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 mother-church (i). 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 tolerably certain, that the boundaries of parishes (k) were originally *ascertained by those of a manor or manors: since it very seldom [*134] 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 the tithes 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 circuits assigned. But some lands, either because they were in the hands of 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 extra-parochial, unless constituted parishes by or in virtue of an act of parliament (1), 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 (m): yet extra-parochial wastes and marshlands, when improved and drained, are by the statute 17 Geo. 2, c. 37, to be assessed to all parochial rates [*135] in the parish next adjoining. The arrangements which the ecclesiastical commissioners have by various statutes (n) been authorized to make for erecting portions of pre-existing parishes into separate districts, and again for converting the districts thus constituted into parishes, have already been so far carried out as to affect in no inconsiderable degree 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 2. Civil division. division, as it now stands, has been, perhaps erroneously (0), ascribed to king Alfred: who, to prevent the rapines and disorders Seld of Tith. c. 2. See also the laws of king Edgar, c. 2, and of king Canute, c. 11. (k) "The boundaries of parishes usually depend upon ancient and immemorial custom, having been originally established according to the particular circumstances of the times or districts." Steer. Par. L. 3rd ed. 5. Many extra-parochial places appear to have been the sites of religious houses, and others of royal palaces. Vide Pop. Abst. (1831), vol. i. p. xxii. (m) 2 Inst. 647; Bishop of Winchester's case, 2 Rep. 44. (n) Collected in Steer. Par. L. c. 1, s. 3. (0) Hall. Mid. Ag. ii. 401. Tithings, towns, or vilis. Cities. which formerly prevailed in the realm, is said to have instituted tithings; so called from the Saxon, because ten freeholders with their families composed one. These all dwelt together, and were sureties or free pledges to the king for the good behaviour of each other; and, if any offence was committed in their district, they were bound to have the offender forthcoming (p). And therefore anciently no man was suffered to abide in England above forty days, unless he were enrolled in some tithing or decennary (q). One of the principal inhabitants of the tithing was annually appointed to preside over the rest, being called the tithing-man, the headborough (words which speak their own etymology), and in some *counties the borsholder, or borough's-ealder, [*136] being supposed the discreetest man in the borough, town, or tithing(r). 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 (s): though that seems to be rather an ecclesiastical than a civil distinction. The word "town" (t) or "vill" is indeed, by the alteration of times and language, now become a generic term, comprehending under it the several species of cities, boroughs, and common towns. A city is a town incorporated, which usually (u) is or has been the see of a bishop. A borough is now understood to be a town, either corporate or not, sending burgesses to parliament (x). Other towns there are, computed by sir E. Coke(y) to number about 8,800 in his day, which are neither cities nor boroughs; some of which have the privilege of holding markets, and others not; though 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 (2), which makes frequent mention of entire vills, demi-vills, and hamlets. Entire vills sir Henry Spelman (a) *conjectures to have consisted of ten freemen or frank-pledges, [*137] 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. Towns. Hamlets. (p) Flet. 1, 47. In the laws of king Edward the Confessor, c. 20, we read "alia pax max. ima est, per quam omnes firmiori statu sustentantur: scilicet fidejussionis stabilitate. Et hoc est quod de omnibus villis totius regni sub decennali fidejussione debeant omnes esse ita quod si unus ex decem forisfecerit novem reum haberent ad rectum," &c. (q) Mirr. c. 1, s. 3. (t) According to the strict legal meaning of the word "town," it is a place having a church or a constable. See Elliot v. South Devon Railway Company, 2 Exch. 729. (u) At the great council, assembled A. D. 1072, to settle the claim of precedence between the archbishops of Canterbury and York, it was decreed that all bishops' sees should be transferred from towns to cities (Woodd. Lect. i. 302; Co. Litt. 109, n. 3); consequently there was no original connection between sees and cities. Westminster is still a city, though the bishopric has ceased to exist (see Co. Litt. 109). The bishopric of Ripon has been restored without elevating that town to the rank of a city. Leicester, Shrewsbury, and other places in which no episcopal jurisdiction ever existed, are styled cities in Domesday. Hence we infer that there is now no necessary connection between sees and cities. (x) Litt. s. 164. The word "borough " had originally a wider signification. Tom. I. Dict, ad verb. (y) 1 Inst. 116. 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 a 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(b). Hundreds. Territorial subdivisions, analogous to our hundreds, seem to have existed in Denmark(c): and we find that in France a regulation of this sort was made. about 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; a number of which centenarii were themselves subject to a superior officer called the count or comes(d). 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 terri[*138] tory 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 fuit, jam nomen et honor est "(e). 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, Counties. or alderman (as the Saxons call 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(f), 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 has been different at different times: at present there 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, i. e., custom immemorial; or, at least, as old as the Norman conquest(g): the latter was created by king Edward III. in favour of Henry Plantagenet, first earl and then duke of Lancaster (h); whose heiress being married to John of Gaunt the king's son, the franchise was greatly enlarged and [ *139] Counties Palatine. Seld, in Fortesc. c. 24. (c) Seld. Tit. of Hon., 2. 5. 3. (g) Seld. tit. Honour, 2. 5. 8. (h) Pat. 25 Edw. 3, p. 1, m. 18; Seld. ubi supra; Sandford's Gen. Hist. 112; 4 Inst. 204. confirmed in parliament(i), to honour John of Gaunt himself, whom, on the death of his father-in-law, the king had also created duke of Lancaster(k). 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 it in his palace: regalem potestatem in omnibus, as Bracton expresses it(). They might pardon treasons, murders, and felonies; they appointed all judges and justices of the peace(m); 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(n). And indeed by the ancient law, in all peculiar jurisdictions, offences were said to be done against his peace in whose court they were tried: in a courtleet, contra pacem domini; in the court of a corporation, contra pacem ballivorum; in the sheriff's court or tourn, contra pacem vicecomitis(0). 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 Europe(p)) 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 [ *140] be the more watchful in its defence. 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. 8, the latter in 14 Eliz. And in 27 Hen. 8, 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 were witnessed in their names, and all forfeitures for treason by the common law accrued to them(q). The earldom of Chester, as Camden testifies, was united to the crown by Henry III., and has ever since given a title to the king's eldest son. And the county palatine, or duchy, of Lancaster, was the property of Henry Bolingbroke, the son of John of Gaunt, at the time when he wrested the crown from king Richard II., and assumed the title 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 Plowden (r) and sir Edward Coke(s) 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 Gaunt, 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 [*141] new territories and privileges being annexed to the duchy by the former(t). Henry VI. being attainted in 1 Edward 4, this duchy was declared in parliament to have become forfeited to the crown(u), 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 attainder(x)) 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. 7 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(y). *The distinctive characteristics of the counties palatine thus par- [*142] tially reviewed, have by various recent enactments been almost wholly obliterated; for by the statute 11 Geo. 4 &1 Will. 4, c. 70(z), the jurisdiction of the courts at Westminster was extended to the county palatine of Chester. By the statute 6 & 7 Will. 4, c. 19 (amended by 21 & 22 Vict. c. 45), the palatine jurisdiction of Durham was separated from the bishopric and vested in the crown; and by the 2 & 3 Vict. c. 16, and the 4 & 5 Will. 4, c. 62, the proceedings and practice of the courts of Durham and of Lancaster respectively, were in general assimilated to those of the courts of Westminster (a).. The isle of Ely is not a county palatine, though it has sometimes been erroneously called so; it was only a royal franchise: the bishop having by grant of king Henry the First, jura regalia within the isle of Ely, whereby he exercised a jurisdiction over all causes, as well criminal as civil(b). However, by 6 & 7 Will. 4, c. 87, the jurisdiction. has been entirely taken from the bishop, and is now vested in the crown. The isle of Ely. 15. (t) Rot. Parl. 2 Hen. 5, n. 30; 3 Hen. 5, n. (u) Fisher v. Batten, 1 Ventr. 155. (x) 1 Ventr. 157. (y) Some have entertained an opinion (Plowd. 220, 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 Lancas ter, 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 Edw. IV.; separate from the other possessions of the crown in order and government, but united in point of inheritance. (2) Ss. 13, 14. (a) See also the following statutes:-25 & 26 Vict. c. 42; 23 & 24 Vict. c. 38, and c. 126; 21 & 22 Vict. c. 27, s. 10; 18 & 19 Vict. cc. 15, 45, 67; 17 & 18 Vict. cc. 82, 125; 15 & 16 Vict. c. 76; and 13 & 14 Vict. c. 43; 32 & 33 Vict. c. 37. (b) 4 Inst. 220; Grant v. Bagge, 3 East, 128. |