'felf, fays he, you at the fame time repeal the prohibitory "clause, which guards against fuch repeal "."

10. LASTLY, acts of parliament that are impoffible to be performed are of no validity; and if there arife out of them collaterally any abfurd confequences, manifeftly contradictory to common reason, they are, with regard to thofe collateral confe quences, void. I lay down the rule with thefe reftrictions; though I know it is generally laid down more largely, that acts of parliament contrary to reafon are void. But if the parliament will pofitively enact a thing to be done which is unreasonable, I know of no power that can control it; and the examples ufually alleged in fupport of this sense of the rule do none of them prove, that, where the main object of a ftatute is unreasonable, the judges are at liberty to reject it; for that were to fet the judicial power above that of the legislature, which would be fubverfive of all government. But where fome collateral matter arifes out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this confequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc difregard it. Thus if an act of parliament gives a man power to try all caufes, that arife within his manor of Dale; yet, if a cause fhould arise in which he himself is party, the act is conftrued not to entend to that, because it is unreasonable that any man fhould determine his own quarrel But if we could conceive it poffible for the parliament to enact, that he should try as well his own caufes as thofe of other perfons, there is no court that has power to defeat the intent of the legislature, when couched in fuch evident and exprefs words, as leave no doubt whether it was the intent of the legislature or no.

THESE are the feveral grounds of the laws of England: over and above which, equity is alfo frequently called in to affift, to moderate.

M 2

P Cum lex abrogatur, illud ipfum abrogatur, q8 Rep. 119,

quo non cam abrogari oporteat. 1. 3. ep. 22.

moderate, and to explain them. What equity is, and how impoffible in it's very effence to be reduced to ftated rules, hath been fhown in the preceding fection. I fhall therefore only add, that (befides the liberality of fentiment with which our cominon law judges interpret acts of parliament, and fuch rules of the unwritten law as are not of a positive kind) there are alfo courts of equity eflablifhed 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 truft and confidence, as arc binding in confcience, though not cognizable in a court of law; to deliver from fuch dangers as are owing to misfortune or oversight; and to give a more fpccific 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 business of our courts of equity, which however are only converfant in matters of property. For the freedom of our constitution will not permit, that in criminal cafes a power fhould be lodged in any judge, to construe the law otherwise than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals. A man cannot fuffer more punishment than the law afligns, but he may fuffer less. The laws cannot be firained by partiality to inflict a penalty beyond what the letter will warrant; but, in cafes where the letter induces any apparent hardfhip, the crown has the power to pardon.

[93]

SECTION

THE FOURTH.

OF THE COUNTRIES SUBJECT TO THE

LAWS OF ENGLAND,

HE kingdom of England, over which our municipal laws

TH

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 lefs reftrictions, 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 itself, the original and proper fubject of thefe laws.

WALES had continued independent of England, unconquered and uncultivated, in the primitive paftoral state which Caefar and Tacitus afcribe to Britain in general, for many centuries; even from the time of the hoftile invasions of the Saxons, when the antient and chriftian inhabitants of the island 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 antient Britons grew every day narrower; they were overrun by little and little, gradually driven from one faftness to another, and by repeated loffes abridged of their wild independence. 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 juftly be ftiled the conqueror of Wales, the line

of

of their antient princes was abolished, and the king of England's eldeft fon became, as a matter of course, 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 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 tanquam pars corpo"ris ejufdem 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 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 descend to the eldest son alone. By other fubfequent ftatutes their provincial immunities were still farther abridged but the finishing stroke to their independency was given by the ftatute 27 Hen. VIII. c. 26, which at the same 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 infensibly put upon the fame footing, and made fellow-citizens with their conquerors. A generous method of triumph, which the republic of Rome practised with great fuccefs; till fhe reduced all Italy to her obedience, by admitting the vanquished states 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 Welchmen born fhall have the fame liberties as other the king's fubjects. 3. That lands in Wales shall be inheritable according to the English tenures and rules of defcent. 4. That the laws of England, and no other, shall be used

in

a Vaugh. 400.

b 10 Edw. I.

6:2 Edw. I.

in Wales: besides many other regulations of the police of this principality. And the ftatute 34 & 35 Hen. VIII. c. 26. confirms the fame, adds farther regulations, divides it into twelve fhires, and, in fhort, 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 thofe too of the nature of privileges, (fuch as having courts within itself, independent of the process 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 acceflion of their king James VI to that of England, continued an entirely feparate and diftinct kingdom for above a century more, though an union had been long projected; which was judged to be the more cafy to be done, as both kingdoms were antiently under the fame government, and still 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 cuftoms, and even the language of their laws. Upon which account he fuppofes the common law of each to have been originally the fame; efpecially as their most antient and authentic book, called regiam 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 ftood 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 jurifdictions, 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.