Commentaries on the Laws of England Part 9

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 t.i.thes. 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 t.i.thes 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 compet.i.tors 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 t.i.thes 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 t.i.thes 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 lords.h.i.+ps; and, in order to have divine service regularly performed therein, obliged all their tenants to appropriate their t.i.thes 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 t.i.thes 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 t.i.thes of those disjointed lands; especially if no church was then built in any lords.h.i.+p adjoining to those out-lying parcels.

THUS parishes were gradually formed, and parish churches endowed with the t.i.thes that arose within the circuit a.s.signed. 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 t.i.thes 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 t.i.things 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, inst.i.tuted t.i.things; 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 t.i.thing or decennary[r]. One of the princ.i.p.al inhabitants of the t.i.thing is annually appointed to preside over the rest, being called the t.i.thing-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 t.i.thing[s].

[Footnote q: _Flet._ 1. 47. This the laws of king Edward the confessor, c. 20. very justly int.i.tle "_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. --. 3.]

[Footnote s: Finch. L. 8.]

t.i.tHINGS, 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 c.o.ke[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 bishop.r.i.c.k 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 c.o.ke 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 towns.h.i.+p. These towns, as was before hinted, contained each originally but one parish, and one t.i.thing; though many of them now, by the encrease of inhabitants, are divided into several parishes and t.i.things: and sometimes, where there is but one parish there are two or more vills or t.i.things.

[Footnote t: 1 Inst. 115 _b._]

[Footnote u: Co. Litt. 109 _b._]

[Footnote w: Litt. --. 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 t.i.thing, so ten t.i.things 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 t.i.things seems to be most peculiarly the invention of Alfred: the inst.i.tution 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 inst.i.tution 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. t.i.t. 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 s.h.i.+re.

s.h.i.+re 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 s.h.i.+re, 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 s.h.i.+re-reeve, signifying the officer of the s.h.i.+re; 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 s.h.i.+re and the hundreds, as lathes in Kent, and rapes in Suss.e.x, each of them containing about three or four hundreds apiece. These had formerly their lathe-reeves and rape-reeves, acting in subordination to the s.h.i.+re-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.]

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[f]: 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[g]. 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[h]. 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_[i]. And indeed by the antient 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_[k]. 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 it's 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, Pembrokes.h.i.+re and Hexams.h.i.+re, 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[l].

[Footnote f: Seld. t.i.t. hon. 2. 5. 8.]

[Footnote g: Plowd. 215.]

[Footnote h: _l._ 3. _c._ 8. --. 4.]

[Footnote i: 4. Inst. 204.]

[Footnote k: Seld. _in Hengham magn._ _c._ 2.]

[Footnote l: 4 Inst. 205.]

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 t.i.tle 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 a.s.sumed the t.i.tle 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[m] and sir Edward c.o.ke[n]

observe, "he knew he had the duchy of Lancaster by sure and indefeasible t.i.tle, but that his t.i.tle to the crown was not so a.s.sured: 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[o], 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 c.o.ke[p] and Lambard[q], 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[r].

[Footnote m: 215.]

[Footnote n: 4 Inst. 205.]

[Footnote o: 1 Ventr. 155.]

[Footnote p: 4 Inst. 206.]

[Footnote q: Archeion. 233.]

[Footnote r: If this notion of Lambard and c.o.ke 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 it's full force in this respect, the object of it must have been supposed legitimate, else he had no interest to forfeit.]

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[s].

[Footnote s: 4 Inst. 220.]

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 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.