« PreviousContinue »
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, or an appeal from chancery there to the house of lords here; it being expressly declared by the same statute, that the peers of Ireland have no jurisdiction to affirm or reverse any judgments or decrees whatsoever. Although justice be in general administered in the courts of the inferior jurisdiction, yet an appeal in the last resort ought to be to the courts of the superior state, because otherwise the law in such inferior dominion might be insensibly changed within itself, without the assent of the superior, and because otherwise judgments might be given to the disadvantage of the superior, or to make the dependence to be only of the person of the king and not of the crown of England.
Isle of Man. This is a distinct territory from England, and is not governed by English laws, neither does any act of parliament extend to it, unless it be specially named therein. It was formerly a subordinate feudatory kingdom, subject to the king 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.
Other Islands. The islands of Guernsey, Jersey, Sark and Alderney 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. They are not bound by acts of parliament, unless particularly named.
Foreign Colonies. These are also in some respects subject to the English laws. Colonies, like the American plantations, in distant countries, are either those, where the lands are claimed by the right of occupancy only, or 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 by treaties. These rights are founded upon the law of nature, or at least upon that of nations.
Uninhabited Countries. Where these are 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. This rule is subject to many restrictions. Such subjects 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 as the general rules of inheritance and of protection from personal injuries. The artificial distinctions incident to the property of a great and commercial people, the laws of police and revenue and many other provisions are unnecessary for them, and hence not in force. What shall be admitted and what rejected, must in the first instance be decided 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 reformed by the legislature in the mother country.
Conquered and Ceded Countries. These have already laws of their own, which may be altered and changed by the king, until which time the ancient laws of the country remain, unless against divine law. Our American plantations are not subject to the common law of England, they being no part of the mother country, but distinct, though dependent dominions. They are subject, however, to the control of the parliament, though not bound thereby, unless particularly named.
Interior Polity of the Colonies. These are of three sorts: (1) Provincial establishments, the constitutions of which depend on the respective commissions issued by the crown to the governors, and the accompanying instructions, under which provincial assemblies are constituted, with the power of making proper local ordinances. (2) Proprietary governments, granted by the crown to individuals, in the nature of feudatory principalities, with the subordinate powers of legislation, such as once belonged to counties-palatine. (3) Charter governinents, in the nature of civil corporations, with the power of making by-laws for their own interior regulation, not contrary to the laws of England, and with such rights, as are given them in their several charters of incorporation. They have a governor named by the king, and courts of justice of their own, from whose decisions an appeal lies to the king and council in England. Their general assemblies, which is their house of commons, with their council of state constitute their upper house, which with the concurrence of their governor make suitable laws. By statute, all of the
. king's colonies in America are subordinate to and dependent upon the crown and parliament of Great Britain, which have full power to make laws to bind them, as subjects of England.
King's Private Dominions. As to any foreign possessions, which may belong to the person of the king by hereditary descent, by purchase or other acquisition, as the territory of Hanover, they are entirely unconnected with the laws of England. Happily the Norman possessions were lost to England in the reign of Henry VI, after nearly four hundred years of ruinous wars for their defence. A statute now exists, that in case the crown shall hereafter come to a person not being a native of England, the nation shall not be obliged to wage war for the defence of any dominions, which do not belong to the crown of England, without consent of parliament.
Jurisdiction over the Sea. The main or high seas are part of the realm of England, for thereon the courts of admiralty have jurisdiction, but they are not subject to the common law. The main sea begins at the low water mark. But between the high water mark and the low water mark, where the sea ebbs and flows, the common law and admiralty have an alternate jurisdiction; one upon the water, when it is full sea, the other upon the land, when it is an ebb. TERRITORY OF ENGLAND.
Divisions. Ecclesiastical and civil.
1. Ecclesiastical. Two provinces, Canterbury and York. A province is the circuit of an archbishop's jurisdiction. Each province contains divers dioceses or sees of bishops, whereof Canterbury has twenty-three and York three, besides that of the Isle of Man, which was annexed to York by Henry VIII. Every diocese is divided into archdeaconries, of which there are sixtythree in all; each archdeaconry into rural deaneries, and every deanery into parishes.
Parishes. A parish is that circuit of ground, which is committed to the charge of one parson or vicar, having care of souls therein. There are about ten thousand of these districts. In the early ages of Christianity, parishes were unknown. There was no appropriation of ecclesiastical dues to any particular church, but one could contribute his tithes to any priest or church be pleased, provided he did it to some, otherwise it was left with the bishop for distribution among the clergy, and for other pious purposes, at his discretion. Some forest and desert lands were not within the limit of parishes, and hence were termed extra-parochial. These tithes were paid to the king and not to the bishop.
2. Civil. The civil division of the territory of England is into counties. These are subdivided into hundreds, and the latter into tithings or towns.
Tithings. Ten freeholders with their families originally composed a tithing. These all dwelt together, and were sureties to the king for the good behavior of each other. If av offence was committed in their district, they were bound to have the offender forthcoming. Anciently no man was suffered to remain in England over forty days, unless he was enrolled in some tithing. Tithings, towns or vills mean the same in law. A city is a town incorporated, which is or has been the see of a bishop. To several of these towns, there are small appendages belonging, called hamlets. Hundreds. Ten tithings composed a superior division,
. called a hundred, which was governed by a high constable or bailiff, in which formerly was held the hundred court. Alfred originated these divisions, borrowing the idea from Denmark and France.
Counties or Shires. An indefinite number of these hundreds make up a county or shire. Shire is a Saxon word, meaning a division ; but a county, comitatus, is derived from comes, the count of the Franks, that is the earl or alderman of the shire, to whom its government was intrusted. This he usually exercised by his deputy, the sheriff, or shire-reeve, signifying the officer of the shire, upon whom the civil administration of it now entirely devolves. At present there are forty counties in England and twelve in Wales. Three of these counties, Chester, Durham and Lancaster are called counties-palatine, and had peculiar privileges. There are also counties corporate, which are certain cities and towns, that by special favor are counties of themselves, and not comprised in any county, but are governed by their own magistrates.
LAWS OF ENGLAND.
We shall consider the rights that are commanded, and then the wrongs that are forbidden by the laws of England.
Rights. Rights may be subdivided, into those which concern and are annexed to the persons of men, and are termed jura personarum, the rights of persons; or into such as a man may acquire over external objects, which are entitled jura rerum, the rights of things.
Wrongs. Wrongs are divisible into private wrongs, which being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and secondly, public wrongs, which being a breach of general and public rights, affect the whole community, and are called crimes and misdemeanors.
DIVISION OF THESE COMMENTARIES.
1. The rights of persons, with the means whereby such rights may be either acquired or lost.
2. The rights of things, with the means also of acquiring or losing them.
3. Private wrongs or civil injuries, with the means of redressing them by law.
4. Public wrongs, or crimes and misdemeanors, with the means of prevention and punishment.