place to the statute; and an old statute gives place to a new one. And
this upon the general principle laid down in the last section, that
"_leges posteriores priores contrarias abrogant_." But this is to be
understood, only when the latter statute is couched in negative terms,
or by it's matter necessarily implies a negative. As if a former act
says, that a juror upon such a trial shall have twenty pounds a year;
and a new statute comes and says, he shall have twenty marks: here the
latter statute, though it does not express, yet necessarily implies a
negative, and virtually repeals the former. For if twenty marks be
made qualification sufficient, the former statute which requires
twenty pounds is at an end[l]. But if both acts be merely affirmative,
and the substance such that both may stand together, here the latter
does not repeal the former, but they shall both have a concurrent
efficacy. If by a former law an offence be indictable at the quarter
sessions, and a latter law makes the same offence indictable at the
assises; here the jurisdiction of the sessions is not taken away, but
both have a concurrent jurisdiction, and the offender may be
prosecuted at either; unless the new statute subjoins express negative
words, as, that the offence shall be indictable at the assises, _and
not elsewhere_[m].
[Footnote l: Jenk. Cent. 2. 73.]
[Footnote m: 11 Rep. 63.]
8. IF a statute, that repeals another, is itself repealed afterwards,
the first statute is hereby revived, without any formal words for that
purpose. So when the statutes of 26 and 35 Hen. VIII, declaring the
king to be the supreme head of the church, were repealed by a statute
1 & 2 Ph. and Mary, and this latter statute was afterwards repealed by
an act of 1 Eliz. 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].
[Footnote n: 4 Inst. 325.]
9. ACTS of parliament derogatory from the power of subsequent
parliaments bind not. So the statute 11 Hen. 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[o]. Because the legislature, being in
truth the sovereign power, is always of equal, always of absolute
authority: it acknowleges no superior upon earth, which the prior
legislature must have been, if it's ordinances could bind the present
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. "When you
repeal the law itself, says he, you at the same time repeal the
prohibitory clause, which guards against such repeal[p]."
[Footnote o: 4 Inst. 43.]
[Footnote p: _Cum lex abrogatur, illud ipsum abrogatur, quo non eam
abrogari oporteat._ _l._ 3. _ep._ 23.]
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 that can 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.
[Footnote q: 8 Rep. 118.]
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 it. What equity is, and how impossible 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 subject, to correct
and soften the rigor of the law, when through it's generality it bears
too hard in particular cases; to detect and punish latent frauds,
which the law is not minute enough to reach; to enforce the execution
of such matters of trust and confidence, as are binding in conscience,
though perhaps not strictly legal; to deliver from such dangers as are
owing to misfortune or oversight; and, in short, to relieve in all
such cases as are, _bona fide_, objects of relief. 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 THE FOURTH.
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 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; till at length in the reign of
Edward the first, who may justly be stiled the conqueror of Wales, the
line 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
dominion of the crown of England[a], or, as the statute of Rutland[b]
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 integritate conversa est, et coronae regni
Angliae 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 privileges.
[Footnote a: Vaugh. 400.]
[Footnote b: 10 Edw. I.]
[Footnote c: 12 Edw. I.]
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 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. And the statute 34 & 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 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 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 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 antient 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 antient 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 antient and
authentic book, called _regiam majestatem_ and containing the rules of
_their_ antient common law, is extremely similar 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.
[Footnote d: 4 Inst. 345.]
HOWEVER sir 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 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 2,000,000_l._ by a land tax, Scotland shall
raise 48,000_l._
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; but 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 rights are not to be altered but for the evident utility of
the people of Scotland.
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.
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 for ever, 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, but an infringement of those points which, when
they were separate and independent nations, it was mutually stipulated
should be "fundamental and essential conditions of the union." 2. That
whatever else may be deemed "fundamental and essential conditions,"
the preservation of 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 constitutions of either of those churches, or in the
liturgy of the church of England, 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, 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; and, of consequence, in the ensuing commentaries, we shall
have very little occasion to mention, any farther than sometimes by
way of illustration, the municipal laws of that part of the united
kingdoms.
THE town of Berwick upon Tweed, though subject to the crown of England
ever since the conquest of it in the reign of Edward IV, is not part
of the kingdom of England, nor subject to the common law; though it is
subject to all acts of parliament, being represented by burgesses
therein. And therefore it was declared by statute 20 Geo. II. c. 42.
that where England only is mentioned in any act of parliament, the
same notwithstanding shall be deemed to comprehend the dominion of
Wales, and town of Berwick upon Tweed. But the general law there used
is the Scots law, and the ordinary process of the courts of
Westminster-hall is there of no authority[e].
[Footnote e: 1 Sid. 382. 2 Show. 365.]
AS to Ireland, that is still a distinct kingdom; though a dependent,
subordinate kingdom. It was only entitled the dominion or lordship of
Ireland[f], and the king's stile was no other than _dominus
Hiberniae_, lord of Ireland, till the thirty third year of king Henry
the eighth; when he assumed the title of king, which is recognized by
act of parliament 35 Hen. VIII. 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, at
which time they carried over the English laws along with them. 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.
[Footnote f: _Stat. Hiberniae._ 14 Hen. III.]
AT the time of this conquest the Irish were governed by what they
called the Brehon law, so stiled from the Irish name of judges, who
were denominated Brehons[g]. 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[h]: which letters patent sir Edward
Coke[i] apprehends to have been there confirmed in parliament. But to
this ordinance many of the Irish were averse to conform, and still
stuck to their Brehon law: so that both Henry the third[k] and Edward
the first[l] were obliged to renew the injunction; and at length in a
parliament holden at Kilkenny, 40 Edw. III, under Lionel duke of
Clarence, the then lieutenant of Ireland, the Brehon law was formally
abolished, it being unanimously declared to be indeed no law, but a
lewd custom crept in of later times. And yet, even in the reign of
queen Elizabeth, the wild natives still kept and preserved their
Brehon law; which is described[m] to have been "a rule of right
unwritten, but delivered by tradition from one to another, in which
oftentimes there appeared great shew of equity in determining the
right between party and party, but in many things repugnant quite
both to God's law and man's." The latter part of which character is
alone allowed it under Edward the first and his grandson.
[Footnote g: 4 Inst. 358. Edm. Spenser's state of Ireland. p. 1513.
edit. Hughes.]
[Footnote h: Vaugh. 294. 2 Pryn. Rec. 85.]
[Footnote i: 1 Inst. 341.]
[Footnote k: _A.R._ 30. 1 Rym. _Foed._ 442.]
[Footnote l: _A.R._ 5.--_pro eo quod leges quibus utuntur Hybernici
Deo detestabiles existunt, et omni juri dissonant, adeo quod leges
censeri non debeant--nobis et consilio nostro satis videtur expediens
eisdem utendas concedere leges Anglicanas._ 3 Pryn. Rec. 1218.]
[Footnote m: Edm. Spenser. _ibid._]
BUT as Ireland was a distinct dominion, and had parliaments of it's
own, it is to be observed, that though the immemorial customs, or
common law, of England were made the rule of justice in Ireland also,
yet no acts of the English parliament, since the twelfth of king John,
extended into that kingdom; unless it were specially named, or
included under general words, such as, "within any of the king's
dominions." And this is particularly expressed, and the reason given
in the year book[n]: "Ireland hath a parliament of it's own, and
maketh and altereth laws; and our statutes do not bind them, because
they do not send representatives to our parliament: but their persons
are the king's subjects, like as the inhabitants of Calais, Gascoigny,
and Guienne, while they continued under the king's subjection." The
method made use of in Ireland, as stated by sir Edward Coke[o], of
making statutes in their parliaments, according to Poynings' law, of
which hereafter, is this: 1. The lord lieutenant and council of
Ireland must certify to the king under the great seal of Ireland the
acts proposed to be passed. 2. The king and council of England are to
consider, approve, alter, or reject the said acts; and certify them
back again under the great seal of England. And then, 3. They are to
be proposed, received, or rejected in the parliament of Ireland. By
this means nothing was left to the parliament in Ireland, but a bare
negative or power of rejecting, not of proposing, any law. But the
usage now is, that bills are often framed in either house of
parliament under the denomination of heads for a bill or bills; and in
that shape they are offered to the consideration of the lord
lieutenant and privy council, who then reject them at pleasure,
without transmitting them to England.
[Footnote n: 2 Ric. III. pl. 12.]
[Footnote o: 4 Inst. 353.]
BUT the Irish nation, being excluded from the benefit of the English
statutes, were deprived of many good and profitable laws, made for
the improvement of the common law: and, the measure of justice in both
kingdoms becoming thereby no longer uniform, therefore in the 10 Hen.
VII. a set of statutes passed in Ireland, (sir Edward Poynings being
then lord deputy, whence it is called Poynings' law) by which it was,
among other things, enacted, that all acts of parliament before made
in England, should be of force within the realm of Ireland[p]. But, by
the same rule that no laws made in England, between king John's time
and Poynings' law, were then binding in Ireland, it follows that no
acts of the English parliament made since the 10 Hen. VII. do now bind
the people of Ireland, unless specially named or included under
general words[q]. And on the other hand it is equally clear, that
where Ireland is particularly named, or is included under general
words, they are bound by such acts of parliament. For this follows
from the very nature and constitution of a dependent state: dependence
being very little else, but an obligation to conform to the will or
law of that superior person or state, upon which the inferior depends.
The original and true ground of this superiority is the right of
conquest: a right allowed by the law of nations, if not by that of
nature; and founded upon a compact either expressly or tacitly made
between the conqueror and the conquered, that if they will acknowlege
the victor for their master, he will treat them for the future as
subjects, and not as enemies[r].
[Footnote p: 4 Inst. 351.]
[Footnote q: 12 Rep. 112.]
[Footnote r: Puff. L. of N. 8. 6. 24.]
BUT this state of dependence being almost forgotten, and ready to be
disputed by the Irish nation, it became necessary some years ago to
declare how that matter really stood: and therefore by statute 6 Geo.
I. c. 5. it is declared, that the kingdom of Ireland ought to be
subordinate to, and dependent upon, the imperial crown of Great
Britain, as being inseparably united thereto; and that the king's
majesty, with the consent of the lords and commons of Great Britain in
parliament, hath power to make laws to bind the people of Ireland.