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.]

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