Commentaries on the Laws of England (Vol. 1 of 4), Introduction, Section 4
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 view, 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 hostile 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 over-run 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 re-annexed (by a kind of feudal resumption) to the dominion of the crown of England;1 or, as the statute of Rhudhlan2 expresses it, “terra Walliae cum incolis suis, prius regi jure feodali subjecta, (of which homage was the sign) jam in proprietatis dominium totaliter et cum integritate conversa est, et coronae regni Angliae tanquam pars corporis ejusdem annexa et unita” [“the country of Wales, together with its inhabitants, was formerly held under the King by the feudal law; it is now completely converted into a principality, and annexed to, and united with, the crown of England, as forming a part of the same kingdom”]. By the statute also of Wales3 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 independency 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 practiced 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 Welshmen 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 and 35 Hen. VIII, c. 26. confirms the same, adds farther 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 on the accession of their king James VI. to that of England, continued an entirely separate and distinct kingdom for above a century more, 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,4 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 to 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, 6 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£ by a land-tax, Scotland shall raise 48,000£.
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; though 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 right 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 take an oath inviolably to maintain the same within England, Ireland, Wales, and the town 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; except the mutual consent of both, or the successful resistance of either, upon apprehending an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be “fundamental and essential conditions of the union.”5 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 constitution of either of those churches, or in the liturgy of the church of England, (unless with the consent of the respective churches, collectively or representatively given,) 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 was originally part of the kingdom of Scotland; and, as such, was for a time reduced by king Edward I. into the possession of the crown of England: and, during such its subjection, it received from that prince a charter, which (after its subsequent cession by Edward Balliol, to be for ever united to the crown and realm of England) was confirmed by king Edward III, with some additions; particularly that it should be governed by the laws and usages which it enjoyed during the time of king Alexander, that is before its reduction by Edward I. Its constitution was new-modeled, and put upon an English footing by a charter of king James I: and all its liberties, franchises, and customs, were confirmed in parliament by the statutes 22 Edw. IV. c. 8. and 2 Jac. I. c. 28. Though therefore it has some local peculiarities, derived from the ancient laws of Scotland,6 yet it is clearly part of the realm of England, being represented by burgesses in the house of commons, and bound by all acts of the British parliament, whether specially named or otherwise. And therefore it was (perhaps superfluously) declared by statute 20 Geo. II. c. 42. that, where England only is mentioned in any act of parliament, the same notwithstanding has and shall be deemed to comprehend the dominion of Wales and town of Berwick upon Tweed. And though certain of the king’s writs or processes of the courts of Westminster do not usually run into Berwick, any more than the principality of Wales, yet it has been solemnly adjudged7 that all prerogative writs (as those of mandamus [we command], prohibition, habeas corpus [we have the body], certiorari [we have given notice], etc.) may issue to Berwick as well as to every other of the dominions of the crown of England, and that indictments and other local matters arising in the town of Berwick may be tried by a jury of the county of Northumberland.
As to Ireland, that is still a distinct kingdom; though a dependent subordinate kingdom. It was only entitled the dominion or lordship of Ireland8 and the king’s stile 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: and the laws of England were then received and sworn to by the Irish nation, assembled at the council of Lismore.9 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 were governed by what they call the Brehon law, so styled from the Irish name of judges, who were denominated Brehons.10 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:11 which letters patent sir Edward Coke12 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 third13 and Edward the first14 were obliged to renew the injunction; and at length in a parliament held at Kilkenny, 40 Edw. III. under Lionel the duke of Clarence, 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 described15 to have been “a rule of right unwritten, but delivered by tradition from one to another, in which oftentimes there appeared great show of equity in determining the right between party and party, but in many things repugnant quite both to God’s laws and man’s.” The latter part of this character is alone ascribed to it, by the laws before-cited of 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 books:16 “a tax granted by the parliament of England shall not bind those of Ireland, because they are not summoned to our parliament;” and again, “Ireland has a parliament of its own, and makes and alters laws; and our statutes do not bind them, because they do not send knights to our parliament: but their persons are the king’s subjects, like as the inhabitants of Calais, Gascoigne, and Gulenne, while they continued under the king’s subjection.” The general run of laws, enacted by the superior state, are supposed to be calculated for its own internal government, and do not extend to its distant dependent countries; which, bearing no part in the legislature, are not therefore in its ordinary and daily contemplation. But, when the sovereign legislative power sees it necessary to extend its care to any of its subordinate dominions, and mentions them expressly by name or includes them under general words, there can be no doubt but then they are bound by its laws.17
The original method of passing statutes in Ireland was nearly the same as in England, the chief governor holding parliaments at his pleasure, which enacted such laws as they thought proper.18 But an ill use being made of this liberty, particularly by lord Gormanstown, deputy-lieutenant in the reign of Edward IV,19 a set of statutes were there enacted in the 10 Hen. VII. (sir Edward Poynings being then lord deputy, whence they are called Poyning’s laws) one of which,20 in order to restrain the power as well of the deputy as the Irish parliament, provides, 1. That, before any parliament be summoned or held, the chief governor and council of Ireland shall certify to the king under the great seal of Ireland the considerations and causes thereof, and the articles of the acts proposed to be passed therein. 2. That after the king, in his council of England, shall have considered, approved, or altered the said acts or any of them, and certified them back under the great seal of England, and shall have given license to summon and hold a parliament, then the same shall be summoned and held; and therein the said acts so certified, and no other, shall be proposed, received, or rejected.21 But as this precluded any law from being proposed, but such as were pre-conceived before the parliament was in being, which occasioned many inconveniences and made frequent dissolutions necessary, it was provided by the statute of Philip and Mary before-cited, that any new propositions might be certified to England in the usual forms, even after the summons and during the session of parliament. By this means however there was nothing left to the parliament in Ireland, but a bare negative or power of rejecting, not of proposing or altering, any law. But the usage now is, that bills are often framed in either house, 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, upon such parliamentary intimation, or otherwise upon the application of private persons, receive and transmit such heads, or reject them without any transmission to England. And with regard to Poynings’ law in particular, it cannot be repealed or suspended, unless the bill for that purpose, before it be certified to England, be approved by both the houses.22
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 thence no longer uniform, it was therefore enacted by another of Poynings’ laws,23 that all acts of parliament, before made in England, should be of force within the realm of Ireland.24 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 10 Hen. VII. do now bind the people of Ireland, unless specially named or included under general words.25 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, in the present case, is what we usually call, though somewhat improperly, the right of conquest: a right allowed by the law of nations, if not by that of nature; but which in reason and civil policy can mean nothing more, than that, in order to put an end to hostilities, a compact is 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.26
But this state of dependence being almost forgotten, and ready to be disputed by the Irish nation, it became 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 extensively 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,27 as the appeal from the chancery 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 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.28
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, 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 does any act of parliament extend to it, unless it be particularly named therein: and then an act of parliament is binding there.29 It was formerly a subordinate feudatory kingdom, subject to the kings of Norway; then to king John and Henry III. of England; afterward 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 Henry IV.30 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,31 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.32 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 commodious 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 was at length completed in the year 1765, and confirmed by statutes 5 Geo. III. c. 26 and 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 bishopric33 and other ecclesiastical benefices,) are inalienably 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.34 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 and council, in the last resort.
Besides these adjacent islands, our more distant plantations in America, and elsewhere, are also in some respect 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 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 has been held,35 that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject,36 are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony; such, for instance, as the general rules of inheritance, and of protection from personal injuries. The artificial refinements and distinctions incident to the property of a great and commercial people, the laws of police and revenue, (such especially as are enforced by penalties) the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them, and therefore are not in force. What shall be admitted and what rejected, at what times, and under what restrictions, must, in case of dispute, be decided in the first instance by their own provincial judicature, subject to the revision and control of the king in council: the whole of their constitution being also liable to be new-modeled and reformed by the general superintending power of the legislature in the mother country. 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.37
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 inquire) 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.
With respect to their interior polity, our colonies are properly of three sorts. 1. Provincial establishments, the constitutions of which depend on the respective commissions issued by the crown to the governors, and the instructions which usually accompany those commissions; under the authority of which, provincial assemblies are constituted, with the power of making local ordinances, not repugnant to the laws of England. 2. Proprietary governments, granted out by the crown to individuals, in the nature of feudatory principalities, with all the inferior regalities, and subordinate powers of Legislation, which formerly belonged to the owners of counties palatine: yet still with these express conditions, that the ends for which the grant was made be substantially pursued, and that nothing be attempted which may derogate from the sovereignty of the mother-country. 3. Charter governments, in the nature of civil corporations, with the power of making bye-laws for their own interior regulation, not contrary to the laws of England: and with such rights and authorities as are specially given them in their several charters of incorporation. 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 and 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 and 8 W. III. c. 22. that all laws, bye-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; and, because several of the colonies had claimed the sole and exclusive right of imposing taxes upon themselves, the statute 6 Geo. III. c. 12. expressly declares, that all his majesty’s colonies and plantations in America have been, are, and of right ought to be, subordinate to and dependent upon the imperial crown and parliament of Great Britain; who have full power and authority to make laws and statutes of sufficient validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever. And this authority has been since very forcibly exemplified, and carried into act, by the statute 7 Geo. III. c. 59. for suspending the legislation of New York; and by several subsequent statutes.
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 defense 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 councils distracted by foreign interests. This experience and these considerations gave birth to a conditional clause in the act38 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 defense 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 shown hereafter; but they are not subject to the common law.39 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 [divided authority], an alternate jurisdiction; one upon the water, when it is full sea; the other upon the land when it is an ebb.40
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 deaneries, which are the circuit of the archdeacon’s and rural dean’s jurisdiction, of whom hereafter; and every deanery is divided into parishes.41
A parish is that circuit of ground which is committed to the charge of one parson, or vicar, or other minister having care of souls therein. These districts are computed to be near ten thousand in number.42 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.43
Mr. Camden44 says, England was divided into parishes by archbishop Honorius about the year 630. Sir Henry Hobart45 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,46 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,47 that “dentur omnes decimae primariae ecclesiae ad quam parochia pertinet” [“all tithes be given to the mother church to which the parish belongs”]. 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 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 cemetery, 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.48
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 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 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;49 yet extraparochial 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, seem 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 behavior of each other; and if any offense was committed in their district, they were bound to have the offender forthcoming.50 And therefore anciently no man was suffered to abide in England above forty days, unless he were enrolled in some tithing or decennary.51 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.52
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:53
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 has been the see of a bishop: and though the bishopric be dissolved, as at Westminster, yet still it remains a city.54 A borough is now understood to be a town, either corporate or not, that sends burgesses to parliament.55 Other towns there are, to the number sir Edward Coke says56 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,57 which makes frequent mention of entire vills, demi-vills, and hamlets. Entire vills sir Henry Spelman58 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 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.59
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:60 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 [head of a hundred]; a number of which centenarii were themselves subject to a superior officer called the count or comes.61 And indeed something like 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 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 suit, jam nomen et honor est.”62 [“Each village is divided into hundreds, and are so called by their inhabitants; and that which first was a mere number has now become both a name and an honor.”]
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 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,63 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:64 the latter was created by king Edward III, in favor of Henry Plantagenet, first earl and then duke of Lancaster;65 whose heiress being married to John of Gant the king’s son, the franchise was greatly enlarged and confirmed in parliament,66 to honor John of Gant himself, whom, on the death of his father-in-law, the king had also created duke of Lancaster.67 Counties palatine are so called a palatio [of royal court]; because the owners thereof, the earl of Chester, the bishop of Durham, and the duke of Lancaster, had in those counties jura regalia [by regal right], as fully as the king has in his palace; regalem potestatem in omnibus [regal power in all things], as Bracton expresses it.68 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 offenses were said to be done against their peace, and not, as in other places, contra pacem domini regis69 [against the peace of our lord the King]. And indeed by the ancient law, in all peculiar jurisdictions, offenses were said to be done against his peace in whose court they were tried: in a court-leet, contra pacem domini [against the peace of the King]; in the court of a corporation, contre pacem ballivorum [against the peace of the bailiffs]; in the sheriff’s court or tourn, contra pacem vice-comitis70 [against the peace of the sheriff]. 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 Europe71) 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 defense. And upon this account also there were formerly two other counties palatine, Pembrokeshire and Hexhamshire; 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 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.72
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 Bolingbroke, the son of John of Gant, at the time when he wrested the crown from king Richard II, and assumed the stile 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 Plowden73 and sir Edward Coke74 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 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, 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.75 Henry VI. being attainted in 1 Edw. IV, this duchy was declared in parliament to have become forfeited to the crown,76 and at the same time an act was made to incorporate the duchy of Lancaster, to continue the county palatine (which might otherwise have determined by the attainder77) 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 1 Hen. VII another act was made, to resume such part 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 for ever, 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.78
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.79
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 favor the kings of England have granted the privilege 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.
1. Vaugh. 400.
2. 10 Edw. I.
3. 12 Edw. I
4. 4 Inst. 345
5. It may justly be doubted, whether even such an infringement (though a manifest breach of good faith, unless done upon the most pressing necessity) would of itself dissolve the union: for the bare idea of a state, without a power somewhere vested to alter every part of its laws, is the height of political absurdity. The truth seems to be, that in such an incorporate union (which is well distinguished by a very learned prelate from a foederate alliance, where such an infringement would certainly rescind the compact) the two contracting states are totally annihilated, without any power of a revival; and a third arises from their conjunction, in which all the rights of sovereignty, and particularly that of legislation, must of necessity reside. (See Warburton’s alliance, 195.) But the wanton or imprudent exertion of this right would probably raise a very alarming ferment in the minds of individuals; and therefore it is hinted above that such an attempt might endanger (though by no means destroy) the union.
To illustrate this matter a little farther: an act of parliament to repeal or alter the act of uniformity in England, or to establish episcopacy in Scotland, would doubtless in point of authority be sufficiently valid and binding; and, notwithstanding such an act, the union would continue unbroken. Nay, each of these measures might be safely and honorably pursued, if respectively agreeable to the sentiments of the English church, or the kirk in Scotland. But it should seem neither prudent, nor perhaps consistent with good faith, to venture upon either of those steps, by a spontaneous exertion of the inherent powers of parliament, or at the instance of mere individuals. — So sacred indeed are the laws abovementioned (for protecting each church and the English liturgy) esteemed, that in the regency acts both of 1751 and 1765 the regents are expressly disabled from assenting to the repeal or alteration of either these, or the act of settlement.
6. Hale Hist. C. L. 183.1 Sid. 382. 462. 2 Show. 365.
7. Cro. Jac. 543. 2 Roll. abr. 292. Stat. 11 Geo. I. c. 4. 4 Burr. 834.
8. Stat. Hiberniae. 14 Hen. III.
9. Pryn. on 4 inst. 249.
10. 4 Inst. 358. Edm. Spenser’s state of Ireland. p. 1513. edit. Hughes.
11. Vaugh. 294. 2. Pryn. Rec. 85. 7 Rep. 23.
12. 1 Inst. 141.
13. A. R. 30. 1 Rym. Feod. 443.
14. A. R. 5. pro eo quod leges quibus utuntur Hybernici Deo detestabiles existunt, et omni juri dissonant, adeo, quod leges censeri non debeant; nobis et consilio nostro satis videtur expediens, eisdem utendas concedere leges Anglicanas. [Inasmuch as the laws by which the Irish are governed, are hateful to God and incompatible with justice, and therefore ought not to be considered as laws; it seems highly expedient to us and to our council, to give them the laws of England for their government.] 3 Pryn. Rec. 1218.
15. Edm. Spenser, ibid.
16. 20 Hen. VI. 8. 2 Ric. III. 12.
17. Yearbook 1 Hen. VII. 3. 7. Rep. 22 Calvin’s case.
18. Irish Stat. 11 Eliz. st. 3. c. S.
19. Ibid. 10 Hen. VII. c. 22.
20. Cap. 4. expounded by 3 & 4 Ph. and M. c. 4.
21. 4 Inst. 353.
22. Irish Stat. 11 Eliz. st. 3. c. 38.
23. cap. 23.
24. 4 Inst. 351.
25. 12 Rep. 112.
26. Puf. L. of N. viii. 6. 24.
27. This was law in the time of Hen. VIII; as appears by the ancient book, entitled, diversity of courts, c. bank le roy.
28. Vaugh. 402.
29. 4 Inst. 284. 2 And 116.
30. Selden tit. hon 13.
31. Camden. Eliz A. D 1594.
32. 1 P. Wms. 329.
33. The bishopric 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.
34. 4 Inst. 286.
35. Salk. 411. 666.
36. 2 P. Wms. 75.
37. 7 Rep. 17. Calvin’s case. Show. Parl. C. 31. See also in the case of Campbell v. Hall. Cowp. Rep. 204. a great and elaborate argument of Lord Mansfield, in delivering the judgment of the court of king’s bench.
38. Stat. 12 & 13 Will. III. c. 3.
39. Co. Litt. 260.
40. Finch. L. 78.
41. Co. Litt. 94.
42. Gibson’s Britain.
43. Seld. of tith. 9. 4. 2 Inst. 643. Hob. 296.
44. in his Britannia.
45. Hob. 29.
46. of tithes, c 9.
47. c. 1.
48. Ibid c. 2. See also the laws of king Canute, c. II. about the year 1030.
49. 3 Inst. 647. 2 Rep. 44. Cro. Eliz. 512.
50. 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; quae hoc modo fiebat, quod sub decennali fidejussione debebant esse universi” [“the best and greatest security by which all persons are kept in the safest state; which was effected in this manner, that every ten should be sureties for each other”].
51. Mirr. c. 1. §. 3.
52. Finch. L. 8.
53. 1 Inst. 115.
54. Co. Litt. 109.
55. Litt. §. 164.
56. 1 Inst. 116.
57. 14 Edw. I.
58. Gloss. 274.
59. Seld. in Fortesc. c. 24.
60. Seld. tit. of honor. 2. 5. 3.
61. Montesq. Sp. L. 30. 17.
62. Tacit. de morib. German. 6.
63. LL. Edw. c. 34.
64. Seld. tit. hon. 2. 5. 8.
65. Pat. 25 Edw. III. p. 1. m. 18 Seld. ibid. Sandford’s gen. hist. 112. 4. 204.
66. Cart. 36 Edw. 111. n. 9.
67. Pat. 31 Edw. III. m. 33 Plowd. 215. 7. Rym. 138.
68. l. 3. c. 8. §. 4.
69. 4 Inst. 204.
70. Seld. in Heng. magn. c. 2.
71. Robertson. Cha. V. i. 60.
72. 4 Inst. 205.
74. 4 Inst. 205.
75. Parl. 2 Hen. V. n. 30. 3 Hen. V. n. 15.
76. 1 Ventr. 155.
77. 1 Ventr. 157.
78. Some have entertained an opinion (Plowd. 320, 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 heirs, independent of the succession to the crown. And, if this 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 previous 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 held (Plowd. 221) that notwithstanding the statute of Hen. 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.
79. 4 Inst 220.
Based on the first edition, together with the most material corrections and additions in the second edition. Translation of Greek, Latin, Italian and French quotations (with some modifications) by J. W. Jones, Esq. (1823). Footnotes have been converted to chapter end notes. Spelling has been modernized. Copyright of text is in the Public Domain.
Founders Corner Library is researched, compiled, and edited (with occasional notes and commentary) by Steve Farrell, Editor In Chief of The Moral Liberal. As uniquely edited and or formatted by Mr. Farrell, Copyright © 2014 Steve Farrell and The Moral Liberal.