and the municipal laws of Scotland. Ireland. 4 Inst. 358. 1 Inst. 141. Adjacent islands. Isle of Man. were in at the union, (d) and that the municipal laws of Scotland should be still observed in that country unless altered by Parliament, the common law of England is therefore of no force in Scotland. (e) The inhabitants of Ireland are mostly descended from the English, who conquered and colonized it in the time of Henry 2. At the Conquest that country was governed by the Brehon law, so called from the Irish name of judges who were denominated Brehons. In the thirteenth century, king John, Henry 3, and Edward 1, successively ordained that Ireland should be governed by the laws of England, and in the reign of Edward 3, the Brehon law was formally abolished by Parliament. (f) But no acts of the English parliament even now bind the people of Ireland unless specially named or included under general words. The Isle of Wight, Portland, Thanet, &c., are comprised within some neighbouring county, and are, therefore, part of the kingdom of England. The Isle of Man is a distinct territory not governed by our laws, nor (d) The reformed church of Scotland was at the Union, and still continues the same as it was established by the Scottish parliament in 1560. The reformation in that country was brought about almost solely by the herculean labours of John Knox, a disciple and personal friend of Calvin. (e) Under the reign and by the care of Justinian, the Roman civil jurisprudence was digested in the immortal works of the Code, the Pandects, and the Institutes, the public reason of the Romans has been silently but studiously transfused into the domestic institutions of Europe, and the laws of Justinian still command the respect or obedience of independent nations. Germany, Bohemia, Hungary, Poland, and Scotland, have received them as common law or reason; in France, Italy, &c., they possess a direct or indirect influence, and they were respected in England from Stephen to Edward 1, our national Justinian, (Duck de Usû et auctoritate Juris Civilis, lib. 2, c. 1, 8-15, Heineccius Hist. Juris Germanici, c. 3, 4. No. 55-124, and the legal historians of each country.)-Gibbon, R. E. ch. 44, and note (b). The trial by jury was until recently used only in criminal cases in Scotland, and was first extended to civil causes in certain cases in 1818 by 59 Geo. 3, c. 35. Scotland is bound by acts of the British parliament, unless expressly excepted. (f) By 39 & 40 Geo. 3, c. 67, Great Britain and Ireland were from 1st January, 1801, united into one kingdom, by the name of " the United Kindom of Great Britain and Ireland," and it was declared that the United Kingdom should be represented in the same parliament; that four lords spiritual by rotation of sessions, and twenty-eight lords temporal, of Ireland, elected for life by the peers of Ireland, and one hundred commoners (by 2 & 3 Wm. 4, c. 88, increased to one hundred and five) should represent Ireland in the British parliament; that the churches of England and Ireland should be united into one Protestant episcopal church, and that the laws and customs of the respective kingdoms, and all the courts of civil and ecclesiastical jurisdiction, should remain as by law established, subject to the regulation of parliament. Sark, &c. does any act of parliament extend to it unless it is particularly 4 Inst. 248. named. The Islands of Jersey and Guernsey, Sark, Alderney Jersey, Guernand their appendages, are governed by their own laws, which sey, Alderney, are chiefly the ducal customs of Normandy. 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 acts of par- 4 Inst. 286. liament unless particularly named. 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. Besides these adjacent islands our more distant Colonies. colonies are also subject to the control of parliament when specially named, but otherwise they are not bound by acts of our legislature. The common law has, however, no authority there. Our colonies, with respect to their interior polity, are Interior polity. of three sorts. Provincial establishments, the constitutions of of our colonies which depend on the commissions issued by the crown to the governors and the instructions which accompany them under the authority of which provincial assemblies are constituted, with the power of making local ordinances not repugnant to the laws of England. Proprietory governments granted out by the crown to individuals in the nature of feudatory principalities, and 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 given them in their 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 and courts of justice of their own, from whose decision an appeal lies to the king in council; their general assemblies, which are their house of commons, 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 by 7 & 8 Wm. 3, c. 22, all laws, bye-laws, usages and customs in practice in any of the colonies repugnant to any law made in this kingdom relative thereto, are void. The kingdom of England, the direct and immediate subject The kingdom of England. of those laws concerning which we are to treat in the ensuing Commentaries, comprehends not merely Wales and Berwick, but the main or high seas, which latter, though not subject to our common law, are under the jurisdiction of our courts of admiralty. The main sea begins at the low water mark. Co. Litt. 260. But between the high water mark and the low water mark, Finch, L. 78. The two divisions of the territory of England. Co. Litt. 94. Parishes. where the sea ebbs and flows, the common law and the admiralty have a divided authority or alternate jurisdiction, one upon the water when it is full sea, the other upon the land when it is an ebb. The territory of England is liable to two divisions, the one ecclesiastical, the other civil. The ecclesiastical division is subdivided into two provinces, those of Canterbury and York. (g) A province is the circuit of an archbishop's jurisdiction. Each province contains numerous dioceses or sees of suffragan bishops. Every diocese is divided into archdeaconries, each archdeaconry into rural deaneries, and every deanery into parishes. A parish is that circuit of ground which is committed to the charge of one parson or vicar. In the early ages of Christianity parishes were unknown in England, or at least signified what a diocese does now. We find the distinction of parishes in the laws of King Edgar, about the year 970. Their boundaries were originally ascertained by those of manors, whose lords, as Christianity extended, 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 in them 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. This tract of land, the tithes whereof were so appropriated, formed a distinct parish, which accounts for the frequent intermixture of parishes. But some lands, either because they were held by irreligious owners, or were situate in forest and desert places were never united to any parish, and, therefore, now continue extra-parochial; and their tithes are by custom payable to the king instead of the bishop, in trust for the general good of the church. Yet extra512. parochial wastes and marsh lands, when improved and drained are by 17 G. 2, c. 37, to be assessed to all parochial rates in the parish next adjoining. The civil division of England is into counties, of counties into hundreds, and of hundreds into tithings or towns, which division, as it now stands, seems to owe its origin to King Alfred. (h) 2 Inst. 647. 2 Rep. 44. Cro. Eliz. The civil division. (g) The secular jurisdiction of the Archbishop of York in certain liberties in the counties of York and Nottingham was extinguished by 6 & 7 Wm. 4, c. 87. (h) That the shires and hundreds, with their respective courts, were originally Tithings, towns, or vills, are of the same signification in Tithings. law, and are said to have had each of them originally a church and celebration of divine service, sacraments, and burials. Tithings were so called because ten freeholders with their Mirr. c. 1, s.3. families composed one (i). The word town or vill is indeed, by the alterations of time and language 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, though the bishoprick be dissolved, as at West Litt. s. 164. minster, still it remains a city. A borough is a town either Co. Litt. 109. corporate or not, which sends burgesses to parliament. As ten families of freeholders made up a town or tithing, so Hundreds. ten tithings composed a superior division, called a hundred, consisting of ten times ten families (k). The hundred is governed established by the policy of Alfred, is asserted by a well informed writer (Ingulf), who lived at the time of the northern conquest. There is, however, reason to doubt much, if not the whole, of this statement. Alfred might improve, but he certainly could not invent, a system which existed some centuries before his reign. The division of shires was common to all the northern nations; some are known to have existed in England under their present names since the first settlement of the Saxons, and others are mentioned in the laws and by the writers prior to the first division by Alfred. The great inequality in their measurement, and the great irregularity in their distribution, prove that they were not the uniform work of one monarch, but that they owe their origin to different princes, who divided the country as necessity might require, or policy might suggest.-Lingard's England, v. 1, p. 334. This realm was divided into shires and counties, and shires into cities, boroughs, and towns, by the Britons. King Alfred's division was but a renovation, or more exact description of the same.-Co. Litt. 168, a. (1) Ingulf has also attributed to Alfred the institution of tithings, which, by the very name, import either a sub-division of the hundred, or an association of ten neighbouring families. By law, every freeman was to be enrolled in one of these associations, all the members of which were made perpetual bail for each other. If one of the number fied from justice, the remaining nine were allowed the respite of a month to discover the fugitive; when, if he were not forthcoming, the pecuniary penalty of his crime was levied on his goods; and in case of deficiency on the goods of the tithing, unless it could be proved that its members had not connived at his escape.-Leg. Sax. 136, 201, 202, 241; Lingard's England, v. 1, p. 336. There were territorial divisions termed tithings in the reign of Athelstane; and as they existed, and still do exist, more definitely as territorial districts in the western counties than in any other part of England, it may perhaps be supposed that they originated from the ancient Trefs of the British Cantied. Such divisions however, are clearly to be distinguished from the personal arrays.-Palgrave's English Commonwealth, Part 2, p. 121. (k) Bede says that the kingdom of the South Saxons, comprehending Surrey, as well Seld. in Fortesq. c. 24. Counties. 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 northern counties hundreds are called wapentakes. An indefinite number of hundreds make up a county or shire. Shire is a Saxon word, signifying a division, but a county comitatus is derived from comes the count of the franks that is, the earl or alderman of the shire to whom the government of it was intrusted (1). 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, in process of time, the civil administration of it devolved (m). 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 a-piece. These had formerly their lathe-reeves and rape-reeves acting in subordination to the shire-reeve. Where a county is divided into three of these intermediate jurisdictions they are called trithings, which was anciently LL.Edw. c.34. governed by a trithing-reeve. Trithings still subsist in Yorkshire, where they are denominated ridings. The number of Counties pala- counties in England is forty, in Wales twelve. Of these, three, tine. Chester, Durham, and Lancaster, are called counties palatine, the two former are so by prescription, the latter was created by Edward 3. Counties palatine are so called a palatio, because the owners had regal rights therein, as fully as the king in his palace. In the 27th year of Henry 8, the powers of owners of the counties palatine were abridged, though still all writs issuing thereto are witnessed in their names (n), and all forfeitures for treason by the common law accrue to them; but Durham as Sussex, contained seven thousand families. The county of Sussex alone is divided into sixty-five hundreds, which comes at least close enough to prove, that free families, rather than proprietors, were the subject of that numeration. And this is the interpretation of Du Cange and Muratori as to the Centenæ and Decaniæ of their own ancient laws.-Hallam's Europe in the Middle Ages, 7th ed. v. 2, p. 391. (1) Comitatus: Provincia, vel portio regni integralis, ad majis commodam administrationem justitiæ et militiæ.-Bac. Hist. Regn. H VII. Ind. vocabulorum. (m) Vice Comes: Peculiaris in quaque provincia Majistratus annuus, cui munus incumbit mandata regia, vel circa justiciam, vel circa militiam exequendi.—Bac. Hist. H. VII. Ind. vocabulorum. (n) By 1 Wm. 4, c. 70, the exclusive jurisdiction of the county palatine of Chester was abolished, and the jurisdiction of the Courts of Westminster extended thereto. |