part 3

.]

PRIVY counsellors are _made_ by the king's nomination, without either patent or grant; and, on taking the necessary oaths, they become immediately privy counsellors during the life of the king that chooses them, but subject to removal at his discretion.

THE _duty_ of a privy counsellor appears from the oath of office[l], which consists of seven articles: 1. To advise the king according to the best of his cunning and discretion. 2. To advise for the king's honour and good of the public, without partiality through affection, love, meed, doubt, or dread. 3. To keep the king's counsel secret. 4. To avoid corruption. 5. To help and strengthen the execution of what shall be there resolved. 6. To withstand all persons who would attempt the contrary. And, lastly, in general, 7. To observe, keep, and do all that a good and true counsellor ought to do to his sovereign lord.

[Footnote l: 4 Inst. 54.]

THE _power_ of the privy council is to enquire into all offences against the government, and to commit the offenders into custody, in order to take their trial in some of the courts of law. But their jurisdiction is only to enquire, and not to punish: and the persons committed by them are entitled to their _habeas corpus_ by statute 16 Car. I. c. 10. as much as if committed by an ordinary justice of the peace. And, by the same statute, the court of starchamber, and the court of requests, both of which consisted of privy counsellors, were dissolved; and it was declared illegal for them to take cognizance of any matter of property, belonging to the subjects of this kingdom. But, in plantation or admiralty causes, which arise out of the jurisdiction of this kingdom, and in matters of lunacy and ideocy (being a special flower of the prerogative) with regard to these, although they may eventually involve questions of extensive property, the privy council continues to have cognizance, being the court of appeal in such causes: or, rather, the appeal lies to the king's majesty himself, assisted by his privy council.

AS to the _qualifications_ of members to sit this board: any natural born subject of England is capable of being a member of the privy council; taking the proper oaths for security of the government, and the test for security of the church. But, in order to prevent any persons under foreign attachments from insinuating themselves into this important trust, as happened in the reign of king William in many instances, it is enacted by the act of settlement[m], that no person born out of the dominions of the crown of England, unless born of English parents, even though naturalized by parliament, shall be capable of being of the privy council.

[Footnote m: Stat. 12. & 13 W. III. c. 2.]

THE _privileges_ of privy counsellors, as such, consist principally in the security which the law has given them against attempts and conspiracies to destroy their lives. For, by statute 3 Hen. VII. c. 14. if any of the king's servants of his houshold, conspire or imagine to take away the life of a privy counsellor, it is felony, though nothing be done upon it. And the reason of making this statute, sir Edward Coke[n] tells us, was because such servants have greater and readier means, either by night or by day, to destroy such as be of great authority, and near about the king: and such a conspiracy was, just before this parliament, made by some of king Henry the seventh's houshold servants, and great mischief was like to have ensued thereupon. This extends only to the king's menial servants. But the statute 9 Ann. c. 16. goes farther, and enacts, that _any persons_ that shall unlawfully attempt to kill, or shall unlawfully assault, and strike, or wound, any privy counsellor in the execution of his office, shall be felons, and suffer death as such. This statute was made upon the daring attempt of the sieur Guiscard, who stabbed Mr Harley, afterwards earl of Oxford, with a penknife, when under examination for high crimes in a committee of the privy council.

[Footnote n: 3 Inst. 38.]

THE _dissolution_ of the privy council depends upon the king's pleasure; and he may, whenever he thinks proper, discharge any

## particular member, or the whole of it, and appoint another. By the

common law also it was dissolved _ipso facto_ by the king's demise; as deriving all it's authority from him. But now, to prevent the inconveniences of having no council in being at the accession of a new prince, it is enacted by statute 6 Ann. c. 7. that the privy council shall continue for six months after the demise of the crown, unless sooner determined by the successor.

CHAPTER THE SIXTH.

OF THE KING'S DUTIES.

I PROCEED next to the duties, incumbent on the king by our constitution; in consideration of which duties his dignity and prerogative are established by the laws of the land: it being a maxim in the law, that protection and subjection are reciprocal[a]. And these reciprocal duties are what, I apprehend, were meant by the convention in 1688, when they declared that king James had broken the _original contract_ between king and people. But however, as the terms of that original contract were in some measure disputed, being alleged to exist principally in theory, and to be only deducible by reason and the rules of natural law; in which deduction different understandings might very considerably differ; it was, after the revolution, judged proper to declare these duties expressly; and to reduce that contract to a plain certainty. So that, whatever doubts might be formerly raised by weak and scrupulous minds about the existence of such an original contract, they must now entirely cease; especially with regard to every prince, who has reigned since the year 1688.

[Footnote a: 7 Rep. 5.]

THE principal duty of the king is, to govern his people according to law. _Nec regibus infinita aut libera potestas_, was the constitution of our German ancestors on the continent[b]. And this is not only consonant to the principles of nature, of liberty, of reason, and of society, but has always been esteemed an express part of the common law of England, even when prerogative was at the highest. "The king," saith Bracton[c], who wrote under Henry III, "ought not to be subject to man, but to God, and to the law; for the law maketh the king. Let the king therefore render to the law, what the law has invested in him with regard to others; dominion, and power: for he is not truly king, where will and pleasure rules, and not the law." And again[d]; "the king also hath a superior, namely God, and also the law, by which he was made a king." Thus Bracton: and Fortescue also[e], having first well distinguished between a monarchy absolutely and despotically regal, which is introduced by conquest and violence, and a political or civil monarchy, which arises from mutual consent; (of which last species he asserts the government of England to be) immediately lays it down as a principle, that "the king of England must rule his people according to the decrees of the laws thereof: insomuch that he is bound by an oath at his coronation to the observance and keeping of his own laws." But, to obviate all doubts and difficulties concerning this matter, it is expressly declared by statute 12 & 13 W. III. c. 2. that "the laws of England are the birthright of the people thereof; and all the kings and queens who shall ascend the throne of this realm ought to administer the government of the same according to the said laws; and all their officers and ministers ought to serve them respectively according to the same: and therefore all the laws and statutes of this realm, for securing the established religion, and the rights and liberties of the people thereof, and all other laws and statutes of the same now in force, are by his majesty, by and with the advice and consent of the lords spiritual and temporal and commons, and by authority of the same, ratified and confirmed accordingly."

[Footnote b: _Tac. de M.G._ _c._ 7.]

[Footnote c: _l._ 1. _c._ 8.]

[Footnote d: _l._ 2. _c._ 16. §. 3.]

[Footnote e: _c._ 9. & 34.]

AND, as to the terms of the original contract between king and people, these I apprehend to be now couched in the coronation oath, which by the statute 1 W. & M. st. 1. c. 6. is to be administred to every king and queen, who shall succeed to the imperial crown of these realms, by one of the archbishops or bishops of the realm, in the presence of all the people; who on their parts do reciprocally take the oath of allegiance to the crown. This coronation oath is conceived in the following terms:

"_The archbishop or bishop shall say_, Will you solemnly promise and swear to govern the people of this kingdom of England, and the dominions thereto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same?--_The king or queen shall say_, I solemnly promise so to do.

"_Archbishop or bishop._ Will you to your power cause law and justice, in mercy, to be executed in all your judgments?--_King or queen._ I will.

"_Archbishop or bishop._ Will you to the utmost of your power maintain the laws of God, the true profession of the gospel, and the protestant reformed religion established by the law? And will you preserve unto the bishops and clergy of this realm, and to the churches committed to their charge, all such rights and privileges as by law do or shall appertain unto them, or any of them?--_King or queen._ All this I promise to do.

"_After this the king or queen, laying his or her hand upon the holy gospels, shall say_, The things which I have here before promised I will perform and keep: so help me God. _And then shall kiss the book._"

THIS is the form of the coronation oath, as it is now prescribed by our laws: the principal articles of which appear to be at least as antient as the mirror of justices[f], and even as the time of Bracton[g]: but the wording of it was changed at the revolution, because (as the statute alleges) the oath itself had been framed in doubtful words and expressions, with relation to antient laws and constitutions at this time unknown[h]. However, in what form soever it be conceived, this is most indisputably a fundamental and original express contract; though doubtless the duty of protection is impliedly as much incumbent on the sovereign before coronation as after: in the same manner as allegiance to the king becomes the duty of the subject immediately on the descent of the crown, before he has taken the oath of allegiance, or whether he ever takes it at all. This reciprocal duty of the subject will be considered in it's proper place. At present we are only to observe, that in the king's part of this original contract are expressed all the duties that a monarch can owe to his people; viz. to govern according to law: to execute judgment in mercy: and to maintain the established religion.

[Footnote f: _cap._ 1. §. 2.]

[Footnote g: _l._ 3. _tr._ 1. _c._ 9.]

[Footnote h: In the old folio abridgment of the statutes, printed by Lettou and Machlinia in the reign of Edward IV, (_penes me_) there is preserved a copy of the old coronation oath; which, as the book is extremely scarce, I will here transcribe. _Ceo est le serement que le roy jurre a soun coronement: que il gardera et meintenera lez droitez et lez franchisez de seynt esglise grauntez auncienment dez droitez roys christiens dEngletere, et quil gardera toutez sez terrez honoures et dignitees droiturelx et franks del coron du roialme dEngletere en tout maner dentierte sanz null maner damenusement, et lez droitez dispergez dilapidez ou perduz de la corone a soun poiair reappeller en launcien estate, et quil gardera le peas de seynt esglise et al clergie et al people de bon accorde, et quil face faire en toutez sez jugementez owel et droit justice oue discrecion et misericorde, et quil grauntera a tenure lez leyes et custumez du roialme, et a soun poiair lez face garder et affermer que lez gentez du people avont faitez et esliez, et les malveys leyz et custumes de tout oustera, et ferme peas et establie al people de soun roialme en ceo garde esgardera a soun poiair: come Dieu luy aide._ _Tit. sacramentum regis. fol. m. ij._]

CHAPTER THE SEVENTH.

OF THE KING'S PREROGATIVE.

IT was observed in a former chapter[a], that one of the principal bulwarks of civil liberty, or (in other words) of the British constitution, was the limitation of the king's prerogative by bounds so certain and notorious, that it is impossible he should ever exceed them, without the consent of the people, on the one hand; or without, on the other, a violation of that original contract, which in all states impliedly, and in ours most expressly, subsists between the prince and the subject. It will now be our business to consider this prerogative minutely; to demonstrate it's necessity in general; and to mark out in the most important instances it's particular extent and restrictions: from which considerations this conclusion will evidently follow, that the powers which are vested in the crown by the laws of England, are necessary for the support of society; and do not intrench any farther on our _natural_ liberties, than is expedient for the maintenance of our _civil_.

[Footnote a: chap. 1. page 137.]

THERE cannot be a stronger proof of that genuine freedom, which is the boast of this age and country, than the power of discussing and examining, with decency and respect, the limits of the king's prerogative. A topic, that in some former ages was thought too delicate and sacred to be profaned by the pen of a subject. It was ranked among the _arcana imperii_; and, like the mysteries of the _bona dea_, was not suffered to be pried into by any but such as were initiated in it's service: because perhaps the exertion of the one, like the solemnities of the other, would not bear the inspexion of a rational and sober enquiry. The glorious queen Elizabeth herself made no scruple to direct her parliaments to abstain from discoursing of matters of state[b]; and it was the constant language of this favorite princess and her ministers, that even that august assembly "ought not to deal, to judge, or to meddle, with her majesty's prerogative royal[c]." And her successor, king James the first, who had imbibed high notions of the divinity of regal sway, more than once laid it down in his speeches, that "as it is atheism and blasphemy in a creature to dispute what the deity may do, so it is presumption and sedition in a subject to dispute what a king may do in the height of his power: good christians, he adds, will be content with God's will, revealed in his word; and good subjects will rest in the king's will, revealed in _his_ law[d]."

[Footnote b: Dewes. 479.]

[Footnote c: _Ibid._ 645.]

[Footnote d: King James's works. 557, 531.]

BUT, whatever might be the sentiments of some of our princes, this was never the language of our antient constitution and laws. The limitation of the regal authority was a first and essential principle in all the Gothic systems of government established in Europe; though gradually driven out and overborne, by violence and chicane, in most of the kingdoms on the continent. We have seen, in the preceding chapter, the sentiments of Bracton and Fortescue, at the distance of two centuries from each other. And sir Henry Finch, under Charles the first, after the lapse of two centuries more, though he lays down the law of prerogative in very strong and emphatical terms, yet qualifies it with a general restriction, in regard to the liberties of the people. "The king hath a prerogative in all things, that are not injurious to the subject; for in them all it must be remembered, that the king's prerogative stretcheth not to the doing of any wrong[e]." _Nihil enim aliud potest rex, nisi id solum quod de jure potest_[f]. And here it may be some satisfaction to remark, how widely the civil law differs from our own, with regard to the authority of the laws over the prince, or (as a civilian would rather have expressed it) the authority of the prince over the laws. It is a maxim of the English law, as we have seen from Bracton, that "_rex debet esse sub lege, quia lex facit regem_:" the imperial law will tell us, that "_in omnibus, imperatoris excipitur fortuna; cui ipsas leges Deus subjecit_[g]." We shall not long hesitate to which of them to give the preference, as most conducive to those ends for which societies were framed, and are kept together; especially as the Roman lawyers themselves seem to be sensible of the unreasonableness of their own constitution. "_Decet tamen principem_," says Paulus, "_servare leges, quibus ipse solutus est_[h]." This is at once laying down the principle of despotic power, and at the same time acknowleging it's absurdity.

[Footnote e: Finch. L. 84, 85.]

[Footnote f: Bract. _l._ 3. _tr._ 1. _c._ 9.]

[Footnote g: _Nov._ 105. §. 2.]

[Footnote h: _Ff._ 32. 1. 23.]

BY the word prerogative we usually understand that special pre-eminence, which the king hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity. It signifies, in it's etymology, (from _prae_ and _rogo_) something that is required or demanded before, or in preference to, all others. And hence it follows, that it must be in it's nature singular and eccentrical; that it can only be applied to those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects: for if once any one prerogative of the crown could be held in common with the subject, it would cease to be prerogative any longer. And therefore Finch[i] lays it down as a maxim, that the prerogative is that law in case of the king, which is law in no case of the subject.

[Footnote i: Finch. L. 85.]

PREROGATIVES are either _direct_ or _incidental_. The _direct_ are such positive substantial parts of the royal character and authority, as are rooted in and spring from the king's political person, considered merely by itself, without reference to any other extrinsic circumstance; as, the right of sending embassadors, of creating peers, and of making war or peace. But such prerogatives as are _incidental_ bear always a relation to something else, distinct from the king's person; and are indeed only exceptions, in favour of the crown, to those general rules that are established for the rest of the community: such as, that no costs shall be recovered against the king; that the king can never be a joint-tenant; and that his debt shall be preferred before a debt to any of his subjects. These, and an infinite number of other instances, will better be understood, when we come regularly to consider the rules themselves, to which these incidental prerogatives are exceptions. And therefore we will at present only dwell upon the king's substantive or direct prerogatives.

THESE substantive or direct prerogatives may again be divided into three kinds: being such as regard, first, the king's royal _character_; secondly, his royal _authority_; and, lastly, his royal _income_. These are necessary, to secure reverence to his person, obedience to his commands, and an affluent supply for the ordinary expenses of government; without all of which it is impossible to maintain the executive power in due independence and vigour. Yet, in every branch of this large and extensive dominion, our free constitution has interposed such seasonable checks and restrictions, as may curb it from trampling on those liberties, which it was meant to secure and establish. The enormous weight of prerogative (if left to itself, as in arbitrary government it is) spreads havoc and destruction among all the inferior movements: but, when balanced and bridled (as with us) by it's proper counterpoise, timely and judiciously applied, it's operations are then equable and regular, it invigorates the whole machine, and enables every part to answer the end of it's construction.

IN the present chapter we shall only consider the two first of these divisions, which relate to the king's political _character_ and _authority_; or, in other words, his _dignity_ and regal _power_; to which last the name of prerogative is frequently narrowed and confined. The other division, which forms the royal _revenue_, will require a distinct examination; according to the known distribution of the feodal writers, who distinguish the royal prerogatives into the _majora_ and _minora regalia_, in the latter of which classes the rights of the revenue are ranked. For, to use their own words, "_majora regalia imperii praeeminentiam spectant; minora vero ad commodum pecuniarium immediate attinent; et haec proprie fiscalia sunt, et ad jus fisci pertinent_[k]."

[Footnote k: _Peregrin. de jure fisc._ _l._ 1. _c._ i. _num._ 9.]

FIRST, then, of the royal dignity. Under every monarchical establishment, it is necessary to distinguish the prince from his subjects, not only by the outward pomp and decorations of majesty, but also by ascribing to him certain qualities, as inherent in his royal capacity, distinct from and superior to those of any other individual in the nation. For, though a philosophical mind will consider the royal person merely as one man appointed by mutual consent to preside over many others, and will pay him that reverence and duty which the principles of society demand, yet the mass of mankind will be apt to grow insolent and refractory, if taught to consider their prince as a man of no greater perfection than themselves. The law therefore ascribes to the king, in his high political character, not only large powers and emoluments which form his prerogative and revenue, but likewise certain attributes of a great and transcendent nature; by which the people are led to consider him in the light of a superior being, and to pay him that awful respect, which may enable him with greater ease to carry on the business of government. This is what I understand by the royal dignity, the several branches of which we will now proceed to examine.

I. AND, first, the law ascribes to the king the attribute of _sovereignty_, or pre-eminence. "_Rex est vicarius_," says Bracton[l], "_et minister Dei in terra: omnis quidem sub eo est, et ipse sub nullo, nisi tantum sub Deo._" He is said to have _imperial_ dignity, and in charters before the conquest is frequently stiled _basileus_ and _imperator_, the titles respectively assumed by the emperors of the east and west[m]. His realm is declared to be an _empire_, and his crown imperial, by many acts of parliament, particularly the statutes 24 Hen. VIII. c. 12. and 25 Hen. VIII. c. 28; which at the same time declare the king to be the supreme head of the realm in matters both civil and ecclesiastical, and of consequence inferior to no man upon earth, dependent on no man, accountable to no man. Formerly there prevailed a ridiculous notion, propagated by the German and Italian civilians, that an emperor could do many things which a king could not, (as the creation of notaries and the like) and that all kings were in some degree subordinate and subject to the emperor of Germany or Rome. The meaning therefore of the legislature, when it uses these terms of _empire_ and _imperial_, and applies them to the realm of England, is only to assert that our king is equally sovereign and independent within these his dominions, as any emperor is in his empire; and owes no kind of subjection to any other potentate upon earth. Hence it is, that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him. For all jurisdiction implies superiority of power: authority to try would be vain and idle, without an authority to redress; and the sentence of a court would be contemptible, unless that court had power to command the execution of it: but who, says Finch[n], shall command the king? Hence it is likewise, that by law the person of the king is sacred, even though the measures pursued in his reign be completely tyrannical and arbitrary: for no jurisdiction upon earth has power to try him in a criminal way; much less to condemn him to punishment. If any foreign jurisdiction had this power, as was formerly claimed by the pope, the independence of the kingdom would be no more: and, if such a power were vested in any domestic tribunal, there would soon be an end of the constitution, by destroying the free agency of one of the constituent parts of the sovereign legislative power.

[Footnote l: _l._ 1. _c._ 8.]

[Footnote m: Seld. tit. of hon. 1. 2.]

[Footnote n: Finch. L. 83.]

ARE then, it may be asked, the subjects of England totally destitute of remedy, in case the crown should invade their rights, either by private injuries, or public oppressions? To this we may answer, that the law has provided a remedy in both cases.

AND, first, as to private injuries; if any person has, in point of property, a just demand upon the king, he must petition him in his court of chancery, where his chancellor will administer right as a matter of grace, though not upon compulsion[o]. And this is entirely consonant to what is laid down by the writers on natural law. "A subject, says Puffendorf[p], so long as he continues a subject, hath no way to _oblige_ his prince to give him his due, when he refuses it; though no wise prince will ever refuse to stand to a lawful contract. And, if the prince gives the subject leave to enter an action against him, upon such contract, in his own courts, the action itself proceeds rather upon natural equity, than upon the municipal laws." For the end of such action is not to _compel_ the prince to observe the contract, but to _persuade_ him. And, as to personal wrongs; it is well observed by Mr Locke[q], "the harm which the sovereign can do in his own person not being likely to happen often, nor to extend itself far; nor being able by his single strength to subvert the laws, nor oppress the body of the people, (should any prince have so much weakness and ill nature as to endeavour to do it)--the inconveniency therefore of some

## particular mischiefs, that may happen sometimes, when a heady prince

comes to the throne, are well recompensed by the peace of the public and security of the government, in the person of the chief magistrate being thus set out of the reach of danger."

[Footnote o: Finch. L. 255.]

[Footnote p: Law of N. and N. l. 8. c. 10.]

[Footnote q: on Gov. p. 2. §. 205.]

NEXT, as to cases of ordinary public oppression, where the vitals of the constitution are not attacked, the law hath also assigned a remedy. For, as a king cannot misuse his power, without the advice of evil counsellors, and the assistance of wicked ministers, these men may be examined and punished. The constitution has therefore provided, by means of indictments, and parliamentary impeachments, that no man shall dare to assist the crown in contradiction to the laws of the land. But it is at the same time a maxim in those laws, that the king himself can do no wrong; since it would be a great weakness and absurdity in any system of positive law, to define any possible wrong, without any possible redress.

FOR, as to such public oppressions as tend to dissolve the constitution, and subvert the fundamentals of government, they are cases which the law will not, out of decency, suppose; being incapable of distrusting those, whom it has invested with any part of the supreme power; since such distrust would render the exercise of that power precarious and impracticable. For, whereever [Transcriber's Note: wherever] the law expresses it's distrust of abuse of power, it always vests a superior coercive authority in some other hand to correct it; the very notion of which destroys the idea of sovereignty. If therefore (for example) the two houses of parliament, or either of them, had avowedly a right to animadvert on the king, or each other, or if the king had a right to animadvert on either of the houses, that branch of the legislature, so subject to animadversion, would instantly cease to be part of the supreme power; the ballance of the constitution would be overturned; and that branch or branches, in which this jurisdiction resided, would be completely sovereign. The supposition of _law_ therefore is, that neither the king nor either house of parliament (collectively taken) is capable of doing any wrong; since in such cases the law feels itself incapable of furnishing any adequate remedy. For which reason all oppressions, which may happen to spring from any branch of the sovereign power, must necessarily be out of the reach of any _stated rule_, or _express legal_ provision: but, if ever they unfortunately happen, the prudence of the times must provide new remedies upon new emergencies.

INDEED, it is found by experience, that whenever the unconstitutional oppressions, even of the sovereign power, advance with gigantic strides and threaten desolation to a state, mankind will not be reasoned out of the feelings of humanity; nor will sacrifice their liberty by a scrupulous adherence to those political maxims, which were originally established to preserve it. And therefore, though the positive laws are silent, experience will furnish us with a very remarkable case, wherein nature and reason prevailed. When king James the second invaded the fundamental constitution of the realm, the convention declared an abdication, whereby the throne was rendered vacant, which induced a new settlement of the crown. And so far as this precedent leads, and no farther, we may now be allowed to lay down the _law_ of redress against public oppression. If therefore any future prince should endeavour to subvert the constitution by breaking the original contract between king and people, should violate the fundamental laws, and should withdraw himself out of the kingdom; we are now authorized to declare that this conjunction of circumstances would amount to an abdication, and the throne would be thereby vacant. But it is not for us to say, that any one, or two, of these ingredients would amount to such a situation; for there our precedent would fail us. In these therefore, or other circumstances, which a fertile imagination may furnish, since both law and history are silent, it becomes us to be silent too; leaving to future generations, whenever necessity and the safety of the whole shall require it, the exertion of those inherent (though latent) powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish.

II. BESIDES the attribute of sovereignty, the law also ascribes to the king, in his political capacity, absolute _perfection_. The king can do no wrong. Which antient and fundamental maxim is not to be understood, as if every thing transacted by the government was of course just and lawful, but means only two things. First, that whatever is exceptionable in the conduct of public affairs is not to be imputed to the king, nor is he answerable for it personally to his people: for this doctrine would totally destroy that constitutional independence of the crown, which is necessary for the balance of power, in our free and active, and therefore compounded, constitution. And, secondly, it means that the prerogative of the crown extends not to do any injury: it is created for the benefit of the people, and therefore cannot be exerted to their prejudice[r].

[Footnote r: Plowd. 487.]

THE king, moreover, is not only incapable of _doing_ wrong, but even of _thinking_ wrong: he can never mean to do an improper thing: in him is no folly or weakness. And therefore, if the crown should be induced to grant any franchise or privilege to a subject contrary to reason, or in any wise prejudicial to the commonwealth, or a private person, the law will not suppose the king to have meant either an unwise or an injurious action, but declares that the king was deceived in his grant; and thereupon such grant is rendered void, merely upon the foundation of fraud and deception, either by or upon those agents, whom the crown has thought proper to employ. For the law will not cast an imputation on that magistrate whom it entrusts with the executive power, as if he was capable of intentionally disregarding his trust: but attributes to mere imposition (to which the most perfect of sublunary beings must still continue liable) those little inadvertencies, which, if charged on the will of the prince, might lessen him in the eyes of his subjects.

YET still, notwithstanding this personal perfection, which the law attributes to the sovereign, the constitution has allowed a latitude of supposing the contrary, in respect to both houses of parliament; each of which, in it's turn, hath exerted the right of remonstrating and complaining to the king even of those acts of royalty, which are most properly and personally his own; such as messages signed by himself, and speeches delivered from the throne. And yet, such is the reverence which is paid to the royal person, that though the two houses have an undoubted right to consider these acts of state in any light whatever, and accordingly treat them in their addresses as personally proceeding from the prince, yet, among themselves, (to preserve the more perfect decency, and for the greater freedom of debate) they usually suppose them to flow from the advice of the administration. But the privilege of canvassing thus freely the personal acts of the sovereign (either directly, or even through the medium of his reputed advisers) belongs to no individual, but is confined to those august assemblies: and there too the objections must be proposed with the utmost respect and deference. One member was sent to the tower[s], for suggesting that his majesty's answer to the address of the commons contained "high words, to fright the members out of their duty;" and another[t], for saying that a part of the king's speech "seemed rather to be calculated for the meridian of Germany than Great Britain."

[Footnote s: Com. Journ. 18 Nov. 1685.]

[Footnote t: Com. Journ. 4 Dec. 1717.]

IN farther pursuance of this principle, the law also determines that in the king can be no negligence, or _laches_, and therefore no delay will bar his right. _Nullum tempus occurrit regi_ is the standing maxim upon all occasions: for the law intends that the king is always busied for the public good, and therefore has not leisure to assert his right within the times limited to subjects[u]. In the king also can be no stain or corruption of blood: for if the heir to the crown were attainted of treason or felony, and afterwards the crown should descend to him, this would purge the attainder _ipso facto_[w]. And therefore when Henry VII, who as earl of Richmond stood attainted, came to the crown, it was not thought necessary to pass an act of parliament to reverse this attainder; because, as lord Bacon in his history of that prince informs us, it was agreed that the assumption of the crown had at once purged all attainders. Neither can the king in judgment of law, as king, ever be a minor or under age; and therefore his royal grants and assents to acts of parliament are good, though he has not in his natural capacity attained the legal age of twenty one[x]. By a statute indeed, 28 Hen. VIII. c. 17. power was given to future kings to rescind and revoke all acts of parliament that should be made while they were under the age of twenty four: but this was repealed by the statute 1 Edw. VI. c. 11. so far as related to that prince; and both statutes are declared to be determined by 24 Geo. II. c. 24. It hath also been usually thought prudent, when the heir apparent has been very young, to appoint a protector, guardian, or regent, for a limited time: but the very necessity of such extraordinary provision is sufficient to demonstrate the truth of that maxim of the common law, that in the king is no minority; and therefore he hath no legal guardian[y].

[Footnote u: Finch. L. 82. Co. Litt. 90 _b._]

[Footnote w: Finch. L. 82.]

[Footnote x: Co. Litt. 43.]

[Footnote y: The methods of appointing this guardian or regent have been so various, and the duration of his power so uncertain, that from thence alone it may be collected that his office is unknown to the common law; and therefore (as sir Edward Coke says, 4 Inst. 58.) the surest way is to have him made by authority of the great council in parliament. The earl of Pembroke by his own authority assumed, in very troublesome times, the regency of Henry III, who was then only nine years old; but was declared of full age by the pope at seventeen, confirmed the great charter at eighteen, and took upon him the administration of the government at twenty. A guardian and council of regency were named for Edward III, by the parliament which deposed his father; the young king being then fifteen, and not assuming the government till three years after. When Richard II succeeded at the age of eleven, the duke of Lancaster took upon him the management of the kingdom, till the parliament met, which appointed a nominal council to assist him. Henry V on his death-bed named a regent and a guardian for his infant son Henry VI, then nine months old: but the parliament altered his disposition, and appointed a protector and council, with a special limited authority. Both these princes remained in a state of pupillage till the age of twenty three. Edward V, at the age of thirteen, was recommended by his father to the care of the duke of Glocester; who was declared protector by the privy council. The statutes 25 Hen. VIII. c. 12. and 28 Hen. VIII. c. 7. provided, that the successor, if a male and under eighteen, or if a female and under sixteen, should be till such age in the governance of his or her natural mother, (if approved by the king) and such other counsellors as his majesty should by will or otherwise appoint: and he accordingly appointed his sixteen executors to have the government of his son, Edward VI, and the kingdom; which executors elected the earl of Hertford protector. The statute 24 Geo. II. c. 24. in case the crown should descend to any of the children of Frederick late prince of Wales under the age of eighteen, appoints the princess dowager;--and that of 5 Geo. III. c. 27. in case of a like descent to any of his present majesty's children, empowers the king to name either the queen, the princess dowager, or any descendant of king George II residing in this kingdom;--to be guardian and regent, till the successor attains such age, assisted by a council of regency: the powers of them all being expressly defined and set down in the several acts.]

III. A THIRD attribute of the king's majesty is his _perpetuity_. The law ascribes to him, in his political capacity, an absolute immortality. The king never dies. Henry, Edward, or George may die; but the king survives them all. For immediately upon the decease of the reigning prince in his natural capacity, his kingship or imperial dignity, by act of law, without any _interregnum_ or interval, is vested at once in his heir; who is, _eo instanti_, king to all intents and purposes. And so tender is the law of supposing even a possibility of his death, that his natural dissolution is generally called his _demise_; _dimissio regis, vel coronae_: an expression which signifies merely a transfer of property; for, as is observed in Plowden[z], when we say the demise of the crown, we mean only that in consequence of the disunion of the king's body natural from his body politic, the kingdom is transferred or demised to his successor; and so the royal dignity remains perpetual. Thus too, when Edward the fourth, in the tenth year of his reign, was driven from his throne for a few months by the house of Lancaster, this temporary transfer of his dignity was denominated his _demise_; and all process was held to be discontinued, as upon a natural death of the king[a].

[Footnote z: Plowd. 177. 234.]

[Footnote a: M. 49 Hen. VI. pl. 1-8.]

WE are next to consider those branches of the royal prerogative, which invest this our sovereign lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers; in the exertion whereof consists the executive part of government. This is wisely placed in a single hand by the British constitution, for the sake of unanimity, strength and dispatch. Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government: and to unite those several wills, and reduce them to one, is a work of more time and delay than the exigencies of state will afford. The king of England is therefore not only the chief, but properly the sole, magistrate of the nation; all others acting by commission from, and in due subordination to him: in like manner as, upon the great revolution in the Roman state, all the powers of the antient magistracy of the commonwealth were concentred in the new emperor; so that, as Gravina[b] expresses it, "_in ejus unius persona veteris reipublicae vis atque majestas per cumulatas magistratuum potestates exprimebatur_."

[Footnote b: _Orig._ 1. §. 105.]

AFTER what has been premised in this chapter, I shall not (I trust) be considered as an advocate for arbitrary power, when I lay it down as a principle, that in the exertion of lawful prerogative, the king is and ought to be absolute; that is, so far absolute, that there is no legal authority that can either delay or resist him. He may reject what bills, may make what treaties, may coin what money, may create what peers, may pardon what offences he pleases: unless where the constitution hath expressly, or by evident consequence, laid down some exception or boundary; declaring, that thus far the prerogative shall go and no farther. For otherwise the power of the crown would indeed be but a name and a shadow, insufficient for the ends of government, if, where it's jurisdiction is clearly established and allowed, any man or body of men were permitted to disobey it, in the ordinary course of law: I say, in the _ordinary_ course of law; for I do not now speak of those _extraordinary_ recourses to first principles, which are necessary when the contracts of society are in danger of dissolution, and the law proves too weak a defence against the violence of fraud or oppression. And yet the want of attending to this obvious distinction has occasioned these doctrines, of absolute power in the prince and of national resistance by the people, to be much misunderstood and perverted by the advocates for slavery on the one hand, and the demagogues of faction on the other. The former, observing the absolute sovereignty and transcendent dominion of the crown laid down (as it certainly is) most strongly and emphatically in our lawbooks, as well as our homilies, have denied that any case can be excepted from so general and positive a rule; forgetting how impossible it is, in any practical system of laws, to point out beforehand those eccentrical remedies, which the sudden emergence of national distress may dictate, and which that alone can justify. On the other hand, over-zealous republicans, feeling the absurdity of unlimited passive obedience, have fancifully (or sometimes factiously) gone over to the other extreme: and, because resistance is justifiable to the person of the prince when the being of the state is endangered, and the public voice proclaims such resistance necessary, they have therefore allowed to every individual the right of determining this expedience, and of employing private force to resist even private oppression. A doctrine productive of anarchy, and (in consequence) equally fatal to civil liberty as tyranny itself. For civil liberty, rightly understood, consists in protecting the rights of individuals by the united force of society: society cannot be maintained, and of course can exert no protection, without obedience to some sovereign power: and obedience is an empty name, if every individual has a right to decide how far he himself shall obey.

IN the exertion therefore of those prerogatives, which the law has given him, the king is irresistible and absolute, according to the forms of the constitution. And yet, if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the parliament will call his advisers to a just and severe account. For prerogative consisting (as Mr Locke[c] has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent, if that discretionary power be abused to the public detriment, such prerogative is exerted in an unconstitutional manner. Thus the king may make a treaty with a foreign state, which shall irrevocably bind the nation; and yet, when such treaties have been judged pernicious, impeachments have pursued those ministers, by whose agency or advice they were concluded.

[Footnote c: on Gov. 2. §. 166.]

THE prerogatives of the crown (in the sense under which we are now considering them) respect either this nation's intercourse with foreign nations, or it's own domestic government and civil polity.

WITH regard to foreign concerns, the king is the delegate or representative of his people. It is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally numerous as themselves. Unanimity must be wanting to their measures, and strength to the execution of their counsels. In the king therefore, as in a center, all the rays of his people are united, and form by that union a consistency, splendor, and power, that make him feared and respected by foreign potentates; who would scruple to enter into any engagements, that must afterwards be revised and ratified by a popular assembly. What is done by the royal authority, with regard to foreign powers, is the act of the whole nation: what is done without the king's concurrence is the act only of private men. And so far is this point carried by our law, that it hath been held[d], that should all the subjects of England make war with a king in league with the king of England, without the royal assent, such war is no breach of the league. And, by the statute 2 Hen. V. c. 6. any subject committing acts of hostility upon any nation in league with the king, was declared to be guilty of high treason: and, though that act was repealed by the statute 20 Hen. VI. c. 11. so far as relates to the making this offence high treason, yet still it remains a very great offence against the law of nations, and punishable by our laws, either capitally or otherwise, according to the circumstances of the case.

[Footnote d: 4 Inst. 152.]

I. THE king therefore, considered as the representative of his people, has the sole power of sending embassadors to foreign states, and receiving embassadors at home. This may lead us into a short enquiry, how far the municipal laws of England intermeddle with or protect the rights of these messengers from one potentate to another, whom we call embassadors.

THE rights, the powers, the duties, and the privileges of embassadors are determined by the law of nature and nations, and not by any municipal constitutions. For, as they represent the persons of their respective masters, who owe no subjection to any laws but those of their own country, their actions are not subject to the control of the private law of that state, wherein they are appointed to reside. He that is subject to the coercion of laws is necessarily dependent on that power by whom those laws were made: but an embassador ought to be independent of every power, except that by which he is sent; and of consequence ought not to be subject to the mere municipal laws of that nation, wherein he is to exercise his functions. If he grossly offends, or makes an ill use of his character, he may be sent home and accused before his master[e]; who is bound either to do justice upon him, or avow himself the accomplice of his crimes[f]. But there is great dispute among the writers on the laws of nations, whether this exemption of embassadors extends to all crimes, as well natural as positive; or whether it only extends to such as are _mala prohibita_, as coining, and not to those that are _mala in se_, as murder[g]. Our law seems to have formerly taken in the restriction, as well as the general exemption. For it has been held, both by our common lawyers and civilians[h], that an embassador is privileged by the law of nature and nations; and yet, if he commits any offence against the law of reason and nature, he shall lose his privilege[i]: and that therefore, if an embassador conspires the death of the king in whose land he is, he may be condemned and executed for treason; but if he commits any other species of treason, it is otherwise, and he must be sent to his own kingdom[k]. And these positions seem to be built upon good appearance of reason. For since, as we have formerly shewn, all municipal laws act in subordination to the primary law of nature, and, where they annex a punishment to natural crimes, are only declaratory of and auxiliary to that law; therefore to this natural, universal rule of justice embassadors, as well as other men, are subject in all countries; and of consequence it is reasonable that wherever they transgress it, there they shall be liable to make atonement[l]. But, however these principles might formerly obtain, the general practice of Europe seems now to have adopted the sentiments of the learned Grotius, that the security of embassadors is of more importance than the punishment of a particular crime[m]. And therefore few, if any, examples have happened within a century past, where an embassador has been punished for any offence, however atrocious in it's nature.

[Footnote e: As was done with count Gyllenberg the Swedish minister to Great Britain, _A.D._ 1716.]

[Footnote f: Sp. L. 26. 21.]

[Footnote g: Van Leeuwen _in Ff._ 50. 7. 17. Barbeyrac's Puff. l. 8. c. 9. §. 9. & 17. Van Bynkershoek _de foro legator._ c. 17, 18, 19.]

[Footnote h: 1 Roll. Rep. 175. 3 Bulstr. 27.]

[Footnote i: 4 Inst. 153.]

[Footnote k: 1 Roll. Rep. 185.]

[Footnote l: Foster's reports. 188.]

[Footnote m: _Securitas legatorum utilitati quae ex poena est praeponderat._ _de jur. b. & p._ 2. 18. 4. 4.]

IN respect to civil suits, all the foreign jurists agree, that neither an embassador, nor any of his train or _comites_, can be prosecuted for any debt or contract in the courts of that kingdom wherein he is sent to reside. Yet sir Edward Coke maintains, that, if an embassador make a contract which is good _jure gentium_, he shall answer for it here[n]. And the truth is, we find no traces in our lawbooks of allowing any privilege to embassadors or their domestics, even in civil suits, previous to the reign of queen Anne; when an embassador from Peter the great, czar of Muscovy, was actually arrested and taken out of his coach in London, in 1708, for debts which he had there contracted. This the czar resented very highly, and demanded (we are told) that the officers who made the arrest should be punished with death. But the queen (to the amazement of that despotic court) directed her minister to inform him, "that the law of England had not yet protected embassadors from the payment of their lawful debts; that therefore the arrest was no offence by the laws; and that she could inflict no punishment upon any, the meanest, of her subjects, unless warranted by the law of the land[o]." To satisfy however the clamours of the foreign ministers (who made it a common cause) as well as to appease the wrath of Peter[p], a new statute was enacted by parliament[q], reciting the arrest which had been made, "in contempt of the protection granted by her majesty, contrary to the law of nations, and in prejudice of the rights and privileges, which embassadors and other public ministers have at all times been thereby possessed of, and ought to be kept sacred and inviolable:" wherefore it enacts, that for the future all process whereby the person of any embassador, or of his domestic or domestic servant, may be arrested, or his goods distreined or seised, shall be utterly null and void; and the persons prosecuting, soliciting, or executing such process shall be deemed violaters of the law of nations, and disturbers of the public repose; and shall suffer such penalties and corporal punishment as the lord chancellor and the two chief justices, or any two of them, shall think fit. But it is expressly provided, that no trader, within the description of the bankrupt laws, who shall be in the service of any embassador, shall be privileged or protected by this act; nor shall any one be punished for arresting an embassador's servant, unless his name be registred with the secretary of state, and by him transmitted to the sheriffs of London and Middlesex. Exceptions, that are strictly conformable to the rights of embassadors[r], as observed in the most civilized countries. And, in consequence of this statute, thus enforcing the law of nations, these privileges are now usually allowed in the courts of common law[s].

[Footnote n: 4 Inst. 153.]

[Footnote o: Mod. Un. Hist. xxxv. 454.]

[Footnote p: A copy of the act made upon this occasion, very elegantly engrossed and illuminated, was sent him to Moscow as a present.]

[Footnote q: 7 Ann. c. 12.]

[Footnote r: _Saepe quaesitum est an comitum numero et jure habendi sunt, qui legatum comitantur, non ut instructior fiat legatio, sed unice ut lucro suo consulant, institores forte et mercatores. Et, quamvis hos saepe defenderint et comitum loco habere voluerint legati, apparet tamen satis eo non pertinere, qui in legati legationisve officio non sunt. Quum autem ea res nonnunquam turbas dederit, optimo exemplo in quibusdam aulis olim receptum fuit, ut legatus teneretur exhibere nomenclaturam comitum suorum._ Van Bynkersh. _c._ 15. _prope finem_.]

[Footnote s: Fitzg. 200. Stra. 797.]

II. IT is also the king's prerogative to make treaties, leagues, and alliances with foreign states and princes. For it is by the law of nations essential to the goodness of a league, that it be made by the sovereign power[t]; and then it is binding upon the whole community: and in England the sovereign power, _quoad hoc_, is vested in the person of the king. Whatever contracts therefore he engages in, no other power in the kingdom can legally delay, resist, or annul. And yet, lest this plenitude of authority should be abused to the detriment of the public, the constitution (as was hinted before) hath here interposed a check, by the means of parliamentary impeachment, for the punishment of such ministers as advise or conclude any treaty, which shall afterwards be judged to derogate from the honour and interest of the nation.

[Footnote t: Puff. L. of N. b. 8. c. 9. §. 6.]

III. UPON the same principle the king has also the sole prerogative of making war and peace. For it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power[u]: and this right is given up not only by individuals, but even by the intire body of people, that are under the dominion of a sovereign. It would indeed be extremely improper, that any number of subjects should have the power of binding the supreme magistrate, and putting him against his will in a state of war. Whatever hostilities therefore may be committed by private citizens, the state ought not to be affected thereby; unless that should justify their proceedings, and thereby become partner in the guilt. Such unauthorized voluntiers in violence are not ranked among open enemies, but are treated like pirates and robbers: according to that rule of the civil law[w]; _hostes hi sunt qui nobis, aut quibus nos, publice bellum decrevimus: caeteri latrones aut praedones sunt_. And the reason which is given by Grotius[x], why according to the law of nations a denunciation of war ought always to precede the actual commencement of hostilities, is not so much that the enemy may be put upon his guard, (which is matter rather of magnanimity than right) but that it may be certainly clear that the war is not undertaken by private persons, but by the will of the whole community; whose right of willing is in this case transferred to the supreme magistrate by the fundamental laws of society. So that, in order to make a war completely effectual, it is necessary with us in England that it be publicly declared and duly proclaimed by the king's authority; and, then, all parts of both the contending nations, from the highest to the lowest, are bound by it. And, wherever the right resides of beginning a national war, there also must reside the right of ending it, or the power of making peace. And the same check of parliamentary impeachment, for improper or inglorious conduct, in beginning, conducting, or concluding a national war, is in general sufficient to restrain the ministers of the crown from a wanton or injurious exertion of this great prerogative.

[Footnote u: Puff. l. 8. c. 6. §. 8. and Barbeyr. _in loc._]

[Footnote w: _Ff._ 50. 16. 118.]

[Footnote x: _de jur. b. & p._ _l._ 3. _c._ 3. §. 11.]

IV. BUT, as the delay of making war may sometimes be detrimental to individuals who have suffered by depredations from foreign potentates, our laws have in some respect armed the subject with powers to impel the prerogative; by directing the ministers of the crown to issue letters of marque and reprisal upon due demand: the prerogative of granting which is nearly related to, and plainly derived from, that other of making war; this being indeed only an incomplete state of hostilities, and generally ending in a formal denunciation of war. These letters are grantable by the law of nations[y], whenever the subjects of one state are oppressed and injured by those of another; and justice is denied by that state to which the oppressor belongs. In this case letters of marque and reprisal (words in themselves synonimous and signifying a taking in return) may be obtained, in order to seise the bodies or goods of the subjects of the offending state, until satisfaction be made, wherever they happen to be found. Indeed this custom of reprisals seems dictated by nature herself; and accordingly we find in the most antient times very notable instances of it[z]. But here the necessity is obvious of calling in the sovereign power, to determine when reprisals may be made; else every private sufferer would be a judge in his own cause. And, in pursuance of this principle, it is with us declared by the statute 4 Hen. V. c. 7. that, if any subjects of the realm are oppressed in time of truce by any foreigners, the king will grant marque in due form, to all that feel themselves grieved. Which form is thus directed to be observed: the sufferer must first apply to the lord privy-seal, and he shall make out letters of request under the privy seal; and, if, after such request of satisfaction made, the party required do not within convenient time make due satisfaction or restitution to the party grieved, the lord chancellor shall make him out letters of marque under the great seal; and by virtue of these he may attack and seise the property of the aggressor nation, without hazard of being condemned as a robber or pirate.

[Footnote y: Grot. _de jur. b. & p._ _l._ 3. _c._ 2. §. 4 & 5.]

[Footnote z: See the account given by Nestor, in the eleventh book of the Iliad, of the reprisals made by himself on the Epeian nation; from whom he took a multitude of cattle, as a satisfaction for a prize won at the Elian games by his father Neleus, and for debts due to many private subjects of the Pylian kingdom: out of which booty the king took three hundred head of cattle for his own demand, and the rest were equitably divided among the other creditors.]

V. UPON exactly the same reason stands the prerogative of granting safe-conducts, without which by the law of nations no member of one society has a right to intrude into another. And therefore Puffendorf very justly resolves[a], that it is left in the power of all states, to take such measures about the admission of strangers, as they think convenient; those being ever excepted who are driven on the coasts by necessity, or by any cause that deserves pity or compassion. Great tenderness is shewn by our laws, not only to foreigners in distress (as will appear when we come to speak of shipwrecks) but with regard also to the admission of strangers who come spontaneously. For so long as their nation continues at peace with ours, and they themselves behave peaceably, they are under the king's protection; though liable to be sent home whenever the king sees occasion. But no subject of a nation at war with us can, by the law of nations, come into the realm, nor can travel himself upon the high seas, or send his goods and merchandize from one place to another, without danger of being seized by our subjects, unless he has letters of safe-conduct; which by divers antient statutes[b] must be granted under the king's great seal and inrolled in chancery, or else are of no effect: the king being supposed the best judge of such emergencies, as may deserve exception from the general law of arms.

[Footnote a: Law of N. and N. b. 3. c. 3. §. 9.]

[Footnote b: 15 Hen. VI. c. 3. 18 Hen. VI. c. 8. 20 Hen. VI. c. 1.]

INDEED the law of England, as a commercial country, pays a very

## particular regard to foreign merchants in innumerable instances. One I

cannot omit to mention: that by _magna carta_[c] it is provided, that all merchants (unless publickly prohibited beforehand) shall have safe conduct to depart from, to come into, to tarry in, and to go through England, for the exercise of merchandize, without any unreasonable imposts, except in time of war: and, if a war breaks out between us and their country, they shall be attached (if in England) without harm of body or goods, till the king or his chief justiciary be informed how our merchants are treated in the land with which we are at war; and, if ours be secure in that land, they shall be secure in ours. This seems to have been a common rule of equity among all the northern nations; for we learn from Stiernhook[d], that it was a maxim among the Goths and Swedes, "_quam legem exteri nobis posuere, eandem illis ponemus_." But it is somewhat extraordinary, that it should have found a place in _magna carta_, a mere interior treaty between the king and his natural-born subjects; which occasions the learned Montesquieu to remark with a degree of admiration, "that the English have made the protection of _foreign_ merchants one of the articles of their _national_ liberty[e]." But indeed it well justifies another observation which he has made[f], "that the English know better than any other people upon earth, how to value at the same time these three great advantages, religion, liberty, and commerce." Very different from the genius of the Roman people; who in their manners, their constitution, and even in their laws, treated commerce as a dishonorable employment, and prohibited the exercise thereof to persons of birth, or rank, or fortune[g]: and equally different from the bigotry of the canonists, who looked on trade as inconsistent with christianity[h], and determined at the council of Melfi, under pope Urban II, _A.D._ 1090, that it was impossible with a safe conscience to exercise any traffic, or follow the profession of the law[i].

[Footnote c: _c._ 30.]

[Footnote d: _de jure Sueon._ _l._ 3. _c._ 4.]

[Footnote e: Sp. L. 20. 13.]

[Footnote f: Sp. L. 20. 6.]

[Footnote g: _Nobiliores natalibus, et honorum luce conspicuos, et patrimonio ditiores, perniciosum urbibus mercimonium exercere prohibemus._ _C._ 4 63. 3.]

[Footnote h: _Homo mercator vix aut nunquam potest Deo placere: et ideo nullus Christianus debet esse mercator; aut si voluerit esse, projiciatur de ecclesia Dei._ _Decret._ 1. 88. 11.]

[Footnote i: _Falsa fit poenitentia [laici] cum penitus ab officio curiali vel negotiali non recedit, quae sine peccatis agi ulla ratione non praevalet._ _Act. Concil. apud Baron._ _c._ 16.]

THESE are the principal prerogatives of the king, respecting this nation's intercourse with foreign nations; in all of which he is considered as the delegate or representative of his people. But in domestic affairs he is considered in a great variety of characters, and from thence there arises an abundant number of other prerogatives.

I. FIRST, he is a constituent part of the supreme legislative power; and, as such, has the prerogative of rejecting such provisions in parliament, as he judges improper to be passed. The expediency of which constitution has before been evinced at large[k]. I shall only farther remark, that the king is not bound by any act of parliament, unless he be named therein by special and particular words. The most general words that can be devised ("any person or persons, bodies politic, or corporate, _&c._") affect not him in the least, if they may tend to restrain or diminish any of his rights or interests[l]. For it would be of most mischievous consequence to the public, if the strength of the executive power were liable to be curtailed without it's own express consent, by constructions and implications of the subject. Yet where an act of parliament is expressly made for the preservation of public rights and the suppression of public wrongs, and does not interfere with the established rights of the crown, it is said to be binding as well upon the king as upon the subject[m]: and, likewise, the king may take the benefit of any particular act, though he be not especially named[n].

[Footnote k: ch. 2. pag. 149.]

[Footnote l: 11 Rep. 74 _b._]

[Footnote m: 11 Rep. 71.]

[Footnote n: 7 Rep. 32.]

II. THE king is considered, in the next place, as the generalissimo, or the first in military command, within the kingdom. The great end of society is to protect the weakness of individuals by the united strength of the community: and the principal use of government is to direct that united strength in the best and most effectual manner, to answer the end proposed. Monarchical government is allowed to be the fittest of any for this purpose: it follows therefore, from the very end of it's institution, that in a monarchy the military power must be trusted in the hands of the prince.

IN this capacity therefore, of general of the kingdom, the king has the sole power of raising and regulating fleets and armies. Of the manner in which they are raised and regulated I shall speak more, when I come to consider the military state. We are now only to consider the prerogative of enlisting and of governing them: which indeed was disputed and claimed, contrary to all reason and precedent, by the long parliament of king Charles I; but, upon the restoration of his son, was solemnly declared by the statute 13 Car. II. c. 6. to be in the king alone: for that the sole supreme government and command of the militia within all his majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the undoubted right of his majesty, and his royal predecessors, kings and queens of England; and that both or either house of parliament cannot, nor ought to, pretend to the same.

THIS statute, it is obvious to observe, extends not only to fleets and armies, but also to forts, and other places of strength, within the realm; the sole prerogative as well of erecting, as manning and governing of which, belongs to the king in his capacity of general of the kingdom[o]: and all lands were formerly subject to a tax, for building of castles wherever the king thought proper. This was one of the three things, from contributing to the performance of which no lands were exempted; and therefore called by our Saxon ancestors the _trinoda necessitas: sc. pontis reparatio, arcis constructio, et expeditio contra hostem_[p]. And this they were called upon to do so often, that, as sir Edward Coke from M. Paris assures us[q], there were in the time of Henry II 1115 castles subsisting in England. The inconvenience of which, when granted out to private subjects, the lordly barons of those times, was severely felt by the whole kingdom; for, as William of Newbury remarks in the reign of king Stephen, "_erant in Anglia quodammodo tot reges vel potius tyranni, quot domini castellorum_:" but it was felt by none more sensibly than by two succeeding princes, king John and king Henry III. And therefore, the greatest part of them being demolished in the barons' wars, the kings of after times have been very cautious of suffering them to be rebuilt in a fortified manner: and sir Edward Coke lays it down[r], that no subject can build a castle, or house of strength imbatteled, or other fortress defensible, without the licence of the king; for the danger which might ensue, if every man at his pleasure might do it.

[Footnote o: 2 Inst. 30.]

[Footnote p: Cowel's interpr. _tit. castellorum operatio_. Seld. _Jan. Angl._ 1. 42.]

[Footnote q: 2 Inst. 31.]

[Footnote r: 1 Inst. 5.]

TO this branch of the prerogative may be referred the power vested in his majesty, by statutes 12 Car. II. c. 4. and 29 Geo. II. c. 16. of prohibiting the exportation of arms or ammunition out of this kingdom, under severe penalties: and likewise the right which the king has, whenever he sees proper, of confining his subjects to stay within the realm, or of recalling them when beyond the seas. By the common law[s], every man may go out of the realm for whatever cause he pleaseth, without obtaining the king's leave; provided he is under no injunction of staying at home: (which liberty was expressly declared in king John's great charter, though left out in that of Henry III) but, because that every man ought of right to defend the king and his realm, therefore the king at his pleasure may command him by his writ that he go not beyond the seas, or out of the realm without licence; and if he do the contrary, he shall be punished for disobeying the king's command. Some persons there antiently were, that, by reason of their stations, were under a perpetual prohibition of going abroad without licence obtained; among which were reckoned all peers, on account of their being counsellors of the crown; all knights, who were bound to defend the kingdom from invasions; all ecclesiastics, who were expressly confined by cap. 4. of the constitutions of Clarendon, on account of their attachment in the times of popery to the see of Rome; all archers and other artificers, lest they should instruct foreigners to rival us in their several trades and manufactures. This was law in the times of Britton[t], who wrote in the reign of Edward I: and sir Edward Coke[u] gives us many instances to this effect in the time of Edward III. In the succeeding reign the affair of travelling wore a very different aspect: an act of parliament being made[w], forbidding all persons whatever to go abroad without licence; _except_ only the lords and other great men of the realm; and true and notable merchants; and the king's soldiers. But this act was repealed by the statute 4 Jac. I. c. 1. And at present every body has, or at least assumes, the liberty of going abroad when he pleases. Yet undoubtedly if the king, by writ of _ne exeat regnum_, under his great seal or privy seal, thinks proper to prohibit him from so doing; or if the king sends a writ to any man, when abroad, commanding his return; and in either case the subject disobeys; it is a high contempt of the king's prerogative, for which the offender's lands shall be seised till he return; and then he is liable to fine and imprisonment[x].

[Footnote s: F.N.B. 85.]

[Footnote t: c. 123.]

[Footnote u: 3 Inst. 175.]

[Footnote w: 5 Ric. II. c. 2.]

[Footnote x: 1 Hawk. P.C. 22.]

III. ANOTHER capacity, in which the king is considered in domestic affairs, is as the fountain of justice and general conservator of the peace of the kingdom. By the fountain of justice the law does not mean the _author_ or _original_, but only the _distributor_. Justice is not derived from the king, as from his _free gift_; but he is the steward of the public, to dispense it to whom it is _due_[y]. He is not the spring, but the reservoir; from whence right and equity are conducted, by a thousand chanels, to every individual. The original power of judicature, by the fundamental principles of society, is lodged in the society at large: but as it would be impracticable to render complete justice to every individual, by the people in their collective capacity, therefore every nation has committed that power to certain select magistrates, who with more ease and expedition can hear and determine complaints; and in England this authority has immemorially been exercised by the king or his substitutes. He therefore has alone the right of erecting courts of judicature: for, though the constitution of the kingdom hath entrusted him with the whole executive power of the laws, it is impossible, as well as improper, that he should personally carry into execution this great and extensive trust: it is consequently necessary, that courts should be erected, to assist him in executing this power; and equally necessary, that, if erected, they should be erected by his authority. And hence it is, that all jurisdictions of courts are either mediately or immediately derived from the crown, their proceedings run generally in the king's name, they pass under his seal, and are executed by his officers.

[Footnote y: _Ad hoc autem creatus est et electus, ut justitiam faciat universis._ Bract. _l._ 3. _tr._ 1. _c._ 9.]

IT is probable, and almost certain, that in very early times, before our constitution arrived at it's full perfection, our kings in person often heard and determined causes between party and party. But at present, by the long and uniform usage of many ages, our kings have delegated their whole judicial power to the judges of their several courts; which are the grand depositary of the fundamental laws of the kingdom, and have gained a known and stated jurisdiction, regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament[z]. And, in order to maintain both the dignity and independence of the judges in the superior courts, it is enacted by the statute 13 W. III. c. 2. that their commissions shall be made (not, as formerly, _durante bene placito_, but) _quamdiu bene se gesserint_, and their salaries ascertained and established; but that it may be lawful to remove them on the address of both houses of parliament. And now, by the noble improvements of that law in the statute of 1 Geo. III. c. 23. enacted at the earnest recommendation of the king himself from the throne, the judges are continued in their offices during their good behaviour, notwithstanding any demise of the crown (which was formerly held[a] immediately to vacate their seats) and their full salaries are absolutely secured to them during the continuance of their commissions: his majesty having been pleased to declare, that "he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as most conducive to the honour of the crown[b]."

[Footnote z: 2 Hawk. P.C. 2.]

[Footnote a: Ld Raym. 747.]

[Footnote b: Com. Journ. 3 Mar. 1761.]

IN criminal proceedings, or prosecutions for offences, it would still be a higher absurdity, if the king personally sate in judgment; because in regard to these he appears in another capacity, that of _prosecutor_. All offences are either against the king's peace, or his crown and dignity; and are so laid in every indictment. For, though in their consequences they generally seem (except in the case of treason and a very few others) to be rather offences against the kingdom than the king; yet, as the public, which is an invisible body, has delegated all it's power and rights, with regard to the execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those rights, are immediately offences against him, to whom they are so delegated by the public. He is therefore the proper person to prosecute for all public offences and breaches of the peace, being the person injured in the eye of the law. And this notion was carried so far in the old Gothic constitution, (wherein the king was bound by his coronation oath to conserve the peace) that in case of any forcible injury offered to the person of a fellow subject, the offender was accused of a kind of perjury, in having violated the king's coronation oath; _dicebatur fregisse juramentum regis juratum_[c]. And hence also arises another branch of the prerogative, that of _pardoning_ offences; for it is reasonable that he only who is injured should have the power of forgiving. And therefore, in parliamentary impeachments, the king has no prerogative of pardoning: because there the commons of Great Britain are in their own names the prosecutors, and not the crown; the offence being for the most part avowedly taken to be done against the public. Of prosecutions and pardons I shall treat more at large hereafter; and only mention them here, in this cursory manner, to shew the constitutional grounds of this power of the crown, and how regularly connected all the links are in this vast chain of prerogative.

[Footnote c: Stiernh. _de jure Goth._ _l._ 3. _c._ 3. A notion somewhat similar to this may be found in the mirrour. c. 1. §. 5.]

IN this distinct and separate existence of the judicial power, in a peculiar body of men, nominated indeed, but not removeable at pleasure, by the crown, consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were it joined with the legislative, the life, liberty, and property, of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an over-ballance for the legislative. For which reason, by the statute of 16 Car. I. c. 10. which abolished the court of star chamber, effectual care is taken to remove all judicial power out of the hands of the king's privy council; who, as then was evident from recent instances, might soon be inclined to pronounce that for law, which was most agreeable to the prince or his officers. Nothing therefore is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of state. And indeed, that the absolute power, claimed and exercised in a neighbouring nation, is more tolerable than that of the eastern empires, is in great measure owing to their having vested the judicial power in their parliaments, a body separate and distinct from both the legislative and executive: and, if ever that nation recovers it's former liberty, it will owe it to the efforts of those assemblies. In Turkey, where every thing is centered in the sultan or his ministers, despotic power is in it's meridian, and wears a more dreadful aspect.

A CONSEQUENCE of this prerogative is the legal _ubiquity_ of the king. His majesty, in the eye of the law, is always present in all his courts, though he cannot personally distribute justice[d]. His judges are the mirror by which the king's image is reflected. It is the regal office, and not the royal person, that is always present in court, always ready to undertake prosecutions, or pronounce judgment, for the benefit and protection of the subject. And from this ubiquity it follows, that the king can never be nonsuit[e]; for a nonsuit is the desertion of the suit or action by the non-appearance of the plaintiff in court. For the same reason also, in the forms of legal proceedings, the king is not said to appear _by his attorney_, as other men do; for he always appears in contemplation of law in his own proper person[f].

[Footnote d: Fortesc. c. 8. 2 Inst. 186.]

[Footnote e: Co. Litt. 139.]

[Footnote f: Finch. L. 81.]

FROM the same original, of the king's being the fountain of justice, we may also deduce the prerogative of issuing proclamations, which is vested in the king alone. These proclamations have then a binding force, when (as Sir Edward Coke observes[g]) they are grounded upon and enforce the laws of the realm. For, though the making of laws is entirely the work of a distinct part, the legislative branch, of the sovereign power, yet the manner, time, and circumstances of putting those laws in execution must frequently be left to the discretion of the executive magistrate. And therefore his constitutions or edicts, concerning these points, which we call proclamations, are binding upon the subject, where they do not either contradict the old laws, or tend to establish new ones; but only enforce the execution of such laws as are already in being, in such manner as the king shall judge necessary. Thus the established law is, that the king may prohibit any of his subjects from leaving the realm: a proclamation therefore forbidding this in general for three weeks, by laying an embargo upon all shipping in time of war[h], will be equally binding as an act of parliament, because founded upon a prior law. A proclamation for disarming papists is also binding, being only in execution of what the legislature has first ordained: but a proclamation for allowing arms to papists, or for disarming any protestant subjects, will not bind; because the first would be to assume a dispensing power, the latter a legislative one; to the vesting of either of which in any single person the laws of England are absolutely strangers. Indeed by the statute 31 Hen. VIII. c. 8. it was enacted, that the king's proclamations should have the force of acts of parliament: a statute, which was calculated to introduce the most despotic tyranny; and which must have proved fatal to the liberties of this kingdom, had it not been luckily repealed in the minority of his successor, about five years after[i].

[Footnote g: 3 Inst. 162.]

[Footnote h: 4 Mod. 177, 179.]

[Footnote i: Stat. 1 Edw. VI. c. 12.]

IV. THE king is likewise the fountain of honour, of office, and of privilege: and this in a different sense from that wherein he is stiled the fountain of justice; for here he is really the parent of them. It is impossible that government can be maintained without a due subordination of rank; that the people may know and distinguish such as are set over them, in order to yield them their due respect and obedience; and also that the officers themselves, being encouraged by emulation and the hopes of superiority, may the better discharge their functions: and the law supposes, that no one can be so good a judge of their several merits and services, as the king himself who employs them. It has therefore intrusted with him the sole power of conferring dignities and honours, in confidence that he will bestow them upon none, but such as deserve them. And therefore all degrees of nobility, of knighthood, and other titles, are received by immediate grant from the crown: either expressed in writing, by writs or letters patent, as in the creations of peers and baronets; or by corporeal investiture, as in the creation of a simple knight.

FROM the same principle also arises the prerogative of erecting and disposing of offices: for honours and offices are in their nature convertible and synonymous. All offices under the crown carry in the eye of the law an honour along with them; because they imply a superiority of parts and abilities, being supposed to be always filled with those that are most able to execute them. And, on the other hand, all honours in their original had duties or offices annexed to them: an earl, _comes_, was the conservator or governor of a county; and a knight, _miles_, was bound to attend the king in his wars. For the same reason therefore that honours are in the disposal of the king, offices ought to be so likewise; and as the king may create new titles, so may he create new offices: but with this restriction, that he cannot create new offices with new fees annexed to them, nor annex new fees to old offices; for this would be a tax upon the subject, which cannot be imposed but by act of parliament[k]. Wherefore, in 13 Hen. IV, a new office being created by the king's letters patent for measuring cloths, with a new fee for the same, the letters patent were, on account of the new fee, revoked and declared void in parliament.

[Footnote k: 2 Inst. 533.]

UPON the same, or a like reason, the king has also the prerogative of conferring privileges upon private persons. Such as granting place or precedence to any of his subjects, as shall seem good to his royal wisdom[l]: or such as converting aliens, or persons born out of the king's dominions, into denizens; whereby some very considerable privileges of natural-born subjects are conferred upon them. Such also is the prerogative of erecting corporations; whereby a number of private persons are united and knit together, and enjoy many liberties, powers, and immunities in their politic capacity, which they were utterly incapable of in their natural. Of aliens, denizens, natural-born, and naturalized subjects, I shall speak more largely in a subsequent chapter; as also of corporations at the close of this book of our commentaries. I now only mention them incidentally, in order to remark the king's prerogative of making them; which is grounded upon this foundation, that the king, having the sole administration of the government in his hands, is the best and the only judge, in what capacities, with what privileges, and under what distinctions, his people are the best qualified to serve, and to act under him. A principle, which was carried so far by the imperial law, that it was determined to be the crime of sacrilege, even to doubt whether the prince had appointed proper officers in the state[m].

[Footnote l: 4 Inst. 361.]

[Footnote m: _Disputare de principali judicio non oportet: sacrilegii enim instar est, dubitare an is dignus sit; quem elegerit imperator._ _C._ 9. 29. 3.]

V. ANOTHER light in which the laws of England consider the king with regard to domestic concerns, is as the arbiter of commerce. By commerce, I at present mean domestic commerce only. It would lead me into too large a field, if I were to attempt, to enter upon the nature of foreign trade, it's privileges, regulations, and restrictions; and would be also quite beside the purpose of these commentaries, which are confined to the laws of England. Whereas no municipal laws can be sufficient to order and determine the very extensive and complicated affairs of traffic and merchandize; neither can they have a proper authority for this purpose. For as these are transactions carried on between the subjects of independent states, the municipal laws of one will not be regarded by the other. For which reason the affairs of commerce are regulated by a law of their own, called the law merchant or _lex mercatoria_, which all nations agree in and take notice of. And in particular the law of England does in many cases refer itself to it, and leaves the causes of merchants to be tried by their own peculiar customs; and that often even in matters relating to inland trade, as for instance with regard to the drawing, the acceptance, and the transfer, of bills of exchange[n].

[Footnote n: Co. Litt. 172. Ld Raym. 181. 1542.]

WITH us in England, the king's prerogative, so far as it relates to mere domestic commerce, will fall principally under the following articles:

FIRST, the establishment of public marts, or places of buying and selling, such as markets and fairs, with the tolls thereunto belonging. These can only be set up by virtue of the king's grant, or by long and immemorial usage and prescription, which presupposes such a grant[o]. The limitation of these public resorts, to such time and such place as may be most convenient for the neighbourhood, forms a part of oeconomics, or domestic polity; which, considering the kingdom as a large family, and the king as the master of it, he clearly has a right to dispose and order as he pleases.

[Footnote o: 2 Inst. 220.]

SECONDLY, the regulation of weights and measures. These, for the advantage of the public, ought to be universally the same throughout the kingdom; being the general criterions which reduce all things to the same or an equivalent value. But, as weight and measure are things in their nature arbitrary and uncertain, it is therefore expedient that they be reduced to some fixed rule or standard: which standard it is impossible to fix by any written law or oral proclamation; for no man can, by words only, give another an adequate idea of a foot-rule, or a pound-weight. It is therefore necessary to have recourse to some visible, palpable, material standard; by forming a comparison with which, all weights and measures may be reduced to one uniform size: and the prerogative of fixing this standard, our antient law vested in the crown; as in Normandy it belonged to the duke[p]. This standard was originally kept at Winchester: and we find in the laws of king Edgar[q], near a century before the conquest, an injunction that the one measure, which was kept at Winchester, should be observed throughout the realm. Most nations have regulated the standard of measures of length by comparison with the parts of the human body; as the palm, the hand, the span, the foot, the cubit, the ell, (_ulna_, or arm) the pace, and the fathom. But, as these are of different dimensions in men of different proportions, our antient historians[r] inform us, that a new standard of longitudinal measure was ascertained by king Henry the first; who commanded that the _ulna_ or antient ell, which answers to the modern yard, should be made of the exact length of his own arm. And, one standard of measures of length being gained, all others are easily derived from thence; those of greater length by multiplying, those of less by subdividing, that original standard. Thus, by the statute called _compositio ulnarum et perticarum_, five yards and an half make a perch; and the yard is subdivided into three feet, and each foot into twelve inches; which inches will be each of the length of three grains of barley. Superficial measures are derived by squaring those of length; and measures of capacity by cubing them. The standard of weights was originally taken from corns of wheat, whence the lowest denomination of weights we have is still called a grain; thirty two of which are directed, by the statute called _compositio mensurarum_, to compose a penny weight, whereof twenty make an ounce, twelve ounces a pound, and so upwards. And upon these principles the first standards were made; which, being originally so fixed by the crown, their subsequent regulations have been generally made by the king in parliament. Thus, under king Richard I, in his parliament holden at Westminster, _A.D._ 1197, it was ordained that there shall be only one weight and one measure throughout the kingdom, and that the custody of the assise or standard of weights and measures shall be committed to certain persons in every city and borough[s]; from whence the antient office of the king's aulnager seems to have been derived, whose duty it was, for a certain fee, to measure all cloths made for sale, till the office was abolished by the statute 11 & 12 W. III. c. 20. In king John's time this ordinance of king Richard was frequently dispensed with for money[t]; which occasioned a provision to be made for inforcing it, in the great charters of king John and his son[u]. These original standards were called _pondus regis_[w], and _mensura domini regis_[x]; and are directed by a variety of subsequent statutes to be kept in the exchequer, and all weights and measures to be made conformable thereto[y]. But, as sir Edward Coke observes[z], though this hath so often by authority of parliament been enacted, yet it could never be effected; so forcible is custom with the multitude, when it hath gotten an head.

[Footnote p: _Gr. Coustum._ _c._ 16.]

[Footnote q: _cap._ 8.]

[Footnote r: William of Malmsb. _in vita Hen. I._ Spelm. _Hen. I. ap._ Wilkins. 299.]

[Footnote s: Hoved. Matth. Paris.]

[Footnote t: Hoved. _A.D._ 1201.]

[Footnote u: 9 Hen. III. c. 25.]

[Footnote w: _Plac. 35 Edw. I. apud_ Cowel's Interpr. _tit. pondus regis._]

[Footnote x: _Flet._ 2. 12.]

[Footnote y: 14 Edw. III. st. 1. c. 12. 25 Edw. III. st. 5. c. 10. 16 Ric. II. c. 3. 8 Hen. VI. c. 5. 11 Hen. VI. c. 8. 11 Hen. VII. c. 4. 22 Car. II. c. 8.]

[Footnote z: 2 Inst. 41.]

THIRDLY, as money is the medium of commerce, it is the king's prerogative, as the arbiter of domestic commerce, to give it authority or make it current. Money is an universal medium, or common standard, by comparison with which the value of all merchandize may be ascertained: or it is a sign, which represents the respective values of all commodities. Metals are well calculated for this sign, because they are durable and are capable of many subdivisions: and a precious metal is still better calculated for this purpose, because it is the most portable. A metal is also the most proper for a common measure, because it can easily be reduced to the same standard in all nations: and every particular nation fixes on it it's own impression, that the weight and standard (wherein consists the intrinsic value) may both be known by inspection only.

AS the quantity of precious metals increases, that is, the more of them there is extracted from the mine, this universal medium or common sign will sink in value, and grow less precious. Above a thousand millions of bullion are calculated to have been imported into Europe from America within less than three centuries; and the quantity is daily increasing. The consequence is, that more money must be given now for the same commodity than was given an hundred years ago. And, if any accident was to diminish the quantity of gold and silver, their value would proportionably rise. A horse, that was formerly worth ten pounds, is now perhaps worth twenty; and, by any failure of current specie, the price may be reduced to what it was. Yet is the horse in reality neither dearer nor cheaper at one time than another: for, if the metal which constitutes the coin was formerly twice as scarce as at present, the commodity was then as dear at half the price, as now it is at the whole.

THE coining of money is in all states the act of the sovereign power; for the reason just mentioned, that it's value may be known on inspection. And with respect to coinage in general, there are three things to be considered therein; the materials, the impression, and the denomination.

WITH regard to the materials, sir Edward Coke lays it down[a], that the money of England must either be of gold or silver; and none other was ever issued by the royal authority till 1672, when copper farthings and half-pence were coined by king Charles the second, and ordered by proclamation to be current in all payments, under the value of six-pence, and not otherwise. But this copper coin is not upon the same footing with the other in many respects, particularly with regard to the offence of counterfeiting it.

[Footnote a: 2 Inst. 577.]

AS to the impression, the stamping thereof is the unquestionable prerogative of the crown: for, though divers bishops and monasteries had formerly the privilege of coining money, yet, as sir Matthew Hale observes[b], this was usually done by special grant from the king, or by prescription which supposes one; and therefore was derived from, and not in derogation of, the royal prerogative. Besides that they had only the profit of the coinage, and not the power of instituting either the impression or denomination; but had usually the stamp sent them from the exchequer.

[Footnote b: 1 Hist. P.C. 191.]

THE denomination, or the value for which the coin is to pass current, is likewise in the breast of the king; and, if any unusual pieces are coined, that value must be ascertained by proclamation. In order to fix the value, the weight, and the fineness of the metal are to be taken into consideration together. When a given weight of gold or silver is of a given fineness, it is then of the true standard, and called sterling metal; a name for which there are various reasons given[c], but none of them entirely satisfactory. And of this sterling metal all the coin of the kingdom must be made by the statute 25 Edw. III. c. 13. So that the king's prerogative seemeth not to extend to the debasing or inhancing the value of the coin, below or above the sterling value[d]: though sir Matthew Hale[e] appears to be of another opinion. The king may also, by his proclamation, legitimate foreign coin, and make it current here; declaring at what value it shall be taken in payments[f]. But this, I apprehend, ought to be by comparison with the standard of our own coin; otherwise the consent of parliament will be necessary. There is at present no such legitimated money; Portugal coin being only current by private consent, so that any one who pleases may refuse to take it in payment. The king may also at any time decry, or cry down, any coin of the kingdom, and make it no longer current[g].

[Footnote c: Spelm. Gloss. 203.]

[Footnote d: 2 Inst. 577.]

[Footnote e: 1 H.P.C. 194.]

[Footnote f: _Ibid._ 197.]

[Footnote g: _Ibid._]

VI. THE king is, lastly, considered by the laws of England as the head and supreme governor of the national church.

TO enter into the reasons upon which this prerogative is founded is matter rather of divinity than of law. I shall therefore only observe that by statute 26 Hen. VIII. c. 1. (reciting that the king's majesty justly and rightfully is and ought to be the supreme head of the church of England; and so had been recognized by the clergy of this kingdom in their convocation) it is enacted, that the king shall be reputed the only supreme head in earth of the church of England, and shall have, annexed to the imperial crown of this realm, as well the titles and stile thereof, as all jurisdictions, authorities, and commodities, to the said dignity of supreme head of the church appertaining. And another statute to the same purport was made, 1 Eliz. c. 1.

IN virtue of this authority the king convenes, prorogues, restrains, regulates, and dissolves all ecclesiastical synods or convocations. This was an inherent prerogative of the crown, long before the time of Henry VIII, as appears by the statute 8 Hen. VI. c. 1. and the many authors, both lawyers and historians, vouched by sir Edward Coke[h]. So that the statute 25 Hen. VIII. c. 19. which restrains the convocation from making or putting in execution any canons repugnant to the king's prerogative, or the laws, customs, and statutes of the realm, was merely declaratory of the old common law: that part of it only being new, which makes the king's royal assent actually necessary to the validity of every canon. The convocation or ecclesiastical synod, in England, differs considerably in it's constitution from the synods of other christian kingdoms: those consisting wholly of bishops; whereas with us the convocation is the miniature of a parliament, wherein the archbishop presides with regal state; the upper house of bishops represents the house of lords; and the lower house, composed of representatives of the several dioceses at large, and of each particular chapter therein, resembles the house of commons with it's knights of the shire and burgesses[i]. This constitution is said to be owing to the policy of Edward I; who thereby at one and the same time let in the inferior clergy to the privilege of forming ecclesiastical canons, (which before they had not) and also introduced a method of taxing ecclesiastical benefices, by consent of convocation[k].

[Footnote h: 4 Inst. 322, 323.]

[Footnote i: In the diet of Sweden, where the ecclesiastics form one of the branches of the legislature, the chamber of the clergy resembles the convocation of England. It is composed of the bishops and superintendants; and also of deputies, one of which is chosen by every ten parishes or rural deanry. Mod. Un. Hist. xxxiii. 18.]

[Footnote k: Gilb. hist. of exch. c. 4.]

FROM this prerogative also of being the head of the church arises the king's right of nomination to vacant bishopricks, and certain other ecclesiastical preferments; which will better be considered when we come to treat of the clergy. I shall only here observe, that this is now done in consequence of the statute 25 Hen. VIII. c. 20.

AS head of the church, the king is likewise the _dernier resort_ in all ecclesiastical causes; an appeal lying ultimately to him in chancery from the sentence of every ecclesiastical judge: which right was restored to the crown by statute 25 Hen. VIII. c. 19. as will more fully be shewn hereafter.

CHAPTER THE EIGHTH.

OF THE KING'S REVENUE.

HAVING, in the preceding chapter, considered at large those branches of the king's prerogative, which contribute to his royal dignity, and constitute the executive power of the government, we proceed now to examine the king's _fiscal_ prerogatives, or such as regard his _revenue_; which the British constitution hath vested in the royal person, in order to support his dignity and maintain his power: being a portion which each subject contributes of his property, in order to secure the remainder.

THIS revenue is either ordinary, or extraordinary. The king's ordinary revenue is such, as has either subsisted time out of mind in the crown; or else has been granted by parliament, by way of purchase or exchange for such of the king's inherent hereditary revenues, as were found inconvenient to the subject.

WHEN I say that it has subsisted time out of mind in the crown, I do not mean that the king is at present in the actual possession of the whole of this revenue. Much (nay, the greatest part) of it is at this day in the hands of subjects; to whom it has been granted out from time to time by the kings of England: which has rendered the crown in some measure dependent on the people for it's ordinary support and subsistence. So that I must be obliged to recount, as part of the royal revenue, what lords of manors and other subjects frequently look upon to be their own absolute rights, because they are and have been vested in them and their ancestors for ages, though in reality originally derived from the grants of our antient princes.

I. THE first of the king's ordinary revenues, which I shall take notice of, is of an ecclesiastical kind; (as are also the three succeeding ones) viz. the custody of the temporalties of bishops; by which are meant all the lay revenues, lands, and tenements (in which is included his barony) which belong to an archbishop's or bishop's see. And these upon the vacancy of the bishoprick are immediately the right of the king, as a consequence of his prerogative in church matters; whereby he is considered as the founder of all archbishopricks and bishopricks, to whom during the vacancy they revert. And for the same reason, before the dissolution of abbeys, the king had the custody of the temporalties of all such abbeys and priories as were of royal foundation (but not of those founded by subjects) on the death of the abbot or prior[a]. Another reason may also be given, why the policy of the law hath vested this custody in the king; because, as the successor is not known, the lands and possessions of the see would be liable to spoil and devastation, if no one had a property therein. Therefore the law has given the king, not the temporalties themselves, but the _custody_ of the temporalties, till such time as a successor is appointed; with power of taking to himself all the intermediate profits, without any account to the successor; and with the right of presenting (which the crown very frequently exercises) to such benefices and other preferments as fall within the time of vacation[b]. This revenue is of so high a nature, that it could not be granted out to a subject, before, or even after, it accrued: but now by the statute 14 Edw. III. st. 4. c. 4 & 5. the king may, after the vacancy, lease the temporalties to the dean and chapter; saving to himself all advowsons, escheats, and the like. Our antient kings, and particularly William Rufus, were not only remarkable for keeping the bishopricks a long time vacant, for the sake of enjoying the temporalties, but also committed horrible waste on the woods and other parts of the estate; and, to crown all, would never, when the see was filled up, restore to the bishop his temporalties again, unless he purchased them at an exorbitant price. To remedy which, king Henry the first[c] granted a charter at the beginning of his reign, promising neither to sell, nor let to farm, nor take any thing from, the domains of the church, till the successor was installed. And it was made one of the articles of the great charter[d], that no waste should be committed in the temporalties of bishopricks, neither should the custody of them be sold. The same is ordained by the statute of Westminster the first[e]; and the statute 14 Edw. III. st. 4. c. 4. (which permits, as we have seen, a lease to the dean and chapter) is still more explicit in prohibiting the other exactions. It was also a frequent abuse, that the king would for trifling, or no causes, seise the temporalties of bishops, even during their lives, into his own hands: but this is guarded against by statute 1 Edw. III. st. 2. c. 2.

[Footnote a: 2 Inst. 15.]

[Footnote b: Stat. 17 Edw. II. c. 14. F.N.B. 32.]

[Footnote c: Matth. Paris.]

[Footnote d: 9 Hen. III. c. 5.]

[Footnote e: 3 Edw. I. c. 21.]

THIS revenue of the king, which was formerly very considerable, is now by a customary indulgence almost reduced to nothing: for, at present, as soon as the new bishop is consecrated and confirmed, he usually receives the restitution of his temporalties quite entire, and untouched, from the king; and then, and not sooner, he has a fee simple in his bishoprick, and may maintain an action for the same[f].

[Footnote f: Co. Litt. 67. 341.]

II. THE king is entitled to a corody, as the law calls it, out of every bishoprick: that is, to send one of his chaplains to be maintained by the bishop, or to have a pension allowed him till the bishop promotes him to a benefice[g]. This is also in the nature of an acknowlegement to the king, as founder of the see; since he had formerly the same corody or pension from every abbey or priory of royal foundation. It is, I apprehend, now fallen into total disuse; though sir Matthew Hale says[h], that it is due of common right, and that no prescription will discharge it.

[Footnote g: F.N.B. 230.]

[Footnote h: Notes on F.N.B. above cited.]

III. THE king also (as was formerly observed[i]) is entitled to all the tithes arising in extraparochial places[k]: though perhaps it may be doubted how far this article, as well as the last, can be properly reckoned a part of the king's own royal revenue; since a corody supports only his chaplains, and these extraparochial tithes are held under an implied trust, that the king will distribute them for the good of the clergy in general.

[Footnote i: page 110.]

[Footnote k: 2 Inst. 647.]

IV. THE next branch consists in the first-fruits, and tenths, of all spiritual preferments in the kingdom; both of which I shall consider together.

THESE were originally a part of the papal usurpations over the clergy of this kingdom; first introduced by Pandulph the pope's legate, during the reigns of king John and Henry the third, in the see of Norwich; and afterwards attempted to be made universal by the popes Clement V and John XXII, about the beginning of the fourteenth century. The first-fruits, _primitiae_, or _annates_, were the first year's whole profits of the spiritual preferment, according to a rate or _valor_ made under the direction of pope Innocent IV by Walter bishop of Norwich in 38 Hen. III, and afterwards advanced in value by commission from pope Nicholas the third, _A.D._ 1292, 20 Edw. I[l]; which valuation of pope Nicholas is still preserved in the exchequer[m]. The tenths, or _decimae_, were the tenth part of the annual profit of each living by the same valuation; which was also claimed by the holy see, under no better pretence than a strange misapplication of that precept of the Levitical law, which directs[n], "that the Levites should offer the tenth part of their tithe as a heave-offering to the Lord, and give it to Aaron the _high_ priest." But this claim of the pope met with vigorous resistance from the English parliament; and a variety of acts were passed to prevent and restrain it, particularly the statute 6 Hen. IV. c. 1. which calls it a horrible mischief and damnable custom. But the popish clergy, blindly devoted to the will of a foreign master, still kept it on foot; sometimes more secretly, sometimes more openly and avowedly: so that, in the reign of Henry VIII, it was computed, that in the compass of fifty years 800000 ducats had been sent to Rome for first-fruits only. And, as the clergy expressed this willingness to contribute so much of their income to the head of the church, it was thought proper (when in the same reign the papal power was abolished, and the king was declared the head of the church of England) to annex this revenue to the crown; which was done by statute 26 Hen. VIII. c. 3. (confirmed by statute 1 Eliz. c. 4.) and a new _valor beneficiorum_ was then made, by which the clergy are at present rated.

[Footnote l: F.N.B. 176.]

[Footnote m: 3 Inst. 154.]

[Footnote n: Numb. 18. 26.]

BY these lastmentioned statutes all vicarages under ten pounds a year, and all rectories under ten marks, are discharged from the payment of first-fruits: and if, in such livings as continue chargeable with this payment, the incumbent lives but half a year, he shall pay only one quarter of his first-fruits; if but one whole year, then half of them; if a year and half, three quarters; and if two years, then the whole; and not otherwise. Likewise by the statute 27 Hen. VIII. c. 8. no tenths are to be paid for the first year, for then the first-fruits are due: and by other statutes of queen Anne, in the fifth and sixth years of her reign, if a benefice be under fifty pounds _per annum_ clear yearly value, it shall be discharged of the payment of first-fruits and tenths.

THUS the richer clergy, being, by the criminal bigotry of their popish predecessors, subjected at first to a foreign exaction, were afterwards, when that yoke was shaken off, liable to a like misapplication of their revenues, through the rapacious disposition of the then reigning monarch: till at length the piety of queen Anne restored to the church what had been thus indirectly taken from it. This she did, not by remitting the tenths and first-fruits entirely; but, in a spirit of the truest equity, by applying these superfluities of the larger benefices to make up the deficiences of the smaller. And to this end she granted her royal charter, which was confirmed by the statute 2 Ann. c. 11. whereby all the revenue of first-fruits and tenths is vested in trustees for ever, to form a perpetual fund for the augmentation of poor livings. This is usually called queen Anne's bounty; which has been still farther regulated by subsequent statutes, too numerous here to recite.

V. THE next branch of the king's ordinary revenue (which, as well as the subsequent branches, is of a lay or temporal nature) consists in the rents and profits of the demesne lands of the crown. These demesne lands, _terrae dominicales regis_, being either the share reserved to the crown at the original distribution of landed property, or such as came to it afterwards by forfeitures or other means, were antiently very large and extensive; comprizing divers manors, honors, and lordships; the tenants of which had very peculiar privileges, as will be shewn in the second book of these commentaries, when we speak of the tenure in antient demesne. At present they are contracted within a very narrow compass, having been almost entirely granted away to private subjects. This has occasioned the parliament frequently to interpose; and, particularly, after king William III had greatly impoverished the crown, an act passed[o], whereby all future grants or leases from the crown for any longer term than thirty one years or three lives are declared to be void; except with regard to houses, which may be granted for fifty years. And no reversionary lease can be made, so as to exceed, together with the estate in being, the same term of three lives or thirty one years: that is, where there is a subsisting lease, of which there are twenty years still to come, the king cannot grant a future interest, to commence after the expiration of the former, for any longer term than eleven years. The tenant must also be made liable to be punished for committing waste; and the usual rent must be reserved, or, where there has usually been no rent, one third of the clear yearly value[p]. The misfortune is, that this act was made too late, after almost every valuable possession of the crown had been granted away for ever, or else upon very long leases; but may be of benefit to posterity, when those leases come to expire.

[Footnote o: 1 Ann. st. 1. c. 7.]

[Footnote 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.]

VI. HITHER might have been referred the advantages which were used to arise to the king from the profits of his military tenures, to which most lands in the kingdom were subject, till the statute 12 Car. II. c. 24. which in great measure abolished them all: the explication of the nature of which tenures, must be referred to the second book of these commentaries. Hither also might have been referred the profitable prerogative of purveyance and pre-emption: which was a right enjoyed by the crown of buying up provisions and other necessaries, by the intervention of the king's purveyors, for the use of his royal houshold, at an appraised valuation, in preference to all others, and even without consent of the owner; and also of forcibly impressing the carriages and horses of the subject, to do the king's business on the publick roads, in the conveyance of timber, baggage, and the like, however inconvenient to the proprietor, upon paying him a settled price. A prerogative, which prevailed pretty generally throughout Europe, during the scarcity of gold and silver, and the high valuation of money consequential thereupon. In those early times the king's houshold (as well as those of inferior lords) were supported by specific renders of corn, and other victuals, from the tenants of the respective demesnes; and there was also a continual market kept at the palace gate to furnish viands for the royal use[q]. And this answered all purposes, in those ages of simplicity, so long as the king's court continued in any certain place. But when it removed from one part of the kingdom to another (as was formerly very frequently done) it was found necessary to send purveyors beforehand, to get together a sufficient quantity of provisions and other necessaries for the houshold: and, lest the unusual demand should raise them to an exorbitant price, the powers beforementioned were vested in these purveyors; who in process of time very greatly abused their authority, and became a great oppression to the subject though of little advantage to the crown; ready money in open market (when the royal residence was more permanent, and specie began to be plenty) being found upon experience to be the best proveditor of any. Wherefore by degrees the powers of purveyance have declined, in foreign countries as well as our own; and particularly were abolished in Sweden by Gustavus Adolphus, toward the beginning of the last century[r]. And, with us in England, having fallen into disuse during the suspension of monarchy, king Charles at his restoration consented, by the same statute, to resign intirely these branches of his revenue and power, for the ease and convenience of his subjects: and the parliament, in part of recompense, settled on him, his heirs, and successors, for ever, the hereditary excise of fifteen pence _per_ barrel on all beer and ale sold in the kingdom, and a proportionable sum for certain other liquors. So that this hereditary excise, the nature of which shall be farther explained in the subsequent part of this chapter, now forms the sixth branch of his majesty's ordinary revenue.

[Footnote q: 4 Inst. 273.]

[Footnote r: Mod. Un. Hist. xxxiii. 220.]

VII. A SEVENTH branch might also be computed to have arisen from wine licences; or the rents payable to the crown by such persons as are licensed to sell wine by retale throughout England, except in a few privileged places. These were first settled on the crown by the statute 12 Car. II. c. 25. and, together with the hereditary excise, made up the equivalent in value for the loss sustained by the prerogative in the abolition of the military tenures, and the right of pre-emption and purveyance: but this revenue was abolished by the statute 30 Geo. II. c. 19. and an annual sum of upwards of £7000 _per annum_, issuing out of the new stamp duties imposed on wine licences, was settled on the crown in it's stead.

VIII. AN eighth branch of the king's ordinary revenue is usually reckoned to consist in the profits arising from his forests. Forests are waste grounds belonging to the king, replenished with all manner of beasts of chase or venary; which are under the king's protection, for the sake of his royal recreation and delight: and, to that end, and for preservation of the king's game, there are particular laws, privileges, courts and officers belonging to the king's forests; all which will be, in their turns, explained in the subsequent books of these commentaries. What we are now to consider are only the profits arising to the king from hence; which consist principally in amercements or fines levied for offences against the forest-laws. But as few, if any courts of this kind for levying amercements have been held since 1632, 8 Car. I. and as, from the accounts given of the proceedings in that court by our histories and law books[s], nobody would now wish to see them again revived, it is needless (at least in this place) to pursue this enquiry any farther.

[Footnote s: 1 Jones. 267-298.]

IX. THE profits arising from the king's ordinary courts of justice make a ninth branch of his revenue. And these consist not only in fines imposed upon offenders, forfeitures of recognizances, and amercements levied upon defaulters; but also in certain fees due to the crown in a variety of legal matters, as, for setting the great seal to charters, original writs, and other legal proceedings, and for permitting fines to be levied of lands in order to bar entails, or otherwise to insure their title. As none of these can be done without the immediate intervention of the king, by himself or his officers, the law allows him certain perquisites and profits, as a recompense for the trouble he undertakes for the public. These, in process of time, have been almost all granted out to private persons, or else appropriated to certain particular uses: so that, though our law-proceedings are still loaded with their payment, very little of them is now returned into the king's exchequer; for a part of whose royal maintenance they were originally intended. All future grants of them however, by the statute 1 Ann. st. 2. c. 7. are to endure for no longer time than the prince's life who grants them.

X. A TENTH branch of the king's ordinary revenue, said to be grounded on the consideration of his guarding and protecting the seas from pirates and robbers, is the right to _royal fish_, which are whale and sturgeon: and these, when either thrown ashore, or caught near the coasts, are the property of the king, on account[t] of their superior excellence. Indeed our ancestors seem to have entertained a very high notion of the importance of this right; it being the prerogative of the kings of Denmark and the dukes of Normandy[u]; and from one of these it was probably derived to our princes. It is expressly claimed and allowed in the statute _de praerogativa regis_[w]: and the most antient treatises of law now extant make mention of it[x]; though they seem to have made a distinction between whale and sturgeon, as was incidentally observed in a former chapter[y].

[Footnote t: Plowd. 315.]

[Footnote u: Stiernh. _de jure Sueonum._ _l._ 2. _c._ 8. _Gr. Coustum._ _cap._ 17.]

[Footnote w: 17 Edw. II. c. 11.]

[Footnote x: Bracton. _l._ 3. _c._ 3. Britton. _c._ 17. Fleta. _l._ 1. _c._ 45 & 46.]

[Footnote y: ch. 4. pag. 216.]

XI. ANOTHER maritime revenue, and founded partly upon the same reason, is that of shipwrecks; which are also declared to be the king's property by the same prerogative statute 17 Edw. II. c. 11. and were so, long before, at the common law. It is worthy observation, how greatly the law of wrecks has been altered, and the rigour of it gradually softened, in favour of the distressed proprietors. Wreck, by the antient common law, was where any ship was lost at sea, and the goods or cargo were thrown upon the land; in which case these goods, so wrecked, were adjudged to belong to the king: for it was held, that, by the loss of the ship, all property was gone out of the original owner[z]. But this was undoubtedly adding sorrow to sorrow, and was consonant neither to reason nor humanity. Wherefore it was first ordained by king Henry I, that if any person escaped alive out of the ship it should be no wreck[a]; and afterwards king Henry II, by his charter[b], declared, that if on the coasts of either England, Poictou, Oleron, or Gascony, any ship should be distressed, and either man or beast should escape or be found therein alive, the goods should remain to the owners, if they claimed them within three months; but otherwise should be esteemed a wreck, and should belong to the king, or other lord of the franchise. This was again confirmed with improvements by king Richard the first, who, in the second year of his reign[c], not only established these concessions, by ordaining that the owner, if he was shipwrecked and escaped, "_omnes res suas liberas et quietas haberet_," but also, that, if he perished, his children, or in default of them his brethren and sisters, should retain the property; and, in default of brother or sister, then the goods should remain to the king[d]. And the law, so long after as the reign of Henry III, seems still to have been guided by the same equitable provisions. For then if a dog (for instance) escaped, by which the owner might be discovered, or if any certain mark were set on the goods, by which they might be known again, it was held to be no wreck[e]. And this is certainly most agreeable to reason; the rational claim of the king being only founded upon this, that the true owner cannot be ascertained. But afterwards, in the statute of Westminster the first[f], the law is laid down more agreeable to the charter of king Henry the second: and upon that statute hath stood the legal doctrine of wrecks to the present time. It enacts, that if any live thing escape (a man, a cat, or a dog; which, as in Bracton, are only put for examples[g],) in this case, and, as it seems, in this case only, it is clearly not a legal wreck: but the sheriff of the county 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 representation[i], they shall be restored to him without delay; but, if no such property be proved within that time, they then shall be the king's. If the goods are of a perishable nature, the sheriff may sell them, and the money shall be liable in their stead[k]. This revenue of wrecks is frequently granted out to lords of manors, as a royal franchise; and if any one be thus entitled to wrecks in his own land, and the king's goods are wrecked thereon, the king may claim them at any time, even after the year and day[l].

[Footnote z: Dr & St. d. 2. c. 51.]

[Footnote a: Spelm. _Cod. apud_ Wilkins. 305.]

[Footnote b: 26 May, _A.D._ 1174. 1 Rym. _Foed._ 36.]

[Footnote c: Rog. Hoved. _in Ric. I_.]

[Footnote d: In like manner Constantine the great, finding that by the imperial law the revenue of wrecks was given to the prince's treasury or _fiscus_, restrained it by an edict (_Cod._ 11. 5. 1.) and ordered them to remain to the owners; adding this humane expostulation, "_Quod enim jus habet fiscus in aliena calamitate, ut de re tam luctuosa compendium sectetur?_"]

[Footnote e: Bract. _l._ 3. _c._ 3.]

[Footnote f: 3 Edw. I. c. 4.]

[Footnote g: Flet. 1. _c._ 44. 2 Inst. 167.]

[Footnote h: §. 28.]

[Footnote i: 2 Inst. 168.]

[Footnote k: Plowd. 166.]

[Footnote l: 2 Inst. 168. Bro. Abr. _tit. Wreck_.]

IT is to be observed, that in order to constitute a legal _wreck_, the goods must come to land. If they continue at sea, the law distinguishes them by the barbarous and uncouth appellations of _jetsam_, _flotsam_, and _ligan_. Jetsam is where goods are cast into the sea, and there sink and remain under water: flotsam is where they continue swimming on the surface of the waves: ligan is where they are sunk in the sea, but tied to a cork or buoy, in order to be found again[m]. These are also the king's, if no owner appears to claim them; but, if any owner appears, he is entitled to recover the possession. For even if they be cast overboard, without any mark or buoy, in order to lighten the ship, the owner is not by this act of necessity construed to have renounced his property[n]: much less can things ligan be supposed to be abandoned, since the owner has done all in his power, to assert and retain his property. These three are therefore accounted so far a distinct thing from the former, that by the king's grant to a man of wrecks, things jetsam, flotsam, and ligan will not pass[o].

[Footnote m: 5 Rep. 106.]

[Footnote n: _Quae enim res in tempestate, levandae navis causa, ejiciuntur, hac dominorum permanent. Quia palam est, eas non eo animo ejici, quod quis habere nolit._ _Inst._ 2. 1. §. 48.]

[Footnote o: 5 Rep. 108.]

WRECKS, in their legal acceptation, are at present not very frequent: it rarely happening that every living creature on board perishes; and if any should survive, it is a very great chance, since the improvement of commerce, navigation, and correspondence, but the owner will be able to assert his property within the year and day limited by law. And in order to preserve this property entire for him, and if possible to prevent wrecks at all, our laws have made many very humane regulations; in a spirit quite opposite to those savage laws, which formerly prevailed in all the northern regions of Europe, and a few years ago were still laid to subsist on the coasts of the Baltic sea, permitting the inhabitants to seize on whatever they could get as lawful prize; or, as an author of their own expresses it, "_in naufragorum miseria et calamitate tanquam vultures ad praedam currere_[p]." For by the statute 2 Edw. III. c. 13. if any ship be lost on the shore, and the goods come to land (so as it be not legal wreck) they shall be presently delivered to the merchants, they paying only a reasonable reward to those that saved and preserved them, which is intitled _salvage_. Also by the common law, if any persons (other than the sheriff) take any goods so cast on shore, which are not legal wreck, the owners might have a commission to enquire and find them out, and compel them to make restitution[q]. And by statute 12 Ann. st. 2. c. 18. confirmed by 4 Geo. I. c. 12. in order to assist the distressed, and prevent the scandalous illegal practices on some of our sea coasts, (too similar to those on the Baltic) it is enacted, that all head-officers and others of towns near the sea shall, upon application made to them, summon as many hands as are necessary, and send them to the relief of any ship in distress, on forfeiture of 100_l._ and, in case of assistance given, salvage shall be paid by the owners, to be assessed by three neighbouring justices. All persons that secrete any goods shall forfeit their treble value: and if they wilfully do any act whereby the ship is lost or destroyed, by making holes in her, stealing her pumps, or otherwise, they are guilty of felony, without benefit of clergy. Lastly, by the statute 26 Geo. II. c. 19. plundering any vessel either in distress, or wrecked, and whether any living creature be on board or not, (for, whether wreck or otherwise, it is clearly not the property of the populace) such plundering, I say, or preventing the escape of any person that endeavors to save his life, or wounding him with intent to destroy him, or putting out false lights in order to bring any vessel into danger, are all declared to be capital felonies; in like manner as the destroying trees, steeples, or other stated seamarks, is punished by the statute 8 Eliz. c. 13. with a forfeiture of 200_l._ Moreover, by the statute of George II, pilfering any goods cast ashore is declared to be petty larceny; and many other salutary regulations are made, for the more effectually preserving ships of any nation in distress[r].

[Footnote p: Stiernh. _de jure Sueon._ _l._ 3. _c._ 5.]

[Footnote q: F.N.B. 112.]

[Footnote r: By the civil law, to destroy persons shipwrecked, or prevent their saving the ship, is capital. And to steal even a plank from a vessel in distress, or wrecked, makes the party liable to answer for the whole ship and cargo. (_Ff._ 47. 9. 3.) The laws also of the Wisigoths, and the most early Neapolitan constitutions, punished with the utmost severity all those who neglected to assist any ship in distress, or plundered any goods cast on shore. (Lindenbrog. _Cod. LL. antiq._ 146. 715.)]

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 supply him with materials: and therefore those mines, which are properly royal, and to which the king is entitled when found, are only those of silver and gold[s]. By the old common law, if gold or silver be found in mines of base metal, according to the opinion of some the whole was a royal mine, and belonged to the king; though others held that it only did so, if the quantity of gold or silver was of greater value than the quantity of base metal[t]. But now by the statutes 1 W. & M. st. 1. 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, shall be looked upon as royal mines, notwithstanding gold or silver may be extracted from them in any quantities: but that the king, or persons claiming royal mines under his authority, may have the ore, (other than tin-ore in the counties of Devon and Cornwall) paying for the same a price stated in the act. This was an extremely reasonable law: for now private owners are not discouraged from working mines, through a fear that they may be claimed as royal ones; neither does the king depart from the just rights of his revenue, since he may have all the precious metal contained in the ore, paying no more for it than the value of the base metal which it is supposed to be; to which base metal the land-owner is by reason and law entitled.

[Footnote s: 2 Inst. 577.]

[Footnote t: Plowd. 566.]

XIII. TO the same original may in part be referred the revenue of treasure-trove (derived from the French word, _trover_, to find) called in Latin _thesaurus inventus_, which is where any money or coin, gold, silver, plate, or bullion, is found hidden _in_ the earth, or other private place, the owner thereof being unknown; in which case the treasure belongs to the king: but if he that hid it be known, or afterwards found out, the owner and not the king is entitled to it[u]. Also if it be found in the sea, or _upon_ the earth, it doth not belong to the king, but the finder, if no owner appears[w]. So that it seems it is the _hiding_, not the _abandoning_ of it, that gives the king a property: Bracton[x] defining it, in the words of the civilians, to be "_vetus depositio pecuniae_." This difference clearly arises from the different intentions, which the law implies in the owner. A man, that hides his treasure in a secret place, evidently does not mean to relinquish his property; but reserves a right of claiming it again, when he sees occasion; and, if he dies and the secret also dies with him, the law gives it the king, in part of his royal revenue. But a man that scatters his treasure into the sea, or upon the public surface of the earth, is construed to have absolutely abandoned his property, and returned it into the common stock, without any intention of reclaiming it; and therefore it belongs, as in a state of nature, to the first occupant, or finder; unless the owner appear and assert his right, which then proves that the loss was by accident, and not with an intent to renounce his property.

[Footnote u: 3 Inst. 132. Dalt. Sheriffs. c. 16.]

[Footnote w: Britt. c. 17. Finch. L. 177.]

[Footnote x: _l._ 3. _c._ 3. §. 4.]

FORMERLY all treasure-trove belonged to the finder[y]; as was also the rule of the civil law[z]. Afterwards it was judged expedient for the purposes of the state, and particularly for the coinage, to allow part of what was so found to the king; which part was assigned to be all _hidden_ treasure; such as is _casually lost_ and unclaimed, and also such as is _designedly abandoned_, still remaining the right of the fortunate finder. And that the prince shall be entitled to this hidden treasure is now grown to be, according to Grotius[a], "_jus commune, et quasi gentium_:" for it is not only observed, he adds, in England, but in Germany, France, Spain, and Denmark. The finding of deposited treasure was much more frequent, and the treasures themselves more considerable, in the infancy of our constitution than at present. When the Romans, and other inhabitants of the respective countries which composed their empire, were driven out by the northern nations, they concealed their money under-ground; with a view of resorting to it again when the heat of the irruption should be over, and the invaders driven back to their desarts. But as this never happened, the treasures were never claimed; and on the death of the owners the secret also died along with them. The conquering generals, being aware of the value of these hidden mines, made it highly penal to secrete them from the public service. In England therefore, as among the feudists[b], the punishment of such as concealed from the king the finding of hidden treasure was formerly no less than death; but now it is only fine and imprisonment[c].

[Footnote y: Bracton. _l._ 3. _c._ 3. 3 Inst. 133.]

[Footnote z: _Ff._ 41. 1. 31.]

[Footnote a: _de jur. b. & p._ _l._ 2. _c._ 8. §. 7.]

[Footnote b: Glanv. _l._ 1. _c._ 2. Crag. 1. 16. 40.]

[Footnote c: 3 Inst. 133.]

XIV. WAIFS, _bona waviata_, are goods stolen, and waived or thrown away by the thief in his flight, for fear of being apprehended. These are given to the king by the law, as a punishment upon the owner, for not himself pursuing the felon, and taking away his goods from him[d]. And therefore if the party robbed do his diligence immediately to follow and apprehend the thief (which is called making fresh _suit_) or do convict him afterwards, or procure evidence to convict him, he shall have his goods again[e]. Waived goods do also not belong to the king, till seised by somebody for his use; for if the party robbed can seise them first, though at the distance of twenty years, the king shall never have them[f]. If the goods are hid by the thief, or left any where by him, so that he had them not about him when he fled, and therefore did not throw them away in his flight; these also are not _bona waviata_, but the owner may have them again when he pleases[g]. The goods of a foreign merchant, though stolen and thrown away in flight, shall never be waifs[h]: the reason whereof may be, not only for the encouragement of trade, but also because there is no wilful default in the foreign merchant's not pursuing the thief, he being generally a stranger to our laws, our usages, and our language.

[Footnote d: Cro. Eliz. 694.]

[Footnote e: Finch. L. 212.]

[Footnote f: _Ibid._]

[Footnote g: 5 Rep. 109.]

[Footnote h: Fitzh. _Abr. tit. Estray._ 1. 3 Bulstr. 19.]

XV. ESTRAYS are such valuable animals as are found wandering in any manor or lordship, and no man knoweth the owner of them; in which case the law gives them to the king as the general owner and lord paramount of the soil, in recompence for the damage which they may have done therein; and they now most commonly belong to the lord of the manor, by special grant from the crown. But in order to vest an absolute property in the king or his grantees, they must be proclaimed in the church and two market towns next adjoining to the place where they are found; and then, if no man claims them, after proclamation and a year and a day passed, they belong to the king or his substitute without redemption[i]; even though the owner were a minor, or under any other legal incapacity[k]. A provision similar to which obtained in the old Gothic constitution, with regard to all things that were found, which were to be thrice proclaimed, _primum coram comitibus et viatoribus obviis, deinde in proxima villa vel pago, postremo coram ecclesia vel judicio_: and the space of a year was allowed for the owner to reclaim his property[l]. If the owner claims them within the year and day, he must pay the charges of finding, keeping, and proclaiming them[m]. The king or lord has no property till the year and day passed: for if a lord keepeth an estray three quarters of a year, and within the year it strayeth again, and another lord getteth it, the first lord cannot take it again[n]. Any beast may be an estray, that is by nature tame or reclaimable, and in which there is a valuable property, as sheep, oxen, swine, and horses, which we in general call cattle; and so Fleta[o] defines it, _pecus vagans, quod nullus petit, sequitur, vel advocat_. For animals upon which the law sets no value, as a dog or cat, and animals _ferae naturae_, as a bear or wolf, cannot be considered as estrays. So swans may be estrays, but not any other fowl[p]; whence they are said to be royal fowl. The reason of which distinction seems to be, that, cattle and swans being of a reclaimed nature, the owner's property in them is not lost merely by their temporary escape; and they also, from their intrinsic value, are a sufficient pledge for the expense of the lord of the franchise in keeping them the year and day. For he that takes an estray is bound, so long as he keeps it, to find it in provisions and keep it from damage[q]; and may not use it by way of labour, but is liable to an

## action for so doing[r]. Yet he may milk a cow, or the like, for that

tends to the preservation, and is for the benefit, of the animal[s].

[Footnote i: Mirr. c. 3. §. 19.]

[Footnote k: 5 Rep. 108. Bro. _Abr. tit. Estray._ Cro. Eliz. 716.]

[Footnote l: Stiernh. _de jur. Gothor._ _l._ 3. _c._ 5.]

[Footnote m: Dalt. Sh. 79.]

[Footnote n: Finch. L. 177.]

[Footnote o: _l._ 1. _c._ 43.]

[Footnote p: 7 Rep. 17.]

[Footnote q: 1 Roll. Abr. 889.]

[Footnote r: Cro. Jac. 147.]

[Footnote s: Cro. Jac. 148. Noy. 119.]

BESIDES the particular reasons before given why the king should have the several revenues of royal fish, shipwrecks, treasure-trove, waifs, and estrays, there is also one general reason which holds for them all; and that is, because they are _bona vacantia_, or goods in which no one else can claim a property. And therefore by the law of nature they belonged to the first occupant or finder; and so continued under the imperial law. But, in settling the modern constitutions of most of the governments in Europe, it was thought proper (to prevent that strife and contention, which the mere title of occupancy is apt to create and continue, and to provide for the support of public authority in a manner the least burthensome to individuals) that these rights should be annexed to the supreme power by the positive laws of the state. And so it came to pass that, as Bracton expresses it[t], _haec, quae nullius in bonis sunt, et olim fuerunt inventoris de jure naturali, jam efficiuntur principis de jure gentium_.

[Footnote t: _l._ 1. _c._ 12.]

XVI. THE next branch of the king's ordinary revenue consists in forfeitures of lands and goods for offences; _bona confiscata_, as they are called by the civilians, because they belonged to the _fiscus_ or imperial treasury; or, as our lawyers term them, _forisfacta_, that is, such whereof the property is gone away or departed from the owner. The true reason and only substantial ground of any forfeiture for crimes consist in this; that all property is derived from society, being one of those civil rights which are conferred upon individuals, in exchange for that degree of natural freedom, which every man must sacrifice when he enters into social communities. If therefore a member of any national community violates the fundamental contract of his association, by transgressing the municipal law, he forfeits his right to such privileges as he claims by that contract; and the state may very justly resume that portion of property, or any part of it, which the laws have before assigned him. Hence, in every offence of an atrocious kind, the laws of England have exacted a total confiscation of the moveables or personal estate; and in many cases a perpetual, in others only a temporary, loss of the offender's immoveables or landed property; and have vested them both in the king, who is the person supposed to be offended, being the one visible magistrate in whom the majesty of the public resides. The

## particulars of these forfeitures will be more properly recited when we

treat of crimes and misdemesnors. I therefore only mention them here, for the sake of regularity, as a part of the _census regalis_; and shall postpone for the present the farther consideration of all forfeitures, excepting one species only, which arises from the misfortune rather than the crime of the owner, and is called a _deodand_.

BY this is meant whatever personal chattel is the immediate occasion of the death of any reasonable creature; which is forfeited to the king, to be applied to pious uses, and distributed in alms by his high almoner[u]; though formerly destined to a more superstitious purpose. It seems to have been originally designed, in the blind days of popery, as an expiation for the souls of such as were snatched away by sudden death; and for that purpose ought properly to have been given to holy church[w]; in the same manner, as the apparel of a stranger who was found dead was applied to purchase masses for the good of his soul. And this may account for that rule of law, that no deodand is due where an infant under the years of discretion is killed by a fall _from_ a cart, or horse, or the like, not being in motion[x]; whereas, if an adult person falls from thence and is killed, the thing is certainly forfeited. For the reason given by sir Matthew Hale seems to be very inadequate, _viz._ because an infant is not able to take care of himself: for why should the owner save his forfeiture, on account of the imbecillity of the child, which ought rather to have made him more cautious to prevent any accident of mischief? The true ground of this rule seems rather to be, that the child, by reason of it's want of discretion, is presumed incapable of actual sin, and therefore needed no deodand to purchase propitiatory masses: but every adult, who dies in actual sin, stood in need of such atonement, according to the humane superstition of the founders of the English law.

[Footnote u: 1 Hal. P.C. 419. Fleta. _l._ 1. _c._ 25.]

[Footnote w: Fitzh. _Abr. tit. Enditement._ _pl._ 27. Staunf. P.C. 20, 21.]

[Footnote x: 3 Inst. 57. 1 Hal. P.C. 422.]

THUS stands the law, if a person be killed by a fall from a thing standing still. But if a horse, or ox, or other animal, of his own motion, kill as well an infant as an adult, or if a cart run over him, they shall in either case be forfeited as deodands[y]; which is grounded upon this additional reason, that such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by such forfeiture. A like punishment is in like cases inflicted by the mosaical law[z]: "if an ox gore a man that he die, the ox shall be stoned, and his flesh shall not be eaten." And among the Athenians[a], whatever was the cause of a man's death, by falling upon him, was exterminated or cast out of the dominions of the republic. Where a thing, not in motion, is the occasion of a man's death, that part only which is the immediate cause is forfeited; as if a man be climbing up a wheel, and is killed by falling from it, the wheel alone is a deodand[b]: but, wherever the thing is in motion, not only that part which immediately gives the wound, (as the wheel, which runs over his body) but all things which move with it and help to make the wound more dangerous (as the cart and loading, which increase the pressure of the wheel) are forfeited[c]. It matters not whether the owner were concerned in the killing or not; for if a man kills another with my sword, the sword is forfeited[d] as an accursed thing[e]. And therefore, in all indictments for homicide, the instrument of death and the value are presented and found by the grand jury (as, that the stroke was given with a certain penknife, value sixpence) that the king or his grantee may claim the deodand: for it is no deodand, unless it be presented as such by a jury of twelve men[f]. No deodands are due for accidents happening upon the high sea, that being out of the jurisdiction of the common law: but if a man falls from a boat or ship in fresh water, and is drowned, the vessel and cargo are in strictness a deodand[g].

[Footnote y: _Omnia, quae movent ad mortem, sunt Deo danda._ Bracton. _l._ 3. _c._ 5.]

[Footnote z: Exod. 21. 28.]

[Footnote a: Aeschin. _contr. Ctesiph._]

[Footnote b: 1 Hal. P.C. 422.]

[Footnote c: 1 Hawk. P.C. c. 26.]

[Footnote d: A similar rule obtained among the antient Goths. _Si quis, me nesciente, quocunque meo telo vel instrumento in perniciem suam abutatur; vel ex aedibus meis cadat, vel incidat in puteum meum, quantumvis tectum et munitum, vel in cataractam, et sub molendino meo confringatur, ipse aliqua mulcta plectar; ut in parte infelicitatis meae numeretur, habuisse vel aedificasse aliquod quo homo periret._ Stiernhook _de jure Goth._ _l._ 3. _c._ 4.]

[Footnote e: Dr & St. d. 2. c. 51.]

[Footnote f: 3 Inst. 57.]

[Footnote g: 3 Inst. 58. 1 Hal. P.C. 423. Molloy _de jur. maritim._ 2. 225.]

DEODANDS, and forfeitures in general, as well as wrecks, treasure trove, royal fish, mines, waifs, and estrays, may be granted by the king to particular subjects, as a royal franchise: and indeed they are for the most part granted out to the lords of manors, or other liberties; to the perversion of their original design.

XVII. ANOTHER branch of the king's ordinary revenue arises from escheats of lands, which happen upon the defect of heirs to succeed to the inheritance; whereupon they in general revert to and vest in the king, who is esteemed, in the eye of the law, the original proprietor of all the lands in the kingdom. But the discussion of this topic more properly belongs to the second book of these commentaries, wherein we shall particularly consider the manner in which lands may be acquired or lost by escheat.

XVIII. I PROCEED therefore to the eighteenth and last branch of the king's ordinary revenue; which consists in the custody of idiots, from whence we shall be naturally led to consider also the custody of lunatics.

AN idiot, or natural fool, is one that hath had no understanding from his nativity; and therefore is by law presumed never likely to attain any. For which reason the custody of him and of his lands was formerly vested in the lord of the fee[h]; (and therefore still, by special custom, in some manors the lord shall have the ordering of idiot and lunatic copyholders[i]) but, by reason of the manifold abuses of this power by subjects, it was at last provided by common consent, that it should be given to the king, as the general conservator of his people, in order to prevent the idiot from wasting his estate, and reducing himself and his heirs to poverty and distress[k]: This fiscal prerogative of the king is declared in parliament by statute 17 Edw. II. c. 9. which directs (in affirmance of the common law[l],) that the king shall have ward of the lands of natural fools, taking the profits without waste or destruction, and shall find them necessaries; and after the death of such idiots he shall render the estate to the heirs; in order to prevent such idiots from aliening their lands, and their heirs from being disherited.

[Footnote h: Flet. _l._ 1. _c._ 11. §. 10.]

[Footnote i: Dyer. 302. Hutt. 17. Noy 27.]

[Footnote k: F.N.B. 232.]

[Footnote l: 4 Rep. 126.]

BY the old common law there is a writ _de idiota inquirendo_, to enquire whether a man be an idiot or not[m]: which must be tried by a jury of twelve men; and if they find him _purus idiota_, the profits of his lands, and the custody of his person may be granted by the king to some subject, who has interest enough to obtain them[n]. This branch of the revenue hath been long considered as a hardship upon private families; and so long ago as in the 8 Jac. I. it was under the consideration of parliament, to vest this custody in the relations of the party, and to settle an equivalent on the crown in lieu of it; it being then proposed to share the same fate with the slavery of the feodal tenures, which has been since abolished[o]. Yet few instances can be given of the oppressive exertion of it, since it seldom happens that a jury finds a man an idiot _a nativitate_, but only _non compos mentis_ from some particular time; which has an operation very different in point of law.

[Footnote m: F.N.B. 232.]

[Footnote n: This power, though of late very rarely exerted, is still alluded to in common speech, by that usual expression of _begging_ a man for a fool.]

[Footnote o: 4. Inst. 203. Com. Journ. 1610.]

A MAN is not an idiot[p], if he hath any glimmering of reason, so that he can tell his parents, his age, or the like common matters. But a man who is born deaf, dumb, and blind, is looked upon by the law as in the same state with an idiot[q]; he being supposed incapable of understanding, as wanting those senses which furnish the human mind with ideas.

[Footnote p: F.N.B. 233.]

[Footnote q: Co. Litt. 42. Fleta. _l._ 6. _c._ 40.]

A LUNATIC, or _non compos mentis_, is one who hath had understanding, but by disease, grief, or other accident hath lost the use of his reason. A lunatic is indeed properly one that hath lucid intervals; sometimes enjoying his senses, and sometimes not, and that frequently depending upon the change of the moon. But under the general name of _non compos mentis_ (which sir Edward Coke says is the most legal name[r]) are comprized not only lunatics, but persons under frenzies; or who lose their intellects by disease; those that _grow_ deaf, dumb, and blind, not being _born_ so; or such, in short, as are by any means rendered incapable of conducting their own affairs. To these also, as well as idiots, the king is guardian, but to a very different purpose. For the law always imagines, that these accidental misfortunes may be removed; and therefore only constitutes the crown a trustee for the unfortunate persons, to protect their property, and to account to them for all profits received, if they recover, or after their decease to their representatives. And therefore it is declared by the statute 17 Edw. II. c. 10. that the king shall provide for the custody and sustentation of lunatics, and preserve their lands and the profits of them, for their use, when they come to their right mind: and the king shall take nothing to his own use; and if the parties die in such estate, the residue shall be distributed for their souls by the advice of the ordinary, and of course (by the subsequent amendments of the law of administrations) shall now go to their executors or administrators.

[Footnote r: 1 Inst. 246.]

THE method of proving a person _non compos_ is very similar to that of proving him an idiot. The lord chancellor, to whom, by special authority from the king, the custody of idiots and lunatics is intrusted[s], upon petition or information, grants a commission in nature of the writ _de idiota inquirendo_, to enquire into the party's state of mind; and if he be found _non compos_, he usually commits the care of his person, with a suitable allowance for his maintenance, to some friend, who is then called his committee. However, to prevent sinister practices, the next heir is never permitted to be this committee of the person; because it is his interest that the party should die. But, it hath been said, there lies not the same objection against his next of kin, provided he be not his heir; for it is his interest to preserve the lunatic's life, in order to increase the personal estate by savings, which he or his family may hereafter be entitled to enjoy[t]. The heir is generally made the manager or committee of the estate, it being clearly his interest by good management to keep it in condition; accountable however to the court of chancery, and to the _non compos_ himself, if he recovers; or otherwise, to his administrators.

[Footnote s: 3 P. Wms. 108.]

[Footnote t: 2 P. Wms. 638.]

IN this care of idiots and lunatics the civil law agrees with ours; by assigning them tutors to protect their persons, and curators to manage their estates. But in another instance the Roman law goes much beyond the English. For, if a man by notorious prodigality was in danger of wasting his estate, he was looked upon as _non compos_ and committed to the care of curators or tutors by the praetor[u]. And by the laws of Solon such prodigals were branded with perpetual infamy[w]. But with us, when a man on an inquest of idiocy hath been returned an _unthrift_ and not an _idiot_[x], no farther proceedings have been had. And the propriety of the practice itself seems to be very questionable. It was doubtless an excellent method of benefiting the individual and of preserving estates in families; but it hardly seems calculated for the genius of a free nation, who claim and exercise the liberty of using their own property as they please. "_Sic utere tuo, ut alienum non laedas_," is the only restriction our laws have given with regard to oeconomical prudence. And the frequent circulation and transfer of lands and other property, which cannot be effected without extravagance somewhere, are perhaps not a little conducive towards keeping our mixed constitution in it's due health and vigour.

[Footnote u: _Solent praetores, si talem hominem invenerint, qui neque tempus neque finem expensarum habet, sed bona sua dilacerando et dissipando profundit, curatorem ei dare, exemplo furiosi: et tamdiu erunt ambo in curatione, quamdiu vel furiosus sanitatem, vel ille bonos mores, receperit._ _Ff._ 27. 10. 1.]

[Footnote w: Potter. Antiqu. b. 1. c. 26.]

[Footnote x: Bro. _Abr. tit. Ideot._ 4.]

THIS may suffice for a short view of the king's _ordinary_ revenue, or the proper patrimony of the crown; which was very large formerly, and capable of being increased to a magnitude truly formidable: for there are very few estates in the kingdom, that have not, at some period or other since the Norman conquest, been vested in the hands of the king by forfeiture, escheat, or otherwise. But, fortunately for the liberty of the subject, this hereditary landed revenue, by a series of improvident management, is sunk almost to nothing; and the casual profits, arising from the other branches of the _census regalis_, are likewise almost all of them alienated from the crown. In order to supply the deficiences of which, we are now obliged to have recourse to new methods of raising money, unknown to our early ancestors; which methods constitute the king's _extraordinary_ revenue. For, the publick patrimony being got into the hands of private subjects, it is but reasonable that private contributions should supply the public service. Which, though it may perhaps fall harder upon some individuals, whose ancestors have had no share in the general plunder, than upon others, yet, taking the nation throughout, it amounts to nearly the same; provided the gain by the extraordinary, should appear to be no greater than the loss by the ordinary, revenue. And perhaps, if every gentleman in the kingdom was to be stripped of such of his lands as were formerly the property of the crown; was to be again subject to the inconveniences of purveyance and pre-emption, the oppression of forest laws, and the slavery of feodal tenures; and was to resign into the king's hands all his royal franchises of waifs, wrecks, estrays, treasure-trove, mines, deodands, forfeitures, and the like; he would find himself a greater loser, than by paying his _quota_ to such taxes, as are necessary to the support of government. The thing therefore to be wished and aimed at in a land of liberty, is by no means the total abolition of taxes, which would draw after it very pernicious consequences, and the very supposition of which is the height of political absurdity. For as the true idea of government and magistracy will be found to consist in this, that some few men are deputed by many others to preside over public affairs, so that individuals may the better be enabled to attend to their private concerns; it is necessary that those individuals should be bound to contribute a portion of their private gains, in order to support that government, and reward that magistracy, which protects them in the enjoyment of their respective properties. But the things to be aimed at are wisdom and moderation, not only in granting, but also in the method of raising, the necessary supplies; by contriving to do both in such a manner as may be most conducive to the national welfare and at the same time most consistent with oeconomy and the liberty of the subject; who, when properly taxed, contributes only, as was before observed[y], some part of his property, in order to enjoy the rest.

[Footnote y: pag. 271.]

THESE extraordinary grants are usually called by the synonymous names of aids, subsidies, and supplies; and are granted, we have formerly seen[z], by the commons of Great Britain, in parliament assembled: who, when they have voted a supply to his majesty, and settled the _quantum_ of that supply, usually resolve themselves into what is called a committee of ways and means, to consider of the ways and means of raising the supply so voted. And in this committee every member (though it is looked upon as the peculiar province of the chancellor of the exchequer) may propose such scheme of taxation as he thinks will be least detrimental to the public. The resolutions of this committee (when approved by a vote of the house) are in general esteemed to be (as it were) final and conclusive. For, through [Transcriber's Note: though] the supply cannot be actually raised upon the subject till directed by an act of the whole parliament, yet no monied man will scruple to advance to the government any quantity of ready cash, on the credit of a bare vote of the house of commons, though no law be yet passed to establish it.

[Footnote z: pag. 163.]

THE taxes, which are raised upon the subject, are either annual or perpetual. The usual annual taxes are those upon land and malt.

I. THE land tax, in it's modern shape, has superseded all the former methods of rating either property, or persons in respect of their property, whether by tenths or fifteenths, subsidies on land, hydages, scutages, or talliages; a short explication of which will greatly assist us in understanding our antient laws and history.

TENTHS, and fifteenths[a], were temporary aids issuing out of personal property, and granted to the king by parliament. They were formerly the real tenth or fifteenth part of all the moveables belonging to the subject; when such moveables, or personal estates, were a very different and a much less considerable thing than what they usually are at this day. Tenths are said to have been first granted under Henry the second, who took advantage of the fashionable zeal for croisades to introduce this new taxation, in order to defray the expense of a pious expedition to Palestine, which he really or seemingly had projected against Saladine emperor of the Saracens; whence it was originally denominated the Saladine tenth[b]. But afterwards fifteenths were more usually granted than tenths. Originally the amount of these taxes was uncertain, being levied by assessments new made at every fresh grant of the commons, a commission for which is preserved by Matthew Paris[c]: but it was at length reduced to a certainty in the eighth of Edw. III. when, by virtue of the king's commission, new taxations were made of every township, borough, and city in the kingdom, and recorded in the exchequer; which rate was, at the time, the fifteenth part of the value of every township, the whole amounting to about 29000_l._ and therefore it still kept up the name of a fifteenth, when, by the alteration of the value of money and the encrease of personal property, things came to be in a very different situation. So that when, of later years, the commons granted the king a fifteenth, every parish in England immediately knew their proportion of it; that is, the same identical sum that was assessed by the same aid in the eighth of Edw. III; and then raised it by a rate among themselves, and returned it into the royal exchequer.

[Footnote a: 2 Inst. 77. 4 Inst. 34.]

[Footnote b: Hoved. _A.D._ 1188. Carte. 1. 719. Hume. 1. 329.]

[Footnote c: _A.D._ 1232.]

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 tenures[d]; when every tenant of a knight's fee was bound, if called upon, to attend the king in his army for forty days in every year. But this personal attendance growing troublesome in many respects, the tenants found means of compounding for it, by first sending others in their stead, and in process of time by making a pecuniary satisfaction to the crown in lieu of it. This pecuniary satisfaction at last came to be levied by assessments, at so much for every knight's fee, under the name of scutages; which appear to have been levied for the first time in the fifth year of Henry the second, on account of his expedition to Toulouse, and were then (I apprehend) mere arbitrary compositions, as the king and the subject could agree. But this precedent being afterwards abused into a means of oppression, (by levying scutages 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 promise in his _magna carta_[e], that no scutage should be imposed without the consent of the common council of the realm. This clause was indeed omitted in the charters of Henry III, where[f] we only find it stipulated, that scutages should be taken as they were used to be in the time of king Henry the second. Yet afterwards, by a variety of statutes under Edward I and his grandson[g], it was provided, that the king shall not take any aids or tasks, any talliage or tax, but by the common assent of the great men and commons in parliament.

[Footnote d: See the second book of these commentaries.]

[Footnote e: _cap._ 14.]

[Footnote f: 9 Hen. III. c. 37.]

[Footnote g: 25 Edw. I. c. 5 & 6. 34 Edw. I. st. 4. c. 1. 14 Edw. III. st. 2. c. 1.]

OF the same nature with scutages upon knights-fees were the assessments of hydage upon all other lands, and of talliage upon cities and burghs[h]. But they all gradually fell into disuse, upon the introduction of subsidies, about the time of king Richard II and king Henry IV. These were a tax, not immediately imposed upon property, but upon persons in respect of their reputed estates, after the nominal rate of 4_s._ in the pound for lands, and 2_s._ 6_d._ for goods; and for those of aliens in a double proportion. But this assessment was also made according to an antient valuation; wherein the computation was so very moderate, and the rental of the kingdom was supposed to be so exceeding low, that one subsidy of this sort did not, according to sir Edward Coke[i], amount to more than 70000_l._ whereas a modern land tax at the same rate produces two millions. It was antiently the rule never to grant more than one subsidy, and two fifteenths at a time; but this rule was broke through for the first time on a very pressing occasion, the Spanish invasion in 1588; when the parliament gave queen Elizabeth two subsidies and four fifteenths. Afterwards, as money sunk in value, more subsidies were given; and we have an instance in the first parliament of 1640, of the king's desiring twelve subsidies of the commons, to be levied in three years; which was looked upon as a startling proposal: though lord Clarendon tells us[k], that the speaker, serjeant Glanvile, made it manifest to the house, how very inconsiderable a sum twelve subsidies amounted to, by telling them he had computed what he was to pay for them; and, when he named the sum, he being known to be possessed of a great estate, it seemed not worth any farther deliberation. And indeed, upon calculation, we shall find, that the total amount of these twelve subsidies, to be raised in three years, is less than what is now raised in one year, by a land tax of two shillings in the pound.

[Footnote h: Madox. hist. exch. 480.]

[Footnote i: 4 Inst. 33.]

[Footnote k: Hist. b. 2.]

THE grant of scutages, talliages, or subsidies by the commons did not extend to spiritual preferments; those being usually taxed at the same time by the clergy themselves in convocation; which grants of the clergy were confirmed in parliament, otherwise they were illegal, and not binding; as the same noble writer observes of the subsidies granted by the convocation, who continued sitting after the dissolution of the first parliament in 1640. A subsidy granted by the clergy was after the rate of 4_s._ in the pound according to the valuation of their livings in the king's books; and amounted, sir Edward Coke tells us[l], to about 20000_l._ While this custom continued, convocations were wont to sit as frequently as parliaments: but the last subsidies, thus given by the clergy, were those confirmed by statute 15 Car. II. cap. 10. since which another method of taxation has generally prevailed, which takes in the clergy as well as the laity; in recompense for which the beneficed clergy have from that period been allowed to vote at the elections of knights of the shire[m]; and thenceforward also the practice of giving ecclesiastical subsidies hath fallen into total disuse.

[Footnote l: 4 Inst 33.]

[Footnote m: Dalt. of sheriffs, 418. Gilb. hist. of exch. c. 4.]

THE lay subsidy was usually raised by commissioners appointed by the crown, or the great officers of state: and therefore in the beginning of the civil wars between Charles I and his parliament, the latter, having no other sufficient revenue to support themselves and their measures, introduced the practice of laying weekly and monthly assessments[n] of a specific sum upon the several counties of the kingdom; to be levied by a pound rate on lands and personal estates: which were occasionally continued during the whole usurpation, sometimes at the rate of 120000_l._ a month; sometimes at inferior rates[o]. After the restoration the antient method of granting subsidies, instead of such monthly assessments, was twice, and twice only, renewed; viz. in 1663, when four subsidies were granted by the temporalty, and four by the clergy; and in 1670, when 800000_l._ was raised by way of subsidy, which was the last time of raising supplies in that manner. For, the monthly assessments being now established by custom, being raised by commissioners named by parliament, and producing a more certain revenue; from that time forwards we hear no more of subsidies; but occasional assessments were granted as the national emergencies required. These periodical assessments, the subsidies which preceded them, and the more antient scutage, hydage, and talliage, were to all intents and purposes a land tax; and the assessments were sometimes expressly called so[p]. Yet a popular opinion has prevailed, that the land tax was first introduced in the reign of king William III; because in the year 1692 a new assessment or valuation of estates was made throughout the kingdom; which, though by no means a perfect one, had this effect, that a supply of 500000_l._ was equal to 1_s._ in the pound of the value of the estates given in. And, according to this enhanced valuation, from the year 1693 to the present, a period of above seventy years, the land tax has continued an annual charge upon the subject; above half the time at 4_s._ in the pound, sometimes at 3_s_, sometimes at 2_s_, twice[q] at 1_s_, but without any total intermission. The medium has been 3_s._ 3_d._ in the pound, being equivalent to twenty three antient subsidies, and amounting annually to more than a million and an half of money. The method of raising it is by charging a particular sum upon each county, according to the valuation given in, _A.D._ 1692: and this sum is assessed and raised upon individuals (their personal estates, as well as real, being liable thereto) by commissioners appointed in the act, being the principal landholders of the county, and their officers.

[Footnote n: 29 Nov. 4 Mar. 1642.]

[Footnote o: One of these bills of assessment, in 1656, is preserved in Scobell's collection, 400.]

[Footnote p: Com. Journ. 26 Jun. 9 Dec. 1678.]

[Footnote q: in the years 1732 and 1733.]

II. THE other annual tax is the malt tax; which is a sum of 750000_l_, raised every year by parliament, ever since 1697, by a duty of 6_d._ in the bushel on malt, and a proportionable sum on certain liquors, such as cyder and perry, which might otherwise prevent the consumption of malt. This is under the management of the commissioners of the excise; and is indeed itself no other than an annual excise, the nature of which species of taxation I shall presently explain: only premising at present, that in the year 1760 an additional perpetual excise of 3_d._ _per_ bushel was laid upon malt; and in 1763 a proportionable excise was laid upon cyder and perry.

THE perpetual taxes are,

I. THE customs; or the duties, toll, tribute, or tariff, payable upon merchandize exported and imported. The considerations upon which this revenue (or the more antient part of it, which arose only from exports) was invested in the king, were said to be two[r]; 1. Because he gave the subject leave to depart the kingdom, and to carry his goods along with him. 2. Because the king was bound of common right to maintain and keep up the ports and havens, and to protect the merchant from pirates. Some have imagined they are called with us customs, because they were the inheritance of the king by immemorial usage and the common law, and not granted him by any statute[s]: but sir Edward Coke hath clearly shewn[t], that the king's first claim to them was by grant of parliament 3 Edw. I. though the record thereof is not now extant. And indeed this is in express words confessed by statute 25 Edw. I. c. 7. wherein the king promises to take no customs from merchants, without the common assent of the realm, "saving to us and our heirs, the customs on wools, skins, and leather, formerly granted to us by the commonalty aforesaid." These were formerly called the hereditary customs of the crown; and were due on the exportation only of the said three commodities, and of none other: which were stiled the _staple_ commodities of the kingdom, because they were obliged to be brought to those ports where the king's staple was established, in order to be there first rated, and then exported[u]. They were denominated in the barbarous Latin of our antient records, _custuma_[w]; not _consuetudines_, which is the language of our law whenever it means merely usages. The duties on wool, sheep-skins, or woolfells, and leather, exported, were called _custuma antiqua sive magna_; and were payable by every merchant, as well native as stranger; with this difference, that merchant-strangers paid an additional toll, _viz._ half as much again as was paid by natives. The _custuma parva et nova_ were an impost of 3_d._ in the pound, due from merchant-strangers only, for all commodities as well imported as exported; which was usually called the alien's duty, and was first granted in 31 Edw. I[x]. But these antient hereditary customs, especially those on wool and woolfells, came to be of little account when the nation became sensible of the advantages of a home manufacture, and prohibited the exportation of wool by statute 11 Edw. III. c. 1.

[Footnote r: Dyer. 165.]

[Footnote s: Dyer. 43. _pl._ 24.]

[Footnote t: 2 Inst. 58, 59.]

[Footnote u: Dav. 9.]

[Footnote w: This appellation seems to be derived from the French word _coustum_, or _coûtum_, which signifies toll or tribute, and owes it's own etymology to the word _coust_, which signifies price, charge, or, as we have adopted it in English, _cost_.]

[Footnote x: 4 Inst. 29.]

THERE is also another antient hereditary duty belonging to the crown, called the _prisage_ or _butlerage_ of wines. Prisage was a right of _taking_ two tons of wine from every ship 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-strangers; which is called butlerage, because paid to the king's butler[y].

[Footnote y: Dav. 8. _b._ 2 Bulstr. 254.]

OTHER customs payable upon exports and imports are distinguished into subsidies, tonnage, poundage, and other imposts. Subsidies are such as were imposed by parliament upon any of the staple commodities before mentioned, over and above the _custuma antiqua et magna_: tonnage was a duty upon all wines imported, over and above the prisage and butlerage aforesaid: poundage was a duty imposed _ad valorem_, at the rate of 12_d._ in the pound, on all other merchandize whatsoever: and the other imports were such as were occasionally laid on by parliament, as circumstances and times required[z]. These distinctions are now in a manner forgotten, except by the officers immediately concerned in this department; their produce being in effect all blended together, under the one denomination of the customs.

[Footnote z: Dav. 11, 12.]

BY these we understand, at present, a duty or subsidy paid by the merchant, at the quay, upon all imported as well as exported commodities, by authority of parliament; unless where, for particular national reasons, certain rewards, bounties, or drawbacks, are allowed for particular exports or imports. Those of tonnage and poundage, in

## particular, were at first granted, as the old statutes, and

## particularly 1 Eliz. c. 19. express it, for the defence of the realm,

and the keeping and safeguard of the seas, and for the intercourse of merchandize safely to come into and pass out of the same. They were at first usually granted only for a stated term of years, as, for two years in 5 Ric. II[a]; but in Henry the fifth's time, they were granted him for life by a statute in the third year of his reign; and again to Edward IV for the term of his life also: since which time they were regularly granted to all his successors, for life, sometimes at their first, sometimes at other subsequent parliaments, till the reign of Charles the first; when, as had before happened in the reign of Henry VIII[b] and other princes, they were neglected to be asked. And yet they were imprudently and unconstitutionally levied and taken without consent of parliament, (though more than one had been assembled) for fifteen years together; which was one of the causes of those unhappy discontents, justifiable at first in too many instances, but which degenerated at last into causeless rebellion and murder. For, as in every other, so in this particular case, the king (previous to the commencement of hostilities) gave the nation ample satisfaction for the errors of his former conduct, by passing an act[c], whereby he renounced all power in the crown of levying the duty of tonnage and poundage, without the express consent of parliament; and also all power of imposition upon any merchandizes whatever. Upon the restoration this duty was granted to king Charles the second for life, and so it was to his two immediate successors; but now by three several statutes, 9 Ann. c. 6. 1 Geo. I. c. 12. and 3 Geo. I. c. 7. it is made perpetual and mortgaged for the debt of the publick. The customs, thus imposed by parliament, are chiefly contained in two books of rates, set forth by parliamentary authority[d]; one signed by sir Harbottle Grimston, speaker of the house of commons in Charles the second's time; and the other an additional one signed by sir Spenser Compton, speaker in the reign of George the first; to which also subsequent additions have been made. Aliens pay a larger proportion than natural subjects, which is what is now generally understood by the aliens' duty; to be exempted from which is one principal cause of the frequent applications to parliament for acts of naturalization.

[Footnote a: Dav. 12.]

[Footnote b: Stat. 6 Hen. VIII. c. 14.]

[Footnote c: 16 Car. I. c. 8.]

[Footnote d: Stat. 12 Car. II. c. 4. 11 Geo. I. c. 7.]

THESE customs are then, we see, a tax immediately paid by the merchant, although ultimately by the consumer. And yet these are the duties felt least by the people; and, if prudently managed, the people hardly consider that they pay them at all. For the merchant is easy, being sensible he does not pay them for himself; and the consumer, who really pays them, confounds them with the price of the commodity: in the same manner as Tacitus observes, that the emperor Nero gained the reputation of abolishing the tax on the sale of slaves, though he only transferred it from the buyer to the seller; so that it was, as he expresses it, "_remissum magis specie, quam vi: quia cum venditor pendere juberetur, in partem pretii emptoribus accrescebat_[e]." But this inconvenience attends it on the other hand, that these imposts, if too heavy, are a check and cramp upon trade; and especially when the value of the commodity bears little or no proportion to the quantity of the duty imposed. This in consequence gives rise also to smuggling, which then becomes a very lucrative employment: and it's natural and most reasonable punishment, _viz._ confiscation of the commodity, is in such cases quite ineffectual; the intrinsic value of the goods, which is all that the smuggler has paid, and therefore all that he can lose, being very inconsiderable when compared with his prospect of advantage in evading the duty. Recourse must therefore be had to extraordinary punishments to prevent it; perhaps even to capital ones: which destroys all proportion of punishment[f], and puts murderers upon an equal footing with such as are really guilty of no natural, but merely a positive offence.

[Footnote e: Hist. l. 13.]

[Footnote f: Montesqu. Sp. L. b. 13. c. 8.]

THERE is also another ill consequence attending high imports on merchandize, not frequently considered, but indisputably certain; that the earlier any tax is laid on a commodity, the heavier it falls upon the consumer in the end: for every trader, through whose hands it passes, must have a profit, not only upon the raw material and his own labour and time in preparing it, but also upon the very tax itself, which he advances to the government; otherwise he loses the use and interest of the money which he so advances. To instance in the article of foreign paper. The merchant pays a duty upon importation, which he does not receive again till he sells the commodity, perhaps at the end of three months. He is therefore equally entitled to a profit upon that duty which he pays at the customhouse, as to a profit upon the original price which he pays to the manufacturer abroad; and considers it accordingly in the price he demands of the stationer. When the stationer sells it again, he requires a profit of the printer or bookseller upon the whole sum advanced by him to the merchant: and the bookseller does not forget to charge the full proportion to the student or ultimate consumer; who therefore does not only pay the original duty, but the profits of these three intermediate traders, who have successively advanced it for him. This might be carried much farther in any mechanical, or more complicated, branch of trade.

II. DIRECTLY opposite in it's nature to this is the excise duty; which is an inland imposition, paid sometimes upon the consumption of the commodity, or frequently upon the retail sale, which is the last stage before the consumption. This is doubtless, impartially speaking, the most oeconomical way of taxing the subject: the charges of levying, collecting, and managing the excise duties being considerably less in proportion, than in any other branch of the revenue. It also renders the commodity cheaper to the consumer, than charging it with customs to the same amount would do; for the reason just now given, because generally paid in a much later stage of it. But, at the same time, the rigour and arbitrary proceedings of excise-laws seem hardly compatible with the temper of a free nation. For the frauds that might be committed in this branch of the revenue, unless a strict watch is kept, make it necessary, wherever it is established, to give the officers a power of entring and searching the houses of such as deal in excisable commodities, at any hour of the day, and, in many cases, of the night likewise. And the proceedings in case of transgressions are so summary and sudden, that a man may be convicted in two days time in the penalty of many thousand pounds by two commissioners or justices of the peace; to the total exclusion of the trial by jury, and disregard of the common law. For which reason, though lord Clarendon tells us[g], that to his knowlege the earl of Bedford (who was made lord treasurer by king Charles the first, to oblige his parliament) intended to have set up the excise in England, yet it never made a part of that unfortunate prince's revenue; being first introduced, on the model of the Dutch prototype, by the parliament itself after it's rupture with the crown. Yet such was the opinion of it's general unpopularity, that when in 1642 "aspersions were cast by malignant persons upon the house of commons, that they intended to introduce excises, the house for it's vindication therein did declare, that these rumours were false and scandalous; and that their authors should be apprehended and brought to condign punishment[h]." It's original establishment was in 1643, and it's progress was gradual[i]; being at first laid upon those persons and commodities, where it was supposed the hardship would be least perceivable, _viz._ the makers and venders of beer, ale, cyder, and perry[k]; and the royalists at Oxford soon followed the example of their brethren at Westminster by imposing a similar duty; both sides protesting that it should be continued no longer than to the end of the war, and then be utterly abolished[l]. But the parliament at Westminster soon after imposed it on flesh, wine, tobacco, sugar, and such a multitude of other commodities that it might fairly be denominated general; in pursuance of the plan laid down by Mr Pymme (who seems to have been the father of the excise) in his letter to sir John Hotham[m], signifying, "that they had proceeded in the excise to many particulars, and intended to go on farther; but that it would be necessary to use the people to it by little and little." And afterwards, when the people had been accustomed to it for a series of years, the succeeding champions of liberty boldly and openly declared, "the impost of excise to be the most easy and indifferent levy that could be laid upon the people[n]:" and accordingly continued it during the whole usurpation. Upon king Charles's return, it having then been long established and it's produce well known, some part of it was given to the crown, in the 12 Car. II, by way of purchase (as was before observed) for the feodal tenures and other oppressive parts of the hereditary revenue. But, from it's first original to the present time, it's very name has been odious to the people of England. It has nevertheless been imposed on abundance of other commodities in the reigns of king William III, and every succeeding prince, to support the enormous expenses occasioned by our wars on the continent. Thus brandies and other spirits are now excised at the distillery; printed silks and linens, at the printers; starch and hair powder, at the maker's; gold and silver wire, at the wiredrawer's; all plate whatsoever, first in the hands of the vendor, who pays yearly for a licence to sell it, and afterwards in the hands of the occupier, who also pays an annual duty for having it in his custody; and coaches and other wheel carriages, for which the occupier is excised; though not with the same circumstances of arbitrary strictness with regard to plate and coaches, as in the other instances. To these we may add coffee and tea, chocolate, and cocoa paste, for which the duty is paid by the retailer; all artificial wines, commonly called sweets; paper and pasteboard, first when made, and again if stained or printed; malt as before-mentioned; vinegars; and the manufacture of glass; for all which the duty is paid by the manufacturer; hops, for which the person that gathers them is answerable; candles and soap, which are paid for at the maker's; malt liquors brewed for sale, which are excised at the brewery; cyder and perry, at the mill; and leather and skins, at the tanner's. A list, which no friend to his country would wish to see farther encreased.

[Footnote g: Hist. b. 3.]

[Footnote h: Com. Journ. 8 Oct. 1642.]

[Footnote i: The translator and continuator of Petavius's chronological history (Lond. 1659.) informs us, that it was first moved for, 28 Mar. 1643, by Mr Prynne. And it appears from the journals of the commons that on that day the house resolved itself into a committee to consider of raising money, in consequence of which the excise was afterwards voted. But Mr Prynne was not a member of parliament till 7 Nov. 1648; and published in 1654 "A protestation against the illegal, detestable, and oft-condemned tax and extortion of excise in general." It is probably therefore a mistake of the printer for Mr Pymme, who was intended for chancellor of the exchequer under the earl of Bedford. (Lord Clar. b. 7.)]

[Footnote k: Com. Journ. 17 May 1643.]

[Footnote l: Lord Clar. b. 7.]

[Footnote m: 30 May 1643. Dugdale of the troubles, 120.]

[Footnote n: Ord. 14 Aug. 1649. c. 50. Scobell. 72. Stat. 1656. c. 19. Scobell. 453.]

III. I PROCEED therefore to a third duty, namely that upon salt; which is another distinct branch of his majesty's extraordinary revenue, and consists in an excise of 3_s._ 4_d._ _per_ bushel imposed upon all salt, by several statutes of king William and other subsequent reigns. This is not generally called an excise, because under the management of different commissioners: but the commissioners of the salt duties have by statute 1 Ann. c. 21. the same powers, and must observe the same regulations, as those of other excises. This tax had usually been only temporary; but by statute 26 Geo. II. c. 3. was made perpetual.

IV. ANOTHER very considerable branch of the revenue is levied with greater chearfulness, as, instead of being a burden, it is a manifest advantage to the public. I mean the post-office, or duty for the carriage of letters. As we have traced the original of the excise to the parliament of 1643, so it is but justice to observe that this useful invention owes it's birth to the same assembly. It is true, there existed postmasters in much earlier times: but I apprehend their business was confined to the furnishing of posthorses to persons who were desirous to travel expeditiously, and to the dispatching extraordinary pacquets upon special occasions. The outline of the present plan seems to have been originally conceived by Mr Edmond 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 considering what rates should be set upon inland letters[o]; and afterwards appointed postmaster by an ordinance of both the houses[p], in the execution of which office he first established a weekly conveyance of letters into all parts of the nation[q]: thereby saving to the public the charge of maintaining postmasters, to the amount of 7000_l._ _per annum_. And, his own emoluments being probably considerable, the common council of London endeavoured to erect another post-office in opposition to his, till checked by a resolution of the commons[r], declaring, that the office of postmaster is and ought to be in the sole power and disposal of the parliament. This office was afterwards farmed by one Manley in 1654[s]. But, in 1657, a regular post-office was erected by the authority of the protector and his parliament, upon nearly the same model as has been ever since adopted, with the same rates of postage as were continued till the reign of queen Anne[t]. After the restoration a similar office, with some improvements, was established by statute 12 Car. II. c. 35. but the rates of letters were altered, and some farther regulations added, by the statutes 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 some few cases: a provision, which is absolutely necessary; for nothing but an exclusive right can support an office of this sort: many rival independent offices would only serve to ruin one another. The privilege of letters coming free of postage, to and from members of parliament, was claimed by the house of commons in 1660, when the first legal settlement of the present post-office was made[u]; but afterwards dropped[w] upon a private assurance from the crown, that this privilege should be allowed the members[x]. And accordingly a warrant was constantly issued to the postmaster-general[y], directing the allowance thereof, to to [Transcriber's Note: duplicate word] the extent of two ounces in weight: till at length it was expressly confirmed by statute 4 Geo. III. c. 24; which adds many new regulations, rendered necessary by the great abuses crept into the practice of franking; whereby the annual amount of franked letters had gradually increased, from 23600_l._ in the year 1715, to 170700_l._ in the year 1763[z]. There cannot be devised a more eligible method, than this, of raising money upon the subject: for therein both the government and the people find a mutual benefit. The government acquires a large revenue; and the people do their business with greater ease, expedition, and cheapness, than they would be able to do if no such tax (and of course no such office) existed.

[Footnote o: Com. Journ. 28 Mar. 1642.]

[Footnote p: _Ibid._ 7 Sept. 1644.]

[Footnote q: _Ibid._ 21 Mar. 1649.]

[Footnote r: _Ibid._]

[Footnote s: Scobell. 358.]

[Footnote t: Com. Journ. 9 Jun. 1657. Scobell. 511.]

[Footnote u: Com. Journ. 17 Dec. 1660.]

[Footnote w: _Ibid._ 22 Dec. 1660.]

[Footnote x: _Ibid._ 16 Apr. 1735.]

[Footnote y: _Ibid._ 26 Feb. 1734.]

[Footnote z: _Ibid._ 28 Mar. 1764.]

V. A FIFTH branch of the perpetual revenue consists in the stamp duties, which are a tax imposed upon all parchment and paper whereon any legal proceedings, or private instruments of almost any nature whatsoever, are written; and also upon licences for retailing wines, of all denominations; upon all almanacks, newspapers, advertisements, cards, dice, and pamphlets containing less than six sheets of paper. These imposts are very various, according to the nature of the thing stamped, rising gradually from a penny to ten pounds. This is also a tax, which though in some instances it may be heavily felt, by greatly increasing the expence of all mercantile as well as legal proceedings, yet (if moderately imposed) is of service to the public in general, by authenticating instruments, and rendering it much more difficult than formerly to forge deeds of any standing; since, as the officers of this branch of the revenue vary their stamps frequently, by marks perceptible to none but themselves, a man that would forge a deed of king William's time, must know and be able to counterfeit the stamp of that date also. In France and some other countries the duty is laid on the contract itself, not on the instrument in which it is contained: but this draws the subject into a thousand nice disquisitions and disputes concerning the nature of his contract, and whether taxable or not; in which the farmers of the revenue are sure to have the advantage. Our method answers the purposes of the state as well, and consults the ease of the subject much better. The first institution of the stamp duties was by statute 5 & 6 W. & M. c. 21. and they have since in many instances been encreased to five times their original amount.

VI. A SIXTH branch is the duty upon houses and windows. As early as the conquest mention is made in domesday book of fumage or fuage, vulgarly called smoke farthings; which were paid by custom to the king for every chimney in the house. And we read that Edward the black prince (soon after his successes in France) in imitation of the English custom, imposed a tax of a florin upon every hearth in his French dominions[a]. But the first parliamentary establishment of it in England was by statute 13 & 14 Car. II. c. 10. whereby an hereditary revenue of 2_s._ for every hearth, in all houses paying to church and poor, was granted to the king for ever. And, by subsequent statutes, for the more regular assessment of this tax, the constable and two other substantial inhabitants of the parish, to be appointed yearly, were, once in every year, empowered to view the inside of every house in the parish. But, upon the revolution, by statute 1 W. & M. st. 1. c. 10. hearth-money was declared to be "not only a great oppression to the poorer sort, but a badge of slavery upon the whole people, exposing every man's house to be entered into, and searched at pleasure, by persons unknown to him; and therefore, to erect a lasting monument of their majesties' goodness in every house in the kingdom, the duty of hearth-money was taken away and abolished." This monument of goodness remains among us to this day: but the prospect of it was somewhat darkened when, in six years afterwards, by statute 7 W. III. c. 18. a tax was laid upon all houses (except cottages) of 2_s._ now advanced to 3_s._ _per_ house, and a tax also upon all windows, if they exceed nine, in such house. Which rates have been from time to time varied, (particularly by statutes 20 Geo. II. c. 3. and 31 Geo. II. c. 22.) and power is given to surveyors, appointed by the crown, to inspect the outside of houses, and also to pass through any house two days in the year, into any court or yard to inspect the windows there.

[Footnote a: Mod. Un. Hist. xxiii. 463. Spelm. Gloss. _tit. Fuage_.]

VII. THE seventh branch of the extraordinary perpetual revenue is the duty arising from licences to hackney coaches and chairs in London, and the parts adjacent. In 1654 two hundred hackney coaches were allowed within London, Westminster, and six miles round, under the direction of the court of aldermen[b]. By statute 13 & 14 Car. II. c. 2. four hundred were licensed; and the money arising thereby was applied to repairing the streets[c]. This number was increased to seven hundred by statute 5 W. & M. c. 22. and the duties vested in the crown: and by the statute 9 Ann. c. 23. and other subsequent statutes[d], there are now eight hundred licensed coaches and four hundred chairs. This revenue is governed by commissioners of it's own, and is, in truth, a benefit to the subject; as the expense of it is felt by no individual, and it's necessary regulations have established a competent jurisdiction, whereby a very refractory race of men may be kept in some tolerable order.

[Footnote b: Scobell. 313.]

[Footnote c: Com. Journ. 14 Feb. 1661.]

[Footnote d: 10 Ann. c. 19. §. 158. 12 Geo. I. c. 15. 33 Geo. II. c. 25.]

VIII. THE eighth and last branch of the king's extraordinary perpetual revenue is the duty upon offices and pensions; consisting in a payment of 1_s._ in the pound (over and above all other duties) out of all salaries, fees, and perquisites, of offices and pensions payable by the crown. This highly popular taxation was imposed by statute 31 Geo. II. c. 22. and is under the direction of the commissioners of the land tax.

THE clear neat produce of these several branches of the revenue, after all charges of collecting and management paid, amounts annually to about seven millions and three quarters sterling; besides two millions and a quarter raised annually, at an average, by the land and malt tax. How these immense sums are appropriated, is next to be considered. And this is, first and principally, to the payment of the interest of the national debt.

IN order to take a clear and comprehensive view of the nature of this national debt, it must first be premised, that after the revolution, when our new connections with Europe introduced a new system of foreign politics, the expenses of the nation, not only in settling the new establishment, but in maintaining long wars, as principals, on the continent, for the security of the Dutch barrier, reducing the French monarchy, settling the Spanish succession, supporting the house of Austria, maintaining the liberties of the Germanic body, and other purposes, increased to an unusual degree: insomuch that it was not thought advisable to raise all the expenses of any one year by taxes to be levied within that year, lest the unaccustomed weight of them should create murmurs among the people. It was therefore the policy of the times, to anticipate the revenues of their posterity, by borrowing immense sums for the current service of the state, and to lay no more taxes upon the subject than would suffice to pay the annual interest of the sums so borrowed: by this means converting the principal debt into a new species of property, transferrable from one man to another at any time and in any quantity. A system which seems to have had it's original in the state of Florence, _A.D._ 1344: which government then owed about 60000_l._ sterling; and, being unable to pay it, formed the principal into an aggregate sum, called metaphorically a _mount_ or _bank_, the shares whereof were transferrable like our stocks, with interest at 5 _per cent._ the prices varying according to the exigencies of the state[e]. 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 deserve that name. And the example then set has been so closely followed during the long wars in the reign of queen Anne, and since, that the capital of the national debt, (funded and unfunded) amounted in January 1765 to upwards of 145,000,000_l._ to pay the interest of which, and the charges for management, amounting annually to about four millions and three quarters, the revenues just enumerated are in the first place mortgaged, and made perpetual by parliament. Perpetual, I say; but still redeemable by the same authority that imposed them: which, if it at any time can pay off the capital, will abolish those taxes which are raised to discharge the interest.

[Footnote e: _Pro tempore, pro spe, pro commodo, minuitur eorum pretium atque augescit._ Aretin. See Mod. Un. Hist. xxxvi. 116.]

BY this means the quantity of property in the kingdom is greatly encreased in idea, compared with former times; yet, if we coolly consider it, not at all encreased in reality. We may boast of large fortunes, and quantities of money in the funds. But where does this money exist? It exists only in name, in paper, in public faith, in parliamentary security: and that is undoubtedly sufficient for the creditors of the public to rely on. But then what is the pledge which the public faith has pawned for the security of these debts? The land, the trade, and the personal industry of the subject; from which the money must arise that supplies the several taxes. In these therefore, and these only, the property of the public creditors does really and intrinsically exist: and of course the land, the trade, and the personal industry of individuals, are diminished in their true value just so much as they are pledged to answer. If A's income amounts to 100_l._ _per annum_; and he is so far indebted to B, that he pays him 50_l._ _per annum_ for his interest; one half of the value of A's property is transferred to B the creditor. The creditor's property exists in the demand which he has upon the debtor, and no where else; and the debtor is only a trustee to his creditor for one half of the value of his income. In short, the property of a creditor of the publick, consists in a certain portion of the national taxes: by how much therefore he is the richer, by so much the nation, which pays these taxes, is the poorer.

THE only advantage, that can result to a nation from public debts, is the encrease of circulation by multiplying the cash of the kingdom, and creating a new species of money, always ready to be employed in any beneficial undertaking, by means of it's transferrable quality; and yet productive of some profit, even when it lies idle and unemployed. A certain proportion of debt seems therefore to be highly useful to a trading people; but what that proportion is, it is not for me to determine. Thus much is indisputably certain, that the present magnitude of our national incumbrances very far exceeds all calculations of commercial benefit, and is productive of the greatest inconveniences. For, first, the enormous taxes, that are raised upon the necessaries of life for the payment of the interest of this debt, are a hurt both to trade and manufactures, by raising the price as well of the artificer's subsistence, as of the raw material, and of course, in a much greater proportion, the price of the commodity itself. Secondly, if part of this debt be owing to foreigners, either they draw out of the kingdom annually a considerable quantity of specie for the interest; or else it is made an argument to grant them unreasonable privileges in order to induce them to reside here. Thirdly, if the whole be owing to subjects only, it is then charging the active and industrious subject, who pays his share of the taxes, to maintain the indolent and idle creditor who receives them. Lastly, and principally, it weakens the internal strength of a state, by anticipating those resources which should be reserved to defend it in case of necessity. The interest we now pay for our debts would be nearly sufficient to maintain any war, that any national motives could require. And if our ancestors in king William's time had annually paid, so long as their exigences lasted, even a less sum than we now annually raise upon their accounts, they would in the time of war have borne no greater burdens, than they have bequeathed to and settled upon their posterity in time of peace; and might have been eased the instant the exigence was over.

THE produce of the several taxes beforementioned were originally separate and distinct funds; being securities for the sums advanced on each several tax, and for them only. But at last it became necessary, in order to avoid confusion, as they multiplied yearly, to reduce the number of these separate funds, by uniting and blending them together; superadding the faith of parliament for the general security of the whole. So that there are now only three capital funds of any account, the _aggregate_ fund, and the _general_ fund, so called from such union and addition; and the _south sea_ fund, being the produce of the taxes appropriated to pay the interest of such part of the national debt as was advanced by that company and it's annuitants. Whereby the separate funds, which were thus united, are become mutual securities for each other; and the whole produce of them, thus aggregated, is liable to pay such interest or annuities as were formerly charged upon each distinct fund; the faith of the legislature being moreover engaged to supply any casual deficiences.

THE customs, excises, and other taxes, which are to support these funds, depending on contingencies, upon exports, imports, and consumptions, must necessarily be of a very uncertain amount; but they have always been considerably more than was sufficient to answer the charge upon them. The surplusses therefore of the three great national funds, the aggregate, general, and south sea funds, over and above the interest and annuities charged upon them, are directed by statute 3 Geo. I. c. 7. to be carried together, and to attend the disposition of parliament; and are usually denominated the _sinking_ fund, because originally destined to sink and lower the national debt. To this have been since added many other intire duties, granted in subsequent years; and the annual interest of the sums borrowed on their respective credits is charged on and payable out of the produce of the sinking fund. However the neat surplusses and savings, after all deductions paid, amount annually to a very considerable sum;

## particularly in the year ending at Christmas 1764, to about two

millions and a quarter. For, as the interest on the national debt has been at several times reduced, (by the consent of the proprietors, who had their option either to lower their interest or be paid their principal) the savings from the appropriated revenues must needs be extremely large. This sinking fund is the last resort of the nation; on which alone depend all the hopes we can entertain of ever discharging or moderating our incumbrances. And therefore the prudent application of the large sums, now arising from this fund, is a point of the utmost importance, and well worthy the serious attention of parliament; which has thereby been enabled, in this present year 1765, to reduce above two millions sterling of the public debt.

BUT, before any part of the aggregate fund (the surplusses whereof are one of the chief ingredients that form the sinking fund) can be applied to diminish the principal of the public debt, it stands mortgaged by parliament to raise an annual sum for the maintenance of the king's houshold and the civil list. For this purpose, in the late reigns, the produce of certain branches of the excise and customs, the post-office, the duty on wine licences, the revenues of the remaining crown lands, the profits arising from courts of justice, (which articles include all the hereditary revenues of the crown) and also a clear annuity of 120000_l._ in money, were settled on the king for life, for the support of his majesty's houshold, and the honour and dignity of the crown. And, as the amount of these several branches was uncertain, (though in the last reign they were generally computed to raise almost a million) if they did not arise annually to 800,000_l._ the parliament engaged to make up the deficiency. But his present majesty having, soon after his accession, spontaneously signified his consent, that his own hereditary revenues might be so disposed of as might best conduce to the utility and satisfaction of the public, and having graciously accepted the limited sum of 800000_l._ _per annum_ for the support of his civil list (and that also charged with three life annuities, to the princess of Wales, the duke of Cumberland, and the princess Amalie, to the amount of 77000_l._) the said 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 annum_[f]. Hereby the revenues themselves, being put under the same 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 disinterested bounty of his majesty. The civil list, thus liquidated, together with the four millions and three quarters, interest of the national debt, and the two millions and a quarter produced from the sinking fund, make up the seven millions and three quarters _per annum_, neat money, which were before stated to be the annual produce of our _perpetual_ taxes; besides the immense, though uncertain, sums arising from the _annual_ taxes on land and malt, but which, at an average, may be calculated at more than two millions and a quarter; and, added to the preceding sum, make the clear produce of the taxes, exclusive of the charge of collecting, which are raised yearly on the people of this country, and returned into the king's exchequer, amount to upwards of ten millions sterling.

[Footnote f: Stat. 1 Geo. III. c. 1.]

THE expences defrayed by the civil list are those that in any shape relate to civil government; as, the expenses of the houshold; all salaries to officers of state, to the judges, and every of the king's servants; the appointments to foreign embassadors; the maintenance of the royal family; the king's private expenses, or privy purse; and other very numerous outgoings, as secret service money, pensions, and other bounties: which sometimes have so far exceeded the revenues appointed for that purpose, that application has been made to parliament to discharge the debts contracted on the civil list; as

## particularly in 1724, when one million was granted for that purpose by

the statute 11 Geo. I. c. 17.

THE civil list is indeed properly the whole of the king's revenue in his own distinct capacity; the rest being rather the revenue of the public, or it's creditors, though collected, and distributed again, in the name and by the officers of the crown: it now standing in the same place, as the hereditary income did formerly; and, as that has gradually diminished, the parliamentary appointments have encreased. The whole revenue of queen Elizabeth did not amount to more than 600000_l._ a year[g]: that of king Charles I was[h] 800000_l._ and the revenue voted for king Charles II was[i] 1200000_l._ though it never in fact amounted to quite so much[k]. But it must be observed, that under these sums were included all manner of public expenses, among which lord Clarendon in his speech to the parliament computed that the charge of the navy and land forces amounted annually to 800000_l._ which was ten times more than before the former troubles[l]. The same revenue, subject to the same charges, was settled on on [Transcriber's Note: duplicate word] king James II[m]: but by the encrease of trade, and more frugal management, it amounted on an average to a million and half _per annum_, (besides other additional customs, granted by parliament[n], which produced an annual revenue of 400000_l._) out of which his fleet and army were maintained at the yearly expense of[o] 1100000_l._ After the revolution, when the parliament took into it's own hands the annual support of the forces, both maritime and military, a civil list revenue was settled on the new king and queen, amounting, with the hereditary duties, to 700000_l._ _per annum_[p]; and the same was continued to queen Anne and king George I[q]. That of king George II, we have seen, was nominally augmented to[r] 800000_l._ and in fact was considerably more. But that of his present majesty is expressly limited to that sum; and, by reason of the charges upon it, amounts at present to little more than 700000_l._ And upon the whole it is doubtless much better for the crown, and also for the people, to have the revenue settled upon the modern footing rather than the antient. For the crown; because it is more certain, and collected with greater ease: for the people; because they are now delivered from the feodal hardships, and other odious branches of the prerogative. And though complaints have sometimes been made of the encrease of the civil list, yet if we consider the sums that have been formerly granted, the limited extent under which it is now established, the revenues and prerogatives given up in lieu of it by the crown, and (above all) the diminution of the value of money compared with what it was worth in the last century, we must acknowlege these complaints to be void of any rational foundation; and that it is impossible to support that dignity, which a king of Great Britain should maintain, with an income in any degree less than what is now established by parliament.

[Footnote g: Lord Clar. continuation. 163.]

[Footnote h: Com. Journ. 4 Sept. 1660.]

[Footnote i: _Ibid._]

[Footnote k: _Ibid._ 4 Jun. 1663. Lord Clar. _ibid._]

[Footnote l: _Ibid._ 165.]

[Footnote m: Stat. 1 Jac. II. c. 1.]

[Footnote n: Stat. 1 Jac. II. c. 3 & 4.]

[Footnote o: Com. Journ. 1 Mar. 20 Mar. 1688.]

[Footnote p: _Ibid._ 14 Mar. 1701.]

[Footnote q: _Ibid._ 17 Mar. 1701. 11 Aug. 1714.]

[Footnote r: Stat. 1 Geo. II. c. 1.]

THIS finishes our enquiries into the fiscal prerogatives of the king; or his revenue, both ordinary and extraordinary. We have therefore now chalked out all the principal outlines of this vast title of the law, the supreme executive magistrate, or the king's majesty, considered in his several capacities and points of view. But, before we intirely dismiss this subject, it may not be improper to take a short comparative review of the power of the executive magistrate, or prerogative of the crown, as it stood in former days, and as it stands at present. And we cannot but observe, that most of the laws for ascertaining, limiting, and restraining this prerogative have been made within the compass of little more than a century past; from the petition of right in 3 Car. I. to the present time. So that the powers of the crown are now to all appearance greatly curtailed and diminished since the reign of king James the first: particularly, by the abolition of the star chamber and high commission courts in the reign of Charles the first, and by the disclaiming of martial law, and the power of levying taxes on the subject, by the same prince: by the disuse of forest laws for a century past: and by the many excellent provisions enacted under Charles the second; especially, the abolition of military tenures, purveyance, and preemption; the _habeas corpus_ act; and the act to prevent the discontinuance of parliaments for above three years: and, since the revolution, by the strong and emphatical words in which our liberties are asserted in the bill of rights, and act of settlement; by the act for triennial, since turned into septennial, elections; by the exclusion of certain officers from the house of commons; by rendering the seats of the judges permanent, and their salaries independent; and by restraining the king's pardon from operating on parliamentary impeachments. Besides all this, if we consider how the crown is impoverished and stripped of all it's antient revenues, so that it greatly depends on the liberality of parliament for it's necessary support and maintenance, we may perhaps be led to think, that the ballance is enclined pretty strongly to the popular scale, and that the executive magistrate has neither independence nor power enough left, to form that check upon the lords and commons, which the founders of our constitution intended.

BUT, on the other hand, it is to be considered, that every prince, in the first parliament after his accession, has by long usage a truly royal addition to his hereditary revenue settled upon him for his life; and has never any occasion to apply to parliament for supplies, but upon some public necessity of the whole realm. This restores to him that constitutional independence, which at his first accession seems, it must be owned, to be wanting. And then, with regard to power, we may find perhaps that the hands of government are at least sufficiently strengthened; and that an English monarch is now in no danger of being overborne by either the nobility or the people. The instruments of power are not perhaps so open and avowed as they formerly were, and therefore are the less liable to jealous and invidious reflections; but they are not the weaker upon that account. In short, our national debt and taxes (besides the inconveniences before-mentioned) have also in their natural consequences thrown such a weight of power into the executive scale of government, as we cannot think was intended by our patriot ancestors; who gloriously struggled for the abolition of the then formidable parts of the prerogative; and by an unaccountable want of foresight established this system in their stead. The entire collection and management of so vast a revenue, being placed in the hands of the crown, have given rise to such a multitude of new officers, created by and removeable at the royal pleasure, that they have extended the influence of government to every corner of the nation. Witness the commissioners, and the multitude of dependents on the customs, in every port of the kingdom; the commissioners of excise, and their numerous subalterns, in every inland district; the postmasters, and their servants, planted in every town, and upon every public road; the commissioners of the stamps, and their distributors, which are full as scattered and full as numerous; the officers of the salt duty, which, though a species of excise and conducted in the same manner, are yet made a distinct corps from the ordinary managers of that revenue; the surveyors of houses and windows; the receivers of the land tax; the managers of lotteries; and the commissioners of hackney coaches; all which are either mediately or immediately appointed by the crown, and removeable at pleasure without any reason assigned: these, it requires but little penetration to see, must give that power, on which they depend for subsistence, an influence most amazingly extensive. To this may be added the frequent opportunities of conferring particular obligations, by preference in loans, subscriptions, tickets, remittances, and other money-transactions, which will greatly encrease this influence; and that over those persons whose attachment, on account of their wealth, is frequently the most desirable. All this is the natural, though perhaps the unforeseen, consequence of erecting our funds of credit, and to support them establishing our present perpetual taxes: the whole of which is entirely new since the restoration in 1660; and by far the greatest part since the revolution in 1688. And the same may be said with regard to the officers in our numerous army, and the places which the army has created. All which put together gives the executive power so persuasive an energy with respect to the persons themselves, and so prevailing an interest with their friends and families, as will amply make amends for the loss of external prerogative.

BUT, though this profusion of offices should have no effect on individuals, there is still another newly acquired branch of power; and that is, not the influence only, but the force of a disciplined army: paid indeed ultimately by the people, but immediately by the crown; raised by the crown, officered by the crown, commanded by the crown. They are kept on foot it is true only from year to year, and that by the power of parliament: but during that year they must, by the nature of our constitution, if raised at all, be at the absolute disposal of the crown. And there need but few words to demonstrate how great a trust is thereby reposed in the prince by his people. A trust, that is more than equivalent to a thousand little troublesome prerogatives.

ADD to all this, that, besides the civil list, the immense revenue of seven millions sterling, which is annually paid to the creditors of the publick, or carried to the sinking fund, is first deposited in the royal exchequer, and thence issued out to the respective offices of payment. This revenue the people can never refuse to raise, because it is made perpetual by act of parliament: which also, when well considered, will appear to be a trust of great delicacy and high importance.

UPON the whole therefore I think it is clear, that, whatever may have become of the _nominal_, the _real_ power of the crown has not been too far weakened by any transactions in the last century. Much is indeed given up; but much is also acquired. The stern commands of prerogative have yielded to the milder voice of influence; the slavish and exploded doctrine of non-resistance has given way to a military establishment by law; and to the disuse of parliaments has succeeded a parliamentary trust of an immense perpetual revenue. When, indeed, by the free operation of the sinking fund, our national debts shall be lessened; when the posture of foreign affairs, and the universal introduction of a well planned and national militia, will suffer our formidable army to be thinned and regulated; and when (in consequence of all) our taxes shall be gradually reduced; this adventitious power of the crown will slowly and imperceptibly diminish, as it slowly and imperceptibly rose. But, till that shall happen, it will be our especial duty, as good subjects and good Englishmen, to reverence the crown, and yet guard against corrupt and servile influence from those who are intrusted with 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 sovereign, who, in all those public acts that have personally proceeded from himself, hath manifested the highest veneration for the free constitution of Britain; hath already in more than one instance remarkably strengthened it's outworks; and will therefore never harbour a thought, or adopt a persuasion, in any the remotest degree detrimental to public liberty.

CHAPTER THE NINTH.

OF SUBORDINATE MAGISTRATES.

IN a former chapter of these commentaries[a] we distinguished magistrates into two kinds; supreme, or those in whom the sovereign power of the state resides; and subordinate, or those who act in an inferior secondary sphere. We have hitherto considered the former kind only, namely, the supreme legislative power or parliament, and the supreme executive power, which is the king: and are now to proceed to enquire into the rights and duties of the principal subordinate magistrates.

[Footnote a: ch. 2. pag. 142.]

AND herein we are not to investigate the powers and duties of his majesty's great officers of state, the lord treasurer, lord chamberlain, the principal secretaries, or the like; because I do not know that they are in that capacity in any considerable degree the objects of our laws, or have any very important share of magistracy conferred upon them: except that the secretaries of state are allowed the power of commitment, in order to bring offenders to trial[b]. Neither shall I here treat of the office and authority of the lord chancellor, or the other judges of the superior courts of justice; because they will find a more proper place in the third part of these commentaries. Nor shall I enter into any minute disquisitions, with regard to the rights and dignities of mayors and aldermen, or other magistrates of particular corporations; because these are mere private and strictly municipal rights, depending entirely upon the domestic constitution of their respective franchises. But the magistrates and officers, whose rights and duties it will be proper in this chapter to consider, are such as are generally in use and have a jurisdiction and authority dispersedly throughout the kingdom: which are, principally, sheriffs; coroners; justices of the peace; constables; surveyors of highways; and overseers of the poor. In treating of all which I shall enquire into, first, their antiquity and original; next, the manner in which they are appointed and may be removed; and, lastly, their rights and duties. And first of sheriffs.

[Footnote b: 1 Leon. 70. 2 Leon. 175. Comb. 343. 5 Mod. 84. Salk. 347.]

I. THE sheriff is an officer of very great antiquity in this kingdom, his name being derived from two Saxon words, shire reeve, the bailiff or officer of the shire. He is called in Latin _vice-comes_, as being the deputy of the earl or _comes_; to whom the custody of the shire is said to have been committed at the first division of this kingdom into counties. But the earls in process of time, by reason of their high employments and attendance on the king's person, not being able to transact the business of the county, were delivered of that burden[c]; reserving to themselves the honour, but the labour was laid on the sheriff. So that now the sheriff does all the king's business in the county; and though he be still called _vice-comes_, yet he is entirely independent of, and not subject to the earl; the king by his letters patent committing _custodiam comitatus_ to the sheriff, and him alone.

[Footnote c: Dalton of sheriffs, c. 1.]

SHERIFFS were formerly chosen by the inhabitants of the several counties. In confirmation of which it was ordained by statute 28 Edw. I. c. 8. that the people should have election of sheriffs in every shire, where the shrievalty is not of inheritance. For antiently in some counties, particularly on the borders, the sheriffs were hereditary; as I apprehend they are in Scotland, and in the county of Westmorland, to this day: and the city of London has also the inheritance of the shrievalty of Middlesex vested in their body by charter[d]. The reason of these popular elections is assigned in the same statute, c. 13. "that the commons might chuse such as would not be a burthen to them." And herein appears plainly a strong trace of the democratical part of our constitution; in which form of government it is an indispensable requisite, that the people should chuse their own magistrates[e]. This election was in all probability not absolutely vested in the commons, but required the royal approbation. For in the Gothic constitution, the judges of their county courts (which office is executed by our sheriff) were elected by the people, but confirmed by the king: and the form of their election was thus managed; the people, or _incolae territorii_, chose _twelve_ electors, and they nominated _three_ persons, _ex quibus rex unum confirmabat_[f]. But, with us in England, these popular elections, growing tumultuous, were put an end to by the statute 9 Edw. II. st. 2. which enacted, that the sheriffs should from thenceforth be assigned by the lord chancellor, treasurer, and the judges; as being persons in whom the same trust might with confidence be reposed. By statutes 14 Edw. III. c. 7. and 23 Hen. VI. c. 8. the chancellor, treasurer, _chief_ justices, and _chief_ baron, are to make this election; and that on the morrow of All Souls in the exchequer. But the custom now is (and has been at least ever since the time of Fortescue[g], who was chief justice and chancellor to Henry the sixth) that _all_ the judges, and certain other great officers, meet in the exchequer chamber on the morrow of All Souls yearly, (which day is now altered to the morrow of St. Martin by the act for abbreviating Michaelmas term) and then and there nominate three persons to the king, who afterwards appoints one of them to be sheriff. This custom, of the _twelve_ judges nominating _three_ persons, seems borrowed from the Gothic constitution beforementioned; with this difference, that among the Goths the twelve nominors were first elected by the people themselves. And this usage of ours at it's first introduction, I am apt to believe, was founded upon some statute, though not now to be found among our printed laws: first, because it is materially different from the directions of all the statutes beforementioned; which it is hard to conceive that the judges would have countenanced by their concurrence, or that Fortescue would have inserted in his book, unless by the authority of some statute: and also, because a statute is expressly referred to in the record, which sir Edward Coke tells us[h] he transcribed from the council book of 3 Mar. 34 Hen. VI. and which is in substance as follows. The king had of his own authority appointed a man sheriff of Lincolnshire, which office he refused to take upon him: whereupon the opinions of the judges were taken, what should be done in this behalf. And the two chief justices, sir John Fortescue and sir John Prisot, delivered the unanimous opinion of them all; "that the king did an error when he made a person sheriff, that was not chosen and presented to him according to the _statute_; that the person refusing was liable to no fine for disobedience, as if he had been one of the _three_ persons chosen according to the tenor of the _statute_; that they would advise the king to have recourse to the _three_ persons that were chosen according to the _statute_, or that some other thrifty man be intreated to occupy the office for this year; and that, the next year, to eschew such inconveniences, the order of the _statute_ in this behalf made be observed." But, notwithstanding this unanimous resolution of all the judges of England, thus entered in the council book, some of our writers[i] have affirmed, that the king, by his prerogative, may name whom he pleases to be sheriff, whether chosen by the judges or no. This is grounded on a very particular case in the fifth year of queen Elizabeth, when, by reason of the plague, there was no Michaelmas term kept at Westminster; so that the judges could not meet there _in crastino Animarum_ to nominate the sheriffs: whereupon the queen named them herself, without such previous assembly, appointing for the most