Finch, L. 78.

The two divisions of the territory of England.

Co. Litt. 94.

Parishes.

2 Inst. 647. 2 Rep. 44.

Cro. Eliz. 512.

The civil division.

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 extraparochial 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)

(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

minster, still it remains a city. A borough is a town either Co. Litt. 109. corporate or not, which sends burgesses to parliament.

Litt. s. 164.

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 fled 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 (). 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.

4 Inst. 204.

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.

is now the only county palatine in the hands of a subject (m). The earldom of Chester was vested in the crown by Henry 3, and the duchy of Lancaster was united to the crown by Edward 4, and Henry 7.

The Isle of Ely is not a county palatine but a royal franchise. The Isle of The bishop having, by grant of Henry 1, regal rights within Ely. the island, whereby he exercises a jurisdiction over all causes, 4 Inst. 220. as well criminal as civil (n). Counties corporate are certain cities or towns with more or less territory to which the kings of England have granted the privilege of being counties of themselves, not being comprised in any other county, and being governed by their own sheriffs or magistrates, such are London, York, Bristol, Norwich, Coventry, and some others. (o)

BOOK THE FIRST.

OF THE RIGHTS OF PERSONS.

CHAPTER I.

OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.

As municipal law is a rule of civil conduct, commanding what Primary obis right and prohibiting what is wrong, it follows, that the jects of law. primary and principal objects of the laws are rights and wrongs.

the law.

Rights are either the rights of persons, or rights which may Division of be acquired over external objects, which are styled the rights of things.

Wrongs are divisible into private wrongs, which being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and public wrongs, which

(m) By 6 & 7 Wm. 4, c. 19, the palatine jurisdiction of the county palatine of Durham, and all regal rights in respect thereof, were separated from the bishoprick of Durham, and vested in the Crown.

(n) By 6 & 7 Wm. 4, c. 87, the secular jurisdiction of the bishop of Ely was extinguished, and vested in the Crown.

(0) The others are the cities of Canterbury, Chester, Exeter, Gloucester, Lichfield, Lincoln, and Worcester, and the towns of Poole, Southampton, Nottingham, Kingston. upon-Hull, and Newcastle-upon-Tyne.

C

Rights of per

sons.

Absolute and relative duties.

Civil liberty.

Inst. 1, 3, 1.

Assertion of the rights of Englishmen.

25 Edwd. 1.

being a breach of general and public rights, affect the whole community, and are called crimes and misdemeanors.

The rights of persons which are commanded to be observed by the municipal law are such as are due from every citizen, called civil duties, and such rights as belong to him. Persons are divided by the law into either natural persons, or artificial. Natural are such as the God of nature formed us; artificial are such as are devised by human laws for the purposes of society and government, which are called corporations or bodies politic.

The rights of persons considered in their natural capacities are absolute and relative. Absolute are such as belong to particular men as individuals; relative are incident to them as members of society. Absolute duties, which man considered as a mere individual is bound to perform, are not, and cannot be explained or enforced by any human municipal laws, for the intent of such laws being only to regulate the behaviour of mankind as they are members of society, they have no concern with any other but social duties.

Public sobriety is a relative duty, and therefore enjoined by our laws; private sobriety is an absolute duty; but whether performed or not, cannot be enforced by human tribunals.

Political and civil liberty is no other than natural liberty, so far restrained by human laws as is necessary for the advantage of the public, a definition which sufficiently distinguishes it from natural liberty, or the power of acting as one thinks fit without any restraint or controul, unless by the law of nature.

The absolute rights of Englishmen, usually called their liberties, have been from time to time asserted in parliament; first by magna charta, confirmed in parliament by Henry 3 (a), afterwards by the statute called confirmatio cartarum, whereby the great charter is directed to be allowed as the common law; 2 Inst. Proem. next, by many corroborating statutes, from Edward 1, to Henry 4; then by the petition of right assented to by Charles 1, and the habeas corpus act, passed under Charles 2; then the Bill of Rights of 1688; and lastly, by the act of settlement, 12 & 13 William 3, c. 2, whereby the crown was

(a) The great example was set of combining a grant of supply with a redress of grievances, out of which all reforms of the constitution have grown. In consequence of this constitutional bargain the great charter was on the 11th February, 1225, re-issued in parliament, and has ever since auspiciously held its place at the head of English statutes.-Mackintosh's England, vol. 1, 227.