Chapter 11

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 desart 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[p]. And thus much for the ecclesiastical division of this kingdom.

[Footnote p: 2 Inst. 647. 2 Rep. 44. Cro. Eliz. 512.]

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, seems to owe it's 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 behaviour of each other; and, if any offence were committed in their district, they were bound to have the offender forthcoming[q]. And therefore antiently no man was suffered to abide in England above forty days, unless he were enrolled in some tithing or decennary[r]. 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[s].

[Footnote q: _Flet._ 1. 47. This the laws of king Edward the confessor, c. 20. very justly intitle "_summa et maxima securitas, per quam omnes statu firmissimo sustinentur;--quae hoc modo fiebat, quod sub decennali fidejussione debebant esse universi, &c._"]

[Footnote r: Mirr. c. 1. §. 3.]

[Footnote s: Finch. L. 8.]

TITHINGS, towns, or vills, are of the same signification in law; and had, each of them, originally a church and celebration of divine service, sacraments, and burials; which to have, or have had, separate to itself, is the essential distinction of a town, according to sir Edward Coke[t]. 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 hath been the see of a bishop; and though the bishoprick be dissolved, as at Westminster, yet still it remaineth a city[u]. A borough is now understood to be a town, either corporate or not, that sendeth burgesses to parliament[w]. Other towns there are, to the number sir Edward Coke says[x] 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[y], which makes frequent mention of entire vills, demi-vills, and hamlets. Entire vills sir Henry Spelman[z] 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 it is, to some purposes in law, looked upon as a distinct township. These towns, as was before hinted, contained each originally but one parish, and one tithing; though many of them now, by the encrease 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.

[Footnote t: 1 Inst. 115 _b._]

[Footnote u: Co. Litt. 109 _b._]

[Footnote w: Litt. §. 164.]

[Footnote x: 1 Inst. 116.]

[Footnote y: 14 Edw. I.]

[Footnote z: Gloss. 274.]

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[a].

[Footnote a: Seld. _in Fortesc._ _c._ 24.]

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[b]: 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 it's 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_[c]. And indeed this institution of hundreds may be traced back as far as the antient Germans, from whom were derived both the Franks who became masters of Gaul, and the Saxons who settled in England. For we read in Tacitus[d], that both the thing and the name 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._"

[Footnote b: Seld. tit. of hon. 2. 5. 3.]

[Footnote c: Montesq. Sp. L. 30. 17.]

[Footnote d: _de morib. German._ 6.]

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[e], which were antiently 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 there are forty in England, and twelve in Wales.

[Footnote e: _LL. Edw._ _c._ 34.]

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[f]: the latter was created by king Edward III, in favour of Henry Plantagenet, first earl and then duke of Lancaster, whose heiress John of Gant the king's son had married; and afterwards confirmed in parliament, to honour John of Gant himself; whom, on the death of his father-in-law, he had also created duke of Lancaster[g]. 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[h]. 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_[i]. And indeed by the antient 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_[k]. These palatine privileges were in all probability originally granted to the counties of Chester and Durham, because they bordered upon enemies countries, Wales and Scotland; in order that the owners, being encouraged by so large an authority, might be the more watchful in it's defence; and that the inhabitants, having justice administered at home, might not be obliged to go out of the county, and leave it open to the enemies incursions. And upon this account also there were formerly two other counties palatine, Pembrokeshire and Hexamshire, 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 beforementioned 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[l].

[Footnote f: Seld. tit. hon. 2. 5. 8.]

[Footnote g: Plowd. 215.]

[Footnote h: _l._ 3. _c._ 8. §. 4.]

[Footnote i: 4. Inst. 204.]

[Footnote k: Seld. _in Hengham magn._ _c._ 2.]

[Footnote l: 4 Inst. 205.]

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 Bolinbroke, the son of John of Gant, at the time when he wrested the crown from king Richard II, and assumed the title of 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[m] and sir Edward Coke[n] 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, to keep it distinct and separate from the crown, and so it descended to his son, and grandson, Henry V, and Henry VI. Henry VI being attainted in 1 Edw. IV, this duchy was declared in parliament to have become forfeited to the crown[o], and at the same time an act was made to keep it still distinct and separate from other inheritances of the crown. And in 1 Hen. VII another act was made to vest the inheritance thereof in Henry VII and his heirs; and in this state, say sir Edward Coke[p] and Lambard[q], viz. in the natural heirs or posterity of Henry VII, did the right of the duchy remain to their days; a separate and distinct inheritance from that of the crown of England[r].

[Footnote m: 215.]

[Footnote n: 4 Inst. 205.]

[Footnote o: 1 Ventr. 155.]

[Footnote p: 4 Inst. 206.]

[Footnote q: Archeion. 233.]

[Footnote r: If this notion of Lambard and Coke be 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. The attainder indeed of the pretended prince of Wales (by statute 13 W. III. c. 3.) has now put the matter out of doubt. And yet, to give that attainder it's full force in this respect, the object of it must have been supposed legitimate, else he had no interest to forfeit.]

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, and thereby he exercises a jurisdiction over all causes, as well criminal, as civil[s].

[Footnote s: 4 Inst. 220.]

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 to be counties of themselves, and not to be comprized 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.

COMMENTARIES

ON THE

LAWS OF ENGLAND.

BOOK THE FIRST.

OF THE RIGHTS OF PERSONS.

CHAPTER THE FIRST.

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 our Bracton[b], has expressed it, _sanctio justa, jubens honesta et prohibens contraria_; it follows, that the primary and principal objects 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.

[Footnote a: 11 _Philipp._ 12.]

[Footnote b: _l._ 1. _c._ 3.]

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 stiled _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 and 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.

WE are now, first, to consider _the rights of persons_; with the means of acquiring and losing them.

NOW the rights of persons that are commanded to be observed by the municipal law are of two sorts; first, such as are due _from_ every citizen, which are usually called civil _duties_; and, secondly, such as belong _to_ him, which is the more popular acceptation of _rights_ or _jura_. Both may indeed be comprized in this latter division; for, as all social duties are of a relative nature, at the same time that they are due _from_ one man, or set of men, they must also be due _to_ another. But I apprehend it will be more clear and easy, to consider many of them as duties required from, rather than as rights belonging to, particular persons. Thus, for instance, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection as the duty of the magistrate; and yet they are, reciprocally, the rights as well as duties of each other. Allegiance is the right of the magistrate, and protection the right of the people.

PERSONS also are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us: artificial are such as created and 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 also of two sorts, absolute, and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. The first, that is, absolute rights, will be the subject of the present chapter.

BY the absolute _rights_ of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is intitled to enjoy whether out of society or in it. But with regard to the absolute _duties_, which man is bound to perform considered as a mere individual, it is not to be expected that any human municipal laws should at all explain or enforce them. For the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no business or concern with any but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vitious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like) they then become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case. _Public_ sobriety is a relative duty, and therefore enjoined by our laws: _private_ sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. But, with respect to _rights_, the case is different. Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others.

FOR the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these _absolute_ rights of individuals. Such rights as are social and _relative_ result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple; and, then, such rights as are relative, which arising from a variety of connexions, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.

THE absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of freewill. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrificed to obtain it. For no man, that considers a moment, would wish to retain the absolute and uncontroled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power; and then there would be no security to individuals in any of the enjoyments of life. Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the publick[c]. Hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind: but every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny. Nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of liberty: whereas if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance; by supporting that state, of society, which alone can secure our independence. Thus the statute of king Edward IV[d], which forbad the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that savoured of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. But the statute of king Charles II[e], which prescribes a thing seemingly as indifferent; viz. a dress for the dead, who are all ordered to be buried in woollen; is a law consistent with public liberty, for it encourages the staple trade, on which in great measure depends the universal good of the nation. So that laws, when prudently framed, are by no means subversive but rather introductive of liberty; for (as Mr Locke has well observed[f]) where there is no law, there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint.

[Footnote c: _Facultas ejus, quod cuique facere libet, nisi quid jure prohibetur._ _Inst._ 1. 3. 1.]

[Footnote d: 3 Edw. IV. c. 5.]

[Footnote e: 30 Car. II. st. 1. c. 3.]

[Footnote f: on Gov. p. 2. §. 57.]