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.]