XV. ESTRAYS are such valuable animals as are found wandering in any
manor or lordship, and no man knoweth the owner of them; in which case
the law gives them to the king as the general owner and lord paramount
of the soil, in recompence for the damage which they may have done
therein; and they now most commonly belong to the lord of the manor,
by special grant from the crown. But in order to vest an absolute
property in the king or his grantees, they must be proclaimed in the
church and two market towns next adjoining to the place where they are
found; and then, if no man claims them, after proclamation and a year
and a day passed, they belong to the king or his substitute without
redemption[i]; even though the owner were a minor, or under any other
legal incapacity[k]. A provision similar to which obtained in the old
Gothic constitution, with regard to all things that were found, which
were to be thrice proclaimed, _primum coram comitibus et viatoribus
obviis, deinde in proxima villa vel pago, postremo coram ecclesia vel
judicio_: and the space of a year was allowed for the owner to reclaim
his property[l]. If the owner claims them within the year and day, he
must pay the charges of finding, keeping, and proclaiming them[m]. The
king or lord has no property till the year and day passed: for if a
lord keepeth an estray three quarters of a year, and within the year
it strayeth again, and another lord getteth it, the first lord cannot
take it again[n]. Any beast may be an estray, that is by nature tame
or reclaimable, and in which there is a valuable property, as sheep,
oxen, swine, and horses, which we in general call cattle; and so
Fleta[o] defines it, _pecus vagans, quod nullus petit, sequitur, vel
advocat_. For animals upon which the law sets no value, as a dog or
cat, and animals _ferae naturae_, as a bear or wolf, cannot be
considered as estrays. So swans may be estrays, but not any other
fowl[p]; whence they are said to be royal fowl. The reason of which
distinction seems to be, that, cattle and swans being of a reclaimed
nature, the owner's property in them is not lost merely by their
temporary escape; and they also, from their intrinsic value, are a
sufficient pledge for the expense of the lord of the franchise in
keeping them the year and day. For he that takes an estray is bound,
so long as he keeps it, to find it in provisions and keep it from
damage[q]; and may not use it by way of labour, but is liable to an
action for so doing[r]. Yet he may milk a cow, or the like, for that
tends to the preservation, and is for the benefit, of the animal[s].
[Footnote i: Mirr. c. 3. §. 19.]
[Footnote k: 5 Rep. 108. Bro. _Abr. tit. Estray._ Cro. Eliz. 716.]
[Footnote l: Stiernh. _de jur. Gothor._ _l._ 3. _c._ 5.]
[Footnote m: Dalt. Sh. 79.]
[Footnote n: Finch. L. 177.]
[Footnote o: _l._ 1. _c._ 43.]
[Footnote p: 7 Rep. 17.]
[Footnote q: 1 Roll. Abr. 889.]
[Footnote r: Cro. Jac. 147.]
[Footnote s: Cro. Jac. 148. Noy. 119.]
BESIDES the particular reasons before given why the king should have
the several revenues of royal fish, shipwrecks, treasure-trove, waifs,
and estrays, there is also one general reason which holds for them
all; and that is, because they are _bona vacantia_, or goods in which
no one else can claim a property. And therefore by the law of nature
they belonged to the first occupant or finder; and so continued under
the imperial law. But, in settling the modern constitutions of most of
the governments in Europe, it was thought proper (to prevent that
strife and contention, which the mere title of occupancy is apt to
create and continue, and to provide for the support of public
authority in a manner the least burthensome to individuals) that these
rights should be annexed to the supreme power by the positive laws of
the state. And so it came to pass that, as Bracton expresses it[t],
_haec, quae nullius in bonis sunt, et olim fuerunt inventoris de jure
naturali, jam efficiuntur principis de jure gentium_.
[Footnote t: _l._ 1. _c._ 12.]
XVI. THE next branch of the king's ordinary revenue consists in
forfeitures of lands and goods for offences; _bona confiscata_, as
they are called by the civilians, because they belonged to the
_fiscus_ or imperial treasury; or, as our lawyers term them,
_forisfacta_, that is, such whereof the property is gone away or
departed from the owner. The true reason and only substantial ground
of any forfeiture for crimes consist in this; that all property is
derived from society, being one of those civil rights which are
conferred upon individuals, in exchange for that degree of natural
freedom, which every man must sacrifice when he enters into social
communities. If therefore a member of any national community violates
the fundamental contract of his association, by transgressing the
municipal law, he forfeits his right to such privileges as he claims
by that contract; and the state may very justly resume that portion of
property, or any part of it, which the laws have before assigned him.
Hence, in every offence of an atrocious kind, the laws of England have
exacted a total confiscation of the moveables or personal estate; and
in many cases a perpetual, in others only a temporary, loss of the
offender's immoveables or landed property; and have vested them both
in the king, who is the person supposed to be offended, being the one
visible magistrate in whom the majesty of the public resides. The
particulars of these forfeitures will be more properly recited when we
treat of crimes and misdemesnors. I therefore only mention them here,
for the sake of regularity, as a part of the _census regalis_; and
shall postpone for the present the farther consideration of all
forfeitures, excepting one species only, which arises from the
misfortune rather than the crime of the owner, and is called a
_deodand_.
BY this is meant whatever personal chattel is the immediate occasion
of the death of any reasonable creature; which is forfeited to the
king, to be applied to pious uses, and distributed in alms by his high
almoner[u]; though formerly destined to a more superstitious purpose.
It seems to have been originally designed, in the blind days of
popery, as an expiation for the souls of such as were snatched away by
sudden death; and for that purpose ought properly to have been given
to holy church[w]; in the same manner, as the apparel of a stranger
who was found dead was applied to purchase masses for the good of his
soul. And this may account for that rule of law, that no deodand is
due where an infant under the years of discretion is killed by a fall
_from_ a cart, or horse, or the like, not being in motion[x]; whereas,
if an adult person falls from thence and is killed, the thing is
certainly forfeited. For the reason given by sir Matthew Hale seems to
be very inadequate, _viz._ because an infant is not able to take care
of himself: for why should the owner save his forfeiture, on account
of the imbecillity of the child, which ought rather to have made him
more cautious to prevent any accident of mischief? The true ground of
this rule seems rather to be, that the child, by reason of it's want
of discretion, is presumed incapable of actual sin, and therefore
needed no deodand to purchase propitiatory masses: but every adult,
who dies in actual sin, stood in need of such atonement, according to
the humane superstition of the founders of the English law.
[Footnote u: 1 Hal. P.C. 419. Fleta. _l._ 1. _c._ 25.]
[Footnote w: Fitzh. _Abr. tit. Enditement._ _pl._ 27. Staunf. P.C. 20,
21.]
[Footnote x: 3 Inst. 57. 1 Hal. P.C. 422.]
THUS stands the law, if a person be killed by a fall from a thing
standing still. But if a horse, or ox, or other animal, of his own
motion, kill as well an infant as an adult, or if a cart run over him,
they shall in either case be forfeited as deodands[y]; which is
grounded upon this additional reason, that such misfortunes are in
part owing to the negligence of the owner, and therefore he is
properly punished by such forfeiture. A like punishment is in like
cases inflicted by the mosaical law[z]: "if an ox gore a man that he
die, the ox shall be stoned, and his flesh shall not be eaten." And
among the Athenians[a], whatever was the cause of a man's death, by
falling upon him, was exterminated or cast out of the dominions of the
republic. Where a thing, not in motion, is the occasion of a man's
death, that part only which is the immediate cause is forfeited; as if
a man be climbing up a wheel, and is killed by falling from it, the
wheel alone is a deodand[b]: but, wherever the thing is in motion, not
only that part which immediately gives the wound, (as the wheel, which
runs over his body) but all things which move with it and help to make
the wound more dangerous (as the cart and loading, which increase the
pressure of the wheel) are forfeited[c]. It matters not whether the
owner were concerned in the killing or not; for if a man kills another
with my sword, the sword is forfeited[d] as an accursed thing[e]. And
therefore, in all indictments for homicide, the instrument of death
and the value are presented and found by the grand jury (as, that the
stroke was given with a certain penknife, value sixpence) that the
king or his grantee may claim the deodand: for it is no deodand,
unless it be presented as such by a jury of twelve men[f]. No deodands
are due for accidents happening upon the high sea, that being out of
the jurisdiction of the common law: but if a man falls from a boat or
ship in fresh water, and is drowned, the vessel and cargo are in
strictness a deodand[g].
[Footnote y: _Omnia, quae movent ad mortem, sunt Deo danda._ Bracton.
_l._ 3. _c._ 5.]
[Footnote z: Exod. 21. 28.]
[Footnote a: Aeschin. _contr. Ctesiph._]
[Footnote b: 1 Hal. P.C. 422.]
[Footnote c: 1 Hawk. P.C. c. 26.]
[Footnote d: A similar rule obtained among the antient Goths. _Si
quis, me nesciente, quocunque meo telo vel instrumento in perniciem
suam abutatur; vel ex aedibus meis cadat, vel incidat in puteum meum,
quantumvis tectum et munitum, vel in cataractam, et sub molendino meo
confringatur, ipse aliqua mulcta plectar; ut in parte infelicitatis
meae numeretur, habuisse vel aedificasse aliquod quo homo periret._
Stiernhook _de jure Goth._ _l._ 3. _c._ 4.]
[Footnote e: Dr & St. d. 2. c. 51.]
[Footnote f: 3 Inst. 57.]
[Footnote g: 3 Inst. 58. 1 Hal. P.C. 423. Molloy _de jur. maritim._ 2.
225.]
DEODANDS, and forfeitures in general, as well as wrecks, treasure
trove, royal fish, mines, waifs, and estrays, may be granted by the
king to particular subjects, as a royal franchise: and indeed they are
for the most part granted out to the lords of manors, or other
liberties; to the perversion of their original design.
XVII. ANOTHER branch of the king's ordinary revenue arises from
escheats of lands, which happen upon the defect of heirs to succeed to
the inheritance; whereupon they in general revert to and vest in the
king, who is esteemed, in the eye of the law, the original proprietor
of all the lands in the kingdom. But the discussion of this topic more
properly belongs to the second book of these commentaries, wherein we
shall particularly consider the manner in which lands may be acquired
or lost by escheat.
XVIII. I PROCEED therefore to the eighteenth and last branch of the
king's ordinary revenue; which consists in the custody of idiots, from
whence we shall be naturally led to consider also the custody of
lunatics.
AN idiot, or natural fool, is one that hath had no understanding from
his nativity; and therefore is by law presumed never likely to attain
any. For which reason the custody of him and of his lands was formerly
vested in the lord of the fee[h]; (and therefore still, by special
custom, in some manors the lord shall have the ordering of idiot and
lunatic copyholders[i]) but, by reason of the manifold abuses of this
power by subjects, it was at last provided by common consent, that it
should be given to the king, as the general conservator of his people,
in order to prevent the idiot from wasting his estate, and reducing
himself and his heirs to poverty and distress[k]: This fiscal
prerogative of the king is declared in parliament by statute 17 Edw.
II. c. 9. which directs (in affirmance of the common law[l],) that the
king shall have ward of the lands of natural fools, taking the profits
without waste or destruction, and shall find them necessaries; and
after the death of such idiots he shall render the estate to the
heirs; in order to prevent such idiots from aliening their lands, and
their heirs from being disherited.
[Footnote h: Flet. _l._ 1. _c._ 11. §. 10.]
[Footnote i: Dyer. 302. Hutt. 17. Noy 27.]
[Footnote k: F.N.B. 232.]
[Footnote l: 4 Rep. 126.]
BY the old common law there is a writ _de idiota inquirendo_, to
enquire whether a man be an idiot or not[m]: which must be tried by a
jury of twelve men; and if they find him _purus idiota_, the profits
of his lands, and the custody of his person may be granted by the king
to some subject, who has interest enough to obtain them[n]. This
branch of the revenue hath been long considered as a hardship upon
private families; and so long ago as in the 8 Jac. I. it was under the
consideration of parliament, to vest this custody in the relations of
the party, and to settle an equivalent on the crown in lieu of it; it
being then proposed to share the same fate with the slavery of the
feodal tenures, which has been since abolished[o]. Yet few instances
can be given of the oppressive exertion of it, since it seldom happens
that a jury finds a man an idiot _a nativitate_, but only _non compos
mentis_ from some particular time; which has an operation very
different in point of law.
[Footnote m: F.N.B. 232.]
[Footnote n: This power, though of late very rarely exerted, is still
alluded to in common speech, by that usual expression of _begging_ a
man for a fool.]
[Footnote o: 4. Inst. 203. Com. Journ. 1610.]
A MAN is not an idiot[p], if he hath any glimmering of reason, so that
he can tell his parents, his age, or the like common matters. But a
man who is born deaf, dumb, and blind, is looked upon by the law as in
the same state with an idiot[q]; he being supposed incapable of
understanding, as wanting those senses which furnish the human mind
with ideas.
[Footnote p: F.N.B. 233.]
[Footnote q: Co. Litt. 42. Fleta. _l._ 6. _c._ 40.]
A LUNATIC, or _non compos mentis_, is one who hath had understanding,
but by disease, grief, or other accident hath lost the use of his
reason. A lunatic is indeed properly one that hath lucid intervals;
sometimes enjoying his senses, and sometimes not, and that frequently
depending upon the change of the moon. But under the general name of
_non compos mentis_ (which sir Edward Coke says is the most legal
name[r]) are comprized not only lunatics, but persons under frenzies;
or who lose their intellects by disease; those that _grow_ deaf, dumb,
and blind, not being _born_ so; or such, in short, as are by any means
rendered incapable of conducting their own affairs. To these also, as
well as idiots, the king is guardian, but to a very different purpose.
For the law always imagines, that these accidental misfortunes may be
removed; and therefore only constitutes the crown a trustee for the
unfortunate persons, to protect their property, and to account to them
for all profits received, if they recover, or after their decease to
their representatives. And therefore it is declared by the statute 17
Edw. II. c. 10. that the king shall provide for the custody and
sustentation of lunatics, and preserve their lands and the profits of
them, for their use, when they come to their right mind: and the king
shall take nothing to his own use; and if the parties die in such
estate, the residue shall be distributed for their souls by the advice
of the ordinary, and of course (by the subsequent amendments of the
law of administrations) shall now go to their executors or
administrators.
[Footnote r: 1 Inst. 246.]
THE method of proving a person _non compos_ is very similar to that of
proving him an idiot. The lord chancellor, to whom, by special
authority from the king, the custody of idiots and lunatics is
intrusted[s], upon petition or information, grants a commission in
nature of the writ _de idiota inquirendo_, to enquire into the party's
state of mind; and if he be found _non compos_, he usually commits the
care of his person, with a suitable allowance for his maintenance, to
some friend, who is then called his committee. However, to prevent
sinister practices, the next heir is never permitted to be this
committee of the person; because it is his interest that the party
should die. But, it hath been said, there lies not the same objection
against his next of kin, provided he be not his heir; for it is his
interest to preserve the lunatic's life, in order to increase the
personal estate by savings, which he or his family may hereafter be
entitled to enjoy[t]. The heir is generally made the manager or
committee of the estate, it being clearly his interest by good
management to keep it in condition; accountable however to the court
of chancery, and to the _non compos_ himself, if he recovers; or
otherwise, to his administrators.
[Footnote s: 3 P. Wms. 108.]
[Footnote t: 2 P. Wms. 638.]
IN this care of idiots and lunatics the civil law agrees with ours; by
assigning them tutors to protect their persons, and curators to manage
their estates. But in another instance the Roman law goes much beyond
the English. For, if a man by notorious prodigality was in danger of
wasting his estate, he was looked upon as _non compos_ and committed
to the care of curators or tutors by the praetor[u]. And by the laws
of Solon such prodigals were branded with perpetual infamy[w]. But
with us, when a man on an inquest of idiocy hath been returned an
_unthrift_ and not an _idiot_[x], no farther proceedings have been
had. And the propriety of the practice itself seems to be very
questionable. It was doubtless an excellent method of benefiting the
individual and of preserving estates in families; but it hardly seems
calculated for the genius of a free nation, who claim and exercise the
liberty of using their own property as they please. "_Sic utere tuo,
ut alienum non laedas_," is the only restriction our laws have given
with regard to oeconomical prudence. And the frequent circulation and
transfer of lands and other property, which cannot be effected
without extravagance somewhere, are perhaps not a little conducive
towards keeping our mixed constitution in it's due health and vigour.
[Footnote u: _Solent praetores, si talem hominem invenerint, qui neque
tempus neque finem expensarum habet, sed bona sua dilacerando et
dissipando profundit, curatorem ei dare, exemplo furiosi: et tamdiu
erunt ambo in curatione, quamdiu vel furiosus sanitatem, vel ille
bonos mores, receperit._ _Ff._ 27. 10. 1.]
[Footnote w: Potter. Antiqu. b. 1. c. 26.]
[Footnote x: Bro. _Abr. tit. Ideot._ 4.]
THIS may suffice for a short view of the king's _ordinary_ revenue, or
the proper patrimony of the crown; which was very large formerly, and
capable of being increased to a magnitude truly formidable: for there
are very few estates in the kingdom, that have not, at some period or
other since the Norman conquest, been vested in the hands of the king
by forfeiture, escheat, or otherwise. But, fortunately for the liberty
of the subject, this hereditary landed revenue, by a series of
improvident management, is sunk almost to nothing; and the casual
profits, arising from the other branches of the _census regalis_, are
likewise almost all of them alienated from the crown. In order to
supply the deficiences of which, we are now obliged to have recourse
to new methods of raising money, unknown to our early ancestors; which
methods constitute the king's _extraordinary_ revenue. For, the
publick patrimony being got into the hands of private subjects, it is
but reasonable that private contributions should supply the public
service. Which, though it may perhaps fall harder upon some
individuals, whose ancestors have had no share in the general plunder,
than upon others, yet, taking the nation throughout, it amounts to
nearly the same; provided the gain by the extraordinary, should appear
to be no greater than the loss by the ordinary, revenue. And perhaps,
if every gentleman in the kingdom was to be stripped of such of his
lands as were formerly the property of the crown; was to be again
subject to the inconveniences of purveyance and pre-emption, the
oppression of forest laws, and the slavery of feodal tenures; and was
to resign into the king's hands all his royal franchises of waifs,
wrecks, estrays, treasure-trove, mines, deodands, forfeitures, and the
like; he would find himself a greater loser, than by paying his
_quota_ to such taxes, as are necessary to the support of government.
The thing therefore to be wished and aimed at in a land of liberty, is
by no means the total abolition of taxes, which would draw after it
very pernicious consequences, and the very supposition of which is the
height of political absurdity. For as the true idea of government and
magistracy will be found to consist in this, that some few men are
deputed by many others to preside over public affairs, so that
individuals may the better be enabled to attend to their private
concerns; it is necessary that those individuals should be bound to
contribute a portion of their private gains, in order to support that
government, and reward that magistracy, which protects them in the
enjoyment of their respective properties. But the things to be aimed
at are wisdom and moderation, not only in granting, but also in the
method of raising, the necessary supplies; by contriving to do both in
such a manner as may be most conducive to the national welfare and at
the same time most consistent with oeconomy and the liberty of the
subject; who, when properly taxed, contributes only, as was before
observed[y], some part of his property, in order to enjoy the rest.
[Footnote y: pag. 271.]
THESE extraordinary grants are usually called by the synonymous names
of aids, subsidies, and supplies; and are granted, we have formerly
seen[z], by the commons of Great Britain, in parliament assembled:
who, when they have voted a supply to his majesty, and settled the
_quantum_ of that supply, usually resolve themselves into what is
called a committee of ways and means, to consider of the ways and
means of raising the supply so voted. And in this committee every
member (though it is looked upon as the peculiar province of the
chancellor of the exchequer) may propose such scheme of taxation as he
thinks will be least detrimental to the public. The resolutions of
this committee (when approved by a vote of the house) are in general
esteemed to be (as it were) final and conclusive. For, through
[Transcriber's Note: though] the supply cannot be actually raised upon
the subject till directed by an act of the whole parliament, yet no
monied man will scruple to advance to the government any quantity of
ready cash, on the credit of a bare vote of the house of commons,
though no law be yet passed to establish it.
[Footnote z: pag. 163.]
THE taxes, which are raised upon the subject, are either annual or
perpetual. The usual annual taxes are those upon land and malt.
I. THE land tax, in it's modern shape, has superseded all the former
methods of rating either property, or persons in respect of their
property, whether by tenths or fifteenths, subsidies on land, hydages,
scutages, or talliages; a short explication of which will greatly
assist us in understanding our antient laws and history.
TENTHS, and fifteenths[a], were temporary aids issuing out of personal
property, and granted to the king by parliament. They were formerly
the real tenth or fifteenth part of all the moveables belonging to the
subject; when such moveables, or personal estates, were a very
different and a much less considerable thing than what they usually
are at this day. Tenths are said to have been first granted under
Henry the second, who took advantage of the fashionable zeal for
croisades to introduce this new taxation, in order to defray the
expense of a pious expedition to Palestine, which he really or
seemingly had projected against Saladine emperor of the Saracens;
whence it was originally denominated the Saladine tenth[b]. But
afterwards fifteenths were more usually granted than tenths.
Originally the amount of these taxes was uncertain, being levied by
assessments new made at every fresh grant of the commons, a commission
for which is preserved by Matthew Paris[c]: but it was at length
reduced to a certainty in the eighth of Edw. III. when, by virtue of
the king's commission, new taxations were made of every township,
borough, and city in the kingdom, and recorded in the exchequer; which
rate was, at the time, the fifteenth part of the value of every
township, the whole amounting to about 29000_l._ and therefore it
still kept up the name of a fifteenth, when, by the alteration of the
value of money and the encrease of personal property, things came to
be in a very different situation. So that when, of later years, the
commons granted the king a fifteenth, every parish in England
immediately knew their proportion of it; that is, the same identical
sum that was assessed by the same aid in the eighth of Edw. III; and
then raised it by a rate among themselves, and returned it into the
royal exchequer.
[Footnote a: 2 Inst. 77. 4 Inst. 34.]
[Footnote b: Hoved. _A.D._ 1188. Carte. 1. 719. Hume. 1. 329.]
[Footnote c: _A.D._ 1232.]
THE other antient levies were in the nature of a modern land tax; for
we may trace up the original of that charge as high as to the
introduction of our military tenures[d]; when every tenant of a
knight's fee was bound, if called upon, to attend the king in his army
for forty days in every year. But this personal attendance growing
troublesome in many respects, the tenants found means of compounding
for it, by first sending others in their stead, and in process of time
by making a pecuniary satisfaction to the crown in lieu of it. This
pecuniary satisfaction at last came to be levied by assessments, at so
much for every knight's fee, under the name of scutages; which appear
to have been levied for the first time in the fifth year of Henry the
second, on account of his expedition to Toulouse, and were then (I
apprehend) mere arbitrary compositions, as the king and the subject
could agree. But this precedent being afterwards abused into a means
of oppression, (by levying scutages on the landholders by the royal
authority only, whenever our kings went to war, in order to hire
mercenary troops and pay their contingent expences) it became
thereupon a matter of national complaint; and king John was obliged to
promise in his _magna carta_[e], that no scutage should be imposed
without the consent of the common council of the realm. This clause
was indeed omitted in the charters of Henry III, where[f] we only find
it stipulated, that scutages should be taken as they were used to be
in the time of king Henry the second. Yet afterwards, by a variety of
statutes under Edward I and his grandson[g], it was provided, that
the king shall not take any aids or tasks, any talliage or tax, but by
the common assent of the great men and commons in parliament.
[Footnote d: See the second book of these commentaries.]
[Footnote e: _cap._ 14.]
[Footnote f: 9 Hen. III. c. 37.]
[Footnote g: 25 Edw. I. c. 5 & 6. 34 Edw. I. st. 4. c. 1. 14 Edw. III.
st. 2. c. 1.]
OF the same nature with scutages upon knights-fees were the
assessments of hydage upon all other lands, and of talliage upon
cities and burghs[h]. But they all gradually fell into disuse, upon
the introduction of subsidies, about the time of king Richard II and
king Henry IV. These were a tax, not immediately imposed upon
property, but upon persons in respect of their reputed estates, after
the nominal rate of 4_s._ in the pound for lands, and 2_s._ 6_d._ for
goods; and for those of aliens in a double proportion. But this
assessment was also made according to an antient valuation; wherein
the computation was so very moderate, and the rental of the kingdom
was supposed to be so exceeding low, that one subsidy of this sort did
not, according to sir Edward Coke[i], amount to more than 70000_l._
whereas a modern land tax at the same rate produces two millions. It
was antiently the rule never to grant more than one subsidy, and two
fifteenths at a time; but this rule was broke through for the first
time on a very pressing occasion, the Spanish invasion in 1588; when
the parliament gave queen Elizabeth two subsidies and four fifteenths.
Afterwards, as money sunk in value, more subsidies were given; and we
have an instance in the first parliament of 1640, of the king's
desiring twelve subsidies of the commons, to be levied in three years;
which was looked upon as a startling proposal: though lord Clarendon
tells us[k], that the speaker, serjeant Glanvile, made it manifest to
the house, how very inconsiderable a sum twelve subsidies amounted to,
by telling them he had computed what he was to pay for them; and, when
he named the sum, he being known to be possessed of a great estate, it
seemed not worth any farther deliberation. And indeed, upon
calculation, we shall find, that the total amount of these twelve
subsidies, to be raised in three years, is less than what is now
raised in one year, by a land tax of two shillings in the pound.
[Footnote h: Madox. hist. exch. 480.]
[Footnote i: 4 Inst. 33.]
[Footnote k: Hist. b. 2.]
THE grant of scutages, talliages, or subsidies by the commons did not
extend to spiritual preferments; those being usually taxed at the same
time by the clergy themselves in convocation; which grants of the
clergy were confirmed in parliament, otherwise they were illegal, and
not binding; as the same noble writer observes of the subsidies
granted by the convocation, who continued sitting after the
dissolution of the first parliament in 1640. A subsidy granted by the
clergy was after the rate of 4_s._ in the pound according to the
valuation of their livings in the king's books; and amounted, sir
Edward Coke tells us[l], to about 20000_l._ While this custom
continued, convocations were wont to sit as frequently as parliaments:
but the last subsidies, thus given by the clergy, were those confirmed
by statute 15 Car. II. cap. 10. since which another method of taxation
has generally prevailed, which takes in the clergy as well as the
laity; in recompense for which the beneficed clergy have from that
period been allowed to vote at the elections of knights of the
shire[m]; and thenceforward also the practice of giving ecclesiastical
subsidies hath fallen into total disuse.
[Footnote l: 4 Inst 33.]
[Footnote m: Dalt. of sheriffs, 418. Gilb. hist. of exch. c. 4.]
THE lay subsidy was usually raised by commissioners appointed by the
crown, or the great officers of state: and therefore in the beginning
of the civil wars between Charles I and his parliament, the latter,
having no other sufficient revenue to support themselves and their
measures, introduced the practice of laying weekly and monthly
assessments[n] of a specific sum upon the several counties of the
kingdom; to be levied by a pound rate on lands and personal estates:
which were occasionally continued during the whole usurpation,
sometimes at the rate of 120000_l._ a month; sometimes at inferior
rates[o]. After the restoration the antient method of granting
subsidies, instead of such monthly assessments, was twice, and twice
only, renewed; viz. in 1663, when four subsidies were granted by the
temporalty, and four by the clergy; and in 1670, when 800000_l._ was
raised by way of subsidy, which was the last time of raising supplies
in that manner. For, the monthly assessments being now established by
custom, being raised by commissioners named by parliament, and
producing a more certain revenue; from that time forwards we hear no
more of subsidies; but occasional assessments were granted as the
national emergencies required. These periodical assessments, the
subsidies which preceded them, and the more antient scutage, hydage,
and talliage, were to all intents and purposes a land tax; and the
assessments were sometimes expressly called so[p]. Yet a popular
opinion has prevailed, that the land tax was first introduced in the
reign of king William III; because in the year 1692 a new assessment
or valuation of estates was made throughout the kingdom; which, though
by no means a perfect one, had this effect, that a supply of
500000_l._ was equal to 1_s._ in the pound of the value of the estates
given in. And, according to this enhanced valuation, from the year
1693 to the present, a period of above seventy years, the land tax has
continued an annual charge upon the subject; above half the time at
4_s._ in the pound, sometimes at 3_s_, sometimes at 2_s_, twice[q] at
1_s_, but without any total intermission. The medium has been 3_s._
3_d._ in the pound, being equivalent to twenty three antient
subsidies, and amounting annually to more than a million and an half
of money. The method of raising it is by charging a particular sum
upon each county, according to the valuation given in, _A.D._ 1692:
and this sum is assessed and raised upon individuals (their personal
estates, as well as real, being liable thereto) by commissioners
appointed in the act, being the principal landholders of the county,
and their officers.
[Footnote n: 29 Nov. 4 Mar. 1642.]
[Footnote o: One of these bills of assessment, in 1656, is preserved
in Scobell's collection, 400.]
[Footnote p: Com. Journ. 26 Jun. 9 Dec. 1678.]
[Footnote q: in the years 1732 and 1733.]
II. THE other annual tax is the malt tax; which is a sum of 750000_l_,
raised every year by parliament, ever since 1697, by a duty of 6_d._
in the bushel on malt, and a proportionable sum on certain liquors,
such as cyder and perry, which might otherwise prevent the consumption
of malt. This is under the management of the commissioners of the
excise; and is indeed itself no other than an annual excise, the
nature of which species of taxation I shall presently explain: only
premising at present, that in the year 1760 an additional perpetual
excise of 3_d._ _per_ bushel was laid upon malt; and in 1763 a
proportionable excise was laid upon cyder and perry.
THE perpetual taxes are,
I. THE customs; or the duties, toll, tribute, or tariff, payable upon
merchandize exported and imported. The considerations upon which this
revenue (or the more antient part of it, which arose only from
exports) was invested in the king, were said to be two[r]; 1. Because
he gave the subject leave to depart the kingdom, and to carry his
goods along with him. 2. Because the king was bound of common right to
maintain and keep up the ports and havens, and to protect the merchant
from pirates. Some have imagined they are called with us customs,
because they were the inheritance of the king by immemorial usage and
the common law, and not granted him by any statute[s]: but sir Edward
Coke hath clearly shewn[t], that the king's first claim to them was by
grant of parliament 3 Edw. I. though the record thereof is not now
extant. And indeed this is in express words confessed by statute 25
Edw. I. c. 7. wherein the king promises to take no customs from
merchants, without the common assent of the realm, "saving to us and
our heirs, the customs on wools, skins, and leather, formerly granted
to us by the commonalty aforesaid." These were formerly called the
hereditary customs of the crown; and were due on the exportation only
of the said three commodities, and of none other: which were stiled
the _staple_ commodities of the kingdom, because they were obliged to
be brought to those ports where the king's staple was established, in
order to be there first rated, and then exported[u]. They were
denominated in the barbarous Latin of our antient records,
_custuma_[w]; not _consuetudines_, which is the language of our law
whenever it means merely usages. The duties on wool, sheep-skins, or
woolfells, and leather, exported, were called _custuma antiqua sive
magna_; and were payable by every merchant, as well native as
stranger; with this difference, that merchant-strangers paid an
additional toll, _viz._ half as much again as was paid by natives. The
_custuma parva et nova_ were an impost of 3_d._ in the pound, due from
merchant-strangers only, for all commodities as well imported as
exported; which was usually called the alien's duty, and was first
granted in 31 Edw. I[x]. But these antient hereditary customs,
especially those on wool and woolfells, came to be of little account
when the nation became sensible of the advantages of a home
manufacture, and prohibited the exportation of wool by statute 11 Edw.
III. c. 1.
[Footnote r: Dyer. 165.]
[Footnote s: Dyer. 43. _pl._ 24.]
[Footnote t: 2 Inst. 58, 59.]
[Footnote u: Dav. 9.]
[Footnote w: This appellation seems to be derived from the French word
_coustum_, or _coutum_, which signifies toll or tribute, and owes it's
own etymology to the word _coust_, which signifies price, charge, or,
as we have adopted it in English, _cost_.]
[Footnote x: 4 Inst. 29.]
THERE is also another antient hereditary duty belonging to the crown,
called the _prisage_ or _butlerage_ of wines. Prisage was a right of
_taking_ two tons of wine from every ship importing into England
twenty tons or more; which by Edward I was exchanged into a duty of
2_s._ for every ton imported by merchant-strangers; which is called
butlerage, because paid to the king's butler[y].
[Footnote y: Dav. 8. _b._ 2 Bulstr. 254.]
OTHER customs payable upon exports and imports are distinguished into
subsidies, tonnage, poundage, and other imposts. Subsidies are such as
were imposed by parliament upon any of the staple commodities before
mentioned, over and above the _custuma antiqua et magna_: tonnage was
a duty upon all wines imported, over and above the prisage and
butlerage aforesaid: poundage was a duty imposed _ad valorem_, at the
rate of 12_d._ in the pound, on all other merchandize whatsoever: and
the other imports were such as were occasionally laid on by
parliament, as circumstances and times required[z]. These distinctions
are now in a manner forgotten, except by the officers immediately
concerned in this department; their produce being in effect all
blended together, under the one denomination of the customs.
[Footnote z: Dav. 11, 12.]
BY these we understand, at present, a duty or subsidy paid by the
merchant, at the quay, upon all imported as well as exported
commodities, by authority of parliament; unless where, for particular
national reasons, certain rewards, bounties, or drawbacks, are allowed
for particular exports or imports. Those of tonnage and poundage, in
particular, were at first granted, as the old statutes, and
particularly 1 Eliz. c. 19. express it, for the defence of the realm,
and the keeping and safeguard of the seas, and for the intercourse of
merchandize safely to come into and pass out of the same. They were at
first usually granted only for a stated term of years, as, for two
years in 5 Ric. II[a]; but in Henry the fifth's time, they were
granted him for life by a statute in the third year of his reign; and
again to Edward IV for the term of his life also: since which time
they were regularly granted to all his successors, for life, sometimes
at their first, sometimes at other subsequent parliaments, till the
reign of Charles the first; when, as had before happened in the reign
of Henry VIII[b] and other princes, they were neglected to be asked.
And yet they were imprudently and unconstitutionally levied and taken
without consent of parliament, (though more than one had been
assembled) for fifteen years together; which was one of the causes of
those unhappy discontents, justifiable at first in too many instances,
but which degenerated at last into causeless rebellion and murder.
For, as in every other, so in this particular case, the king (previous
to the commencement of hostilities) gave the nation ample satisfaction
for the errors of his former conduct, by passing an act[c], whereby he
renounced all power in the crown of levying the duty of tonnage and
poundage, without the express consent of parliament; and also all
power of imposition upon any merchandizes whatever. Upon the
restoration this duty was granted to king Charles the second for life,
and so it was to his two immediate successors; but now by three
several statutes, 9 Ann. c. 6. 1 Geo. I. c. 12. and 3 Geo. I. c. 7. it
is made perpetual and mortgaged for the debt of the publick. The
customs, thus imposed by parliament, are chiefly contained in two
books of rates, set forth by parliamentary authority[d]; one signed by
sir Harbottle Grimston, speaker of the house of commons in Charles the
second's time; and the other an additional one signed by sir Spenser
Compton, speaker in the reign of George the first; to which also
subsequent additions have been made. Aliens pay a larger proportion
than natural subjects, which is what is now generally understood by
the aliens' duty; to be exempted from which is one principal cause of
the frequent applications to parliament for acts of naturalization.
[Footnote a: Dav. 12.]
[Footnote b: Stat. 6 Hen. VIII. c. 14.]
[Footnote c: 16 Car. I. c. 8.]
[Footnote d: Stat. 12 Car. II. c. 4. 11 Geo. I. c. 7.]
THESE customs are then, we see, a tax immediately paid by the
merchant, although ultimately by the consumer. And yet these are the
duties felt least by the people; and, if prudently managed, the people
hardly consider that they pay them at all. For the merchant is easy,
being sensible he does not pay them for himself; and the consumer, who
really pays them, confounds them with the price of the commodity: in
the same manner as Tacitus observes, that the emperor Nero gained the
reputation of abolishing the tax on the sale of slaves, though he only
transferred it from the buyer to the seller; so that it was, as he
expresses it, "_remissum magis specie, quam vi: quia cum venditor
pendere juberetur, in partem pretii emptoribus accrescebat_[e]." But
this inconvenience attends it on the other hand, that these imposts,
if too heavy, are a check and cramp upon trade; and especially when
the value of the commodity bears little or no proportion to the
quantity of the duty imposed. This in consequence gives rise also to
smuggling, which then becomes a very lucrative employment: and it's
natural and most reasonable punishment, _viz._ confiscation of the
commodity, is in such cases quite ineffectual; the intrinsic value of
the goods, which is all that the smuggler has paid, and therefore all
that he can lose, being very inconsiderable when compared with his
prospect of advantage in evading the duty. Recourse must therefore be
had to extraordinary punishments to prevent it; perhaps even to
capital ones: which destroys all proportion of punishment[f], and puts
murderers upon an equal footing with such as are really guilty of no
natural, but merely a positive offence.
[Footnote e: Hist. l. 13.]
[Footnote f: Montesqu. Sp. L. b. 13. c. 8.]
THERE is also another ill consequence attending high imports on
merchandize, not frequently considered, but indisputably certain; that
the earlier any tax is laid on a commodity, the heavier it falls upon
the consumer in the end: for every trader, through whose hands it
passes, must have a profit, not only upon the raw material and his own
labour and time in preparing it, but also upon the very tax itself,
which he advances to the government; otherwise he loses the use and
interest of the money which he so advances. To instance in the article
of foreign paper. The merchant pays a duty upon importation, which he
does not receive again till he sells the commodity, perhaps at the end
of three months. He is therefore equally entitled to a profit upon
that duty which he pays at the customhouse, as to a profit upon the
original price which he pays to the manufacturer abroad; and considers
it accordingly in the price he demands of the stationer. When the
stationer sells it again, he requires a profit of the printer or
bookseller upon the whole sum advanced by him to the merchant: and the
bookseller does not forget to charge the full proportion to the
student or ultimate consumer; who therefore does not only pay the
original duty, but the profits of these three intermediate traders,
who have successively advanced it for him. This might be carried much
farther in any mechanical, or more complicated, branch of trade.
II. DIRECTLY opposite in it's nature to this is the excise duty; which
is an inland imposition, paid sometimes upon the consumption of the
commodity, or frequently upon the retail sale, which is the last stage
before the consumption. This is doubtless, impartially speaking, the
most oeconomical way of taxing the subject: the charges of levying,
collecting, and managing the excise duties being considerably less in
proportion, than in any other branch of the revenue. It also renders
the commodity cheaper to the consumer, than charging it with customs
to the same amount would do; for the reason just now given, because
generally paid in a much later stage of it. But, at the same time, the
rigour and arbitrary proceedings of excise-laws seem hardly compatible
with the temper of a free nation. For the frauds that might be
committed in this branch of the revenue, unless a strict watch is
kept, make it necessary, wherever it is established, to give the
officers a power of entring and searching the houses of such as deal
in excisable commodities, at any hour of the day, and, in many cases,
of the night likewise. And the proceedings in case of transgressions
are so summary and sudden, that a man may be convicted in two days
time in the penalty of many thousand pounds by two commissioners or
justices of the peace; to the total exclusion of the trial by jury,
and disregard of the common law. For which reason, though lord
Clarendon tells us[g], that to his knowlege the earl of Bedford (who
was made lord treasurer by king Charles the first, to oblige his
parliament) intended to have set up the excise in England, yet it
never made a part of that unfortunate prince's revenue; being first
introduced, on the model of the Dutch prototype, by the parliament
itself after it's rupture with the crown. Yet such was the opinion of
it's general unpopularity, that when in 1642 "aspersions were cast by
malignant persons upon the house of commons, that they intended to
introduce excises, the house for it's vindication therein did declare,
that these rumours were false and scandalous; and that their authors
should be apprehended and brought to condign punishment[h]." It's
original establishment was in 1643, and it's progress was gradual[i];
being at first laid upon those persons and commodities, where it was
supposed the hardship would be least perceivable, _viz._ the makers
and venders of beer, ale, cyder, and perry[k]; and the royalists at
Oxford soon followed the example of their brethren at Westminster by
imposing a similar duty; both sides protesting that it should be
continued no longer than to the end of the war, and then be utterly
abolished[l]. But the parliament at Westminster soon after imposed it
on flesh, wine, tobacco, sugar, and such a multitude of other
commodities that it might fairly be denominated general; in pursuance
of the plan laid down by Mr Pymme (who seems to have been the father
of the excise) in his letter to sir John Hotham[m], signifying, "that
they had proceeded in the excise to many particulars, and intended to
go on farther; but that it would be necessary to use the people to it
by little and little." And afterwards, when the people had been
accustomed to it for a series of years, the succeeding champions of
liberty boldly and openly declared, "the impost of excise to be the
most easy and indifferent levy that could be laid upon the people[n]:"
and accordingly continued it during the whole usurpation. Upon king
Charles's return, it having then been long established and it's
produce well known, some part of it was given to the crown, in the 12
Car. II, by way of purchase (as was before observed) for the feodal
tenures and other oppressive parts of the hereditary revenue. But,
from it's first original to the present time, it's very name has been
odious to the people of England. It has nevertheless been imposed on
abundance of other commodities in the reigns of king William III, and every succeeding prince, to support the enormous expenses occasioned by our wars on the continent. Thus brandies and other spirits are now excised at the distillery; printed silks and linens, at the printers; |
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