Counties. Counties palatine. its 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."c 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 a-piece. These had formerly their lathereeves, and rape-reeves, acting in subordination to the shirereeve. Where a county is divided into three of these intermediate jurisdictions, they are called tithings, which were anciently governed by a tithing-reeve. These tithings 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 those 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 latter was created by king Edward III. in favour of Henry Plantagenet, first earl and then duke of Lancasterf whose heiress being married to John of Gaunt, the king's son, the franchise was greatly enlarged and confirmed in parliaments to honour John of Gaunt himself whom, on the death of his father-in-law, the king had also created duke of Lancaster.h Counties palatine are so called [117] the Norman conquest.e Tacit. de Morib. German. 6. d L. L. Edw. c. 34. e Seld. tit. Hon. 2.5, 8. f Pat. 25 Edw. III. pl. 1. m. 18; Seld. Ibid; Sandford's Gen. Hist. 112; 4 Inst. 204. g Cart. 36 Edw. III. n. 9. h Pat. 51 Edw. III. m. 33; Plowd. 215; 7 Rym. 138. 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 ancient 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 vicecomitis.1 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),m 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 its defence. And upon this account also there were formerly two other counties palatine, Pembroke- [ 118 ] shire 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 them." Of these three, the county of Durham has been of late. years 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 Gaunt, at the time when he wrested the crown from king Richard II., and assumed the style 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 Cokep 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 Gaunt, 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 [119] Edward IV., this duchy was declared in parliament to S 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 otherwise might have determined by the attainder) and to make the same parcel of the duchy; and further, 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 parts 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 posses sion of the same, as the three Henrys and Edward IV., or any of them, had and held the same.t made of late as in coun.. ties palatine. But very considerable alterations have recently been made Alterations in two of the three counties palatine that remain. By the statute 10 Geo. IV. & 1 Wm. IV. c. 70, s. 13, the jurisdiction of her Majesty's courts at Westminster is extended to the county palatine of Chester, and by s. 14, the jurisdiction of the court of session of such county palatine ceased, and the assizes are now held at Chester, and the administration of justice is carried on in all respects as in any other county of England. By the statute 6 Wm. IV. c. 19, s. 1, the palatine jurisdiction and power theretofore vested in the bishop of Durham is separated from the bishoprick, and all forfeitures and jura regalia are transferred to the king, his heirs, and successors, but without prejudice to the jurisdiction of the courts of the county palatine; but by s. 2, the county court is abolished." And, by the Uniformity of Process Act, 2 Wm. IV. c. 32, s. 21, it is expressly provided that nothing in that act should abridge, alter, or affect the Some have entertained an opinion (Plowd. 220. 1. 2; Lamb, Archaion, 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 1668, 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 Lan caster was by no means thereby made "A bill was brought in in the ses- Isle of Ely. [ 120 ] Counties franchise and jurisdiction of either of the counties palatine of Durham or Lancaster. And by the 4 & 5 Wm. IV. c. 62, the jurisdiction of the palatine court of Lancaster is extended by compelling the attendance of witnesses and enforeing execution out of the former limits." 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.w 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. |