Front Page Titles (by Subject) CHAPTER VIII.: OF THE KING'S REVENUE. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER VIII.: OF THE KING’S REVENUE. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF THE KING’S REVENUE.
Having, in the preceding chapter, considered at large those branches of the king’s prerogative, which contribute to his royal dignity, and constitute the executive power of the government, we proceed now to examine the king’s fiscus prerogatives, or such as regard his revenue; which the British constitution hath vested in the royal person, in order to support his dignity and maintain his power: being a portion which each subject contributes of his property, in order to secure the remainder.
This revenue is either ordinary or extraordinary. The king’s ordinary revenue is such, as has either subsisted time out of mind in the crown; or else has been granted by parliament, by way of purchase or exchange for such of the king’s inherent hereditary revenues, as were found inconvenient to the subject.
When I say that it has subsisted time out of mind in the crown, I do not mean that the king is at present in the actual possession of the whole of this revenue. Much (nay, the greatest part) of it is at this day in the hands of subjects, to whom it has been granted out from time to time by the kings of England: which has rendered the crown in some measure dependent on the people for its ordinary support and subsistence. So that I must be obliged to recount, as part of the royal revenue, what lords of manors and other subjects **282]frequently look upon to be their own absolute inherent rights; because they are and have been vested in them and their ancestors for ages, though in reality originally derived from the grants of our ancient princes.
I. The first of the king’s ordinary revenues, which I shall take notice of, is of an ecclesiastical kind; (as are also the three succeeding ones) viz. the custody of the temporalties of bishops: by which are meant all the lay revenues, lands, and tenements, (in which is included his barony,) which belong to an archbishop’s or bishop’s see. And these upon the vacancy of the bishopric are immediately the right of the king, as a consequence of his prerogative in church matters; whereby he is considered as the founder of all archbishoprics and bishoprics, to whom during the vacancy they revert. And for the same reason, before the dissolution of abbeys, the king had the custody of the temporalties of all such abbeys and priories as were of royal foundation (but not of those founded by subjects) on the death of the abbot or prior.(a) Another reason may also be given, why the policy of the law hath vested this custody in the king; because as the successor is not known, the lands and possessions of the see would be liable to spoil and devastation, if no one had a property therein. Therefore the law has given the king, not the temporalties themselves, but the custody of the temporalties, till such time as a successor is appointed; with power of taking to himself all the intermediate profits, without any account of the successor; and with the right of presenting (which the crown very frequently exercises) to such benefices and other preferments as fall within the time of vacation.(b) This revenue is of so high a nature, that it could not be granted out to a subject, before, or even after, it accrued: but now by the statute 15 Edw. III. st. 4, c. 4 and 5, the king may, after the vacancy, lease the temporalties to the dean and chapter; saving to himself all advowsons, escheats, and the like. Our ancient kings, and particularly William Rufus, were not only remarkable for keeping the bishoprics a long time **283]vacant, for the sake of enjoying the temporalties, but also committed horrible waste on the woods and other parts of the estate; and to crown all, would never, when the see was filled up, restore to the bishop his temporalties again, unless he purchased them at an exorbitant price. To remedy which, king Henry the First(c) granted a charter at the beginning of his reign, promising neither to sell, nor let to farm, nor take any thing from, the domains of the church, till the successor was installed.1 And it was made one of the articles of the great charter,(d) that no waste should be committed in the temporalties of bishoprics, neither should the custody of them be sold. The same is ordained by the statute of Westminster the 1st;(e) and the statute 14 Edw. III. st. 4, c. 4, (which permits, as we have seen, a lease to the dean and chapter,) is still more explicit in prohibiting the other exactions. It was also a frequent abuse, that the king would for trifling, or no causes, seize the temporalties of bishops, even during their lives, into his own hands: but this is guarded against by statute 1 Edw. III. st. 2, c. 2.
This revenue of the king, which was formerly very considerable, is now by a customary indulgence almost reduced to nothing: for, at present, as soon as the new bishop is consecrated and confirmed, he usually receives the restitution of his temporalties quite entire, and untouched, from the king; and at the same time does homage to his sovereign: and then, and not sooner, he has a fee simple in his bishopric, and may maintain an action for the profits.(f)
II. The king is entitled to a corody, as the law calls it, out of every bishopric, that is, to send one of his chaplains to be maintained by the bishop, or to have a pension allowed him till the bishop promotes him to a benefice.(g) This is also in the nature of an acknowledgment to the king, as founder of the see, since he had formerly the same corody or pension from every abbey or priory of royal foundation.2 It is, I *[*284apprehend, now fallen into total disuse; though Sir Matthew Hale says(h) that it is due of common right,3 and that no prescription will discharge it.
III. The king also, as was formerly observed,(i) is entitled to all the tithes arising in extra-parochial places:(k) though perhaps it may be doubted how far this article, as well as the last, can be properly reckoned a part of the king’s own royal revenue; since a corody supports only his chaplains, and these extra-parochial tithes are held under an implied trust, that the king will distribute them for the good of the clergy in general.
IV. The next branch consists in the first-fruits, and tenths, of all spiritual preferments in the kingdom; both of which I shall consider together.
These were originally a part of the papal usurpations over the clergy of this kingdom; first introduced by Pandulph, the pope’s legate, during the reigns of king John and Henry the Third, in the see of Norwich; and afterwards attempted to be made universal by the popes Clement V. and John XXII., about the beginning of the fourteenth century. The first-fruits, primitiæ, or annates, were the first year’s whole profits of the spiritual preferment, according to a rate or valor made under the direction of pope Innocent IV. by Walter, bishop of Norwich, in 38 Hen. III., and afterwards advanced in value by commission from pope Nicholas III., ad 1292, 20 Edw. I.;(l) which valuation of pope Nicholas is still preserved in the exchequer.(m)4 The tenths, or decimæ, were the tenth part of the annual profit of each living by the same valuation; which was also claimed by the holy see, under no better pretence than a strange misapplication of that precept of the Levitical law, which directs,(n) that the Levites “should offer the tenth part of their tithes as a heave-offering to the Lord, and give it to Aaron the high priest.” But **285]this claim of the pope met with a vigorous resistance from the English parliament; and a variety of acts were passed to prevent and restrain it, particularly the statute 6 Hen. IV. c. 1, which calls it a horrible mischief and damnable custom. But the popish clergy, blindly devoted to the will of a foreign master, still kept it on foot; sometimes more secretly, sometimes more openly and avowedly: so that in the reign of Henry VIII. it was computed, that in the compass of fifty years 800,000 ducats had been sent to Rome for first-fruits only. And, as the clergy expressed this willingness to contribute so much of their income to the head of the church, it was thought proper (when in the same reign the papal power was abolished, and the king was declared the head of the church of England) to annex this revenue to the crown; which was done by statute 26 Hen. VIII. c. 3, (confirmed by statute 1 Eliz. c. 4,) and a new valor beneficiorum was then made, by which the clergy are at present rated.5
By these last-mentioned statutes all vicarages under ten pounds a year, and all rectories under ten marks, are discharged from the payment of first-fruits; and if, in such livings as continue chargeable with this payment, the incumbent lives but half a year, he shall pay only one quarter of his first-fruits; if but one whole year, then half of them; if a year and a half, three quarters; and if two years, then the whole; and not otherwise.6 Likewise by the statute 27 Hen. VIII. c. 8, no tenths are to be paid for the first year, for then the first-fruits are due: and by other statutes of queen Anne, in the fifth and sixth years of her reign, if a benefice be under fifty pounds per annum clear yearly value, it shall be discharged of the payment of first-fruits and tenths.7
Thus the richer clergy, being, by the criminal bigotry of their popish predecessors, subjected at first to a foreign exaction, were afterwards, when that yoke was shaken off, liable to a like misapplication of their revenues, through the rapacious disposition of the then reigning monarch: till at length the piety of queen Anne restored to the church what had been *[*286thus indirectly taken from it. This she did, not by remitting the tenths and first-fruits entirely; but, in a spirit of the truest equity, by applying these superfluities of the larger benefices to make up the deficiencies of the smaller. And to this end she granted her royal charter, which was confirmed by the statute 2 Anne, c. 11, whereby all the revenue of first-fruits and tenths is vested in trustees forever, to form a perpetual fund for the augmentation of poor livings. This is usually called queen Anne’s bounty, which has been still further regulated by subsequent statutes.(o)8
V. The next branch of the king’s ordinary revenue (which, as well as the subsequent branches, is of a lay or temporal nature) consists in the rents and profits of the demesne lands of the crown. These demesne lands, terræ dominicales regis, being either the share reserved to the crown at the original distribution of landed property, or such as came to it afterwards by forfeitures or other means, were anciently very large and extensive; comprising divers manors, honours, and lordships: the tenants of which had very peculiar privileges, as will be shown in the second book of these commentaries, when we speak of the tenure in ancient demesne. At present they are contracted within a very narrow compass, having been almost entirely granted away to private subjects. This has occasioned the parliament frequently to interpose; and, particularly, after king William III. had greatly impoverished the crown, an act passed,(p) whereby all future grants or leases from the crown for any longer term than thirty-one years, or three lives, are declared to be void; except with regard to houses, which may be granted for fifty years. And no reversionary lease can be made, so as to exceed, together with the estate in being, the same term of three lives, or thirty-one years: that is, where there is a subsisting lease, of which there are twenty years still to come, the king cannot grant a future interest to commence after the expiration of the former, for any longer term than eleven years. The tenant must also be made liable to be punished for committing waste; **287]and the usual rent must be reserved, or, where there has usually been no rent, one-third of the clear yearly value.(q) The misfortune is, that this act was made too late, after almost every valuable possession of the crown had been granted away forever, or else upon very long leases; but may be of some benefit to posterity, when those leases come to expire.9
VI. Hither might have been referred the advantages which used to arise to the king from the profits of his military tenures, to which most lands in the kingdom were subject till the statute 12 Car. II. c. 24, which in great measure abolished them all: the explication of the nature of which tenures must be postponed to the second book of these commentaries. Hither also might have been referred the profitable prerogative of purveyance and pre-emption: which was a right enjoyed by the crown of buying up provisions and other necessaries, by the intervention of the king’s purveyors, for the use of his royal household, at an appraised valuation, in preference to all others, and even without the consent of the owner: and also of forcibly impressing the carriages and horses of the subject to do the king’s business on the public roads, in the conveyance of timber, baggage, and the like, however inconvenient to the proprietor, upon paying him a settled price: a prerogative which prevailed pretty generally throughout Europe during the scarcity of gold and silver, and the high valuation of money consequential thereupon. In those early times the king’s household (as well as those of inferior lords) were supported by specific renders of corn, and other victuals, from the tenants of the respective demesnes; and there was also a continual market kept at the palace gate to furnish viands for the royal use.(r) And this answered all purposes, in those ages of simplicity, so long as the king’s court continued in any certain place. But when it removed from one part of the kingdom to another, as was formerly very frequently done, it was found necessary to send **288]purveyors beforehand to get together a sufficient quantity of provisions and other necessaries for the household: and, lest the unusual demand should raise them to an exorbitant price, the powers before mentioned were vested in these purveyors; who in process of time very greatly abused their authority, and became a great oppression to the subject, though of little advantage to the crown; ready money in open market (when the royal residence was more permanent, and specie began to be plenty) being found upon experience to be the best proveditor of any. Wherefore by degrees the powers of purveyance have declined, in foreign countries as well as our own; and particularly were abolished in Sweden by Gustavus Adolphus, towards the beginning of the last century.(s) And, with us in England, having fallen into disuse during the suspension of monarchy, king Charles at his restoration consented, by the same statute, to resign entirely these branches of his revenue and power; and the parliament, in part of recompense, settled on him, his heirs and successors forever, the hereditary excise of fifteen pence per barrel on all beer and ale sold in the kingdom, and a proportionable sum for certain other liquors. So that this hereditary excise, the nature of which shall be further explained in the subsequent part of this chapter, now forms the sixth branch of his majesty’s ordinary revenue.
VII. A seventh branch might also be computed to have arisen from wine licenses, or the rents payable to the crown by such persons as are licensed to sell wine by retail throughout England, except in a few privileged places. These were first settled on the crown by the statute 12 Car. II. c. 25; and, together with the hereditary excise, made up the equivalent in value for the loss sustained by the prerogative in the abolition of the military tenures, and the right of pre-emption and purveyance; but this revenue was abolished by the statute 30 Geo. II. c. 19, and an annual sum of upwards of 7000l. per annum, issuing out of the new stamp duties imposed on wine licenses, was settled on the crown in its stead.
*[*289VIII. An eighth branch of the king’s ordinary revenue is usually reckoned to consist in the profits arising from his forests. Forests are waste grounds belonging to the king, replenished with all manner of beasts of chase or venary; which are under the king’s protection, for the sake of his royal recreation and delight: and to that end, and for preservation of the king’s game, there are particular laws, privileges, courts, and offices belonging to the king’s forests; all which will be, in their turns, explained in the subsequent books of these commentaries. What we are now to consider are only the profits arising to the king from hence, which consist principally in amercements or fines levied for offences against the forest laws. But as few, if any, courts of this kind for levying amercements(t) have been held since 1632, 8 Car. I.,10 and as, from the accounts given of the proceedings in that court by our histories and law-books,(u) nobody would now wish to see them again revived, it is needless, at least in this place, to pursue this inquiry any further.
IX. The profits arising from the king’s ordinary courts of justice make a ninth branch of his revenue. And these consist not only in fines imposed upon offenders, forfeitures of recognizances, and amercements levied upon defaulters; but also in certain fees due to the crown in a variety of legal matters, as, for setting the great seal to charters, original writs, and other forensic proceedings, and for permitting fines to be levied of lands in order to bar entails, or otherwise to insure their title. As none of these can be done without the immediate intervention of the king, by himself or his officers, the law allows him certain perquisites and profits as a recompense for the trouble he undertakes for the public. These, in process of time, have been almost all granted out to private persons, or else appropriated to certain particular uses: so that, though our law-proceedings are still loaded with their payment, very little of them is now returned into the king’s *[*290exchequer; for a part of whose royal maintenance they were originally intended. All future grants of them, however, by the statute 1 Anne, st. 1, c. 7, are to endure for no longer time than the prince’s life who grants them.
X. A tenth branch of the king’s ordinary revenue, said to be grounded on the consideration of his guarding and protecting the seas from pirates and robbers, is the right to royal fish, which are whale and sturgeon: and these, when either thrown ashore, or caught near the coast, are the property of the king, on account(v) of their superior excellence. Indeed, our ancestors seem to have entertained a very high notion of the importance of this right; it being the prerogative of the kings of Denmark and the dukes of Normandy;(w) and from one of these it was probably derived to our princes. It is expressly claimed and allowed in the statute de prærogativa regis:(x) and the most ancient treatises of law now extant make mention of it,(y) though they seem to have made a distinction between whale and sturgeon, as was incidentally observed in a former chapter.(z)
XI. Another maritime revenue, and founded partly upon the same reason, is that of shipwrecks; which are also declared to be the king’s property by the same prerogative statute 17 Edw. II. c. 11, and were so, long before, at the common law. It is worthy observation, how greatly the law of wrecks has been altered, and the rigour of it gradually softened in favour of the distressed proprietors. Wreck, by the ancient common law, was where any ship was lost at sea, and the goods or cargo were thrown upon the land; in which case these goods so wrecked were adjudged to belong to the king; for it was held, that by the loss of the ship all property was gone out of the original owner.(a) But this was undoubtedly adding sorrow to sorrow, and was consonant neither to reason nor humanity. Wherefore it was first **291]ordained by king Henry I. that if any person escaped alive out of the ship, it should be no wreck;(b) and afterwards king Henry II. by his charter(c) declared that if on the coasts of either England, Poictou, Oleron, or Gascony, any ship should be distressed, and either man or beast should escape or be found therein alive, the goods should remain to the owners, if they claimed them within three months; but otherwise should be esteemed a wreck, and should belong to the king, or other lord of the franchise. This was again confirmed with improvements by king Richard the First; who, in the second year of his reign,(d) not only established these concessions, by ordaining that the owner, if he was ship-wrecked and escaped, “omnes res suas liberas et quietas haberet,”(e) but also that, if he perished, his children, or, in default of them, his brethren and sisters, should retain the property; and in default of brother or sister, then the goods should remain to the king.(f) And the law, as laid down by Bracton in the reign of Henry III., seems still to have improved in its equity. For then, if not only a dog, for instance, escaped, by which the owner might be discovered, but if any certain mark were set on the goods, by which they might be known again, it was held to be no wreck.(g) And this is certainly most agreeable to reason; the rational claim of the king being only founded upon this, that the true owner cannot be ascertained. Afterwards, in the statute of Westminster, the first,(h) the time of limitation of claims, given by the charter of Henry II., is extended to a year and a day, according to the usage of Normandy;(i) and it enacts, that if a man, a dog, or a cat escape alive, the vessel shall not be adjudged a wreck. These animals, as in Bracton, are only put for examples;(j) for it is now held(k) that not only if any live thing escape, but if proof can be made of the **292]property of any of the goods or lading which come to shore, they shall not be forfeited as wreck. The statute further ordains that the sheriff of the county shall be bound to keep the goods a year and a day, (as in France for one year, agreeably to the maritime laws of Oleron,(l) and in Holland for a year and a half,) that if any man can prove a property in them, either in his own right or by right of representation,(m) they shall be restored to him without delay; but if no such property be proved within that time, they then shall be the king’s. If the goods are of a perishable nature, the sheriff may sell them, and the money shall be liable in their stead.(n) This revenue of wrecks is frequently granted out to lords of manors as a royal franchise; and if any one be thus entitled to wrecks in his own land, and the king’s goods are wrecked thereon, the king may claim them at any time, even after the year and day.(o)
It is to be observed, that in order to constitute a legal wreck the goods must come to land. If they continue at sea, the law distinguishes them by the barbarous and uncouth appellations of jetsam, flotsam, and ligan. Jetsam is where goods are cast into the sea, and there sink and remain under water; flotsam is where they continue swimming on the surface of the waves; ligan is where they are sunk in the sea, but tied to a cork or buoy in order to be found again.(p) These are also the king’s, if no owner appears to claim them; but if any owner appears, he is entitled to recover the possession. For, even if they be cast overboard without any mark or buoy, in order to lighten the ship, the owner is not by this act of necessity construed to have renounced his property;(q) much less can things ligan be supposed to be abandoned, since the owner has done all in his power to assert and retain his property. These three are therefore accounted so far a distinct thing from the former, that by the *[*293king’s grant to a man of wrecks, things jetsam, flotsam, and ligan will not pass.(r)
Wrecks, in their legal acceptation, are at present not very frequent; for if any goods come to land, it rarely happens, since the improvement of commerce, navigation, and correspondence, that the owner is not able to assert his property within the year and day limited by law. And in order to preserve this property entire for him, and if possible to prevent wrecks at all, our laws have made many very humane regulations, in a spirit quite opposite to those savage laws which formerly prevailed in all the northern regions of Europe, and a few years ago were still said to subsist on the coasts of the Baltic sea, permitting the inhabitants to seize on whatever they could get as lawful prize; or, as an author of their own expresses it, “in naufragorum miseria et calamitate tanquam vultures ad prædam currere.”(s) For, by the statute 27 Edw. III. c. 13, if any ship be lost on the shore, and the goods come to land, (which cannot, says the statute, be called wreck,) they shall be presently delivered to the merchants, paying only a reasonable reward to those that saved and preserved them, which is entitled salvage. And by the common law, if any persons (other than the sheriff) take any goods so cast on shore, which are not legal wreck, the owners might have a commission to inquire and find them out, and compel them to make restitution.(t) And by statute 12 Anne, st. 2, c. 18, confirmed by 4 Geo. I. c. 12, in order to assist the distressed and prevent the scandalous illegal practices on some of our sea-coasts, (too similar to those on the Baltic,) it is enacted, that all head officers and others of towns near the sea, shall, upon application made to them, summon as many hands as are necessary, and send them to the relief of any ship in distress, on forfeiture of 100l., and, in case of assistance given, salvage shall be paid by the owners, to be assessed by three neighbouring justices. All persons that secrete any goods shall forfeit their treble value; and if they wilfully do any act whereby the ship is lost or destroyed, *[*294by making holes in her, stealing her pumps, or otherwise, they are guilty of felony, without benefit of clergy. Lastly, by the statute 26 Geo. II. c. 19, plundering any vessel either in distress or wrecked, and whether any living creature be on board or not, (for, whether wreck or otherwise, it is clearly not the property of the populace,) such plundering, I say, or preventing the escape of any person that endeavours to save his life, or wounding him with intent to destroy him, or putting out false lights in order to bring any vessel into danger, are all declared to be capital felonies; in like manner as the destroying of trees, steeples, or other stated seamarks, is punished by the statute 8 Eliz. c. 13 with a forfeiture of 100l. or outlawry. Moreover, by the statute of George II., pilfering any goods cast ashore is declared to be petty larceny; and many other salutary regulations are made for the more effectually preserving ships of any nation in distress.(u)11
XII. A twelfth branch of the royal revenue, the right to mines, has its original from the king’s prerogative of coinage, in order to supply him with materials; and therefore those mines which are properly royal, and to which the king is entitled when found, are only those of silver and gold.(v) By the old common law, if gold or silver be found in mines of base metal, according to the opinion of some, the whole was a royal mine, and belonged to the king; though others held that it only did so, if the quantity of gold or silver was of greater value than the quantity of base metal.(w) But now by the statutes 1 W. and M. st. 1, c. 30, and 8 W. and M. c. 6, this difference is made immaterial; it being enacted that no mines of copper, tin, iron, or lead, shall be looked upon as royal mines, notwithstanding gold or silver may be extracted from them in any quantities; but that the king or **295]persons claiming royal mines under his authority, may have the ore, (other than tin ore in the counties of Devon and Cornwall,) paying for the same a price stated in the act. This was an extremely reasonable law; for now private owners are not discouraged from working mines, through a fear that they may be claimed as royal ones; neither does the king depart from the just rights of his revenue, since he may have all the precious metal contained in the ore, paying no more for it than the value of the base metal which it is supposed to be; to which base metal the land-owner is by reason and law entitled.
XIII. To the same original may in part be referred the revenue of treasuretrove, (derived from the French word trover, to find,) called in Latin thesaurus inventus, which is where any money or coin, gold, silver, plate, or bullion is found hidden in the earth, or other private place, the owner thereof being unknown; in which case the treasure belongs to the king: but if he that hid it be known, or afterwards found out, the owner, and not the king, is entitled to it.(x)12 Also if it be found in the sea, or upon the earth, it doth not belong to the king, but the finder, if no owner appears.(y) So that it seems it is the hiding, and not the abandoning of it, that gives the king a property: Bracton(z) defining it, in the words of the civilians, to be “vetus depositio pecuniæ.” This difference clearly arises from the different intentions which the law implies in the owner. A man that hides his treasure in a secret place evidently does not mean to relinquish his property, but reserves a right of claiming it again, when he sees occasion; and if he dies, and the secret also dies with him, the law gives it the king, in part of his royal revenue. But a man that scatters his treasure into the sea, or upon the public surface of the earth, is construed to have absolutely abandoned his property, and returned it into the common stock, without any intention of reclaiming it: and therefore it belongs, as in a state of nature, to the first occupant, or finder,13 unless the owner appear and assert his right, which *[*296then proves that the loss was by accident, and not with an intent to renounce his property.
Formerly all treasure-trove belonged to the finder;(a) as was also the rule of the civil law.(b) Afterwards it was judged expedient for the purposes of the state, and particularly for the coinage, to allow part of what was so found to the king; which part was assigned to be all hidden treasure; such as is casually lost and unclaimed, and also such as is designedly abandoned, still remaining the right of the fortunate finder. And that the prince shall be entitled to this hidden treasure is now grown to be, according to Grotius,(c) “jus commune, et quasi gentium;” for it is not only observed, he adds, in England, but in Germany, France, Spain, and Denmark. The finding of deposited treasure was much more frequent, and the treasures themselves more considerable, in the infancy of our constitution than at present. When the Romans, and other inhabitants of the respective countries which composed their empire, were driven out by the northern nations, they concealed their money under ground, with a view of resorting to it again when the heat of the irruption should be over, and the invaders driven back to their deserts. But, as this never happened, the treasures were never claimed; and on the death of the owners the secret also died along with them. The conquering generals, being aware of the value of these hidden mines, made it highly penal to secrete them from the public service. In England therefore, as among the feudists,(d) the punishment of such as concealed from the king the finding of hidden treasure was formerly no less than death; but now it is only fine and imprisonment.(e)
XIV. Waifs, bona waviata, are goods stolen, and waved or thrown away by the thief in his flight, for fear of being apprehended. These are given to the king by the law, as a punishment upon the owner for not himself pursuing the felon and taking away his goods from him.(f) And therefore *[*297if the party robbed do his diligence immediately to follow and apprehend the thief, (which is called making fresh suit,) or do convict him afterwards, or procure evidence to convict him, he shall have his goods again.(g) Waved goods do also not belong to the king till seized by somebody for his use; for if the party robbed can seize them first, though at the distance of twenty years, the king shall never have them.(h) If the goods are hid by the thief, or left anywhere by him, so that he had them not about him, when he fled, and therefore did not throw them away in his flight; these also are not bona waviata, but the owner may have them again when he pleases.(i) The goods of a foreign merchant, though stolen and thrown away in flight, shall never be waifs:(j) the reason whereof may be, not only for the encouragement of trade, but also because there is no wilful default in the foreign merchant’s not pursuing the thief, he being generally a stranger to our laws, our usages, and our language.14
XV. Estrays are such valuable animals as are found wandering in any manor or lordship, and no man knoweth the owner of them; in which case the law gives them to the king as the general owner and lord paramount of the soil, in recompense for the damage which they may have done therein:15 and they now most commonly belong to the lord of the manor, by special grant from the crown. But, in order to vest an absolute property in the king, or his grantees, they must be proclaimed in the church and two market towns next adjoining to the place where they are found: and then, if no man claims them, after proclamation and a year and a day passed, they belong to the king or his substitute without redemption;(k) even though the owner were a minor, or under any other legal incapacity.(l) A provision similar to which obtained in the old Gothic constitution, with regard to all things that were found, which were to be thrice proclaimed; “primum coram comitibus et viatoribus obviis, deinde in proxima **298]villa vel pago, postremo coram ecclesia vel judicio;” and the space of a year was allowed for the owner to reclaim his property.(m) If the owner claims them within the year and day, he must pay the charges of finding, keeping, and proclaiming them.(n)16 The king or lord has no property till the year and day passed; for if a lord keepeth an estray three-quarters of a year, and within the year it strayeth again, and another lord getteth it, the first lord cannot take it again.(o) Any beasts may be estrays, that are by nature tame or reclaimable, and in which there is a valuable property, as sheep, oxen, swine, and horses, which we in general call cattle; and so Fleta(p) defines them, pecus vagans, quod nullus petit, sequitur, vel advocat. For animals upon which the law sets no value, as a dog or cat, and animals feræ naturæ, as a bear or wolf, cannot be considered as estrays. So swans may be estrays, but not any other fowl;(q) whence they are said to be royal fowl. The reason of which distinction seems to be, that, cattle and swans being of a reclaimable nature, the owner’s property in them is not lost merely by their temporary escape; and they also, from their intrinsic value, are a sufficient pledge for the expense of the lord of the franchise in keeping them the year and day. For he that takes an estray is bound, so long as he keeps it, to find it in provisions and preserve it from damage;(r) and may not use it by way of labour, but is liable to an action for so doing.(s) Yet he may milk a cow, or the like; for that tends to the preservation, and is for the benefit, of the animal(t)17
Besides the particular reasons before given why the king should have the several revenues of royal fish, shipwrecks, treasure-trove, waifs, and estrays, there is also one general reason which holds for them all; and that is, because they are bona vacantia, or goods in which no one else can claim a property. And therefore by the law of nature they belonged to the first occupation or finder; and so continued under the *[*299imperial law. But, in settling the modern constitutions of most of the governments in Europe, it was thought proper (to prevent that strife and contention, which the mere title of occupancy is apt to create and continue, and to provide for the support of public authority in a manner the least burdensome to individuals) that these rights should be annexed to the supreme power by the positive laws of the state. And so it came to pass that, as Bracton expresses it,(u)hæc quæ nullius in bonis sunt, et olim fuerunt inventoris de jure naturali, jam efficiuntur principis de jure gentium.(v)18
XVI. The next branch of the king’s ordinary revenue consists in forfeitures of lands and goods for offences; bona confiscata, as they are called by the civilians, because they belonged to the fiscus or imperial treasury; or, as our lawyers term them, forisfacta; that is, such whereof the property is gone away or departed from the owner. The true reason and only substantial ground of any forfeiture for crimes consists in this; that all property is derived from society, being one of those civil rights which are conferred upon individuals, in exchange for that degree of natural freedom which every man must sacrifice when he enters into social communities. If therefore a member of any national community violates the fundamental contract of his association, by transgressing the municipal law, he forfeits his right to such privileges as he claims by that contract; and the state may very justly resume that portion of property, or any part of it, which the laws have before assigned him. Hence, in every offence of an atrocious kind, the laws of England have exacted a total confiscation of the movables or personal estate; and in many cases a perpetual, in others only a temporary, loss of the offender’s immovables or landed property, and have vested them both in the king, who is the person supposed to be offended, being the one visible magistrate in whom the majesty of the public resides. The particulars of these forfeitures will be more properly recited when we treat of crimes and misdemesnors. I therefore only mention them here, for **300]the sake of regularity, as a part of the census regalis; and shall postpone for the present the further consideration of all forfeitures, excepting one species only, which arises from the misfortune rather than the crime of the owner, and is called a deodand.
By this is meant whatever personal chattel is the immediate occasion of the death of any reasonable creature: which is forfeited to the king, to be applied to pious uses, and distributed in alms by his high almoner;(w) though formerly destined to a more superstitious purpose. It seems to have been originally designed, in the blind days of popery, as an expiation for the souls of such as were snatched away by sudden death; and for that purpose ought properly to have been given to holy church:(x) in the same manner as the apparel of a stranger, who was found dead, was applied to purchase masses for the good of his soul. And this may account for that rule of law, that no deodand is due where an infant under the age of discretion is killed by a fall from a cart, or horse, or the like, not being in motion:(y) whereas, if an adult person falls from thence, and is killed, the thing is certainly forfeited. For the reason given by Sir Matthew Hale seems to be very inadequate, viz. because an infant is not able to take care of himself; for why should the owner save his forfeiture, on account of the imbecility of the child, which ought rather to have made him more cautious to prevent any accident or mischief? The true ground of this rule seems rather to have been, that the child, by reason of its want of discretion, was presumed incapable of actual sin, and therefore needed no deodand to purchase propitiatory masses: but every adult, who died in actual sin, stood in need of such atonement, according to the humane superstition of the founders of the English law.
Thus stands the law if a person be killed by a fall from a thing standing still. But if a horse, or ox, or other animal, **301]of his own motion, kill as well an infant as an adult, or if a cart run over him, they shall in either case be forfeited as deodands;(z) which is grounded upon this additional reason, that such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by such forfeiture. A like punishment is in like cases inflicted by the Mosaical law:(a) “if an ox gore a man that he die, the ox shall be stoned, and his flesh shall not be eaten.” And, among the Athenians,(b) whatever was the cause of a man’s death, by falling upon him, was exterminated or cast out of the dominions of the republic.19 Where a thing not in motion, is the occasion of a man’s death, that part only which is the immediate cause is forfeited; as if a man be climbing up the wheel of a cart, and is killed by falling from it, the wheel alone is a deodand:(c) but, wherever the thing is in motion, not only that part which immediately gives the wound, (as the wheel, which runs over his body,) but all things which move with it and help to make the wound more dangerous, (as the cart and loading, which increase the pressure of the wheel,) are forfeited.(d) It matters not whether the owner were concerned in the killing or not; for, if a man kills another with my sword, the sword is forfeited(e) as an accursed thing.(f) And therefore, in all indictments for homicide, the instrument of death and the value are presented and found by the grand jury, (as, that the stroke was given by a certain penknife, value sixpence,) that the king or his grantee may claim the deodand: for it is no deodand unless it be presented as such by a jury of twelve men.(g) No deodands are due for accidents happening upon the high sea, that being out of the jurisdiction of the common law: but if a *[*302man falls from a boat or ship in fresh water, and is drowned, it hath been said, that the vessel and cargo are in strictness of law a deodand.(h) But juries have of late very frequently taken upon themselves to mitigate these forfeitures, by finding only some trifling thing, or part of an entire thing, to have been the occasion of the death. And in such cases, although the finding by the jury be hardly warrantable by law, the court of King’s Bench hath generally refused to interfere on behalf of the lord of the franchise, to assist so unequitable a claim.(i)20
Deodands, and forfeitures in general, as well as wrecks, treasure-trove, royal fish, mines, waifs, and estrays, may be granted by the king to particular subjects, as a royal franchise: and indeed they are for the most part granted out to the lords of manors, or other liberties, to the perversion of their original design.21
XVII. Another branch of the king’s ordinary revenue arises from escheats of lands, which happen upon the defect of heirs to succeed to the inheritance; whereupon they in general revert to and vest in the king, who is esteemed, in the eye of the law, the original proprietor of all the lands in the kingdom. But the discussion of this topic more properly belongs to the second book of these commentaries, wherein we shall particularly consider the manner in which lands may be acquired or lost by escheat.
XVIII. I proceed therefore to the eighteenth and last branch of the king’s ordinary revenue; which consists in the custody of idiots, from whence we shall be naturally led to consider also the custody of lunatics.
An idiot, or natural fool, is one that hath had no understanding from his nativity; and therefore is by law presumed never likely to attain any. For which reason the custody of *[*303him and of his lands was formerly vested in the lord of the fee;(j) (and therefore still, by special custom, in some manors the lord shall have the ordering of idiot and lunatic copyholders;)(k) but, by reason of the manifold abuses of this power by subjects, it was at last provided by common consent, that it should be given to the king, as the general conservator of his people; in order to prevent the idiot from wasting his estate, and reducing himself and his heirs to poverty and distress.(l) This fiscal prerogative of the king is declared in parliament by statute 17 Edw. II. c. 9, which directs (in affirmance of the common law)(m) that the king shall have ward of the lands of natural fools, taking the profits without waste or destruction, and shall find them necessaries; and after the death of such idiots he shall render the estate to the heirs; in order to prevent such idiots from alienating their lands, and their heirs from being disinherited.22
By the old common law there is a writ de idiota inquirendo, to inquire wheth a man be an idiot or not:(n) which must be tried by a jury of twelve men; and, if they find him purus idiota, the profits of his lands and the custody of his person may be granted by the king to some subject who has interest enough to obtain them.(o) This branch of the revenue hath been long considered as a hardship upon private families: and so long ago as in the 8 Jac. I. it was under the consideration of parliament to vest this custody in the relations of the party, and to settle an equivalent on the crown in lieu of it; it being then proposed to share the same fate with the slavery of the feodal tenures, which has been since abolished.(p) Yet few instances can be given of the oppressive exertion of it, since it seldom happens that a jury finds a man an idiot a nativitate, but only non compos mentis from some particular time, which has an operation very different in point of law.
**304]A man is not an idiot(q) if he hath any glimmering of reason, so that he can tell his parents, his age, or the like common matters. But a man who is born deaf, dumb, and blind is looked upon by the law as in the same state with an idiot:(r) he being supposed incapable of any understanding, as wanting all those senses which furnish the human mind with ideas.23
A lunatic, or non compos mentis, is one who hath had understanding, but by disease, grief, or other accident, hath lost the use of his reason.(s) A lunatic is indeed properly one that hath lucid intervals; sometimes enjoying his senses, and sometimes not, and that frequently depending upon the change of the moon.24 But under the general name of non compos mentis (which Sir Edward Coke says is the most legal name)(t) are comprised not only lunatics, but persons under frenzies; or who lose their intellects by disease; those that grow deaf, dumb, and blind, not being born so; or such, in short, as are judged by the court of chancery incapable of conducting their own affairs. To these also, as well as idiots, the king is guardian, but to a very different purpose. For the law always imagines that these accidental misfortunes may be removed; and therefore only constitutes the crown a trustee for the unfortunate persons, to protect their property, and to account to them for all profits received, if they recover, or after their decease to their representatives. And therefore it is declared by the statute 17 Edw. II. c. 10, that the king shall provide for the custody and sustentation of lunatics, and preserve their lands and the profits of them for their use, when they come to their right mind; and the king shall take nothing to his own use: and, if the parties die in such estate, the residue shall be distributed for their souls by the advice of the ordinary, and of course (by the subsequent amendments of the law of administration) shall now go to their executors or administrators.
*[*305On the first attack of lunacy, or other occasional insanity, while there may be hope of a speedy restitution of reason, it is usual to confine the unhappy objects in private custody under the direction of their nearest friends and relations; and the legislature, to prevent all abuses incident to such private custody, hath thought proper to interpose its authority by statute 14 Geo. III. c. 49, (continued by 19 Geo. III. c. 15,) for regulating private madhouses.25 But when the disorder is grown permanent, and the circumstances of the party will bear such additional expense, it is proper to apply to the royal authority to warrant a lasting confinement.
The method of proving a person non compos is very similar to that of proving him an idiot. The lord chancellor, to whom, by special authority from the king, the custody of idiots and lunatics is intrusted,(u) upon petition or information, grants a commission in nature of the writ de idiota inquirendo, to inquire into the party’s state of mind; and if he be found non compos, he usually commits the care of his person, with a suitable allowance for his maintenance, to some friend, who is then called his committee. However, to prevent sinister practices, the next heir is seldom permitted to be this committee of the person; because it is his interest that the party should die.26 But, it hath been said, there lies not the same objection against his next of kin, provided he be not his heir; for it is his interest to preserve the lunatic’s life, in order to increase the personal estate by savings, which he or his family may hereafter be entitled to enjoy.(v) The heir is generally made the manager or committee of the estate, it being clearly his interest by good management to keep it in condition; accountable, however, to the court of chancery, and to the non compos himself, if he recovers, or otherwise to his administrators.
In this case of idiots and lunatics, the civil law agrees with ours, by assigning them tutors to protect their persons, and curators to manage their estates. But, in another instance, the Roman law goes much beyond the English. For, if a man, by notorious prodigality, was in danger of wasting his estate, he was looked upon as non compos, and committed to the care of curators or tutors by the prætor.(w) And, by the laws of Solon, such prodigals were branded with perpetual infamy.(x) But with us, when a man on an inquest of idiocy hath been **306]returned an unthrift, and not an idiot,(y) no further proceedings have been had. And the propriety of the practice itself seems to be very questionable. It was doubtless an excellent method of benefiting the individual, and of preserving estates in families; but it hardly seems calculated for the genius of a free nation, who claim and exercise the liberty of using their own property as they please. “Sic utere tuo, ut alienum non lædas,” is the only restriction our laws have given with regard to economical prudence. And the frequent circulation and transfer of lands, and other property, which cannot be effected without extravagance somewhere, are perhaps not a little conducive towards keeping our mixed constitution in its due health and vigour.
This may suffice for a short view of the king’s ordinary revenue, or the proper patrimony of the crown; which was very large formerly, and capable of being increased to a magnitude truly formidable; for there are very few estates in the kingdom that have not, at some period or other since the Norman conquest, been vested in the hands of the king by forfeiture, escheat, or otherwise. But, fortunately for the liberty of the subject, this hereditary landed revenue, by a series of improvident management, is sunk almost to nothing; and the casual profits arising from the other branches of the census regalis are likewise almost all of them alienated from the crown: in order to supply the deficiencies of which we are now obliged to have recourse to new methods of raising money, unknown to our early ancestors; which methods constitute the king’s extraordinary revenue. For, the public patrimony being got into the hands of private subjects, it is but reasonable that private contributions should supply the public service. Which, though it may perhaps fall harder upon some individuals, whose ancestors have had no share in the general plunder, than upon others; yet, taking the nation throughout, it amounts to nearly the same, provided the gain by the extraordinary should appear to be no greater than the loss by the ordinary revenue. And, perhaps, if every **307]gentleman in the kingdom was to be stripped of such of his lands as were formerly the property of the crown; was to be again subject to the inconveniences of purveyances and pre-emption, the oppression of forest laws, and the slavery of feodal tenures; and was to resign into the king’s hands all his royal franchises of waifs, wrecks, estrays, treasure-trove, mines, deodands, forfeitures, and the like, he would find himself a greater loser than by paying his quota to such taxes as are necessary to the support of government. The thing therefore to be wished and aimed at in a land of liberty is by no means the total abolition of taxes, which would draw after it very pernicious consequences, and the very supposition of which is the height of political absurdity. For as the true idea of government and magistracy will be found to consist in this, that some few men are deputed by many others to preside over public affairs, so that individuals may the better be enabled to attend their private concerns, it is necessary that those individuals should be bound to contribute a portion of their private gains, in order to support that government, and reward that magistracy, which protects them in the enjoyment of their respective properties. But the things to be aimed at are wisdom and moderation, not only in granting, but also in the method of raising the necessary supplies; by contriving to do both in such a manner as may be most conducive to the national welfare, and at the same time most consistent with economy and the liberty of the subject; who, when properly taxed, contributes only, as was before observed,(z) some part of his property in order to enjoy the rest.
These extraordinary grants are usually called by the synonymous names of aids, subsidies, and supplies; and are granted, as we have formerly seen,(a) by the commons of Great Britain in parliament assembled: who, when they have voted a supply to his majesty, and settled the quantum of that supply, usually resolve themselves into what is called a committee of ways and means, to consider the ways and means of raising the supply so voted. And in this committee every *[*308member (though it is looked upon as the peculiar province of the chancellor of the exchequer) may propose such scheme of taxation as he thinks will be least detrimental to the public. The resolutions of this committee, when approved by a vote of the house, are in general esteemed to be, as it were, final and conclusive. For, though the supply cannot be actually raised upon the subject till directed by an act of the whole parliament, yet no moneyed man will scruple to advance to the government any quantity of ready cash, on the credit of a bare vote of the house of commons, though no law be yet passed to establish it.
The taxes, which are raised upon the subject, are either annual or perpetual. The usual annual taxes are those upon land and malt.27
1. The land-tax, in its modern shape, has superseded all the former methods of rating either property, or persons in respect of their property, whether by tenths or fifteenths, subsidies on land, hydages, scutages, or talliages; a short explication of which will, however, greatly assist us in understanding our ancient laws and history.
Tenths, and fifteenths,(b) were temporary aids issuing out of personal property, and granted to the king by parliament. They were formerly the real tenth or fifteenth part of all the movables belonging to the subject; when such movables, or personal estates, were a very different and a much less considerable thing than what they usually are at this day. Tenths are said to have been first granted under Henry the Second, who took advantage of the fashionable zeal for croisades, to introduce this new taxation, in order to defray the expense of a pious expedition to Palestine, which he really or seemingly had projected against Saladine, emperor of the Saracens; whence it was originally denominated the Saladine tenth.(c) But afterwards fifteenths were more usually granted than tenths. Originally the amount of these taxes was *[*309uncertain, being levied by assessments new made at every fresh grant of the commons, a commission for which is preserved by Matthew Paris:(d) but it was at length reduced to a certainty in the eighth year of Edward III., when, by virtue of the king’s commission, new taxations were made of every township, borough, and city in the kingdom, and recorded in the exchequer; which rate was, at the time, the fifteenth part of the value of every township, the whole amounting to about 29,000l., and therefore it still kept up the name of a fifteenth, when, by the alteration of the value of money, and the increase of personal property, things came to be in a very different situation: so that when, of later years, the commons granted the king a fifteenth, every parish in England immediately knew their proportion of it; that is, the same identical sum that was assessed by the same aid in the eighth of Edward III.; and then raised it by a rate among themselves, and returned it into the royal exchequer.
The other ancient levies were in the nature of a modern land-tax: for we may trace up the original of that charge as high as to the introduction of our military tenures:(e) when every tenant of a knight’s fee was bound, if called upon, to attend the king in his army for forty days in every year. But this personal attendance growing troublesome in many respects, the tenants found means of compounding it, by first sending others in their stead, and in process of time by making a pecuniary satisfaction to the crown in lieu of it. This pecuniary satisfaction at last came to be levied by assessments, at so much for every knight’s fee, under the name of scutages; which appear to have been levied for the first time in the fifth year of Henry the Second, on account of his expedition to Toulouse, and were then, I apprehend, mere arbitrary compositions, as the king and the subject could agree. But this precedent being afterwards abused into a means of oppression, (in levying scutages on the landholders by the royal authority only, whenever our kings went to war, in **310]order to hire mercenary troops and pay their contingent expenses,) it became thereupon a matter of national complaint; and king John was obliged to promise in his magna carta,(f) that no scutage should be imposed without the consent of the common council of the realm. This clause was indeed omitted in the charters of Henry III., where(g) we only find it stipulated, that scutages should be taken as they were used to be in the time of king Henry the Second Yet afterwards, by a variety of statutes under Edward I. and his grandson,(h) it was provided, that the king shall not take any aids or tasks, any talliage or tax, but by the common assent of the great men and commons in parliament.
Of the same nature with scutages upon knights’ fees were the assessments of hydage upon all other lands, and of talliage upon cities and burghs.(i) But they all gradually fell into disuse upon the introduction of subsidies, about the time of king Richard II. and king Henry IV. These were a tax, not immediately imposed upon property, but upon persons in respect of their reputed estates, after the nominal rate of 4s. in the pound for lands, and 2s. 8d. for goods; and for those of aliens in a double proportion. But this assessment was also made according to an ancient valuation; wherein the computation was so very moderate, and the rental of the kingdom was supposed to be so exceeding low, that one subsidy of this sort did not, according to Sir Edward Coke,(j) amount to more than 70,000l., whereas a modern land-tax, at the same rate, produces two millions. It was anciently the rule never to grant more than one subsidy and two fifteenths at a time; but this rule was broken through for the first time on a very pressing occasion, the Spanish invasion in 1588; when the parliament gave queen Elizabeth two subsidies and four fifteenths. Afterwards, as money sunk in value, more subsidies were given; and we have an instance in the first parliament of 1640, of the king’s desiring twelve subsidies of the **311]commons, to be levied in three years; which was looked upon as a startling proposal: though lord Clarendon says,(k) that the speaker, Serjeant Glanville, made it manifest to the house, how very inconsiderable a sum twelve subsidies amounted to, by telling them he had computed what he was to pay for them himself; and when he named the sum, he being known to be possessed of a great estate, it seemed not worth any further deliberation. And indeed, upon calculation, we shall find that the total amount of these twelve subsidies, to be raised in three years, is less than what is now raised in one year by a land-tax of two shillings in the pound.
The grant of scutages, talliages, or subsidies, by the commons, did not extend to spiritual preferments; those being usually taxed at the same time by the clergy themselves in convocation: which grants of the clergy were confirmed in parliament, otherwise they were illegal, and not binding: as the same noble writer observes of the subsidies granted by the convocation, which continued sitting after the dissolution of the first parliament in 1640. A subsidy granted by the clergy was after the rate of 4s. in the pound, according to the valuation of their livings in the king’s books; and amounted, as Sir Edward Coke tells us,(l) to about 2000l. While this custom continued, convocations were wont to sit as frequently as parliaments; but the last subsidies thus given by the clergy were those confirmed by statute 15 Car. II. cap. 10, since which another method of taxation has generally prevailed, which takes in the clergy as well as the laity; in recompense for which the beneficed clergy have from that period been allowed to vote at the election of knights of the shire;(m) and thence forward also the practice of giving ecclesiastical subsidies hath fallen into total disuse.28
The lay subsidy was usually raised by commissioners appointed by the crown, or the great officers of state; and therefore in the beginning of the civil wars between Charles I. and *[*312his parliament, the latter, having no other sufficient revenue to support themselves and their measures, introduced the practice of laying weekly and monthly assessments(n) of a specific sum upon the several counties of the kingdom; to be levied by a pound rate on lands and personal estates; which were occasionally continued during the whole usurpation, sometimes at the rate of 120,000l. a month, sometimes at inferior rates.(o) After the restoration, the ancient method of granting subsidies, instead of such monthly assessments, was twice, and twice only, renewed; viz. in 1663, when four subsidies were granted by the temporalty, and four by the clergy; and in 1670, when 800,000l. was raised by way of subsidy, which was the last time of raising supplies in that manner.29 For, the monthly assessments being now established by custom, being raised by commissioners named by parliament, and producing a more certain revenue; from that time forwards we hear no more of subsidies, but occasional assessments were granted, as the national emergencies required. These periodical assessments, the subsidies which preceded them, and the more ancient scutage, hydage, and talliage, were to all intents and purposes a land-tax; and the assessments were sometimes expressly called so.(p) Yet a popular opinion has prevailed, that the land-tax was first introduced in the reign of king William III.; because in the year 1692 a new assessment or valuation of estates was made throughout the kingdom; which, though by no means a perfect one, had this effect, that a supply of 500,000l. was equal to 1s. in the pound of the value of the estates given in. And according to this enhanced valuation, from the year 1693 to the present, a period of above fourscore years, the land-tax has continued an annual charge upon the subject; above half the time at 4s. in the pound, sometimes at 3s., sometimes at 2s., twice(q) at 1s., but without any total intermission. The medium has been 2s. 3d. in the pound, being equivalent with twenty-three ancient subsidies, and amounting annually **313]to more than a million and a half of money. The method of raising it, is by charging a particular sum upon each county, according to the valuation given in ad 1692; and this sum is assessed and raised upon individuals (their personal estates, as well as real, being liable thereto) by commissioners appointed in the act, being the principal landholders of the county, and their officers.
II. The other annual tax is the malt-tax; which is a sum of 750,000l. raised every year by parliament, ever since 1697, by a duty of 6d. in the bushel on malt, and a proportionable sum on certain liquors, such as cider and perry, which might otherwise prevent the consumption of malt. This is under the management of the commissioners of the excise; and is, indeed, itself no other than an annual excise, the nature of which species of taxation I shall presently explain; only premising at present, that in the year 1760 an additional perpetual excise of 3d. per bushel was laid upon malt; to the produce of which a duty of 15 per cent., or nearly an additional halfpenny per bushel, was added in 1779;30 and that in 1763 a proportionable excise was laid upon eider and perry, but so new-modelled in 1766, as scarce to be worth collecting.31
The perpetual taxes are,
I. The customs; or the duties, toll, tribute, or tariff, payable upon merchandise exported and imported. The considerations upon which this revenue (or the more ancient part of it, which arose only from exports) was invested in the king, were said to be two:(r) 1. Because he gave the subject leave to depart the kingdom, and to carry his goods along with him. 2. Because the king was bound of common right to maintain and keep up the ports and havens, and to protect the merchants from pirates. Some have imagined they are called with us customs, because they were the inheritance of the king by immemorial usage and the common law, and not granted him by any statute:(s) but Sir Edward Coke hath clearly shown,(t) that the king’s first claim to them was by **314]grant of parliament 3 Edw. I., though the record thereof is not now extant.32 And indeed this is in express words confessed by statute 25 Edw. I. c. 7, wherein the king promises to take no customs from merchants without the common assent of the realm, “saving to us and our heirs the customs on wool, skins, and leather, formerly granted to us by the commonalty aforesaid.” These were formerly called the hereditary customs of the crown; and were due on the exportation only of the said three commodities, and of none other; which were styled the staple commodities of the kingdom, because they were obliged to be brought to those ports where the king’s staple was established, in order to be there first rated, and then exported.(u) They were denominated, in the barbarous Latin of our ancient records, custuma,(v) not consuetudines, which is the language of our law whenever it means merely usages. The duties on wool, sheepskins, or woolfells, and leather, exported, were called custuma antiqua sive magna: and were payable by every merchant, as well native as stranger; with this difference, that merchant strangers paid an additional toll, viz. half as much again as was paid by natives. The custuma parva et nova were an impost of 3d. in the pound, due from merchant strangers only, for all commodities, as well imported as exported; which was usually called the alien’s duty, and was first granted in 31 Edw. I.(w) But these ancient hereditary customs, especially those on wool and woolfells, came to be of little account, when the nation became sensible of the advantage of a home manufacture, and prohibited the exportation of wool by statute 11 Edw. III. c. 1.
There is also another very ancient hereditary duty belonging to the crown, called the prisage, or butlerage of wines, which is considerably older than the customs, being taken notice of in the great roll of the exchequer, 8 Ric. I. still extant.(x) Prisage was a right of taking two tons of wine from *[*315every ship (English or foreign) importing into England twenty tons or more, one before and one behind the mast; which by charter of Edward I. was exchanged into a duty of 2s. for every ton imported by merchant strangers, and called butlerage, because paid to the king’s butler.(y)
Other customs payable upon exports and imports were distinguished into subsidies, tonnage, poundage, and other imposts. Subsidies were such as were imposed by parliament upon any of the staple commodities before mentioned, over and above the custuma antiqua et magna; tonnage was a duty upon all wines imported over and above the prisage and butlerage aforesaid; poundage was a duty imposed ad valorem, at the rate of 12d. in the pound, on all other merchandise whatsoever; and the other imposts were such as were occasionally laid on by parliament, as circumstances and times required.(z) These distinctions are now in a manner forgotten, except by the officers immediately concerned in this department; their produce being in effect all blended together under the one denomination of the customs.
By these we understand, at present, a duty or subsidy paid by the merchant at the quay upon all imported as well as exported commodities, by authority of parliament; unless where, for particular national reasons, certain rewards, bounties, or drawbacks are allowed for particular exports or imports. Those of tonnage and poundage, in particular, were at first granted, as the old statutes (and particularly 1 Eliz. c. 10) express it, for the defence of the realm, and the keeping and safeguard of the seas, and for the intercourse of merchandise safely to come into and pass out of the same. They were at first usually granted only for a stated term of years: as, for two years in 5 Ric. II.;(a) but in Henry the Sixth’s time they were granted him for life by a statute in the thirty-first year of his reign; and again to Edward IV. for the term of his life also; since which time they were regularly granted to all his successors for life, sometimes at the first, sometimes at other subsequent parliaments, till the reign of Charles the **316]First; when, as the noble historian expresses it,(b) his ministers were not sufficiently solicitous for a renewal of this legal grant. And yet these imposts were imprudently and unconstitutionally levied and taken, without consent of parliament, for fifteen years together; which was one of the causes of those unhappy discontents, justifiable at first in too many instances, but which degenerated at last into causeless rebellion33 and murder. For as in every other, so in this particular case, the king (previous to the commencement of hostilities) gave the nation ample satisfaction for the errors of his former conduct, by passing an act,(c) whereby he renounced all power in the crown of levying the duty of tonnage and poundage without the express consent of parliament; and also all power of imposition upon any merchandises whatever. Upon the restoration, this duty was granted to king Charles the Second for life, and so it was to his two immediate successors; but now by three several statutes, 9 Anne, c. 6, 1 Geo. I. c. 12, and 3 Geo. I. c. 7, it is made perpetual, and mortgaged for the debt of the public. The customs thus imposed by parliament are chiefly contained in two books of rates, set forth by parliamentary authority;(d) one signed by Sir Harbottle Grimston, speaker of the house of commons in Charles the Second’s time; and the other an additional one signed by Sir Spenser Compton, speaker in the reign of George the First; to which also subsequent additions have been made.34 Aliens pay a larger proportion than natural subjects, which is what is now generally understood by the alien’s duty; to be exempted from which is one principal cause of the frequent applications to parliaments for acts of naturalization.35
These customs are then, we see, a tax immediately paid by the merchant, although ultimately by the consumer. And yet these are the duties felt least by the people; and, if prudently managed, the people hardly consider that they pay them at all. For the merchant is easy, being sensible he does not pay them for himself; and the consumer, who really *[*317pays them, confounds them with the price of the commodity: in the same manner as Tacitus observes, that the emperor Nero gained the reputation of abolishing the tax upon the sale of slaves, though he only transferred it from the buyer to the seller: so that it was, as he expresses it, “remissum magis specie, quam vi: quia, cum venditor pendere juberetur, in partem pretii emptoribus accrescebat.”(e) But this inconvenience attends it, on the other hand, that these imposts, if too heavy, are a check and cramp upon trade; and especially when the value of the commodity bears little or no proportion to the quantity of the duty imposed. This, in consequence, gives rise also to smuggling, which then becomes a very lucrative employment; and its natural and most reasonable punishment, viz. confiscation of the commodity, is in such cases quite ineffectual; the intrinsic value of the goods, which is all that the smuggler has paid, and therefore all that he can lose, being very inconsiderable when compared with his prospect of advantage in evading the duty. Recourse must therefore be had to extraordinary punishments to prevent it, perhaps even to capital ones; which destroys all proportion of punishment,(f) and puts murderers upon an equal footing with such as are really guilty of no natural, but merely a positive, offence.
There is also another ill consequence attending high imposts on merchandise, not frequently considered, but indisputably certain; that the earlier any tax is laid on a commodity, the heavier it falls upon the consumer in the end; for every trader through whose hands it passes must have a profit, not only upon the raw material and his own labour and time in preparing it, but also upon the very tax itself which he advances to the government; otherwise he loses the use and interest of the money which he so advances. To instance, in the article of foreign paper. The merchant pays a duty upon importation, which he does not receive again till he sells the commodity, perhaps at the end of three months. He is therefore equally entitled to a profit upon that duty **318]which he pays at the custom-house, as to a profit upon the original price which he pays to the manufacturer abroad, and considers it accordingly in the price he demands of the stationer. When the stationer sells it again, he requires a profit of the printer or bookseller upon the whole sum advanced by him to the merchant; and the bookseller does not forget to charge the full proportion to the student or ultimate consumer; who therefore does not only pay the original duty, but the profits of these three intermediate traders, who have successively advanced it for him. This might be carried much further in any mechanical or more complicated branch of trade.36
II. Directly opposite in its nature to this is the excise duty, which is an inland imposition, paid sometimes upon the consumption of the commodity, or frequently upon the retail sale, which is the last stage before the consumption. This is doubtless, impartially speaking, the most economical way of taxing the subject; the charges of levying, collecting, and managing the excise duties, being considerably less in proportion than in other branches of the revenue.37 It also renders the commodity cheaper to the consumer than charging it with customs to the same amount would do; for the reason just now given, because generally paid in a much later stage of it. But, at the same time, the rigour and arbitrary proceedings of excise laws seem hardly compatible with the temper of a free nation. For the frauds that might be committed in this branch of the revenue, unless a strict watch is kept, make it necessary, wherever it is established, to give the officers the power of entering and searching the houses of such as deal in excisable commodities at any hour of the day, and, in many cases, of the night likewise. And the proceedings in case of transgressions are so summary and sudden, that a man may be convicted in two days’ time in the penalty of many thousand pounds by two commissioners or justices of the peace, to the total exclusion of the trial by jury, and disregard of the common law.38 For which reason, though lord *[*319Clarendon tells us,(g) that to his knowledge the earl of Bedford (who was made lord treasurer by king Charles the First, to oblige his parliament) intended to have set up the excise in England, yet it never made a part of that unfortunate prince’s revenue; being first introduced, on the model of the Dutch prototype, by the parliament itself, after its rupture with the crown. Yet such was the opinion of its general unpopularity, that when in 1642 “aspersions were cast by malignant persons upon the house of commons, that they intended to introduce excises, the house for its vindication therein did declare, that these rumours were false and scandalous, and that their authors should be apprehended and brought to condign punishment.”(h) However, its original(i) establishment was in 1643, and its progress was gradual; being at first laid upon those persons and commodities where it was supposed the hardship would be least perceivable, viz. the makers or vendors of beer, ale, cider, and perry,(k) and the royalists at Oxford soon followed the example of their brethren at Westminster by imposing a similar duty; both sides protesting that it should be continued no longer than to the end of the war, and then be utterly abolished.(l) But the parliament at Westminster soon after imposed it on flesh, wine, tobacco, sugar, and such a multitude of other commodities, that it might fairly be denominated general: in pursuance of the plan laid down by Mr. Pymme, (who seems to have been the father of the excise,) in his letter to Sir John Hotham,(m) signifying, “that they had proceeded in the excise to many particulars, and intended to go on further; but that it *[*320would be necessary to use the people to it by little and little.” And afterwards, when the nation had been accustomed to it for a series of years, the succeeding champions of liberty boldly and openly declared, “the impost of excise to be the most easy and indifferent that could be laid upon the people;”(n) and accordingly continued it during the whole usurpation. Upon king Charles’s return, it having then been long established, and its produce well known, some part of it was given to the crown, in 12 Car. II., by way of purchase (as was before observed) for the feodal tenures and other oppressive parts of the hereditary revenue. But, from its first original to the present time, its very name has been odious to the people of England. It has nevertheless been imposed on abundance of other commodities in the reign of king William III. and every succeeding prince, to support the enormous expenses occasioned by our wars on the continent. Thus brandies and other spirits are now excised at the distillery; printed silks and linens, at the printer’s; starch and hair-powder, at the maker’s; gold and silver wire, at the wiredrawer’s; plate in the hands of the vendor, who pays yearly for a license to sell it; lands and goods sold by auction, for which a pound-rate is payable by the auctioneer, who also is charged with an annual duty for his license; and coaches and other wheel-carriages, for which the occupier is excised, though not with the same circumstances of arbitrary strictness as in most of the other instances. To these we may add coffee and tea, chocolate and cocoa-paste, for which the duty is paid by the retailer; all artificial wines, commonly called sweets; paper and pasteboard, first when made, and again if stained or printed; malt, as before mentioned; vinegars; and the manufacture of glass; for all which the duty is paid by the manufacturer: hops, for which the person that gathers them is answerable; candles and soap, which are paid for at the maker’s; malt liquors brewed for sale, which are excised at the brewery; cider and perry, at the vendor’s; and leather and skins, at the tanner’s;—a list, which no friend to his country would wish to see further increased.
**321]III. I proceed therefore to a third duty, namely, that upon salt; which is another distinct branch of his majesty’s extraordinary revenue, and consists in an excise of 3s. 4d. per bushel imposed upon all salt, by several statutes of king William and other subsequent reigns. This is not generally called an excise, because under the management of different commissioners: but the commissioners of the salt duties have by statute 1 Anne, c. 21 the same powers, and must observe the same regulations, as those of other excises. This tax had usually been only temporary; but by statute 26 Geo. II. c. 3 was made perpetual.
IV. Another very considerable branch of the revenue is levied with greater cheerfulness, as, instead of being a burden, it is a manifest advantage to the public. I mean the post-office, or duty for the carriage of letters. As we have traced the original of the excise to the parliament of 1643, so it is but justice to observe that this useful invention owes its first legislative establishment to the same assembly. It is true, there existed postmasters in much earlier times: but I apprehend their business was confined to the furnishing of post-horses to persons who were desirous to travel expeditiously, and to the despatching of extraordinary pacquets upon special occasions. King James I. originally erected a post-office under the control of one Matthew De Quester or De l’Equester for the conveyance of letters to and from foreign parts; which office was afterwards claimed by lord Stanhope,(o) but was confirmed and continued to William Frizell and Thomas Witherings by king Charles I., ad 1632, for the better accommodation of the English merchants.(p) In 1635, the same prince erected a letter-office for England and Scotland, under the direction of the same Thomas Witherings, and settled certain rates of postage:(q) but this extended only to a few of the principal roads, the times of carriage were uncertain, and the postmasters on each road were required to furnish the mail with horses at the rate of 2½d. a mile. **322]Witherings was superseded, for abuses in the exertion of both his offices, in 1640; and they were sequestered into the hands of Philip Burlamachy, to be exercised under the care and oversight of the king’s principal secretary of state.(r) On the breaking out of the civil war, great confusions and interruptions were necessarily occasioned in the conduct of the letter-office. And, about that time, the outline of the present more extended and regular plan seems to have been conceived by Mr. Edmond Prideaux, who was appointed attorney-general to the commonwealth after the murder of king Charles. He was chairman of a committee in 1642 for considering what rates should be set upon inland letters;(s) and afterwards appointed postmaster by an ordinance of both the houses,(t) in the execution of which office he first established a weekly conveyance of letters into all parts of the nation;(u) thereby saving to the public the charge of maintaining postmasters to the amount of 7000l. per annum. And, his own emoluments being probably very considerable, the common council of London endeavoured to erect another post-office in opposition to his; till checked by a resolution of the house of commons,(w) declaring that the office of postmaster is and ought to be in the sole power and disposal of the parliament. This office was afterwards farmed by one Manley in 1654.(x) But, in 1657, a regular post-office was erected by the authority of the Protector and his parliament,39 upon nearly the same model as has been ever since adopted, and with the same rates of postage as continued till the reign of queen Anne.(y) After the restoration, a similar office, with some improvements, was established by statute 12 Car. II. c. 35, but the rates of letters were altered, and some further regulations added, by the statutes 9 Anne, c. 10, 6 Geo. I. c. 21, 26 Geo. II. c. 12, 5 Geo. III. c. 25, and 7 Geo. III. c. 50, and penalties were enacted, in order to confine the carriage of letters to the public office only, except in some few cases: a provision which is absolutely necessary; for nothing but *[*323an exclusive right can support an office of this sort: many rival independent offices would only serve to ruin one another. The privilege of letters coming free of postage, to and from members of parliament, was claimed by the house of commons in 1660, when the first legal settlement of the present post-office was made;(z) but afterwards dropped,(a) upon a private assurance from the crown, that this privilege should be allowed the members.(b)40 And accordingly a warrant was constantly issued to the postmaster-general,(c) directing the allowance thereof, to the extent of two ounces in weight: till at length it was expressly confirmed by statute 4 Geo. III. c. 24; which adds many new regulations, rendered necessary by the great abuses crept into the practice of franking;41 whereby the annual amount of franked letters had gradually increased, from 23,600l. in the year 1715, to 170,700l. in the year 1763.(d) There cannot be devised a more eligible method than this of raising money upon the subject: for therein both the government and the people find a mutual benefit. The government acquires a large revenue; and the people do their business with greater ease, expedition, and cheapness, than they would be able to do if no such tax (and of course no such office) existed.42
V. A fifth branch of the perpetual revenue consists in the stamp duties, which are a tax imposed upon all parchment and paper whereon any legal proceedings, or private instruments of almost any nature whatsoever, are written; and, also, upon licenses for retailing wines, letting horses to hire, and for certain other purposes; and upon all almanacs, newspapers, advertisements, cards, dice, and pamphlets containing less than six sheets of paper. These imposts are very various, according to the nature of the thing stamped, rising gradually from a penny to ten pounds. This is also a tax, which though in some instances it may be heavily felt, by greatly increasing the expense of all mercantile as well as legal proceedings, yet, if moderately imposed, is of service to the public in general, by authenticating **324]instruments, and rendering it much more difficult than formerly to forge deeds of any standing; since, as the officers of this branch of the revenue vary their stamps frequently, by marks perceptible to none but themselves, a man that would forge a deed of king William’s time must know and be able to counterfeit the stamp of that date also. In France and some other countries the duty is laid on the contract itself, not on the instrument in which it is contained; (as, with us too, besides the stamps on the indentures, a tax is laid by statute 8 Anne, c. 9, of 6d. in the pound, upon every apprentice-fee, if it be 50l. or under; and 1s. in the pound, if it be a greater sum,) but this tends to draw the subject into a thousand nice disquisitions and disputes concerning the nature of his contract, and whether taxable or not; in which the farmers of the revenue are sure to have the advantage.(e)43 Our general method answers the purposes of the state as well, and consults the ease of the subject much better. The first institution of the stamp duties was by statute 5 & 6 W. and M. c. 21, and they have since in many instances been increased to ten times their original amount.
VI. A sixth branch is the duty upon houses and windows. As early as the conquest, mention is made in domesday book of fumage or fuage, vulgarly called smoke-farthings; which were paid by custom to the king for every chimney in the house. And we read that Edward the Black Prince, (soon after his successes in France,) in imitation of the English custom, imposed a tax of a florin upon every hearth in his French dominions.(f) But the first parliamentary establishment of it in England was by statute 13 & 14 Car. II. c. 10, whereby an hereditary revenue of 2s. for every hearth, in all houses paying to church and poor, was granted to the king forever. And, by subsequent statutes for the more regular assessment of this tax, the constable and two other substantial inhabitants of the parish, to be appointed yearly, (or the surveyor, appointed by the crown, together with such constable or other public officer) were, once in every *[*325year, empowered to view the inside of every house in the parish. But, upon the revolution, by statute 1 W. and M. st. 1, c. 10, hearth-money was declared to be “not only a great oppression to the poorer sort, but a badge of slavery upon the whole people, exposing every man’s house to be entered into, and searched at pleasure, by persons unknown to him; and therefore, to erect a lasting monument of their majesties’ goodness in every house in the kingdom, the duty of hearth-money was taken away and abolished.” This monument of goodness remains among us to this day: but the prospect of it was somewhat darkened, when in six years afterwards, by statute 7 W. III. c. 18, a tax was laid upon all houses (except cottages) of 2s., now advanced to 3s., per annum, and a tax also upon all windows, if they exceeded nine, in such house. Which rates have been from time to time(g) varied, being now extended to all windows exceeding six: and power is given to surveyors, appointed by the crown, to inspect the outside of houses, and also to pass through any house two days in the year, into any court or yard, to inspect the windows there. A new duty from 6d. to 1s. in the pound, was also imposed by statutes 18 Geo. III. c. 26, and 19 Geo. III. c. 59, on every dwelling-house inhabited, together with the offices and gardens therewith occupied: which duty, as well as the former, is under the direction of the commissioners of the land-tax.
VII. The seventh branch of the extraordinary perpetual revenue is a duty of 21s. per annum for every male servant retained or employed in the several capacities specifically mentioned in the act of parliament, and which almost amount to a universality, except such as are employed in husbandry, trade, or manufactures. This was imposed by statute 17 Geo. III. c. 39, amended by 19 Geo. III. c. 59, and is under the management of the commissioners of the land and window tax.44
VIII. An eighth branch is the duty arising from licenses to hackney coaches and chairs in London and the parts adjacent. In 1654 two hundred hackney coaches were allowed within London, Westminster, and six miles round, under the direction of the court of aldermen.(h) By statute 13 & 14 Car. II. c. 2, four hundred were licensed; and the money arising thereby was applied to repairing the streets.(i) This number was increased to seven hundred by statute 5 W. and M. c. 22, and the duties vested in the crown: and by statute 9 Anne, c. 23, and other subsequent statutes for their government,(j) there are now a thousand licensed coaches and four hundred chairs. This revenue is governed by commissioners of its own, and **326]is, in truth, a benefit to the subject, as the expense of it is felt by no individual, and its necessary regulations have established a competent jurisdiction, whereby a very refractory race of men may be kept in some tolerable order.
IX. The ninth and last branch of the king’s extraordinary perpetual revenue is the duty upon offices and pensions; consisting in an annual payment of 1s. in the pound (over and above all other duties)(k) out of all salaries, fees, and perquisites, of offices and pensions payable by the crown, exceeding the value of 100l. per annum. This highly popular taxation was imposed by statute 31 Geo. II. c. 22, and is under the direction of the commissioners of the land-tax.
The clear net produce of these several branches of the revenue, after all charges of collecting and management paid, amounts at present annually to about seven millions and three-quarters sterling; besides more than two millions and a quarter raised by the land and malt tax. How these immense sums are appropriated is next to be considered. And this is, first and principally, to the payment of the interest of the national debts.
In order to take a clear and comprehensive view of the nature of this national debt, it must first be premised, that after the revolution, when our new connections with Europe introduced a new system of foreign politics, the expenses of the nation, not only in settling the new establishment, but in maintaining long wars, as principals, on the continent, for the security of the Dutch barrier, reducing the French monarchy, settling the Spanish succession, supporting the house of Austria, maintaining the liberties of the Germanic body, and other purposes, increased to an unusual degree: insomuch that it was not thought advisable to raise all the expenses of any one year by taxes to be levied within that year, lest the unaccustomed weight of them should create murmurs among the people. It was therefore the policy of the times to anticipate the revenues of their posterity, by borrowing immense sums for the current service of the state, and to lay no more taxes upon the subject than would suffice to pay the annual interest of the sums so borrowed: by this means converting **327]the principal debt into a new species of property, transferable from one man to another at any time and in any quantity; a system which seems to have had its original in the state of Florence, ad 1344: which government then owed about 60,000l. sterling: and, being unable to pay it, formed the principal into an aggregate sum, called metaphorically a mount or bank, the shares whereof were transferable like our stocks, with interest at five per cent., the prices varying according to the exigencies of the state.(l) This policy of the English parliament laid the foundation of what is called the national debt: for a few long annuities created in the reign of Charles II. will hardly deserve that name. And the example then set has been so closely followed during the long wars in the reign of queen Anne, and since, that the capital of the national debt (funded and unfunded) amounted at the close of the session in June, 1777, to about an hundred and thirty-six millions:45 to pay the interest of which, together with certain annuities for lives and years, and the charges of management, amounting annually to upwards of four millions and three-quarters, the extra ordinary revenues just now enumerated (excepting only the land-tax and annual malt-tax) are in the first place mortgaged, and made perpetual by parliament. Perpetual, I say; but still redeemable by the same authority that imposed them: which, if it at any time can pay off the capital, will abolish those taxes which are raised to discharge the interest.
By this means the quantity of property in the kingdom is greatly increased in idea, compared with former times; yet, if we coolly consider it, not at all increased in reality. We may boast of large fortunes, and quantities of money in the funds. But where does this money exist? It exists only in name, in paper, in public faith, in parliamentary security; and that is undoubtedly sufficient for the creditors of the public to rely on. But then what is the pledge which the public faith has pawned for the security of these debts? The land, the trade, and the personal industry of the subject; from which the money must arise that supplies the several taxes. In these, therefore, and these only, the property of the public *[*328creditors does really and intrinsically exist; and of course the land, the trade, and the personal industry of individuals, are diminished in their true value just so much as they are pledged to answer. If A.’s income amounts to 100l. per annum, and he is so far indebted to B. that he pays him 50l. per annum for his interest; one-half of the value of A.’s property is transferred to B. the creditor. The creditor’s property exists in the demand which he has upon the debtor, and nowhere else; and the debtor is only a trustee to his creditor for one-half of the value of his income. In short, the property of a creditor of the public consists in a certain portion of the national taxes: by how much therefore he is the richer, by so much the nation, which pays these taxes, is the poorer.46
The only advantage that can result to a nation from the public debts is the increase of circulation, by multiplying the cash of the kingdom, and creating a new species of currency, assignable at any time and in any quantity; always therefore ready to be employed in any beneficial undertaking, by means of this its transferable quality, and yet producing some profit even when it lies idle and unemployed. A certain proportion of debt seems therefore to be highly useful to a trading people; but what that proportion is, it is not for me to determine. Thus much is indisputably certain, that the present magnitude of our national encumbrances very far exceeds all calculations of commercial benefit, and is productive of the greatest inconveniences. For, first, the enormous taxes that are raised upon the necessaries of life for the payment of the interest of this debt, are a hurt both to trade and manufactures, by raising the price as well of the artificer’s subsistence as of the raw material, and of course, in a much greater proportion, the price of the commodity itself. Nay, the very increase of paper circulation itself, when extended beyond what is requisite for commerce or foreign exchange, has a natural tendency to increase the price of provisions as well as of all other merchandise. For, as its effect is to multiply the cash of the kingdom, and this to such an extent that much must remain unemployed, that cash (which is the **329]universal measure of the respective values of all other commodities) must necessarily sink in its own value,(m) and every thing grow comparatively dearer. Secondly, if part of this debt be owing to foreigners, either they draw out of the kingdom annually a considerable quantity of specie for the interest, or else it is made an argument to grant them unreasonable privileges, in order to induce them to reside here. Thirdly, if the whole be owing to subjects only, it is then charging the active and industrious subject, who pays his share of the taxes, to maintain the indolent and idle creditor who receives them. Lastly, and principally, it weakens the internal strength of a state, by anticipating those resources which should be reserved to defend it in case of necessity.47 The interest we now pay for our debts would be nearly sufficient to maintain any war that any national motives could require. And if our ancestors in king William’s time had annually paid, so long as their exigencies lasted, even a less sum than we now annually raise upon their accounts, they would in the time of war have borne no greater burdens than they have bequeathed to and settled upon their posterity in time of peace, and might have been eased the instant the exigence was over.
The respective produces of the several taxes before mentioned were originally separate and distinct funds; being securities for the sums advanced on each several tax, and for them only. But at last it became necessary, in order to avoid confusion, as they multiplied yearly, to reduce the number of these separate funds, by uniting and blending them together; superadding the faith of parliament for the general security of the whole. So that there are now only three capital funds of any account, the aggregate fund, and the general fund, so called from such union and addition; and the South Sea fund, being the produce of the taxes appropriated to pay the interest of such part of the national debt as was advanced by that company and its annuitants. Whereby the separate funds, which were thus united, are become mutual securities for each other; and the whole produce of them, thus aggregated, liable to pay such interest or annuities as were *[*330formerly charged upon each distinct fund; the faith of the legislature being moreover engaged to supply any casual deficiencies.
The customs, excises, and other taxes, which are to support these funds, depending upon contingencies, upon exports, imports, and consumptions, must necessarily be of a very uncertain amount; but though some of them have proved unproductive, and others deficient, the sum total hath always been considerably more than was sufficient to answer the charge upon them. The surpluses therefore of the three great national funds, the aggregate, general, and South Sea funds, over and above the interest and annuities charged upon them, are directed, by statute 3 Geo. I. c. 7, to be carried together, and to attend the disposition of parliament; and are usually denominated the sinking fund, because originally destined to sink and lower the national debt. To this have been since added many other entire duties, granted in subsequent years; and the annual interest of the sums borrowed on their respective credits is charged on and payable out of the produce of the sinking fund. However, the net surpluses and savings, after all deductions paid, amount annually to a very considerable sum. For as the interest on the national debt has been at several times reduced, (by the consent of the proprietors, who had their option either to lower their interest or be paid their principal,) the savings from the appropriated revenues came at length to be extremely large. This sinking fund is the last resort of the nation; its only domestic resource on which must chiefly depend all the hopes we can entertain of ever discharging or moderating our encumbrance. And therefore the prudent and steady application of the large sums now arising from this fund, is a point of the utmost importance, and well worthy the serious attention of parliament; which was thereby enabled, in the year 1765, to reduce above two millions sterling of the public debt; and several additional millions in several succeeding years.48
But, before any part of the aggregate fund (the surpluses whereof are one of the chief ingredients that form the sinking **331]fund) can be applied to diminish the principal of the public debt, it stands mortgaged by parliament to raise an annual sum for the maintenance of the king’s household and the civil list. For this purpose, in the late reigns, the produce of certain branches of the excise and customs, the post-office, the duty on wine licenses, the revenues of the remaining crown lands, the profits arising from courts of justice, (which articles include all the hereditary revenues of the crown,) and also a clear annuity of 120,000l. in money, were settled on the king for life, for the support of his majesty’s household, and the honour and dignity of the crown. And, as the amount of these several branches was uncertain, (though in the last reign they were computed to have sometimes raised almost a million,) if they did not arise annually to 800,000l. the parliament engaged to make up the deficiency. But his present majesty having, soon after his accession, spontaneously signified his consent that his own hereditary revenues might be so disposed of as might best conduce to the utility and satisfaction of the public; and having graciously accepted the limited sum of 800,000l. per annum for the support of his civil list, the said hereditary and other revenues were carried into and made a part of the aggregate fund, and the aggregate fund was charged(n) with the payment of the whole annuity to the crown of 800,000l., which, being found insufficient, was increased in 1777 to 900,000l. per annum. Hereby the revenues themselves, being put under the same care and management as the other branches of the public patrimony, produce more, and are better collected, than heretofore; and the public is still a gainer of near 100,000l. per annum by this disinterested conduct of his majesty. The civil list, thus liquidated, together with the four millions and three-quarters interest of the national debt, and more than two millions produced from the sinking fund, make up the seven millions and three-quarters per annum, net money, which were before stated to be the annual produce of our perpetual taxes; besides the immense, though uncertain, sums arising from the annual taxes on land and malt, but which at an average *[*332may be calculated at more than two millions and a quarter, and, added to the preceding sum, make the clear produce of the taxes (exclusive of the charge of collecting) which are raised yearly on the people of this country, amount to about ten millions sterling.
The expenses defrayed by the civil list are those that in any shape relate to the civil government; as, the expenses of the royal household; the revenues allotted to the judges previous to the year 1758; all salaries to officers of state, and every of the king’s servants; the appointments to foreign ambassadors; the maintenance of the queen and royal family; the king’s private expenses, or privy purse; and other very numerous outgoings, as secret service money, pensions, and other bounties; which sometimes have so far exceeded the revenues appointed for that purpose, that application has been made to parliament to discharge the debts contracted on the civil list; as particularly in 1724, when one million(o) was granted for that purpose by the statute 11 Geo. I. c. 17, and in 1769 and 1777, when half a million and 600,000l. were appropriated to the like uses by the statutes 9 Geo. III. c. 34, and 17 Geo. III. c. 47.
The civil list is indeed properly the whole of the king’s revenue in his own distinct capacity; the rest being rather the revenue of the public or its creditors, though collected and distributed again in the name and by the officers of the crown: it now standing in the same place as the hereditary income did formerly; and, as that has gradually diminished, the parliamentary appointments have in creased. The whole revenue of queen Elizabeth did not amount to more than 600,000l. a year;(p) that of king Charles I. was(q) 800,000l.,49 and the revenue voted for king Charles II. was(r) 1,200,000l., though complaints were made (in the first years at least) that it did not amount to so much.(s) But it must be observed, that under these sums were included all manner of public expenses; among which lord Clarendon, in his speech to the parliament, computed that the charge of the navy and land forces amounted annually to 800,000l., which was ten times *[*333more than before the former troubles.(t) The same revenue, subject to the same charges, was settled on king James II.;(u) but by the increase of trade and more frugal management, it amounted on an average to a million and a half per annum, (besides other additional customs, granted by parliament,(v) which produced an annual revenue of 400,000l.,) out of which his fleet and army were maintained at the yearly expense of(w) 1,100,000l. After the revolution, when the parliament took into its own hands the annual support of the forces both maritime and military,50 a civil list revenue was settled on the new king and queen, amounting, with the hereditary duties, to 700,000l. per annum;(x) and the same was continued to queen Anne and king George I.(y) That of king George II., we have seen, was nominally augmented to(z) 800,000l., and in fact was considerably more; and that of his present majesty is avowedly increased to the limited sum of 900,000l. And upon the whole it is doubtless much better for the crown, and also for the people, to have the revenue settled upon the modern footing rather than the ancient. For the crown, because it is more certain, and collected with greater ease: for the people, because they are now delivered from the feodal hardships, and other odious branches of the prerogative. And though complaints have sometimes been made of the increase of the civil list, yet if we consider the sums that have been formerly granted, the limited extent under which it is now established, the revenues and prerogatives given up in lieu of it by the crown, the numerous branches of the present royal family, and, above all, the diminution of the value of money, compared with what it was worth in the last century, we must acknowledge these complaints to be void of any rational foundation; and that it is impossible to support that dignity, which a king of Great Britain should maintain, with an income in any degree less than what is now established by parliament.
**334]This finishes our inquiries into the fiscal prerogatives of the king, or his revenue, both ordinary and extraordinary. We have therefore now chalked out all the principal outlines of this vast title of the law, the supreme executive magistrate, or the king’s majesty, considered in his several capacities and points of view. But, before we entirely dismiss this subject, it may not be improper to take a short comparative review of the power of the executive magistrate, or prerogative of the crown, as it stood in former days, and as it stands at present. And we cannot but observe, that most of the laws for ascertaining, limiting, and restraining this prerogative, have been made within the compass of little more than a century past; from the petition of right in 3 Car. I. to the present time. So that the powers of the crown are now to all appearance greatly curtailed and diminished since the reign of king James the First; particularly by the abolition of the starchamber and high commission courts in the reign of Charles the First, and by the disclaiming of martial law, and the power of levying taxes on the subject by the same prince; by the disuse of forest laws for a century past; and by the many excellent provisions enacted under Charles the Second, especially the abolition of military tenures, purveyance, and pre-emption, the habeas corpus act, and the act to prevent the discontinuance of parliaments for above three years; and since the revolution, by the strong and emphatical words in which our liberties are asserted in the bill of rights and act of settlement; by the act for triennial, since turned into septennial, elections; by the exclusion of certain officers from the house of commons; by rendering the seats of the judges permanent, and their salaries liberal and independent; and by restraining the king’s pardon from obstructing parliamentary impeachments. Besides all this, if we consider how the crown is impoverished and stripped of all ancient revenues, so that it must greatly rely on the liberality of parliament for its necessary support and maintenance, we may perhaps be led to think that the balance is inclined pretty strongly to the popular scale, and that the executive magistrate has neither independence nor power enough left to form that check upon the lords and commons which the founders of our constitution intended.
*[*335But, on the other hand, it is to be considered that every prince, in the first parliament after his accession, has by long usage a truly royal addition to his hereditary revenue settled upon him for his life; and has never any occasion to apply to parliament for supplies, but upon some public necessity of the whole realm. This restores to him that constitutional independence which at his first accession seems, it must be owned, to be wanting. And then, with regard to power, we may find perhaps that the hands of government are at least sufficiently strengthened; and that an English monarch is now in no danger of being overborne by either the nobility or the people. The instruments of power are not perhaps so open and avowed as they formerly were, and therefore are the less liable to jealous and invidious reflections, but they are not the weaker upon that account. In short, our national debt and taxes (besides the inconveniences before mentioned) have also in their natural consequences thrown such a weight of power into the executive scale of government as we cannot think was intended by our patriot ancestors, who gloriously struggled for the abolition of the then formidable parts of the prerogative, and, by an unaccountable want of foresight, established this system in their stead. The entire collection and management of so vast a revenue, being placed in the hands of the crown, have given rise to such a multitude of new officers created by and removable at the royal pleasure, that they have extended the influence of government to every corner of the nation. Witness the commissioners and the multitude of dependants on the customs, in every port of the kingdom; the commissioners of excise, and their numerous subalterns, in every inland district; the postmasters, and their servants, planted in every town, and upon every public road; the commissioners of the stamps, and their distributors, which are full as scattered, and full as numerous; the officers of the salt duty, which, though a species of excise, and conducted in the same manner, are yet made a distinct corps from the ordinary managers of that revenue; the surveyors of houses and windows; the receivers of the land-tax; the managers of lotteries, and the commissioners of hackney coaches; all which *[*336are either mediately or immediately appointed by the crown, and removable at pleasure, without any reason assigned: these, it requires but little penetration to see, must give that power on which they depend for subsistence an influence most amazingly extensive. To this may be added the frequent opportunities of conferring particular obligations, by preference in loans, subscriptions, tickets, remittances, and other money transactions, which will greatly increase this influence; and that over those persons whose attachment, on account of their wealth, is frequently the most desirable. All this is the natural, though perhaps the unforeseen, consequence of erecting our funds of credit, and, to support them, establishing our present perpetual taxes: the whole of which is entirely new since the restoration in 1660, and by far the greatest part since the revolution in 1688. And the same may be said with regard to the officers in our numerous army, and the places which the army has created. All which put together give the executive power so persuasive an energy with respect to the persons themselves, and so prevailing an interest with their friends and families, as will amply make amends for the loss of external prerogative.
But though this profusion of offices should have no effect on individuals, there is still another newly acquired branch of power; and that is, not the influence only, but the force, of a disciplined army: paid indeed ultimately by the people, but immediately by the crown; raised by the crown, officered by the crown, commanded by the crown. They are kept on foot, it is true, only from year to year, and that by the power of parliament; but during that year they must, by the nature of our constitution, if raised at all, be at the absolute disposal of the crown. And there need but few words to demonstrate how great a trust is thereby reposed in the prince by his people: a trust that is more than equivalent to a thousand little troublesome prerogatives.
Add to all this, that, besides the civil list, the immense revenue of almost seven millions sterling, which is annually paid to the creditors of the public, or carried to the sinking **337]fund, is first deposited in the royal exchequer, and thence issued out to the respective offices of payment. This revenue the people can never refuse to raise, because it is made perpetual by act of parliament: which also, when well considered, will appear to be a trust of great delicacy and high importance.
Upon the whole, therefore, I think it is clear, that whatever may have become of the nominal, the real power of the crown has not been too far weakened by any transactions in the last century. Much is indeed given up; but much is also acquired. The stern commands of prerogative have yielded to the milder voice of influence; the slavish and exploded doctrine of non-resistance has given way to a military establishment by law; and to the disuse of parliaments has succeeded a parliamentary trust of an immense perpetual revenue. When, indeed, by the free operation of the sinking fund, our national debts shall be lessened; when the posture of foreign affairs, and the universal introduction of a well-planned and national militia, will suffer our formidable army to be thinned and regulated; and when, in consequence of all, our taxes shall be gradually reduced; this adventitious power of the crown will slowly and imperceptibly diminish, as it slowly and imperceptibly rose. But till that shall happen, it will be our especial duty, as good subjects and good Englishmen, to reverence the crown, and yet guard against corrupt and servile influence from those who are intrusted with its authority; to be loyal, yet free; obedient, and yet independent; and, above every thing, to hope that we may long, very long, continue to be governed by a sovereign who, in all those public acts that have personally proceeded from himself, hath manifested the highest veneration for the free constitution of Britain; hath already in more than one instance remarkably strengthened its outworks; and will, therefore, never harbour a thought, or adopt a persuasion, in any the remotest degree detrimental to public liberty.
[(a) ] 2 Inst. 15.
[(b) ] Stat. 17 Edw. II. c. 14. F. N. B. 32.
[(c) ] Matt. Paris.
[1 ] But queen Elizabeth kept the see of Eli vacant nineteen years, in order to retain the revenue. Strype, vol. iv. 351.—Christian.
[(d) ] 9 Hen. III. c. 5.
[(e) ] 3 Edw. I. c. 21.
[(f) ] Co. Litt. 67, 341.
[(g) ] F. N. B. 230.
[2 ] So where the foundation was not royal, it was usual for the founders to give their heirs a corody,—viz., a charge upon the particular monastery or abbey sufficient to prevent them from starving. And those persons, disinherited of the lands by their relations, were there subsisted during life. See a form of corody, Barr. stat. 80, n. (9.) Sparke’s Coll. 157.—Chitty.
[(h) ] Notes on F. N. B. above cited.
[3 ] The right to a corody does not seem peculiar to the prerogative, and it might be not only for life and years, but in fee, (2 Inst. 630;) assize lay for it, (stat. Westm. 2, c. 25.) The text would appear to indicate that only persons ecclesiastical could enjoy corody; but, by the older books, any servant of the king may be entitled to corody. A pension is proper to an ecclesiastic. See F. N. B. 250; also the previous note.—Chitty.
[(i) ] Page 113.
[(k) ] 2 Inst. 647.
[(l) ] F. N. B. 176.
[(m) ] 3 Inst. 154.
[4 ] There are several errors in the text, which Mr. Justice Coleridge has pointed out. The correct account is as follows: In 1253 pope Innocent IV. granted all the first-fruits and tenths to Henry III. for three years, which occasioned a taxation in the following year, sometimes called the Norwich taxation and sometimes Innocent’s valuation. In 1288, Nicholas IV. (not III., as in the text) granted the tenths to Edward I. for six years; and a new valuation was commenced in the same year by the king’s precept, which valuation was, so far as it extended over the province of Canterbury, finished in 1291, and, as to York, also in the following year: the whole being under the direction of John, bishop of Winton, and Oliver, bishop of Lincoln. In 1318, a third taxation, entitled Nova Taxatio, was made, but this only extended over some part of the province of York. It became necessary chiefly in consequence of the Scottish invasion of the border counties, which rendered the clergy of those districts unable to pay tenths and first-fruits according to the higher valuation. It was made by virtue of royal mandate directed to the bishop of Carlisle.—Hargrave.
[(n) ] Numb. xviii. 26.
[5 ] When the first-fruits and tenths were transferred to the crown of England, by 26 Hen. VIII. c. 3, at the same time it was enacted, that commissioners should be appointed in every diocese, who should certify the value of every ecclesiastical benefice and preferment in the respective dioceses; and according to this valuation the first-fruits and tenths were to be collected and paid in future. This valor beneficiorum is what is commonly called the King’s Books; a transcript of which is given in Ecton’s Thesaurus, and Bacon’s Liber Regis.—Christian.
[6 ] The archbishops and bishops have four years allowed for the payment, and shall pay one quarter every year, if they live so long upon the bishopric; but other dignitaries in the church pay theirs in the same manner as rectors and vicars.—Christian.
[7 ] After queen Anne had appropriated the revenue arising from the payment of first-fruits and tenths to the augmentation of small livings, it was considered a proper extension of this principle to exempt the smaller livings from the encumbrance of those demands; and, for that end, the bishops of every diocese were directed to inquire and certify into the exchequer what livings did not exceed 50l. a year, according to the improved value at that time: and it was further provided, that such livings should be discharged from those dues in future.—Christian.
[(o) ] 5 Anne, c. 24. 6 Anne, c. 27. 1 Geo. I. st. 2, c. 10. 3 Geo. I. c. 10.
[8 ] These trustees were erected into a corporation, and have authority to make rules and orders for the distribution of this fund. The principal rules they have established are, that the sum to be allowed for each augmentation shall be 200l., to be laid out in land, which shall be annexed forever to the living; and they shall make this donation, first, to all livings not exceeding 10l. a year; then to all livings not above 20l.; and so in order, whilst any remain under 50l. a year. But when any private benefactor will advance 200l., the trustees will give another 200l. for the advancement of any living not above 45l. a year, though it should not belong to that class of livings which are then augmenting. 2 Burn, Ec. L. 260.
Though this was a splendid instance of royal munificence, yet its operation is slow and inconsiderable; for the number of livings certified to be under 50l. a year was no less than 5597, of which 2538 did not exceed 20l. a year each, and 1933 between 30l. and 50l. a year, and the rest between 20l. and 30l.; so that there were 5597 benefices in this country, which had less than 23l. a year each, upon an average. Dr. Burn calculates that, from the fund alone, it will require 339 years from the year 1714, when it commenced, before all these livings can be raised to 50l. And if private benefactors should contribute half as much as the fund, (which is very improbable,) it will require 226 years. But even taking this supposition to have been true ever since the establishment, it will follow, that the wretched pittance from each of 5597 livings, both from the royal bounty and private benefaction, cannot, upon an average, have yet been augmented 9l. a year. 2 Burn, E. L. 268. Dr. Burn, in this calculation, computes the clear amount of the bounty to make fifty-five augmentations daily, that is, at 11,000l. a year; but Sir John Sinclair (Hist. Rev. 3 part, 198) says that “this branch of the revenue amounted to about 14,000l. per annum; and on the 1st of January, 1735, the governors of that charity possessed, besides from savings and private benefactions, the sum of 152,500l. of old South Sea annuities, and 4857l. of cash, in the hands of their treasurer. The state of that fund has of late years been carefully concealed; but it probably yields, at present, from forty to fifty thousand pounds per annum.” This conjecture must certainly be very wide of the truth of the case; for the source of this fund is fixed and permanent, except the variation depending upon the contingency of vacancies, which will be more or fewer in different years. And what object can the commissioners have in the accumulation of this fund? For that accumulation can only arise by depriving the poor clergy of the assistance which was intended them, and to enrich the successor at the expense of the wretched incumbent of the present day. The condition of the poor clergy in this country certainly requires some further national provision. Neither learning, religion, nor good morals, can secure poverty from contempt in the minds of the vulgar. The immense inequality in the revenues of the ministers of the gospel, not always resulting from piety and merit, naturally excites discontent and prejudices against the present establishment of the church. If the whole of the profits and emoluments of every benefice for one year were appropriated to this purpose, an effect would be produced in twenty or thirty years which will require 300 by the present plan. This was what was originally understood by the first-fruits, and what actually, within the last 300 years, was paid and carried out of the kingdom to support the superstition and folly of popery. If upon any promotion to a benefice it was provided that there should be no vacancy or cession of former preferment till the end of the year, who could complain? It would certainly soon yield a supply which would communicate both comfort and respectability to the indigent clergy.—Christian.
[(p) ] 1 Anne, st. 1, c. 7.
[(q) ] In like manner, by the civil law, the inheritance or fundi patrimoniales of the imperial crown could not be alienated, but only let to farm. Cod. l. 11, t. 61.
[9 ] By the 26 Geo. III. c. 87, amended by 30 Geo. III. c. 50, commissioners were appointed to inquire into the state and condition of the woods, forests, and land-revenues belonging to the crown, and to sell fee-farm and other unimprovable rent.—Christian.
[(r) ] 4 Inst. 273.
[(s) ] Mod. Un. Hist. xxxiii. 220.
[(t) ] Roger North, in his life of lord keeper North, (43, 44,) mentions an eyre, or iter, to have been held south of Trent soon after the restoration; but I have met with no report of its proceedings.
[10 ] This was one of the odious modes adopted by Car. I. to raise a revenue without the aid of parliament.—Christian.
[(u) ] 1 Jones, 267, 293.
[(v) ] Plowd. 315.
[(w) ] Stiernh. de jure Sueonum, l. 2, c. 8. Gr. Coustum, cap. 17.
[(x) ] 17 Edw. II. c. 11.
[(y) ] Bracton, l. 3, c. 3. Britton, c. 17. Fleta, l. 1, c. 45 and 46. Memorand. Scacch’. H. 24 Edw. I. 37, prefixed to Maynard’s year Book of Edward II.
[(z) ] Ch. 4, page 223.
[(a) ] Dr. and St. d. 2, c. 51.
[(b) ] Spelm. Cod. apud Wilkins, 305.
[(c) ] 26 May, ad 1174. 1 Rym. Fœd. 86.
[(d) ] Rog. Hoved. in Ric. I.
[(e) ] “Should have all his goods freed and undisturbed.”
[(f) ] In like manner Constantine the Great, finding that by the imperial law the revenue of wrecks was given to the prince's treasury or fiscus, restrained it by an edict, (Cod. 11, 5, 1,) and ordered them to remain to the owners, adding this humane expostulation, “Quod enim jus habet fiscus in aliena calamitate, ut de re tam luctuosa compendium sro[Editor: Illegible character]tetur?”
[(g) ] Bract. l. 3, c. 3.
[(h) ] 3 Edw. I. c. 4.
[(i) ]Gr. Coustum. c. 17.
[(j) ] Flet. l. 1, c. 44. 2 Inst. 167. 5 Rep. 107.
[(k) ] Hamilton vs. Davies. Trin. 11 Geo. III. R. R.
[(l) ] 28.
[(m) ] 2 Inst. 168.
[(n) ] Plowd. 166.
[(o) ] 2 Inst. 168. Bro. Abr. tit. Wreck.
[(p) ] 5 Rep. 106.
[(q) ]Quæ enim res in tempestate, levandæ navis causa ejiciuntur, hae dominorum permanent. Quia palam est, eas non so animo ejicet, quod quis habere nolit. Inst. 2, 1, 48.
[(r) ] 5 Rep. 108.
[(s) ] Stiernh. de jure Sueon. l. 3, c. 5.
[(t) ] F. N. B. 112.
[(u) ] By the civil law, to destroy persons shipwrecked, or prevent their saving the ship, is capital. And to steal even a plank from a vessel in distress or wrecked, makes the party liable to answer for the whole ship and cargo. (Ff. 47, 9, 3.) The laws also of the Wisigoths, and the most early Neapolitan constitutions, punished with the utmost severity all those who neglected to assist any ship in distress, or plundered any goods cast on shore. Lindenbrog. Cod. LL. an. tig 146, 715.
[11 ] By act of Congress, 3 March, 1825, the penalty of a fine not exceeding $5000, and confinement at hard labour not exceeding ten years, according to the aggravation of the offence, is imposed on any person who shall plunder any wreck or hold out false lights.
It has been settled that the owner of the sea-shore has a title to the possession of wreck thrown thereon and never reclaimed by the owner, and may maintain an action against a stranger for taking it, and recover its value as damages. Baker vs. Bates, 13 Pickering, 255. It has also been decided that the States have jurisdiction to regulate wrecks, and that a wreck-sale made by authority of the statute laws of a State is valid to pass the title to the property, when there is no owner or agent present to protect or claim the property. 5 Mason, 465.
A liberal construction of the revenue-laws has always been made in favour of wrecked property. Thus, it has been decided by the Supreme Court of the United States (4 Cranch, 347) that goods saved from a wreck and landed are not liable to forfeiture because unaccompanied by such marks and certificates as are required by law, nor because they were removed without the consent of the collector of the district, before the quantity and quality were ascertained and the duties paid; nor even if the goods thus landed are sold and enter into the consumption of the country. 3 Story’s Rep. 68.—Sharswood.
[(v) ] 2 Inst. 577.
[(w) ] Plowd. 336.
[(x) ] 3 Inst. 132. Dalt. of Sheriffs, c. 16.
[12 ] In this country the proprietor of the soil is entitled to it as against all the world except the real owner. Whether the real owner of the treasure may reclaim it would seem to depend upon whether it was originally hidden in the earth with the express or implied consent of the owner of the land. See 2 Kent’s Com. 358.—Sharswood.
[(y) ] Britt. c. 17. Finch, L. 177.
[(z) ] L. 3, c. 3, 4.
[13 ] This certainly is true, though it cannot be reconciled with the learned judge’s doctrine, that all bona vacantia belong to the king.—Christian.
[(a) ] Bracton, l. 3, c. 3. 3 Inst. 133.
[(b) ]Ff. 41, 1, 31.
[(c) ]De jur. b. & p. l. 2, c. 8, 7.
[(d) ] Glanv. l. 1, c. 2. Crag. 1, 16, 40.
[(e) ] 3 Inst. 133.
[(f) ] Cro. Eliz. 694.
[(g) ] Finch, L. 212.
[(h) ] Ibid.
[(i) ] 5 Rep. 109.
[(j) ] Fitz. Abr. tit. Estray, 1, 3 Bulstr. 19.
[14 ] This prerogative of the crown was placed at the common law under so many checks, and it is so unjust in itself, that it may perhaps be considered as never adopted in the United States as against the real owner, and never put in practice as against the finder; though, as against him, I apprehend the title of the state would be deemed paramount. 2 Kent, 358. In the absence of express statute regulation, perhaps goods waved, if found on the highway, would belong to the finder as against all but the real owner; if on private property, to the proprietor of the land.—Sharswood.
[15 ] This reason is not very satisfactory; for the king being the ultimus hæres of all the land in the kingdom, they must do the same injury to his interest, whether they are grazing in one place or another out of the king’s domains. But the law is probably founded upon general policy; for by giving the estray to the king, or his grantee, and not to the finder, the owner has the best chance of having his property restored to him; and it lessens the temptation to commit thefts, as it prevents a man from pretending that he had found, as an estray, what he had actually stolen, or, according to the vulgar phrase, that he had found what was never lost.—Christian.
[(k) ] Mirr. c. 3, 19.
[(l) ] 5 Rep. 108. Bro. Abr. tit. Estray, Cro. Eliz. 716.
[(m) ] Stiernh. de jur. Gothor. l. 3, c. 5.
[(n) ] Dalt. Sh. 79.
[16 ] But if any other person finds and takes care of another’s property, not being entitled to it as an estray, (nor being saved at sea, or in other cases where the law of salvage applies,) the owner may recover it or its value, without being obliged to pay the expenses of keeping. 2 Bl. Rep. 1117. 2 Hen. Bl. 254.—Christian.
The law as it stands is not without its policy; but equity seems to demand, even on the part of a loser, that a bonâ fide finder should be recompensed for the labour he may have bestowed and the care he may have taken in preserving property actually lost. The general law seems calculated to prevent surreptitious appropriation of another’s property under the pretence, if detected, of its having been found. It is said that much property in timber and other comparatively light goods is annually irrecoverably lost by drifting, no one caring to stay it. By the Thames regulations, watermen are enjoined to convey all timber, &c. found by them loosely floating to certain places of deposit, appointed by the water-bailiff; but, as no recompense is made, either the property is secreted, or, if that be hazardous, the article is left to drift away to sea.—Chitty.
[(o) ] Finch, L. 177.
[(p) ]L. 1, c. 43.
[(q) ] 7 Rep. 17.
[(r) ] 1 Roll. Abr. 889.
[(s) ] Cro. Jac. 147.
[(t) ] Cro. Jac. 148. Noy. 119.
[17 ] Estrays, when unreclaimed, are disposed of generally in the United States by the officers of the township where the estray is taken up, for the use of the poor or other public purposes. In the absence of statute regulation, if found on the highway, they belong to the finder against all but the real owner; if on private property, they are subject to distress, damage freasant, and may be held as a pledge until the owner makes good the damage. But if they have strayed through defect of the fences of the proprietor of the soil, the owner may reclaim them. One whose chattel has been wrongfully taken from him may enter upon the land of the taker peaceably, for the purpose of retaking, without subjecting himself even to nominal damages as a trespasser. 2 Watts & Serg. 225. All the books agree that, where an animal escapes from the possession of its owner by his consent, exclusive negligence, or other default, he cannot pursue it into the close of another without becoming a trespasser by his entry.—Ibid.
A person who takes up an estray cannot levy a tax upon it but by way of amends or indemnity. This is the doctrine of the common law. 1 Roll. Abr. 879, c. 5. Noy. Rep. 144. Salk. 686. And the Roman lawyers equally denied to the finder of any lost property a reward for finding it. “Non probe petat aliquid,” says the Digest. Dig. 47, 2, 43, 9 Amory vs. Flyn, 10 Johns. 102.—Sharswood.
[(u) ]L. 1, c. 12.
[(v) ] “These things, for which no owner appears, by natural law formerly belonged to the finder, but are now, by the law of nations, appointed to the prince.”
[18 ] This cannot be reconciled with what the learned judge has advanced in p. 295, viz., that if “any thing be found in the sea, or upon the earth, it doth not belong to the king, but the finder, if no owner appears.” That certainly is the law of England; and which, with deference to the learned judge, is the general rule with regard to all bona vacantia, except in particular instances in which the law has given them to the king. Those instances are exceptions which prove the rule, for expressio unius est exclusio alterius. See the case of Armory vs. Delamirie, in Strange, 505, where a chimney-sweeper’s boy recovered from a goldsmith, who detained from him a diamond which he had found, the value of the finest diamond which would fit the socket from which it was taken. And it was clearly held, that the boy had a right to it against all the world, except the owner, who did not appear. And I cannot but think that the learned judge has misconceived the sentence in Bracton, which is this:—Item de hiis, quæ pro wayvio habentur, sicut de averiis, ubi non apparet dominus, et quæ olim fuerunt inventoris de jure naturali, jam efficiuntur principis de jure gentium. Here the quæ refers only to the two antecedents wayvia and averia, or perhaps to averia only; by which construction the sentence is consistent, and the whole correct. But if it had been intended that it should be understood as if omnia had preceded quæ, it would have been superfluous to have instanced averia, and the sentence would certainly have been erroneous.—Christian.
[(w) ] 1 Hal. P. C. 419. Fleta, l. 1, c. 25.
[(x) ] Fitzh. Abr. tit. Enditement, pl. 27. Staunf. P. C. 20, 21.
[(y) ] 3 Inst. 57. 1 Hal. P. C. 422.
[(z) ]Omnia, quæ movent ad mortem, sunt Deo danda. Bracton, l. 3, c. 5. “All things which while in motion cause death are to be offered to God.” [This passage is cited in a great many authors, but I cannot find it in Bracton.—Coleridge.]
[(a) ] Exod. xxi. 28.
[(b) ] Æschin. cont. Ctesiph. Thus, too, by our ancient law, a well in which a person was drowned was ordered to be filled up, under the inspection of the coroner. Flet. l. 1, c. 25, 10. Fitzh. Abr. t. Corone, 416.
[19 ] This was one of Draco’s laws; and perhaps we may think the judgment, that a statue should be thrown into the sea for having fallen upon a man, less absurd, when we reflect that there may be sound policy in teaching the mind to contemplate with horror the privation of human life, and that our familiarity even with an insensible object which has been the occasion of death may lessen that sentiment. Though there may be wisdom in withdrawing such a thing from public view, yet there can be none in treating it as if it was capable of understanding the ends of punishment.—Christian.
[(c) ] 1 Hal. P. C. 422.
[(d) ] 1 Hawk. P. C. c. 26.
[(e) ] A similar rule obtained among the ancient Goths. Si quis, me nesciente, quocunque meo telo vel instrumento in permciem suam abutatur; vel ex ædibus meis cadat, vel incidat in puteum meum, quantumvis tectum et munitum, vel in cataractum, et sub molendino meo confringatur, ipse aliqua muleta plectar; ut in pârte infelicitatis meæ numeretur, habuisse vel ædificasse aliquod quo homo periret. Stiernhook de jure Goth. l. 3, c. 4.
[(f) ] Dr. and St. d. 2, c. 51.
[(g) ] 3 Inst. 57.
[(h) ] 3 Inst. 58. 1 Hal. P. C. 423. Molloy, de Jur. Maritim 2, 225.
[(i) ] Foster of Homicide, 266.
[20 ] But would it not be much better that a law should be abolished, the policy of which has long ceased, and at which the understandings of mankind so strongly revolt, that juries are inclined to trifle with their oaths, and judges to encourage ridiculous distinctions, which tend to bring the general administration of justice into contempt?—Chitty.
[21 ] Forfeiture of estate and corruption of blood, under the laws of the United States, and including cases of treason, are abolished. Act of Congress, April 20, 1790, s. 24, 1 Story’s Laws, 88. Forfeiture of property in cases of treason and felony was a part of the common law, and must exist at this day in the jurisprudence of those States where it has not been abolished by their constitutions or by statute. Several of the State constitutions have provided that no attainder of treason or felony shall work corruption of blood or forfeiture of estate except during the life of the offender: and some of them have taken away the power of forfeiture absolutely, without any such exception. There are other State constitutions which impliedly admit the existence or propriety of the power of forfeiture, by taking away the right of forfeiture expressly in cases of suicide and deodand, and preserving silence as to other cases; and in one instance (Const. of Maryland) forfeiture of property is limited to the cases of treason and murder. 2 Kent’s Com. 386.—Sharswood.
[(j) ] Flet. l. 1, c. 11, 10.
[(k) ] Dyer, 302. Hutt. 17. Noy. 27.
[(l) ] F. N. B. 232.
[(m) ] 4 Rep. 126. Memorand, Scacch. 20 Edw. I. (prefixed to Maynard’s Year-Book of Edw. II.) fol. 20, 24.
[22 ] The jurisdiction which the chancellor has generally, or perhaps always, exercised over the persons and estates of lunatics and idiots, is not necessarily annexed to the custody of the great seal; for it has been declared by the house of lords “that the custody of idiots and lunatics was in the power of the king, who might delegate the same to such person as he should think fit.” And upon every change of the great seal, a special authority under his majesty’s royal sign-manual is granted to the new chancellor for that purpose. Hence no appeal lies from the chancellor’s orders upon this subject to the house of lords, but to the king in council. Dom. Proc. 14 Feb. 1726. 3 P. Wms. 108.—Christian.
[(n) ] F. N. B. 232.
[(o) ] This power, though of late very rarely exerted, is still alluded to in common speech by that usual expression of begging a man for a fool.
[(p) ] 4 Inst. 203. Com. Jour. 1610.
[(q) ] F. N. B. 233.
[(r) ] Co. Litt. 42. Fleta, l. 6, c. 40.
[23 ] In Yong vs. Saut, Dyer, 56, a., it was held that one who had become deaf, dumb, and blind by accident, not having been born so, was to be deemed non compos mentis. The presumption that a person deaf, dumb, and blind from his nativity is an idiot is only a legal presumption, and is, therefore, open to be rebutted by evidence of capacity. 1 Chitt. Med. Jur. 301, 345.—Hargrave. To the same effect are Brown vs. Fisher, 4 Johns. Ch. Rep. 441. Christmas vs. Mitchell, 3 Iredell Ch. 535.
In most of the United States, by the provisions of express statutes, an habitual drunkard is placed in the same class with lunatics, and the management of his property taken out of his hands. The proceedings to ascertain the fact, and the legal consequences, are in general the same as in the case of idiocy and lunacy.—Sharswood.
[(s) ]Idiota a casu et infirmitate. (Mem. Scacch. 20 Edw. I in Maynard’s Year-Book of Edw. II. 20.)
[24 ] The influence of the moon upon the human mind, or rather the dependence of any state of the human mind upon the changes of the moon, is doubted or denied by the best practical writers upon mental disorders.—Chitty.
[(t) ] 1 Inst. 246.
[25 ] And made perpetual by 26 Geo. III. c. 91. By that statute, no person shall confine more than one lunatic in a house kept for the reception of lunatics, without an annual license from the college of physicians or the justices in sessions, under a penalty of 500l. And if the keeper of a licensed house receive any person as a lunatic, without a certificate from a physician, surgeon, or apothecary, that he is a fit person to be received as a lunatic, he shall forfeit 100l.—Chitty.
[(u) ] 3 P. Wms. 108.
[26 ] This rule, that the next of kin of a lunatic, if entitled to his estate upon his death, must not be committee of the person, has long ceased to be adhered to. 7 Ves. 591. If no one will accept the office of committee, a receiver of the lunatic’s estate must be appointed with a salary, but who should be considered as committee and give proper security as such. 10 Ves. 622. 1 T & W. 639.—Hargrave.
The court may appoint a receiver of the lunatic’s estate before the return of the inquisition under a commission of lunacy. In the matter of Kenton, 5 Binn. 613. The acts of a lunatic before office found are not void, but voidable. Jackson vs. Gumace, 2 Cowen, 552. After office found they are void. Pearl vs. McDowell, 3 T. T. Marsh, 658. An inquisition finding one a lunatic is only prima facie, not conclusive, evidence against a person not a party to it. Hutchinson vs. Sandt, 4 Rawle, 234. Drew vs. Clark, 5 Halst. [Editor: Illegible character]17.—Sharswood.
[(v) ] 2 P. Wms. 638.
[(w) ]Solent prætores, si talem hominem invenerint, qui neque tempus neque finem expensarum habet, sed bona sua dil[Editor: Illegible character]erando et dissipando profundit, curatorem ei dare, exemplo furiosi: et tamdiu erunt [Editor: Illegible character]bo in curatione, quamdiu vel furiosus sanitatem, vel ille bonos mores, receperit. Ff. 27, 10, 1.
[(x) ] Potter, Antiq. b. 1, c. 26.
[(y) ] Bro. Abr. tit. Idiot, 4.
[(z) ] Page 282.
[(a) ] Page 169.
[27 ] “Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years and excluding Indians not taxed, three-fifths of all other persons.” Const. U. S. art. 1, s. 2. “No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.” Ibid. s. 9. It was decided by the Supreme Court of the United States that a duty laid upon carriages for the conveyance of persons was not a direct tax required to be apportioned among the several States according to numbers. The better opinion seems to be that the direct taxes contemplated by the constitution were only two,—viz.: a capitation or poll tax, and a tax on land. 3 Dallas, 171. A direct tax, if laid at all, must be laid on every State conformably to the census; and therefore Congress has no power to exempt any State from its due share of the burden. But Congress is not obliged to extend a tax to the District of Columbia and to the Territories; though, if they are taxed, the constitution gives the rule of assessment. 5 Wheaton, 317.—Sharswood.
[(b) ] 2 Inst. 77. 4 Inst. 34.
[(c) ] Hoved. ad 1188. Carte, i. 719. Hume, i. 32.
[(d) ]ad 1232.
[(e) ] See the second book of these Commentaries.
[(f) ] Cap. 14.
[(g) ] 9 Hen. III. c. 37.
[(h) ] 25 Edw. I. c. 5 and 6. 34 Edw. I. st. 4, c. 1. 14 Edw III. st. 2, c. 1.
[(i) ] Madox, Hist. Exch. 480.
[(j) ] 4 Inst. 33.
[(k) ] Hist. b. 2.
[(l) ] 4 Inst. 33.
[(m) ] Dalt. of Sheriffs, 418. Gilh. Hist. of Exch. c. 4.
[28 ] Sir John Sinclair has given the proportions to be levied upon each county of an assessment of 70,000l. a month in the year 1660, in his History of the Public Revenue, 1 part, 189.—Christian.
[(n) ] 29 Nov. 4 March, 1542.
[(o) ] One of these bills of assessment, in 1656, is preserved in Scobell’s Collection, 400.
[29 ] No subsidies were granted either by the laity or clergy after 1663, 15 Car. II. c. 9 and 10. The learned judge has been misled by the title to the act of the 22 & 23 Car. II. c. 3, in the year 1670, when he declares it was the last time of raising supplies by way of subsidy; for the title of it is, “An act to grant a subsidy to his majesty for supply of his extraordinary occasions;” all the material clauses of which are copied verbatim in that of the 4 W. and M. c. 1, (the land-tax act;) the act of Charles is not printed in the common edition of the Statutes at Large, but it is given at length in Keble’s edition. The scheme of taxing landed property was not a novelty; for it was first introduced in the time of the commonwealth. The substance of this plan may be seen in an act for an assessment to raise 60,000l. a month in Scobell’s Acts, 1656, c. 12.
To those who have leisure and opportunity it might afford entertainment to inquire what was the difference of the assessments returned into the exchequer in the years 1656, 1670, and 1692. For besides the present disproportion in the assessment, necessarily arising from a more improved cultivation of land in some counties, it is commonly supposed that there was an original inequality in the valuation of estates, from the liberality or fraud of the owners and assessors in their representations of the value, according to their attachment or aversion to the new government.—Christian.
[(p) ] Com. Jour. 26 June, 9 Dec. 1678.
[(q) ] In the years 1732 and 1733.
[30 ] And in the next year a further additional duty of 6d. a bushel was laid upon malt. But by the consolidation act, 27 Geo. III. c. 13, these duties are repealed; and, in lieu of them, 9¾d. is laid upon every bushel of malt in England, and half as much in Scotland. Sir John Sinclair states, that from Michaelmas 1787 to Michaelmas 1788, the net produce of the perpetual excise upon malt was 724,786l.; the annual excise, 603,317l.; the duties upon beer, 1,666,152l.; upon British spirits, 509,167l.; so that barley yielded a clear revenue of 3,503,422l. 3 Sinc. 125.—Christian.
[31 ] Though the land-tax is supposed, and stated in the annual act, to raise, at 4s. in the pound, an income of 1,989,673l. 7s. 10¼d.: yet Sir John Sinclair shows, with great appearance of accuracy, that it is so uniformly deficient, that, upon an average, the whole amount ought not to be estimated at more than 1,900,000l., and that the annual malt-tax, after two very favourable years, ending at Michaelmas 1788, did not average more than 600,000l. 3 Part, 108, 117—Christian.
[(r) ] Dyer, 165.
[(s) ] Dyer, 43, pl. 24.
[(t) ] 2 Inst. 58, 59.
[32 ] Sir Edward Coke cites a letter patent of Edw. I. in which the king recites, that the parliament had granted to him and his heirs quædam nova consuetudo upon wool, skins, and leather; but that merchants paid duties and customs long before, appears from the memorable clause in magna charta, upon which Sir Edward Coke is there commenting; that clause provides, that all merchants shall have safe conduct throughout England, ad emendum et vendendum sine omnibus malis tolnetis, per antiquas et rectas consuetudines; and he says these are subsidies or customs granted by common consent pro bono publico. 2 Inst. 58. They seem to have been called customs, from having been paid from time immemorial; and a memorable statute in the 21 Edw. I. c. 5, makes that distinction. It states, that several people are apprehensive that the aids, tasks, and prizes, which they had granted for the king’s wars, and other occasions, might be turned upon them and their heirs (en servage) into an act of slavery; the king therefore declares and grants, that he will not draw such temporary aids and taxes into a custom.
This is a striking and a noble instance of a jealous spirit of liberty in our ancestors, and that they were anxious to preserve those rights which by magna charta they had successfully vindicated.
Lord Coke, both in 2 Inst. 58, and in 4 Inst. 29, 30, shows from the authorities he cites that customs or duties were called in old legal Latin custuma and consuetudines indiscriminately. But he seems very desirous of inculcating the doctrine, that all customs or duties owe their origin to the authority of parliament; a doctrine which, both before and after his time, the crown was inclined to controvert.—Christian.
[(u) ] Dav. 9.
[(v) ] This appellation seems to be derived from the French word coustum or coutum, which signifies toll or tribute, and owes its own etymology to the word coust, which signifies price, charge, or, as we have adopted it in English, cost.
[(w) ] 4 Inst. 29.
[(x) ] Madox, Hist. Exch. 526, 532.
[(y) ] Dav. 8. 2 Bulst. 254. Stat. Estr. 16 Edw. II. Com. Jour. 27 April, 1639.
[(z) ] Dav. 11, 12.
[(a) ] Dav. 12.
[(b) ] Hist. Rebell. b. 3.
[33 ] The causes of resistance were numerous, and to the last hour of the pending treaty of Uxbridge some of them existed. Not one of the supposed prerogatives against the future exertion of which security was sought by the treaty, but had operated some grievance upon the subject. The king, at a meeting on the occasion of that treaty, had actually agreed to sign it; but as the discussion of its several items had been long and late, the mere signing was adjourned to eight o’clock the next morning. The unfortunate king appeared to part with the commissioners in excellent temper, and with seeming good will towards them; they anticipating nothing less than the completion of the treaty. But the event showed that they were not justified in placing any reliance upon the monarch, who, it appears, could not rely upon himself. In the night he received letters from the queen, announcing French aid at hand; and, at the time appointed in the morning for that purpose, the king refused to sign the treaty. The house was sitting when the news of the refusal arrived; disappointment and regret clouded every brow. The event is too well known. The king lost his life, but he was not murdered. It became a question of self-preservation and of power, and Cromwell and his supporters prevailed. If it be conceded that the death of the first Charles shall rightly be called a murder, how are the deaths of lord Stafford, in the subsequent reign, and those of Sir Henry Vane and others, to be designated? That the king, a papist, might not seem to favour popery, he allowed the poor old peer to be murdered; and, in violation of his word that the life of Vane should be spared, the king permitted him to be judicially destroyed. His noble reply, when he was urged to become a suppliant to the restored monarch, deserves to be remembered:—“If the king do not think himself more concerned for his honour and his word, than I do for my life, they may take it.” None of these judicial acts are excusable on any ground of justice, policy, or expediency; but Charles, had he survived and resumed his power, would have immolated more martyrs to liberty than its champions sacrificed to those of royalty. Let the student look at the facts; not through Hume’s glazing, or Lord Clarendon’s beautiful apology, but through the public events, state papers, and proceedings of the period. Then let him turn to the recorded deeds of the profligacy of one son, and to those indicating the fatuity of the other; and he will not fail to perceive that the subsequent revolution became necessary to the preservation of the state and people; and, if it was so necessary, then a justification for the resistance, rebellion, if that word be thought more appropriate, opposed to this family, beginning with the father, will be read.—Chitty.
[(c) ] 16 Car. I. c. 8.
[(d) ] Stat. [Editor: Illegible character] Car. II. c. 4. 11 Geo. I. c. 7.
[34 ] In the year 1787, by the 27 Geo. III. c. 13, called the consolidation act, all the former statutes imposing duties of customs and excise were repealed with regard to the quantum of the duty; and the two books of rates mentioned by the learned judge were declared to be of no avail for the future; but all the former duties were consolidated, and were ordered to be paid according to a new book of rates annexed to that statute. Before this act was passed, it could not be supposed that many persons, besides excisemen and custom-house officers, could be acquainted with the duties payable upon the different articles of commerce. Sir John Sinclair says that French wine was liable to fifteen, and French paper to fourteen, different duties, which, of course, lay widely dispersed in so many acts of parliament. But now, by this excellent improvement, we can immediately find the duty upon the importation or exportation of any article, or what excise duty any commodity is subject to, in an alphabetical table. Bullion, wool, and some few other commodities, may be imported duty free. All the articles enumerated in the tables or book of rates, pay, upon importation or exportation, the sum therein specified, according to their weight, number, or measure. And all other goods and merchandise, not being particularly enumerated or described, and permitted to be imported and used in Great Britain, shall pay upon importation 27l. 10s. per cent. ad valorem, or for every 100l. of the value thereof; but subject to a draw-back of 25l. per cent. upon exportation. Very few commodities pay a duty upon exportation; but where that duty is not specified in the tables, and the exportation is not prohibited, all articles may be exported without payment of duty, provided they are regularly entered and shipped; but, on failure thereof, they are subject to a duty of 5l. 10s. per cent. ad valorem. And to prevent frauds in the representation of the value, a very simple and equitable regulation is prescribed in the act, viz.: the proprietor shall himself declare the value, and, if this should appear not to be a fair and true estimate, the goods may be seized by the proper officer; and four of the commissioners of the customs may direct that the owner shall be paid the price which he himself fixed upon them, with an advance of 10 per cent. besides all the duty which he may have paid; and they may then order the goods to be publicly sold, and, if they raise any sum beyond what was paid to the owner and the subsequent expenses, one-half of the overplus shall be paid to the officer who made the seizure, and the other half to the public revenue. This statute is of infinite consequence to the commercial part of the world: it has reduced an important subject from a perfect chaos to such a plain and simple form, as to induce every friend to his country to wish that similar experiments were made upon other confused and entangled branches of our statute law.—Christian.
Mr. Christian would, if living, be gratified on observing the spirit of useful consolidation now abroad, not a little perhaps excited by himself. Not the revenue-laws only very much partake of its influence, but also the bankrupt and criminal laws. The multifarious statutes relative to larceny are repealed; and one statute now comprises all worth preserving that was scattered through many.—Chitty.
[35 ] By the 24 Geo. III. sess. 2, c. 16, the petty custom, or additional duty on all the goods of aliens or strangers, shall cease, except those which had been granted to the city of London. The city of London still retains a trifling duty, called scavage, on the goods of aliens. It is an odious and impolitic tax; and it would be honourable to the city of London to adopt the liberality of the legislature, and to relinquish it.—Christian.
[(e) ] Hist. i. 13.
[(f) ] Montesq. Sp. L. b. 13, c. 8.
[36 ] “Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States.” Const. U. S. art. 1, s. 8. “No tax or duty shall be laid on articles exported from any State. No preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another.” Id. s. 9. “No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the nett produce of all duties and imposts laid by any State on imports or exports shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of Congress. No State shall, without the consent of Congress, lay any duty on tonnage.” Id. s. 10.—Sharswood.
[37 ] Sir John Sinclair has calculated that the expense of collecting the duties of excise is 5¼ per cent., the customs 10⅝, stamps 3⅞, salt 6⅝, and the land-tax less than 3 per cent. and that the average expense of collecting the whole revenue is 7½ per cent. Hist. Rev. 3 part, 162.—Chitty.
[38 ] See the jurisdiction of the commissioners and justices of the peace in cases of excise in Burn’s Justice, title Excise. The grievances of the excise, perhaps, exist more in apprehension than in reality. Actions and prosecutions against officers, commissioners, and justices, for misconduct in excise cases, are very rarely heard of in courts of law. It is certainly an evil that a fair dealer cannot have the benefit of any secret improvement in the management of his trade or manufactory; yet perhaps it is more than an equivalent to the public at large, that, by the survey of the excise, the commodity is preserved from many shameful adulterations, as experience has fully proved since wine was made subject to the excise laws.—Christian.
[(g) ] Hist. b. 3.
[(h) ] Com. Jour. 8 Oct. 1642.
[(i) ] The translator and continuator of Petavius’s Chronological History (Lond. 1659, fol.) informs us that it was first moved for, 28 March, 1643, by Mr. Prynne. And it appears from the journals of the commons, that on that day the house resolved itself into a committee, to consider of raising money, in consequence of which the excise was afterwards voted. But Mr. Prynne was not a member of parliament till 7 Nov. 1648; and published, in 1654, “A protestation against the illegal, detestable, and oft-condemned tax and extortion of excise in general.” It is probably therefore a mistake of the printer for Mr. Pymme, who was intended for chancellor of the exchequer under the earl of Bedford. Lord Clar. b. 7.
[(k) ] Com. Jour. 17 May, 1643.
[(l) ] Lord Clar. b. 7.
[(m) ] 30 May, 1643. Dugdale, of the Troubles, 120.
[(n) ] Ord. 14 Aug. 1649, c. 50. Scobell, 72. Stat. 1656, c. 19. Scobell, 453.
[(o) ] Latch. Rep. 87.
[(p) ] 19 Rym. Fœd. 385.
[(q) ] Ibid. 650. 20 Rym. 192.
[(r) ] 20 Rym. 429.
[(s) ] Com. Jour. 28 March, 1642.
[(t) ] Ibid. 7 Sept. 1644.
[(u) ] Ibid. 21 March, 1649.
[(w) ] Ibid. 24 March, 1649.
[(x) ] Scobell. 358.
[39 ] The preamble of the ordinance states that the establishing one general post-office, besides the benefit to commerce and the convenience of conveying public despatches, “will be the best means to discover and prevent many dangerous and wicked designs against the commonwealth.”
The policy of having the correspondence of the kingdom under the inspection of government is still continued; for, by a warrant from one of the principal secretaries of state, letters may be detained and opened; but if any person shall wilfully detain or open a letter delivered to the post-office without such authority, he shall forfeit 20l. and be incapable of having any future employment in the post-office. 9 Anne, c. 10, s. 40. But it has been decided that no person is subject to this penalty but those who are employed in the post-office. 5 T. R. 101.—Christian.
[(y) ] Com. Jour. 9 June, 1657. Scobell, 511.
[(z) ] Com. Jour. 17 Dec. 1660.
[(a) ] Ibid. 22 Dec. 1660.
[(b) ] Ibid. 16 Apr. 1735.
[40 ] The following account of it in the 23 vol. Parl. Hist. p. 56, is curious, and proves what originally were the sentiments of the two houses respecting this privilege. “Colonel Titus reported the bill for the settlement of the post-office, with the amendments; Sir Walter Carle delivered a proviso for the letters of all members of parliament to go free during their sitting: Sir Heneage Finch said it was a poor mendicant proviso, and below the honour of the house. Mr. Prynne spoke also against the proviso: Mr. Bunckley, Mr. Boscawen, Sir George Downing, and Serjeant Charlton, for it; the latter saying, ‘The council’s letters went free.’ The question being called for, the speaker, Sir Harbottle Grimstone, was unwilling to put it, saying he was ashamed of it; nevertheless, the proviso was carried, and made part of the bill, which was ordered to be engrossed.” This proviso the lords disagreed to, and left it out of the bill; and the commons agreed to their amendment. 3 Hats. 82.—Christian.
[(c) ] Ibid. 26 Feb. 1734.
[41 ] And that the great loss to the public revenue by the exercise of this privilege might be further diminished, the 24 Geo. III. sess. 2, c. 37, provides that no letter shall go free, unless the member shall write the whole of the superscription, and shall add his own name, and that of the post-town from which the letter is intended to be sent, and the day of the month in words at length, besides the year, which may be in figures; and unless the letter shall be put into the post-office of the place, so that it may be sent on the day upon which it is dated. And no letter shall go free directed to a member of either house, unless it is directed to him where he shall actually be at the delivery thereof, or to his residence in London, or to the lobby of his house of parliament. And if any person shall fraudently counterfeit or alter such superscription, he shall be guilty of felony, and shall be transported for seven years. But in case of bodily infirmity a member may authorize another person to write the superscription.
By the 35 Geo. III. c. 53, the privilege of franking is still further restrained. By that statute, no letter directed by or to any member shall go free, which shall exceed one ounce in weight, nor any letter directed by a member, unless he is within twenty miles of the post-town from which it is to be sent on the day, or the day before the day, on which it is put into the post-office. And no member shall send more than ten or receive more than fifteen letters in one day free from postage. Single letters sent and received by the non-commissioned officers and private men in the navy and army, under certain restrictions, shall be subject only to the postage of one penny each. By 42 Geo. III. c. 63, these acts are extended to the members of the united kingdom. It has been decided that under these statutes a Roman Catholic peer is not entitled to send or receive letters free from postage. Lord Petre vs. Lord Auckland, postmaster-general. 2 Bos. & Pull. 139.—Christian.
As commerce and education increased, the charge made by the government for conveying letters from one part of the kingdom to another was felt to be unnecessarily high with reference to the expense of conveying and distributing letters, and at the same time to lead to numerous petty frauds and evasions of the statutes relating to the post-office. The result of a long inquiry and full discussion in parliament was the establishment, in 1840, of the existing system of a uniform rate, beginning at one penny and increasing according to weight. The privilege of members of parliament was at the same time abolished. 2 & 3 Vict. c. 52; 3 & 4 Vict. c. 96; 10 & 11 Vict. c. 85. Facilities are also now given for the transmission of printed periodical publications and other works at still lower rates. Newspapers, which were formerly liable to a stamp duty and were carried free by the post-office, are now charged with postage in lieu of the abolished stamp duty. 18 & 19 Vict. c. 27.—Kerr.
[(d) ] Ibid. 28 March, 1764.
[42 ] It was determined so long ago as the 13 W. III. by three of the judges of the court of King’s Bench, though contrary to the pertinacious opinion of lord C. J. Holt, that no action could be maintained against the postmaster-general for the loss of bills or articles sent in letters by the post. 1 Ld. Raym. 646. Comyns, 100, &c. A similar action was brought against lord Le Despencer and Mr. Carteret, postmaster-general, in 1778, and the non-liability of these officers seems as fully established as if it had been declared by the full authority of parliament. Cowp. 754.
For this reason it is recommended, by the secretary of the post-office, to cut bank-notes and to send one half at a time. This is the only safe mode of sending bank-notes, as the bank would never pay the holder of that half which had been fraudulently obtained.
Postmasters are bound to deliver the letters to the inhabitants of a country town within the usual and established limits of the town, without any addition to the rate of postage. 5 Burr. 2709. 2 Bl. Rep. 906. Cowp. 182.—Christian.
[(e) ] Sp. of L. b. xiii. c. 9.
[43 ] It is considered a rule of construction of revenue acts, in ambiguous cases, to lean in favour of the revenue. This rule is agreeable to good policy and the public interests; but, beyond that, which may be regarded as established law, no one can ever be said to have an undue advantage in our courts.—Christian.
[(f) ] Mod. Un. Hist. xxiii. 463. Spelm. Gloss. tit. Fuage.
[(g) ] Stat. 20 Geo. II. c. 3. 31 Geo. II. c. 22. 2 Geo. III. c. 8. 6 Geo. III. c. 38.
[44 ] Re-enacted by 48 Geo. III. c. 55 and 52 Geo. III. c. 93, and reduced to its present rate by the 41 Geo. IV. c. 11. By the 4 & 5 W. IV. c. 73, 3, for male servants under eighteen years of age no duty is paid.—Stewart.
[(h) ] Scobell, 313.
[(i) ] Com. Jour. 14 Feb. 1661.
[(j) ] 10 Anne, c. 19, 158. 12 Geo. I. c. 15. 7 Geo. III. c. 44. 10 Geo. III. c. 44. 11 Geo. III. c. 24, 28. 12 Geo. III. c. 49.
[(k) ] Previous to this, a deduction of 6d. in the pound was charged on all pensions and annuities, and all salaries, fees, and wages of all offices of profit granted by or derived from the crown, in order to pay the interest at the rate of three per cent. on one million, which was raised for discharging the debts on the civil list, by statutes 7 Geo. I. st. 1, c. 27; 11 Geo. I. c. 17, and 12 Geo. I. c. 2. This million, being charged on this particular fund, is not considered as any part of the national debt.
[(l) ]Pro tempore, pro spe, pro commodo, minuitur eorum pretium atque augescit. Aretin. See Mod. Un. Hist. xxxvi. 116.
[45 ] The national debt in 1755, previous to the French war, was 72,289,000l.; interest, 2,654,000l.
In January, 1776, before the American war, it was 123,964,000l.; interest, 4,411,000l.
In 1786, previous to which the whole debt of the last war was not funded, it was 239,154,000l.; interest, 9,275,000l. Exclusive of a capital of 1,991,000l. granted by parliament to the American loyalists, as a compensation for their loss of property. Brief Exam. 10.—Chitty.
The capital of the national debt (funded and unfunded) amounted at the close of the year 1856 to upwards of seven hundred and seventy-five millions; and the interest and the charges of management to upwards of twenty-seven millions and a half.—Kerr.
[46 ] It is a very erroneous notion indeed to suppose that the property of the kingdom is increased by national debts contracted in consequence of the expenses of war. On the contrary, the principal of the debt is the exact amount of the property which the nation has lost from its capital forever. The American war cost the nation 116 millions sterling, and the effect is precisely the same as if so much of its wealth and treasure in corn, cattle, cloth, ammunition, coin, &c. had been collected together and thrown into the sea, besides the loss accuring from the destruction of many of its most productive hands. When this property is consumed, it never can be retrieved, though industry and care may acquire and accumulate new stores. Such a supply by no mode of taxation that has yet been devised could be collected at once, without exhausting the patience and endurance of the people. But by the method of funding, the subjects are induced to suppose that their suffering consists only in the payment of the yearly interest of this immense waste. The ruin is completed before the interest commences, and that is paid by the nation to the nation, and returns back to its former channel and circulation: like the balls in a tennis-court, however they may be tossed from one side to the other, their sum and quantity within the court continue the same. The extravagance of individuals naturally suggested the system of funding public debts. When a man cannot satisfy the immediate demands of his creditor, it is an obvious expedient to give him a promissory note to pay him at a future day, with interest for the time; and, if this is an assignable note, so that the creditor may be enabled to persuade another to advance him the principal, and to stand in his place, it is exactly similar to the debts or securities of government, except that in general they are not payable at any definite time. All debts, when no effects remain, both in public and private, are certain evidence of the waste and consumption of so much property, which nothing can restore, though frugality and industry may alleviate the future consequences. When a debt is contracted, a man is not richer for paying it: if he owes one hundred pounds, and pay interest for it, he is in no degree richer by calling in one hundred pounds from which he receives the same interest, and therewith discharges the debt; but probably, if he does so, he will feel himself more comfortable and independent, and will find his credit higher if his occasions should oblige him to borrow in future. So it is with governments: when the debt is contracted, and the money spent, the mischief is done, the discharge of the debt can add nothing (or little comparatively) immediately to the stock or capital of the nation. But yet these important consequences may be expected from it, viz.: from the abolition of taxes upon candles, soap, salt, beer, and upon a melancholy catalogue of the necessary articles of life, taxes which take from those who have nothing to spare, the price of labour would be lowered, manufactures would flourish with renewed vigour, the minds of the people would be cheered, and the nation would again have credit and spirit to meet its most formidable enemies, and to repel and resent both injury and insult. All the nations of Europe have learned from such dear-bought experience that poverty and misery are the inevitable consequences of war, as to give us reason to hope that the lives and property of mankind will not in future be dissipated with the profusion and wantonness of former times.—Christian.
[(m) ] See page 276.
[47 ] The last is certainly a serious and unanswerable objection to the increase of the national debt; but the three first objections made by the learned judge do not seem to be very satisfactory. It is not clear that it is an evil that things should grow nominally dear in proportion to the increase of specie, or the medium of commerce; for they will still retain their relative or comparative values with each other. Dr. Adam Smith has ably shown the benefit which a country derives from substituting any cheap article for gold and silver. The consequence is, that the precious metals do not become of less value; or, if so, it is but in a small degree; but they are carried to a foreign market, and bring back an increase of capital to the country. If one million pounds’ worth of paper, or shells, would answer as well to settle accounts, go to market, and would serve all the purposes of gold and silver, whilst these preserved their price abroad, and, if the coin of this country at present amount to thirty millions, we should gain what was equivalent to twenty-nine millions by the substitution. But the paper security created by the national debt is little used in payments, or as a medium of commerce, like bills of exchange.
As to the second objection, foreigners can only take away the interest of money which they have actually brought into the country, and which, it must be presumed, our merchants are deriving as great a benefit from, and probably much greater.
With regard to the third objection, I cannot think it sound discretion ever to raise an invidious distinction between those who pay and those who receive the taxes, and to treat the latter with contempt. It cannot be supposed that property will ever be accumulated by idleness and indolence; and he surely deserves the best of his country who, in disposing of the fruits of his industry, prefers the funds to any other security; for, without such confidence, the nation would soon be reduced to a state of bankruptcy and ruin.—Christian.
[48 ] By the 26 Geo. III. c. 21, parliament vested one million annually in commissioners for the reduction of the national debt; and the act provided that when the annual million should be increased by the interest of the stock purchased to four millions, the dividends should no longer be paid upon the redeemed stock, and that the sinking fund should no longer accumulate. And by the 32 Geo. III. c. 55, when the dividends should amount to three millions, exclusive of the annual grant, there should be no further accumulation. And it was provided, that upon all future loans which were not to be paid off within forty-five years, one per cent. should be annually appropriated to their reduction. By the 33 Geo. III. c. 22, an additional grant of 200,000l. was made for the same purpose, which has since been annually renewed.
The 42 Geo. III. c. 71 repeals so much of the 26 Geo. III. and 32 Geo. III. as fixed a limit to the accumulation of the sinking fund, and consolidates the funds provided by each act, and states that, by the accumulation of that joint fund, the whole national debt may be redeemed in forty-five years.
On the 1st of February, 1808, the commissioners, by these funds, had redeemed of the national debt 127,937,102l.
And from the dividends and the annual allowance from the statutes above referred to they had an annual income for the further reduction of 9,312,392l.—Christian.
Such was the state of the sinking fund in 1809, when Mr. Christian published his edition of Blackstone’s Commentaries. There is a fallacy, however, in the history of this fund which must not pass unnoticed. In the absence of information to the contrary, it would be presumed that this fund was a real surplus annually paid into the treasury, beyond the amount necessary for the public expenditure; that while the nation, like an honest man, was paying off its old debts, like a prudent one, it was not involving itself still deeper in new ones to meet these arrangements. But such has not been the fact; for, during the whole of the late war, a larger sum of money than the amount of the sinking fund was borrowed annually to meet the public expenses, at a much higher rate of interest than the sinking fund produced. Hence it has been contended that this much-commended financial expedient has been detrimental instead of beneficial to the public, inasmuch as the national debt is now larger, notwithstanding the amount redeemed, than it would have been had the sinking fund been annually applied to the public service, by which means the amount of the yearly loans might have been reduced to the extent of the sum thus applied. Without attempting to deny the truth of this reasoning, its force may be in some measure obviated by the considerations that the sinking fund enabled the commissioners, to a certain extent, to keep up the price of the stocks, by purchasing largely whenever they were depressed, and thus preserving the credit of the country, which enabled the government to negotiate their loans upon better terms than they could otherwise have obtained: besides, it preserved the assurance which was given when the sinking fund was first established, that means would be prosecuted for the ultimate liquidation of the debt. Since the peace of 1815, those means have not been diverted or rendered ineffectual as they were before, and we may now look to a real reduction, from year to year, in the national debt, by the operation of the sinking fund.—Chitty.
[(n) ] Stat. 1 Geo. III. c. 1.
[(o) ] See page 327.
[(p) ] Lord Clar. Continuation, 163.
[(q) ] Com. Jour. 4 Sept. 1660.
[49 ] The revenue of the commonwealth was upwards of 1,500,000l. Sinc. Hist. Rev. 2 vol. xiv. This is a striking instance to prove that the burdens of the people are not necessarily lightened by a change in the government.—Christian.
The mere money burdens upon the people were not exclusively alleged as the ground for a change of the government, to which allusion is made in the note. The people complained not that they were obliged to pay taxes, but that the taxes were enforced and the money expended by the king alone, without obtaining their consent through their representatives in parliament. England by that change was first made to assume that rank in Europe as a nation which it is not unreasonable to desire she may ever sustain. An Englishman may look back to the legal institutions and to the foreign policy of Cromwell with respect, with pride, nay, with exultation; to that of the king who succeeded him, too often, with feelings of abasement and regret. I will not enter into the character of Cromwell and his successor; I can feel no pleasure in traversing the details which would be necessary to establish the grounds upon which I must be compelled to decide in favour of the friend and patron of Milton.—Chitty.
[(r) ] Ibid.
[(s) ] Com. Jour. 4 June, 1663. Lord Clar. Continuation, 163.
[(t) ] Lord Clar. 165.
[(u) ] Stat. 1 Jac. II. c. 1.
[(v) ] Ibid. c. 3 and 4.
[(w) ] Com. Jour. 1 March, 20 March, 1688.
[50 ] This great principle, that parliamentary grants may be appropriated by the parliament, and if appropriated can only be applied by the treasury to the specified items of expenditure, was introduced in the reign of Charles II., and, with the exception of the parliament of 1685, has been universally followed by succeeding parliaments. The lords of the treasury, by a clause annually repeated in the appropriation act of every session, are forbidden, under severe penalties, to issue any warrants ordering the payment of any moneys out of the exchequer, except for the purposes to which such moneys had been appropriated by the parliament, the officers of the exchequer being also forbidden to obey any such warrant if issued. In time of war, or when the house is apprehensive of war breaking out during the recess of parliament, it has not been very uncommon to grant considerable sums on a vote of credit, to be applied by the crown at its discretion. Mr. Hallam remarks (Const. Hist. iii. 159) that it is to this transference of the executive government (for the phrase is hardly too strong) from the crown to the house of commons that we owe the proud attitude which England has maintained in the eyes of Europe since the revolution, so extraordinarily dissimilar to her condition under the Stuarts; the supplies, which were meted out with niggardly caution by former parliaments to sovereigns whom they could not trust, having flowed with redundant profuseness when parliament could judge of their necessity and direct their application.—Hargrave.
It is provided by the constitution of the United States (art. 1, s. 9, s. 6) that “no money shall be drawn from the treasury but in consequence of appropriations made by law.”—Sharswood.
[(x) ] Ibid. 14 March, 1701.
[(y) ] Ibid. 17 March, 1701; 11 Aug. 1714.
[(z) ] Stat. 1 Geo. II. c. 1.