to the taxation of them, it fhall discharge them, because nothing appears in certain to be due for cofts, before they are taxed. id.

3. Also, if a person be imprisoned on a writ de excommunicato capiendo, for his contumacy in not paying cofts, and afterwards the king pardons all contempts, it seems that he fhall be difcharged of fuch imprisonment, without any fcire facias against the party; because it is grounded on the contempt, which is wholly pardoned: and the party muft begin anew to compel a payment of the costs. 2 Haw. 394.

4. But it seems agreed, that a pardon shall not discharge a fuit in the fpiritual court, any more than in a temporal, for a matter of intereft or property in the plaintiff, as for tithes, legacies, matrimonial contracts, and fuch like, Alfo it is agreed, that after costs are taxed in a fuit in such court at the profecution of the party, whether for a matter of private intereft, or pro reformatione morum or falute animæ, as for defamation, or the like, they fhall not be discharged by a subsequent pardon. id.

5. A perfon admitted to the benefit of clergy, is not to be deprived in the fpiritual court, for the crime for which he hath had his clergy. For a pardon frees the party from all fubfequent punishment, and confequently from deprivation. 2 Haw. 364.

6. By the ftatute of the 20 G. 2. c. 52. (which is the laft act of general pardon) all contempts in the ecclefiafical court in matters of correction are pardoned; but not in causes which have been commenced for matters of right.

Parith.

Firft inflitution I. (A.) AT firft there were no parochial divifions of

of parishes.

cures here in England, as there are now. For the bishops and their clergy lived in common; and before that the number of chriftians was much increased, the bishops fent out their clergy to preach to the people, as they faw occafion. But after the inhabitants had generally embraced christianity, this itinerant and occafional going from place to place, was found very inconvenient, because of the conftant offices that were to be administered, and the people not knowing to whom they fhould refort for

fpiritual

fpiritual offices and directions. Hereupon the bounds of parochial cures were found neceflary to be fettled here, by those bishops who were the great inftruments of converting the nation from the Saxon idolatry. At first they made use of any old British churches that were left ftanding; and afterwards from time to time in fucceffive ages, churches were built and endowed by lords of manors and others, for the use of the inhabitants of their several manors or districts, and confequently parochial bounds affixed thereunto. 1 Still. 88, 89.

And it was this which gave a primary title to the patronage of laymen; and which alfo oftentimes made the bounds of a parish commenfurate to the extent of a manor. Ken. Impropr. 5, 6, 7.

Many of our writers have afcribed the first inftitution of parishes in England to archbishop Honorius, about the year 636; wherein they built all on the authority of archbishop Parker. But Mr. Selden feems rightly to underftand the expreffion provinciam fuam in parochias divifit, of dividing his province into new diocefes; and this fenfe is juftified by the author of the defence of pluralities. The like diftinction of parishes which now obtains, could never be the model of Honorius, nor the work of any one age. Some rural churches there were, and fome limits prescribed for the rights and profits of them. But the reduction of the whole country into the fame formal li mitations was gradually advanced, being the work of many generations. However at the firft foundation of parochial churches (owing fometimes to the fole piety of the bishop, but generally to the lord of the manor) they were but few and confequently at a great distance: fo as the number of parishes depending on that of churches, the parochial bounds were at firft much larger, and by degrees contracted. For as the country grew more populous, and perfons more devout, feveral other churches were founded within the extent of the former, and then a new parochial circuit was allotted in proportion to the new church, and the manor or eftate of the founder of it. Thus certainly began the increase of parishes, when one too large and diffufe for the refort of all inhabitants to the one church, was by the addition of fome one or more new churches cantoned into more limited divifions. This was such an abatement to the revenue of the old churches, that complaint was made of it in the time of Edward the confeffor: "Now (fay they) there be three or four

"churches,

Parish bound to support its

its roads.

"churches, where in former times there was but one ; "and fo the tithes and profits of the priests are much di"minished." Ken. Par. Ant. 586, 587.

And now, the fettling the bounds of parifhes depends upon ancient and immemorial cuftom. For they have not been limited by any act of parliament, nor fet forth by fpecial commiffioners; but have been established, as the circumftances of times and places and perfons did happen, to make them greater or leffer. 1 Still. 243.

In fome places, parifhes feem to interfere, when some place in the middle of another parifh belongs to one that is diftant; but that hath generally happened by an unity of poffeffion, when the lord of a manor was at the charge to erect a new church, and make a distinct parish of his own demelnes, fome of which lay in the compafs of another parish. 1 Still. 244.

But now care is taken (or ought to be) by annual per ambulations to preferve thofe bounds of parishes, which have been long fettled by cuftom. 1 Still. 244.

[1. (B.) Prima facie the whole parifh is bound to fuppoor, and repair port its poor jointly; but a ville or township may have feparate overfeers of its own, under the 13 & 14 C. 2. c. 12.; and the court of K. B. will affift such a subdivifion of a parish on the ground of conveniency. Rex v. Inhabitants of Leigh, 3 T. Rep. 746. The parish at large is alfo bound to repair all high roads lying within it, unless that burden be thrown on others by prescription or tenure; and therefore, if a parifh be partly fituate in one county, and partly in another, and a highway in one part be out of repair, the indictment must be against the whole parish, and not against the inhabitants of that part only in which the road lies. Rex v. the Inhabitants of Clifton, 5 T. Rep. 498, contra Rex v. Wefton, 4 Bur. 2507. If the inhabitants of a township, bound by prefcription to repair the roads within the township, be exempted by the provisions of an act of parliament, from repairing any new roads which may be made within it, the charge will fall on the rest of the parish. Rex v. the Inhabitants of Sheffield, 2 T. Rep. 106. Where one fide of a common highway is fituated in one parish, and the other fide in another, two juftices may determine what parts fhall be repaired by each. 34 G. 3. c. 64.]

Perambulation

2. By a conftitution of archbishop Winchelsey; the pa of the bounda- rishioners fhall find at their own charge banners for the fories of parishes. gations. Lind. 252.

And

And upon the account of perambulations being performed in rogation week, the rogation days were anciently called gange-days; from the Saxon gan or gangen, to go.

M. 37 & 38 El. Goodday and Michell. Trefpafs for breaking his clofe, and for breaking down two gates, and three perches of hedge. The defendant juftifies; for that the faid clofe was in the parifh of Rudham, and that all the parishioners there for time immemorial had ufed to go over the faid close upon their perambulation in rogation week; and because the plaintiff stopped the two gates and obftructed three perches of hedge in the faid way, the defendant being one of the parishioners broke them down. And by the court; It is not to be doubted but that parishioners may well justify the going over any man's land in the perambulation, according to their ufage, and abate all nufances in their way. Cro. Eliz. 441.

In the perambulation of a parish, no refreshment can be claimed by the parishioners, as due of right from any houfe or lands in virtae of cuftom. The making good fuch a right on that foot, hath been twice attempted in the fpiritual courts; but in both cafes, prohibitions were granted, and the custom declared to be against law and reafon. Gibf. 213. 2 Roll's Rep, 259. 2 Lev. 163. 3 Keb. 609.

Thefe perambulations (tho' of great ufe in order to preferve the bounds of parishes) were in the times of popery accompanied with great abuses; viz. with feastings and with fuperftition; being performed in the nature of proceffions, with banners, hand bells, lights, ftaying at croffes, and the like. And therefore when proceffions were forbidden, the useful and innocent part of perambulations was retained, in the injunctions of queen Elizabeth; wherein it was required, that for the retaining of the perambulation of the circuits of parishes, the people fhould once in the year, at the time accustomed, with the curate and the fubftantial men of the parish, walk about the parishes, as they were accuftomed, and at their return to the church make their common prayers. And the curate in their faid common perambulations, was at certain convenient places to admonish the people, to give thanks to God (in the beholding of his benefits), and for the increase and abundance of his fruits upon the face of the earth; with the faying of the 103d pfalm. At which time alfo the faid minifter was required, to inculcate these or fuch like fentences, Curfed be he which

tranflateth

Bounds of parifhes, where to be tried.

tranflateth the bounds and dolles of his neighbour; or fuch other order of prayers, as should be lawfully appointed. Gibf. 213.

But the fuperftitions here laboured against, were not fo eafily fuppreffed; as may be gathered from the endea vours used to fupprefs them fo late as the time of arch. bishop Grindal: And now, fince that hath been long effected, it were to be wifhed, that perambulations were held more regularly and frequently than now they are; to the end the limits of parifhes may be the better kept up and afcertained. Gilf. 213.

3. The bounds of parishes, though coming in queftion in a spiritual matter, fhall be tried in the temporal court. This is a maxim, in which all the books of common law are unanimous; altho' our provincial conftitutions do mention the bounds of parishes, amongst the matters which merely belong to the ecclefiaftical court, and cannot belong to any other. Gibf. 212. (m)

And in the 14 C. when a prohibition was prayed to the fpiritual court, for proceeding to determine a cafe of tithes, the right to which depended on the lands lying in this or that vill; it was denied by the whole court of king's bench, who declared, that the bounds of vills are triable in the ecclefiaftical court. Gibs. 213.- But this was between two fpiritual perfons, the rector and vicar. 2 Roll's Abr. 312.

And in the cafe of Ives and Wright, H. 15 Car. If the bounds of a village in a parifh come in queftion in the

(m) The bounds of a parish may be tried in an action at law; but a bill will not lie for an iffue or commiffion to af certain boundaries between two parishes: except perhaps the parishioners have a common right, as where all the tenants of a manor claim a right of common by cuftom, in which cafe the right of all is tried by trying the right of one; or where all parties concerned are before the court. 1 Bro. 40. The parish of St. Luke Old-ftreet v. the parish of St. Leonard Shoreditch. 1 Anftr. 395. Alkyns v. Hatton; where a commiffion was prayed, in the court of exchequer, to afcertain the bounds of a parish upon a prefumption that all the lands within it would be titheable to the parfon, but denied'; and where it is faid, that the first mentioned decifion was, upon a bill brought by the parish of St. Luke, to avoid confufion in making the rates, a number of houfes having been built on wafte land, and it being doubtful to which parish the different parts of the wafte belonged.

eccle