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




THE kingdom of England, over which our municipal

laws have jurisdiction, includes not, by the commmon 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 over-run 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




Wales, the line of their ancient princes was abolished, and the king of England's eldest son became, as a matter of course (1), 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 Englanda; or, as the statute (2) of Rhudhlanb expresses it, "terra Walliae cum incolis suis, “prius regi jure feodali subjecta, (of which homage was the "sign,) jam in proprietatis dominium totaliter et cum integri"tate conversa est, et coronae regni Angliae tanquam pars corporis ejusdem 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 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 a Vaugh. 400.

b 10 Edw. I.

c 12 Edw. I.

(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. 400.) is the same as the Statutum Wallie. Mr. Barrington, in his Observations on the Ancient Statutes, (p. 74.) tells us, that the Statutum Walliæ 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 con66 queror, and he had a right to make use of his own words in the "preamble to his law." Ib. 75.


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 fellowcitizens 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 privileges.

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 [95] other, shall be used in Wales: besides many other

regulations of the police of this principality. And the statute 34 & 35 Hen. VIII. c. 26. confirms the same, adds farther regulations, divides it into twelve shires (3), 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 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 accession 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-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 the towns in Wales represented in parliament had the privilege granted of returning one only.

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 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 mighty, famous, and ancient kingdoms were formerly one. And sir Edward Coke observesd, 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 (4).

d 4 Inst. 345.

(4) 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 con

« VorigeDoorgaan »