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 part one of the two remaining in the
last year's list[k]. And this case, thus circumstanced, is the only
precedent in our books for the making these extraordinary sheriffs. It
is true, the reporter adds, that it was held that the queen by her
prerogative might make a sheriff without the election of the judges,
_non obstante aliquo statuto in contrarium_: but the doctrine of _non
obstante_'s, which sets the prerogative above the laws, was
effectually demolished by the bill of rights at the revolution, and
abdicated Westminster-hall when king James abdicated the kingdom. So that sheriffs cannot now be legally appointed, otherwise than according to the known and established law. |
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