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and not, as in other places, contra pacem domini regis. And indeed by the antient law, in all peculiar jurif dictions, offences were faid to be done againft his peace in whofe court they were tried: in a court-leet, contra pacem domini; in the court of a corporation, contra pacem ballivorum: in the fheriff's court or tourn, contra pacem vice-comitis. Thefe palatine privileges (fo fimilar to the regal independent jurifdictions ufurped by the great barons on the continent, during the weak and infant ftate of the firft feodal kingdoms in Europe 3) were in all probability originally granted to the counties of Chefter and Durham, because they bordered upon inimical countries, Wales and Scotland: in order that the inhabitants having juftice administered at home, might not be obliged to go out of the county, and leave it open to the enemy's incurfions; and that the owners being encouraged by fo large an authority, might be the more watchful in its defence. And upon this account also there were formerly two other counties palatine, Pembrokeshire and Hexhamfhire; 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, likewife, the powers before mentioned of owners of counties palatine were abridged; the reafon for their continuance in a manner ceafing though ftill all writs are witneffed in their names, and all forfeitures for treason by the common law accrue to them *.

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Of these three, the county of Durham is now the only one remaining in the hands of a subject. For the earldom of Chefter, as Camden teftifies, was united to the crown by Henry III, and has ever fince given title to the king's eldeft fon. And the county palatine, or duchy, of Lancafter was the property of Henry of Bolingbroke, the fon of John of Gant, at the time when he wrefted the crown from king Richard II, and affumed the ftile of king Henry IV. But

I 4 Inft. 204.

2 Seld. in Heng. Magn. c. 2.

3 Robertfon, Cha. V. i. 60.

4

4 Inft. 205.

he was too prudent to fuffer this to be united to the crown; left if he loft one, he fhould lofe the other alfo. For, as Plowden and fir Edward Coke obferve," he knew he had the duchy of Lancaster by fure and indefeafible title, but that his title to the

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crown was not fo affured: for that after the de"ceafe of Richard II the right of the erown was in "the heir of Lionel duke of Clarence, fecond son of Edward III; John of Gant, father to this "Henry IV, being but the fourth fon." And therefore he procured an act of parliament, in the firft year of his reign, ordaining that the duchy of Lancafter, and all other his hereditary eftates, with all their royalties and franchises, fhould remain to him and his heirs for ever; and fhould remain, defcend, be adminiftered, and governed, in like manner as if he never had attained the regal dignity: and thus they defcended to his fon and grandfon, Henry V and Henry VI; many new territories and privileges being annexed to the duchy by the former. Henry VI being attainted in 1 Edw. IV, this duchy was declared in parliament to have become forfeited to the crown, and at the fame time an act was made to incorporate the duchy of Lancafter, to continue the county palatine (which might otherwife have determined by the attainder,) and to make the fame parcel of the duchy: and, farther, to veft the whole in king Edward IV and his heirs, kings of England, for ever; but under a feparate guiding and governance from the other inheritances of the crown.

And in

1 Hen. VII another act was made, to resume such part of the duchy lands as had been difmembered from it in the reign of Edward IV, and to veft the inheritance of the whole in the king and his heirs for ever, as amply and largely, and in like manner,

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form, and condition, feparate from the crown of England and poffeffion of the fame, as the three Henries and Edward. IV, or any of them, had and held the fame 9.

The ifle of Ely is not a county palatine, though fometimes erroneoufly called fo, but only a royal franchise: the bishop having, by grant of king Henry the firft, jura regalia within the ifle of Ely; whereby he exercises a jurifdiction over all causes, as well criminal as civil°.

There are alfo counties corporate: which are certain cities and towns, fome with more, fome with less territory annexed to them; to which out of fpecial grace and favour the kings of England have granted the privilege to be counties of themselves, and not to be comprized in any other counties; but to be governed by their own fheriffs and other magiftrates, fo that no officers of the county at large have any power

And,

9 Some have entertained an opinion (Plowd. 220, 1, 2. Lamb. Archeion. 233. 4 Inft. 206.) that by this act the right of the duchy vefted only in the natural, and not in the political person of king Henry VII, as formerly in that of Henry IV; and was defcendible to his natural heirs, independent of the fucceffion to the crown. 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 obfervable, that in the fame act the duchy of Cornwall is alfo vefted 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 feens to have been un

VOL. I.

derstood very early after the statute of Henry VII, that the duchy of Lancafter was by no means thereby made a separate inheritance from the rest of the royal patrimony; fince it defcended, with the crown, to the half-blood in the inftances of queen Mary and queen Elizabeth: which it could not have done, as the eftate of a mere duke of Lancaster, in the common course of legal defcent. The better opinion therefore feems to be that of thofe judges, who held (Plowd. 221) that notwithstanding the statute of Hen. VII (which was only an act of refumption) the duchy ftill remained as established by the act of Edward IV; feparate. from the other poffeffions of the crown in order and government, but united in point of inheri

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to intermeddle therein. Such are London, York Bristol, Norwich, Coventry, and many others. And thus much of the countries fubject to the laws of England.

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COMMENTARIES

ON THE

LAWS OF ENGLAND..

BOOK THE FIRST.

OF THE RIGHTS OF PERSONS.

CHAPTER THE FIRST.

OF THE ABSOLUTE RIGHTS OF INDIVIDUALS..

THE

HE objects of the laws of England are fo very numerous and extenfive, that in order to confider them with any tolerable eafe and perfpicuity, it will be neceffary to diftribute them methodically, under proper and diftinct heads; avoiding as much as poffible divifions too large and comprehenfive on the one hand, and too trifling and minute on the other; both of which are equally productive of confufion.

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