For if twenty marks be made qualification fufficient, the former statute which requires twenty pounds is at an end'. [90] But if both acts be merely affirmative, and the fubftance fuch that both may ftand together, here the latter does not repeal the former, but they fhall both have a concurrent efficacy. If by a former law an offence be indictable at the quarter-fessions, and a latter law makes the fame offence indictable at the affifes; here the jurifdiction of the feffions is not taken away, but both have a concurrent jurisdiction, and the offender may be profecuted at either: unless the new ftatute fubjoins exprefs negative words, as, that the offence fhall be indictable at the aflifes, and not elsewhere". 8. Is a ftatute, that repeals another, is itfelf repealed afterwards, the firft ftatute is hereby revived, without any formal words for that purpose. So when the ftatutes of 26 and 35 Hen. VIII, declaring the king to be the fupreme head of the church, were repealed by a statute 1 and 2 Philip and Mary, and this latter ftatute was afterwards repealed by an act of 1 Eliz. there needed not any exprefs words of revival in queen Elizabeth's ftatute, but thefe acts of king Henry were impliedly and virtually revived". I 9. ACTS of parliament derogatory from the power of fub. fequent parliaments bind not. So the ftatute 11 Hen. VII, c. 1. which directs that no perfon for affifting a king de facto, fhall be attainted of treafon by act of parliament or otherwife, is held to be good only as to common profecutions for high treafon; but will not reftrain or clog any parlia mentary attainder". Because the legislature, being in truth the fovereign power, is always of equal, always of abfolute authority: it acknowleges no fuperior upon earth, which the prior legislature must have been, if it's ordinances could bind a fubfequent parliament. And upon the fame principle Cicero, in his letters to Atticus, treats with a proper con tempt these restraining claufes, which endeavour to tie up the hands of fucceeding legislatures. "When you repeal the ❝ law itself, says he, you at the fame time repeal the prohi- [91] "bitory claufe, 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 confequences, void (21). 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 in the ordinary forms of the constitution, that is vefted with authority to control it: and the examples ufually alleged in fupport of this fenfe 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 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 causes, that arife within his manor of Dale; yet, if a caufe fhould arife in which he himself is party, the act is P Cum lex abrogatur, illud ipfum abrogatur, quo non cam abrogari oporteat. l. 3. ep. 23. (21) If an act of parliament is clearly and unequivocally expreffed, with all deference to the learned Commentator, I conceive it is neither void in it's direct nor collateral confequences, however abfurd and unreasonable they may appear. If the expreffion will admit of doubt, it will not then be prefumed that that construction can be agreeable to the intention of the legislature, the confe quences of which are unreasonable; but where the fignification of a ftatute is manifeft, no authority less than that of parliament can restrain it's operation, conftrued conftrued not to extend to that, because it is unreasonable that any man should 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 those of other perfons, there is no court that has power to defeat the intent of the legiflature, 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 [92] affift, to moderate, and to explain them. What equity is, and how impoffible in it's very effence to be reduced to stated rules, hath been fhewn in the preceding fection. I fhall therefore only add, that (befides the liberality of fentiment with which our common law judges interpret acts of parliament, and fuch rules of the unwritten law as are not of a pofitive kind) there are alfo peculiar courts of equity established 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 are binding in confcience, though not cognizable in a court of law; to deliver from fuch dangers as are owing to misfortune or overfight; and to give a more fpecific 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 bufinefs of our courts of equity, which however are only conversant in matters of property. For the freedom of our conftitution will not permit, that in criminal cafes a power fhould be lodged in any judge, to conftrue 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 lefs. The laws cannot be ftrained by partiality to inflict a penalty beyond what the letter will warrant; but, in cafes where the letter induces any apparent hardship, the crown has the power to pardon. 48 Rep. 118. SECTION THE FOURTH. OF THE COUNTRIES SUBJECT ΤΟ THE LAWS OF ENGLAND. THE '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 cuftoms 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 fubject of thefe laws. WALES had continued independent of England, unconquered and uncultivated, in the primitive pastoral state which Cæfar and Tacitus afcribe to Britain in general, for many centuries; even from the time of the hoftile invafions of the Saxons, when the ancient and chriftian inhabitants of the ifland retired to thofe natural intrenchments, for protection from their pagan vifitants. 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 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 First, who may justly be ftiled the conqueror of Wales, Wales, the line of their antient 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 refumption) to the dominion of the crown England; or, as the statute (2) of Rhudhlan expreffes it, terra Wailiae 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 corporis ejus"dem annexa et unita." By the ftatute alfo of Wales very material alterations were made in divers parts of their laws, fo 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 iffue male, and did not defcend to the eldest fon alone. By other subsequent statutes their provincial immunities were ftill farther abridged: but the finishing stroke ¿12 Edw. I. a Vaugh. 400. 10 Edw. I. (1) It cannot be faid that the king's eldest fon became prince of Wales by any neceffary or natural confequence; but for the origin and creation of his title, fee p. 224. (2) The learned Judge has made a mistake in referring to the ftatute, which is called the ftatute of Rutland, in the 10 Ed. I. which does not at all relate to Wales. But the ftatute of Rutland, as it is called in Vaughan (p. 400.) is the fame as the Statutum Walke. Mr. Barrington, in his Observations on the Ancient Statutes, (p.74.) tells us, that the Statutum Wallia bears date apud Rotbelanum, what is now called Rhuydland in Flintshire. Though Edward fays, that terra Wallia prius regi jure feodali fubje&a, yet Mr. Barrington affures 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 fcarcely "an inftance 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 pre"amble to his law." Ib. 75 to |