CHAPTER THE EIGHTH. OF THE KING’S REVENUE.

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CHAPTER THE EIGHTH.

OF THE KING’S REVENUE.

 

HAVING, in the preceding chapter, confidered at large thofe branches of the king’s prerogative, which contribute to his royal dignity, and conftitute the executive power of the government, we proceed now to examine the king’s fifcal prerogatives, or fuch as regard his revenue; which the Britifh conftitution hath vefted in the royal perfon, in order to fupport his dignity and maintain his power: being a portion which each fubject contributes of his property, in order to fecure the remainder.

 

THIS revenues is either ordinary, or extraordinary. The king’s ordinary revenue is fuch, as has either fubfifted time out of mind in the crown; or elfe has been granted by parliament, by way of purchafe or exchange for fuch of the king’s inherent hereditary revenues, as were found inconvenient to the fubject.

 

WHEN I fay that it has fubfifted time out of mind in the crown, I do not mean that the king is at prefent in the actual poffeffion of the whole of this revenue. Much (nay, the greateft part) of it is at this day in the hands of fubjects; to whom it has been granted out from time to time by the kings of England: which has rendered the crown in fome meafure dependent on the people for it’s ordinary fupport and fubfiftence. So that I muft be obliged to recount, as part of the royal revenue, what lords of

manors

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manors and other fubjects frequently look upon to be their own abfolute rights, becaufe they are and have been vefted in them and their anceftors for ages, though in reality originally derived from the grants of our antient princes.

 

I. THE firft of the king’s ordinary revenues, which I fhall take notice of, is of an ecclefiaftical king; (as are alfo the three fucceeding ones) viz. the cuftody of the temporalties of bifhops; by which are meant all the lay revenues, lands, and tenements (in which is included his barony) which belong to an archbifhop’s or bifhop’s fee. And thefe upon the vacancy of the bifhoprick are immediately the right of the king, as a confequence of his prerogative in church matters; whereby he is confidered as the founder of all archbifhopricks and bifhopricks, to whom during the vacancy they revert. And for the fame reafon, before the diffolution of abbeys, the king had the cuftody of the temporalties of all fuch abbeys and priories as were of royal foundation (but not of thofe founded by fubjects) on the death of the abbot or priora. Another reafon may alfo be given, why the policy of the law hath vefted this cuftody in the king; becaufe, as the fucceffor is not known, the lands and poffeffions of the fee would be liable to fpoil and devaftation, if no one had a property therein. Therefore the law has given the king, not the temporalties themfelves, but the cuftody of the temporalties, till fuch time as a fucceffor is appointed; with power of taking to himfelf all the intermediate profits, without any account to the fucceffor; and with the right of prefenting (which the crown very frequently exercifes) to fuch benefices and other preferments as fall within the time of vacation b. This revenue is of fo high a nature, that it could not be granted out to a fubject, before, or even after, it accrued: but now by the ftatute 14 Edw. III. ft. 4. c. 4 & 5. the king may, after the vacancy, leafe the temporalties to the dean and chapter; faving to himfelf all advowfons, efcheats, and the like. Our antient kings, and particularly William Rufus, were not only remarkable for keeping the bifhopricks a long time vacant,

 

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a 2 Inft. 15.

Stat. 17 Edw. II. c. 14. F. N. B. 32.

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for

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for the fake of enjoying the temporalties, but alfo committed horrible wafte on the woods and other parts of the eftate; and, to crown all, would never, when the fee was filled up, reftore to the bifhop his temporalties again, unlefs he purchafed them at an exorbitant price. To remedy which, king Henry the firft c granted a charter at the beginning of his reign, promifing neither to fell, nor let to farm, nor take any thing from, the domains of the church, till the fucceffor was inftalled. And it was made one of the articles of the great charter d, that no wafte fhould be committed in the temporalties of bifhopricks, neither fhould the cuftody of them be fold. The fame is ordained by the ftatute of Weftminfter the firfte; and the ftatute 14 Edw. III. ft. 4. c. 4. (which permits, as we have feen, a leafe to the dean and chapter) is ftill more explicit in prohibiting the other exactions. It was alfo a frequent abufe, that the king would for trifling, or no caufes, feife the temporalties of bifhops, even during their lives, into his own hands: but this is guarded againft by ftatute 1 Edw. III. ft. 2. c. 2.

 

THIS revenue of the king, which was formerly very confiderable, is now by a cuftomary indulgence almoft reduced to nothing: for, at prefent, as foon as the new bifhop is confecrated and confirmed, he ufually receives the reftitution of his temporalties quite entire, and untouched, from the king; and then, and not fooner, he has a fee fimple in his bifhoprick, and may maintain an action for the fame f.

 

II. THE king is entitled to a corody, as the law calls it, out of every bifhoprice: that is, to fend one of his chaplains to be maintained by the bifhop, or to have a penfion allowed him till the bifhop promotes him to a benefice g. This is alfo in the nature of an acknowlegement to the king, as founder of the fee; fince he had formerly the fame corody or penfion from every abbey

 

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c Matth. Paris.

d 9 Hen. III. c. 5.

e 3 Edw. I. c. 21.

f Co. Litt. 67. 341.

g F. N. B. 230.

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L l

or

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or priory of royal foundation. It is, I apprehend, now fallen into total difufe; though fir Matthew Hale faysh, that it is due of common right, and that no prefcription will difcharge it.

 

III. THE king alfo (as was formerly obfervedi) is entitled to all the tithes arifing in extraparochial placesk: though perhaps it may be doubted how far this article, as well as the laft, can be properly reckoned a part of the king’s own royal revenue; fince a corody fupports only his chaplains, and thefe extraparochial tithes are held under an implied truft, that the king will diftribute them for the good of the clergy in general.

 

IV. THE next branch confifts in the firft-fruits, and tenths, of all fpiritual preferments in the kingdom; both of which I fhall confider together.

 

THESE were originally a part of the papal ufurpations over the clergy of this kingdom; firft introduced by Pandulph the pope’s legate, during the reigns of king John and Henry the third, in the fee of Norwich; and afterwards attempted to be made univerfal by the popes Clement V and John XXII, about the beginning of the fourteenth century. The firft-fruits, primitiae, or annates, were the firft year’s whole profits of the fpiritual preferment, according to a rate or valor made under the direction of pope Innocent IV by Walter bifhop of Norwich in 38 Hen. III, and afterwards advanced in the value by commiffion from pope Nicholas and third, A. D. 1292, 20 Edw. I l; which valuation of pope Nicholas is ftill preferved in the exchequer m. The tenths, or decimae, were the tenth part of the annual profit of each living by the fame valuation; which was alfo claimed by the holy fee, under no better pretence than a ftrange mifapplication of that precept of the levitical law, which directs n, “that the Levites fhould offer the tenth part of their tithe as a heave-offering to

 

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h Notes on F. N. B. above cited.

i page 110.

k 2 Inft. 647.

l F. N. B. 176.

m 3 Inft. 154.

n Numb. 18. 26.

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“the

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“the Lord, and give it to Aaron the high prieft.” But this claim of the pope met with vigorous refiftance from the Englifh parliament; and a variety of acts were paffed to prevent and reftrain it, particularly the ftatute 6 Hen. IV. c. 1. which calls in a horrible mifchief and damnable cuftom. But the popifh clergy, blindly devoted to the will of a foreign mafter, ftill kept it on foot; fometimes more fecretly, fometimes more openly and avowedly: fo that, in the reign of Henry VIII, it was computed, that in the compafs of fifty years 800000 ducats had been fent to Rome for firft-fruits only. And, as the clergy expreffed this willingnefs to contribute fo much of their income to the head of the church, it was thought proper (when in the fame reign the papal power was abolifhed, and the king was declared the head of the church of England) to annex this revenue to the crown; which was done by ftatute 26 Hen. VIII. c. 3. (confirmed by ftatute 1 Eliz. c. 4.) and a new valor beneficiorum was then made, by which the clergy are at prefent rated.

 

BY thefe laftmentioned ftatutes all vicarages under ten pounds a year, and all rectories under ten marks, are difcharged from the payment of firft-fruits: and if, in fuch livings as continue chargeable with this payment, the incumbent lives but half a year, he fhall pay only one quarter of his firft-fruits; if but one whole year, then half of them; if a year and half, three quarters; and if two years, then the whole; and not otherwife. Likewife by the ftatute 27 Hen. VIII. c. 8. no tenths are to be paid for the firft year, for then the firft-fruits are due: and by other ftatutes of queen Anne, in the fifth and fixth years of her reign, if a benefice be under fifty pounds per annum clear yearly value, it fhall be difcharged of the payment of firft-fruits and tenths.

 

THUS the richer clergy, being, by the criminal bigotry of their popifh predeceffors, fubjected at firft to a foreign exaction, were afterwards, when that yoke was fhaken off, liable to a like mifapplication of their revenues, through the rapacious difpofition of the then reigning monarch: till at length the piety of queen

L l 2

Anne

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Anne reftored to the church what had been thus indirectly taken from it. This fhe die, not by remitting the tenths and firft-fruits entirely; but, in a fpirit of the truefy equity, by applying thefe fuperfluities of the larger benefices to make up the deficiencies of the fmaller. And to this end the granted her royal charter, which was confirmed by the ftatute 2 Ann. c. 11. whereby all the revenue of firft-fruits and tenths is vefted in truftees for ever, to form a perpetual fund for the augmentation of poor livings. This is ufually called queen Anne’s bounty; which has been ftill farther regulated by fubfequent ftatutes, too numerous here to recite.

 

V. THE next branch of the king’s ordinary revenue (which, is well as the fubfequent branches, is of a lay or temporal nature) confifts in the rents and profits of the demefne lands of the crown. thefe demene lands, terrae dominicales regis, being either the fhare referved to the crown at the original diftribution of landed property, of fuch as came to it afterwards by forfeitures or other means, were antiently very large and extenfive; comprizing divers manors, honors, and lordfhips; the tenants of which had very peculiar privileges, as will be fhewn in the fecond book of thefe commentaries, when we fpeak of the tenure in antient demefne. At prefent they are contracted within a very narrowcompafs, having been almoft entirely granted away to private fubjects. This has occafioned the parliament frequently to interpofe; and, particularly, after king William III had greatly impoverifhed the crown, an act paffedo, whereby all future grants or leafes from the crown for any longer term than thirty one years or three lives are declared to be void; except with regard to houfes, which may be granted for fifty years. And no reverfionary leafe can be made, fo as to exceed, together with the eftate in being, the fame term of three lives or thirty one years: that is, where there is a fubfifting leafe, of which there are twenty years ftill to come, the king cannot grant a future intereft, to commence after the expiration of the former, for any longer term than eleven years. The tenant muft alfo be made liable to be punifhed for

 

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o 1 Ann. ft. 1. c. 7.

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committing

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Committing wafte; and the ufual rent muft be referved, or, where there has ufually been no rent, one third of the clear yearly valuep. The misfortune is, that this act was made too late, after almoft every valuable poffeffion of the crown had been granted away for ever, or elfe upon very long leafes; but may be of benefit to pofterity, when thofe leafes come to expire.

 

VI. HITHER might have been referred the advantages which were ufes to arife to the king from the profits of his military tenures, to which moft lands in the kingdom were fubject, till the ftatute 12 Car. II. c. 24. which is great meafure abolifhed them all: the explication of the nature of which tenures, muft be referred to the fecond book of thefe commentaries. Hither alfo might have been referred the profitable prerogative of purveyance and pre-emption: which was a right enjoyed by the crown of buying up provifions and other neceffaries, by the intervention of the king’s purveyors, for the ufe of his royal houfhold, at an appraifed valuation, in preference to all others, and even without confent of the owner; and alfo of forcibly impreffing the carriages and horfes of the fubject, to do the king’s bufinefs on the publick roads, in the conveyance of timber, baggage, and the like, however inconvenient to the proprietor, upon paying him a fettled price. A prerogative, which prevailed pretty generally throughout Europe, during the fcarcity of gold and filver, and the high valuation of money confequential thereupon. In thofe early times the king’s houfhold (as well as thofe of inferior lords) were fupported by fpecific renders of corn, and other victuals, from the tenants of the refpective demefnes; and there was alfo a continual market kept at the palace gate to furnifh viands for the royal ufeq. And this anfwered all purpofes, in thofe ages of fimplicity, fo long as the king’s court continued in any certain place. But when it removed from one part of kingdom to another (as was formerly very frequently done) it was found ne-

 

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p In like manner, by the civil law, the inheritances or fundi patrimoniales of the imperial crown could not be alienated, but only let to farm. Cod. l. 11. t. 61.

q 4 Inft. 273.

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ceffary

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ceffary to fend purveyors beforehand, to get together a fufficient quantity of provifions and other neceffaries for the houfhold: and, left the unufual demand fhould raife them to an exorbitant price, the powers beforementioned were vefted in thefe purveyors; who in procefs of time very greatly abufed their authority, and became a great oppreffion to the fubject though of little advantage to the crown; ready money in open market (when the royal refidence was more permanent, and fpecie began to be plenty) being found upon experience to be the beft proveditor of any. Wherefore by degrees the powers of purveyance have declined, in foreign countries as well as our own; and particularly were abolifhed in Sweden by Guftavus Adolphus, towards the beginning of the laft centuryr. And, with us in England, having fallen into difufe during the fufpenfion of monarchy, king Charles at his reftoration confented, by the fame ftatute, to refign intirely thefe branches of his revenue and power, for the cafe and convenience of his fubjects: and the parliament, in part of recompenfe, fettled on him, his heirs, and fucceffors, for ever, the hereditary excife of fifteen pence per barrel on all beer and ale fold in the kingdom, and a proportionable fum for certain other liquors. So that this hereditary excife, the nature of which fhall be farther explained in the fubfequent part of this chapter, now forms the fixth branch of his majefty’s ordinary revenue.

 

VII. A SEVENTH branch might alfo be computed to have arifen from wine licences; or the rents payable to the crown by fuch perfons as are licenfed to fell wine by retale throughout England, except in a few privileged places. Thefe were firft fettled on the crown by the ftatute 12 Car. II. c. 25. and, together with the hereditary excife, made up the equivalent in value for the lofs fuftained by the prerogative in the abolition of the military tenures, and the right of pre-emption and purveyance: but this revenue was abolifhed by the ftatute 30 Geo. II. c. 19, and an annual fum of upwards £ 7000 per annum, iffuing out of the new ftamp duties impofed on wine licences, was fettled on the crown in it’s ftead.

 

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r Mod. Un. Hift. xxxiii. 220.

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VIII. AN

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VIII. AN eighth branch of the king’s ordinary revenue is ufually reckoned to confift in the profits arifing from his forefts. Forefts are wafte grounds belonging to the king, replenifhed with all manner of beafts of chafe of venary; which are under the king’s protection, for the fake of his royal recreation and delight: and, to that end, and for prefervation of the king’s game, there are particular laws, privileges, courts and officers belonging to the king’s forefts; all which will be, in their turns, explained in the fubfequent books of thefe commentaries. What we are now to confider are only the profits arifing to the king from hence; which confift principally in amercements or fines levied for offences againft the foreft-laws. But as few, if any courts of this king for levying amercements have been held fince 1632, 8 Car. I. and as, from the accounts given of the proceedings in that court by our hiftories and law bookss, nobody would now wifh to fee them again revived, it is needlefs (at leaft in this place) to purfue this enquiry any farther.

 

IX. THE profits arifen from the king’s ordinary courts of juftice make a ninth branch of his revenue. And thefe confift not only in fines impofed upon offenders, forfeitures of recognizances, and amercements levied upon defaulters; but alfo in certain fees due to the crown in a variety of legal matters, as, for fetting the great feal to charters, original writs, and other legal proceedings, and for permitting fines to be levied of lands in order to bar entails, or otherwife to infure their title. As none of thefe can be done without the immediate intervention of the king, by himfelf or his officers, the law allows him certain perquifites and profits, as a recompenfe for the trouble he undertakes for the public. Thefe, in procefs of time, have been almoft all granted out to private perfons, or elfe appropriated to certain particular ufes: fo that, though our law-proceedings are ftill loaded with their payment, very little of them is now returned into the king’s exchequer; for a part of whofe royal maintenance

 

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s 1 Jones. 267–298.

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they

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they were originally intended. All future grants of them however, by the ftatute 1 Ann. ft. 2. c. 7. are to endure for no longer time than the prince’s life who grants them.

 

X. ATENTH branch of the king’s ordinary revenue, faid to be grounded on the confideration of his guarding and protecting the feas from pirates and robbers, is the right to royal fifb, which are whale and fturgeon : and thefe, when either thrown afhore, or caught near the coafts, are the property of the king, on accountt of their fuperior excellence. Indeed our anceftors feem 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 u; and from one of thefe it was probably derived to our princes. It is expreffly claimed and allowed in the ftatute de praerogativa regis w: and the moft antient treatifes of law now extant make mention if it x; though they feem to have made diftinction between whale and fturgeon, as was incidentally obferved in a former chapter y.

 

XI. ANOTHER maritime revenue, and founded partly upon the fame reafon, is that of fhipwrecks; which are alfo declared to be the king’s property by the fame prerogative ftatute 17 Edw. II. C. II. and were fo, long before, at the common law. It is worthy obfervation, how greatly the law of wrecks has been altered, and the rigour of it gradually foftened, in favour of the diftreffed proprietors. Wreck, by the antient common law, was where any fhip was loft at fea, and the goods or cargo were thrown upon the land; in which cafe thefe goods, fo wrecked, were adjudged to belong to the king: for it was held, that, by the lofs of the fhip, all property was gone out of the original owner z. But this was undoubtedly adding forrow to forrow, and was confonant neither to reafon nor humanity. Wherefore it was firft ordained

 

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t Plowd. 315.

u Stiernh. de jure Sueonum. l. 2. c. 8. Gr. Couftum. cap. 17.

w 17 Edw. II. c. II.

x Braction. l. 3. c. 3. Britton. c. 17. Fleta. l. I. c. 45 & 46.

y ch. 4. pag. 216.

z Dr. & St. d. 2. c. 51.

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by

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by king Henry I, that if any perfon efcaped alive out of the fhip it fhould be no wreck a; and afterwards king Henry II, by his charter b, declared, that if on the coafts of either England, poictou, Oleron, or Gafcony, any fhip fhould be diftreffed, and either man or beaft fhould efcape or be found therein alive, the goods fhould remain to the owners, if they claimed them within three months; but otherwife fhould be efteemed a wreck, and fhould belong to the king, or other lord of the franchife. This was again confirmed with improvements by king Richard the firft, who, in the fecond year of his reign c, not only eftablifhed thefe conceffions, by ordaining that the owner, if he was fhipwrecked and efcaped, “omnes res fuas liberas et quietas baberet,” but alfo, that, if he perifhed, his children, or in default of them his brethren and fifters, fhould retain the property; and, in default of brother of fifter, then the goods fhould remain to the king d. And the law, fo long after as the reign of Henry III, feems ftill to have been guided by the fame equitable provifions. For then if a dog (for inftance) efcaped, by which the owner might be difcovered, or if any certain mark were fet on the goods, by which they might be known again, it was held to be no wreck e. And this is certainly moft agreeable to reafon; the rational claim of the king being only founded upon this, that the true owner cannot be afcertained. But afterwards, in the ftatute of weftminfter the firft f, the law is laid down more agreeable to the charter of king Henry the fecond: and upon that ftatute hath ftood the legal doctrine of wrecks to the prefent time. It enacts, that if any live thing efcape ( a man, a cat, or a dog; which, as in Bracton, are only put for examples g) in this cafe, and, as it feems, in this cafe only, it is clearly not a legal wreck: but the fheriff of the county

 

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a Spelm. Cod. apud Wilkins. 305.

b 26 May, A. D. 1174. I Rym. Foed. 36.

c Rog. Hoved. in Ric. I.

d In like manner Conftantine the great, finding that by the imperial law the revenue of wrecks was give to the prince’s treafury or fifous, reftrained it by an edict (Cod. II. 5. I.) and ordercd, them to remain to the owners; adding this humane expoftulation, “Qued enim jus habet fifous in aliena calamitate, ut de re tam luctuofa compendtum fectetur?”

e Bract. l. 3. c. 3.

f 3 Edw. I. c. 4.

g Flet. I. c. 44. 2 Inft. 167.

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M m

is

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is bound to keep the goods a year and a day (as in France for one year, agreeably to the maritime laws of Oleron h, and in Holland for a year and an half) that if any man can prove a property in them, either in his own right or by right of reprefentationi, they fhall be reftored to him without delay; but, if no fuch property be proved within that time, they then fhall be the king’s. If the goods are of a perifhable nature, the fheriff may fell them, and the money fhall be liable in their fteadk. This revenue of wrecks is frequently granted out to lords of manors, as a royal franchife; 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 dayl.

 

IT is to be obferved, that in order to conftitute a legal wreck, the goods muft come to land. If they continue at fea, the law diftinguifhes them by the barbarous and uncouth appellations of jetfam, flotfam, and ligan. Jetfam is where goods are caft into the fea, and there fink and remain under water: ftotfam is where they continue fwimming on the furface of the waves : ligan is where they are funk in the fea, but tied to a cork or buoy, in order to be found againm. Thefe are alfo the king’s if no owner appears to claim them; but, if any owner appears, he is entitled to recover the poffeffion. For even if they be caft overboard, without any mark or buoy, in order to lighten the fhip, the owner is not by this act of neceffity conftrued to have renounced his property n: much lefs can things ligan be fuppofed to be abandoned, fince the owner has done all in his power, to affert and retain his property. Thefe three are therefore accounted fo far a diftinct thing from the former, that by the king’s grant to a man of wrecks, things jetfam, flotfam, and ligan will not pafso.

 

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h §. 28.

i 2 Inft. 168.

k Plowd. 166.

l 2 Inft. 168. Bro. Abr. tit. Wreck.

m 5 Rep. 106.

n Quae enim res in tempeftate, lovandae navis caufa, ejiciuntur, bat dominorum permanent. Quia palam eft, eas non eo animo ejici, quod quis habere nolit. Inft. 2. I. §. 48.

o 5 Rep. 108.

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WRECKS, in their legal acceptation, are at prefent not very frequent: it rarely happening that every living creature on board prifhes; and if any fhould furvive, it is a very great chance, fince the improvement of commerce, navigation, and correfpondence, but the owner will be able to affert his property within the year and day limited by law. And in order to preferve this property entire for him, and if poffible to prevent wecks at all, our laws have made many very humane regulations; in a fpirit quite oppofite to thofe favage laws, which formerly prevailed in all the northern regions of Europe, and a few years ago were ftill faid to fubfift on the coafts of the Baltic fea, permitting the inhabitants to feize on whatever they could get as lawful prize; or, as an author of their own expreffes it, “in naufragorum miferia et calamitate thanquam vultures ad praedam currere p.” For by the ftatute 2 Edw. III. c. 13. if any fhip be loft on the fhore, and the goods come to land (fo as it be not legal wreck ) they fhall be prefently delivered to the merchants, they paying only a reafonable reward to thofe that faved and preferved them, which is intitled faluage. Alfo by the common law, if any perfons (other than the fheriff ) take any goods fo caft on fhore, which are not legal wreck, the owners might have a commiffion to enquire and find them out, and compel them to make reftitutionq. And by ftatute 12 Ann. ft. 2. c. 18. confirmed by 4 Geo. I. c. 12. in order to affift the diftreffed, and prevent the fcandalous illegal practices on fome of our fea coafts, (too fimilar to thofe on the Baltic ) it is enacted, that all head-officers and others of towns near the fea fhall, upon application made to them, fummon as many hands as are neceffary, and fend them to the relief of any fhip in diftrefs, on forfeiture of 100 l. and, in cafe of affiftance given, falvage fhall be paid by the owners, to be affeffed by three neighbouring juftices. All perfons that fecrete any goods fhall forfeit their treble value: and if they wilfully do any act whereby the fhip is loft or deftroyed, by making holes in her, ftealing her pumps, or otherwife, they are guilty of felony, without benefit

 

.{FS}

p Stiernh. de jure Sucon. l. 3. c. 5.

q F. N. B. 112.

.{FE}

M m 2

of

.P 284

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Book I.

Ch. 8.

 

of clergy. Laftly, by the ftatute 26 Geo. II. c. 19. plundering any veffel either in diftrefs, or wrecked, and whether any living creature be on board or not, (for, whether wreck or otherwife, it is clearly not the property of the populace) fuch plundering, I fay, or preventing the efcape of any perfon that endeavors to fave his life, or wounding him with intent to deftroy him, or putting out falfe lights in order to bring any veffel into danger, are all declared to be capital felonies; in like manner as the deftroying trees, fteeples, or other ftated feamarks, is punifhed by the ftatute 8 Eliz. c. 13. with a forfeiture of 200 l. Moreover, by the ftatute of George II, pilfering any goods caft afhore is declared to be petty larceny; and many other falutary regulations are made, for the more effectually preferving fhips of any nation in diftrefsr.

 

XII. A TWELFTH branch of the royal revenue, the right to mines, has it’s original from the king’s prerogative of coinage, in order to fupply him with matcrials: and therefore thofe mines, which are properly royal, and to which the king is entitled when found, are only thofe of filver and golds. By the old common law, if gold or filver be found in mines of bafe metal, according to the opinion of fome the whole was a royal mine, and belonged to the king; though others held that it only did fo, if the quantity of gold or filver was of greater value than the quantity of bafe metalt. But now by the ftatutes I W, & M. ft. I. c. 30. and 5 W. & M. c. 6. this difference is made immaterial; it being enacted, that no mines of copper, tin, iron, or lead, fhall be looked upon as royal minrs, notwithftanding gold or filver may be extracted from them in any quantities: but that the king, or perfons claiming royal mines under his authority, may have the

 

.{FS}

r By the civil law, to deftroy perfons fhipwrecked, or prevent their faving the fhip, is capital. And to fteal even a plank from a veffel in diftrefs, or wrecked, makes the party liable to anfwer for the whole fhip and cargo.( Ft. 47. 9. 3.) The laws alfo of the Wifigoths, and the moft early Neapolitan conftitutions, punifhed with the utmoft feverity all thofe who neglected to affift any fhip in diftrefs, or plundered any goods caft on fhore. (Lindenbrog. Cod. LL. antiq. 146. 715.)

s 2 Inft. 577.

t Plowd. 366.

.{FE}

ore

.P 285

The RIGHTS of PERSONS.

Book I.

Ch. 8.

 

ore, (other than tin-ore in the counties of Devon and Cornwall) paying for the fame a price ftated in the act. This was an extremely reafonable law: for now private owners are not difcouraged from working mines, through a fear that they may be claimed as royal ones; neither does the king depart from the juft rithts of his revenue, fince he may have all the precious metal contained in the ore, paying no more for it than the value of the bafe metal which it is fuppofed to be; to which bafe metal the land-owner is by reafon and law entitled.

 

XIII. To the fame original may in part be referred the revenue of treafure-trove (derived from the French word, trover, to find) called in Latin thefaurus inventus, which is where any money or coin, gold, filver, plate, or bullion, is found hidden in the earth, or coin, gold, filver, plate, or bullion, is found hidden in the earth, or other private place, the owner thereof being unknown; in which cafe the treafure 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 itu. Alfo if it be found in the fea, or upon the earth, it doth not belong to the king, but the finder, if no owner appearsw. So that it feems it is the biding, not the abandoning of it, that gives the king a property: Bractonx defining it, in the words of the civilians, to be “vetus depofitio pecuniae.” This difference clearly arifes from the different intentions, which the law implies in the owner. A man, that hides his treafure in a fecret place, evidently does not mean to relinquifh his property; but referves a right of claiming it again, when he fees occafion; and, if he dies and the fecret alfo dies with him, the law gives it the king, in part of his royal revenue. But a man that featters his treafure into the fea, or upon the public furface of the earth, is conftrued to have abfolutely abandoned his property, and returned it into the common ftock, without any intention of reclaiming it; and therefore it belongs, as in a ftate of nature, to the firft occupant, or finder; unlefs the owner appear and affert his right, which then proves that the lofs was by accident, and not with an intent to renounce his property.

 

.{FS}

u 3 Inft. 132. Dalt. Shatiffs. c. 16.

w Britt. c. 17. Finch. L. 177.

x l. 3. c. 3. §. 4.

.{FE}

FOR

 

.P 286

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Ch. 8.

 

FORMERLY all treafure-trove belonged to the findery; as was alfo the rule of the civil lawz. Afterwards it was judged expedient for the purpofes of the ftate, and particularly for the coinage, to allow part of what was fo found to the king; which part was affigned to be all bidden treafure; fuch as is cafually loft and unclaimed, and alfo fuch as is defignedly abandoned, ftill remaining the right of the fortunate finder. And that the prince fhall be entitled to this hidden treafure is now grown to be, according to Grotiusa, “jus commune, et quafi gentium:” for it is not only obferved, he adds, in England, but in Germany, France, Spain, and Denmark. The finding of depofited treafure was much more frequent, and the treafures themfelves more confiderable, in the infancy of our conftitution than at prefent. When the Romans, and other inhabitants of the refpective countries which compofed their empire, were driven out by the northern nations, they concealed their money under-ground; with a view of reforting to it again when the heat of the irruption fhould be over, and the invaders driven back to their defarts. But as this never happened, the treafures were never claimed; and on the death of the owners the fectet alfo died along with them. The conquering generals, being aware of the value of thefe hidden mines, made it highly penal to fecrete them from the public fervice. In England therefore, as among the feudiftsb, the punifhment of fuch as concealed from the king the finding of hidden treafure was formerly no lefs than death; but now it is only fine and imprifonmentc.

 

XIV. WAIFS, bona waviata, are goods ftolen, and waived or thrown away by the thief in his flight, for fear of being apprehended. Thefe are given to the king by the law, as a punifhment upon the owner, for not himfelf purfuing the felon, and taking away his goods from himd. And therefore if the party robbed do his diligence immediately to follow and apprehend the

 

.{FS}

y Bracton. l. 3.c. 3. . Inft. 133.

z Ff. 41. I. 31.

a de jur. b. & p. l. 2. c. 8. §. 7.

b Glanv. l. I. c. 2. Crag. I. 16. 40.

c 3 Inft. 133.

d Cro. Eliz. 694.

.{FE}

thief

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The RIGHTS of PERSONS.

Book I.

Ch. 8.

 

thief (which is called makingrrefh fuit) or do convict him afterwards, or procure evidence to convict him, he fhall have his goods againc. Waived goods do alfo not belong to the king, till feifed by fomebody for his ufe; for if the party robbed can feife them firft, though at the diftance of twenty years, the king fhall never have themf. If the goods are hid by the thief, or laft any where by him, fo that he had them not about him when he fled, and therefore did not throw them away in his flight; thefe alfo are not bona waviata, but the owner may have them again when he pleafesg. The goods of a foreign merchant, though ftolen and thrown away in flight, fhall never be waifsh: the reafon whereof may be, not only for the encouragement of trade, but alfo becaufe there is no wilful default in the foreign merchant’s not purfuing the thief, he being generally a ftranger to our laws, our ufages, and our language.

 

XV. ESTRAYS are fuch valuable animals as are found wandering in any manor or lordfhip, and no man knoweth the owner of them; in which cafe the law gives them to the king as the general owner and lord paramount of the foil, in reconpence for the damage which they may have done therein; and they now moft commonly belong to the lord of the manor, by fpecial grant from the crown. But in order to veft an abfolute property in the king or his grantees, they muft 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 paffed, they belong to the king or his fubftitute without redemptioni; even though the owner were a minor, or under any other legal incapacityk. A provifion fimilar to which obtained in the old Gothic conftitution, with regard to all things that were found, which were to be thrice proclaimed, primum coram comitibus et viatoribus obviis, deinde in proxima villa vel pago,

 

.{FS}

e Finch. L. 212.

f Ibid.

g 5 Rep. 109.

h Fitzh. Abr. tit. Eftray. I. 3 Bulftr. 19.

i Mirr. c. 3. §. 19.

k 5 Rep. 108. Bro. Abr. tit. Eftray. Cro. Eliz. 716.

.{FE}

poftremo

.P 288

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Book I.

Ch. 8.

 

poftremo coram ecclefia vel judicio: and the fpace of a year was allowed for the owner to reclaim his propertyl. If the owner claims them within the year and day, he muft pay the charges of finding, keeping, and proclaiming themm. The king or lord has no property till the year and day paffed: for if a lord keepeth an eftray three quarters of a year, and within the year it ftrayeth again, and another lord getteth it, the firft lord cannot take it againn. Any beaft may be an eftray, that is by nature tame or reclaimable, and in which there is a valuable property, as fheep, oxen, fwine, and horfes, which we in general call cattle; and fo Fletao defines it, pecus vagans, quod nullus petit, fequitur, vel advocat. For animals upon which the law fets no value, as a dog or cat, and animals ferae naturae, as a bear or wolf, cannot be confidered as eftrays. So fwans may be eftrays, but not any other fowlp; whence they are faid to be royal fowl. The reafon of which diftinction feems to be, that, cattle and fwans being of a reclaimed nature, the owner’s property in them is not loft merely by their temporary efcape; and they alfo, from their intrinfic value, are a fufficient pledge for the expenfe of the lord of the franchife in keeping them the year and day. For he that takes an eftray is bound, fo long as he keeps it, to find it in provifions and keep it from damageq; and may not ufe it by way of labour, but is liable to an action for fo doingr. Yet he may milk a cow, or the like, for that tends to the prefervation, and is for the benefit, of the animals.

 

BESIDES the particular reafons before given why the king fhould have the feveral revenues of royal fifh, fhipwrecks, treafuretrove, waifs, and eftrays, there is alfo one general reafon which holds for them all; and that is, becaufe they are bona vacantia, or goods in which no one elfe can claim a property. And therefore by the law of nature they belonged to the firft occupant or

 

.{FS}

t Stiernh. de jur. Gotbor. l. 3. c. 5.

m Dalt. Sh. 79.

n Finch. L. 177.

o l. I. c. 43.

p 7 Rep 17.

q I Roll. Abr. 889.

r Cro. Jac. 147.

s Cro. Jac. 148. Noy. 119.

.{FE}

finder;

.P 289

The RIGHTS of PERSONS.

Book I.

Ch. 8.

 

finder; and fo continued under the imperial law. But, in fettling the modern conftitutions of moft of the governments in Europe, it was thought proper (to prevent that ftrife and contention, which the mere title of occupancy is apt to create and continue, and to provide for the fupport of public authority in a manner the leaft burthenfome to individuals) that thefe rights fhould be annexed to the fupreme power by the pofitive laws of the ftate. And fo it came to pafs that, as Bracton expreffes itt, baec, quae nullius in bonis funt, et olim fuerunt inventoris de jure naturali, jam efficiuntur prinicipis de jure gentium.

 

XVI. THE next branch of the king’s ordinary revenue confifts in forfeitures of lands and goods for offences; bona confifcata, as they are called by the civilians, becaufe they belonged to the fifcus or imperial treafury; or, as our lawyers term them, forisfacta, that is, fuch whereof the property is gone away or departed from the owner. The true reafon and only fubftantial ground of any forfeiture for crimes confift in this; that all property is derived from fociety, being one of thofe civil rights which are conferred upon individuals, in exchange for that degree of natural freedom, which every man muft facrifice when he enters into focial communities. If therefore a mamber of any national community violates the fundamental contract of his affociation, by tranfgreffing the municipal law, he forfeits his right to fuch privileges as he claims by that contract; and the ftate may very juftly refume that portion of property, or any part of it, which the laws have before affigned him. Hence, in every offence of an atrocious kind, the laws of England have exacted a total confifcation of the moveables or perfonal eftate; and in many cafes a perpetual, in others only a temporary, lofs of the offender’s immoveables or landed property; and have vefted them both in the king, who is the perfon fuppofed to be offended, being the one vifible magiftrate in whom the majefty of the public refides. The particulars of thefe forfeitures will be more properly recited when we treat of crimes and mifdcmefnors. I therefore only mention them

 

.{FS}

t l. I. c. 12.

.{FE}

N n

here,

.P 290

The RIGHTS of PERSONS.

Book I.

Ch. 8.

 

here, for the fake of regularity, as a part of the cenfus regalis; and fhall poftpone for the prefent the farther confideration of all forfeitures, excepting one fpecies only, which arifes from the misfortune rather than the crime of the owner, and is called a deodand.

 

BY this is meant whatever perfonal chattel is the immediate occafion of the death of any reafonable creature; which is forfeited to the king, to be applied to pious ufes, and diftributed in alms by his high almoneru; though formerly deftined to more fuperftitious purpofe. It feems to have been originally defigned, in the blind days of popery, as an expiation for the fouls of fuch as were fnatched away by fudden death; and for that purpofe ought properly to have been given to holy churchw; in the fame manner, as the apparel of a ftranger who was found dead was applied to purchafe maffes for the good of his foul. And this may account for that rule of law, that no deodand is due where an infant under the years of diforetion is killed by a fall from a cart, or horfe, or the like, not being in motionx; whereas, if an adult perfon falls from thence and is killed, the thing is certainly forfeited. For the reafon given by fir Matthew Hale feems to be very inadequate, viz. becaufe an infant is not able to take care of himfelf: for why fhould the owner fave his forfeiture, on account of the imbecillity of the child, which ought rather to have made him more cautious to prevent any accident of mifchief? The true ground if this rule feems rather to be, that the child, by reafon of it’s want of diforetion, is prefumed incapable of actual fin, and therefore needed no deodand to purchafe propitiatory maffes: but every adult, who dies in actual fin, ftood in need of fuch atonement, according to the humane fuperftition of the founders of the Englifh law.

 

THUS ftands the law, if a perfon be killed by a fall from a thing ftanding ftill. But if a horfe, or ox, or other animal, of

 

.{FS}

u I Hal. P. C. 419. Fleta. l. I. c. 25.

w Fitzh. Abr. tit. Enditement. Pl. 27. Stannr. P. C. 20, 21.

x 3 Inft. 57. I Hal. P. C. 422.

.{FE}

his

.P 291

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Book I.

Ch. 8.

 

his own motion, kill as well an infant as an adult, or if a cart run over him, they fhall in either cafe be forfeited as deodandsy; which is grounded upon this additional reafon, that fuch misfortunes are in part owning to negligence of the owner, and therefore he is properly punifhed by fuch forfeiture. A like punifhment is in like cafes inflicted by the mofaical lawz: “if an ox gore a man that he die, the ox fhall be ftoned, and his flefh fhall not be eaten.” And among the Atheniansa, whatever was the caufe of a man’s death, by falling upon him, was exterminated or caft out of the dominions of the republic. Where a thing, not in motion, is the occafion of a man’s death, that part only which is the immediate caufe is forfeited; as if a man be climbing up a wheel, and is killed by falling from it, the wheel alone is a deodandb: 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 increafe the preffure of the wheel) are forfeitedc. It matters not whether the owner were concerned in the killing or not; for if a man kills another with my fword, the fword is forfeitedd as an accurfed thinge. And therefore, in all indictments for homicide, the inftrument of death and the value are prefentef and found by the grand jury (as, that the ftroke was given with a certain penknife, value fixpence) that the king or his grantee may claim the deodand: for it is no deodand, unlefs it be prefented as fuch by a jury of twelve menf. No deodands are due for accidents happening upon the high fea, that being out of the jurifdiction of the common law: but if a man falls from a boat or

 

.{FS}

y Omnia, quae movent ad mortem, funt Deo landa. Bracton. l. 3. c. 5.

z Exed. 21. 28.

a Aefchin. contr. Ctrfiph.

b I Hal. P. C. 422.

c I Hawk. P. C. c. 26.

d A fimilar rule obtained among the antient Goths. Si quis, me nefciente, quocunque meo telo vel inftrumento in perniciem fuam abutatur; vel ex aedibus meis cadat, vel incidat in puteum meum, quantunctis tedtum et munitum vel in catcratam, et jub molcndino meo conftinqatur, ipfe aliqua melcta plectar; ut in parte infelicstatis meae nameretur, babuiffe vel aed ficaffe aliquod quo bomo periret. Stiemihock de jure Goth. l. 3. c. 4.

e Dr & St. d. 2. c. 51.

f 3 Inft. 57.

.{FE}

N n 2

fhip

.P 292

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Book I.

Ch. 8.

 

fhip in frefh water, and is drowned, the veffel and cargo are in ftrictnefs a deodandg.

 

DEODANDS, and forfeitures in general, as well as wrecks, treafure trove, royal fifh, mines, waifs, and eftrays, may be granted by the king to particular fubjects, as a royal franchife: and indced they are for the moft part granted out to the lords of manors, or other liberties; to the perverfion of their original defign.

 

XVII. ANOTHER branch of the king’s ordinary revenue arifes from efcheats of lands, which happen upon the defect of heirs to fucceed to the inheritance; whereupon they in general revert to and veft in the king, who is efteemed, in the eye of the law, the original proprietor of all the lands in the kingdom. But the difcuffion of this topic more properly belongs to the fecond book of thefe commentaries, wherein we fhall particularly confider the manner in which lands may be acquired or loft by efcheat.

 

XVIII. I PROCEED therefore to the eighteenth and laft branch of the king’s ordinary revenue; which confifts in the couftody of idiots, from whence we fhall be naturally led to confider alfo the cuftody of lunatics.

 

AN idiot, or natural fool, is one that hath had no underftanding from his nativity; and therefore is by law prefumed never likely to attain any. For which reafon the cuftody of him and of his lands was formerly vefted in the lord of the feeh; (and therefore ftill, by fpecial cuftom, in fome manors the lord fhall have the ordering of idiot and lunatic copyholdersi) but, by reafon of the manifold abufes of this power by fubjects, it was at laft provided by common confent, that it fhould be given to the king, as the general confervator of his people, in order to prevent the idiot from wafting his eftate, and reducing himfelf and

 

.{FS}

g 3 Inft. 58. I Hal. P. C. 423. Molloy de jur. maritim. 2. 225.

h Flet. l. I. c. II. §. 10.

i Dyer. 302. Hutt. 17. Noy 27.

.{FE}

his

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Ch. 8.

 

his heirs to poverty and diftrefsk: This fifcal prerogative of the king is declared in parliament by ftatute 17 Edw. II. c. 9. which directs (in affirmance of the common lawl,) that the king fhall have ward of the lands of natural fools, taking the profits without wafte or deftruction, and fhall find them neceffaries; and after the death of fuch indiots he fhall render the eftate to the heirs; in order to prevent fuch idiots from aliening their lands, and their heirs from being difherited.

 

BY the old common law there is a writ de indiota inquirendo, to enquire whether a man be an idiot or notm: which muft be tried by a jury of twelve men; and if they find him purus idiota, the profits of his lands, and the cuftody of his perfon may be granted by the king to fome fubject, who has intereft enough to obtain themn. This branch of the revenue hath been long confidered as a hardfhip upon private families; and fo long ago as in the 8 Jac. I. it was under the confideration of parliament, to veft this cuftody in the relations of the party, and to fettle an equivalent on the crown in lieu of it; it being then propofed to fhare the fame fate with the flavery of the feodal tenures, which has been fince abolifhedo. Yet few inftances can be given of the oppreffive exertion of it, fince it feldom happens that a jury finds a man an idiot a nativitate, but only non compos mentis from fome particular time; which has an operation very different in point of law.

 

A MAN is not an idiotp, if he hath any glimmering of reafon, fo 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 fame ftate with an idiotq; he being fuppofed incapable of underftanding, as wanting thofe fenfes which furnifh the human mind with ideas.

.{FS}

k F. N. B. 232.

l 4 Rep. 126.

m F. N. B. 232.

n This power, though of late very rarely exerted, is ftill alluded to in common fpecch, by that ufual expreffion of begging a man for a fool.

o 4 Inft. 203. Com. Journ. 1610.

p F. N. B. 233.

q Co. Litt. 42. Fleta. l. 6. c. 40.

.{FE}

A LUNATIC,

.P 294

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Book I.

Ch. 8.

 

A LUNATIC, or non compos mentis, is one who hath had underftanding, but by difeafe, grief, or other accident hath loft the ufe of his reafon. A lunatic is indeed properly one that hath lucid intervals; fometimes enjoying his fenfes, and fometimes not, and that frequently depending upon the change of the moon. But under the general name of non compos mentis (which fir Edward Coke fays is the moft legal namer) are comprized not only lunatics, but perfons under frenzies; or who lofe their intellects by difeafe; thofe that grow deaf, dumb, and blind, not being born fo; or fuch, in fhort, as are by any means rendered incapable of conducting their own affairs. To thefe alfo, as well as idiots, the king is guardian, but to a very different purpofe. For the law always imagines, that thefe accidental misfortunes may be removed; and therefore only conftitutes the crown a truftee for the unfortunate perfons, to protect their property, and to account to them for all profits received, if they recover, or after their deceafe to their reprefentatives. And therefore it is declared by the ftatute 17 Edw. II. c. 10. that the king fhall provide for the cuftody and fuftentation of lunatics, and preferve their lands and the profits of them, for their ufe, when they come to their right mind: and the king fhall take nothing to his own ufe; and if the parties die in fuch eftate, the refidue fhall be diftributed for their fouls by the advice of the ordinary, and of courfe (by the fubfequent amendments of the law of adminiftrations ) fhall now go to their executors or adminiftrators.

 

THE method of proving a perfon non compos is very fimilar to that of proving him an idiot. The lord chancellor, to whom, by fpecial aughority from the king, the cuftody of idiots and lunatics is intrufteds, upon petition or information, grants a commiffion in nature of the writ de idiota inquirendo, to enquire into the party’s ftate of mind; and if he be found non compos, he ufually commits the care of his perfon, with a fuitable allowance for his maintenance, to fome friend, who is then called his com-

 

.{FS}

r Inft. 246.

s 3 p. Wms. 108.

.{FE}

mittee

.P 295

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Book I.

Ch. 8.

 

mittee. However, to prevent finifter practices, the next heir is never permitted to be this committee of the perfon; becaufe it is his intereft that the party fhould die. But, it hath been faid, there lies not the fame objection againft his next of kin, provided he be not his heri, for it is his intereft to preferve the lunatic’s life, in order to increafe the perfonal eftate by favings, which he or his family may hereafter be entitled to enjoyt. The heir is generally made the manager or committee of the eftate, it being clearly his intereft by good management to keep it in condition; accountable however to the court of chancery, and to the non compos himfelf, if he recovers; or otherwife, to his adminiftrators.

 

IN this care of idiots and lunatics the civil law agrees with ours; by affigning them tutors to protect their perfons, and curators to manage their eftates. But in another inftance the Roman law goes much beyond the Englifh. For, if a man by notorious prodigality was in danger of wafting his eftate, he was looked upon as non compos and committed to the care of curators or tutors by the praetoru. And by the laws of Solon fuch prodigals were branded with perpetual infamyw. But with us, when a man on an inqueft of idiocy hath been returned an unthrift and not an idiotx, no farther proceedings have been had. And the propriety of the practice itfelf feems to be very queftionable. It was doubtlefs an excellent method of benefiting the individual and of preferving eftates in families; but it hardly feems calculated for the genius of a free nation, who claim and exercife the liberty of ufing their own property as they pleafe. “Sic utere tuo, ut alienum non laedas,” is the only reftriction our laws have given with regard to oeconomical prudence. And the frequent circulation and transfer of lands and other property, which can-

 

.{FS}

t 2 p. Wms. 638.

u Solent praetores, fr talem baminem invenerint, qui neque tempus neque finem expenfarum babet, fed bona fua dilacerando et diffepando profundit, curatorem ei dore, exemplo furiofs: ct tamdiu crunt ambo in curatione, quamida vel furiofus fanitatem, vel ille bonos mores, reccperit. Ff. 27. 10. I.

w potter. Antiqu. b. I. c. 26.

x Bro. Abr. tit. ideot. 4.

.{FE}

not

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not be effected without extravagance fomewhere, are perhaps not a little conducive towards keeping our mixed conftitution in it’s due health and vigour.

 

THIS may fuffice for a fhort view of the king’s ordinary revenue, or the proper patrimony of the crown; which was very large formerly, and capable of being increafed to a magnitude truly formidable: for there are very few eftates in the kingdom, that have not, at fome period or other fince the Norman conqueft, been vefted in the hands of the king by forfeiture, efcheat, or otherwife. But, fortunately for the liberty of the fubject, this hereditary landed revenue, by a feries of improvident management, is funk almoft to nothing; and the cafual profits, arifing from the other branches of the cenfus regalis, are likewife almoft all of them alienated from the crown. In order to fupply the deficiences of which, we are now obliged to have recourfe to new methods of raifing money, unknown to our early anceftors; which methods conftitute the king’s extraordinary revenue. For, the publick patrimony being got into the hands of private fubjects, it is but reafonable that private contributions fhould fupply the public fervice. Which, though it may perhaps fall harder upon fome individuals, whofe anceftors have had no fhare in the general plunder, than upon others, yet, taking the nation throughout, it amounts to nearly the fame; provided the gain by the extraordinary, fhould appear to be no greater than the lofs by the ordinary, revenue. And perhaps, if every gentleman in the kingdom was to be ftripped of fuch of his lands as were formerly the property of the crown; was to be again fubject to the inconveniences of purveyance and pre-emption, the oppreffion of foreft laws, and the flavery of feodal tenures; and was to refign into the king’s hands all his royal franchifes of waifs, wrecks, eftrays, treafure-trove, mines, deodands, forfeitures, and the like; he would find himfelf a greater lofer, than by paying his quota to fuch taxes, as are neceffary to the fupport of government. The thing therefore to be wifhed and aimed at in a land of liberty, is by no means the total abolition of taxes, which would

draw

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draw after it vary pernicious confequences, and the very fuppofition of which is the height of political abfurdity. For as the true idea of government and magiftracy will be found to confift in this, that fome few men are deputed by many others to prefide over public affairs, fo that individuals may the better be enabled to attend to their private concerns; it is neceffary that thofe individuals fhould be bound to contribute a portion of their private gains, in order to fupport that government, and reward that magiftracy, which protects them in the enjoyment of their refpective properties. But the things to be aimed at are wifdom and moderation, not only in granting, but alfo in the method of raifing, the neceffary fupplies; by contriving to do both in fuch a manner as may be moft conducive to the national welfare and at the fame time moft confiftent with oeconomy and the liberty of the fubject; who, when properly taxed, oeconomy and the liberty of the fubject; who, when properly taxed, contributes only, as was before obfervedy, fome part of his property, in order to enjoy the reft.

 

THESE extraordinary grants are ufually called by the fynonymous names of aids, fubfidies, and fupplies; and are granted, we have formerly feenz, by the commons of Great Britain, in parliament affembled: who, when they have voted a fupply to his majefty, and fettled the quantum of that fupply, ufually refolve themfelves into what is called a committee of ways and means, to confider of the ways and means of raifing the fupply fo voted. And in this committee every member (though it is looked upon as the peculiar province of the chancellor of the exchequer) may propofe fuch fcheme of taxation as he thinks will be leaft detrimental to the public. The refoultions of this committee (when approved by a vote of the houfe) are in general efteemed to be (as it were) final and conclufive. For, through the fupply cannot be actually raifed upon the fubject till directed by an act of the whole parliament, yet no monied man will fcruple to advance to the government any quantity of ready cafh, on the credit of a

 

.{FS}

y pag. 271.

z pag. 163.

.{FE}

O o

bare

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bare vote of the houfe of commons, though no law be yet paffed to eftablifh it.

 

THE taxes, which are raifed upon the fubject, are either annual or perpetual. The ufual annual taxes are thofe upon land and malt.

 

I. THE land tax, in it’s modern fhape, has fuperfeded all the former methods of rating either property, or perfons in refpect of their property, whether by tenths or fifteenths, fubfidies on land, hydages, fcutages, or talliages; a fhort explication of which will greatly affift us in underftanding our antient laws and hiftory.

 

TENTHS, and fifteenthsa, were temporary aids iffuing out of perfonal property, and granted to the king by parliament. They were formerly the real tenth or fifteenth part of all the moveables belonging to the fubject; when fuch moveables, or perfonal eftates, were a very different and a much lefs confiderable thing than what they ufually are at this day. Tenths are faid to have been firft granted under Henry the fecond, who took advantage of the fafhionable zeal for crofades to introduce this new taxation, in order to defray the expenfe of a pious expendition to paleftine, which he really or feemingly had projected againft Saladine emperor of the Saracens; whence it was originally denominated the Saladine tenthb. But afterwards fifteenths were more ufually granted than tenths. Originally the amount of thefe taxes was uncertain, being levied by affeffments new made at every frefh grant of the commons, a commiffion for which is preferved by Matthew parisc: but it was at length reduced to a certainty in the eighth of Edw. III. when, by virtue of the king’s commiffion, new taxations were made of every townfhip, 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 townfhip, the whole amounting to about 29000 l. and therefore it ftill kept

 

.{FS}

a 2 Inft. 77. 4 Inft. 34.

b Hoved. A. D. 1188. Carte. I. 719. Hume. I. 329.

c A. D. 1232.

.{FE}

up

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up the name of a fifteenth, when, by the alteration of the value of money and the encreafe of perfonal property, things came to be in a very different fituation. So that that when, of later years, the commons granted the king a fifteenth, every parifh in England immediately knew their proportion of it; that is, the fame identical fum that was affeffed by the fame aid in the eighth of Edw. III; and then raifed it by a rate among themfelves, and returned it into the royal exchequer.

 

THE other antient 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 tenuresd; 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 perfonal attendance growing troublefome in many refpects, the tenants found means of compounding for it, by firft fending others in their ftead, and in procefs of time by making a pecuniary fatisfaction to the crown in lieu of it. This pecuniary fatisfaction at laft came to be levied by affeffments, at fo much for every knight’s fee, under the name of fcutages; which appear to have been levied for the firft time in the fifth year of Henry the fecond, on account of his expedition to Touloufe, and were then (I apprehend) mere arbitrary compofitions, as the king and the fubject could agree. But this precedent being afterwards abufed into a means of oppreffion, (by levying fcutages on the landholders by the royal authority only, whenever our kings went to war, in order to hire mercenary troops and pay their contingent expences) it became thereupon a matter of national complaint; and king John was obliged to promife in his magna cartae, that no fcutage fhoud be impofed without the confent of the common council of the realm. This claufe was indeed omitted in the charters of Henry III, wheref we only find it ftipulated, that fcutages fhould be taken as they were ufed to be in the time of king Henry the fecond. Yet afterwards, by a variety of ftatutes under Edward I

 

.{FS}

d See the fecond book of thefe commentaries.

e cap. 14.

f 9 Hen. III. c. 37.

.{FE}

O o 2

And

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and his grandfong, it was provided, that the king fhall not take any aids or tafks, any talliage or tax, but by the common affent of the great men and commons in parliament.

 

OF the fame nature with fcutages upon knights-fees were the affeffments of hydage upon all other lands, and of talliage upon cities and burghsh. But they all gradually fell into difufe, upon the introduction of fubfidies, about the time of king Richard II and king Henry IV. Thefe were a tax, not immediately impofed upon property, but upon perfons in refpect of their reputed eftates, after the nominal rate of 4 s. in the pound for lands, and 2s. 6d. for goods; and for thofe of aliens in a double proportion. But this affeffment was alfo made according to an antient valuation; wherein the computation was fo very moderate, and the rental of the kingdom was fuppofed to be fo exceeding low, that one fubfidy of this fort did not, according to fir Edward cokei, amount to more than 70000 l. whereas a modern land tax at the fame rate produces two millions. It was antiently the rule never to grant more than one fubfidy, and two fifteenths at a time; but this rule was broke through for the firft time on a very preffing occafion, the Spanifh invafion in 1588; when the parliament gave queen Elizabeth two fubfidies and four fifteenths. Afterwards, as money funk in value, more fubfidies were given; and we have an inftance in the firft parliament of 1640, of the king’s defiring twelve fubfidies of the commons, to be levied in three years; which was looked upon as a ftartling propofal: though lord Clarendon tells usk, that the fpeaker, ferjeant Glanvile, made it manifeft to the houfe, how very inconfiderable a fum twelve fubfidies amounted to, by telling them he had computed what he was to pay for them; and, when he named the fum, he being known to be poffeffed of a great eftate, it feemed not worth any farther deliberation. And indeed, upon calculation, we fhall find that the total amount of thefe twelve fubfidies, to be raifed in

 

.{FS}

g 25 Edw. I. c. 5. & 6. 34 Edw. I. ft. 4. c. I. 14 Edw. III. ft. 2. c. I.

h Madox. hift, exch. 480.

i 4 Inft. 33.

k Hift. b. 2.

.{FE}

three

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three years, is lfes than what is now raifed in one year, by a land tax of two fhillings in the pound.

 

THE grant of fcutages, talliages, or fubfidies by the commons did not extend to fpiritual preferments; thofe being ufually taxed at the fame time by the clergy themfelves in convocation; which grants of the clergy were confirmed in parliament, otherwife they were illegal, and not binding; as the fame noble writer obferves of the fubfidies granted by the convocation, who continued fitting after the diffolution of the firft parliament in 1640. A fubfidy 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, fir Edward Coke tells usl, to about 20000 l. While this cuftom continued, convocations were wont to fit as frequently as parliaments: but the laft fubfidies, thus given by the clergy, were thofe confirmed by ftatute 15 Car. II. cap. 10. fince which another method of taxation has generally prevailed, which takes in the clergy as well as the laity; in recompenfe for which the beneficed clergy have from that period been allowed to vote at the elections of knights of the fhirem; and thenceforward alfo the practice of giving ecclefiaftical fubfidies hath fallen into total difufe.

 

THE lay fubfidy was ufually raifed by commiffioners appointed by the crown, or the great officers of ftate: and therefore in the beginning of the civil wars between Charles I and his parliament, the latter, having no other fufficient revenue to fupport themfelves and their meafures, introduced the practice of laying weekly and monthly affeffmentsn of a fpecific fum upon the feveral counties of the kingdom; to be levied by a pound rate on lands and perfonal eftates: which were occafionally continued during the whole ufurpation, fometimes at the rate 120000 l. a month; fometimes at inferior rateso. After the reftoration the antient

 

.{FS}

l 4 Inft 33.

m Dalt. of fheriffs, 418. Gilb. hift. of exch. c. 4.

n 29 Nov. 4 Mar. 1642.

o One of thefe bills of affeffment, in 1656, is preferved in Scobell’s collection, 400.

.{FE}

method

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method of granting fubfidies, inftead of fuch monthly affeffments, was twice, and twice only, renewed; viz. in 1663, when four fubfidies were granted by the temporalty, and four by the clergy; and in 1670, when 800000 l. was raifed by way of fubfidy, which was the laft time of raifing fupplies in that manner. For, the monthly affeffments being now eftablinfhed by cuftom, being raifed by commiffioners named by parliament, and producing a more certain revenue; from that time forwards we hear no more of fubfidies; but occafional affeffments were granted as the national emergencies required. Thefe periodical affeffments, the fubfidies which preceded them, and the more antient fcutage, hydage, and talliage, were to all intents and purpofes a land tax; and the affeffments were fometimes expreffly called fop. Yet a popular opinion has prevailed, that the land tax was firft introduced in the reign of king William III; becaufe in the year 1692 a new affeffment or valuation of eftates was made throughout the kingdom; which, though by no means a perfect one, had this effect, that a fupply of 500000 l. was equal to I s. in the pound of the value of the eftates given in. And, according to this enhanced valuation, from the year 1693 to the prefent, a period of above feventy years, the land tax has continued an annual charge upon the fubject; above half the time at 4 s. in the pound, fometimes at 3 s, fometimes at 2 s, twiceq at I s, but without any total intermiffion. The medium has been 3 s. 3 d. in the pound, being equivalent to twenty three antient fubfidies, and amounting annually to more than a million and an half of money. The method of raifing it is by charging a particular fum upon each county, according to the valuation given in, A. D. 1692: and this fum is affeffed and raifed upon individuals (their perfonal eftates, as well as real, being liable thereto) by commiffioners 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 fum of 750000 l, raifed every year by parliament, ever fince 1697, by

 

.{FS}

p Com. Journ. 26 Jun. 9 Dec. 1678.

q in the years 1732 and 1733.

.{FE}

a duty

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a duty of 6d. in the bufhel on malt, and a proportionable fum on certain liquors, fuch as cyder and perry, which might otherwife prevent the confumption of malt. This is under the management of the commiffioners of the excife; and is indeed itfelf no other than an annual excife, the nature of which fpecies of taxation I fhall prefently explain: only premifing at prefent, that in the year 1760 an additional perpetual excife of 3 d. per bufhel was laid upon malt; and in 1763 a proportionable excife was laid upon cyder and perry.

 

THE perpetual taxes are,

 

I. THE cuftoms; or the duties, toll, tribute, or tariff, payable upon merchandize exported and imported. The confiderations upon which this revenue (or the more antient part of it, which arofe only from exports) was invefted in the king, were faid to be twor; I. Becaufe he gave the fubject leave to depart the kingdom, and to carry his goods along with him. 2. Becaufe the king was bound of common right to maintain and keep up the ports and havens, and to protect the merchant from pirates. Some have imagined they are called with us cuftoms, becaufe they were the inheritance of the king by immemorial ufage and the common law, and not granted him by any ftatutes: but fir Edward Coke hath clearly fhewnt, that the king’s firft claim to them was by grant of parliament 3 Edw. I. though the record thereof is not now extant. And indeed this is in exprefs words confeffed by ftatute 25 Edw. I. c. 7. wherein the king promifes to take no cuftoms from merchants, without the common affent of the realm, “faving to us and our heirs, the cuftoms on wools, fkins, and leather, formerly granted to us by the commonalty aforefaid.” Thefe were formerly called the hereditary cuftoms of the crown; and were due on the exportation only of the faid three commodities, and of none other: which were ftiled the ftaple commodities of the kingdom, becaufe they were obliged to

 

.{FS}

r Dyer. 165.

s Dyer. 43. pl. 24.

t 2 Inft. 58, 59

.{FE}

be

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be brought to thofe ports where the king’s ftaple was eftablifhed, in order to be there firft rated, and then exportedu. They were denominated in the barbarous Latin of our antient records, cuftumaw; not confuetudines, which is the language of our law whenever it means merely ufages. The duties on wool, fheep-fkins, or woolfells, and leather, exported, were called cuftuma antiqua five magna; and were payable by every merchant, as well native as ftranger; with this difference, that merchant-ftrangers paid an additional toll, viz. half as much again as was paid by natives. The cuftuma parva et nova were an impoft of 3d. in the pound due from merchant-ftrangers only, for all commodities as well imported as exported; which was ufually called the alien’s duty, and was firft granted in 31 Edw. Ix. But thefe antient hereditary cuftoms, efpecially thofe on wool and woolfells, came to be of little account when the nation became fenfible of the advantages of a home manufacture, and prohibited the exportation of wool by ftatute II Edw. III. c. I.

 

THERE is alfo another antient hereditary duty belonging to the crown, called the prifage or butlerage of wines. Prifage was a right of taking two tons of wine from every fhip importing into England twenty tons or more; which by Edward I was exchanged into a duty of 2 s. for every ton imported by merchant-ftrangers; which is called butlerage, becaufe paid to the king’s butlery.

 

OTHER cuftoms payable upon exports and imports are diftinguifhed into fubfidies, tonnage, poundage, and other impofts. Subfidies are fuch as were impofed by parliament upon any of the ftaple commodities before mentioned, over and above the cuftuma antiqua et magna: tonnage was a duty upon all wines imported, over and above the prifage and butlerage aforefaid: poundage was a duty impofed ad valorem, at the rate of 12d. in the pound,

 

.{FS}

u Dav. 9.

w This appellation feems to be derived from the French word couftum, or coutum which fignifies toll or tribute, and owes it’s own etymology to the word couft, which fignifies price, charge, or, as we have adopted it in Englifh, coft.

x 4 Inft. 29.

y Dav. 8. b. 2 Bulftr. 254.

.{FE}

on

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on all other merchandize whatfoever: and the other impofts were fuch as were occafionally laid on by parliament, as circumftances and times requiredz. Thefe diftinctions 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 cuftoms.

 

BY thefe we underftand, at prefent, a duty or fubfidy paid by the merchant, at the quay, upon all imported as well as exported commodities, by authority of parliament; unlefs where, for particular national reafons, certain rewards, bounties, or drawbacks, are allowed for particular exports or imports. Thofe of tonnage and poundage, in particular, were at firft granted, as the old ftatutes, and particularly I Eliz. c. 19. exprefs it, for the defence of the realm, and the keeping and fafeguard of the feas, and for the intercourfe of merchandize fafely to come into and pafs out of the fame. They were at firft ufually granted only for a ftated term of years, as, for two years in 5 Ric. IIa; but in Henry the fifth’s time, they were granted him for life by a ftatute in the third year of his reign; and again to Edward IV for the term of his life alfo: fince which time they were regularly granted to all his fucceffors, for life, fometimes at their firft, fometimes at other fubfequent parliaments, till the reign of Charls the firft; when, as had before happened in the reign of Henry VIIIb and other princes, they were neglected to be afked. And yet they were imprudently and unconftitutionally levied and taken without confent of parliament, (though more than one had been affembled) for fifteen years together; which was one of the caufes of thofe unhappy difcontents, juftifiable at firft in too many inftances, but which degenerated at laft into caufelefs rebellion and murder. For, as in every other, fo in this particular cafe, the king (previous to the commencement of hoftilities) gave the nation ample fatisfaction for the errors of his former conduct, by paffing an actc, whereby he renounced all power in the crown of levying

 

.{FS}

z Dav. II, 12.

a Dav. 12.

b Stat. 6 Hen. VIII. c. 14.

c 16 Car. I. c. 8.

.{FE}

P p

the

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the duty of tonnage and poundage, without the exprefs confent of parliament; and alfo all power of impofition upon any merchandizes whatever. Upon the reftoration this duty was granted to king Charles the fecond for life, and fo it was to his two immediate fucceffors; but now by three feveral ftatutes, 9 Ann. c. 6. I Geo. I. c. 12. and 3 Geo. I. c. 7. it is made perpetual and mortgaged for the debt of the publick. The cuftoms, thus impofed by parliament, are chiefly contained in two books of rates, fet forth by parliamentary authorityd; one figned by fir Harbottle Grimfton, fpeaker of the houfe of commons in Charles the fecond’s time; and the other an additional one figned by fir Spenfer Compton, fpeaker in the reign of George the firft; to which alfo fubfequent additions have been made. Aliens pay a larger proportion than natural fubjects, which is what is now generally underftood by the aliens’ duty; to be exempted from which is one principal caufe of the frequent applications to parliament for acts of naturalization.

 

THESE cuftoms are then, we fee, a tax immediatcly paid by the merchant, although ultimately by the confumer. And yet thefe are the duties felt leaft by the people; and, if prudently managed, the people hardly confider that they pay them at all. For the merchant is eafy, being fenfible he does not pay them for himfelf; and the confumer, who really pays them, confounds them with the price of the commodity: in the fame manner as Tacitus obferves, that the emperor Nero gained the reputation of abolifhing the tax on the fale of flaves, though he only tranfferred it from the buyer to the feller; fo that it was, as he expreffes it, “remiffum magis fpecie, quam vi: quia cum venditor pendere juberetur, in partem pretii emptoribus accrefcebate.” But this inconvenience attends it on the other hand, that thefe impofts, if too heavy, are a check and cramp upon trade; and efpecially when the value of the commodity bears little or no proportion to the quantity of the duty impofed. This in confequence gives rife alfo to fmuggling, which then becomes a very lucrative

 

.{FS}

d Stat. 12 Car. II. c. 4. II Geo. I. c. 7.

e Hift. I. 13.

.{FE}

employment;

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employment: and it’s natural and moft reafonable punifhment, viz. confifcation of the commodity, is in fuch cafes quite ineffectual; the intrinfic value of the goods, which is all that the fmuggler has paid, and therefore all that he can lofe, being very inconfiderable when compared with his profpect of advantage in evading the duty. Recourfe muft therefore be had to extraordinary punifhments to prevent it; perhaps even to capital ones: which deftroys all proportion of punifhmentf, and puts murderers upon an equal footing with fuch as are really guilty of no natural, but merely a pofitive offence.

 

THERE is alfo another ill confequence attending high impofts on merchandize, not frequently confidered, but indifputably certain; that the earlier any tax is laid on a commodity, the heavier it falls upon the confumer in the end: for every trader, through whofe hands it paffes, muft have a profit, not only upon the raw material and his own labour and time in preparing it, but alfo upon the very tax itfelf, which he advances to the government; otherwife he lofes the ufe and intereft of the money which he fo advances. To inftance in the article of foreign paper. The merchant pays a duty upon importation, which he does not receive again till he fells the commodity, perhaps at the end of three months. He is therefore equally entitled to a profit upon that duty which he pays at the cuftomhoufe, as to a profit upon the original price which he pays to the manufacturer abroad; and confiders it accordingly in the price he demands of the ftationer. When the ftationer fells it again, he requires a profit of the printer or bookfeller upon the whole fum advanced by him to the merchant: and the bookfeller does not forget to charge the full proportion to the ftudent or ultimate confumer; who therefore does not only pay the original duty, but the profits of thefe three intermediate traders, who have fucceffively advanced it for him. This might be carried much farther in any mechanical, or more complicated, branch of trade.

 

.{FE}

f Montefqu. Sp. L. b. 13. c. 8.

.{FE}

P p 2

II. DIRECTLY

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II. DIRECTLY oppofite in it’s nature to this is the excife duty; which is an inland impofition, paid fometimes upon the confumption of the commodity, or frequently upon the retail fale, which is the laft ftage before the confumption. This is doubtlesfs, impartially fpeaking, the moft occonomical way of taxing the fubject: the charges of levying, collecting, and managing the excife duties being confiderably lefs in proportion, than in any other branch of the revenue. It alfo renders the commondity cheaper to the confumer, than charging it with cuftoms to the fame amount would do; for the reafon juft now given, becaufe generally paid in a much later ftage of it. But, at the fame time, the rigour and arbitrary proceedings of excife-laws feem hardly compatible with the temper of a free nation. For the frauds that might be committed in this branch of the revenue, unlefs a ftrict watch is kept, make it neceffary, wherever it is eftablifhed, to give the officers a power of entring and fearching the houfes of fuch as deal in excifable commodities, at any hour of the day, and, in many cafes, of the night likewife. And the proceedings in cafe of tranfgreffions are fo fummary and fudden, that a man may be convicted in two days time in the penalty of many thoufand pounds by two commiffioners or juftices of the peace; to the total exclufion of the trial by jury, and difregard of the common law. For which reafon, though lord Clarendon tells usg, that to his knowlege the earl of Bedford (who was made lord treafurer by king Charles the firft, to oblige his parliament) intended to have fet up the excife in England, yet it never made a part of that unfortunate prince’s revenue; being firft introduced, on the model of the Dutch prototype, by the parliament itfelf after it’s rupture with the crown. Yet fuch was the opinion of it’s general unpopularity, that when in 1642 “afperfions were caft by malignant perfons upon the houfe of commons, that they intended to introduce excifes, the houfe for it’s vindication therein did declare, that thefe rumours were falfe and fcandalous; and that their authors fhould be apprehended

 

.{FS}

g Hift. b. 3.

.{FE}

“and

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“and brought to condign punifhmenth.” It’s original eftablifhment was in 1643, and it’s progrefs was graduali; being at firft laid upon thofe perfons and commodities, where it was fuppofed the hardfhip would be leaft perceivable, viz. the makers and venders of beer, ale, cyder, and perryk; and the royalifts at Oxford foon followed the example of their brethren at Weftminfter by impofing a fimilar duty; both fides protefting that it fhould be continued no longer than to the end of the war, and then be utterly abolifhedl. But the parliament at Weftminfter foon after impofed it on flefh, wine, tobacco, fugar, and fuch a multitude of other commodities that it might fairly be denominated general; in purfuance of the plan laid down by Mr pymme (who feems to have been the father of the excife) in his letter to fir John Hothamm, fignifying, “that they had proceeded in the excife to many particulars, and intended to go on farther; but that it would be neceffary to ufe the people to it by little and little.” And afterwards, when the people had been accuftomed to it for a feries of years, the fucceeding champions of liberty boldly and openly declared, “the impoft of excife to be the moft eafy and indifferent lavy that could be laid upon the peoplen:” and accordingly continued it during the whole ufurpation. Upon king Charles’s return, it having then been long eftablifhed and it 3 produce well known, fome part of it was given to the crown, in the 12 Car. II, by way of purchafe (as was before obferved ) for the feodal tenures and other oppreffive parts of the hereditary re-

 

.{FS}

h Com. Journ. 8 Oct. 1642.

i The tranflator and continuator of petavius’s chronological hiftory (Lond. 1659.) informs us, that it was firft moved for, 28 Mar. 1643, by Mr prynne. And it appears from the journals of the commons that on that day the houfe refolved itfelf into a committee to confider of raifing money, in confewuence of which the excife was afterwards voted. But Mr prynne was not a member of parliament till 7 Nov. 1648; and publifhed in 1654 “A proteftation againft the illegal, deteftable, and oftcondemned tax and extortion of excife in general.” It is probably therefore a miftake 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. Journ. 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.

.{FE}

venue.

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venue. But, from it’s firft original to the prefent time, it’s very name has been odious to the people of England. It has neverthelefs been impofed on abundance of other commodities in the reigns of king William III, and every fucceeding prince, to fupport the enormous expenfes occafioned by our wars on the continent. Thus brandies and other fpirits are now excifed at the diftillery; printed filks and linens, at the printers; ftarch and hair powder, at the maker’s; gold and filver wire, at the wiredrawer’s; all plate whatfoever, firft in the hands of the vendor, who pays yearly for a licence to fell it, and afterwards in the hands of the occupier, who alfo pays an annual duty for having it in his cuftody; and coaches and other wheel carriages, for which the occupier is excifed; though not with the fame circumftances of arbitrary ftrictnefs with regard to plate and coaches, as in the other inftances. To thefe we may add coffee and tea, chocolate, and cocoa pafte, for which the duty is paid by the retailer; all artificial wines, commonly called fweets; paper and pafteboard, firft when made, and again if ftained or printed; malt as beforementioned; vinegars; and the manufacture of glafs; for all which the duty is paid by the manufacturer; hops, for which the perfon that gathers them is anfwerable; candles and foap, which are paid for at the maker’s; malt liquors brewed for fale, which are excifed at the brewery; cyder and perry, at the mill; and leather and fkins, at the tanner’s. A lift, which no iriend to his country would wifh to fee farther encreafed.

 

III. I PROCEED therefore to a third duty, namely that upon falt; which is another diftinct branch of his majefty’s extraordinary revenue, and confifts in an excife of 3s. 4d. per bufhel impofed upon all falt, by feveral ftatutes of king William and other fubfequent reigns. This is not generally called an excife, becaufe under the management of different commiffioners: but the commiffioners of the falt duties have by ftatute I Ann. c. 21. the fame powers, and muft obferve the fame regulations, as thofe of other excifes. This tax had ufually been only temporary; but by ftatute 26 Geo. II. c. 3. was made perpetual.

IV. ANOTHER

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IV. ANOTHER very confiderable branch of the revenue is levied with greater chearfulnefs, as, inftead of being a burden, it is a manifeft advantage to the public. I mean the poft-office, or duty for the carriage of letters. As we have traced the original of the excife to the parliament of 1643, fo it is but juftice to obferve that this ufeful invention owes it’s birth to the fame affembly. It is true, there exifted poftmafters in much earlier times: but I apprehend their bufinefs was confined to the furnifhing of pofthorfes to who were defirous to travel expeditioufly, and to the difpatching extraordinary pacquets upon fpecial occafions. The outline of the prefent plan feems to have been originally conceived by Mr Edmonf prideaux, who was appointed attorney general to the commonwealth after the murder of king Charles. He was a chairman of a committee in 1642 for confidering what rates fhould be fet upon inland letterso; and afterwards appointed poftmafter by an ordinance of both the houfesp, in the exceution of which office he firft eftablifhed a weekly conveyance of letters into all parts of the nationq: thereby faving to the public the charge of maintaining poftmafters, to the amount of 7000 l. per annum. And, his own emoluments being probably confiderable, the common council of London endeavoured to erect another poft-office in oppofition to his, till checked by a refolution of the commonsr, declaring, that the office of poftmafter is and ought to be in the fole power and difpofal of the parliament. This office was afterwards farmed by one Manley in 1654s. But, in 1657, a regular poft-office was erected by the authority of the protector and his parliament, upon nearly the fame model as has been ever fince adopted, with the fame rates of poftage as were continued till the reign of queen Annet. After the reftoration a fimilar office, with fome improvements, was eftablifhed by ftatute 12 Car. II. c. 35. but the rates of letters were altered, and fome farther regulations added, by the

 

.{FS}

o Com. Journ. 28 Mar. 1642.

p Ibid. 7. Sept. 1644.

q Ibid. 21 Mar. 1649.

r Ibid.

s Scobell. 358.

t Com. Journ. 9 Jun. 1657. Scobell. 511.

.{FE}

ftatutes

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ftatutes 9 Ann. c. 10. 6 Geo. I. c. 21. 26 Geo. II. c. 12. and 5 Geo. III. c. 25. and penalties were enacted, in order to confine the carriage of letters to the public office only, except in fome few cafes: a provifion, which is abfolutely neceffary; for nothing but an exclufive right can fupport an office of this fort: many rival independent offices would only ferve to ruin one another. The privilege of letters coming free of poftage, to and from members of parliament, was claimed by the houfe of commons in 1660, when the firft legal fettlement of the prefent poft-office was madeu; but afterwards droppedw upon a private affurance from the crown, that this privilege fhould be allowed the membersx. And accordingly a warrant was conftantly iffued to the poftmafter-generaly, directing the allowance thereof, to to the extent of two ounces in weitht: till at length it was expreffly confirmed by ftatute 4 Geo. III. c. 24; which adds many new regulations, rendered neceffary by the great abufes crept into the practice of franking; whereby the annual amount of franked letters had gradually increafed, from 23600 l. in the year 1715, to 170700 l. in the year 1763z. There cannot be devifed a more eligible method, than this, of raifing money upon the fubject: for therein both the government and the people find a mutual benefit. The government acquires a large revenue; and the people do their bufinefs with greater eafe, expedition, and cheapnefs, than they would be able to do is no fuch tax (and of courfe no fuch office) exifted,

 

V. AFIFTH branch of the perpetual revenue confifts in the ftamp duties, which are a tax impofed upon all parchment and paper whereon any legal proceedings, or private inftruments of almoft any nature whatfoever, are written; and alfo upon licences for retailing wines, of all denominations; upon all almanacks, newspapers, advertifements, cards, dice, and pamphlets containing lefs than fix fheets of paper. Thefe impofts are very various,

 

.{FS}

u Com. Journ. 17 Dec. 1660.

w Ibid. 22 Dec. 1660.

x Ibid. 16 Apr. 1735.

y Ibid. 26 Feb. 1734.

z Ibid. 28 Mar. 1764.

.{FE}

according

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according to the nature of the thing ftamped, rifing gradually from a penny to ten pounds. This is alfo a tax, which though in fome inftances it may be heavily felt, by greatly increafing the expence of all mercantile as well as legal proceedings, yet (if moderately impofed) is of fervice to the public in general, by authenticating inftruments, and rendering it much more difficult than formerly to forge deeds of any ftanding; fince, as the officers of this branch of the revenue vary their ftamps frequently, by marks perceptible to none but themfelves, a man that would forge a deed of king William’s time, muft know and be able to counterfeit the ftamp of that date alfo. In France and fome other countries the duty is laid on the contract itfelt, not on the inftrument in which it is contained: but this draws the fubject into a thoufand nice difquifitions and difputes concerning the nature of his contract, and whether taxable or not; in which the farmers of the revenue are fure to have the advantage. Our method anfwers the purpofes of the ftate as well, and confults the eafe of the fubject much better. The firft inftitution of the ftamp duties was by ftatute 5 & 6 W. & M. c. 21. and they have fince in many inftances been encreafed to five times their original amount.

 

VI. A SIXTH branch is the duty upon houfes and windows. As early as the conqueft mention is made in domefday book of fumage or fuage, vulgarly called fmoke farthings; which were paid by cuftom to the king for every chimney in the houfe. And we read that Edward the black prince (foon after his fucceffes in France) in imitation of the Englifh cuftom, impofed a tax of a florin upon every hearth in his French dominionsa. But the firft parliamentary eftablifhment of it in England was by ftatute 13 & 14 Car. II. c. 10. whereby an hereditary revenue of 2s. for every hearth, in all houfes paying to church and poor, was granted to the king for ever. And, by fubfequent ftatutes, for the more regular affeffment of this tax, the conftable and two other fubftantial inhabitants of the parifh, to be appointed yearly, were, once in every year, empowered to view the infide of every houfe

 

.{FS}

a Mod. Un. Hift. xxiii. 463. Spelm. Gloff. tit. Fuage.

.{FE}

Q q

in

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In the parifh. But, upon the revolution, by ftatute I W. & M. ft. I. c. 10. hearth-money was declared to be “not only a great oppreffion to the poorer fort, but a badge of flavery upon the whole people, expofing every man’s houfe to be entered into, and fearched at pleafure, by perfons unknown to him; and therefore, to erect a lafting monument of their majefties’ goodnefs in every houfe in the kingdom, the duty of hearth-money was taken away and abolifhed.” This monument of goodnefs remains among us to this day: but the profpect of it was fomewhat darkened when, in fix years afterwards, by ftatute 7W. III. c. 18. a tax was laid upon all houfes (except cottages) of 2s. now advanced to 3s. per houfe, and a tax alfo upon all windows, if they exceed nine, in fuch houfe. Which rates have been from time to time varied, (particularly by ftatutes 20 Geo. II. c. 3. and 31 Geo. II. c. 22.) and power is given to furveyors, appointed by the crown, to infpect the outfide of houfes, and alfo to pafs through any houfe two days in the year, into any court or yard to infpect the windows there.

 

VII. THE feventh branch of the extraordinary perpetual revenue is the duty arifing from licences to hackney coaches and chairs in London, and the parts adjacent. In 1654 two hundred hackney coaches were allowed within London, Weftminfter, and fix miles round, under the direction of the court of aldermenb. By ftatute 13 & 14 Car. II. c. 2. four hundred were licenfed; and the money arifing thereby was applied to repairing the ftreetsc. This number was increafed to feven hundred by ftatute 5 W. & M. c. 22. and the duties vefted in the crown: and by the ftatute 9 Ann. c. 23. and other fubfequent ftatutesd, there are now eight hundred licenfed coaches and four hundred chairs. This revenue is governed by commiffioners of it’s own, and is, in truth, a benefit to the fubject; as the expenfe of it is felt by no individual, and it’s neceffary regulations have eftablifhed a competent

 

.{FS}

b Scobell. 313.

c Com. Journ. 14 Feb. 1661.

d 10 Ann. c. 19. §. 158. 12 Geo. I. c. 15. 33 Geo. II. c. 25.

.{FE}

jurifdiction,

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jurifdiction, whereby a very refractory race of men may be kept in fome tolerable order.

 

VIII. THE eighth and laft branch of the king’s extraordinary perpetual revenue is the duty upon offices and penfions; confifting in a payment of I s. in the pound ( over and above all other duties) out of all falaries, fees, and perquifites, of offices and penfions payable by the crown. This highly popular taxation was impofed by ftatute 31 Geo. II. c. 22. and is under the direction of the commiffioners of the land tax.

 

THE clear neat produce of thefe feveral branches of the revenue, after all charges of collection and management paid, amounts annually to about feven millions and three quarters fterling; befides two millions and a quarter raifed annually, at an average, by the land and malt tax. How thefe immenfe fums are appropriated, is next to be confidered. And this is, firft and principally, to the payment of the intereft of the national debt.

 

IN order to take a clear and comprehenfive view of the nature of this national debt, it muft firft be premifed, that after the revolution, when our new connections with Europe introduced a new fyftem of foreign politics, the expenfes of the nation, not only in fettling the new eftablifhment, but in maintaining long wars, as principals, on the continent, for the fecurity of the Dutch barrier, reducing the French monarchy, fettling the Spanifh fucceffion, fupporting the houfe of Auftria, maintaining the liberties of the Germanic body, and other purpofes, increafed to an unufual degree: infomuch that it was not thought advifable to raife all the expenfes of any one year by taxes to be levied within that year, left the unaccuftomed weight of them fhould create mirmurs among the people. It was therefore the policy of the times, to anticipate the revenues of their pofterity, by borrowing immenfe fums for the current fervice of the ftate, and to lay no more taxes upon the fubject than would fuffice to pay the annual intereft of the fums fo borrowed: by this means

Q q 2

converting

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converting the principal debt into a new fpecies of property, transferrabel from one man to another at any time and in any quantity. A fyftem which feems to have had it’s original in the ftate of Florence, A. D. 1344: which government then owed about 60000 l. fterling; and, being unable to pay it, formed the principal into an aggregate fum, called metaphorically a mount or bank, the fhares whereof were transferrable like our ftocks, with intereft at 5 per cent. the prices varying according to the exigencies of the ftatec. This laid the foundation of what is called the national debt: for a few long annuities created in the reign of Charles II will hardly deferve that name. And the example then fet has been fo clofely followed during the long wars in the reign of queen Anne, and fince, that the capital of the national debt, (funded and unfunded) amounted in January 1765 to upwards of 145,000,000 l. to pay the intereft of which, and the charges for management, amounting to about four millions and three quarters, the revenues juft enumerated are in the firft place mortgaged, and made perpetual by parliament. Perpetual, I fay; but ftill redeemable by the fame authority that impofed them: which, if it at any time can pay off the capital, will abolifh thofe taxes which are raifed to difcharge the intereft.

 

BY this means the quantity of property in the kingdom is greatly encreafed in idea, compared with former times; yet, if we coolly confider it, not at all encreafed in reality. We may boaft of large fortunes, and quantities of money in the funds. But where does this money exift? It exifts only in name, in paper, in public faith, in parliamentary fecurity: and that is undoubtedly fufficient for the creditors of the public to rely on. But then what is the pledge which the public faith has pawned for the fecurity of thefe debts? The land, the trade, and the perfonal induftry of the fubject; from which the money muft arife that fupplies the feveral taxes. In thefe therefore, and thefe only, the property of the public creditors does really and intrinfically exift:

 

.{FS}

e Pro tempore, pro fpe, pro commodo, minuitur eorum pretium atque augefcit. Aretin. See Mod. Un. Hift. xxxvi. 116.

.{FE}

and

 

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and of courfe the land, the trade, and the perfonal induftry of individuals, are diminifhed in their true value juft fo much as they are pledged to anfwer. If A’s imcome amounts to 100 l. per annum; and he is fo far indebted to B, that he pays him 50 l. per annum for his intereft; one half of the value of A’s property is transferred to B the creditor. The creditor’s property exifts in the demand which he has upon the debtor, and no where elfe; and the debtor is only a truftee to his creditor for one half of the value of his income. In fhort, the property of a creditor of the publick, confifts in a certain portion of the national taxes: by how much therefore he is the richer, by fo much the nation, which pays thefe taxes, is the poorer.

 

THE only advantage, that can refult to a nation from public debts, is the encreafe of circulation by multiplying the cafh of the kingdom, and creating a new fpecies of money, always ready to be employed in any beneficial undertaking, by means of it’s transferrable quality; and yet productive of fome profit, even when it lies idle and unemployed. A certain proportion of debt feems therefore to be highly ufeful to a trading people; but what that proportion is, it is not for me to determine. Thus much is indifputably certain, that the prefent magnitude of our national incumbrances very far exceeds all calculations of commercial benefit, and is productive of the greateft inconveniences. For, firft, the enormous taxes, that are raifed upon the neceffaries of life for the payment of the intereft of this debt, are a hurt both to trade and manufactures, by raifing the price as well of the artificer’s fubfiftence, as of the raw material, and of courfe, in a much greater proportion, the price of the commodity itfelf. Secondly, if part of this debt be owing to foreigners, either they draw out of the kingdom annually a confiderable quantity of fpecie for the intereft; or elfe it is made an argument to grant them unreafonable privileges in order to induce them to refide here. Thirdly, if the whole be owing to fubjects only, it is then charging the active and induftrious fubjuct, who pays his fhare of the taxes, to maintain the indolent and idle creditor who receives them

Laftly,

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Laftly, and principally, it weakens the internal ftrength of a ftate, by anticipating thofe refources which fhould be referved to defend it in cafe of neceffity. The intereft we now pay for our debts would be nearly fufficient to maintain any war, that any national motives could require. And if our anceftors in king William’s time had annually paid, fo long as their exigences lafted, even a lefs fum than we now annually raife upon their accounts, they would in the time of war have borne no greater burdens, than they have bequeathed to and fettled upon their pofterity in time of peace; and might have been eafed the inftant the exigence was over.

 

THE produce of the feveral taxes beforementioned were originally feparate and diftinct funds; being fecurities for the fums advanced on each feveral tax, and for them only. But at laft it became neceffary, in order to avoid confufion, as they multiplied yearly, to reduce the number of thefe feparate funds, by uniting and blending them together; fuperadding the faith of parliament for the general fecurity of the whole. So that there are now only three capital funds of any account, the aggregate fund, and the general fund, fo called from fuch union and addition; and the foutb fea fund, being the produce of the taxes appropriated to pay the intereft of fuch part of the national debt as was advanced by that company and it’s annuitants. Whereby the feparate funds, which were thus united, are become mutual fecurities for each other; and the whole produce of them, thus aggregated, is liable to pay fuch intereft or annuities as were formerly charged upon each diftinct fund; the faith of the legiflature being moreover engaged to fupply any cafual deficiences.

 

THE cuftoms, excifes, and other taxes, which are to fupport thefe funds, depending on contingencies, upon exports, imports, and confumptions, muft neceffarily be of a very uncertain amount; but they have always been confiderably more than was fufficient to anfwer the charge upon them. The furpluffes therefore of the three great national funds, the aggregate, general, and fouth fea

funds,

 

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funds, over and above the intereft and annuities charged upon them, are directed by ftatute 3 Geo. I. c. 7. to be carried together, and to attend the difpofition of parliament; and are ufually denominated the finking fund, becaufe originally deftined to fink and lower the national debt. To this have been fince added many other intire duties, granted in fubfequent years; and the annual intereft of the fums borrowed on their refpective credits is charged on and payable out of the produce of the finking fund. However the neat furpluffes and favings, after all deductions paid, amount annually to a very confiderable fum; particularly in the year ending at Chriftmas 1764, to about two millions and a quarter. For, as the intereft on the national debt has been at feveral times reduced, (by the confent of the proprietors, who had their option either to lower their intereft of be paid their principal) the favings from the appropriated revenues muft needs be extremely large. This finking fund is the laft refort of the nation; on which alone depend all the hopes we can entertain of ever difcharging or moderating our incumbrances. And therefore the prudent application of the large fums, now arifing from this fund, is a point of the utmoft importance, and well worthy the ferious attention of parliament; which has thereby been enabled, in this prefent year 1765, to reduce above two millions fterling of the public debt.

 

BUT, before any part of the aggregate fund (the furpluffes whereof are one of the chief ingredients that form the finking fund) can be applied to diminifh the principal of the public debt, it ftands mortgaged by parliament to raife an annual fum for the maintenance of the king’s houfhold and the civil lift. For this purpofe, in the late reigns, the produce of certain branches of the excife and cuftoms, the poft-office, the duty on wine licences, the revenues of the remaining crown lands, the profits arifing from courts of juftice, (which articles include all the hereditary revenues of the crown) and alfo a clear annuity of 120000 l. in money, were fettled on the king for life, for the fupport of his majefty’s houfhold, and the honour and dignity of the

crown.

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crown. And, as the amount of thefe feveral branches was uncertain, (though in the laft reign they were generally computed to raife almoft a million) if they did not arife annually to 800,000 l. the parliament engaged to make up the deficiency. But his prefent majefty having, foon after his acceffion, fpontaneoufly fignified his confent, that his own hereditary revenues might be fo difpofed of as might beft conduce to the utility and fatisfaction of the public, and having gracioufly accepted the limited fum of 800000 l. per annum for the fupport of his civil lift (and that alfo charged with three life annuities, to the princefs of Wales, the duke of Cumberland, and the princefs Amalie, to the amount of 77000 l.) the faid hereditary and other revenues are now carried into and made a part of the aggregate fund, and the aggregate fund is charged with the payment of the whole annuity to the crown of 800000 l. per annumf. Hereby the revenues themfelves, being put under the fame care and management as the other branches of the public patrimony, will produce more and be better collected than heretofore; and the public is a gainer of upwards of 100000 l. per annum by this difinterefted bounty of his majefty. The civil lift, thus liquidated, together with the four millions and three quarters, intereft of the national debt, and the two millions and a quarter produced from the finking fund, make up the feven millions and three quarters per annum, neat money, which were before ftated to be the annual produce of our perpetual taxes; befides the immenfe, though uncertain, fums arifing from the annual taxes on land and malt, but, which, at an average, may be calculated at more than two millions and a quarter; and, added to the preceding fum, make the clear produce of the taxes, exclufive of the charge of collecting, which are raifed yearly on the people of this country, and returned into the king’s exchequer, amount to upwards of ten millions fterling.

 

THE expences defrayed by the civil lift are thofe that in any fhape relate to civil government; as, the expenfes of the houfhold; all fallaries to officers of ftate, to the judges, and every of the

 

.{FS}

f Stat. I. Geo. III. c. I.

king’s

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king’s fervants; the appointments to foreign embaffadors; the maintenance of the royal family; the king’s private expenfes, or privy purfe; and other very numerous outgoings, as fecret fervice money, penfions, and other bounties: which fometimes have fo far exceeded the revenues appointed for that purpofe, that application has been made to parliament to difcharge the debts contracted on the civil lift; as particularly in 1724, when one million was granted for that purpofe by the ftatute II Geo. I. c. 17.

 

THE civil lift is indeed properly the whole of the king’s revenue in his own diftinct capacity; the reft being rather the revenue of the public, or it’s creditors, though collected, and diftributed again, in the name and by the officers of the crown: it now ftanding in the fame place, as the hereditary income did formerly; and, as that has gradually diminifhed, the parliamentary appointments have encreafed. The whole revenue of queen Elizabeth did not amount to more than 600000 l. a yearg: that of king Charles II wash 800000 l. and the revenue voted for king Charles II wasi 1200000 l. though it never in fact amounted to quite fo muchk. But it muft be obferved, that under thefe fums were included all manner of public expenfes, among which lord Clarendon in his fpeech to the parliament computed that the charge of the navy and land forces amounted annually to 800000 l. which was ten times more than before the former troublesl. The fame revenue, fubject to the fame charges, was fettled in on king James IIm: but by the encreafe of trade, and more frugal management, it amounted on an average to a million and half per annum, (befides other additional cuftoms, granted by parliamentn, which produced an annual revenue of 400000 l.) out of which his fleet and army were maintained at the yearly expenfe of o1100000 l. After the revolution, when the parliament took into it’s own hands the annual fupport of the forces, both maritime

 

.{FS}

g Lord Clar. continuation. 163.

h Com. Journ. 4 Sept. 1660.

i Ibid.

k Ibid. 4 Jun. 1663. Lord Clar. ibid.

l Ibid. 165.

m Stat. I Jac. II. c. I.

n Stat. I Jac. II. c. 3 & 4.

o Com. Journ. I Mar. 20 Mar. 1688.

.{FE}

R r

and

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and military, a civil lift revenue was fettled on the new king and queen, amounting, with the hereditary duties, to 700000 l. pe. Annump; and the fame was continued to queen Anne and king George Iq. That of king George II, we have feen, was nominally augmented to r800000 l. and in fact was confiderably more. But that of his prefent majefty is expreffly limited to that fum; and, by reafon of the charges upon it, amounts at prefent to little more than 700000 l. And upon the whole it is doubtlefs much better for the crown, and alfo for the people, to have the revenue fettled upon the modern footing rather than the antient. For the crown; becaufe it is more certain, and collected with greater eafe: for the people; becaufe they are now delivered from the feodal hardfhips, and other odious branches of the prerogative. And though complaints have fometimes been made of the encreafe of the civil lift, yet if we confider the fums that have been formerly granted, the limited extent under which it is now eftablifhed, the revenues and prerogatives given up in lieu of it by the crown, and (above all) the diminution of the value of money compared with what it was worth in the laft century, we muft acknowlege thefe complaints to be void of any rational foundation; and that it is impoffible to fupport that dignity, which a king of Great Britain fhould maintain, with an income in any degree lefs than what is now eftablifhed by parliament.

 

THIS finifhes our enquiries into the fifcal prerogatives of the king; or his revenue, both ordinary and extraordinary. We have therefore now chalked out all the principal outlines of this vaft title of the law, the fupreme executive magiftrate, or the king’s majefty, confidered in his feveral capacities and points of view. But, before we intirely difmifs this fubject, it may not be improper to take a fhort comparative review of the power of the executive magiftrate, or prerogative of the crown, as it ftood in former days, and as it ftands at prefent. And we cannot but obferve, that moft of the laws for afcertaining, limiting, and reftraining this prerogative have been made within the compafs of

 

.{FS}

p Ibid. 14 Mar. 1701.

q Ibid. 17 Mar. 1701. II Aug. 1714.

r Stat. I Geo. II. c. I.

.{FE}

little

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little more than a century paft; from the petition of right in 3 Car. I. to the prefent time. So that the powers of the crown are now to all appearance greatly curtailed and diminifhed fince the reign of king James the firft: particularly, by the abolition of the ftar chamber and high commiffion courts in the reign of Charles the firft, and by the difclaiming of martial law, and the power of levying taxes on the fubject, by the fame prince: by the difufe of foreft laws for a century paft: and by the many excellent provifions enacted under Charles the fecond; efpecially, the abolition of military tenures, purveyance, and preemption; the habeas corpus act; and the act to prevent the difcontinuance of parliaments for above three years: and, fince the revolution, by the ftrong and emphatical words in which our liberties are afferted in the bill of rights, and act of fettlement; by the act for triennial, fince turned into feptennial, elections; by th exclufion of certain officers from the houfe of commons; by rendering the feats of the judges permanent, and their falaries independent; and by reftraining the king’s pardon from operating on parliamentary impeachments. Befides all this, if we confider how the crown is impoverifhed and ftripped of all it’s antient revenues, fo that it greatly depends on the liberality of parliament for it’s neceffary fupport and maintenance, we may perhaps be led to think, that the ballance is enclined pretty ftrongly to the popular fcale, and that the executive magiftrate has neither independence nor power enough left, to from that check upon the lords and commons, which the founders of our conftitution intended.

 

BUT, on the other hand, it is to be confidered, that every prince, in the firft parliament after his acceffion, has by long ufage a truly royal addition to his hereditary revenue fettled upon him for his life; and has never any occafion to apply to parliament for fupplies, but upon fome public neceffity of the whole realm. This reftores to him that conftitutional independence, which at his firft acceffion feems, it muft be owned, to be wanting. And then, with regard to power, we may find perhaps that the hands of government are at leaft fufficiently ftrengthened; and that an

R r 2

Englifh

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Englifh monarch is now in no danger of being overborne by either the mobility or the people. The inftruments of power are not perhaps fo open and avowed as they formerly were, and therefore are the lefs liable to jealous and invidious reflections; but they are not the weaker upon that account. In fhort, our national debt and taxes (befides the inconveniences before-mentioned) have alfo in their natural confequences thrown fuch a weight of power into the executive fcale of government, as we cannot think was intended by our patriot anceftors; who glorioufly ftruggled for the abolition of the then formidable parts of the prerogative, and by an unaccountable want of forefight eftablifhed this fyftem in their ftead. The entire collection and management of fo vaft a revenue, being placed in the hands of the crown, have given rife to fuch a multitude of new officers, created by and removeable at the royal pleafure, that they have extended the influence of government to every corner of the nation. Witnefs the commiffioners, and the kingdom; the commiffioners of excife, and their numerous fubalterns, in every inland diftrict; the poftmafters, and their fervants, planted in every town, and upon every public road; the commiffioners of the ftamps, and their diftributors, which are full as fcattered and full as numerous; the officers of the falt duty, which, though a fpecies of excife and conducted in the fame manner, are yet made a diftinct corps from the ordinary managers of that revenue; the furveyors of houfes and windows; thereceivers of the land tax; the managers of lotteries; and the commiffioners of hackney coaches; all which are either mediatley or immediately appointed by the crown, and removeable at pleafure without any reafon affigned: thefe, it requires but little penetration to fee, muft give that power, on which they depend for fubfiftence, an influence moft amazingly extenfive. To this may be added the frequent opportunities of conferring particular obligations, by preference in loans, fubfcriptions, tickets, remittances, and other money-tranfactions, which will greatly encreafe this influence; and that over thofe perfons whofe attachment, on account of their wealth, is frequently the moft defirable. All this

is

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is the natural, though perhaps the unforefeen, confequence of erecting our funds of credit, and to fupport them eftabnfhing our prefent perpetual taxes: the whole of which is entirely new fince the reftoration in 1660; and by far the greateft part fince the revolution in 1688. And the fame may be faid with regard to the officers in our numerous army, and the places which the army has created. All which put together gives the executive power fo perfuafive an energy with refpect to the perfons themfelves, and fo prevailing an intereft with their friends and families, as will amply make amends for the lofs of external prerogative.

 

BUT, though this profufion of offices fhould have no effect on individuals, there is ftill another newly acquired branch of power; and that is, not the influence only, but the force of a difciplined army: paid indeed ultimately by the people, but immediately by the crown; raifed 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 muft, by the nature of our conftitution, if raifed at all, be at the abfolute difpofal of the crown. And there need but few words to demonftrate how great a truft is thereby repofed in the prince by his people. A truft, that is more than equivalent to a thoufand little troublefome prerogatives.

 

ADD to all this, that, befides the civil lift, the immenfe revenue of feven millions fterling, which is annually paid to the creditors of the publick, or carried to the finking fund, is firft depofited in the royal exchequer, and thence iffued out to the refpective offices of payment. This revenue the people can never refufe to raife, becaufe it is made perpetual by act of parliament: which alfo, when well confidered, will appear to be a truft 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 tranfactions in the laft cen-

tury.

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tury. Much is indeed given up; but much is alfo acquired. The ftern commands of prerogative have yielded to the milder voice of influence; the flavifh and exploded doctrine of non-refiftance has given way to a military eftablifhment by law; and to the difufe of parliaments has fucceeded a parliamentary truft of an immenfe perpetual revenue. When, indeed, by the free operation of the finking fund, our national debts fhall be leffenedl when the pofture of foreign affairs, and the univerfal introduction of a well planned and national militia, will fuffer our formidable army to be thinned and regulated; and when (in confequence of all) our taxes fhall be gradually reduced; this adventitious power of the crown will flowly and imperceptibly diminifh, as it flowly and imperceptibly rofe. But, till that fhall happen, it will be our efpecial duty, as good fubjects and good Englifhmen, to reverence the crown, and yet guard againft corrupt and fervile influence from thofe who are intrufted with it’s 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 fovereign, who, in all thofe public acts that have perfonally proceeded from himfelf, hath manifefted the higheft veneration for the free conftitution of Britain; hath already in more than one inftance remarkably ftrengthened it’s outworks; and will therefore never harbour a thought, or adopt a perfuafion, in any the remoteft degree detrimental to public liberty.

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