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peace, and not, as in other places, contra pacem domini regis". And indeed by the antient 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. 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) 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 country, 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 it's defence. And upon this account also there were formerly two other counties palatine, Pembrokeshire 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 [119] 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 2.

Or these three, the county of Durham in 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 Gant, at the time when he wrested the crown from king Richard II., and assumed the title of king Henry IV. prudent to suffer this to be united to the lost one, he should lose the other also.

But he was too crown; lest, if he For, as Plowden a

and sir Edward Coke observe," he knew he had the duchy "of Lancaster by sure and indefeasible title, but that his title

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"to the crown was not so assured: for that after the decease " of Richard II., the right of the crown was in the heir of "Lionel duke of Clarence, second son of Edward III.; John " of Gant, 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 for ever; 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. Henry VI. being attainted in 1 Edw. IV., this duchy was declared in parliament to have become forfeited to the crown, 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, for ever; but under a separate guiding and governance from the other in [120] heritances of the crown. And in 1 Hen. VII. another act was made, to resume such part of the duchy lands as had been dismembered from it in the reign of Edward IV., and to vest the inheritance of the whole in the king and his heirs for ever, 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.

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were well founded, it might have be-
come 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 inherit-
ance of the crown. And indeed it
seems to have been understood very early

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 ".

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.

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 patrimony; since it descended with the crown to the halfblood 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 there

fore seems to be that of those judges, who held (Plowd. 221.) that notwithstanding the statute of Hen. 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.

4 Inst. 220.

1

COMMENTARIES

ON THE

LAWS OF ENGLAND.

BOOK THE FIRST.

OF THE RIGHTS OF PERSONS.

CHAPTER THE FIRST.

OF THE ABSOLUTE RIGHTS OF

INDIVIDUALS.

THE objects of the laws of England are so very numerous and extensive, that in order to consider them with any tolerable ease and perspicuity, it will be necessary to distribute them methodically, under proper and distinct heads; avoiding as much as possible divisions too large and comprehensive on the one hand, and too trifling and minute on the other; both of which are equally productive of confusion.

Now, as municipal law is a rule of civil conduct, com- [122] manding what is right, and prohibiting what is wrong; or as Cicero' and after him our Bracton b, have expressed it, sanctio justa, jubens honesta et prohibens contraria (1); it follows, 211 Philipp.12.

b. 1. c.3.

(1) Cicero's words are, recta et a numine Deorum tracta ratio, imperans

[123]

that the primary and principal objects of the laws are RIGHTS and WRONGS. In the prosecution therefore of these commentaries, I shall follow this very simple and obvious division; and shall in the first place consider the rights that are commanded, and secondly the wrongs that are forbidden, by the laws of England.

RIGHTS are however liable to another subdivision; being either, first, those which concern and are annexed to the persons of men, and are then called jura personarum or the rights of persons; or they are, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are styled jura rerum or the rights of things. (2) Wrongs also are divisible into, first, 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 misdemesnors.

THE objects of the laws of England falling into this fourfold division, the present commentaries will therefore consist of the four following parts: 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 and losing them. 3. Private wrongs, or civil injuries; with the means of redressing them by law. 4. Public wrongs, or crimes and misdemesnors; with the means of prevention and punishment.

We are now, first, to consider the rights of persons: with the means of acquiring and losing them.

Now the rights of persons that are commanded to be observed by the municipal law are of two sorts: first, such as are due from every citizen, which are usually called civil

(2) As the author explains his division of rights of persons and rights of things, the inaccuracy of the terms is of less consequence; it is clear that the connection intended between persons and rights and things and rights is different.

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