These are the several grounds of the laws of England; over and above which,

[*92] equity is also frequently called in to *assist, to moderate and to explain them. What 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 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 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.

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 Caesar 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 [*94] styled the conquerer 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 reannexed (by a kind of feudal resumption) to the dominion of the crown of England; (a) or, as the statute (2) of Rhudland (b) expresses it. "Terra Wallia

(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 page 224.]

(2) [The learned judge has made a mistake in referring to the statute, which is called the statute of Rutland, in the 10 Edw. I, which does not at all relate to Wales. But the statute of

cum incolis suis, prius regi jure feodali subjecta, (of which homage was the sign) jam in proprietatis dominium totaliter et cum integritate conversa est, et corone 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 practiced 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 other, shall be used in Wales: besides many other regulations of the police of this principality. [*95] And the statute 34 and 35 Hen. VIII, c. 26, confirms the same, adds farther 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 sonie 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 kingdom for above a century more, though an union had been long projected; which was judged to be 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 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

Rutland, as it is called in Vaughan, p. 400, is the same as the Statutum Walliæ. Mr. Barrington, in his Observations on the Ancient Statutes, p. 74, tells us, that the Statutum Wall: 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 manorial 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. See also Reeves' History of the English law, ii. 95.]

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. *However, Sir Edward Coke, and the politicians of that time, con[*96] ceived great difficulties in carrying on the projected union; but these 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 considerable being as follows:

1. That on the first of May, 1707, and for ever after, the kingdoms of England and Scotland shall be united into one kingdom, by the name of Great Britain. 2. The succession to the monarchy of Great Britain shall be the same as was before settled with regard to that of England.

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

4. There shall 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 shall raise 48,0007. 16, 17. The standards of the coin, of weights, and of measures, shall be reduced to those of England, throughout the united kingdoms.

18. The laws relating to trade, customs, and the excise, shall be the same in Scotland as in England. But all the other laws of Scotland shall remain in force; though alterable by the parliament of Great Britain. Yet with this caution: that laws relating to public policy are alterable at the discretion of the parliament: laws relating to private right are not to be altered but for the evident utility of the people of Scotland.

[*97]

*22. Sixteen peers are to be chosen to represent the peerage of Scotland in parliament, and forty-five members to sit in the house of commons. 23. The sixteen peers of Scotland shall have all privileges of parliament; and all peers of Scotland shall be peers of Great Britain, and rank next after those of the same degree at the time of the union, and shall have all privileges of peers, except sitting in the house of lords, and voting on the trial of a peer. (3)

(3) [Since the union, the following orders have been made in the house of lords respecting the peerage of Scotland. Queen Anne, in the seventh year of her reign, had created James duke of Queensbury, duke of Dover, with remainder in tail to his second son, then earl of Solway, in Scotland; and upon the 21st of January, 1708-9, it was resolved by the lords, that a peer of Scotland claiming to sit in the house of peers by virtue of a patent passed under the great seal of Great Britain, and who now sits in the parliament of Great Britain, had no right to vote in the election of the sixteen peers who are to represent the peers of Scotland in parliament.

The duke of Hamilton having been created duke of Brandon, it was resolved by the lords on the 20th of December, 1711, that no patent of honor granted to any peer of Great Britain, who was a peer of Scotland at the time of the union, should entitle him to sit in parliament. Notwithstanding this resolution gave great offence to the Scotch peerage, and to the queen and her ministry, yet a few years afterwards, when the duke of Dover died, leaving the earl of Solway, the next in remainder, an infant, who, upon his coming of age, petitioned the king for a writ of summons as duke of Dover; the question was again argued on the 18th December, 1719, and the claim as before disallowed. See the argument, 1 P. Wms. 582. But in 1782, the duke of Hamilton claimed to sit as duke of Brandon, and the question being referred to the judges, they were unanimously of opinion, that the peers of Scotland are not disabled from receiving, subsequently to the union, a patent of peerage of Great Britain, with all the privileges incident thereto. Upon which the lords certified to the king, that the writ of summons ought to be allowed to the duke of Brandon, who now enjoys a seat as a British peer. (6th June, 1782.) But there never was any objection to an English peer's taking a Scotch peerage by descent; and therefore, before the last decision, when it was wished to confer an English title upon a noble family of Scotland, the eldest son of the Scotch peer was created, in his father's life-time, an English peer, and the creation was not affected by the annexation by inheritance of the Scotch peerage. On the 13th February, 1787, it was resolved, that the earl of Abercorn and the duke of Queensbury, who had been chosen of the number of the sixteen peers of Scotland, having been created peers of Great Britain, thereby ceased to sit in that house as representatives of the peerage. See the argument in Ann. Reg. for 1787, p. 95. At the election occasioned by the last resolution, the dukes of Queensbury and Gordon had

These are the principal of the twenty-five articles of union, which are ratified and confirmed by statute 5 Ann. c. 8, in which statute there are also two acts of parliament recited; the one of Scotland, whereby the church of Scotland, and also the four universities of that kingdom, are established forever, and all succeeding sovereigns are to take an oath inviolably to maintain the same; the other of England, 5 Ann. c. 6, whereby the acts of uniformity of 13 Eliz. and 13 Car. II, (except as the same had been altered by parliament at that time,) and all other acts then in force for the preservation of the church of England, are declared perpetual; and it is stipulated, that every subsequent king and queen shall take an oath inviolably to maintain the same within England, Ireland, Wales, and the town of Berwick upon Tweed. And it is enacted, that these two acts "shall for ever be observed as fundamental and essential conditions of the union."

Upon these articles and act of union, it is to be observed, 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them. again, except the mutual consent of both, or the successful resistance of either, upon apprehending an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be “funda mental and essential conditions of the union." (e) 2. That whatever else may be deemed "fundamental *and essential conditions," the preservation of [*98] the two churches of England and Scotland in the same state that they were in at the time of the union, and the maintenance of the acts of uniformity which establish our common prayer, are expressly declared so to be. 3. That therefore any alteration in the constitution of either of those churches, or in the liturgy of the church of England, (unless with the consent of the respective churches, collectively or representatively given,) would be an infringement of these "fundamental and essential conditions," and greatly endanger the union. 4. That the municipal laws of Scotland are ordained to be still observed in that part of the island, unless altered by parliament; and as the parliament has not yet thought proper, except in a few instances, (4) to alter them, they still, with regard to the particulars unaltered, continue in full force. Wherefore the municipal or common laws of England are, generally speaking, of no force or validity in Scotland; (5) and of consequence, in the ensuing Commen(e) It may justly be doubted whether even such an infringement (though a manifest breach of good faith, unless done upon the most pressing necessity) would of itself dissolve the union; for the bare idea of a State, without a power somewhere vested to alter every part of its laws, is the height of political absurdity. The truth seems to be, that in such an incorporate union (which is well distinguished by a very learned prelate from a fœderate alliance, where such an infringement would certainly rescind the compact) the two contracting states are totally annihilated, without any power of a revival; and a third arises from their conjunction, in which all the rights of sovereignty, and particularly that of legislation, must of necessity reside. See Wa burton's Alliance, 195. But the wanton or imprudent exertion of this right would probably raise a very alarming ferment in the minds of individuals; and therefore it is hinted above that such an attempt might endanger (though by no means destroy) the union,

To illustrate this matter a little farther, an act of parliament to repeal or alter the act of uniformity in England, or to establish episcopacy in Scotland, would doubtless in point of authority be sufficiently valid and binding; and notwithstanding such an act, the union would continue unbroken. Nay, each of these measures might be safely and honorably pursued, if respectively agreeable to the sentiments of the English church, or the kirk in Scotland. But it should seem neither prudent, nor perhaps consistent with good faith, to venture upon either of those steps, by a spontaneous exertion of the inherent powers of parliament, or at the instance of mere individuals. So sacred indeed are the laws above mentioned (for protecting each church and the English liturgy) esteemed, that in the regency acts both of 1751 and 1765 the regents are expressly disabled from assenting to the repeal or alteration of either these or the act of settlement.

given their votes as peers of Scotland, contrary to the resolution of 1709, in consequence of which it was resolved, 18th May, 1787, that a copy of that resolution should be transmitted to the lord register of Scotland, as a rule for his future proceeding in cases of election.

The duke of Queensbury and marquis of Abercorn had tendered their votes at the last general election, and their votes were rejected; but notwithstanding the former resolutions, on 23d May, 1793, it was resolved, that, if duly tendered, they ought to have been counted.]

There were, in 1861, no less than forty Scottish peers sitting in the house of lords by virtue of British peerages created in their favor since the union of the two kingdoms. May, Const. Hist. c. 5.

(4) [Acts of parliament passed since the union extend in general to Scotland; but where a statute is only applicable to England, and where Scotland is not intended to be included, the bill expressly provides that it does not extend to Scotland. See 3 Burr. 853.]

(5) [See the case of the King v. Cowle, in 2 Burr. 834, where the constitution of the town of Berwick upon Tweed, and indeed the prerogative as to dominion extra Great Britain, is very elaborately discussed.]

taries, we shall have very little occasion to mention, any further than sometimes by way of illustration, the municipal laws of that part of the united kingdoms. The town of Berwick upon Tweed was originally part of the kingdom of [*99] Scotland; and, as such, was for a time reduced by King Edward I into the possession of the crown of England: and during such, its subjection, it received from that prince a charter, which (after its subsequent cession by Edward Balliol, to be for ever united to the crown and realm of England,) was confirmed by King Edward III, with some additions; particularly that it should be governed by the laws and usages which it enjoyed during the time of King Alexander, that is, before its reduction by Edward I. Its constitution was new modelled, and put upon an English footing, by a charter of King James I: and all its liberties, franchises, and customs, were confirmed in parliament by the statutes 22 Edward IV, c. 8, and 2 Jac. I, c. 28. Though, therefore, it hath some local pecularities, derived from the ancient laws of Scotland, (ƒ) yet it is clearly part of the realm of England, being represented by burgesses in the house of commons, and bound by all acts of the British parliament, whether specially named or otherwise. And therefore it was, perhaps superfluously, declared, by statute 20 Geo. II, c. 42, that, where England only is mentioned in any act of parliament, the same, notwithstanding, hath and shall be deemed to comprehend the dominion of Wales and town of Berwick upon Tweed. And though certain of the king's writs or processes of the courts of Westminster do not usually run into Berwick, any more than the principality of Wales, yet it hath been solemnly adjudged (g) that all prerogative writs, as those of mandamus, prohibition, habeas corpus, certiorari, &c., may issue to Berwick as well as to every other of the dominions of the crown of England, and that indictments and other local matters arising in the town of Berwick may be tried by a jury of the county of Northumberland. (6)

As to Ireland, that is still a distinct kingdom, though a dependent subordinate kingdom. It was only entitled the dominion or lordship of Ireland, (h) and the king's style was no other than dominus Hiberniæ, lord of Ireland, till the thirty-third year of King Henry the Eighth, when he assumed (7) the *title of king, which is recognized by act parliament 35 Hen. VIII, [*100] c. 3. But, as Scotland and England are now one and the same kingdom, and yet differ in their municipal laws, so England and Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws. The inhabitants of Ireland are, for the most part, descended from the English, who planted it as a kind of colony, after the conquest of it by King Henry the Second; and the laws of England were then received and sworn to by the Irish nation, assembled at the council of Lismore. (i) And as Ireland, thus conquered, planted, and governed, still continues in a state of dependence, it must necessarily conform to, and be obliged by, such laws as the superior state thinks proper to prescribe.

At the time of this conquest the Irish were governed by what they called the Brehon law, so styled from the Irish name of judges, who were denominated Brehons. (k) But king John, in the twelfth year of his reign, went into Ireland, and carried over with him many able sages of the law; and there, by his letters patent, in right of the dominion of conquest, is said to have ordained and established that Ireland should be governed by the laws of England: (1) which letters patent Sir Edward Coke (m) apprehends to have been there con

(f) Hale, Hist. C. L. 183. 1 Sid. 382, 462. 2 Show. 365.

(g) Cro. Jac. 543. 2 Roll. Abr. 292. Stat. 11 Geo. I, c. 4. Burr. 834. (h) Stat. Hiberniæ, 14 Hen. III. (i) Pryn. on 4 Inst. 249. (k) 4 Inst. 358. Edm. Spenser's State of Ireland, p. 1513, edit. Hughes. (1) Vaugh. 294. 2 Pryn. Rec. 85. 7 Rep. 23. (m) 1 Inst. 141.

(6) Since these commentaries were written, a number of acts of parliament have been passed, making alterations in the mode of administering justice in Scotland, but it is not deemed important to enumerate them here.

(7) [The title of king was conferred upon him and his successors; and it was made treason for any inhabitant of Ireland to deny it, by 33 Hen. VIII, c. 1, Irish Stat.]