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this realm shall hereafter come to any person not being a native of this kingdom of England, this nation shall not be obliged to engage in any war for the defence of any dominions or territories which do not belong to the crown of England, without consent of parliament."

We come now to consider the kingdom of England in particular, the direct and immediate subject of those laws, concerning which we are to treat in the ensuing commentaries. And this comprehends not only Wales and Berwick, of which enough has been already said, but also part of the sea. The main or high seas are part of the realm of England, for thereon our courts of admiralty have jurisdiction, as will be shewn hereafter; but they are not subject to the common law. (p) This main sea begins at the low-water mark. But between the high-water mark, and the low-water mark, where the sea ebbs and flows, the common law and the admiralty have divisum imperium, an alternate jurisdiction; one upon the water, when it is full sea; the other upon the land, when it is an ebb. (4)

[*111]

*The territory of England is liable to two divisions; the one ecclesiastical, the other civil.

1. The ecclesiastical division is primarily, into two provinces, those of Canterbury and York. A province is the circuit of an archbishop's jurisdiction. Each province contains divers dioceses, or sees of suffragan bishops; whereof Canterbury includes twenty-one, and York three: besides the bishopric of the Isle of Man, which was annexed to the province of York by King Henry VIII. Every diocese is divided into archdeaconries, whereof there are sixty in all; each archdeaconry into rural deaneries, which are the circuit of the archdeacon's and rural dean's jurisdiction, of whom hereafter; and every deanery is divided into parishes. (r)

A parish is that circuit of ground which is committed to the charge of one parson, or vicar, or other minister having cure of souls therein. These districts are computed to be near ten thousand in number. (s) How ancient the division of parishes is, may at present be difficult to ascertain; for it seems to be agreed on all hands, that in the early ages of Christianity in this island, parishes were unknown, or at least signified the same that a diocese does now. There was then no appropriation of ecclesiastical dues to any particular church; but every man was at liberty to contribute his tithes to whatever priest or church he pleased, provided only that he did it to some; or, if he made no special appointment or appropriation thereof, they were paid into the hands of the bishop, whose duty it was to distribute them among the clergy, and for other pious purposes, according to his own discretion. (t)

Mr. Camden (u) says, England was divided into parishes by Archbishop Honorius about the year 630. Sir Henry Hobart (w) lays it down, that parishes were first erected by the council of Lateran, which was held A. D. 1179. Each widely differing from the other, and both of them perhaps from the [*112 truth; which will probably be found in the medium between the two extremes. For Mr. Selden has clearly shewn, (c) that the clergy lived in common without any division of parishes, long after the time mentioned by Camden. And it appears by the Saxon laws, that parishes were in being long before the date of that council of Lateran, to which they are ascribed by Hobart.

We find the distinction of parishes, nay, even of mother churches, so early as in the laws of King Edgar, about the year 970. Before that time the consecration of tithes was in general arbitrary; that is, every man paid his own (as was before observed) to what church or parish he pleased. But this being liable to be attended with either fraud, or at least caprice, in the persons paying; and with either jealousies or mean compliances in such as were competitors for receiving them; it was now ordered by the law of King Edgar, (y) that “dentur omnes decimæ primario ecclesiæ ad quam parochia pertinet." However, if any thane, or great lord, had a church, within his own demesnes, distinct from

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(q) Finch, L. 78.
(t) Seld. of Tith. 9. 4. 2 Inst. 646, Hob. 296.
(y) Ibid. c. 1.

(s) Gibson's Britain

(x) of tithes, c. 9.

(w) Hob 296.

(u) In his Britannia.

the mother-church, in the nature of a private chapel; then, provided such church had a cemetery or consecrated place of burial belonging to it, he might allot one third of his tithes for the maintenance of the officiating minister; but if it had no cœmetery, the thane must himself have maintained his chaplain by some other means; for in such case all his tithes were ordained to be paid to the primariæ ecclesiæ or mother church. (2)

This proves that the kingdom was then generally divided into parishes; which division happened probably not all at once, but by degrees. For it seems pretty clear and certain, that the boundaries of parishes were originally ascertained by those of a manor or manors: since it very seldom happens that a manor extends itself over more parishes than one, though there are often many manors in one parish. *The lords, as Christianity spread itself, began to build churches upon their own demesnes or wastes, to accommodate their [*113] tenants in one or two adjoining lordships; and, in order to have divine service regularly performed therein, obliged all their tenants to appropriate their tithes to the maintenance of the one officiating minister, instead of leaving them at liberty to distribute them among the clergy of the diocese in general; and this tract of land, the tithes whereof were so appropriated, formed a distinct parish. Which will well enough account for the frequent intermixture of parishes one with another. For, if a lord had a parcel of land detached from the main of his estate, but not sufficient to form a parish of itself, it was natural for him to endow his newly erected church with the tithes of those disjointed lands; especially if no church was then built in any lordship adjoining to those outlying parcels.

Thus parishes were gradually formed, and parish churches endowed with the tithes that arose within the circuit assigned. But some lands, either because they were in the hands of irreligious and careless owners, or were situate in forests and desert places, or for other now unsearchable reasons, were never united to any parish, and therefore continue to this day extra-parochial; and their tithes are now by immemorial custom payable to the king instead of the bishop, in trust and confidence that he will distribute them for the general good of the church: (a) yet extra parochial wastes and marsh-lands, when improved and drained, are by the statute 17 Geo. II, c. 37, to be assessed to all parochial rates in the parish next adjoining. And thus much for the ecclesiastical division of this kingdom.

2. The civil division of the territory of England is into counties, of those counties into hundreds, of those hundreds into tithings or towns. Which division, as it now stands, seems to owe its original to King Alferd, (19) who, to prevent *the rapines and disorders which formerly prevailed in the realm, instituted tithings, so called from the Saxon, because ten freeholders, with [*114] their families, composed one. These all dwell together, and were sureties or free pledges to the king for the good behaviour of each other; and, if any offence was committed in their district, they were bound to have the offender forthcoming. (b) And therefore anciently no man was suffered to abide in England above

(z) Ibid. c. 2. See also the laws of King Canute, c. 11. about the year 1030. (a) 2 Inst. 647. 2 Rep. 44. Cro. Eliz. 512.

(b) Flet. 1. 47. This the laws of King Edward the Confessor, c. 20. very justly entitled, "summa et maxima securitas, per quam omnes statu firmissimo sustinentur ;—quæ hoc modo fiebat, quod sub decennali fidejussione debebant esse universi, fc."

(19) [Modern researches into the more remote periods of antiquity, have led to the discovery, that the learned commentator was incorrect in ascribing the institution of these civil divisions of the kingdom to Alfred. In the reign of Ina, king of the West Saxons, towards the end of the seventh century, the tithing and shire are both mentioned. And no doubt they were brought from the continent by some of the first Saxon settlers in this island; for the tithing, hundred, and shire, are noticed in the capitularies of the Franks, before the year 630, whence it is reasonably inferred, they were known in France at least two centuries before the reign of Alfred. It may therefore be concluded, that, among the people of this country, they were part of those general customs which Alfred collected, arranged, and improved into an uniform system of jurisprudence. See Whitaker's History of Manchester; Montesquieu Esprit des Lois, tom. 2, p. 376; Stuart's Diss. on the English Constitution, 254; and Henry's History of Great Britain.]

forty days, unless he were enrolled in some tithing or decennary. (c) One of the principal inhabitants of the tithing is annually appointed to preside over the rest, being called the tithing-man, the headborough, (words which speak their own etymology,) and in some countries the borsholder, or borough's-ealder, being supposed the discreetest man in the borough, town, or tithing. (d)

Tithings, towns, or vills, are of the same signification in law; and are said to have had, each of them, originally a church and celebration of divine service, sacraments, and burials: (e) though that seems to be rather an ecclesiastical, than a civil, distinction. The word town or vill is, indeed, by the alteration of times and language, now become a generical term, comprehending under it the several species of cities, boroughs, and common towns. A city is a town incorporated, which is or hath been the see of a bishop; and though the bishopric be dissolved, as at Westminster, yet still it remaineth a city. (f) A borough is now understood to be a town, either corporate or not, that sendeth burgesses to parliament. (g) Other towns there are, to the number, Sir Edward Coke says, (h) of 8,803, which are neither cities nor boroughs; some of which have the privileges of markets and others not; but both are equally towns in law. To several of these towns there are small appendages belonging, called *hamlets, [*115] which are taken notice of in the statute of Exeter, (i) which makes frequent mention of entire vills, demi-vills, and hamlets. Entire vills Sir Henry Spelman () conjectures to have consisted of ten freemen, or frank-pledges, demivills of five, and hamlets of less than five. These little collections of houses are sometimes under the same administration as the town itself, sometimes governed by separate officers; in which last case they are, to some purposes in law, looked upon as distinct townships. These towns, as was before hinted, contained each originally but one parish, and one tithing; though many of them now, by the increase of inhabitants, are divided into several parishes and tithings; and sometimes, where there is but one parish, there are two or more vills or tithings.

As ten families of freeholders made up a town or tithing, so ten tithings composed a superior division, called a hundred, as consisting of ten times ten families. The hundred is governed by an high constable, or bailiff, and formerly there was regularly held in it the hundred court for the trial of causes, though now fallen into disuse. In some of the more northern counties these hundreds are called wapentakes. (7)

The subdivision of hundreds into tithings seems to be most peculiarly the invention of Alfred: the institution of hundreds themselves he rather introduced than invented; for they seem to have obtained in Denmark (m) and we find that in France a regulation of this sort was made above two hundred years before, set on foot by Clotharius and Childebert, with a view of obliging each district to answer for the robberies committed in its own division. These divisions were, in that country, as well military as civil, and each contained a hundred freemen, who were subject to an officer called the centenarius, a number of which centenarii were themselves subject to a superior officer called the count or comes. (n) And indeed something like this institution of hundreds may be traced [*116] back as far as the ancient Germans, from whom were derived both the Franks, who became masters of Gaul, and the Saxons, who settled in England: for both the thing and the name, as a territorial assemblage of persons, from which afterwards the territory itself might probably receive its denomination, were well known to that warlike people." Centeni ex singulis pagis sunt, idque ipsum inter suos vocantur; et quod primo numerus fuit, jam nomen et honor est." (0)

An indefinite number of these hundreds make up a county or shire. Shire is a Saxon word signifying a division; but a county, comitatus, is plainly derived. from comes, the count of the Franks; that is, the earl, or alderman (as the Saxons called him) of the shire, to whom the government of it was intrusted. This he usually exercised by his deputy, still called in Latin vice-comes, and in English

(c) Mirr. c. 1. § 3. (h) 1 Inst. 116.

(d) Finch, L. 8. (e) 1 Inst. 115. (i) 14 Edw. I. (k) Gloss. 274. (m) Seid. tit. of honour, 2, 5, 3. (n) Montesq. Sp. L. 30, 17.

(f) Co. Litt. 109. (g) Litt. § 164. (1) Seld, in Fortesc. c. 24. (0) Tacit. de morib. German. 6.

the sheriff, shrieve, or shire-reeve, signifying the officer of the shire, upon whom, by process of time, the civil administration of it is now totally devolved. In some counties there is an intermediate division between the shire and the hundreds, as lathes in Kent, and rapes in Sussex, each of them containing about three or four hundreds apiece. These had formerly their lathe-reeves, and rapereeves, acting in subordination to the shire-reeve. Where a county is divided. into three of these intermediate jurisdictions, they are called trithings, (p) which were anciently governed by a trithing-reeve. These trithings still subsist in the large county of York, where, by an easy corruption, they are denominated ridings; the north, the east, and the west riding. The number of counties in England and Wales have been different at different times; at present they are forty in England, and twelve in Wales.

Three of these counties, Chester, Durham, and Lancaster, are called counties palatine. The two former are such by prescription, or immemorial custom, or at least as old as *the Norman conquest: (q) the latter was created by King Edward III, in favour of Henry Plantagenet, first earl and then [* 117 ] duke of Lancaster; (r) whose heiress being married to John of Gaunt, the king's son, the franchise was greatly enlarged and confirmed in parliament, (s) to honour John of Gaunt himself, whom, on the death of his father-in-law, the king had also created duke of Lancaster. (t) Counties palatine are so called a palatio, because the owners thereof, the earl of Chester, the bishop of Durham, and the duke of Lancaster, had in those counties jura regalia, as fully as the king hath in his palace; regalem potestatem in omnibus, as Bracton expresses it. (u) They might pardon treasons, murders, and felonies; they appointed all judges and justices of the peace; all writs and indictments ran in their names, as in other counties in the king's; and all offences were said to be done against their peace, and not, as in other places, contra pacem domini regis. (w) And indeed by the ancient law, in all peculiar jurisdictions, offences were said to be done against his peace in whose court they were tried: in a court-leet, contra pacem domini; in the court of a corporation, contra pacem ballivorum; in the sheriff's court or tourn, contra pacem vice-comitis. (x) These palatine privileges (so similar to the regal independent jurisdictions usurped by the great barons on the continent, during the weak and infant state of the first feudal kingdoms in Europe), (y) were, in all probability, originally granted to the counties of Chester and Durham, because they bordered upon inimical countries, Wales and Scotland, in order that the inhabitants, having justice administered at home, might not be obliged to go out of the country, and leave it open to the enemy's incursions; and that the owners, being encouraged by so large an authority, might be the more watchful in its defence. And upon this account also there were formerly two other counties palatine, *Pembrokeshire and Hexamshire, the latter now united with Northumberland; but these were abolished, [*118] by parliament, the former in 27 Hen. VIII, the latter in 14 Eliz. And in 27 Hen. VIII, likewise, the powers before mentioned of owners of counties palatine were abridged; the reason for their continuance in a manner ceasing; though still all writs are witnessed in their names, and all forfeitures for treason by the common law accrue to them. (z)

Of these three, the county of Durham is now the only one remaining in the hands of a subject; for the earldom of Chester, as Camden testifies, was united to the crown by Henry III, and has ever since given title to the king's eldest son. And the county palatine, or duchy, of Lancaster, was the property of Henry Bolingbroke, the son of John of Gaunt, at the time when he wrested the crown from King Richard II, and assumed the title of King Henry IV. But he was too prudent to suffer this to be united to the crown, lest, if he lost one, he should lose the other also: for, as Plowden (a) and Sir Edward Coke (b)

(p) L. L. Edw. c. 34.

(q) Seld. tit. hon. 2, 5, 8.

(r) Pat. 25 Edw. III. p. 1, m. 18. Seld ibid. Sandford's Gen. Hist. 112.

(8) Cart. 36 Edw. III, n. 9 (t) Pat. 51 Edw. III. m. 33. Plowd. 215. 7 Rym: 138. 4 Inst. 204.
(u) l. 3. c. 84. § 4.
(w) 4 Inst. 204.
(x) Seld. in Heng. Magn. c. 2.
(y) Robertson, Cha. V, i. 60.
(z) 4 Inst. 205. (a) 215. (b) 4 Inst. 205,
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observe, "he knew he had the duchy of Lancaster by sure and indefeasible title, but that his title to the crown was not so assured; for that after the decease of Richard II, the right of the crown was in the heir of Lionel, duke of Clarence, second son of Edward III; John of Gaunt, father to this Henry IV, being but the fourth son." And therefore he procured an act of parliament, in the first year of his reign, ordaining that the duchy of Lancaster, and all other his hereditary estates, with all their royalties and franchises, should remain to him and his heirs for ever; and should remain, descend, be administered, and governed, in like manner as if he never had attained the regal dignity; and thus they descended to his son and grandson, Henry V and Henry VI, many new territories and privileges being annexed to the duchy by the former. (c) Henry VI being attainted in 1 Edw. IV, this duchy was declared in parliament to have become forfeited to the crown, (d) and at the same time an act [*119] was made to incorporate the duchy of Lancaster, to continue the county palatine, (which might otherwise have determined by the attainder,) (e) and to make the same parcel of the duchy; and farther to vest the whole in King Edward IV and his heirs, kings of England, for ever; but under a separate guiding and governance from the other inheritances of the crown. And in I Hen. VII another act was made, to resume such parts of the duchy lands as had been dismembered from it in the reign of Edward IV, and to vest the inheritance of the whole in the king and his heirs forever, as amply and largely, and in like manner, form, and condition, separate from the crown of England and possession of the same, as the three Henries and Edward IV, or any of them, had and held the same. (ƒ)

The Isle of Ely is not a county palatine, though sometimes erroneously called so, but only a royal franchise; the bishop having, by grant of King Henry the First, jura regalia within the Isle of Ely, whereby he exercises a jurisdiction over all causes, as well criminal as civil. (g)

*There are also counties corporate, which are certain cities and towns, [*120 ] some with more, some with less territory annexed to them; to which, out of special grace and favour, the kings of England have granted the privilege to be counties of themselves, and not to be comprized in any other county; but to be governed by their own sheriffs and other magistrates, so that no officers of the county at large have any power to intermeddle therein. Such are London, York, Bristol, Norwich, Coventry, and many others. And thus much of the countries subject to the laws of England. (20)

(d) 1 Ventr. 155.

(e) 1 Ventr. 157.

(c) Parl. 2 Hen. V. n. 30. 3 Hen. V. n. 15. (f) Some have entertained an opinion (Plowd. 220. 1. 2. Lamb. Archeion 233. 4 Inst. 206) that by this act the right of the duchy vested only in the natural, and not in the political person of King Henry VII as formerly in that of Henry IV, and was descendible to his natural he rs, independent of the succession to the crown. And, ifthis notion were well founded, it might have become a very curious question, at the time of the revolution in 1688, in whom the right of the duchy remained after King James's abdication, and previons to the attainder of the pretended prince of Wales. But it is observable, that in the same act the duchy of Cornwall is also vested in King Henry VII and his heirs ; which could never be intended in any event to be separated from the inheritance of the crown. And indeed it seems to have been understood very early after the statute of Henry VII that the duchy of Lancaster was by no means thereby made a separate inheritance from the rest of the royal patrimony, since it descended with the crown to the half-blood in the instances of Queen Mary and Queen Elizabeth, which it could not have done as the estate of a mere duke of Lancaster, in the common course of legal descent. The better opinion therefore seems, to be that of those judges, who herd (Plowd. 221) that notwithstanding the statute of Henry VII (which was only an act of resumption) the duchy still remained, as established by the act of Edward IV, separate from the other possessions of the crown in order and government, but united in point of inheritance. (g) 4 Inst. 220.

(20) There is an important difference between the civil divisions of Great Britain and those of the United States, in that, in the latter country, there is no one authority possessing such universal powers as are possessed by the parliament of the former. By the constitution of the United States, which defines the powers of the national government, that government possesses in respect to all the states exclusive control over all those concerns which would naturally form the subject of relations with other governments, and also over some matters of internal concern which it was deemed important to confer upon the general government with a view to the general harmony, and in order to "a more perfect union." All those powers not by the constitution conferred upon the general government remain with the states. With the states local self-government is the rule: for convenience in administering it, the state is divided into counties and towns, and it also creates village, borongh, and city governments to meet the wants of dense populations. All the jurisdictions inferior to the state possess only such powers as the

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