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 the latter law makes the same offence indictable at the assizes: 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 assizes, and not elsewhere 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 IF a statute, that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose. So, when the statutes of 26 and 35 Henry VIII., declaring the king to be the supreme head of the church, were repealed by a statute 1 and 2 Philip and Mary, and this latter statute was afterwards repealed by an act of 1 Eliz., there needed not any express words of revival in queen Elizabeth's statute, but these acts of king Henry were impliedly and virtually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 ". (13). 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. Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind a subsequent parliament. And upon the same principle Cicero, in m 11 Rep.63. 4 Inst. 325. • Ibid. 43. (13) In the instance here put, the author is fully borne out by the authority which he quotes; but I believe it will be found upon reference to the statutes, that though the two statutes of Hen. 8. are repealed by the statute of Philip and Mary, they are neither impliedly nor in terms revived by that of Elizabeth; for they are not revived in terms by it, and the 13th section of that act confirms the repeal of all acts repealed by the statute of Ph. & M., and not "specially mentioned and revived" by itself. 5 his letters to Atticus, treats with a proper contempt those restraining clauses, which endeavoured 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, [91] "which guards against such repeal "." 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 in the ordinary forms of the constitution, that is vested with authority to 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. 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. 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 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 (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. 93 SECTION THE FOURTH. OF THE COUNTRIES SUBJECT TO THE 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, uncon-quered 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 antient 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 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 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 resumption) to the dominion of the crown of England'; or, as the statute (2) of Rhudlan 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 con"versa est, et coronae regni Angliae tanquam pars corporis ejus"dem 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 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 enjoy-ment of true liberty; being insensibly put upon the same a Vaugh. 400. (1) See post, p.224. b 10 Edw. I. 12 Edw. I. (2) The 10 Edw.I. which is called the statute of Roteland, Rothland, Rudhlan or Rhyddlan, and which appears to have been only an order in council made by the king (and therefore so denominated), at Rhudhlan, or Rhydhlan in Flintshire, has nothing to do with Wales; and the author has probably been led into the false reference by the fact that the statutum Wallic 12E. I. bears date at the same place. This also Mr. Barrington informs us is no statute, but a set of regulations made by the king in council for the government of Wales. In order to make these, the king, the year before, had caused enquiries, upon oath, as to the existing laws and constitutions of Wales, to be made before certain commissioners with the bishop of St. David's for their president. The returns of these commissioners are printed in the appendix to Hoel Dda's Laws. Barrington's Observ. p. 120. 4th Edition. The terms of the commission are built upon that alleged supremacy over Wales, which is mentioned in the text. The commissioners were to enquire per quas leges, et per quas consuetudines antecessores nostri reges regere consueverant principem Wallicæ, et barones Walenses Walliæ et pares suos, et alios inferiores, et eorum pares. See R. v. Coule, 2 Burr. 851. 21 |