[*405] the heralds rank all *colonels, sergeants at law, and doctors in the three learned professions. *Esquires and gentlemen are confounded together by Sir Edward [*406] Coke, who observes, (u) that every esquire is a gentleman, and a gentleman is defined to be one qui arma gerit, who bears coat armour, 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. Camden, who was himself a herald, distinguishes them the most accurately; and he reckons up four sorts of them: (v) 1. The eldest sons of knights, and their eldest sons in perpetual succession: (w) 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. (x) 3. Esquires created by the king's letters patent, or other investiture; (19) and their eldest sons. 4. Esquires by Chancellor of the Exchequer. Chancellor of the Duchy. Chief Justice of the King's Bench. Master of the Rolls. Chief Justice of the Common Pleas Chief Baron of the Exchequer. Judges, and Barons of the Coif. Kuights Bannerets, royal. Viscounts' younger sous. Barons' younger sons. Knights Bannerets. # Colonels. # Serjeants-at-law. + Doctors. Esquires. # Gentlemen. Yeomen. Labourers. [20] N. B. Married women and widows are entitled to the same rank among each other, as their husbands would respectively have borne between themselves, except such rank is merely professional or official; and unmarried women to the same rank as their eldest brothers would bear among men, during the lives of their fathers. (u) 2 Inst. GGS. (r) 2 Inst. 663. (w) 2 Inst. 667. (x) Gloss. 43. the matter to the king and barons; and in a council held at Windsor-castle, they decided in favor of the archbishop of Canterbury. Godw. Comm. de Præsnl. 665. But the archbishops of York long afterwards refused to acquiesce in this decision, for bishop Godwin relates a curious and ludicrous struggle which took place in the reign of Henry II above one hundred years afterwards, between Roger, archbishop of York, and Richard archbishop of Canterbury, for the chair on the right hand of the pope's legate. Ib. 79. Perhaps to this decision, and their former equality, we may refer the present distinction between them; viz.: that the archbishop of Canterbury is primate of all England, and the archbishop of York is primate of England.] (19) Now disused. (20) The present order of precedence is as follows: The Prince of Wales. The Sovereign's younger sons and grandsons. brothers. Dukes. Dukes' eldest sons Lord Privy Seal, Lord Great Chamberlain, Earl Marshal, Lord Steward of the household, hold, if a baron. 66 "Winchester. Secretary of State, if a baron. Speaker of House of Commons. 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 knights of the bath, each of whom constitutes three at his installation; and all foreign, nay, Irish 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, (2) 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 labor, and will bear the port, charge, and countenance of a gentleman, he shall be called master, and shall be taken for a gentleman. (21) A yeoman is he that hath free land of forty shillings by the year; who was anciently thereby qualified to serve on juries. vote for knights of the *shire, and do any other act, where the law requires one that is probus et legalis homo. (a) [* 407] 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 its process. (22) CHAPTER XIII. OF THE MILITARY AND MARITIME STATES. THE military state includes the whole of the soldiery; or such persons as are peculiarly appointed among the rest of the people, for the safeguard and defence of the realm. In a land of liberty it is extremely dangerous to make a distinct order of the (z) Commonw. of Eng. b. 1, c. 20. (y) 3 Inst. 30. 2 Inst. 667. (a) 2 Inst. 668. Judge of the Court of Probate. Commissioners in Bankruptcy. Artificers. Laborers. (21) [The eldest son has no prior claim to the degree of gentlemen; for it is the text of Littleton, that "every son is as great a gentleman as the eldest." Sect. 210.] (22) Professor Christian adds in this place a somewhat lengthy note, which we may perhaps with propriety omit. Its purpose is to show the unsoundness of a proposition that "haa lately been industriously propagated," "in order to excite discontent and stir up rebellion against all good order and peaceful government," namely; "that all men are by nature equal." profession of arms. (1) 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 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 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 Edward the Confessor's laws, (a) 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 kingdom; being taken out of the principal nobility, and such as were most remarkable for being "sapientes, fideles, et animosi." Their duty was to lead and regulate the English armies, with a very unlimited power; "prout eis visum [ *409] fuerit, ad honorem *coronæ 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 entrusted 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 ancient 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, (c) “reges ex nobilitate, duces ex virtute sumunt; in constituting their kings, the family or blood royal was regarded, in choosing 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 them. (d) a) C. de Heretochiis. (b) Isti vero viri eliguntur per commune consilium, pro communi utilitate regni, per provincias et patrias universas, et per singulos comitatus, in pleno folkmote, sicut et vicecomites, provinciarum et comitatuum eligi debent." LL. Edw. Confess. ibid. See also Bede, Eccl. Hist. l. 5, c. 10. (c) De Morib. Germ. 7. (d)" Quum bellum civitas aut illatum, defendit aut infert, magistratus qui ei bello præsint deliguntur." De Bell. Gall. l. 6, c. 22. 66 66 (1) The constitutional jealousy of standing armies, always so observable in England, and especially, in modern times during the reign of William III, has found expression in several provisions in the constitution of the United States. "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." 2d amendment. Congress shall have power to raise and support armies, but no appropriation to that use shall be for a longer time than two years." Art. 1, § 8. No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war but in a manner to be prescribed by law." 3d amendment. The purpose has been to hold the military at all times in complete subordination to the civil power, and the regular army which is maintained is only that which is deemed necessary to garrison forts, and preserve the peace with the Indians. The whole available military force of the United States at the time of the breaking out of the recent civil war, was only 16,006 men; a number surprisingly small when we consider the vast extent of our country, and the long frontier line bordered by tribes of savages. Immediately on the restoration of peace the immense armies in the field were for the most part disbanded, and the force reduced by September 30, 1867, to 56,815. This is now reduced to 30.000. The constitutional provision inhibiting appropriations for the army for a longer period than two years makes the executive, as commander-in-chief, at all times dependent upon the legislative department, and his power is further restricted by another provision which confers upon Congress the authority to make rules for the government of the army and unvy, and for the militia of the states when called into the service of the nation. Art. 1, 28. The division of powers between the nation and the states being such as to vest in the former authority over all those subjects falling within the province of international law, the states are forbidden, without the consent of congress, to keep troops or ships of war in the time of peace, or to engage in war unless actually invaded, or in such imminent danger as will not admit of delay. Const. of U. S., Art. 1, 10. 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 ill use made of it by Edric, duke of Mercia, in the reign of King Edmund Ironside; who, by his office of 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 [*410] for a short space the throne of this kingdom, in prejudice of Edgar Atheling, the rightful heir. Upon the Norman conquest the feudal law was introduced here in all its 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 knights' 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; (2) in which space of time, before war was reduced to a science, the campaign was generally finished, and a kingdom either conquered or victorious. (e) By this means the king had, without any expense, an army of sixty thousand men always ready at his command. And accordingly we find one, among the laws of William the Conquerer, (f) which in the king's name commands and firmly enjoins the personal attendance of all knights and others: "quod habeant et teneant se semper in armis et equis, ut decet et oportet: et quod semper sint prompti et parati ad servitium suum integrum nobis explendum et peragendum, cum opus adfuerit, secundum quod debent de feodis et tenementis suis de jure nobis facere." This personal service in process of time degenerated into pecuniary commutations or aids, and at last the military part (3) of the feudal system was abolished at the restoration, by statute 12 Car. ÎI, c. 24. In the mean time we are not to imagine that the kingdom was 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 perform forty days' service in the field, first the assize of arms, enacted 27 Hen. *II, (/) and afterwards the statute of Winchester, (i) under Edward I, obliged [ *411] every man, according to his estate and degree, to provide a determinate quantity of such arms as were then in use, in order to keep the peace: and constables were appointed in all hundreds by the latter statute, to see that such arms were provided. These weapons were changed, by the statute 4 and 5 Ph. and M. c. 2, into others of more modern service; but both this and the former provisions were repealed in the reign of James I. (k) While these continued in force, it was usual from time to time for our princes to issue commissions of array, and send into every county officers in whom they could confide, to muster and array, or set in military order, the inhabitants of every district; and the form of the commission of array was settled in parliament in the 5 Hen. IV, so as to prevent (e) The Poles are, even at this day, so tenacious of their ancient constitution, that their pospolite, or militia, cannot be compelled to serve above six weeks, or forty days in a year. Mod. Un. Hist. xxxiv. 12. (f) C. 58. See Co. Litt. 75. 76. (h) Hoved. A. D. 1181. (i) 13 Edw. I. c. 6. (k) Stat. 1 Jac. I, c. 25. 21 Jac. I, c. 28. (2) We frequently read of half a knight, or other aliquot part, as for so much land three Knights and a half, &c., were to be returned: the fraction of a knight was performed by a whole knight who served half the time, or other due proportion of it.] (3) [The military or warlike part. of the feudal system was abolished, when personal service was dispensed with for a pecuniary commutation, as early as the reign of Henry II. But the military tenures still remained till 12 Car. II, c. 24. See book 2, p. 77.] the insertion therein of any new penal clauses. (1) But it was also provided (m) that no man should be compelled to go out of the kingdom at any rate, nor out of his shire but in cases of urgent necessity; nor should provide soldiers unless by consent of parliament. About the reign of King Henry the Eighth, or his children, lieutenants began to be introduced, (2) as standing representatives of the crown, to keep the counties in military order; for we find them mentioned as known officers in the statute 4 and 5 Ph. and M. c. 3, though they had not been then long in use, for Camden speaks of them (0) in the time of Queen Elizabeth, as extraordinary magistrates constituted only in times of difficulty and danger. But the introduction of these commissions of lieutenancy, which contained in substance the same powers as the old commissions of array, caused the latter to fall into disuse. In this state things continued till the repeal of the statutes of armour in the reign of King James the First: after which, when King Charles the First had, during his northern expeditions, issued commissions of lieutenancy, and exerted some military powers, which, having been long exercised, were thought to belong to the crown, it became a question in the long parliament, how far the power of the militia did inherently reside in the king; being now unsupported by any statute, and founded only upon immemorial usage. This question, long agitated [*412] with great heat and resentment on both sides, became at length the immediate cause of the fatal rupture between the king and his parliament; the two houses not only denying this prerogative of the crown, the legality of which perhaps might be somewhat doubtful, but also seizing into their own hands the entire power of the militia, of the illegality of which step could never be any doubt at all. Soon after the restoration of King Charles the Second, when the military tenures were abolished, it was thought proper to ascertain the power of the militia, to recognize the sole right of the crown to govern and command them, and to put the whole into a more regular method of military subordination: (p) and the order, in which the militia now stands by law, is principally built upon the statutes which were then enacted. It is true the two last of them are apparently repealed; but many of their provisions are re-enacted, with the addition of some new regulations, by the present militia laws, (4) the general scheme of which is to discipline a certain number of the inhabitants of every county, chosen by lot for three years, and officered by the lord lieutenant, the deputy lieutenants, and other principal landholders, under a commission from the crown. They are not compellable to march out of their counties, unless in case of invasion or actual rebellion within the realm (or any of its dominions or territories), (7) nor in any case compellable to march out of the kingdom. They are to be exercised at stated times; and their discipline in general is liberal and easy; but when drawn out into actual service, they are subject to the rigours of martial law, as necessary to keep them in order. This is the constitutional security which our laws (7) have provided for the public peace, and for protecting the realm against foreign or domestic violence. (5) (1) Rushworth, part 3, pages 662, 667. See 8 Rym. 374, &c. III. c. 3. (n) 15 Rym. 75. 15 Car. II, c. 4. (q) Stat. 16 Geo. (r) 2 Geo. III, c. 20. 9 Geo. III, c. 42. 16 Geo. III, c. 3. 18 Geo. III, c. 14 and 50. 19 Geo. III, c. 72. (4) [The present militia system is mainly regulated by 42 Geo. III. c. 90, as altered and amended by many subsequent acts, the last of which is 32 and 33 Vic. c. 13. The general scheme of the legislature has been to discipline a certain number of the inhabitants of every county, chosen by lot for five years, and officered by the lord lieutenant, the deputy lieutenants, and other principal land owners under a commission from the crown.] (5) In the United States the individual states discipline and officer the militia, but congress may provide therefor, and also for calling them forth to execute the laws of the Union, suppress insurrections and repel invasions. Const. art. 1. § 8. When thus called forth the president is commander-in-chief: art. 2. § 2; and congress may provide for their government. Art. 1, 8. By the act of Feb. 28, 1795, the president was empowered to call forth the militia to repel invasions, or, in imminent danger thereof, to put down insurrections or enforce the |