9. Let us next proceed to the leges scrilttx, the written laws of the kingdom ; which arc statutes, acts, or edicts, made by the king's majesty, by and with the advice and consent of the lords spiritual and temporal and commons, in parliament assembled. The oldest of these now ex tant, and printed in our statute books, is the famous magna charts, as confirmed in parliament, 9 Henry ill. though doubtless there were many acts before that time, the re cords of which are now lost, and the determinations of them perhaps at present currently received for the maxims of the common law.
10. Statutes are either general or special, public or pri vate. A general or public act is an univet sal rule that re gards the whole community ; and of this the courts of law are bound to take notice judicially and ex officio, without the statute being particularly pleaded, or formally set forth by the party who claims an advantage under it. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons, and private concerns : such as the Romans entitled senatus-decreta, in contradistinction to the. senatus•consulta, which regarded the whole community ; and of these (which are not pro mulgated with the same notoriety as the former) the judges are not hound to take notice, unless they be formally shown and pleaded.
11. Statutes also are either declaratory of the common law, or remedial of some defects in it. Declaratory, where the old custom of the kingdom is almost fallen into dis use, or become disreputable ; remedial, when made to supply such defects, and abridge such superfluities in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearn ed(or even learned)judges, or from any other cause whatso ever. And this being done either by enlarging the common law where it was too narrow and circumscribed, or by re straining it where it was too lax and luxuriant, has occa sioned another subordinate division of remedial acts of par liament into enlarging and restraining statutes.
12. These are the several grounds of the laws of Eng land ; over and above which, equity is also frequently call ed in to assist, to moderate, and to explain them. What equity is, and how impossible in its very essence to be re duced to stated rules, we shall not here inquire. We shall only observe, that (besides the liberality of sentiment with which the 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 mat ters 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 cir cumstances 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, how ever, are only conversant in matters of property. For the freedom of our constitution will not permit, that in crimi nal cases a power should be lodged in any judge to con strue 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 eases where the letter induces any apparent hardship, the crown has the power to pardon.