SECTION V.

OF THE KINGDOM OF ENGLAND ITSELF.

[WE come now to consider the kingdom of England itself; 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 said, but also part of the sea. The main or high seas are, in one sense, part of the kingdom of England proper; for thereon our courts of admiralty have jurisdiction, although they are not subject to the common law. The main sea begins at the low water-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 alternate jurisdiction; the common law having jurisdiction on the land, when it is an ebb, and the admiralty on the water, when it is full sea (n).

The territory of England is liable to two divisions; the one ecclesiastical, the other civil.

I. The ecclesiastical division is, primarily, into two provinces, 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 (o); and every diocese is divided into archdeaconries, each archdeaconry into rural deaneries, and every rural deanery into parishes (p).

[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 (q). How antient the division into 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. 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 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 (r).

It seems, however, to be the better opinion, that the division of the land into parishes was largely due to the organizing energy of Theodore of Tarsus, who was Archbishop of Canterbury from 668-693 A.D. (s). At any rate, we find the distinction of parishes, and of motherchurches, so early as in the laws of King Edgar, about the year 960. For, whereas before that time the consecration of tithes was in general arbitrary, every man paying his own to what church or parish he pleased, it was ordered by these laws that "all tithe be paid to the mother-church to which the parish belongs"(t). However, if any thane, or great lord, had a church within his own

(1) "Parochia est locus in quo degit populus alicujus ecclesiæ."Jeffery's Case, (1589) 5 Rep. 67 a. For purposes of an Act of Parliament, "parish" now means a place having (or capable of having) a separate overseer or poor rate (Interpretation Act, 1889, s. 5). But see Local Government Act, 1893, s. 75.

(7) Selden, Tithes, 9, 4; 2 lust.

646.

(s) Stubbs, Constitutional History, I. p. 227.

(t) Laws of Edgar, II. 1 (1), in Liebermann, Gesetze der Angelsachsen, p. 197. (It is, however, very doubtful whether the term "parish" is here anything more than a late version of an old Saxon word, meaning simply "district." -E. J.)

[demesnes, distinct from the mother-church, then, provided such church had place of burial belonging to it, he might allot one-third of his tithes for the maintenance. thereof. 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 (u).

The division of the kingdom into parishes happened probably not all at once, but by degrees; and it seems pretty clear and certain, that the boundaries of parishes were originally ascertained by those of townships, or as they were later called, manors. For it very seldom happens that a manor or township extends over more parishes than one, though there are often many manors or townships 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, they 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 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.

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 situated in forest and desert places, or for other now

(u) Ibid. 1 (2), 2.

[unsearchable reasons, were never united to any parish, but remained extra-parochial. The sea-shore is primâ facie extra-parochial, as is also the bed of a public navigable river. In all extra-parochial places the tithes are by immemorial custom payable to the king, in trust and confidence that he will distribute them for the general good of the Church (x).] Recent legislation has provided, in view of the great increase of population in certain centres, for the subdivision of antient ecclesiastical parishes, either into districts subordinate to the old Church, or into completely independent parishes (y). And thus much for the ecclesiastical division of this kingdom.

These

II. [The ancient civil division of the territory of England is into counties, and of counties into hundreds, and of hundreds into tithings or townships. As to the tithings, they were so called, from the Saxon, because ten freeholders with their families composed one. families 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 (z). And therefore antiently no man was suffered to abide in England, above forty days, unless he were enrolled in some tithing or decennary (a). One of the principal inhabitants of the tithing was annually appointed to preside over the rest, being called the tithing man, the headborh, (words which speak their own etymology,) and in some counties, the borsholder, or borh's-ealdor, being supposed the discreetest man in the borh or tithing (b).

(x) 2 Inst. 647; Wright v. Wright, (1596) Cro. Eliz. 512.

(y) The New Parishes Acts, 18431884. (See post, bk. iv. pt. ii.ch. iv.)

(2) Our chief information about the tithing or frankpledge comes from the so-called Laws of Edward the Confessor, a law book of the 12th

century. It is very doubtful whether the tithing is (a) older than the Conquest, (b) a local unit at all. The Laws of Edward the Confessor are printed in Schmid, Gesetze der Angelsachsen. -E. J.

(a) Mirr. ch. 1, s. 3.

(b) Laws of Edward, 20 (3).

[Townships, towns, or vills, were antiently of the same significance in law, each of them having had originally a church with sacraments and burials, though that seems to be rather an ecclesiastical than a civil distinction (e); but the word town is now become a generical term, comprehending under it several species. and varieties (d).] Taken in this wide sense, towns are distinguished from each other as being either corporate or not corporate. In the former, the ratepaying inhabitants are created by royal charter a legal personality commonly designated a municipal corporation, of the powers of which we shall have much to say in a later volume. Again, there are market-towns, or or towns entitled to hold markets, and there are others which have not that franchise; and, lastly, towns are either cities, boroughs, or common towns. The title of "city" is in this country merely traditional or honorary, carrying with it no special powers. A borough was anciently a fortified place, then a town which exercised certain privileges or franchises, e.g. the right to manage its own affairs, or to send members to Parliament. At the present day a true borough is a town which is incorporated by charter for purposes of self-government (e). But an urban constituency which sends members to parliament is frequently called frequently called a "parliamentary borough."

Apart, however, from these privileged cases, there has existed, from antient times, the ordinary township or vill, which is, even now, despite recent changes, the basis of the English system of local government. For a long period, during the Middle Ages, its very existence was obscured by the ecclesiastical organisation of the parish, which had obtained such a powerful hold upon it,

(c) Co. Litt. 115 b.

(d) Elliott v. South Devon Railway Company, (1848) 2 Exch. 729; London and South Western Railway

Company v. Blackmore, (1870) L. R. 4 H. L. 610.

(e) Interpretation Act, 1889, s. 15.