sumunt," in constituting their kings, the family or blood-royal was regarded, in chusing their dukes or leaders, warlike merit: just as Cæsar relates of their ancestors in his time, that whenever they 'went to war, by way either of attack or defence, they elected leaders to command themd. This large share of power, thus conferred by the people, though intended to preserve the liberty of the subject, was perhaps unreasonably detrimental to the prerogative of the crown; and accordingly we find a very ill use made of it by Edric duke of Mercia, [410] in the reign of king Edmund Ironside, who, by his office of 66 duke or heretoch, was entitled to a large command in the king's army, and by his repeated treacheries at last transferred the crown to Canute the Dane. It seems universally agreed by all historians, that king Alfred first settled a national militia in this kingdom, and by his prudent discipline made all the subjects of his dominion soldiers; but we are unfortunately left in the dark as to the particulars of this his so celebrated regulation; though, from what was last observed, the dukes seem to have been left in possession of too large and independent a power; which enabled duke Harold, on the death of Edward the Confessor, though a stranger to the royal blood, to mount, for a short space, the throne of this kingdom, in prejudice of Edgar Atheling, the rightful heir. UPON the Norman conquest the feodal law was introduced here in all it's rigour, the whole of which is built on a military plan. I shall not now enter into the particulars of that constitution, which belongs more properly to the next part of our Commentaries; but shall only observe, that in consequence thereof all the lands in the kingdom were divided into what were called knight fees, in number above sixty thousand; and for every knight's fee a knight or soldier, miles, was bound to attend the king in his wars, for forty days in a year; in which space of time, before war was reduced to a science, the campaign was generally finished, and a kingdom either conquered or victoriouse. By this means the king had, without any expence, an army of sixty thousand men always ready at his command. And accordingly we find one, among the laws of William the Conqueror, which in the king's name commands and firmly enjoins the personal attendance of all knights and others; "quod habeant et teneant se semper bene in armis et in equis, ut decet et oportet: et quod [411] "sint semper prompti et bene parati ad servitium suum integrum "nobis explendum et peragendum, cum semper opus adfuerit, "secundum quod nobis debent de feodis et tenementis suis de jure 66 66 facere." This personal service in process of time degenerated into pecuniary commutations or aids, and at last the military part of the feodal system was abolished at the restoration, by statute 12 Car. II. c. 24. In the mean time we are not to imagine that the kingdom was left wholly without defence in case of domestic insur e The Poles are, even at this day, so tenacious of their antient constitution, that their pospolite, or militia, cannot be compelled to serve above six weeks, or forty days, in a year. Mod. f c. 58. See Co. Litt. 75, 76. |