and Mary, and this latter statute was afterwards repealed by an act of 1 Elizabeth, there needed not any express words of revival in queen Elizabeth's statute, but these acts of king Henry were impliedly and virtually revived. (n)

9. Acts of parliament derogatory from the power of subsequent parliaments bind not. So the statute 11 Henry VII. c. 1. which directs, that no person, for assisting a king de facto, shall be attainted of treason by act of parliament or otherwise, is held to be good only as to common prosecutions for high treason; but will not restrain or clog any parliamentary attainder. (0) Because the legislature, being in truth the sovereign power, is always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind a subsequent parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses,

which endeavour to tie up the hands of succeeding legislatures. [91] "When you repeal the law itself," says he, "you at the same time "repeal the prohibitory clause, which guards against such re"peal." (p)

:

10. Lastly, acts of parliament that are impossible to be performed are of no validity and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void. I lay down the rule with these restrictions: though I know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution, that is vested with authority to control it; and the examples usually alleged in support of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable, the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government. But where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it. Thus, if an act of parliament gives a man power to try all causes that arise within his manor of Dale; yet if a cause should arise in which he himself is party, the act is construed not to extend to that, because it is unreasonable that any man should determine his own quarrel. (q) But, if we could conceive it possible for the parliament to enact, that he should try as well his own causes as those of other persons, there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words as leave no doubt whether it was the intent of the legislature or no.

n 4 Inst 325.

29

o Ibid. 43.

p Cum lex abrogatur, illud ipsum abrogatur, quo non eam abrogari oporteat, l. 3. ep. 23.
q e Rep. 118.

(29) As to this doctrine, 8 Coke's Rep. 118. a. 2 Inst. 527. Finch, 74. Hobart, 87. 10 Mod. 115. 11 Coke, 63, Bac. Ab. statute A. where it is said, "if a statute be against common right or reason, or repugnant, or impossible to be performed, the common law shall control it and adjudge it to be void; but the judges will not hold a statute to be void unless it be clearly contrary to natural equity, for that they will strain hard rather than hold a statute to be void." Upon this question professor Christian has observed, " if an act of parliament is clearly and unequivocally expressed, with all deference to the learned commentator, I conceive it is neither void in its direct nor col

These are the several grounds of the laws of England: over and above which, equity is also frequently called in to assist, to moderate, [92] and to explain them. What equity is, and how impossible in its very

30

essence to be reduced to stated rules, hath been shewn in the preceding section. I shall therefore only add, that (besides the liberality of sentiment 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 subject; to detect latent frauds and concealments, which the process of the courts of law is not adapted to reach; to enforce the execution of such matters of trust and confidence as are binding in conscience, though not cognizable in a court of law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and more adapted to the circumstance of the case, than can always be obtained by the generality of the rules of the positive or common law. This is the business of our courts of equity, which however are only conversant in matters of property. For the freedom of our constitution will not permit, that in criminal cases a power should 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 suffer more punishment than the law assigns, but he may suffer less. The laws cannot be restrained by partiality to inflict a penalty beyond what the letter will warrant; but, in cases where the letter induces any apparent hardship, the crown has the power to pardon.

lateral consequences, however absurd and unreasonable they may appear. If the expression will admit of doubt, it will not then be presumed that that construction can be agreeable to the intention of the legislature, the consequences of which are unreasonable; but where the signification of a statute is manifest, no authority less than that of parliament can restrain its operation." (30) See also post 3 vol. ch. 27. The administration of justice by the ordinary courts appears in the early history of our jurisprudence to have been incomplete, and to supply the defect the courts of equity were then established, assuming the power of enforcing the principles upon which the ordinary courts also decide, when the powers of those courts or their modes of proceeding are insufficient for the purpose; and of deciding on principles of universal justice, where the interference of a court of judicature is necessary to prevent a wrong, and the positive law, as in the case of trusts, is silent. See Mitford's Treat. on Plead. page 4. Chitty.

INTRODUCTION.

SECTION IV.

OF THE COUNTRIES SUBJECT TO THE LAWS OF ENGLAND.

THE kingdom of England, over which our municipal laws 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 less restrictions, in these and many other adjacent countries of which it will be proper first to take a review, before we consider the kingdom of England itself, the original and proper subject of these laws.

Wales had continued independent of England, unconquered and uncultivated, in the primitive pastoral state which Cæsar and Tacitus ascribe 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 those natural intrenchments, for protection from their pagan visitants. But when these invaders themselves were converted to christianity, and settled into regular and potent governments, this retreat of the ancient Britons grew every day narrower; they were overrun by little and little, gradually driven from one fastness to another, and by repeated losses 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 styled the conqueror of [94] Wales, the line of their ancient princes was abolished, and the king

of England's eldest son became, as a matter of course,' their titular prince; the territory of Wales being then entirely re-annexed (by a kind of feodal resumption) to the dominion of the crown of England; (a) or, as the statute of Rhudlan (b) expresses it, "terra Walliæ cum inco

(1) It cannot be said that the king's eldest son became prince of Wales by any necessary or natural consequence: but for the origin and creation of his title, see p. 224.

(2) The learned judge has made a mistake in referring to the statute, which is called the statute of Rutland, in the 10 Ed. I. which does not at all relate to Wales. But the statute of Rutland, as it is called in Vaughan (p. 430.) is the same as the Statutum Walliæ. Mr. Barrington, in his Observations on the Ancient Statutes. (p. 74.) tells us, that the Statutum Wallie bears date apud Rothelanum, what is now called Rhuydland in Flintshire. Though Edward says, that terra Walliæ prius regi jure feodali subjecta, yet Mr. Barrington assures us, that the feudal law was then unknown in Wales, and that "there are at present in North Wales, and it is believed in South Wales, no copyhold tenures, and scarcely an instance 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 preamble to his law." Ib. 75. (Note of Mr. Christian's.) Chitty.

66

6,5

SECT. 4.] OF THE COUNTRIES SUBJECT TO, &c. "lis suis, prius regi jure feodali subjecta, (of which homage was the "sign,) jam in proprietatis dominium totaliter et cum integritate con"versa est, et coronæ regni Angliæ tanquam pars corporis ejusdem annexa et unita." By the statute also of Wales, (c) 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 still retained very much of their original polity, particularly their rule of inheritance, viz. that their lands were divided equally among all the issue male, and did not descend to the eldest son alone. By other subsequent statutes their provincial immunities were still farther abridged: but the finishing stroke to their independency was given by the statute 27 Hen. VIII. c. 26. which at the same time gave the utmost advancement to their civil prosperity, by admitting them to a thorough communication of laws with the subjects of England. Thus were this brave people gradually conquered into the enjoyment of true liberty; being insensibly put upon the same footing, and made fellow-citizens with their conquerors. A generous method of triumph, which the republic of Rome practised with great success, till she reduced all Italy to her obedience, by admitting the vanquished states to partake of the Roman privi- ! leges.

It is enacted by this statute 27 Hen. VIII. 1. That the dominion of Wales shall be for ever united to the kingdom of England. 2. That all Welshmen born shall have the same liberties as other the king's subjects. 3. That lands in Wales shall be inheritable according to the English tenures and rules of descent. 4. That the laws of England, and no other, shall be used in Wales; besides many other regulations of the [95] police of the principality. And the statute of 34 and 35 Hen. VIII.

3

c. 26. confirms the same, adds further regulations, divides it into twelve shires, and, in short, reduces it into the same order in which it stands at this day; differing from the kingdom of England in only a few particulars, and those too of the nature of privileges (such as having courts within itself, independent of the process of Westminster-hall), and some other im material 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 accession of their king James VI. to that of England, continued an entirely separate and distinct kingdom 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 anciently under the same 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

c 12 Edw. I

(3) By this union of Wales with England, twenty-seven 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 send two members to parliament; but the other counties and towns in Wales represented in parliament had the privilege granted of returning one only. Chitty.

(4) As to the courts in Wales see post 3 vol. 77. As to the construction of the statutes respecting the trial of murders and other felonies committed in Wales see 1 East, P. C. 363 to 365; and as to construction of Welsh judicature act 13 Geo. III c. 51. s. 1. 1 New Rep. 267. 2 Stark. 33. Wales without being expressly named in acts of parliament is included, and it is superfluous to name it, and the court of king's bench exercises jurisdiction over matters in Wales given by no act of parliament. 2 Burt. 853. Chitty

VOL. I.

mighty, famous, and ancient kingdoms were formerly one. And sir Edward Coke observes, (d) how marvellous a conformity there was, not only in the religion and language of the two nations, but also in their ancient laws, the descent 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 supposes the common law of each to have been originally the same; especially as their most ancient and authentic book, called regiam majestatem, and containing the rules of their ancient common law, is extremely similar to that of Glanvil, which contains the principles of ours as it stood in the reign of Henry II. And the many diversities subsisting between the two laws at present, may be well enough accounted for, from a diversity of practice in two large and uncommunicating jurisdictions, 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. "

[96]

However, sir Edward Coke, and the politicians of that time, conceived great difficulties in carrying on the projected union : but these

d 4 Inst. 345.

(5) The laws in Scotland concerning the tenures of land, and of consequence the constitution of parliaments and the royal prerogatives, were founded upon the same feudal principles as the laws respecting the subjects in England. It is said, 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, probably owing to the circumstance that they are more recent, are far more distinctly marked and defined than they are in the history of the English constitution. And perhaps the progress of the Scotch parliaments affords a clearer elucidation of the obscure and ambiguous points in the history of the representation and constitution of our country, than any arguments or authorities that have yet been adduced. But a particular discussion of this subject would far exceed the limits of a note, and will be reserved for a future occasion. But for an account of the parliament of Scotland before the union, and of the laws relative to the election of the representative peers and commoners of Scotland, I shall refer the studious reader to Mr. Wight's valuable Inquiry into the Rise and Progress of Parliaments chiefly in Scotland. (Quarto ed.) It is supposed, that we owe the lower house of parliament in England, to the accidental circumstance that the barons and the representatives of the counties and boroughs had not a room large enough to contain them all; but in Scotland, the three estates assembled always in one house, had one common president, and deliberated jointly upon all matters that came before them, whether of a judicial or of a legislative nature. (Wight, 82.) In England the lords spiritual were always styled one of the three estates of the realm; but there is no authority that they ever voted in a body distinct from the lords temporal. In the Scotch parliament the three estates were, 1. The bishops, abbots, and other prelates who had a seat in parliament, as in England, on account of their benefices, or rather lands, which they held in capite, i. e. immediately of the crown: 2. The barons, and the commissioners of shires, who were the representatives of the smaller barons, or the free tenants of the king: 3. The burgesses, or the representatives of the royal boroughs. Craig assures us, nihil ratum esse, nihil legis vim habere, nisi quod omnium trium ordinum consensu conjuncto constitutum est; ila tamen ut unius cujusque ordinis per se major pars consentiens pro toto ordine sufficiat. Scio hodie controverti, an duo ordines dissentiente tertio, quasi major pars leges condere possint; cujus partem negantem boni omnes, et quincunque de hac re scripserunt pertinacissimè tuentur, alioqui que ordines in eversionem tertii possint consentire. (De Feudis, lib. i. Diog. 7. s. 11.) But some writers have since presumed to controvert this doctrine (Wight, 83.) It is strange that a great fundamental point, which was likely to occur frequently, should remain a subject of doubt and controversy. But we should now be inclined to think, that a majority of one of the estates could not have resisted a majority of each of the other two, as it cannot easily be supposed that a majority of the spiritual lords would have consented to those statutes, which, from the year 1587 to the year 1690, were enacted for their impoverishment, and finally for their annihilation. At the time of the union, the Scotch parliament consisted only of the other two estates. With regard to laws concerning contracts and commerce, and perhaps also crimes, the law of Scotland is in a great degree conformable to the civil law; and this, probably, was owing to their frequent alliances and connections with France and the continent, where the civil law chiefly prevailed. Christian. (6) As to Scotland in general see the law collected, Com. Dig. Scotland, and Erskine's Prininlas of Scotch Law. Chitty.