called in to affift, to moderate, and to explain them. What equity is, and how impoffible in its very effence to be reduced to ftated rules, hath been fhewn in the preceding fection. I fhall therefore only add, that (befides the liberality of sentiment with which our common law judges interpret acts of parliament, and fuch rules of the unwritten law as are not of a pofitive kind) there are alfo peculiar courts of equity established for the benefit of the fubject; to detect latent frauds and concealments, which the procefs of the courts of law is not adapted to reach; to enforce the execution of fuch matters of trust and confidence, as are binding in conscience, though not cognizable in a court of law; to deliver from fuch dangers as are owing to misfortune or overfight; and to give a more fpecifick relief, and more adapted to the circumftances of the cafe, than can always be obtained by the generality of the rules of the pofitive or common law. This is the bufiness of our courts of equity, which, however, are only converfant in matters of property. For the freedom of our conftitution will not permit, that in criminal cafes a power fhould be lodged in any judge, to conftrue the law otherwife than according to the letter. This caution, while it admirably protects the publick liberty, can never bear hard upon individuals. A man cannot fuffer more punishment than the law affigns, but he may fuffer lefs. The laws cannot be ftrained by partiality to inflict a penalty beyond what the letter will warrant ; but, in cafes where the tetter induces any apparent hardfhip, the erown has the power to pardon.

SECTION

SECTION the FDURTH.

93

OF THE COUNTRIES SUBJECT TO THE LAWS OF ENGLAND.

THE kingdom of England, over which our municipal laws have jurifdiction, 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 cuftoms of this territory do now obtain, in part or in all, with more or lefs reftrictions, in these and many other adjacent countries; of which it will be proper firft to take a review, before we confider the kingdom of England itself, the original and proper fubject of

thefe laws.

Wales had continued independent of England, unconquered and uncultivated, in the primitive paftoral ftate which Caefar and Tacitus afcribe 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 thofe natural intrenchments, for protection from their pagan vifitants. But when these invaders themfelves were converted to Chriftianity, and fettled into regular and potent governments, this retreat of the ancient Britons grew every day narrower; they were over run by little and little, gradually driven from one faftnefs to another, and by repeated loffes abridged of their wild independ

ence.

ence. Very early in our hiftory we find their princes. doing homage to the crown of England; till at length, in the reign of Edward the Firft, who may justly be ftyled the conqueror of Wales, the line of their ancient princes was abolifhed, and the king of England's eldest fon became, as a matter of course, their titular prince ; the territory of Wales being then entirely reannexed (by a kind of feodal resumption) to the dominion of the crown of England a; or, as the ftatute of Rhudhlan expreffes it, "terra Walliae cum incolis fuis, prius "regi jure feodali fubjecta (of which homage was the "fign) jam in proprietatis dominium totaliter et cum "integritate converfa eft, et coronae regni Angliae tan66 quam pars corporis ejufdem annexa et unita." By the ftatute alfo of Wales very material alterations were made in divers parts of their laws, fo as to reduce them nearer to the English ftandard, especially in the forms of their judicial proceedings: But they ftill retained very much of their original polity; particularly their rule of inheritance, viz. that their lands were divided equally among all the iffue male, and did not defcend to the eldest fon alone. By other fubfequent statutes their provincial immunities were still farther abridged: But the finishing ftroke to their independency was given by the ftatute 27 Hen. VIII. c. 26. which at the fame time gave the utmost advancement to their civil profperity, by admitting them to a thorough communication of laws with the fubjects of England. Thus were this brave people gradually conquered into the enjoyment of true liberty; being infenfibly put upon the fame footing, and made fellow citizens with their conquerors. A generous method of triumph, which the republick of Rome practifed with great fuccefs; till fhe reduced all Italy to her obedience, by admitting the vanquished ftates to partake of the Roman privileges.

It is enacted by this ftatute, 27 Hen. VIII, 1. That the dominion of Wales fhall be for ever united to the kingdom of England. 2. That all Welfhmen born fhall

a Vaugh. 400. b 10 Edward I.

C 12 Edward I.

fhall have the fame liberties as other the king's fubjects. 3. That lands in Wales fhall be inheritable according to the English tenures and rules of defcent. 4. That the laws of England, and no other, fhall be used in Wales: Besides many other regulations of the police of this principality. And the ftatute 34 and 35 Hen. VIII. c. 26. confirms the fame, adds farther regulations, divides it into twelve fhires, and, in short, reduces it into the fame order in which it ftands at this day; differing from the kingdom of England in only a few particulars, and those too of the nature of privileges, (fuch as having courts within itself, independent of the procefs of Westminster hall) and fome 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 acceffion of their king James VI, to that of England, continued an entirely feparate and diftin&t kingdom for above a century more, though an union had been long projected; which was judged to be the more eafy to be done, as both kingdoms were anciently under the fame 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 ancient kingdoms were formerly one. And Sir Edward Coke obferves, how marvellous a conformity there was, not only in the religion and language of the two nations, but alfo in their ancient laws, the descent of the crown, their parliaments, their titles of nobility, their officers of ftate and of juftice, their writs, their cuftoms, and even the language of their laws. Upon which account he fuppofes the common law of each to have been originally the fame; especially as their most ancient and authentick book, called Regiam Majeftatem, and containing the rules of their ancient common law, is extremely fimilar to that of Glanvil, which contains the principles of ours, as it ftood in the reign of Henry II. And the many diversities, fubfifting between the two laws at prefent, may be well enough accounted for,

d 4 Inft. 345.

from

from a diverfity of practice in two large and uncommunicating jurifdictions, 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 thefe 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 confiderable being as follows:

1. That on the 1ft of May, 1707, and for ever after, the kingdoms of England and Scotland fhall be united into one kingdom, by the name of Great Britain.

2. The fucceffion to the monarchy of Great Britain fhall be the fame as was before fettled with regard to that of England.

3. The united kingdom fhall be represented by one parliament.

4. There fhall 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 fhall raise 48,000l.

16. 17. The standards of the coin, of weights, and of measures, fhall be reduced to those of England, throughout the united kingdoms.

18. The laws relating to trade, customs, and the excife, fhall be the fame in Scotland as in England. But all the other laws of Scotland fhall remain in force, though alterable by the parliament of Great Britain. Yet with this caution, that laws relating to publick policy are alterable at the difcretion 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 chofen to reprefent the peerage of Scotland in parliament, and forty five members to fit in the houfe of commons.

23. The fixteen peers of Scotland fhall have all privileges of parliament: And all peers of Scotland fhall

be