desart 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": yet extraparochial 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. (11) 2. THE Civil division of the territory of England is into [115] 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 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. 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 coun (11) Though from the preamble of the statute it might be inferred that the legislature intended to make drained extra-parochial lands rateable in the parish next adjoining, yet the enacting part embraces in its terms only lands, respecting which there is a dispute or uncertainty in what parish they lic, and ought to be rated. It may be a question, therefore, whether it applies to such lands if clearly extra-parochial, especially as there is no provision in the statute for relieving or settling the poor in such districts. tries the borsholder, or borough's ealder, being supposed the discreetest man in the borough, town, or tithing. (12) Finch. L. 8. ̧(12) It is questionable whether this dívision of England is properly attributable to Alfred, whose real services to his country were so great, that it is no wonder, if many things obscure in their origin are falsely ascribed to him. Counties or shires, governed by aldermen and shire-reeves, may be traced to an age prior to that of Alfred; hundreds are so very unequal in size, that it seems difficult to suppose them formed at any one time, or upon any one principle; and though there may have been some subdivision of hundreds in the time of Alfred, or made by him, yet as the peculiar systems of tithings, and frankpledges, were probably contemporaneous, the latter being that which gives a principle and object to the former, it should seem that tithings must have been later than his time, because it can be shewn. that it was not till much later that the system of frankpledges took a settled form and consistency. The system of frankpledges has been very well deduced and described by Mr. Hallam- it is laid down somewhat too absolutely in the text, that the free pledges were bound to have the offender forth-coming. The law of the Confessor cited in the margin, states the whole matter shortly and yet fully. From which it appears that if a delinquent fled, the tithing had thirty-one days to pursue and produce him, during which time if he were found, he suffered in purse or person for his offence. If not, the head of the tithing (friborges heofod) was to take two of the most respectable members, and the heads of the three neighbouring tithings with two of the most respectable members of each, and these twelve, in the nature of compurgators, were to clear the tithing, if possible, from all participation in the crime or flight of the delinquent. If they failed in this, then the compensation was to be paid first out of the goods of the delinquent, and on failure of them by the tithing at large. And when this was done, the three representatives of the tithing were still bound to swear that they would bring the offender to justice whenever they could, or disclose his retreat when they should discover it. It is remarkable that with this law of frankpledge under their observation, intituled Friborges, and translated frankpledges, our legal antiquarians should ever have been under any difficulty as to the derivation of the word borough. In the laws of Canute, c. 28. it is said that each master of a family is to have his domestic servants under his own bail, pledge, or responsibility; the expression is "his hired men on his agenum borge,” in propriá fide-jussione. Meyer observes that bürge in German, and borg in Dutch, now signify a pledge or bail. It can hardly be doubted, therefore, that a friborgh, free borough, or borough, meant merely that assemblage of inhabitants in one vill, mutually responsible at the same court for each other's good conduct. See Hallam Midd. Ages, ch. viii. p. 1. Meyer, vol. i. pp. 131. 138. Merewether's W. Looc case, p. 72. 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: 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, yet still it remaineth a city. (13) A borough is now understood to be a town, either corporate or not, that sendeth burgesses to parliament. Other towns there are, to the number, sir Edward Coke says", 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 [116] there are small appendages belonging, called hamlets, which are taken notice of in the statute of Exeter', which makes frequent mention of entire vills, demi-vills, and hamlets. Entire vills sir Henry Spelman 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 1 Inst. 115. f Co. Litt. 109. & Litt. § 164. k h Co. Litt. 116. I 14 Edw. I. * Gloss. 274. (13) It is curious that the name of Westminster did not suggest to the author a doubt of the accuracy of his definition of a city, because it is not incorporate, nor did it become a city by being the see of a bishop, being expressly so created by the letters patent of Henry the VIII., by which it was also erected into a bishoprick. The fact is, that every city in England is or has been the see of a bishop, but it is not true that every place which has been the see of a bishop, is or was a city. The coincidence between our ́present cities and the sees of existing or dissolved bishopricks, may be accounted for by the decree which Ingulphus mentions as made by a council held in England, in 1072, by which bishops' sees were transferred from towns to cities. See 1 Woodd. Lect. 502. Hargrave's notes, 125, 124. to Co. Litt. 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 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'. 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 DenmarkTM and we find ' that in France a regulation of this sort was made about 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 [117] comes". And indeed something like this institution of hundreds may be traced back as far as the antient 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 it's 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 °." 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 Seld. in Fortesc. c. 24. n Montesq. Sp. L. 30. 17. Tacit. de morib. German. 6. 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, 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 westriding. 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 the Norman conquest: the latter was created by king Edward III. in favour of Henry Plantagenet, first earl and then duke of Lancaster'; whose heiress being married to John [118] of Gant the king's son, the franchise was greatly enlarged and confirmed in parliament', to honour John of Gant himself, whom, on the death of his father-in-law, the king had also created duke of Lancaster'. 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". 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 PLL. Edw. c. 34. 4 Seld. tit. hon. 2. 5. 8. 'Pat. 25 Edw. III. p. 1. m. 18. Seld. ibid. Sandford's gen. hist. 112. $ Cart. 36 Edw. III. n. 9. Pat. 51 Edw. III. m. 33. 215. 7 Rym.138. 1.3. c. 8. § 4. Plowd. |