Blackstone: Introduction: Section Four: Of the Countries Subject to the Laws Of England

SECTION THE FOURTH.

OF THE COUNTRIES SUBJECT TO THE

LAWS OF ENGLAND.

THE kingdom of England, over which our municipal laws have jurisdiction, includes not, by the common law, either Wales, Scotland, or Ireland, or any other part of the king's dominions, except the territory of England only. And yet the civil laws and local customs of this territory do now obtain, in part or in all, with more or less restrictions, in these and many other adjacent countries ; of which it will be proper first to take a review, before we consider the kingdom of England itself, the original and proper subject of these laws.

WALES had continued independent of England, unconquered and uncultivated, in the primitive pastoral state which Caesar and Tacitus ascribe to Britain in general, for many centuries; even from the time of the hostyle invasions of the Saxons, when the ancient and Christian inhabitants of the island retired to those natural entrenchments, for protection from their pagan visitants. But when these invaders themselves were converted to Christianity, and settled into regular and potent governments, this retreat of the ancient Britons grew every day narrower; they were overrun by little and little, gradually driven from one fastness to another, and by repeated losses abridged of their wild independence. Very early in our history we find their princes doing homage to the crown of England ; till at length in the reign of Edward the first, who may justly be styled the conqueror of Wales, the line of their ancient princes was abolished, and the king of England's eldest son became, as a matter of course, their titular prince: the territory of Wales being then entirely annexed to the dominion of the crown of England, or, as the statute of Rutland expresses it, “terra Walliae cum incolis suis, prius regi jure feodali “subjecta, (of which homage was the sign) iam in proprietatis “dominium totaliter et cum integritate conversa est, et coronae regni “Angliae tanquam pars corporis eiusdem annexa et unita.” By the statute also of Wales very material alterations were made in diverse parts of their laws, so as to reduce them nearer to the English standard, especially in the forms of their judicial proceedings: but they still retained very much of their original polity, particularly their rule of inheritance, viz, that their lands were divided equally among all the issue male, and did not descend to the eldest son alone. By other subsequent statutes their provincial immunities were still farther abridged: but the finishing stroke to their independence, was given by the statute 27 Hen. VIII. c. 26. which at the same time gave the utmost advancement to their civil prosperity, by admitting them to a thorough communication of laws with the subjects of England. Thus were this brave people gradually conquered into the enjoyment of true liberty; being insensibly put upon the same footing, and made fellow-citizens with their conquerors. A generous method of triumph, which the republic of Rome practifed with great success; till she reduced all Italy to her obedience, by admitting the vanquished states to partake of the Roman privileges.

IT is enacted by this statute 27 Hen. VIII. 1. That the dominion of Wales shall be for ever united to the kingdom of England. 2. That all Welchmen born shall have the same liberties as other the king's subjects. 3. That lands in Wales shall be inheritable according to the English tenures and rules of descent. 4. That the laws of England, and no other, shall be used in Wales: besides many other regulations of the police of this principality. And the statute 34 & 35 Hen. VIII. c. 26. confirms the same, adds further regulations, divides it into twelve shires, and, in short, reduces it into the same order in which it stands at this day ; differing from the kingdom of England in only a few particulars, and those too of the nature of privileges, (such as having courts within itself, independent of the process of Westminster Hall) and some other immaterial peculiarities, hardly more than are to be found in many counties of England itself.

THE kingdom of Scotland notwithstanding the union of the crowns of the accession of their King James IV to that of England, continued an entirely separate and distinct kingdom for above a century, though an union had been long projected; which was judged to be the more easy to be done, as both kingdoms were anciently under the same government, and still retained a very great resemblance, though far from an identity, in their laws. By an Act of Parliament 1. Jac. I. c. 1. it is declared, that these two, mighty, famous, and ancient kingdoms were formerly one. And Sir Edward Coke observes, how marvelous a conformity there was, not only in the religion and language of the two nations, but also in their ancient laws, the descent of the crown, their parliaments, their titles of nobility, their officers of state and of justice, their writs, their customs, and even the language of their laws. Upon which account he supposes the common law of each to have been originally the same, especially as their most ancient and authentic book, called regiam majestatem and containing the rules of their ancient common law, is extremely similar that of Glanvil, which contains the principles of ours, as it stood in the reign of Henry II. And the many diversities. Subsisting between the two laws at present, may be well enough accounted for, from a diversity of practice in two large and uncommunicating jurisdictions, and from the acts of two distinct and independent parliaments, which have in many points altered and abrogated the old common law of both kingdoms.

HOWEVER Sir Edward Coke, and the politicians of that time, conceived great difficulties in carrying on the projected union: but these were at length overcome, and the great work was happily effected in 1707, 5 Anne; when twenty five articles of union were agreed to by the parliaments of both nations : the purport of the most considerable being as follows:

1. THAT on the first of May 1707, and for ever after, the kingdoms of England and Scotland, shall be united into one kingdom, by the name of Great Britain.

2. THE succession to the monarchy of Great Britain shall be the same as was before settled with regard to that of England.

3. THE United Kingdom shall be represented by one Parliament.

4. THERE shall be a communication of all rights and privileges between the subjects of both Kingdoms, except where it is otherwise agreed.

9. WHEN England raises 2,000,000 l. by a land tax, Scotland shall raise 48,000 l.

16, 17. THE standards of the coin, of weights, and of measures, shall be reduced to those of England, throughout the United Kingdoms.

18. THE laws relating to trade, customs, and the excise, shall be the same in Scotland as in England. But all the other laws of Scotland shall remain in force; but alterable by the parliament of Great Britain. Yet with this caution; that laws relating to public policy are alterable at the discretion of the parliament; laws relating to private rights are not to be altered but for the evident utility of the people of Scotland.

22. SIXTEEN peers are to be chosen to represent the peerage of Scotland in parliament, and forty five members to sit in the House of Commons.

23. THE sixteen peers of Scotland shall have all privileges of Parliament: and all peers of Scotland shall be peers of Great Britain, and rank next after those of the same degree at the time of the union, and shall have all privileges of peers, except sitting in the House of Lords and voting on the trial of a peer.

THESE are the principal of the twenty five articles of union, which are ratified and confirmed by statute 5 Ann. c. 8. in which statute there are also two acts of Parliament recited ; the one of Scotland, whereby the church of Scotland, and also the four universities of that Kingdom, are established for ever, and all succeeding sovereigns are to take an oath inviolably to maintain the same; the other of England, 5 Ann. c. 6. whereby the acts of uniformity of 13 Eliz. and 13 Car. II. (except as the same had been altered by Parliament at that time) and all other acts then in force for the preservation of the church of England, are declared perpetual; and it is stipulated, that every subsequent king and queen shall taken an oath inviolably to maintain the fame within England, Ireland, Wales, and the own of Berwick upon Tweed. And it is enacted, that these two acts “shall for ever be observed “as fundamental and essential conditions of the union.”

UPON these articles, and act of union, it is to be observed, 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them again, but an infringment of those points which, when they were separate and independent nations, it was mutually stipulated should be “fundamental and “essential conditions of the union.” 2. That whatever else may be deemed “fundamental and essential conditions,” the preservation of the two churches, of England and Scotland, in the same state that they were in at the time of the union, and the maintenance of the acts of uniformity which establish our common prayer, are expressly declared so to be. 3. That therefore any alteration in the constitutions of either of those churches, or in the liturgy of the Church of England, would be an infringement of these “fundamental and essential conditions,” and greatly endanger the union. 4. That the municipal laws of Scotland are ordained to be still observed in that part of the island, unless altered by Parliament; and, as the Parliament has not yet thought proper, except in a few instances, to alter them, they still (with regard to the particulars unaltered) continue in full force. Wherefore the municipal or common laws of England are, generally speaking, of no force or validity in Scotland; and, of consequence , in the ensuing commentaries, we shall have very little occasion to mention, any farther than sometimes by way of illustration, the municipal laws of that part of the United Kingdoms.

THE town of Berwick upon Tweed, though subject to the crown of England ever since the conquest of it in the reign of Edward IV, is not part of the kingdom of England, nor subject to the common law; though it is subject to all acts of parliament, being represented by burgesses therein. And therefore it was declared by statute 20 Geo. II. c. 42. that where England only is mentioned in any act of Parliament, the same notwithstanding shall be deemed to comprehend the dominion of Wales, and town of Berwick upon Tweed. But the general law there used is the Scots law, and the ordinary process of the courts of Westminster-shall is there of no authority.

AS to Ireland, that is still a distinct kingdom; though a dependent, subordinate kingdom. It was only entitled the dominion or lordship of Ireland, and the king's style was no other than dominus Hiberniae, lord of Ireland, till the thirty third year of king Henry the Eighth ; when he assumed the title of king, which is recognized by act of parliament 35 Hen. VIII. c. 3. But, as Scotland and England are now one and the same kingdom, and yet differ in their municipal laws; so England and Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws. The inhabitants of Ireland are, for the most part, descended from the English, who planted it as a kind of colony, after the conquest of it by King Henry the Second, at which time they carried over the English laws along with them. And as Ireland, thus conquered, planted, and governed, still continues in a state of dependence, it must necessarily conform to, and be obliged by such laws as the superior state thinks proper to prescribe.

AT the time of this conquest the Irish where governed by what they called the Brehon law, so styled from the Irish name of judges, who were denominated Brehons. But king John in the twelfth year of his reign went into Ireland, and carried over with him many able sages of the law; and there by his letters patent, in right of the dominion of conquest, is said to have ordained and established that Ireland should be governed by the laws of England: which letters patent Sir Edward Coke apprehends to have been there confirmed in Parliament. But to this ordinance many of the Irish were averse to conform, and still stuck to their Brehon law: so that both Henry the Third and Edward the First were obliged to renew the injunction; and at length in a Parliament held at Kilkenny, 40 Edw. III, under Lionel Duke of Clarence, the then lieutenant of Ireland, the Brehon law was formally abolished, it being unanimously declared to be indeed no law, but a lewd custom crept in of later times. And yet, even in the reign of Queen Elizabeth, the wild natives still kept and preserved their Brehon law; which is described to have been “a rule of right unwritten, but delivered by tradition “from one to another, in which oftentimes there appeared great “shew of equity in determining the right between party and party, but in many things repugnant quite both to God's law “and man's.” The latter part of which character is alone allowed it under Edward the First and his grandson.

BUT as Ireland was a distinct dominion, and had parliaments of its own, it is to be observed, that though the immemorial customs, or common law, of England were made the rule of justice in Ireland also, yet no acts of the English parliament, since the twelfth of King John, extended into that kingdom; unless it were specially named, or included under general words, such as, “within any of the king's dominions.” And this is particularly expressed, and the reason given in the year book: “Ireland has “a parliament of it's own, and maketh and altereth laws ; and “our statutes do not bind them, because they do not send repre- “sentatives to our parliament : but their persons are the king's “subjects, like as the inhabitants of Calais, Gascoigny, and Guienne, “while they continued under the king's subjection.” The method made use of in Ireland, as stated by Sir Edward Coke, of making statutes in their parliaments, according to Poynings' law, of which hereafter, is this : 1. The lord lieutenant and council of Ireland must certify to the king under the great seal of Ireland the acts proposed to be passed. 2. The king and council of England are to consider, approve, alter, or reject the said acts; and certify them back again under the great seal of England. And then, 3. They are to be proposed, received, or rejected in the parliament of Ireland. By this means nothing was left to the parliament in Ireland, but a bare negative or power of rejecting, not of proposing, any law. But the usage now is, that bills are often framed in either House of Parliament under the denomination of heads for a bill or bills; and in that shape they are offered to the consideration of the lord lieutenant and privy council, who then reject them at pleasure, without transmitting them to England.

BUT the Irish nation, being excluded from the benefit of the English statutes, were deprived of many good and profitable laws, made for the improvement of the common law: and, the measure of justice in both kingdoms becoming thereby no longer uniform, therefore in the 10 Hen. VII. a set of statutes passed in Ireland, (Sir Edward Poynings being then Lord Deputy, whence it is called Poynings' law) by which it was, among other things, enacted, that all acts of parliament before made in England, should be of force within the realm of Ireland. But. by the same rule that no laws made in England, between king John's time and Poynings law, were then binding in Ireland, it follows that no acts of the English parliament made since the so Hen. VII. do now bind the people of Ireland, unless specially named or included under general words. And on the other hand it is equally clear, that where Ireland is particularly named, or is included under general words, they are bound by such acts of Parliament. For this follows from the very nature and constitution of a dependent state: dependence being very little else, but an obligation to conform to the will or law of that superior person or state, upon which the inferior depends. The original and true ground of this superiority is the right of conquest: a right allowed by the law of nations, if not by that of nature; and founded upon a compact either expressly or tacitly made between the conqueror and the conquered, that if they will acknowledge the victor for their master, he will treat them for the future as subjects, and not as enemies.

BUT this state of dependence being almost forgotten, and ready to be disputed by the Irish nation, it become necessary some years ago to declare how that matter really stood: and therefore by statute 6 Geo. I. C. 5. it is declared, that the kingdom of Ireland ought to be subordinate to, and dependent upon, the imperial crown of Great Britain, as being inseparably united thereto; and that the king's majesty, with the consent of the lords and commons of Great Britain in parliament, has power to make laws to bind the people of Ireland.

THUS we see how exensively the laws of Ireland communicate with those of England: and indeed such communication is highly necessary, as the ultimate resort from the courts of justice in Ireland is, as in Wales, to those in England ; a writ of error (in the nature of an appeal) lying from the king's bench in Ireland to the king's bench in England, as the appeal from all other courts in Ireland lies immediately to the House of Lords here: it being expressly declared, by the same statute 6 Geo. I. C. 5. that the peers of Ireland have no jurisdiction to affirm or reverse any judgments or decrees whatsoever. The propriety, and even necessity, in all inferior dominions, of this constitution, “that, though justice be in general administered by courts of “their own, yet that the appeal in the last resort ought to be to “the courts of the superior state,” is founded upon these two reasons. 1. Because otherwise the law, appointed or permited to such inferior dominion, might be insensibly changed within itself, without the assent of the superior. 2. Because otherwise judgments might be given to the disadvantage or diminution of the superiority; or to make the dependence to be only of the person of the king, and not of the crown of England.

WITH regard to the other adjacent islands which are subject to the crown of Great Britain, some of them (as the Isle of Wight, of Portland, Thanet, etc.) are comprised within some neighboring county, and are therefore to be looked upon as annexed to the mother island, and part of the kingdom of England. But there are others, which require a more particular consideration.

AND first, the Isle of Man is a distinct territory from England and is not governed by our laws; neither doth any act of Parliament extend to it, unless it be particularly named therein; and then an act of Parliament is binding there. It was formerly a subordinate feudatory kingdom, .subject to the kings of Norway; then to King John and Henry III of England; afterwards to the Kings of Scotland ; and then again to the Crown of England: and at length we find king Henry IV claiming the island by right of conquest, and disposing of it to the Earl of Northumberland; upon whose attainder it was granted (by the name of the lordship of Man) to Sir John de Stanley by letters patent 7 Hen. IV. In his lineal descendants it continued for eight generations, till the death of Ferdinando Earl of Derby, A. D. 1594; when a controversy arose concerning the inheritance thereof, between his daughters and William his surviving brother: upon which, and a doubt that was started concerning the validity of the original patent, the island was seized into the queen's hands, and afterwards various grants were made of it by king James the First; all which being expired or surrendered, it was granted afresh in 7 Jac. I. to William Earl of Derby, and the heirs male of his body, with remainder to his heirs general; which grant was the next year confirmed by act of Parliament, with a restraint of the power of alienation by the said Earl and his issue male. On the death of James Earl of Derby. A. D. 1735, the male line of Earl William failing, the duke of Atholl succeeded to the island as heir general by a female branch. In the mean time, though the title of king had long been disused, the Earls of Derby, as Lords of Man, had maintained a sort of royal authority therein; by assenting or dissenting to laws, and exercising an appellate jurisdiction. Yet, though no English writ, or process from the courts of Westminster, was of any authority in Man, an appeal lay from a decree of the lord of the island to the king of Great Britain in council. But, the distinct jurisdiction of this little subordinate royalty being found inconvenient for the purposes of public justice, and for the revenue, (it affording a convenient asylum for debtors, outlaws, and smugglers) authority was given to the teasury by statute 12 Geo. I. c. 28. to purchase the interest of the then proprietors for the use of the crown: which purchase has at length been completed in this present year 1765, and confirmed by statutes 5 Geo. III. c. 26, & 39. whereby the whole island and all its dependencies, so granted as aforesaid, (except the landed property of the Atholl family, their manorial rights and emoluments, and the patronage of the bishopric and other ecclesiastical benefices) are unalienably vested in the crown, and subjected to the regulations of the British excise and customs.

THE islands of Jersey, Guernsey, Sark, Alderney, and their appendages, were parcel of the duchy of Normandy, and were united to the crown of England by the first princes of the Norman line. They are governed by their own laws, which are for the most part the ducal customs of Normandy, being collected in an ancient book of very great authority, entitled, le grand coustumier. The king's writ, or process from the courts of Westminster, is there of no force; but his commission is. They are not bound by common acts of our parliaments, unless particularly named. All causes are originally determined by their own officers, the bailiffs and jurats of the islands; but an appeal lies from the to the king in council, in the last resort.

BESIDES these adjacent islands, our more distant plantations in America, and elsewhere, are also in some respects subject to the English laws. Plantations, or colonies in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it is held, that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For as the law is the birthright of every subject, so wherever they go they carry their laws with them. But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country.

OUR American plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what natural justice I shall not at present enquire) or by treaties. And therefore the common law of England, as such, has no allowance or authority there; they being no part of the mother country, but distinct (though dependent) dominions. They are subject however to the control of the parliament; though (like Ireland, Man, and the rest) not bound by any acts of parliament, unless particularly named. The form of government in most of them is borrowed from that of England. They have a governor named by the king, (or in some proprietary colonies by the proprietor) who is his representative or deputy. They have courts of justice of their own, from whose decisions an appeal lies to the king in council here in England. Their general assemblies which are their house of commons, together with their council of state being their upper house, with the concurrence of the king or his representative the governor, make laws suited to their own emergencies. But it is particularly declared by statute 7 & 8 W. III. c. 22. That all laws, by-laws, usages, and customs, which shall be in practice in any of the plantations, repugnant to any law, made or to be made in this kingdom relative to the said plantations shall be utterly void and of none effect.

THESE are the several parts of the dominions of the crown of Great Britain, in which the municipal laws of England are not of force or authority, merely as the municipal laws of England. Most of them have probably copied the spirit of their own law from this original; but then it receives its obligation, and authoritative force, from being the law of the country.

AS to any foreign dominions which may belong to the person of the king by hereditary descent, by purchase, or other acquisition, as the territory of Hanover, and his majesty's other property in Germany; as these do not in any wise appertain to the crown of these kingdoms, they are entirely unconnected with the laws of England, and do not communicate with this nation in any respect whatsoever. The English legislature had wisely remarked the inconveniences that had formerly resulted from dominions on the continent of Europe; from the Norman territory which William the Conqueror brought with him, and held in conjunction with the English throne; and from Anjou, and its appendages, which fell to Henry the Second by hereditary descent. They had seen the nation engaged for near four hundred years together in ruinous wars for defence of these foreign dominions; till, happily for this country, they were lost under the reign of Henry the Sixth. They observed that from that time the maritime interests of England were better understood and more closely pursued: that, in consequence of this attention, the nation, as soon as she had rested from her civil wars, began, at this period to flourish all at once; and became much more considerable in Europe than when her princes where possessed of a larger territory, and her counsels distracted by foreign interests. This experience and these considerations gave birth to a conditional clause in the act of settlement, which vested the crown in his present majesty's illustrious house, “That in case the crown and “imperial dignity of this realm shall hereafter come to any per- “son 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, 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 shown hereafter ; but they are not subject to the common law. This main sea beings at the low-watermark. 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
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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 diverse 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 deanries, which are the circuit of the archdeacon's and rural dean's jurisdiction, of whom hereafter ; and every deanery is divided into parishes.

A PARISH is that circuit of ground in which the souls under the care of one parson or vicar do inhabit. These are computed to be near ten thousand in number. How ancient the division of parishes is, 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 .

MR Camden says England was divided into parishes by archbishop Honorius about the year 630. Sir Henry Hobart 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 truth; which will probably be found in the medium between the two extremes. For Mr Selden has clearly shown, that the clergy lived in common without any division of parishes, long after the time mentioned by Camden. And it appears from 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, that “dentur omnes decimae primariae “ecclesiae ad quam parochial pertinet.” However, if any thane, or great lord, had a church within his own demesnes, distinct from the mother-church, in the nature of a private chapel ; then, provided such church had a coemitery 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 coemitery, 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 primariae ecclesiae or mother-church

THIS proves that the kingdom was then universally 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 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 unied to any parish, and therefore continue to this day extraparochial; 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. 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 Alfred ; who, to prevent the rapines and disorders which formerly prevailed in the realm, instituted tithings; so called, from the Saxon, because ten freeholders with their families composed one. These all dwelt together, and were sureties or free pledges to the king for the good behaviour of each other; and, if any offence were committed in their district, they were bound to have the offender forthcoming. And therefore anciently no man was suffered to abide in England above forty days, unless he were enrolled in some tithing or decennary. One of the principal inhabitants of the tithing is annually appointed to preside over the rest, being called the tithing-man, the the head-borough, (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.

TITHINGS, town, or vills, are of the same signification in law ; and had, each of them, originally a church and celebration of divine service, sacraments, and burials; which to have, or have had, separate to itself, is the essential distinction of a town, according to Sir Edward Coke. The word town or vill is indeed, by the alteration of times and language, now become a generic term, comprehending under it the several species of cities, boroughs, and common towns. A city is a town incorporated, which is or has been the see of a bishop; and though the bishopric be dissolved, as at Westminster, yet still it remains a city. A borough is now understood to be a town, either corporate or not, that sends burgesses to Parliament. Other towns there are, to the number Sir Edward Coke says of 8803, 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 finall appendages belonging, called hamlets; which are taken notice of in the statute of Exeter, 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 it is, to some purposes in law, looked upon as a distinct township. These towns, as was before hinted, contained each originally but 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 composes 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.

THE subdivision of hundreds into tithings seems to be most peculiarly the invention of Alfred: the institution of hundreds. Themselves the rather introduced than invented. For they seem to have obtained in Denmark: 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 centenaries; a number of which centenarii were themselves subject to a superior officer called the count or comes. And indeed this institution of hundreds may be traced 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 we read in Tacitus, that both the thing and the name wee well known to that warlike people. “Genteni ex singulis pages sunt, idque ipsum inter suos vo- “cantur; et quod primo numerus fuit, iam nomen et honor est.”

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 entrusted. This he usually exercised by his deputy, still called in Latin vice-comes, and in English 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 Suffex, each of them containing about three or four hundreds apiece. These had formerly their lathe-reeves and rape-reeves, acting in subordination to the shire-reeve. Where a county is divided into three of these intermediate jurisdictions, they are called trithings, 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 there 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: the latter was created by king Edward III, in favour of Henry Plantagenet, first Earl and then Duke of Lancaster, whose heiress John of Gant the king's son had married; and afterwards confirmed in Parliament, to honour John of Gant himself; whom, on the death of his father-in-law, he had also created Duke of Lancaster. Counties palatine are so called a palatio; because the owners thereof, the Earl of Chester, the Bishop of Durham, and the Duke of Lancafter, had in those counties jura regalia, as fully as the king has in his palace; regalem potestatem in omnibus, as Bracton expresses it. 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. 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. These palatine privileges were in all probability originally granted to the counties of Chester and Durham, because they bordered upon enemies countries, Wales and Scotland, in order that the owners, being encouraged by so large an authority, might be the more watchful in its defence; and that the inhabitants, having justice administered at home, might not be obliged to go out of the county, and leave it open to the enemies incursions. 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 by Parliament, the former in 27 Hen. VIII, the latter in 14 Eliz. And in 27 Hen. VIII likewise, the powers beforementioned 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.

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 of Bolinbroke, the son of John of Gant, at the time when he wrested the crown from king Richard II, and assumed the title of 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 and Sir Edward Coke observe, “he knew he had the “duchy of Lancafter 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 Gant, “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, to keep it distinct and separate from the crown, and so it descended to his son, and grandson, Henry V, and Henry VI. Henry VI being attainted in 1 Edw. IV, this duchy was declared in Parliament to have become forfeited to the crown, and at the same time an act was made to keep it still distinct and separate from other inheritances of the crown. And in 1 Hen. VII another act was made to vest the inheritance thereof in Henry VII and his heirs, and in this state, say Sir Edward Coke and Lambard, viz. in the natural heirs or posterity of Henry VII, did the right of the duchy remain to their days; a separate and distinct inheritance from that of the crown of England.

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, and thereby he exercises a jurisdiction over all causes, as well criminal, as civil.

THERE are also counties corporate; which are certain cities and towns, some with more, some with less territory annexed to them; to which out of special grace and favour the kings of England have granted to be counties of themselves, and not to be comprised 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. If this notion of Lambard and Coke be 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. The attainder indeed of the pretended Prince of Wales (by statute 13 W. III. c. 3.) has now put the matter out of doubt. And yet, to give that attainder its full force in this respect, the object of it must have been supposed legitimate, else he had no interest to forfeit.