moderate, and to explain it. What equity is, and how impoffible in it's very essence to be reduced to stated rules, hath been shewn in the preceding section. I shall therefore only add, that there are courts of this kind established for the benefit of the fubject, to correct and foften the rigor of the law, when through it's generality it bears too hard in particular cafes; to detect and punish latent frauds, which the law is not minute enough to reach; to enforce the execution of fuch matters of trust and confidence, as are binding in confcience, though perhaps not strictly legal; to deliver from fuch dangers as are owing to misfortune or oversight; and, in short, to relieve in all such cafes as are, bona fide, objects of relief. 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 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 fuffer more punishment than the law affigns, but he may fuffer 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 hardihip, the crown has the power to pardon.

[93]

SECTION THE FOURTH,

OF THE COUNTRIES SUBJECT TO THE LAWS OF ENGLAND.

T

HE 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 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 confider 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 paftoral state which Caefar and Tacitus ascribe to Britain in general, for many centuries; even from the time of the hoftile invafions of the Saxons, when the antient and chriftian inhabitants of the island retired to those 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 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; til at length in the reign of Edward the first, who may justly be stiled the conqueror of Wales, the line

of

of their antient 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 annexed to the deminion of the crown of England, or, as the statute of Rutland expresses it, “ terra Walliae cum incolis fuis, prius regi jure feodali "Jubjecta, (of which homage was the sign) jam ir proprietatis “ dominium totaliter et cum integritate converfa eft, et coronae regni “ Angliae tanquam pars corporis 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 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 ftatutes 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 fame time gave the utmoit 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 insensibly 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 the 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 Welchmen born shall 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 descent. 4. That the laws of England, and no other, shall be used in Wales: befides many other regulations of the police of this

12 Edw. I.

principality. And the statute 34 & 35 Hen. VIII. c. 26. confirms the fame, adds farther regulations, divides it into twelve shires, and, in short, reduces it into the fame 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 acceffion of their king James VI to that of England, continued an entirely separate and distinct kingdom for above a century, 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 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 antient kingdoms were formerly one. And fir Edward Coke observesd, 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 supposes the common law of each to have been originally the fame, especially as their moft antient and authentic book, called regiam majeftatem and containing the rules of their antient common law, is extremely fimilar 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 present, 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 indepen-dent parliaments, which have in many points altered and abrogated the old common law of both kingdoms.

HOWEVER fir Edward Coke, and the politicians of that time, conceived great difficulties in carrying on the projected union : but these were at length overcome, and the great work was happily effected in 1707, 5 Anne; when twenty five articles of union were agreed to by the parliaments of both nations: the purport of the most confiderable 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 fame as was before fettled with regard to that of England.

3. THE united kingdom shall be represented by one parlia

ment.

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 2,000,000 1. by a land tax, Scotland shall raise 48,000/.

16, 17. THE standards of the coin, of weights, and of meafures, shall be reduced to those of England, throughout the united kingdoms.

18. THE laws relating to trade, customs, and the excife, shall be the fame in Scotland as in England. But all the other laws of Scotland shall remain in force; but alterable by the parliament of Great Britain. Yet with this caution; that laws relating to public policy are alterable at the difcretion of the parliament; laws relating to private rights are not to be altered but for the evident utility of the people of Scotland.