16 bishopric be dissolved, as at Westminster, yet it still remaineth a city.(f) A borough is now understood to be a town, either corporate or not, that sendeth burgesses to parliament.(g) Other towns there are, to the number, Sir Edward Coke says,(h) 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,(i) which makes frequent mention of entire vills, demi-vills, and hamlets. Entire [*115 vills Sir Henry Spelman(k) 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 famnilies. 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.()" The subdivision of hundreds into tithings seems to be most peculiarly the (f) Co. Litt. 109. (i) 14 Edw. I. (A) Gloss. 274. 16 Westminster was one of the new bishoprics created by Henry VIII. out of the reve nues of the dissolved monasteries. (2 Burn, E. L. 78.) Thomas Thirlby was the only bishop that ever filled that see, (Godw. Com. de Præs. 570:) he surrendered the bishopric to Ed. VI., 30th March, 1550, and on the same day it was dissolved and added again to the bishopric of London. (Rym. Fœd. 15 tom. p. 222.) Queen Mary afterwards filled the church with Benedictine monks, and Eliz., by authority of parliament, turned it into a collegiate church subject to a dean; but it retained the name of city, not perhaps because it had been a bishop's see, but because, in the letters patent erecting it into a bishopric, king Henry declared, volumus itaque et per præsentes ordinamus quod ecclesia cathedralis et sedes episcopalis, ac quod tota villa nostra Westmonasterii sit civitas, ipsamque civitatem Westmonasterii vocari et nominari volumus et decernimus. There was a similar clause in favour of the other five new-created cities, viz. Chester, Peterborough, Oxford, Gloucester, and Bristol. The charter for Chester is in Gibs. Cod. 1449, and that for Oxford in Rym. Foed. 14 tom. 754. Lord Coke seems anxious to rank Cambridge among the cities, because he finds it called civitas in an ancient record, which he "thought it good to mention in remembrance of his love and duty, alma matri academia Cantabrigiæ." (Co. Litt. 109.) The present learned Vinerian professor of Oxford has produced a decisive authority that cities and bishops' sees had not originally any necessary connection with each other. It is that of Ingulphus, who relates that, at the great council assembled in 1072, to settle the claim of precedence between two archbishops, it was decreed that bishops' sees should be transferred from towns to cities. (1 Woodd. 302.) In Will. Malm. Scrip. Ang. p. 214, it is concessum est episcopis de villis transire in civitates. The accidental coincidence of the same number of bishops and cities would naturally produce the supposition that they were connected together as a necessary cause and effect. It is certainly (as Mr. Wooddeson observes) a strong confirmation of this authority, that the same distinction is not paid to bishops' sees in Ireland. Mr. Hargrave, in his notes to Co. Litt. 110, proves, that, although Westminster is a city, and has sent citizens to parliament since the time of Ed. VI., it never was incorporated; and this is a striking instance in contradiction of the learned opinions there referred to, viz.: that the king could not grant within time of memory to any place the right of sending members to parliament without first creating that place a corporation.-CHRISTIAN. 17 Et quod Angli vocant hundredum, comitatus Yorkshire, Lincolnshire, Nottinghamshire, Leicestershire, et Northamptonshire, vocant wapentachium. (Ll. Edw. c. 33.) And it proceeds to explain why they are called so,-viz., because the people at a public meeting confirmed their union with the governor by touching his weapon or lance.-CHRISTIAN. invention of Alfred: the institution of hundreds themselves he rather introduced than invented; for they seem to have obtained in Denmark :(m) 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, a number of which centenarii were themselves subject to a superior officer called the count or comes.(n) And *indeed something like this institution of hundreds may be traced back *116] 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 a territory itself might properly 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." (o) 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 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, 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,(p) 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 *117] at least as old as the Norman conquest :(q) the latter was created by king Edward III. in favour of Henry Plantagenet, first earl and then duke of Lancaster ;(r) whose heiress being married to John of Gaunt, the king's son, the franchise was greatly enlarged and confirmed in parliament,(s) to honour John of Gaunt himself, whom, on the death of his father-in-law, the king had also created duke of Lancaster.(t) Counties palatine are so called a palatio, because the owners thereof, the earl of Chester, the bishop of Durham, and the duke of Lancaster, had in those counties jura regalia, as fully as the king hath in his palace; regalem potestatem in omnibus, as Bracton expresses it.(u) They might pardon treasons, murders, and felonies; they appointed all judges and justices of the peace; all writs and indictments ran in their names, as in other counties in the king's; and all offences were said to be done against their peace, and not, as in other places, contra pacem domini regis.(w) 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 court-leet, contra pacem domini; in the court of a corporation, contra pacem ballivorum; in the sheriff's court or tourn, contra pacem vice-comitis.(x) 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 feodal kingdoms in Europe,)(y) were, in all probability, originally granted to the counties of Chester and Dur (m) Seld. tit. of honour, 2, 5, 3. (n) Montesq. Sp. L. 30, 17. (0) Tacit. de Morib. German. 6. (p) Ll. Edw. c. 34. Seld. tit. hon. 2, 5, 8. Pat. 25 Edw. III. p. 1, m. 18. Seld. ibid. Sandford's Ap. Hist. 112. 4 Inst. 204. (s) Cart. 36 Edw. III. n. 9. (t) Pat. 51 Edw. III. m. 33. Plowd. 215. 7 Rym. 138. (u) l. 3, c. 8, § 4.-"Regal power over all things." (w) 4 Inst. 204. (x) Seld. in Heng. Magn. c. 2. (y) Robertson, Cha. V. i. 60. ham, 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 county, 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 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. 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.(z) [*118 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 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 (a) and Sir Edward Coke(b) 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 heir 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 forever; 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.(c) Henry VI. being attainted in 1 Edw. IV. this duchy was declared in parliament *to have become forfeited to the crown,(d) and at the same time an act was made [*119 to incorporate the duchy of Lancaster, to continue the county palatine, (which might otherwise have determined by the attainder,)(e) 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, forever; but under a separate guiding and governance from the other inheritances of the crown. And in I Hen. VII. another act was made, to resume such parts of the duchy lands as had been dismembered from it in the reign of Edw. IV., and to vest the inheritance of the whole in the king and his heirs forever, 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.(f) 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.(g) (4) 1 Ventr. 155. (e) 1 Ventr. 157. (1) 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 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 Henry VII., (which was only an act of resump tion,) 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. 4 Inst. 220. *120] *There are also counties corporate, which are certain cities and towns, some with more, some with less territory annexed to them; to which, out of special grace and favour, the kings of England have granted 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.18 18 By art. i. sec. 8 of the constitution of the United States, "Congress shall have power to exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings." Accordingly, the District of Columbia was ceded by the States of Maryland and Virginia to the United States and accepted by Congress. By art. iv. sec. 3 of the constitution of the United States, "The Congress shall have power to dispose of and make all needful regulations respecting the territory or other property belonging to the United States; and nothing in this constitution shall be so construed as to prejudice any claims of the United States or of any particular State." It has been often doubted whether the United States have any constitutional power to acquire new territory. However, Louisiana was purchased from France, Florida from Spain, and a very extensive territory was acquired by treaty from Mexico. The Northwestern territory, acquired previous to the adoption of the federal constitution, by cession from Virginia, was regulated by "An ordinance for the government of the territory of the United States northwest of the river Ohio," adopted by the Old Congress, July 13, 1787. Territorial governments have from time to time been organized out of the other territories of the United States. The character and extent of the power of Congress over the Territories have been the subject of repeated and excited discussion both in and out of Congress. On this, as on most other questions connected with the authority of the federal government, the National and State-Rights schools have differed. The former hold that, under the constitution, Congress have absolute and despotic power over the Territories; that whatever they have the power to do, they have the right to do, if in their judgment it will conduce to the "general welfare." Hence they construe the power "to dispose of and make all needful regulations respecting the territory or other property belonging to the United States" as the same in effect as the "power to exercise legislation in all cases whatsoever." The State-Rights school, on the contrary, hold that the clause in the constitution about the Territories relates to them only as property, and gives no right to Congress to govern them; that their right to government springs from their acquisition of them by cession, and is not therefore absolute. Territory acquired under the right to declare war and make treaties belongs to the States as States, and Congress can only legislate in conformity to the principles of the constitution: their power is limited by the limitations of the constitution. They have the authority to maintain peace and order, and to establish tribunals for the administration of criminal and civil justice according to the law of the land as it existed at the time of the cession; but they can no more change the law of the land in a Territory than they can in a State. They cannot regulate private property or interfere with private rights. In short, the law of the ceded territory on all subjects not within the delegated powers of Congress in the States must continue until changed by the only legitimate authority, when the people of such Territory, with the authority of Congress, form a sovereign State.--SHARSWOOD. 90 COMMENTARIES ON THE LAWS OF ENGLAND. BOOK THE FIRST. Of the Rights of Persons. 124 CHAPTER I. OF THE ABSOLUTE RIGHTS OF INDIVIDUALS. THE objects of the laws of England are so very numerous and extensive, that, in order to consider them with any tolerable ease and perspicuity, it will be necessary to distribute them methodically under proper and distinct heads; avoiding as much as possible divisions too large and comprehensive on the one hand, and too trifling and minute on the other; both of which are equally productive of confusion. *Now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or as Cicero,(a) and after him [*122 our Bracton,(b) have expressed it, sanctio justa, jubens honesta et prohibens contraria, it follows that the primary and principal object of the law are RIGHTS and WRONGS. In the prosecution, therefore, of these commentaries, I shall follow this very simple and obvious division; and shall, in the first place, consider the rights that are commanded, and secondly the wrongs that are forbidden, by the laws of England. Rights are, however, liable to another subdivision; being either, first, those which concern and are annexed to the persons of men, and are then called jura personarum, or the rights of persons; or they are, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are styled jura rerum, or the rights of things. Wrongs also are divisible into, first, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and, secondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemesnors. The objects of the laws of England falling into this fourfold division, the present commentaries will therefore consist of the four following parts: 1. The rights of persons, with the means whereby such rights may be either acquired or lost. 2. The rights of things, with the means also of acquiring or losing them. 3. Private wrongs, or civil injuries, with the means of redressing them by law. 4. Public wrongs, or crimes and misdemesnors, with the means of prevention and punishment.1 1 The distinction between private wrongs and public wrongs is more intelligible, and more accurately limited by the nature of the subjects, than the distinction between the rights of things, and the rights of persons; for all rights whatever must be the rights of certain |