land, the tithes whereof were so appropriated, formed a dis.. tinct 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 (35), 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 forest and desert places, or for other now unsearchable reasons, were never united to any parish, and therefore continue to this day extraparochial; and their tithes are now by immemorial custom payable to the king instead of the bishop, in trust and confidence that he will distribute them for the general good of the church (a): yet 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. Civil division of the territory of England, 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, who, to prevent *the [ *114 ] rapines and disorders which formerly prevailed in the realm, instituted tithings, so called from the Saxon, because ten freeholders, with their families, composed one (36). 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 (a) 2 Inst. 647; 2 Rep. 44; Cro. Eliz. 512. (35) See Vol. 2, p. 28. (36) See Vol. 4, pp. 252, 273. Our author, like many other writers, refers most of our leading institutions to Alfred. "the But Palgrave, in the first Vol. on the Rise and Progress of the English Commonwealth, p. 46, says, authentic code of the legislature does not support these assertions. The laws of Alfred abound in valuable regula tions of criminal jurisprudence, but Tithings. committed in their district, they were bound to have the offender forthcoming (b). And therefore antiently 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 over the rest, being called the tithing-man, the headborough, (words which speak their own etymology), and in some countries the borsholder, or borough's-ealder, being supposed the discreetest man in the borough, town, or tithing (d). Tithings, towns, or vills (37), 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 bishoprick be dissolved, as at Westminster (38), yet still it re (b) Flet. 1. 47. This the laws of King Edward the Confessor, c. 20, very justly intitle" summa et maxima securitas, per quam omnes, statu firmissimo sustinentur ;-quæ hoc modo fiebat, quod (37) The 13 & 14 Car. II. c. 12, provides that when a parish is so large that it cannot have the benefit of the overseers and provision for the poor, appointed by the 43 Eliz. c. 2, two overseers may be appointed for every township or village in such parish. In this statute the words township and village have always been thought synonymous. But it has been held, that wherever there is a constable there is a township. (1 T. R. 376). Parishes in some counties, as in part of Bedfordshire, are divided into tithings. (2 Luders, 511).—CH. (38) Westminster was one of the new bishopricks 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. sub decennali fidejussione debebant esse universi, &c." (c) Mirr. c. 1, § 3. Com. de Præf. 570): he surrendered the bishoprick to Ed. VI. 30th March, 1550, and on the same day it was dissolved and added again to the bishoprick 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 bishoprick, 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 maineth a city (f). A borough is now understood to be a town, either corporate or not, that sendeth burgesses to parliament (g) (39). Other towns there are, to the number, Sir (f) Co. Litt. 109. 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 antient 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 connexion 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. (1Woodd. 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.-CH. (39) The present generation has witVOL. I. L (g) Litt. § 164. nessed a revolution in this important branch of our constitution. All ab stract principle is in favour of the change which has been made; and sound abstract principles cannot but be beneficial in their practical operation, if they are carried into effect honestly and completely. The best principles, no doubt, may be perverted; but any evil which may arise, in such cases, must be attributed, not to the principles themselves, but to their perversion. By substituting real, in the room of nominal, representation, the preponderance of political power is now in the hands of the people, and it is possible that this democratic ascendancy may be so abused as to become a greater curse to the nation, than the sway of a selfish oligarchy: this, however, is by no means to be assumed as certain; and mere assertion will not establish even its probability. Under the old system of nomination to seats in the house of commons, the country has been saddled with eight hundred millions of debt:-it will be difficult for the most indiscreet elected parliament to work so much mischief; though it is not denied that the mischief was qualified by some compensating circumstances; (see post, p. 328, n.); the partiality of the old system of (what was miscalled) representation, cannot be denied by any one who respects veracity: the danger of a widely extended participation of power, is a speculative question, as to which, they who are still sore under the destruction of their former exclusive privileges, cannot be dispassionate judges: and they are little less disqualified who had hopes that such privileges would be exercised in their favour. (See ante, the notes to pp. 51, 52, and 67; and post, 147, n. 2). 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 [115] *hamlets, 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. Hundreds. As ten families of freeholders made up a town or tithing, so ten tithings composed a superior division, called a hundred, as consisting of ten times ten families. The hundred is governed by an high constable, or bailiff, and formerly there was regularly held in it the hundred court for the trial of causes, though now fallen into disuse. In some of the more northern counties these hundreds are called wapentakes (7) (40). 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 offi cer called the count or comes (n). And *indeed something [*116 ] 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 the territory itself might probably 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 Counties, 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 (41), 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 a-piece. 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 antiently governed by a trithing-reeve. These trithings still subsist in the large county of York, where, by an easy corruption, they are denominated ridings; the north, the east, and the west riding. The number of counties in England and Wales have been different at different times: at present they are forty in England, and twelve in Wales. Three of those counties, Chester, Durham, and Lancaster, Counties palatine. are called counties palatine. The two former are such by (n) Montesq. Sp. L. 30, 17. (41) See post, pp. 339, 343. |