THESE are the several grounds of the laws of England: over and above which, equity is also frequently called in to affift, to moderate, and to explain them. What equity is, [92] and how impossible in it's very effence to be reduced to stated rules, hath been fhewn in the preceding fection. I fhall therefore only add, that (befides the liberality of fentiment with which our common law judges interpret acts of parliament, and such rules of the unwritten law as are not of a positive kind) there are also peculiar courts of equity established for the benefit of the fubject; to detect latent frauds and concealments, which the process of the courts of law is not adapted to reach; to enforce the execution of fuch matters of truft and confidence, as are binding in confcience, 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 specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive 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 cases a power should be lodged in any judge, to conftrue the law otherwife than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals. A man cannot suffer more punishment than the law affigns, but he may fuffer less. The laws cannot be restrained by partiality to inflict a penalty beyond what the letter will warrant; but, in cafes where the letter induces any apparent hardship, the crown has the power to pardon.

SECTION THE FOURTH.

ού

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 restrictions, in these and many other adjacent countries; of which it will be proper first to take a review, before we confider the kingdom of England itfelf, the original and proper fubject of

thefe laws.

WALES had continued independent of England, unconquered and uncultivated, in the primitive paftoral state which Cæfar and Tacitus afcribe to Britain in general, for many centuries: even from the time of the hoftile invasions of the Saxons, when the ancient and chriftian inhabitants of the ifland retired to thofe natural intrenchments, for protection from their pagan vifitants. But when these invaders themselves 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 fastness to another, and by repeated loffes 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 filed the conqueror of

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Wales,

Wales, the line of their ancient princes was abolished, and the king of England's eldeft fon became, as a matter of courfe (1), their titular prince; the territory of Wales being then entirely re-annexed (by a kind of feodal refumption) to the dominion of the crown of England; or, as the ftatute (2) of Rhudlan expreffes it, "terra Wailiae cum incolis fuis, prius "regi jure feodali fubjecta, (of which homag was the fign,) "jam in proprietatis dominium totaliter et cum integritate con"versa est, et coronae regni Angliae tanquam pars corporis ejuf"dem annexa et unita." By the statute also 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 still 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 cldeft fon alone. By other subsequent statutes their provincial immunities were still farther abridged: but the finishing stroke

a Vaugh. 400.

b 10 Edw. I.

12 Edt. I.

(1) It cannot be said that the king's eldest fon became prince of Wales by any neceffary or natural confequence; but for the origin and creation of his title, fee p. 224.

(2) The learned Judge has made a mistake in referring to the ftatute, which is called the ftatute of Rutland, in the 10 Ed. I. which does not at all relate to Wales. But the ftatute of Rutland, as it is called in Vaughan (p. 430.) is the fame as the Statutum Willia. Mr. Barrington, in his Observations on the Ancient Stitutes, (p. 74.) tell us, that the Statutum Wallia bears date apud Raibelanum, what is now called Rhuydland in Flintshire. Though Edward fays, that terra Walliæ prius regi jure feodali fulje&a, yet Mr. Barrington affures us, that the feudal law was then unknown in Wales, and that "there are at prefent in North Wales, and it "is believed in South Wales, no copyhold tenures, and fcarcely "an inftance of what we call manerial rights; but the property "is entirely free and allodial. Edward, however, was a conqueror, " and he had a right to make use of his own words in the pre"amble to his law." Ib. 75.

VOL. I.

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to

to their independency was given by the statute 27 Hen. VIII. c. 26. which at the fame time gave the utmoft 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 republic of Rome practiced with great success, till the 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 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 [95] be used in Wales: befides many other regulations of the po

lice of this principality. And the ftatute 34 & 35 Hen VIII. c. 26. confirms the fame, adds farther regulations, divides it into twelve fhires (3), 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 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 acceffion of their king James VI. to that of England, continued an entirely separate and distinct king

(3) By this union of Wales with England, twenty-feven members were added to the English house of commons. By the 27 Hen. VIII. c. 26. the county of Monmouth (which till that time had been part of Wales) was enabled to fend two members to parliament; but the other counties and the towns in Wales reprefented in parliament had the privilege granted of returning one only.

dom

dom 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 fame government, and ftill retained a very great refemblance, 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 fir Edward Coke obferves, how marvellous a conformity there was, not only in the religion and language of the two nations, but also in their antient laws, the defcent 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 fuppofes the common law of each to have been originally the fame; especially as their most antient and authentic book, called regium majeftatem, and containing the rules of their antient common law, is extremely fimilar to that of Glanvil, which contains the principles of ours, as it stood in the reign of Henry II. And the many diversities fubfifting between the two laws at prefent, may be well enough accounted for, from a diversity of practice in two large and uncommunicating jurisdictions, and from the acts of two diftinct and independent parliaments, which have in many points altered and abrogated the old common law of both kingdoms (4).

d 4 Inft. 345.

(4) The laws in Scotland concerning the tenures of land, and of confequence the conftitution of parliaments and the royal prerogatives, were founded upon the fame feudal principles as the laws refpecting the fubjects in England. It is faid, that the feudal polity was established first in England; and was afterwards introduced into Scotland in imitation of the English government. But it continued in its original form much longer in Scotland than it did in England, and the changes in the Scotch government, propably owing to the circumstance that they are more recent, are far more diftinctly marked and defined than they are in the hiftory of the English conftitution. And perhaps the progress of the Scotch parliaments affords a clearer elucidation of the obfcure

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