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[s], 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 administred 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 permitted 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[t].
[Footnote s: This was law in the time of Hen. VIII. as appears by the
antient book, entituled, _diversity of courts, c. bank le roy_.]
[Footnote t: Vaugh. 402.]
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, of Thanet, &c.) are comprized within some neighbouring
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[u]. 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[w]. 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[x], the island was seised 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[y]. 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
treasury by statute 12 Geo. I. c. 28. to purchase the interest of the
then proprietors for the use of the crown: which purchase hath 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
it's dependencies, so granted as aforesaid, (except the landed
property of the Atholl family, their manerial rights and emoluments,
and the patronage of the bishoprick[z] and other ecclesiastical
benefices) are unalienably vested in the crown, and subjected to the
regulations of the British excise and customs.
[Footnote u: 4 Inst. 284. 2 And. 116.]
[Footnote w: Selden. tit. hon. 1. 3.]
[Footnote x: Camden. Eliz. _A.D._ 1594.]
[Footnote y: 1 P.W. 329.]
[Footnote z: The bishoprick of Man, or Sodor, or Sodor and Man, was
formerly within the province of Canterbury, but annexed to that of
York by statute 33 Hen. VIII. c. 31.]
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 antient book of very great authority,
entituled, _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[a]. All causes are originally determined by their
own officers, the bailiffs and jurats of the islands; but an appeal
lies from them to the king in council, in the last resort.
[Footnote a: 4 Inst. 286.]
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 desart 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[b], 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[c]. 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 antient laws of the country remain, unless such as are against the
law of God, as in the case of an infidel country[d].
[Footnote b: Salk. 411. 666.]
[Footnote c: 2 P. Wms. 75.]
[Footnote d: 7 Rep. 17 _b._ Calvin's case. Show. Parl. C. 31.]
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 it's 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 it's
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 were 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[e] 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 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."
[Footnote e: Stat. 12 & 13 W. III. c. 3.]
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 shewn
hereafter; but they are not subject to the common law[f]. 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[g].
[Footnote f: Co. Litt. 260.]
[Footnote g: Finch. L. 78.]
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
arch-bishop's jurisdiction. Each province contains divers dioceses, or
sees of suffragan bishops; whereof Canterbury includes twenty one, and
York three; besides the bishoprick 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 deanry is divided into parishes[h].
[Footnote h: Co. Litt. 94.]
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 antient 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[i].
[Footnote i: Seld. of tith. 9. 4. 2 Inst. 646. Hob. 296.]
MR Camden[k] says England was divided into parishes by arch-bishop
Honorius about the year 630. Sir Henry Hobart[l] 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 shewn[m], 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.
[Footnote k: in his Britannia.]
[Footnote l: Hob. 296.]
[Footnote m: of tithes. c. 9.]
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[n], that
"_dentur omnes decimae primariae ecclesiae ad quam parochia
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[o].
[Footnote n: _c._ 1.]
[Footnote o: _Ibid._ _c._ 2. See also the laws of king Canute, c. 11.
about the year 1030.]
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 out-lying 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 desart places, or for other
now unsearchable reasons, were never united 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[p]. And thus much for the ecclesiastical division
of this kingdom.
[Footnote p: 2 Inst. 647. 2 Rep. 44. Cro. Eliz. 512.]
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 it's 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[q]. And therefore antiently no man was suffered to abide
in England above forty days, unless he were enrolled in some tithing
or decennary[r]. 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[s].
[Footnote q: _Flet._ 1. 47. This the laws of king Edward the
confessor, c. 20. very justly intitle "_summa et maxima securitas, per
quam omnes statu firmissimo sustinentur;--quae hoc modo fiebat, quod
sub decennali fidejussione debebant esse universi, &c._"]
[Footnote r: Mirr. c. 1. Sec. 3.]
[Footnote s: Finch. L. 8.]
TITHINGS, towns, 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[t]. 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 bishoprick be dissolved, as at Westminster, yet
still it remaineth a city[u]. A borough is now understood to be a
town, either corporate or not, that sendeth burgesses to
parliament[w]. Other towns there are, to the number sir Edward Coke
says[x] 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 small appendages
belonging, called hamlets; which are taken notice of in the statute of
Exeter[y], which makes frequent mention of entire vills, demi-vills,
and hamlets. Entire vills sir Henry Spelman[z] conjectures to have
consisted of ten freemen, or frank-pledges, demi-vills 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 one parish, and one
tithing; though many of them now, by the encrease 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.
[Footnote t: 1 Inst. 115 _b._]
[Footnote u: Co. Litt. 109 _b._]
[Footnote w: Litt. Sec. 164.]
[Footnote x: 1 Inst. 116.]
[Footnote y: 14 Edw. I.]
[Footnote z: Gloss. 274.]
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[a].
[Footnote a: Seld. _in Fortesc._ _c._ 24.]
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[b]: 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 it's 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_[c]. And indeed this institution of
hundreds may be traced back as far as the antient 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[d], that both
the thing and the name 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._"
[Footnote b: Seld. tit. of hon. 2. 5. 3.]
[Footnote c: Montesq. Sp. L. 30. 17.]
[Footnote d: _de morib. German._ 6.]
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 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 rape-reeves, acting
in subordination to the shire-reeve. Where a county is divided into
_three_ of these intermediate jurisdictions, they are called
trithings[e], which were antiently 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.
[Footnote e: _LL. Edw._ _c._ 34.]