diately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony; such, for instance, as the general rules of inheritance and of protection from personal injuries. The artificial refinements and distinctions incident to the property of a great and commercial people, the laws of police and revenue (such especially as are enforced by penalties), the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them, and therefore are not in force." What shall be admitted and what rejected, at what times, and under what restrictions, must, in case of dispute, be decided in the first instance by their own provincial judicature, subject to the revision and control of the king in council: the whole of their constitution being also liable to be new-modelled and reformed by the general superintending power of the legislature in the mother-country. But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country. (n) Our American plantations are principally of this latter sort, being obtained in the last century either by right of conquest [108] and driving out the natives (with what natural justice I shall not at present inquire), or by treaties. And therefore the common law of England, as such, has no allowance or authority there; they being no part of the mother-country, but distinct (though dependant) dominions. They are subject, however, to the control of the parliament; though (like Ireland, Man, and the rest) not bound by any acts of parliament, unless particularly named. 24 With respect to their interior polity, our colonies are properly of three sorts. 1. Provincial establishments, the constitutions of which depend on the respective commissions issued by the crown to the governors, and the instructions which usually accompany those commissions; under the authority of which, provincial assemblies are constituted, with the power of making local ordinances, not repugnant to the laws of England. 2. Proprietary governments, granted out by the crown to individuals, in the nature of feudatory principalities, with all the inferior regalities, and subordinate powers of legislation, which formerly belonged to the owners of counties palatine; yet still with these express conditions, that the ends for which the grant was made be substantially pursued, and that nothing be attempted which may derogate from the sovereignty of the mother-country.25 3. Charter governments, in the nature of civil corporations, with the power of making bye-laws for their own interior regulation, not contrary to the n 7 Rep. 17 Calvin's case. Show. Parl. C. 31. (1 Chitty's Com. L. 639. and cases and opinions there collected.) (23) A statute passed in England after the establishment of a colony, will not affect it unless it be particularly named; and therefore the requisites of the statute against frauds, in executing wills, &c. have no influence in Barbadoes: (see cases collected 1 Chitty's Com. Law, 698.) so the 5 & 6 Ed. 6. c. 16. as to sale of offices do not extend to Jamaica. 4 Mod. 222. Chitty. (24) See an elaborate and learned argument by lord Mansfield, to prove the king's legislative authority by his prerogative alone, over a ceded conquered country. See in Campbell v. Hall. Cowp. 204. wherein he calls Calvin's case an absurd exception, which arose, in all probability, from the mad enthusiasm of the Croisades. (25) 1 Chitty's Com. L. 642. (26) 1 Chitty's Com. L. 643. Expracy Chitty laws of England; and with such rights and authorities as are specially given them in their several 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 (or in some proprietary colonies by the proprietor,) who is his representative or deputy. They have courts of justice of their own, from whose decisions an appeal lies to the king and council here in England. Their general assemblies, which are their house of commons, together 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 it is particularly declared by statute 7 and 8 W. III. c. 22. that all laws, bye-laws, usages, and customs, which [109] shall be in practice in any of the plantations, repugnant to any law made or to be made in this kingdom relative to the said plantation, shall be utterly void and of none effect. And, because several of the colonies had claimed a sole and exclusive right of imposing taxes upon themselves, the statute 6 Geo. III. c. 12. expressly declares, that all his majesty's colonies and plantations in America have been, are, and of right ought to be, subordinate to and dependent upon the imperial crown and parliament of Great Britain; who have full power and authority to make laws and statutes of sufficient validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever. And this authority has been since very forcibly exemplified, and carried into act, by the statute 7 Geo. III. c. 59, for suspending the legislation of New-York; and by several subsequent statutes.". These are the several parts of the dominions of the crown of Great Britain, in which the municipal laws of England are not of force or authority, merely as the municipal laws of England. Most of them have probably copied the spirit of their own law from this original; but then it receives its obligation, and authoritative force, from being the law of the country. As to any foreign dominions which may belong to the person of the king by hereditary descent, by purchase or other acquisition, as the territory of Hanover, and his majesty's other property in Germany;, as these do not in any wise appertain to the crown of these kingdoms, they are entirely unconnected with the laws of England, and do not communicate with this nation in any respect whatsoever. The English legislature had wisely remarked the inconveniences that had formerly resulted from dominions on the continent of Europe; from the Norman territory which William the Conqueror brought with him, and held in conjunction with the Eng[110] lish throne; and from Anjou, and its appendages, which fell to Hen ry the Second by hereditary descent. They had seen the nation engaged for near four hundred years together in ruinous wars for defence of these foreign dominions; till, happily for this country, they were lost under the reign of Henry the Sixth. They observed that, from that time, (27) 1 Chitty's Com. L. 643. (28) These statutes and our claim of the right of taxation over America and the islands in the West Indies, occasioned the American war. The claim was abandoned by the 18 Geo. III. c. 12. and by 22 Geo. III. c. 46. his majesty was empowered to conclude a truce or peace with the colonies or plantations in America, and by his letters patent to suspend or repeal any acts of parliament which related to those colonies. By the first article of the definitive treaty of peace and friendship between his Britannic majesty and the United States of America, signed at Paris the third day of September 1783, his Britannic majesty acknowledges the United States of America to be free, sovereign, and independent states. And 23 Geo. III. c. 39. gives his majesty certain powers for the better carrying on trade and commerce between England and the United States. See 2 Chitty's Com. L. 230. Christian. : the maritime interests of England were better understood and more closeTM ly pursued that, in consequence of this attention, the nation, as soon as she had rested from her civil wars, began at this period to flourish all at once; and became much more considerable in Europe than when her princes were possessed of a larger territory, and her councils distracted by foreign interests. This experience and these considerations gave birth to a conditional clause in the act (o) of settlement, which vested the crown in his present majesty's illustrious house, "that in case the crown and impe"rial dignity of this realm shall hereafter come to any person not being a "native of this kingdom of England, this nation shall not be obliged to engage in any war for the defence of any dominions or territories which do "not belong to the crown of England, without consent of parliament." We come now to consider the kingdom of England in particular, the direct and immediate subject of those laws, concerning which we are to treat in the ensuing commentaries. And this comprehends not only Wales and Berwick, of which enough has been already said, but also part of the sea. The main or high seas are part of the realm of England, for thereon our courts of admiralty have jurisdiction, as will be shewn hereafter; but they are not subject to the common law. (p) This main sea begins at the lowwater-mark. But between the high-water-mark and the low-water-mark, where the sea ebbs and flows, the common law and the admiralty have divisum imperium, and alternate jurisdiction; one upon the water, when it is full-sea; and the other upon land, when it is an ebb. (9) The territory of England is liable to two divisions: the onde ecclesiastical, the other civil. 1. The ecclesiastical division is, primarily, into two provinces, [111] those of Canterbury and York. A province is the circuit of an archbishop's jurisdiction. Each province contains divers dioceses, or sees of suffragan bishops; whereof Canterbury includes twenty-one, and York three; besides the bishoprick of the isle of Man, which was annexed to the province of York by king Henry VIII. Every diocese is divided into archdeaconries, whereof there are sixty in all, each archdeaconry into rural deaneries, which are the circuit of the archdeacon's and rural dean's jurisdiction, of whom hereafter; and every deanery is divided into two parishes. (r) A parish is that circuit of ground which is committed to the charge of one parson, or vicar, or other minister having cure of souls therein.29 These districts are computed to be near ten thousand in number. (s) How ancient the division of parishes is, may at present be difficult to ascertain ; for it seems to be agreed on all hands, that in the early ages of Christianity in this island, parishes were unknown, or at least signified the same that a diocese does now.30 There was then no appropriation of ecclesiastical dues to any particular church; but every man was at liberty to contribute his tithes to whatever priest or church he pleased, provided only that he o Stat, 12 and 18 Will. III. c. 3. p Co. Litt. 260. s Camden's Britannia. q Finch. L. 78. (29) As to parishes in general, see Com. Dig. Parish, Burn. Ec. L. Parish, Nolan's Poor Laws, and Jac. Dic. 11. Parish. (30) When the dioichia, or the district over which the bishop exercised his spiritual functions, was divided into lesser portions for the superintendence of his clergy, a word of similar import was adopted, paroichia. And in ancient times, Mr. Selden thinks, the words were used indiscriminately. Vol. 2. Burn Ec. L. 59. Com, Dig. Parish, A. Christian. did it to some; or if he made no special appointment or appropriation thereof, they were paid into the hands of the bishop, whose duty it was to distribute them among the clergy, and for other pious purposes, according to his own discretion. (t) Mr. Camden (u) says, England was divided into parishes by archbishop Honorius about the year 630. Sir Henry Hobart (w) lays it down, [112] that parishes were first erected by the council of Lateran, which was held A. D. 1179. Each widely differing from the other, and both of them perhaps from the truth; which will probably be found in the medium between the two extremes. For Mr. Selden has clearly shewn, (x) that the clergy lived in common without any division of parishes, long after the time mentioned by Camden. And it appears from the Saxon laws, that parishes were in being long before the date of that council of Lateran, to which they are ascribed by Hobart. We find the distinction of parishes, nay even of mother-churches, so early as in the laws of king Edgar, about the year 970. Before that time the consecration of tithes was in general arbitrary; that is, every man paid his own (as was before observed) to what church or parish he pleased. But this being liable to be attended with either fraud, or at least caprice, in the persons paying; and with either jealousies or mean compliances in such as were competitors for receiving them; it was now ordered by the law of king Edgar, (y) that "dentur omnes decimae primariae ecclesiae "ad quam parochia pertinet." However, if any thane, or great lord, had a church, within his own demesnes, distinct from the mother-church, in the nature of a private chapel, then, provided such church had a cœmetery 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 cœmetry, 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 primariae ecclesiae or mother-church. (z) 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 pretty clear and certain, that the boundaries of parishes were origi nally ascertained by those of a manor or manors: since it very [113] seldom 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 them 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 out-lying parcels. t Seld. of Tith. 9. 4. 2 Inst. 646. Hob. 296. x Of Tithes, c. 9. u In bis Britannia. w Hob. 296. y Seld. of Tith. c. 1. z Ibid. c. 2. See also the laws of king Canute, c. 11, about the year 1030. 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: (a) yet extraparochial wastes and marsh-lands, when improved and drained, are by the statute 17 Geo. II. c. 37. to be assessed to all parochial rates in the parish next adjoining. thus much for the ecclesiastical division of this kingdom. And 2. The civil division of the territory of England is into counties, of those counties into hundreds, of those hundreds into tith- [114] ings or towns. Which division, as it now stands, seems to owe its 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 was committed in their district, they were bound to have the offender forthcoming. (b) therefore anciently no man was suffered to abide in England above forty days, unless he were enrolled in some tithings or decennary. (c) 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 counties the borsholder, or borough's-ealder, being supposed the discreetest man in the borough, town, or tithing. (d) And 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 :(e) though that seems to be rather an ecclesiastical, than a civil distinction. The word town or vill is indeed, by the alteration of times and language, now become a generical term, com a 2 Inst. 647. 2 Rep. 44. Cro. Eliz. 512 b Flet. 1. 47. This the laws of king Edward the Confessor, c. 20. very justly entitled, “sumna et maxíma securitas, per qam omnes statu firmissimo sustinentur :-quae hoc modo fiebat, quod sub decennali fidejussione debebant esse universi, &c." c Mirr. c. 1. § S. d Finch. L. 8. e 1 Inst. 115. (31) Modern researches into the more remote periods of antiquity, have led to the discovery, that the learned commentator was incorrect in ascribing the institution of these civil divisions of the kingdom to Alfred. In the reign of Ina, king of the West Saxons, towards the end of the seventh century, the tithing and shire are both mentioned. And no doubt they were brought from the continent by some of the first Saxon settlers in this island; for the tithing, hundred, and shire, are noticed in the capitularies of the Franks, before the year 630, whence it is reasonably inferred, they were known in France at least two centuries before the reign of Alfred. It may therefore be concluded, that, among the people of this country, they were part of those general customs which Alfred collected, arranged, and improved into an uniform system of jurisprudence. See Whitaker's History of Manchester; Montesquieu Esprit des Lois, tom. 2. p. 376.; Stuart's Diss. on the English Constitution, 254. ; and Henry's History of Great Britain. Chitty. (32) As to vills in general, see Com. Dig. Parish, C. The reader, in consulting the authorities referred to in the last note, will not fail to perceive that they dispute the position that tithings, fowns, or vills, are of the same signification in law. See also Millar's View of Eng. Gov. vol. 1. 118 & 177. Bede, b. 4. c. 4. and William of Malmesbury, 1. 2. c. 4. The terms township and village have always been thought synonymous, in the statute 13 & 14 Car. I. c. 12. which provides, that when a parish is so large that it cannot have the benefit of the overseers and provision for the poor appointed by the 43 Eliz. c. 2., two overseers may be appointed for every township or village in such parish. And it has been held, that wherever there is Constable there is a township. 1 T. R. 376. VOL. I. 11 Chitty |