2. [A marquess (marchio) is the next degree of nobility. His office was, formerly, to guard the frontiers and limits (marches) of the kingdom, and, in particular, the marches of Wales and Scotland; and the name was therefore given them of lords marchers, or marquesses. Their authority in Wales was abolished by the 26 Hen. VIII. (1534), c. 6; and the title had, long before, become a mere title of nobility, Robert Vere, Earl of Oxford, being created Marquess of Dublin, by Richard of Second, in the eighth year of his reign (1384) (c).

3. An earl is a title of nobility so antient that its original cannot clearly be traced out. But this much seems tolerably certain, namely, that among the Saxons there were ealdormen (i.e., elder men), signifying the same as senior or senator among the Romans, and synonymous, or nearly so, with eorls (d); and these were called also schiremen, because they had each of them the civil government of a shire. In Latin, earls were called comites, from being the king's attendants (e); and after the Norman conquest, they were for some time called counts or countees, and their shires were called counties. The name of earl is now become a mere title of nobility, an earl not having had (as such) since the Conquest anything to do with either the civil or the military government of the county. 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 which is as antient as the reign of Henry the Fourth, who, being either by his wife, his mother, or his sisters, actually related or allied to every earl in the kingdom, artfully and constantly acknowledged that connexion in all his letters and other public

(c) 2 Inst. 5.

(d) But the word earl is not the same as eorl, being probably derived from the Danish jarl. See,

however, Pollock and Maitland, Hist. Eng. Law, i. 32.

(e) Bracton, l. 1, ch. 8; Flet. 1. 1, ch. 5.

[acts. And from this, the usage has descended to his

successors.

comes;

4. The sheriff of the county was sometimes called ricewhich name was afterwards made use of as an arbitrary title of honour, without any shadow of office pertaining to it. And Henry the Sixth, in the eighteenth year of his reign (1439), created John Beaumont a peer by the name of viscount Beaumont, which was the first instance of the kind (ƒ).

5. A baron is the most general title of nobility; and formerly every one of the peers of superior rank had also a barony annexed to his higher title (g). But it hath sometimes happened, that when a peer with a barony annexed to his title hath been raised to a new degree of peerage, the two titles have, in the course of a few generations, descended differently, one perhaps to the male descendants, and the other to the heirs general, whereby the earldom or other superior title bath subsisted without the barony. And there are also modern instances where earls and viscounts have been created without annexing a barony to their other honours; 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; and the opinion, which seems the most probable one, is that the barons were the same as the lords of manors, or the tenants in capite of the Crown (h). For it may be collected from King John's Magna Carta, that originally all lords or owners of estates holding under that tenure were called barons, and had seats in the great council or parliament ; till the conflux of them became so large and troublesome, that the king was obliged to divide them, and to summon only the principal tenants, called the greater barons, in person, leaving the smaller ones to be summoned by the

(ƒ) 2 Inst. 5.

(g) Ibid.,

(h) Spelm. Glos. Baronia,

[sheriff, to sit by representation in another house, which gave rise to the separation 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 such as were summoned by writ in respect of the tenure of their lands or baronies, till Richard the Second first made a barony a mere title of honour, by conferring it on divers persons by his letters patent (k).

Having made this short inquiry into the original of our several degrees of nobility, we shall next consider the manner in which a peerage may be created. The right of peerage seems to have been originally territorial, that is to say, it was annexed to lands, honours, castles, manors, and the like, the proprietors and possessors of which were, in right of those estates, allowed to be peers of the realm, and were summoned to parliament to do suit and service to their sovereign. And, when the land was alienated, the dignity passed with it as appendant. Thus, in one view, the bishops still sit in the house of lords in right of succession to certain antient baronies annexed, or supposed to be annexed, to their episcopal lands (1); and similarly, in the eleventh year of Henry the Sixth (1433), the possession of the castle of Arundel was adjudged to confer on its possessor an earldom by tenure (m), i.e., the right of claiming a seat in the house of lords by title of tenure (n). But afterwards, when alienations.

(i) Gilb. Hist. of Exch. ch. 3; Seld. Tit. of Hon. pt. 2, ch. 5, xxi. See, however, Pollock & Maitland, Hist. of Eng. Law, i. 279-282.

(k) Co. Litt. 9 b; Seld. Jan. Angl. 2, § 66.

(1) Vide sup. p. 366; Seld. Table Talk, tit. Bishops in Parliament.

(m) Seld. Tit. of Hon. pt. 2, ch. 9, v.; Cruise, Dig. vol. iii. p. 185.

[grew to be frequent, the dignity of peerage was confined to the lineage of the party ennobled, and instead of being territorial became personal; and a peerage may now be created without connecting it even nominally with any particular locality (0), though it has remained usual in creating a man a peer to name him baron, earl, or the like, of some specified place. The year 1295 may be probably considered as the moment when tenure ceased to be the sole title to the peerage, and began to be no title at all (p).

Peers are now created either by writ, or by patent; for those who claim by prescription must suppose either a writ or a patent made to their ancestors, which by length of time has been lost. The creation by writ or by king's letter, is by summons to attend the house of peers, by the style and title of that barony which the king is pleased to confer; and the creation by patent is by royal grant of the degree of peerage. The creation by writ is the more antient way; but a man is not ennobled thereby, unless he actually takes his seat in the house of lords. And some have been of the opinion, that there must be at least two writs of summons, and a sitting in two distinct parliaments to evidence an hereditary barony (7); and therefore the most usual, because the surest, way, is to grant the dignity by patent, for then the grant enures according to the limitations thereof, though the grantee should never himself make use of it (r). But it is still usual to call up by writ only, the eldest son of a peer to the house of lords, in the name

was in that case decided (26th February, 1861), that no legal right to be summoned to or to sit in parliament can exist, at the present day, in any tenant for life or devisee of hereditaments, as such. And it was observed, that no earldom by tenure now exists,

that of Arundel having (as such) been put an end to by the 3 Car. 1 (1627), c. iv.

(0) Cruise, Dig. vol. iii. p. 219. (p) Medley, Eng. Const. History, 141. (2) Whitelocke, Parl. ch. 114. (r) Co. Litt. 16 b.

[of his father's barony, because there is no danger in that case of his children losing the nobility; for in case their father never takes his seat, they will succeed to their grandfather. Creation by writ has also one advantage over that by patent. For a person created by writ holds the dignity to him and the heirs general (that is, male and female) of his body (s), without any words to that purport in the writ; but in letters patent, there must be words to direct the inheritance, else the dignity enures to the grantee only for life (t). And a man or woman may, by patent, be created noble for their own lives, and the dignity not descend to their heirs at all.] It must, however, be noticed that, though the Crown may create a life dignity of this kind, such dignity will not make the holder a peer of parliament; this point having been clearly decided in 1856 in the Wensleydale Peerage Case, when the committee of privileges of the house of lords declared that the letters patent granted to Mr. Baron Parke, creating him Lord Wensleydale for life, did not entitle him to sit and vote in parliament (u). But now, under the Appellate Jurisdiction Acts, 1876 and 1887, every lord of appeal in ordinary appointed to aid the house of lords in the hearing and determination of appeals, if he is not otherwise entitled to sit as a member of the house of lords, becomes by virtue of his appointment entitled during his life to rank as a baron, and to sit and vote in the house of lords. A peerage, however, is (except in the case last mentioned) always now conferred by letters patent so as to give an hereditary dignity, sometimes to the heirs male of the body of the grantee (v), sometimes to the heirs

(s) Cruise, Dig. vol. iii. p. 223; Devon Peerage Case (1831), 5 Bligh (N.S.)313; Wiltex Claim of Peerage (1869), L. R. 4 H. L. 126.

(t) Co. Litt. 9, 16. (u) For the historical argument on this matter, see Anson,

Law and Custom, vol. ii. ch. vi.

$ 4.

(2) Cru. Dig. vol. iii. pp. 218, 245; Devon Peerage Case, ubi sup.; Wiltes Claim of Peerage (1869), L. R. 4 H. L. 126.