SECTION THE FOURTH.
OF THE COUNTRIES SUBJECT TO THE LAWS OF
THE kingdom of England, over which our municipal
laws have jurisdiction, includes not, by the common law, either Wales,
Scotland, or Ireland, or any other part of the king's dominions, except the
territory of England only. And yet the civil laws and local customs of this
territory do now obtain, in part or in all, with more or less restrictions, in
these and many other adjacent countries; of which it will be proper first to
take a view, before we consider the kingdom of England itself, the original and
proper subject of these laws.
Wales had continued independent of England, unconquered and
uncultivated, in the primitive pastoral state which Caesar and Tacitus ascribe
to Britain in general, for many centuries; even from the time of the hostile
invasions of the Saxons, when the ancient and Christian inhabitants of the
island retired to those natural intrenchments, for protection from their pagan
visitants. But when these invaders themselves were converted to christianity,
and settled into regular and potent governments, this retreat of the antient
Britons grew every day narrower; they were over-run by little and little,
gradually driven from one fastness to another, and by repeated losses abridged
of their wild independence. Very early in our history we find their princes
doing homage to the crown of England; till at length in the reign of Edward the
first, who may justly be stiled the conqueror of Wales, the line of their
antient princes was abolished, and the king of England's eldest son became, as
a matter of course, their titular prince; the territory of Wales being then
entirely re-annexed (by a kind of feodal resumption) to the dominion of the
crown of England; or, as the statute of Rhudhlan
expresses it, "terra Walliae cum incolis suis, prius regi jure feodah
subjecta, (of which homage was the sign) jam in proprietatis dominium
totaliter et cum integritate conversa est, et coronae regni Angliae tanquam
pars corporis ejusdem annexa et unita." By the statute also of
Wales very material alterations were made in divers parts of
their laws, so as to reduce them nearer to the English standard, especially in
the forms of their judicial proceedings: but they still retained very much of
their original polity; particularly their rule of inheritance, viz. that
their lands were divided equally among all the issue male, and did not descend
to the eldest son alone. By other subsequent statutes their provincial
immunities were still farther abridged: but the finishing stroke to their
independency was given by the statute 27 Hen. VIII. c. 26. which at the same
time gave the utmost advancement to their civil prosperity, by admitting them
to a thorough communication of laws with the subjects of England. Thus were
this brave people gradually conquered into the enjoyment of true liberty; being
insensibly put upon the same footing, and made fellow-citizens with their
conquerors. A generous method of triumph, which the republic of Rome practised
with great success; till she reduced all Italy to her obedience, by admitting
the vanquished states to partake of the Roman privileges.
It is enacted by this statute 27 Hen. VIII, 1. That the dominion of
Wales shall be for ever united to the kingdom of England. 2. That all Welshmen
born shall have the same liberties as other the king's subjects. 3. That lands
in Wales shall be inheritable according to the English tenures and rules of
descent. 4. That the laws of England, and no other, shall be used in Wales:
besides many other regulations of the police of this principality. And the
statute 34 and 35 Hen. VIII, c. 26. confirms the same, adds farther
regulations, divides it into twelve shires, and, in short, reduces it into the
same order in which it stands at this day; differing from the kingdom of
England in only a few particulars, and those too of the nature of privileges,
(such as having courts within itself, independent of the process of
Westminster-hall,) and some other immaterial peculiarities, hardly more than
are to be found in many counties of England itself.
The kingdom of Scotland, notwithstanding the union of the crowns on the
accession of their king James VI. to that of England, continued an entirely
separate and distinct kingdom for above a century more, though an union had
been long projected; which was judged to be the more easy to be done, as both
kingdoms were antiently under the same government, and still retained a very
great resemblance, though far from an identity, in their laws. By an act of
parliament 1 Jac. I. c. 1. it is declared, that these two mighty, famous, and
antient kingdoms were formerly one. And sir Edward Coke observes,
how marvellous a conformity there was, not only in the religion and language of
the two nations, but also in their antient laws, the descent of the crown,
their parliaments, their titles of nobility, their officers of state and of
justice, their writs, their customs, and even the language of their laws. Upon
which account he supposes the common law of each to have been originally the
same; especially as their most antient and authentic book, called regiam
majestatem, and containing the rules of their antient common law, is
extremely similar to that of Glanvil, which contains the principles of
ours, as it stood in the reign of Henry II. And the many diversities,
subsisting between the two laws at present, may be well enough accounted for,
from a diversity of practice in two large and uncommunicating jurisdictions,
and from the acts of two distinct and independent parliaments, which have in
many points altered and abrogated the old common law of both kingdoms.
However, sir Edward Coke, and the politicians of that time, conceived
great difficulties in carrying on the projected union: but these were at length
overcome, and the great work was happily effected in 1707, 6 Anne; when
twenty-five articles of union were agreed to by the parliaments of both
nations; the purport of the most considerable being as follows:
1. That on the first of May, 1707, and for ever after, the kingdoms of
England and Scotland shall be united into one kingdom, by the name of Great
2. The succession to the monarchy of Great Britain shall be the same as
was before settled with regard to that of England.
3. The united kingdom shall be represented by one parliament.
4. There shall be a communication of all rights and privileges between
the subjects of both kingdoms, except where it is otherwise agreed.
9. When England raises 2,000,000l. by a land-tax, Scotland shall
16, 17. The standards of the coin, of weights, and of measures, shall be
reduced to those of England, throughout the united kingdoms.
18. The laws relating to trade, customs, and the excise, shall be the
same in Scotland as in England. But all the other laws of Scotland shall remain
in force; though alterable by the parliament of Great Britain. Yet with this
caution: that laws relating to public policy are alterable at the discretion of
the parliament; laws relating to private right are not to be altered but for
the evident utility of the people of Scotland.
22. Sixteen peers are to be chosen to represent the peerage of Scotland
in parliament, and forty-five members to sit in the house of commons.
23. The sixteen peers of Scotland shall have all privileges of
parliament: and all peers of Scotland shall be peers of Great Britain, and rank
next after those of the same degree at the time of the union, and shall have
all privileges of peers, except sitting in the house of lords and voting on the
trial of a peer.
These are the principal of the twenty-five articles of union, which are
ratified and confirmed by statute 5 Ann. c. 8. in which statute there are also
two acts of parliament recited; the one of Scotland, whereby the church of
Scotland and also the four universities of that kingdom, are established for
ever, and all succeeding sovereigns are to take an oath inviolably to maintain
the same: the other of England, 5 Ann. c. 6. whereby the acts of uniformity of.
13 Eliz. and 13 Car. II. (except as the same had been altered by parliament at
that time) and all other acts then in force for the preservation of the church
of England, are declared perpetual; and it is stipulated, that every subsequent
king and queen shall take an oath inviolably to maintain the same within
England, Ireland, Wales, and the town of Berwick upon Tweed. And it is enacted,
that these two acts "shall for ever be observed as fundamental and essential
conditions of the union."
Upon these articles and act of union, it is to be observed, 1. That the
two kingdoms are now so inseparably united, that nothing can ever disunite them
again; except the mutual consent of both, or the successful resistance of
either, upon apprehending an infringment of those points which, when they were
separate and independent nations, it was mutually stipulated should be
"fundamental and essential conditions of the union. 2. That
whatever else may be deemed "fundamental and essential conditions," the
preservation of the two churches, of England and Scotland, in the same state
that they were in at the time of the union, and the maintenance of the acts of
uniformity which establish our common prayer, are expressly declared so to be.
3. That therefore any alteration in the constitution of either of those
churches, or in the liturgy of the church of England, (unless with the consent
of the respective churches, collectively or representatively given,) would be
an infringment of these "fundamental and essential conditions," and greatly
endanger the union. 4. That the municipal laws of Scotland are ordained to be
still observed in that part of the island, unless altered by parliament; and,
as the parliament has not yet thought proper, except in a few instances, to
alter them, they still (with regard to the particulars unaltered) continue in
full force. Wherefore the municipal or common laws of England are, generally
speaking, of no force or validity in Scotland; and of consequence, in the
ensuing commentaries, we shall have very little occasion to mention, any
farther than sometimes by way of illustration, the municipal laws of that part
of the united kingdoms.
The town of Berwick upon Tweed was originally part of the kingdom of
Scotland; and, as such, was for a time reduced by king Edward I. into the
possession of the crown of England: and, during such it's subjection, it
received from that prince a charter, which (after its subsequent cession by
Edward Balliol, to be for ever united to the crown and realm of England) was
confirmed by king Edward III, with some additions; particularly that it should
be governed by the laws and usages which it enjoyed during the time of king
Alexander, that is before it's reduction by Edward I. It's constitution was
new-modelled, and put upon an English footing by a charter of king James I: and
all it's liberties, franchises, and customs, were confirmed in parliament by
the statutes 22 Edw. IV. c. 8. and 2 Jac. I. c. 28. Though therefore it hath
some local peculiarities, derived from the antient laws of
Scotland, yet it is clearly part of the realm of England, being
represented by burgesses in the house of commons, and bound by all acts of the
British parliament, whether specially named or otherwise. And therefore it was
(perhaps superfluously) declared by statute 20 Geo. II. c. 42. that, where
England only is mentioned in any act of parliament, the same notwithstanding
hath and shall be deemed to comprehend the dominion of Wales and town of
Berwick upon Tweed. And though certain of the king's writs or processes of the
courts of Westminster do not usually run into Berwick, any more than the
principality of Wales, yet it hath been solemnly adjudged that
all prerogative writs (as those of mandamus, prohibition, habeas
corpus, certiorari, &c.) may issue to Berwick as well as to every other
of the dominions of the crown of England, and that indictments and other local
matters arising in the town of Berwick may be tried by a jury of the county of
As to Ireland, that is still a distinct kingdom; though a dependent
subordinate kingdom. It was only entitled the dominion or lordship of
Ireland and the king's stile was no other than dominus
Hiberniae, lord of Ireland, till the thirty-third year of king Henry the
eighth; when he assumed the title of king, which is recognized by act of
parliament 35 Hen. VIII. c. 3. But, as Scotland and England are now one and the
same kingdom, and yet differ in their municipal laws; so England and Ireland
are, on the other hand, distinct kingdoms, and yet in general agree in their
laws. The inhabitants of Ireland are, for the most part, descended from the
English, who planted it as a kind of colony, after the conquest of it by king
Henry the second: and the laws of England were then received and sworn to by
the Irish nation, assembled at the council of Lismore .... And as
Ireland, thus conquered, planted, and governed, still continues in a state of
dependence, it must necessarily conform to, and be obliged by, such laws as the
superior state thinks proper to prescribe.
At the time of this conquest the Irish were governed by what they call
the Brehon law, so stiled from the Irish name of judges, who were denominated
Brehons. But king John in the twelfth year of his reign went
into Ireland and carried over with him many able sages of the law; and there by
his letters patent, in right of the dominion of conquest, is said to have
ordained and established that Ireland should be governed by the laws of
England: which letters patent sir Edward Coke
apprehends to have been there confirmed in parliament. But to this ordinance
many of the Irish were averse to conform, and still stuck to their Brehon law:
so that both Henry the third and Edward the first
were obliged to renew the injunction; and at length in a parliament holden at
Kilkenny, 40 Edw. III. under Lionel the duke of Clarence, then lieutenant of
Ireland, the Brehon law was formally abolished, it being unanimously declared
to be indeed no law, but a lewd custom crept in of later times. And yet, even
in the reign of queen Elizabeth, the wild natives still kept and preserved
their Brehon law; which is described to have been "a rule of
right unwritten, but delivered by tradition from one to another, in which
oftentimes there appeared great shew of equity in determining the right between
party and party, but in many things repugnant quite both to God's laws and
man's." The latter part of this character is alone ascribed to it, by the laws
before-cited of Edward the first and his grandson.
But as Ireland was a distinct dominion, and had parliaments of it's own,
it is to be observed, that though the immemorial customs, or common law, of
England were made the rule of justice in Ireland also, yet no acts of the
English parliament, since the twelfth of king John, extended into that kingdom,
unless it were specially named, or included under general words, such as,
within any of the king's dominions." And this is particularly expressed, and
the reason given in the year books: "a tax granted by the
parliament of England shall not bind those of Ireland, because they are not
summoned to our parliament;" and again, "Ireland hath a parliament of its own,
and maketh and altereth laws; and our statutes do not bind them, because they
do not send knights to our parliament: but their persons are the king's
subjects, like as the inhabitants of Calais, Gascoigne, and Gulenne, while they
continued under the king's subjection." The general run of laws, enacted by the
superior state, are supposed to be calculated for it's own internal government,
and do not extend to it's distant dependent countries; which, bearing no part
in the legislature, are not therefore in its ordinary and daily contemplation.
But, when the sovereign legislative power sees it necessary to extend it's care
to any of it's subordinate dominions, and mentions them expressly by name or
includes them under general words, there can be no doubt but then they are
bound by it's laws.
The original method of passing statutes in Ireland was nearly the same
as in England, the chief governor holding parliaments at his pleasure, which
enacted such laws as they thought proper. But an ill use being
made of this liberty, particularly by lord Gormanstown, deputy-lieutenant in
the reign of Edward IV, a set of statutes were there enacted in
the 10 Hen. VII. (sir Edward Poynings being then lord deputy, whence they are
called Poyning's laws) one of which, in order to restrain the
power as well of the deputy as the Irish parliament, provides, 1. That, before
any parliament be summoned or holden, the chief governor and council of Ireland
shall certify to the king under the great seal of Ireland the considerations
and causes thereof, and the articles of the acts proposed to be passed therein.
2. That after the king, in his council of England, shall have considered,
approved, or altered the said acts or any of them, and certified them back
under the great seal of England, and shall have given licence to summon and
hold a parliament, then the same shall be summoned and held; and therein the
said acts so certified, and no other, shall be proposed, received, or
rejected. But as this precluded any law from being proposed, but
such as were pre-conceived before the parliament was in being, which occasioned
many inconveniences and made frequent dissolutions necessary, it was provided
by the statute of Philip and Mary before-cited, that any new propositions might
be certified to England in the usual forms, even after the summons and during
the session of parliament. By this means however there was nothing left to the
parliament in Ireland, but a bare negative or power of rejecting, not of
proposing or altering, any law. But the usage now is, that bills are often
framed in either house, under the denomination of "heads for a bill or bills:"
and in that shape they are offered to the consideration of the lord lieutenant
and privy council: who, upon such parliamentary intimation, or otherwise upon
the application of private persons, receive and transmit such heads, or reject
them without any transmission to England. And with regard to Poynings' law in
particular, it cannot be repealed or suspended, unless the bill for that
purpose, before it be certified to England, be approved by both the
But the Irish nation, being excluded from the benefit of the English
statutes, were deprived of many good and profitable laws, made for the
improvement of the common law: and the measure of justice in both kingdoms
becoming thence no longer uniform, it was therefore enacted by another of
Poynings' laws, that all acts of parliament, before made in
England, should be of force within the realm of Ireland. But, by
the same rule, that no laws made in England, between king John's time and
Poynings' law, were then binding in Ireland, it follows that no acts of the
English parliament made since the 10 Hen. VII. do now bind the people of
Ireland, unless specially named or included under general words.
And on the other hand it is equally clear, that where Ireland is particularly
named, or is included under general words, they are bound by such acts of
parliament. For this follows from the very nature and constitution of a
dependent state: dependence being very little else, but an obligation to
conform to the will or law of that superior person or state, upon which the
inferior depends. The original and true ground of this superiority, in the
present case, is what we usually call, though somewhat improperly, the right of
conquest: a right allowed by the law of nations, if not by that of nature; but
which in reason and civil policy can mean nothing more, than that, in order to
put an end to hostilities, a compact is either expressly or tacitly made
between the conqueror and the conquered, that if they will acknowledge the
victor for their master, he will treat them for the future as subjects, and not
But this state of dependence being almost forgotten, and ready to be
disputed by the Irish nation, it became necessary some years ago to declare how
that matter really stood: and therefore by statute 6 Geo. I. c. 5. it is
declared, that the kingdom of Ireland ought to be subordinate to, and dependent
upon, the imperial crown of Great Britain, as being inseparably united thereto;
and that the king's majesty, with the consent of the lords and commons of Great
Britain in parliament, hath power to make laws to bind the people of
Thus we see how extensively the laws of Ireland communicate with those
of England: and indeed such communication is highly necessary, as the ultimate
resort from the courts of justice in Ireland is, as in Wales, to those in
England; 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, as the appeal
from the chancery in Ireland lies immediately to the house of lords here; it
being expressly declared, by the same statute 6 Geo. I. c. 5. that the peers of
Ireland have no jurisdiction to affirm or reverse any judgments or decrees
whatsoever. The propriety, and even necessity, in all inferior dominions, of
this constitution, "that, though justice be in general administered by courts
of their own, yet that the appeal in the last resort ought to be to the courts
of the superior state," is founded upon these two reasons. 1. Because otherwise
the law, appointed or permitted to such inferior dominion, might be insensibly
changed within itself, without the assent of the superior. 2. Because otherwise
judgments might be given to the disadvantage or diminution of the superiority;
or to make the dependence to be only of the person of the king, and not of the
crown of England.
With regard to the other adjacent islands which are subject to the crown
of Great Britain, some of them (as the isle of Wight, of Portland, of Thanet,
&c.) are comprized within some neighbouring county, and are therefore to be
looked upon as annexed to the mother island, and part of the kingdom of
England. But there are others which require a more particular
And, first, the isle of Man is a distinct territory from England, and is
not governed by our laws: neither doth any act of parliament extend to it,
unless it be particularly named therein: and then an act of parliament is
binding there. It was formerly a subordinate feudatory kingdom,
subject to the kings of Norway; then to king John and Henry III. of England;
afterward to the kings of Scotland; and then again to the crown of England: and
at length we find king Henry IV. claiming the island by right of conquest, and
disposing of it to the earl of Northumberland; upon whose attainder it was
granted (by the name of the lordship of Man) to sir John de Stanley by letters
7 Henry IV. In his lineal descendants it continued for
eight generations, till the death of Ferdinando earl of Derby, A. D.
1594: when a controversy arose concerning the inheritance thereof, between his
daughters and William his surviving brother: upon which, and a doubt that was
started concerning the validity of the original patent, the
island was seised into the queen's hands, and afterwards various grants were
made of it by king James the first; all which being expired or surrendered, it
was granted afresh in 7 Jac I. to William earl of Derby, and the heirs male of
his body, with remainder to his heirs general;
which grant was the next year confirmed by act of parliament, with a
restraint of the power of alienation by the said earl and his issue male. On
the death of James earl of Derby, A. D. 1735, the male line of earl
William failing, the duke of Atholl succeeded to the island as heir general by
a female branch. In the mean time, though the title of king had long been
disused, the earls of Derby, as lords of Man, had maintained a sort of royal
authority therein; by assenting or dissenting to laws, and exercising an
appellate jurisdiction. Yet, though no English writ, or process from the courts
of Westminster, was of any authority in Man, an appeal lay from a decree of the
lord of the island to the king of Great Britain in council. But
the distinct jurisdiction of this little subordinate royalty being found
inconvenient for the purposes of public justice, and for the revenue, (it
affording a commodious asylum for debtors, outlaws, and smugglers,) authority
was given to the treasury by statute 12 Geo. I. c. 28. to purchase the interest
of the then proprietors for the use of the crown: which purchase was at length
compleated in the year 1765, and confirmed by statutes 5 Geo. III. c. 26 and
39. whereby the whole island and all it's dependencies, so granted as
aforesaid, (except the landed property of the Atholl family, their manorial
rights and emoluments, and the patronage of the bishopric and
other ecclesiastical benefices,) are unalienably vested in the crown, and
subjected to the regulations of the British excise and customs.
The islands of Jersey, Guernsey, Sark, Alderney, and their appendages,
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, being collected in
an antient book of very great authority, entituled, le grand coustumier.
The king's writ, or process, from the courts of Westminster, is there of no
force; but his commission is .... They are not bound by common acts of our
parliaments, unless particularly named. All causes are
originally determined by their own officers, the bailiffs and jurats of the
islands; but an appeal lies from them to the king and council, in the last
Besides these adjacent islands, our more distant plantations in America,
and elsewhere, are also in some respect subject to the English laws.
Plantations or colonies, in distant countries, are either such where the lands
are claimed by right of occupancy only, by finding them desart and
uncultivated, and peopling them from the mother country; or where, when already
cultivated, they have either gained, by conquest, or ceded to us by treaties.
And both these rights are founded upon the law of nature, or at least upon that
of nations. But there is a difference between these two species of colonies,
with respect to the laws by which they are bound. For it hath been
held, that if an uninhabited country be 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. But
this must be understood with very many and very great restrictions. Such
colonists 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, for instance,
as the general rules of inheritance, and of protection from personal injuries
.... The artificial refinements and distinctions incident to the property of a
great and commercial people, the laws of police and revenue, (such especially
as are inforced by penalties) the mode of maintenance for the established
clergy, the jurisdiction of spiritual courts, and a multitude of other
provisions, are neither necessary nor convenient for them, and therefore are
not in force. What shall be admitted and what rejected, at what times, and
under what restrictions, must, in case of dispute, be decided in the first
instance 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 new-modelled and reformed by the general superintending power of
the legislature in the mother country. But in conquered or ceded countries,
that have already laws of their own, the king may indeed alter and change those
laws; but, till he does actually change them, the antient laws of the country
remain, unless such as are against the law of God, as in the case of an infidel
country .... Our American plantations are principally of this
latter sort, being obtained in the last century either by right of conquest and
driving out the natives (with what natural justice I shall not at present
enquire) or by treaties. And therefore the common law of England, as such, has
no allowance or authority there; they being no part of the
mother country, but distinct (though dependent) dominions. They are subject
however to the control of the parliament, though (like Ireland, Man, and the
rest) not bound by any acts of parliament, unless particularly named.
With respect to their interior polity, our colonies are properly of
three sorts. 1. Provincial establishments, the constitutions of which depend on
the respective commissions issued by the crown to the governors, and the
instructions which usually accompany those commissions; under the authority of
which, provincial assemblies are constituted, with the power of making local
ordinances, not repugnant to the laws of England. 2. Proprietary governments,
granted out by the crown to individuals, in the nature of feudatory
principalities, with all the inferior regalities, and subordinate powers of
Legislation, which formerly belonged to the owners of counties palatine: yet
still with these express conditions, that the ends for which the grant was made
be substantially pursued, and that nothing be attempted which may derogate from
the sovereignty of the mother-country. 3. Charter governments, in the nature of
civil corporations, with the power of making bye-laws for their own interior
regulation, not contrary to the laws of England: and with such rights and
authorities as are specially given them in their several charters of
incorporation. The form of government in most of them is borrowed from that of
England. They have a governor named by the king, (or in some proprietary
colonies by the proprietor,) who is his representative or deputy. They have
courts of justice of their own, from whose decisions an appeal lies to the king
and council here in England. Their general assemblies which are their house of
commons, together with their council of state being their upper house, with the
concurrence of the king or his representative the governor, make laws suited to
their own emergencies. But it is particularly declared by statute 7 and 8 W.
III. c. 22. that all laws, bye-laws, usages, and customs, which shall be in
practice in any of the plantations, repugnant to any law, made or to be made in
this kingdom relative to the said plantations, shall be utterly void and of
none effect. And, because several of the colonies had claimed the sole and
exclusive right of imposing taxes upon themselves, the statute 6 Geo. III. c.
12. expressly declares, that all his majesty's colonies and plantations in
America have been, are, and of right ought to be, subordinate to and dependent
upon the imperial crown and parliament of Great Britain; who have full power
and authority to make laws and statutes of sufficient validity to bind the
colonies and people of America, subjects of the crown of Great Britain, in all
cases whatsoever. And this authority has been since very forcibly exemplified,
and carried into act, by the statute 7 Geo. III. c. 59. for suspending the
legislation of New-York; and by several subsequent statutes
These are the several parts of the dominions of the crown of Great
Britain, in which the municipal laws of England are not of force or authority,
merely as the municipal laws of England. Most of them have probably
copied the spirit of their own law from this original; but then it receives
it's obligation, and authoritative force, from being the law of the country.
As to any foreign dominions which may belong to the person of the king
by hereditary descent, by purchase, or other acquisition, as the territory of
Hanover, and his majesty's other property in Germany; as these do not in any
wise appertain to the crown of these kingdoms, they are entirely unconnected
with the laws of England, and do not communicate with this nation in any
respect whatsoever. The English legislature had wisely remarked the
inconveniences that had formerly resulted from dominions on the continent of
Europe; from the Norman territory which William the conqueror brought with him,
and held in conjunction with the English throne; and from Anjou, and it's
appendages, which fell to Henry the second by hereditary descent. They had seen
the nation engaged for near four hundred years together in ruinous wars for
defence of these foreign dominions; till, happily for this country, they were
lost under the reign of Henry the sixth. They observed that, from that time,
the maritime interests of England were better understood and more closely
pursued: that, in consequence of this attention, the nation, as soon as she had
rested from her civil wars, began at this period to flourish all at once; and
became much more considerable in Europe, than when her princes were possessed
of a larger territory, and her councils distracted by foreign interests. This
experience and these considerations gave birth to a conditional clause in the
act of settlement, which vested the crown in his present
majesty's illustrious house, "that in case the crown and imperial dignity of
this realm shall hereafter come to any person not being a native of this
kingdom of England, this nation shall not be obliged to engage in any war for
the defence of any dominions or territories which do not belong to the crown of
England, without consent of parliament,"
We come now to consider the kingdom of England in particular, the direct
and immediate subject of those laws, concerning which we are to treat in the
ensuing commentaries. And this comprehends not only Wales and Berwick, of which
enough has been already said, but also part of the sea. The main or high seas
are part of the realm of England, for thereon our courts of admiralty have
jurisdiction, as will be shewn hereafter; but they are not subject to the
common law. This 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 the admiralty have divisum imperium, an
alternate jurisdiction; one upon the water, when it is full sea; the other upon
the land when it is an ebb.
The territory of England is liable to two divisions; the one
ecclesiastical, the other civil.
1. The ecclesiastical division is, primarily, into two provinces, those
of Canterbury and York. A province is the circuit of an archbishop's
jurisdiction. Each province contains divers dioceses, or sees of suffragan
bishops; whereof Canterbury includes twenty-one, and York three: besides the
bishoprick of the isle of Man, which was annexed to the province of York by
king Henry VIII. Every diocese is divided into archdeaconries, whereof there
are sixty in all; each archdeaconry into rural deaneries, which are the circuit
of the archdeacon's and rural dean's jurisdiction, of whom hereafter; and every
deanery is divided into parishes.
A parish is that circuit of ground which is committed to the charge of
one parson, or vicar, or other minister having cure of souls therein. These
districts are computed to be near ten thousand in number. How
antient the division of parishes is, may at present be difficult to ascertain;
for it seems to be agreed on all hands, that in the early ages of Christianity
in this island, parishes were unknown, or at least signified the same that a
diocese does now. There was then no appropriation of ecclesiastical dues to any
particular church; but every man was at liberty to contribute his tithes to
whatever priest or church he pleased, provided only that he did it to some: or,
if he made no special appointment or appropriation thereof, they were paid into
the hands of the bishop, whose duty it was to distribute them among the clergy,
and for other pious purposes, according to his own
Mr. Camden says, England was divided into parishes by
archbishop Honorius about the year 630. Sir Henry Hobart lays it
down, that parishes were first erected by the council of Lateran, which was
held A. D. 1179. Each widely differing from the other, and both of them
perhaps from the truth; which will probably be found in the medium between the
two extremes. For Mr. Selden has clearly shewn, that the clergy
lived in common without any division of parishes, long after the time mentioned
by Camden. And it appears from the Saxon laws, that parishes were in being long
before the date of that council of Lateran, to which they are ascribed by
We find the distinction of parishes, nay even of mother-churches, so
early as in the laws of king Edgar, about the year 970. Before that time the
consecration of tithes was in general arbitrary; that is, every man paid
his own (as was before observed) to what church or parish he pleased. But this
being liable to be attended with either fraud, or at least caprice, in the
persons paying; and with either jealousies or mean compliances in such as were
competitors for receiving them; it was now ordered by the law of king
Edgar, that "dentur omnes decimae primariae ecclesiae ad quam
parochia pertinet." However, if any thane, or great lord, had a church,
within his own demesnes, distinct from the mother church, in the nature of a
private chapel; then, provided such church had a coemetery or consecrated place
of burial belonging to it, he might allot one third of his tithes for the
maintenance of the officiating minister: but, if it had no coemetery, the thane
must himself have maintained his chaplain by some other means; for in such case
all his tithes were ordained to be paid to the primariae
ecclesiae or mother church.
This proves that the kingdom was then generally divided into parishes;
which division happened probably not all at once, but by degrees. For it seems
pretty clear and certain, that the boundaries of parishes were originally
ascertained by those of a manor or manors: since it very seldom happens that a
manor extends itself over more parishes than one, though there are often many
manors in one parish. The lords, as Christianity spread itself, began to build
churches upon their own demesnes or wastes, to accommodate their tenants in one
or two adjoining lordships; and, in order to have divine service regularly
performed therein, obliged all their tenants to appropriate their tithes to the
maintenance of the one officiating minister, instead of leaving them at liberty
to distribute them among the clergy of the diocese in general; and this tract
of land, the tithes whereof were so appropriated, formed a distinct 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;
especially if no church was then built in any lordship adjoining to those
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 forests and 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.
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, seem to owe it's 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. 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.
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. 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 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 of them now, by
the encrease of inhabitants, are divided into several parishes and tithings;
and, sometimes, where there is but one parish there are two or more vills or
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
Denmark: 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 it's 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
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 called him) of the shire, to whom the government of
it was entrusted. 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 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 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 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 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, contre 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 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
Of these three, the county of Durham is 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 of Bolingbroke, the son of John of Gant, at the time when he wrested
the crown from king Richard II, and assumed the stile of king Henry IV. But he
was too prudent to suffer this to be united to the crown; lest if he lost one,
he should lose the other also. For, as Plowden and sir Edward
Coke observe, "he knew he had the duchy of Lancaster by sure and
indefeasible title, but that his title 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) 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 inheritances 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
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
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 comprized 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.
 a Vaugh. 400.
 b 10 Edw. I.
 c 12 Edw. I
 d 4 Inst. 345
 e It may justly be doubted, whether even such an infringement
(though a manifest breach of good faith, unless done upon the most pressing
necessity) would of itself dissolve the union: for the bare idea of a state,
without a power somewhere vested to alter every part of it's laws, is the
height of political absurdity. The truth seems to be, that in such an
incorporate union (which is well distinguished by a very learned prelate
from a foederate alliance, where such an infringement would certainly
rescind the compact) the two contracting states are totally annihilated,
without any power of a revival; and a third arises from their conjunction, in
which all the rights of sovereignty, and particularly that of legislation, must
of necessity reside. (See Warburton's alliance, 195.) But the wanton or
imprudent exertion of this right would probably raise a very alarming ferment
in the minds of individuals; and therefore it is hinted above that such an
attempt might endanger (though by no means destroy) the
To illustrate this matter a little farther: an act of parliament to
repeal or alter the act of uniformity in England, or to establish episcopacy in
Scotland, would doubtless in point of authority be sufficiently valid and
binding; and, notwithstanding such an act, the union would continue unbroken.
Nay, each of these measures might be safely and honourably pursued, if
respectively agreeable to the sentiments of the English church, or the kirk in
Scotland. But it should seem neither prudent, nor perhaps consistent with good
faith, to venture upon either of those steps, by a spontaneous exertion of the
inherent powers of parliament, or at the instance of mere individuals .... So
sacred indeed are the laws abovementioned (for protecting each church and the
English liturgy) esteemed, that in the regency acts both of 1751 and 1765 the
regents are expressly disabled from assenting to the repeal or alteration of
either these, or the act of settlement.
 f Hale Hist. C. L. 183.1 Sid. 382. 462. 2 Show. 365.
 g Cro. Jac. 543. 2 Roll. abr. 292. Stat. 11 Geo. I. c. 4. 4 Burr.
 h Stat. Hiberniae. 14 Hen. III.
 i Pryn. on 4 inst. 249.
 k 4 Inst. 358. Edm. Spenser's state of Ireland. p. 1513. edit.
 l Vaugh. 294. 2. Pryn. Rec. 85. 7 Rep. 23.
 m 1 Inst. 141.
 n A. R. 30. 1 Rym. Feod. 443.
 o A. R. 5. — pro eo quod leges quibus utuntur
Hybernici Deo detestabiles existunt, et omni juri dissonant, adeo, quod leges
censeri non debeant; nobis et consilio nostro satis videtur expediens, cisdem
utendas concedere leges Anglicanas. 3 Pryn. Rec. 1218.
 p Edm. Spenser, ibid.
 q 20 Hen. VI. 8. 2 Ric. III. 12.
 r Yearbook 1 Hen. VII. 3. 7. Rep. 22 Calvin's case.
 s Irish Stat. 11 Eliz. st. 3. c. S.
 t Ibid. 10 Hen. VII. c. 22.
 u Cap. 4. expounded by 3 & 4 Ph. and M. c. 4.
 w 4 Inst. 353.
 x Irish Stat. 11 Eliz. st. 3. c. 38.
 y cap. 23.
 z 4 Inst. 351.
 a 12 Rep. 112.
 b Puff. L. of N. viii. 6. 24.
 c This was law in the time of Hen. VIII; as appears by the ancient
book, entituled, diversity of courts, c. bank le roy.
 d Vaugh. 402.
 e 4 Inst. 284. 2 And 116.
 f Selden tit. hon 13.
 g Camden. Eliz A. D 1594.
 h 1 P. Wms. 329.
 i The bishopric of Man, or Sodor, or Sodor and Man, was formerly
within the province of Canterbury, but annexed to that of York by statute 33
Hen. VIII. c. 31.
 k 4 Inst. 286.
 l Salk. 411. 666.
 m 2 P. Wms. 75.
 n 7 Rep. 17. Calvin's case. Show. Parl. C. 31. [See also in the
case of Campbell v. Hall. Cowp. Rep. 204. a great and elaborate argument
of Lord Mansfield, in delivering the judgment of the court of king's
 1. See Appendix, note E.
 (c) [However, in the year 1782, by statute 22 Geo. III. c. 46. his
majesty was empowered to conclude a peace with the colonies of New-Hampshire,
Massachusetts-Bay, Rhode-Island, Connecticut, New-York, New-Jersey,
Pennsylvania, the three Lower Counties on Delaware, Maryland, Virginia,
North-Carolina, South-Carolina, and Georgia, in North-America, then in
rebellion against their mother-country; and for that purpose, to repeal, or to
suspend, the operation of any acts of parliament so far as they related to the
said colonies. Accordingly a peace was soon after concluded and the
independence which the above-mentioned colonies had before declared was allowed
to them; so that now they are as much independent of and unconnected with,
Great Britain, as any other foreign nation.
 o Stat. 12 & 13 Will. III. c. 3.
 p Co. Litt. 260.
 q Finch. L. 78.
 r Co. Litt. 94.
 s Gibson's Britain.
 t Seld. of tith. 9. 4. 2 Inst. 643. Hob. 296.
 u in his Britannia.
 w Hob. 29.
 x of tithes, c 9.
 y c. 1.
 z Ibid c. 2. See also the laws of king Canute, c. II. about
the year 1030.
 a 3 Inst. 647. 2 Rep. 44. Cro. Eliz. 512.
 b Flet. 1. 47. This the laws of king Edward the confessor,
c. 20. very justly entitled, "summa et maxima securitas, per quam omnes
statu firmissimo sustinentur; quae hoc modo fiebat, quod sub decennali
fidejussione debebant esse universi &c."
 c Mirr. c. 1. §. 3.
 d Finch. L. 8.
 e 1 Inst. 115.
 f Co. Litt. 109.
 g Litt. §. 164.
 h 1 Inst. 116.
 i 14 Edw. I.
 k Gloss. 274.
 l Seld. in Fortesc. c. 24.
 m. Seld. tit. of honour. 2. 5. 3.
 n Montesq. Sp. L. 30. 17.
 o Tacit. de morib. German. 6.
 2. It is well deserving of legislative consideration whether a
similar system of Jurisprudence is capable of being introduced into the Police
of the Commonwealth. Especially that part of it, in which the number of slaves,
and of free people of the same complexion with them, may render a more exact
attention to the Police, and good order of the state, necessary.
 p LL. Edw. c. 34.
 q Seld. tit. hon. 2. 5. 8.
 r Pat. 25 Edw. III. p. 1. m. 18 Seld. ibid.
Sandford's gen. hist. 112. 4. 204.
 s Cart. 36 Edw. 111. n. 9.
 t Pat. 31 Edw. III. m. 33 Plowd. 215. 7. Rym.
 u l. 3. c. 8. §. 4.
 w 4 Inst. 204.
 x Seld. in Heng. magn. c. 2.
 y Robertson. Cha. V. i. 60.
 z 4 Inst. 205.
 a 215.
 b 4 Inst. 205.
 c Parl. 2 Hen. V. n. 30. 3 Hen. V. n. 15.
 d 1 Ventr. 155.
 e 1 Ventr. 157.
 f Some have entertained an opinion (Plowd. 320, 1, 2. Lamb.
Archeion. 233. 4 Inst. 206.) that by this act the right of the duchy
vested only in the natural, and not in the political person of
king Henry VII, as formerly in that of Henry IV; and was descendible to his
natural heirs, independent of the succession to the crown. And, 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 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 inheritance of the crown. And indeed it seems to
have been understood very early 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 half-blood
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 therefore 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.
 g 4 Inst 220.
 3. The civil division of the territory of Virginia is primarily
into Counties. Formerly, there were one or more parishes in every county: in
each of which a minister was established with a salary, &c. The case of the
poor was another object of the parochial division, which seems now to be
virtually discontinued in all, as it is actually in the new-made
counties. The poor are now committed to the care of the Overseers of the Poor
of the District, of whom the act of 1787, chap. 48. directs that there shall be
not more than four in every county. There are ninety-two
counties at this day.
Every county is by the constitution entitled to send two representatives
to the General Assembly: in every county there is also held a
monthly court for the trial of all causes not exceeding twenty dollars or 800
pounds of Tobacco, and for other purposes, such as the proving and recording
wills, deeds, granting letters of administration &c. and generally for the
regulation of the business of the county; as also, a quarterly court for the
trial and decision of all causes of a civil nature, both at common law, and in
equity to any amount they have also cognizance of pleas of the
commonwealth in all cases where the punishment doth not extend to life or
member, or to disqualification from office .... The justices of the county are
judges of the courts, and the sheriff, or in case of his disability, the
coroner, is the ministerial officer of the Court and County. The county
lieutenants heretofore had the military arrangements of the county committed to
their care, each county composing one or two separate regiments of militia,
commanded by proper officers. But their office seems now to be
The counties are by the constitution distributed into twenty-four
senatorial districts, each district being entitled to send one
senator The arrangement of the counties into districts for this
purpose was made by the same convention which established the
Constitution it has not since been altered, the new-made
counties having uniformly been arranged to the same district as the county or
counties from which they were taken.
The adoption of the constitution of the United States made it necessary
to arrange the counties into several districts for two other purposes; the
first for the choice of representatives to congress, which before the census
were limited to ten, only, including Kentucky. The second for
the appointment of electors to choose a president of the United States, whose
number by the constitution is to be equal to the whole number of senators and
representatives, which the State is entitled to. The arrangement for these
purposes was made by the acts of 1788. chap. 1. and 2 .... But the census being
completed, it was found that the State was not adequately represented in
Congress; the act for apportioning the number of representatives among the
States having assigned nineteen to Virginia, a new arrangement of the counties
was made by the acts of 1792. chap. 1. and 30. The second census made a further
arrangement necessary; at present it is as follows; viz:
Twenty-four senatorial districts.
Twenty-one electoral districts: no new act upon this subject having been
made since the last census; and,
Twenty-two representatives, or congressional
There are a great many towns, or more properly speaking sites for towns
established by act of Assembly in Virginia. Scarce a Session of the Assembly
passes, in which, to use the emphatical expression of Mr. Jefferson the law
does not say "there shall be towns where Nature hath said there shall not."
.... These towns have no other privileges that I know of, except conferring
upon the freehold possessor of a lot therein, with a house thereon of twelve
feet square, the right of suffrage.
There are also several corporate towns, which possess the privilege of
making bye-laws for the regulation of their own police, with the further
privilege of holding courts, but no other privilege, beyond the common towns
above mentioned. Of these Fredericksburg, Alexandria, Petersburg, Winchester,
Staunton, and York, are either the whole, or the most considerable .... Norfolk
is a corporate borough and is by the constitution entitled to a
representative in the Assembly. Williamsburg and Richmond are cities, a title
which they seem to have derived from having been respectively the seat of
government .... Both are entitled to a representative in the General Assembly;
the former by the Constitution, and the latter by an act passed
in the year 1788. In all the corporate towns, as well as in
Richmond, Williamsburg and Norfolk the jurisdiction of the courts is somewhat
more limited than that of the county courts.
 (a) Acts of 1785. c. 34. 1794. c 103
 (b) Edition of 1794. c. 102.
 (c) C. V. Art. 5.
 (d) V. L. Edi. 1794. c. 67.
 (e) V. L. Edi. 1794. c. 146 152.
 (f) C. V. Art. 6.
 (g) May, 1776. c. 6. Edi. 1794. c. 61.
 (h) C. U.S. Art. 1. §. 2.
 (*) See V. L. 1799. c. 1.
 (+) V. L. 1801. c. 24.
 (i) Act of 1785. c. 55. Edi. 1794. c. 17. As to the mode of
supplying Vacancies if the Trustees and Directors of these unincorporated towns
.... See L. V. Edi. 1794. c. 5 Sess. Acts, 1797. c. 65.
 (k.) Art. 5.
 (l.) Ibid.
 (m.) c. 63.
 (n.) V. L. 1787. c. 97. Edi. 1794. c. 67.