Front Page Titles (by Subject) SECTION IV.: OF THE COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. - Commentaries on the Laws of England in Four Books, vol. 1
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SECTION IV.: OF THE COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF THE COUNTRIES SUBJECT TO THE LAWS OF ENGLAND.
The kingdom of England, over which our municipal laws have jurisdiction, includes not, by the common law, either Wales, Scotland, or Ireland, or any other part of the king’s dominions, except the territory of England only. And yet the civil laws and local customs of this territory do now obtain, in part or in all, with more or less restrictions, in these and many other adjacent countries; of which it will be proper first to take a review, before we consider the kingdom of England itself, the original and proper subject of these laws.
Wales had continued independent of England, unconquered and uncultivated, in the primitive pastoral state which Cæsar and Tacitus ascribe to Britain in general, for many centuries; even from the time of the hostile invasions of the Saxons, when the ancient and Christian inhabitants of the island retired to those natural intrenchments, for protection from their pagan visitants. But when these invaders themselves were converted to Christianity, and settled into regular and potent governments, this retreat of the ancient Britons grew every day narrower; they were overrun by little and little, gradually driven from one fastness to another, and by repeated losses abridged of their wild independence. Very early in our history we find their princes doing homage to the crown of England; till at length in the reign of Edward the First, who may justly be styled the conqueror of **94]Wales, the line of their ancient princes was abolished, and the King of England’s eldest son became, as a matter of course,1 their titular prince; the territory of Wales being then entirely reannexed (by a kind of feodal resumption) to the dominion of the crown of England;(a) or, as the statute2 of Rhudlan(b) expresses it, “Terra Walliæ cum incolis suis, prius regi jure feodali subjecta, (of which homage was the sign,) jam in proprietatis dominium totaliter et cum integritate conversa est, et coronæ regni Angliæ tanquam pars corporis ejusdem annexa et unita.” By the statute also of Wales(c) very material alterations were made in divers parts of their laws, so as to reduce them nearer to the English standard, especially in the forms of their judicial proceedings: but they still retained very much of their original polity; particularly their rule of inheritance, viz. that their lands were divided equally among all the issue male, and did not descend to the eldest son alone. By other subsequent statutes their provincial immunities were still farther abridged: but the finishing stroke to their independency was given by the statute 27 Hen. VIII. c. 26, which at the same time gave the utmost advancement to their civil prosperity, by admitting them to a thorough communication of laws with the subjects of England. Thus were this brave people gradually conquered into the enjoyment of true liberty; being insensibly put upon the same footing, and made fellow-citizens with their conquerors. A generous method of triumph, which the republic of Rome practised with great success, till she reduced all Italy to her obedience, by admitting the vanquished states to partake of the Roman privileges.
It is enacted by this statute 27 Henry VIII., 1. That the dominion of Wales shall be forever united to the kingdom of England. 2. That all Welshmen born shall have the same liberties as other the king’s subjects. 3. That lands in Wales shall be inheritable according to the English tenures and rules of descent. 4. That the laws of England, and no other, shall *[*95be used in Wales: besides many other regulations of the police of this principality. And the statute 34 and 35 Hen. VIII., c. 26, confirms the same, adds farther regulations, divides it into twelve shires, and, in short, reduces it into the same order in which it stands at this day; differing from the kingdom of England in only a few particulars, and those too of the nature of privileges, (such as having courts within itself, independent of the process of Westminster-hall,) and some other immaterial peculiarities, hardly more than are to be found in many counties of England itself.
The kingdom of Scotland, notwithstanding the union of the crowns on the accession of their King James VI. to that of England, continued an entirely separate and distinct kingdom for above a century more, though an union had been long projected; which was judged to be the more easy to be done, as both kingdoms were anciently under the same government, and still retained a very great resemblance, though far from an identity, in their laws. By an act of parliament 1 Jac. I. c. 1, it is declared, that these two mighty, famous, and ancient kingdoms, were formerly one. And Sir Edward Coke observes,(d) how marvellous a conformity there was, not only in the religion and language of the two nations, but also in their ancient laws, the descent of the crown, their parliaments, their titles of nobility, their officers of state and of justice, their writs, their customs, and even the language of their laws. Upon which account he supposes the common law of each to have been originally the same; especially as their most ancient and authentic book, called regiam majestatem, and containing the rules of their ancient common law, is extremely similar to that of Glanvil, which contains the principles of ours, as it stood in the reign of Henry II. And the many diversities, subsisting between the two laws at present, may be well enough accounted for, from a diversity of practice in two large and uncommunicating jurisdictions, and from the acts of two distinct and independent parliaments, which have in many points altered and abrogated the old common law of both kingdoms.3
**96]However, Sir Edward Coke, and the politicians of that time, conceived great difficulties in carrying on the projected union; but these were at length overcome, and the great work was happily effected in 1707, 6 Anne; when twenty-five articles of union were agreed to by the parliaments of both nations; the purport of the most considerable being as follows:
1. That on the first of May, 1707, and forever after, the kingdoms of England and Scotland shall be united into one kingdom, by the name of Great Britain.
2. The succession to the monarchy of Great Britain shall be the same as was before settled with regard to that of England.
3. The united kingdom shall be represented by one parliament.
4. There shall be a communication of all rights and privileges between the subjects of both kingdoms, except where it is otherwise agreed.
9. When England raises 2,000,000l. by a land tax, Scotland shall raise 48,000l.
16, 17. The standards of the coin, of weights, and of measures, shall be reduced to those of England, throughout the united kingdoms.
18. The laws relating to trade, customs, and the excise, shall be the same in Scotland as in England. But all the other laws of Scotland shall remain in force; though alterable by the parliament of Great Britain. Yet with this caution: that laws relating to public policy are alterable at the discretion of the parliament: laws relating to private right are not to be altered but for the evident utility of the people of Scotland.
**97]22. Sixteen peers are to be chosen to represent the peerage of Scotland in parliament, and forty-five members to sit in the House of Commons.4
23. The sixteen peers of Scotland shall have all privileges of parliament; and all peers of Scotland shall be peers of Great Britain, and rank next after those of the same degree at the time of the union, and shall have all privileges of peers, except sitting in the House of Lords, and voting on the trial of a peer.5
These are the principal of the twenty-five articles of union, which are ratified and confirmed by statute 5 Ann. c. 8, in which statute there are also two acts of parliament recited; the one of Scotland, whereby the church of Scotland, and also the four universities of that kingdom, are established forever, and all succeeding sovereigns are to take an oath inviolably to maintain the same; the other of England, 5 Ann. c. 6, whereby the acts of uniformity of 13 Eliz. and 13 Car. II. (except as the same had been altered by parliament at that time,) and all other acts then in force for the preservation of the church of England, are declared perpetual; and it is stipulated, that every subsequent king and queen shall take an oath inviolably to maintain the same within England, Ireland, Wales, and the town of Berwick upon Tweed. And it is enacted, that these two acts “shall forever be observed as fundamental and essential conditions of the union.”
Upon these articles and act of union, it is to be observed, 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them again, except the mutual consent of both, or the successful resistance of either, upon apprehending an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be “fundamental and essential conditions of the union.”(e) 2. That whatever else may be deemed “fundamental **98]and essential conditions,” the preservation of the two churches of England and Scotland in the same state that they were in at the time of the union, and the maintenance of the acts of uniformity which establish our common prayer, are expressly declared so to be. 3. That therefore any alteration in the constitution of either of those churches, or in the liturgy of the church of England, (unless with the consent of the respective churches, collectively or representatively given,) would be an infringement of these “fundamental and essential conditions,” and greatly endanger the union. 4. That the municipal laws of Scotland are ordained to be still observed in that part of the island, unless altered by parliament; and as the parliament has not yet thought proper, except in a few instances, to alter them, they still, with regard to the particulars unaltered, continue in full force. Wherefore the municipal or common laws of England are, generally speaking, of no force or validity in Scotland; and of consequence, in the ensuing Commentaries, we shall have very little occasion to mention, any further than sometimes by way of illustration, the municipal laws of that part of the united kingdoms.
The town of Berwick upon Tweed was originally part of the kingdom of Scotland; and, as such, was for a time reduced *[*99by king Edward I. into the possession of the crown of England: and during such, its subjection, it received from that prince a charter, which (after its subsequent cession by Edward Balliol, to be forever united to the crown and realm of England,) was confirmed by king Edward III. with some additions; particularly that it should be governed by the laws and usages which it enjoyed during the time of king Alexander, that is, before its reduction by Edward I. Its constitution was new-modelled, and put upon an English footing, by a charter of king James I.: and all its liberties, franchises, and customs, were confirmed in parliament by the statutes 22 Edward IV. c. 8, and 2 Jac. I. c. 28. Though, therefore, it hath some local peculiarities, derived from the ancient laws of Scotland,(f) yet it is clearly part of the realm of England, being represented by burgesses in the house of Commons, and bound by all Acts of the British parliament, whether specially named or otherwise. And therefore it was, perhaps superfluously, declared, by statute 20 Geo. II. c. 42, that, where England only is mentioned in any Act of parliament, the same, notwithstanding, hath and shall be deemed to comprehend the dominion of Wales and town of Berwick upon Tweed. And though certain of the king’s writs or processes of the courts of Westminster do not usually run into Berwick, any more than the principality of Wales, yet it hath been solemnly adjudged(g) that all prerogative writs, as those of mandamus, prohibition, habeas corpus, certiorari, &c., may issue to Berwick as well as to every other of the dominions of the crown of England, and that indictments and other local matters arising in the town of Berwick may be tried by a jury of the county of Northumberland.6
As to Ireland, that is still a distinct kingdom, though a dependent subordinate kingdom. It was only entitled the dominion or lordship of Ireland,(h) and the king’s style was no other than dominus Hiberniæ, lord of Ireland, till the thirty-third year of king Henry the Eighth, when he assumed the *[*100title of king, which is recognised by act of parliament 35 Hen. VIII. c. 3. But, as Scotland and England are now one and the same kingdom, and yet differ in their municipal laws, so England and Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws. The inhabitants of Ireland are, for the most part, descended from the English, who planted it as a kind of colony, after the conquest of it by king Henry the Second; and the laws of England were then received and sworn to by the Irish nation assembled at the council of Lismore.(i) And as Ireland, thus conquered, planted, and governed, still continues in a state of dependence, it must necessarily conform to, and be obliged by, such laws as the superior state thinks proper to prescribe.
At the time of this conquest the Irish were governed by what they called the Brehon law, so styled from the Irish name of judges, who were denominated Brehons.(k) But king John, in the twelfth year of his reign, went into Ireland, and carried over with him many able sages of the law; and there by his letters patent, in right of the dominion of conquest, is said to have ordained and established that Ireland should be governed by the laws of England:(l) which letters patent Sir Edward Coke(m) apprehends to have been there confirmed in parliament. But to this ordinance many of the Irish were averse to conform, and still stuck to their Brehon law: so that both Henry the Third(n) and Edward the First(o) were obliged to renew the injunction; and at length, in a parliament holden at Kilkenny, 40 Edw. III., under Lionel duke of Clarence, the then lieutenant of Ireland, the Brehon law was formally abolished, it being unanimously declared to be indeed no law, but a lewd custom crept in of later times. And yet, even in the reign of queen Elizabeth, the **101]wild natives still kept and preserved their Brehon law, which is described(p) to have been “a rule of right unwritten, but delivered by tradition from one to another, in which oftentimes there appeared great show of equity in determining the right between party and party, but in many things repugnant quite both to God’s laws and man’s.” The latter part of this character is alone ascribed to it, by the laws before cited of Edward the First and his grandson.
But as Ireland was a distinct dominion, and had parliaments of its own, it is to be observed that though the immemorial customs, or common law, of England were made the rule of justice in Ireland also, yet no acts of the English parliament, since the twelfth of king John, extended into that kingdom, unless it were specially named, or included under general words, such as “within any of the king’s dominions.” And this is particularly expressed, and the reason given in the year books:(q) “a tax granted by the parliament of England shall not bind those of Ireland, because they are not summoned to our parliament;” and again, “Ireland hath a parliament of its own, and maketh and altereth laws; and our statutes do not bind them, because they do not send knights to our parliament, but their persons are the king’s subjects, like as the inhabitants of Calais, Gascoigne, and Guienne, while they continued under the king’s subjection.” The general run of laws, enacted by the superior state, are supposed to be calculated for its own internal government, and do not extend to its distant dependent countries, which, bearing no part in the legislature, are not therefore in its ordinary and daily contemplation. But, when the sovereign legislative power sees it necessary to extend its care to any of its subordinate dominions, and mentions them expressly by name, or includes them under general words, there can be no doubt but then they are bound by its laws.(r)
**102]The original method of passing statutes in Ireland was nearly the same as in England, the chief governor holding parliaments at his pleasure, which enacted such laws as they thought proper.(s) But an ill use being made of this liberty, particularly by lord Gormanstown, deputy-lieutenant in the reign of Edward IV.,(t) a set of statutes were then enacted in the 10 Hen. VII. (Sir Edward Poynings being then lord deputy, whence they are called Poynings’ laws) one of which,(u) in order to restrain the power as well of the deputy as the Irish parliament, provides, 1. That, before any parliament be summoned or holden, the chief governor and council of Ireland shall certify to the king, under the great seal of Ireland, the consideration and causes thereof, and the articles of the acts proposed to be passed therein. 2. That after the king, in his council of England, shall have considered, approved, or altered the said acts or any of them, and certified them back under the great seal of England, and shall have given license to summon and hold a parliament, then the same shall be summoned and held; and therein the said acts so certified, and no other, shall be proposed, received, or rejected.(w) But as this precluded any law from being proposed, but such as were preconceived before the parliament was in being, which occasioned many inconveniences and made frequent dissolutions necessary, it was provided by the statute of Philip and Mary, before cited, that any new propositions might be certified to England in the usual forms, even after the summons and during the session of parliament. By this means however, there was nothing left to the parliament in Ireland but a bare negative or power of rejecting, not of proposing or altering, any law. But the usage now is, that bills are often framed in either house, under the denomination of “heads for a bill or bills:” and in that shape they are offered to the consideration of the lord lieutenant and privy council, who, upon such parliamentary intimation or otherwise upon the application of private persons, receive and transmit such *[*103heads, or reject them without any transmission to England. And with regard to Poynings’ law in particular, it cannot be repealed or suspended, unless the bill for that purpose, before it be certified to England, be approved by both the houses.(x)
But the Irish nation, being excluded from the benefit of the English statutes, were deprived of many good and profitable laws, made for the improvement of the common law: and the measure of justice in both kingdoms becoming thence no longer uniform, it was therefore enacted by another of Poynings’ laws,(y) that all acts of parliament before made in England should be of force within the realm of Ireland.(z) But, by the same rule, that no laws made in England, between king John’s time and Poynings’ law, were then binding in Ireland, it follows that no acts of the English parliament, made since the 10 Hen. VII. do now bind the people of Ireland, unless specially named or included under general words.(a) And on the other hand it is equally clear, that where Ireland is particularly named, or is included under general words, they are bound by such acts of parliament. For this follows from the very nature and constitution of a dependent state: dependence being very little else, but an obligation to conform to the will or law of that superior person or state, upon which the inferior depends. The original and true ground of this superiority, in the present case, is what we usually call, though somewhat improperly, the right of conquest: a right allowed by the law of nations, if not by that of nature; but which in reason and civil policy can mean nothing more, than that, in order to put an end to hostilities, a compact is either expressly or tacitly made between the conqueror and the conquered, that if they will acknowledge the victor for their master, he will treat them for the future as subjects, and not as enemies.(b)
*[*104But this state of dependence being almost forgotten and ready to be disputed by the Irish nation, it became necessary some years ago to declare how that matter really stood: and therefore by statute 6 Geo. I. c. 5, it is declared that the kingdom of Ireland ought to be subordinate to, and dependent upon, the imperial crown of Great Britain, as being inseparably united thereto; and that the king’s majesty, with the consent of the lords and commons of Great Britain in parliament, hath power to make laws to bind the people of Ireland.7
Thus we see how extensively the laws of Ireland communicate with those of England: and indeed such communication is highly necessary, as the ultimate resort from the courts of justice in Ireland is, as in Wales, to those in England; a writ of error (in the nature of an appeal) lying from the King’s Bench in Ireland to the King’s Bench in England,(c) as the appeal from the Chancery in Ireland lies immediately to the House of Lords here: it being expressly declared by the same statute, 6 Geo. I. c. 5, that the peers of Ireland have no jurisdiction to affirm or reverse any judgments or decrees whatsoever. The propriety, and even necessity, in all inferior dominions, of this constitution, “that, though justice be in general administered by courts of their own, yet that the appeal in the last resort ought to be to the courts of the superior state,” is founded upon these two reasons. 1. Because otherwise the law, appointed or permitted to such inferior dominion, might be insensibly changed within itself, without the assent of the superior. 2. Because otherwise judgments might be given to the disadvantage or diminution of the superiority; or to make the dependence to be only of the person of the king, and not of the crown of England.(d)8
With regard to the other adjacent islands which are subject to the crown of Great Britain, some of them (as the isle of *[*105Wight, of Portland, of Thanet, &c.) are comprised within some neighbouring county, and are therefore to be looked upon as annexed to the mother island, and part of the kingdom of England. But there are others which require a more particular consideration.
And, first, the isle of Man is a distinct territory from England, and is not governed by our laws: neither doth any act of parliament extend to it, unless it be particularly named therein; and then an act of parliament is binding there.(e) It was formerly a subordinate feudatory kingdom, subject to the kings of Norway; then to king John and Henry III. of England, afterwards to the kings of Scotland; and then again to the crown of England: and at length we find king Henry IV, claiming the island by right of conquest, and disposing of it to the Earl of Northumberland; upon whose attainder it was granted (by the name of the lordship of Man) to Sir John de Stanley by letters patent 7 Henry IV.(f) In his lineal descendants it continued for eight generations, till the death of Ferdinando Earl of Derby, ad 1594: when a controversy arose concerning the inheritance thereof, between his daughters and William his surviving brother: upon which, and a doubt that was started concerning the validity of the original patent,(g) the island was seized into the queen’s hands, and afterwards various grants were made of it by king James the First; all which being expired or surrendered, it was granted afresh in 7 Jac. I. to William Earl of Derby, and the heirs male of his body, with remainder to his heirs general; which grant was the next year confirmed by act of parliament, with a restraint of the power of alienation by the said earl and his issue male. On the death of James Earl of Derby, ad 1735, the male line of Earl William failing, the Duke of Atholl succeeded to the island as heir general by a female branch. In the mean time, though the title of king had been long disused, the Earls of Derby, as Lords of Man, had maintained a sort of royal authority therein; by assenting or **106]dissenting to laws, and exercising an appellate jurisdiction. Yet, though no English writ, or process from the courts of Westminster, was of any authority in Man, an appeal lay from a decree of the lord of the island to the King of Great Britain in council.(h) But the distinct jurisdiction of this little subordinate royalty being found inconvenient for the purposes of public justice, and for the revenue, (it affording a commodious asylum for debtors, outlaws, and smugglers,) authority was given to the treasury by statute 12 Geo. I. c. 28, to purchase the interest of the then proprietors for the use of the crown: which purchase was at length completed in the year 1765, and confirmed by statutes 5 Geo. III. c. 26 and 39, whereby the whole island and all its dependencies so granted as aforesaid, (except the landed property of the Atholl family, their manorial rights and emoluments, and the patronage of the bishopric(i) and other ecclesiastical benefices,) are unalienably vested in the crown, and subjected to the regulations of the British excise and customs.
The islands of Jersey, Guernsey, Sark, Alderney, and their appendages, were parcel of the duchy of Normandy, and were united to the crown of England by the first princes of the Norman line. They are governed by their own laws, which are for the most part the ducal customs of Normandy, being collected in an ancient book of very great authority, entitled, le grand Coustumier. The king’s writ, or process from the courts of Westminster, is there of no force; but his commission is. They are not bound by common Acts of our parliaments, unless particularly named.(k) All causes are originally determined by their own officers, the bailiffs and jurats of the islands; but an appeal lies from them to the king and council, in the last resort.
Besides these adjacent islands, our more distant plantations in America, and elsewhere, are also in some respect subject to the English laws. Plantations or colonies, in distant **107]countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother-country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it hath been held,(l) that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject,(m) are immediately 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.9 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;10 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 and driving out the natives, (with what natural justice I shall not at present inquire,) *[*108or 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 dependent, 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.11
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. 3. Charter governments, in the nature of civil corporations, with the power of making bye-laws for their own interior regulations, not contrary to the 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.12 But it is particularly declared by statute 7 and 8 W. III. c. 22, that *[*109all laws, bye-laws, usages, and customs, which 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 plantations, 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.13
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 **110]English throne; and from Anjou, and its appendages, which fell to Henry 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, the maritime interests of England were better understood and more closely 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 large 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 imperial 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 shown hereafter; but they are not subject to the common law.(p)14 This 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 admiralty have divisum imperium, an alternate jurisdiction; one upon the water, when it is full sea; the other upon the land, when it is an ebb.(q)
*[*111The territory of England is liable to two divisions; the one ecclesiastical, the other civil.
1. 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; whereof Canterbury includes twenty-one, and York three: besides the bishopric 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 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. 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. 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.(t)
Mr. Camden(u) says, England was divided into parishes by Archbishop Honorius about the year 630. Sir Henry Hobart(w) lays it down, that parishes were first erected by the council of Lateran, which was held ad 1179. Each widely differing *[*112from 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 shown(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 decimæ primariæ ecclesiæ 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 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 primariæ ecclesiæ 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 originally ascertained by those of a manor or manors: since it very seldom happens that a manor extends itself over more parishes than one, though there are often many manors in one parish. *[*113The 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 outlying parcels.
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 desert places, or for other now unsearchable reasons, were never united to any parish, and therefore continue to this day extra-parochial; 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 extra-parochial 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. And thus much for 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 division, as it now stands, seems to owe its original to king Alfred,15 who, to prevent **114]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) And therefore anciently no man was suffered to abide in England above forty days, unless he were enrolled in some tithing or decennary.(c) One of the principal inhabitants of the tithing is annually appointed to preside ever 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.(d)
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, 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 bishopric be dissolved, as at Westminster,16 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 *[*115hamlets, which are taken notice of in the statute of Exeter,(i) which makes frequent mention of entire vills, demi-vills, and hamlets. Entire 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 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.(l)17
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:(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 **116]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 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 at least as old as **117]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 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 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, *[*118Pembrokeshire 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)
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 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 *[*119to have become forfeited to the crown,(d) 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,)(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 1 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)
**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
COMMENTARIES ON THE LAWS OF ENGLAND.
[1 ] It cannot be said that the king’s eldest son became Prince of Wales by any necessary or natural consequence; but, for the origin and creation of his title, see page 224.—Christian.
[(a) ] Vaugh, 400.
[2 ] The learned judge has made a mistake in referring to the statute, which is called the statute of Rutland, in the 10 Ed. I., which does not at all relate to Wales. But the statute of Rutland, as it is called in Vaughan, (p. 400,) is the same as the Statutum Walliæ. Mr. Barrington, in his Observations on the Ancient Statutes, (p. 74,) tells us, that the Statutum Walliæ bears date apud Rothelanum, what is now called Rhuydland in Flintshire. Though Edward says, that terra Walliæ prius regi jure feodali subjecta, yet Mr. Barrington assures us, that the feudal law was then unknown in Wales, and that “there are at present in North Wales, and it is believed in South Wales, no copyhold tenures, and scarcely an instance of what we call manerial rights; but the property is entirely free and allodial. Edward, however, was a conqueror, and he had a right to make use of his own words in the preamble to his law.” Ib. 75.—Christian.
[(b) ] 10 Edw. I.—“The territory of Wales, before subjected with its inhabitants to the king by the feudal law, is erected into a principality; and as an integral part of England, annexed to and united with the crown.”
[(c) ] 12 Edw. I.
[(d) ] 4 Inst. 345.
[3 ] The laws in Scotland concerning the tenures of land, and of consequence the constitution of parliaments and the royal prerogatives, were founded upon the same feudal principles as the laws respecting these subjects in England. It is said, that the feudal polity was established first in England; and was afterwards introduced into Scotland, in imitation of the English government. But it continued in its original form much longer in Scotland than it did in England, and the changes in the Scotch government, probably owing to the circumstance that they are more recent, are far more distinctly marked and defined than they are in the history of the English constitution. And perhaps the progress of the Scotch parliaments affords a clearer elucidation of the obscure and ambiguous points in the history of the representation and constitution of our country, than any arguments or authorities that have yet been adduced. But a particular discussior of this subject would far exceed the limits of a note, and will be reserved for a future occasion. But for an account of the parliament of Scotland before the union, and the laws relative to the election of the representative peers and commoners of Scotland, I shall refer the studious reader to Mr. Wight’s valuable Inquiry into the Rise and Progress of Parliaments chiefly in Scotland. (Quarto ed.) It is supposed, that we owe the lower house of parliament in England to the accidental circumstance that the barons and the representatives of the counties and boroughs had not a room large enough to contain them all; but in Scotland, the three estates assembled always in one house, had one common president, and deliberated jointly upon all matters that came before them, whether of a judicial or of a legislative nature. (Wight, 82.) In England the lords spiritual were always styled one of the three estates of the realm; but there is no authority that they ever voted in a body distinct from the lords temporal. In the Scotch parliament the three estates were, 1. The bishops, abbots, and other prelates who had a seat in parliament, as in England, on account of their benefices, or rather lands, which they held in capite, i.e. immediately of the crown: 2. The barons, and the commissioners of shires, who were the representatives of the smaller barons, or the free tenants of the king: 3. The burgesses, or the representatives of the royal boroughs. Craig assures us, nihil ratum esse, nihil legis vim habere, nisi quod omnium, trium ordinum consensu conjuncto constitutum est; ita tamen ut unius cujusque ordinis per se major pars consentiens pro toto ordine sufficiat. Scio hodie controverti, an duo ordines dissentiente tertio, quasi major pars, leges condere possint; cujus partem negantem boni omnes, et quicunque de hac re scripserunt, pertinacissimè tuentur, alioqui quo ordines in eversionem tertii possint consentire. (De Feudis, lib. i. Dieg. 7, s. 11.) But some writers have since presumed to controvert this doctrine. (Wight, 83.) It is strange that a great fundamental point, which was likely to occur frequently, should remain a subject of doubt and controversy. But we should now be inclined to think, that a majority of one of the estates could not have resisted a majority of each of the other two, as it cannot easily be supposed that a majority of the spiritual lords would have consented to those statutes, which, from the year 1587 to the year 1690, were enacted for their impoverishment, and finally for their annihilation. At the time of the union, the Scotch parliament consisted only of the other two estates. With regard to laws concerning contracts and commerce, and perhaps also crimes, the law of Scotland is in a great degree conformable to the civil law; and this, probably, was owing to their frequent alliances and connections with France and the continent, where the civil law chiefly prevailed.—Christian.
[4 ] By the 25th article it is agreed, that all laws and statutes in either kingdom, so far as they are contrary to these articles, shall cease and become void. From the time of Edw. IV. till the reign of Ch. II. both inclusive, our kings used frequently to grant, by their charter only, a right to unrepresented towns of sending members to Parliament. The last time this prerogative was exercised, was in the 20 Ch. II. who gave this privilege to Newark; and it is remarkable, that it was also the first time that the legality of this power was questioned in the House of Commons, but it was then acknowledged by a majority of 125 to 73. (Comm. Jour. 21 March 1676-7.) But notwithstanding it is a general rule in our law, that the king can never be deprived of his prerogatives, but by the clear and express words of an act of parliament; yet it has been thought, from this last article in the act of union, that this prerogative of the crown is virtually abrogated, as the exercise of it would necessarily destroy the proportion of the representatives for the two kingdoms. (See 1 Doug. El. Cases, 70. The Preface to Glanv. Rep. and Simeon’s Law of Elect. 91.) It was also agreed, that the mode of the election of the peers and the commons should be settled by an act passed in the parliament of Scotland, which was afterwards recited, ratified, and made part of the act of union. And by that statute it was enacted, that of the 45 commoners, 30 should be elected by the shires, and 15 by the boroughs; that the city of Edinburgh should elect one, and that the other royal boroughs should be divided into fourteen districts, and that each district should return one. It was also provided, that no person should elect or be elected one of the 45, but who would have been capable of electing, or of being elected, a representative of a shire or a borough to the parliament of Scotland. Hence, the eldest son of any Scotch peer cannot be elected one of the 45 representatives; for by the law of Scotland, prior to the union, the eldest son of a Scotch peer was incapable of sitting in the Scotch parliament. (Wight, 269.) There seems to be no satisfactory reason for this restriction, which would not equally extend to the exclusion of all the other sons of a peer. Neither can such eldest son be entitled to be enrolled and vote as a freeholder for any commissioner of a shire, though otherwise qualified, as was lately determined by the house of lords in the case of lord Daer, March 26, 1793. But the eldest sons of Scotch peers may represent any place in England, as many do. (2 Hats. Prec. 12.) The two statutes, 9 Ann. c. 5, and 33 Geo. II. c. 20, requiring knights of shires and members for boroughs to have respectively 600l. and 300l. a year, are expressly confined to England. But a commissioner of a shire must be a freeholder, and it is a general rule that none can be elected, but those who can elect. (Wight, 289.) And till the contrary was determined by a committee of the house of commons in the case of Wigtown in 1775, (2 Doug. 181,) it was supposed that it was necessary that every representative of a borough should be admitted a burgess of one of the boroughs which he represented. (Wight, 404.) It still holds generally true in shires in Scotland, that the qualifications of the electors and elected are the same; or that eligibility and a right to elect are convertible terms. Upon some future occasion I shall endeavour to prove, that, in the origin of representation, they were universally the same in England.—Christian.
[5 ] Since the union, the following orders have been made in the house of Lords respecting the peerage of Scotland. Queen Anne, in the seventh year of her reign, had created James duke of Queensbury, duke of Dover, with remainder in tail to his second son, then earl of Solway in Scotland; and upon the 21st of January, 1708-9, it was resolved by the lords, that a peer of Scotland claiming to sit in the house of peers by virtue of a patent passed under the great seal of Great Britain, and who now sits in the parliament of Great Britain, had no right to vote in the election of the sixteen peers who are to represent the peers of Scotland in parliament.
The duke of Hamilton having been created duke of Brandon, it was resolved by the lords on the 20th of December, 1711, that no patent of honour granted to any peer of Great Britain, who was a peer of Scotland at the time of the union, should entitle him to sit in parliament. Notwithstanding this resolution gave great offence to the Scotch peerage, and to the queen and her ministry, yet a few years afterwards, when the duke of Dover died, leaving the earl of Solway, the next in remainder, an infant, who, upon his coming of age, petitioned the king for a writ of summons as duke of Dover; the question was again argued on the 18th December, 1719, and the claim as before disallowed. (See the argument, 1 P. Wms. 582.) But in 1782 the duke of Hamilton claimed to sit as duke of Brandon, and the question being referred to the judges, they were unanimously of opinion, that the peers of Scotland are not disabled from receiving, subsequently to the union, a patent of peerage of Great Britain, with all the privileges incident thereto. Upon which the lords certified to the king, that the writ of summons ought to be allowed to the duke of Brandon, who now enjoys a seat as a British peer. (6th June, 1782.) But there never was any objection to an English peer’s taking a Scotch peerage by descent; and, therefore, before the last decision, when it was wished to confer an English title upon a noble family of Scotland, the eldest son of the Scotch peer was created in his father’s lifetime an English peer, and the creation was not affected by the annexation by inheritance of the Scotch peerage. On the 13th of February, 1787, it was resolved, that the earl of Abercorn and the duke of Queensbury, who had been chosen of the number of the sixteen peers of Scotland, having been created peers of Great Britain, thereby ceased to sit in that house as representatives of the peerage. (See the argument in Ann. Reg. for 1787, p. 95.) At the election occasioned by the last resolution, the dukes of Queensbury and Gordon had given their votes as peers of Scotland, contrary to the resolution of 1709, in consequence of which it was resolved, 18th May, 1787, that a copy of that resolution should be transmitted to the lord register of Scotland as a rule for his future proceeding in cases of election.
The duke of Queensbury and marquis of Abercorn had tendered their votes at the last general election, and their votes were rejected; but notwithstanding the former resolutions, on 23d May, 1793, it was resolved, that if duly tendered they ought to have been counted.—Christian.
[(e) ] It may justly be doubted whether even such an infringement (though a manifest breach of good faith, unless done upon the most pressing necessity) would of itself dissolve the union: for the bare idea of a state, without a power somewhere vested to alter every part of its laws, is the height of political absurdity. The truth seems to be, that in such an incorporate union (which is well distinguished by a very learned prelate from a fœderate alliance, where such an infringement would certainly rescind the compact) the two contracting states are totally annihilated, without any power of a revival; and a third arises from their conjunction, in which all the rights of sovereignty, and particularly that of legislation, must of necessity reside. (See Warburton’s Alliance, 195.) But the wanton or imprudent exertion of this right would probably raise a very alarming ferment in the minds of individuals; and therefore it is hinted above that such an attempt might endanger (though by no means destroy) the union.
To illustrate this matter a little farther, an act of parliament to repeal or alter the act of uniformity in England, or to establish episcopacy in Scotland, would doubtless in point of authority be sufficiently valid and binding; and, notwithstanding such an act, the union would continue unbroken. Nay, each of these measures might be safely and honourably pursued, if respectively agreeable to the sentiments of the English church, or the kirk in Scotland. But it should seem neither prudent, nor perhaps consistent with good faith, to venture upon either of those steps, by a spontaneous exertion of the inherent powers of parliament, or at the instance of mere individuals.
So sacred indeed are the laws above mentioned (for protecting each church and the English liturgy) esteemed, that in the regency acts both of 1751 and 1765 the regents are expressly disabled from assenting to the repeal or alteration of either these or the act of settlement.
[(f) ] Hale, Hist. C. L. 183. 1 Sid. 382, 462. 2 Show. 365.
[(g) ] Cro. Jac. 543. 2 Roll. Abr. 292. Stat. 11 Geo. I. c. 4. 4 Burr. 834.
[6 ] See the case of the King vs. Cowle, in 2 Burr. 834, where the constitution of the town of Berwick upon Tweed, and, indeed, the prerogative as to dominion extra Great Britain, is very elaborately discussed.—Christian.
[(h) ]Stat. Hiberniæ, 14 Hen. III.
[(i) ] Pryn. on 4 Inst. 249.
[(k) ] 4 Inst. 358. Edm. Spenser’s State of Ireland, p. 1513, edit. Hughes.
[(l) ] Vaugh. 294. 2 Pryn. Rec. 85. 7 Rep. 23.
[(m) ] 1 Inst. 141.
[(n) ]A. R. 30. 1 Rym. Feod. 442.
[(o) ]A. R. 5.—pro eo quod leges quibus utuntur Hybernici Deo detestabiles existunt, et omni juri dissonant, adeo quod leges censeri non debeant;—nobis et consilio nostro satis videtur expediens, eisdem utendas concedere leges Anglicanas. 3 Pryn. Rec. 1218.
[(p) ] Edm. Spenser, ibid.
[(q) ] 20 Hen. VI. 8. 2 Ric. III. 12.
[(r) ] Yearbook 1 Hen. VII. 3, 7. Rep. 22. Calvin’s case.
[(s) ] Irish stat. 11 Eliz. st. 3, c. 8.
[(t) ] Ibid. 10 Hen. VII. c. 23.
[(u) ] Cap. 4, expounded by 3 and 4 Ph. and M. c. 4.
[(w) ] 4 Inst. 353.
[(x) ] Irish stat. 11 Eliz. st. 3, c. 38.
[(y) ] Cap. 2.
[(z) ] 4 Inst. 351.
[(a) ] 12 Rep. 112.
[(b) ] Puff. L. of N. viii. 6, 24. “Grot. de Jus. B. and P. 3, 8.”
[7 ] Prynne, in his learned argument, has enumerated several statutes made in England from the time of king John, by which Ireland was bound. (3 St. Tr. 343.) That was an argument to prove that Lord Connor Maguire, Baron of Inneskillin in Ireland, who had committed treason in that country, by being the principal contriver and instigator of the Irish rebellion and massacre in the time of Car. I., and who had been brought to England against his will, could be lawfully tried for it in the King’s Bench at Westminster by a Middlesex jury, and be ousted of his trial by his peers in Ireland, by force of the statute of 35 Hen. VIII. c. 2.
The prisoner having pleaded to the jurisdiction, the court, after hearing this argument, overruled the plea, and the decision was approved of by a resolution of the two houses of parliament, and Lord Maguire was found guilty, and was afterwards executed at Tyburn as a traitor.—Christian.
[(c) ] This was law in the time of Hen. VIII.; as appears by the ancient book, entituled Diversity of Courts, c. bank le roy.
[(d) ] Vaugh. 402.
[8 ] The following statement of that great and most important event, the union of Great Britain and Ireland, is extracted from the 39 and 40 Geo. III. c. 77.
In pursuance of his Majesty’s most gracious recommendation to the two houses of parliament in Great Britain and Ireland respectively to consider of such measures as might best tend to strengthen and consolidate the connection between the two kingdoms, the two houses of parliament in each country resolved, that, in order to promote and secure the essential interests of Great Britain and Ireland, and to consolidate the strength, power, and resources of the British empire, it was advisable to concur in such measures as should best tend to unite the two kingdoms into one kingdom, on such terms and conditions as should be established by the acts of the respective parliaments in the two countries. And, in furtherance of that resolution, the two houses of each parliament agreed upon eight articles, which, by an address of the respective houses of parliament, were laid before his Majesty for his consideration; and his Majesty having approved of the same, and having recommended it to his parliaments in Great Britain and Ireland to give full effect to them, they were ratified by an act passed in the parliament of Great Britain on the 2d of July, 1800.
Art. I. That the kingdom of Great Britain and Ireland shall, on the first day of January, 1801, and forever after, be united into one kingdom, by the name of the United Kingdom of Great Britain and Ireland; and that the royal style and titles of the imperial crown, and the ensigns, armorial flags, and banners, shall be such as should be appointed by his Majesty’s royal proclamation.
Art. II. That the succession to the imperial crown shall continue settled in the same manner as the succession to the crown of Great Britain and Ireland stood before limited.
Art. III. That there shall be one parliament, styled The Parliament of the United Kingdom of Great Britain and Ireland.
Art. IV. That four lords spiritual of Ireland, by rotation of sessions, and twenty-eight lords temporal of Ireland, elected for life by the peers of Ireland, shall sit in the House of Lords; and one hundred commoners—two for each county, two for the city of Dublin, and two for the city of Cork, one for Trinity College, and one for each of the thirty-one most considerable cities and boroughs—shall be the number to sit in the House of Commons on the part of Ireland.
That questions respecting the rotation or election of the spiritual or temporal peers shall be decided by the House of Lords, and in the case of an equality of votes in the election of a temporal peer, the clerk of the parliament shall determine the election by drawing one of the names from a glass.
That a peer of Ireland, not elected one of the twenty-eight, may sit in the House of Commons; but whilst he continues a member of the House of Commons, he shall not be entitled to the privilege of peerage, nor capable of being elected one of the twenty-eight, nor of voting at such election, and he shall be sued and indicted for any offence as a commoner.
That as often as three of the peerages of Ireland, existing at the time of the union, shall become extinct, the king may create one peer of Ireland; and when the peers of Ireland are reduced to one hundred by extinction or otherwise, exclusive of those who shall hold any peerage of Great Britain subsisting at the time of the union, or created of the united kingdom since the union, the king may then create one peer of Ireland for every peerage that becomes extinct, or as often as any one of them is created a peer of the united kingdom, so that the king may always keep up the number of one hundred Irish peers, over and above those who have an hereditary seat in the House of Lords.
That questions respecting the election of the members of the House of Commons returned for Ireland shall be tried in the same manner as questions respecting the elections for places in Great Britain, subject to such particular regulations as the parliament afterwards shall deem expedient.
That the qualifications by property of the representatives in Ireland shall be the same respectively as those for counties, cities, and boroughs in England, unless some other provision be afterwards made.
Until an act shall be passed in the parliament of the united kingdom providing in what cases persons holding offices and places of profit under the crown of Ireland shall be incapable of sitting in the House of Commons, not more than twenty such persons shall be capable of sitting; and if more than twenty such persons shall be returned from Ireland, then the seats of those above twenty shall be vacated who have last accepted their offices or places.
That all the lords of parliament on the part of Ireland, spiritual and temporal, sitting in the House of Lords, shall have the same rights and privileges respectively as the peers of Great Britain; and that all the lords spiritual and temporal of Ireland shall have rank and precedency next and immediately after all the persons holding peerages of the like order and degree in Great Britain subsisting at the time of the union; and that all peerages hereafter created of Ireland, or of the united kingdom, of the same degree, shall have precedency according to the dates of their creations; and that all the peers of Ireland, except those who are members of the House of Commons, shall have all the privileges of peers as fully as the peers of Great Britain, the right and privileges of sitting in the House of Lords, and upon the trial of peers, only excepted.
Art. V. That the churches of England and Ireland be united into one protestant-episcopal church, to be called The United Church of England and Ireland; that the doctrine and worship shall be the same; and that the continuance and preservation of the united church as the established church of England and Ireland shall be deemed an essential and fundamental part of the union; and that, in like manner, the church of Scotland shall remain the same as is now established by law and by the acts of union of England and Scotland.
Art. VI. The subjects of Great Britain and Ireland shall be entitled to the same privileges with regard to trade and navigation, and also in respect of all treaties with foreign powers.
That all prohibitions and bounties upon the importation of merchandise from one country to the other shall cease.
But that the importation of certain articles therein enumerated shall be subject to such countervailing duties as are specified in the act.
Art. VII. The sinking-funds and the interest of the national debt of each country shall be defrayed by each separately. And, for the space of twenty years after the union, the contribution of Great Britain and Ireland towards the public expenditure in each year shall be in the proportion of fifteen to two, subject to future regulations.
Art. VIII. All the laws and courts of each kingdom shall remain the same as they are now established, subject to such alterations by the united parliament as circumstances may require; but that all writs of error and appeals shall be decided by the House of Lords of the united kingdom, except appeals from the court of admiralty in Ireland, which shall be decided by a court of delegates appointed by the court of chancery in Ireland.
The statute then recites an act passed in the parliament of Ireland, by which the rotation of the four spiritual lords for each sessions is fixed; and it also directs the time and mode of electing the twenty-eight temporal peers for life; and it provides that sixty-four county members shall be elected, two for each county, two for the city of Dublin, two for the city of Cork, one for Trinity College, Dublin, and one for each of thirty-one cities and towns which are there specified, which are the only places in Ireland to be represented in future. One of the two members of each of those places was chosen by lot, unless the other withdrew his name, to sit in the first parliament; but at the next elections one member only will be returned.
An Irish peer is now entitled to every privilege except that of sitting in the House of Lords, unless he chooses to waive it, in order to sit in the House of Commons; and therefore Irish peers, who are not members of the House of Commons, are entitled to the letter missive from the court of chancery, when a bill is filed against them. 8 Ves. Jun. 601.—Christian.
[(e) ] 4 Inst. 284. 2 And. 116.
[(f) ] Selden, tit. hon. 1, 3.
[(g) ] Camden, Eliz. ad 1594.
[(h) ] 1 P. Wms. 329.
[(i) ] The bishopric of Man, or Sodor, or Sodor and Man, was formerly within the province of Canterbury, but annexed to that of York, by statute 33 Hen. VIII. c. 31.
[(k) ] 4 Inst. 286.
[(l) ] Salk. 411, 666.
[(m) ] 2 P. Wms. 75.
[9 ] 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, 638:) so the 5 & 6 Ed. VI. c. 16, as to sale of offices, do not extend to Jamaica. 4 Mod. 222.—Chitty.
[10 ] 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. Cowp. 204.—Christian.
What the king may or may not do, by virtue of his prerogative, with reference to a conquered or ceded country, is very elaborately discussed, (Chalm. Opin. 169.)—Chitty.
[(n) ] 7 Rep. 17, Calvin’s case. Show. Parl. c. 31.
[11 ] Sir William Blackstone considered the British colonies in North America as ceded or conquered countries, and thence concluded that the common law in general had no allowance or authority there. But this was an error. The claim of England to the soil was made by her in virtue of discovery, not conquest or cession. The aborigines were considered but as mere occupants, not sovereign proprietors; and the argument for the justice of taking possession and driving out the natives was rested upon the ground that a few wandering hordes of savages had no right to the exclusive possession and enjoyment of the vast and fertile regions which were opened for the improvement and progress of civilized man by the discovery of the New World. “On the discovery of this immense continent,” said C. J. Marshall, in Johnson vs. McIntosh, 8 Wheaton, 582, “the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the Old World found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the New by bestowing on them civilization and Christianity in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects or by whose authority it was made, against all other European governments, which title might be consummated by possession.
“The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which by others, all assented.
“Those relations which were to exist between the discoverer and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.
“In the establishment of these relations, the rights of the original inhabitants were in no instance entirely disregarded, but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty as independent nations were necessarily diminished, and their power to dispose of the soil at their own will to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.”
It follows, then, that the true principle as regards the British colonies in this country, which subsequently became the United States, is that which the learned commentator has recognised to be the rule of new settlements:—“That if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately 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.”
This expresses accurately and fully the well-settled and repeatedly recognised doctrine of the American courts upon the subject of the extension of the English common law and statutes to this country. Our ancestors brought with them only such parts of the laws of England as were adapted to their new condition, and, we may add as quite important, such only as were conformable to their principles. The original settlers of this country belonged to a stock of men whose history exhibited in a remarkable manner the ascendency of moral and religious principles, and who were deeply imbued with notions of the right of men to live under governments of their own choice. All the great safeguards of political liberty which were consecrated in England about that period or subsequently, by the Bill of Rights and Act of Settlement, were received and held by them as fundamental to all free government. Not only so, but their ideas on religious freedom, on the administration of criminal law, and on the process and pleading in courts, were simple, just, and humane. There never was an order of provincial nobility, nor, with one or two unimportant exceptions, an established clergy, in any of the colonies. Thus, not only in regard to the common law, but as to the statutes in force at the time of their settlement, some parts were adopted, some entirely rejected, and some adopted with important modifications. Some British statutes passed subsequent to that date were in some cases silently adopted, without express legislation: the lawyers of the old colonies, having either been educated in England, or deriving their ideas from English books, adopted and introduced into general practice and understanding such improvements as they found to be convenient.
Equally false is the doctrine asserted that these colonies were subject to the control of the parliament. The colonies were never represented in that body; and although the charters were derived from the crown, and all admitted a common allegiance to the same sovereign, it did not therefore follow that they were subject to the legislative authority of the English people. The great principle successfully maintained by the American Revolution was that taxation and representation are inseparable. And although in the early part of the struggle the Americans were ready to concede the power, provided it was used merely for the purpose of regulation, and not for revenue, before the struggle closed all such distinctions were repudiated. It was clearly seen and argued that no such power over the fortunes and industry of the people of the colonies could with safety be trusted to a legislature at so great a distance, in which they had no voice, which could feel no sympathy for them, and was without that accurate and intimate acquaintance with their character, pursuits, and resources, which is necessary to the wise and impartial exercise of such a power.—Sharswood.
[12 ] Of the American colonies which subsequently became the United States, New Hampshire, New York, New Jersey, Virginia, the Carolinas, and Georgia, were provincial establishments at the period of the Revolution; Maryland, Pennsylvania, and Delaware were proprietary governments; and Massachusetts, Rhode Island, and Connecticut were charter governments.
Mr. Justice Story remarks (1 Com. on the Const., 145) that Blackstone’s description of charter governments is by no means just or accurate. They could not be justly considered as mere civil corporations of the realm, empowered to pass by-laws; but rather as great political establishments or colonies, possessing the general powers of government and rights of sovereignty, dependent indeed and subject to the realm of England, but still possessing within their own territorial limits the general powers of legislation and taxation.—Sharswood.
[13 ] 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. And 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 3d day of September, 1783, his Britannic majesty acknowledges the United States of America to be free, sovereign, and independent States. (Ann. Regist. 1783: State Papers.) 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.—Christian.
[(o) ] Stat. 12 and 13 Will. III. c. 3.
[(p) ] Co. Litt. 260.
[14 ] The reason given in the text for the dominion of England over the high seas is clearly insufficient; for the courts of admiralty of all nations have jurisdiction thereon. It is now a well-established and recognised principle of international law that no nation has any exclusive dominion over the high seas, which are the highway of all nations, and are subject not to the jurisdiction of any particular country, but to the public law of the whole civilized world. However, the rightfulness of exclusive dominion over the high seas was maintained by Selden in his Mare clausum, and controverted by Grotius in his Mare liberum; and England has long claimed such a right over the four seas surrounding the British Isles. Every nation has nevertheless exclusive dominion over the sea within a certain distance of her shores,—usually agreed to be as far as a cannon-shot will reach from the land, or a marine league. It has been thought that the United States, owing to her extensive Atlantic coast, has a right to claim all within a line drawn from one headland to another: at least, that she may well claim that the neighbouring ocean within that distance from her shores shall enjoy immunity from the hostilities of other nations. In 1806, the government of the United States thought it would not be unreasonable, considering the extent and shoalness of the coast and the natural indication furnished by the well-defined path of the Gulf Stream, to expect an immunity from belligerent warfare for the space between that limit and the American shore. 1 Kent’s Com. 30. Bowyer’s Const. Law, 30.—Sharswood.
[(q) ] Finch, L. 78.
[(r) ] Co. Litt. 94.
[(s) ] Gibson’s Britain.
[(t) ] Seld of Tith. 9, 4. 2 Inst. 646. Hob. 296.
[(u) ] In his Britannia.
[(w) ] Hob. 296.
[(x) ] Of tithes, c. 9.
[(y) ]C. 1.
[(z) ] Ibid. c. 2. See also the laws of King Canute, c. 11, about the year 1030.
[(a) ] 2 Inst. 647. 2 Rep. 44. Cro. Eliz. 512.
[15 ] 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.
[(b) ]Flet. 1, 47. This the laws of king Edward the Confessor, c. 20, very justly entitled, “summa et maxima securitas, per quam omnes statu firmissimo sustinentur;—quse hoc modo fiebat, quod sub decennali fidejussione debebant esse universi, &c.”
[(c) ] Mirr. c. 1, 3.
[(d) ] Finch, L. 8.
[(e) ] 1 Inst. 115.
[16 ] Westminster was one of the new bishoprics created by Henry VIII. out of the revenues 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. Fœd. 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, almæ matri academiæ 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.
[(f) ] Co. Litt. 109.
[(g) ] Litt. 164.
[(h) ] 1 Inst. 116.
[(i) ] 14 Edw. I.
[(k) ] Gloss. 274.
[(l) ] Seld. in Fortesc. c. 24.
[17 ]Et quod Angli vocant hundredum, comitatus Yorkshire, Lincolnshire, Nottinghamshire, Leicestershire, et Northamptonshire, vocant wapeniachium. (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.
[(m) ] Seld. tit. of honour, 2, 5, 3.
[(n) ] Montesq. Sp. L. 30, 17.
[(o) ] Tacit. de Morib. German. 6.
[(p) ]Ll. Edw. c. 34.
[(q) ] Seld. tit. hon. 2, 5, 8.
[(r) ]Pat. 25 Edw. III. p. 1, m. 18. Seld. ibid. Sandford’s [Editor: Illegible word] 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.
[(z) ] 4 Inst. 205.
[(a) ] 215.
[(b) ] 4 Inst. 205.
[(c) ]Parl. 2 Hen. V. n. 30. 3 Hen. V. n. 15.
[(d) ] 1 Ventr. 155.
[(e) ] 1 Ventr. 157.
[(f) ] 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 patrmony, 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 resumption,) 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.
[(g) ] 4 Inst. 220.
[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.