Commentaries on the Laws of England Part 23

[Footnote c: Matth. Paris.]

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

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

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

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

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

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

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

III. THE king also (as was formerly observed[i]) is ent.i.tled to all the t.i.thes arising in extraparochial places[k]: though perhaps it may be doubted how far this article, as well as the last, can be properly reckoned a part of the king's own royal revenue; since a corody supports only his chaplains, and these extraparochial t.i.thes are held under an implied trust, that the king will distribute them for the good of the clergy in general.

[Footnote i: page 110.]

[Footnote k: 2 Inst. 647.]

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

THESE were originally a part of the papal usurpations over the clergy of this kingdom; first introduced by Pandulph the pope's legate, during the reigns of king John and Henry the third, in the see of Norwich; and afterwards attempted to be made universal by the popes Clement V and John XXII, about the beginning of the fourteenth century. The first-fruits, _primitiae_, or _annates_, were the first year's whole profits of the spiritual preferment, according to a rate or _valor_ made under the direction of pope Innocent IV by Walter bishop of Norwich in 38 Hen. III, and afterwards advanced in value by commission from pope Nicholas the third, _A.D._ 1292, 20 Edw. I[l]; which valuation of pope Nicholas is still preserved in the exchequer[m]. The tenths, or _decimae_, were the tenth part of the annual profit of each living by the same valuation; which was also claimed by the holy see, under no better pretence than a strange misapplication of that precept of the Levitical law, which directs[n], "that the Levites should offer the tenth part of their t.i.the as a heave-offering to the Lord, and give it to Aaron the _high_ priest."

But this claim of the pope met with vigorous resistance from the English parliament; and a variety of acts were pa.s.sed to prevent and restrain it, particularly the statute 6 Hen. IV. c. 1. which calls it a horrible mischief and d.a.m.nable custom. But the popish clergy, blindly devoted to the will of a foreign master, still kept it on foot; sometimes more secretly, sometimes more openly and avowedly: so that, in the reign of Henry VIII, it was computed, that in the compa.s.s of fifty years 800000 ducats had been sent to Rome for first-fruits only. And, as the clergy expressed this willingness to contribute so much of their income to the head of the church, it was thought proper (when in the same reign the papal power was abolished, and the king was declared the head of the church of England) to annex this revenue to the crown; which was done by statute 26 Hen. VIII. c. 3. (confirmed by statute 1 Eliz. c. 4.) and a new _valor beneficiorum_ was then made, by which the clergy are at present rated.

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

[Footnote m: 3 Inst. 154.]

[Footnote n: Numb. 18. 26.]

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

THUS the richer clergy, being, by the criminal bigotry of their popish predecessors, subjected at first to a foreign exaction, were afterwards, when that yoke was shaken off, liable to a like misapplication of their revenues, through the rapacious disposition of the then reigning monarch: till at length the piety of queen Anne restored to the church what had been thus indirectly taken from it.

This she did, not by remitting the tenths and first-fruits entirely; but, in a spirit of the truest equity, by applying these superfluities of the larger benefices to make up the deficiences of the smaller. And to this end she granted her royal charter, which was confirmed by the statute 2 Ann. c. 11. whereby all the revenue of first-fruits and tenths is vested in trustees for ever, to form a perpetual fund for the augmentation of poor livings. This is usually called queen Anne's bounty; which has been still farther regulated by subsequent statutes, too numerous here to recite.

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

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

[Footnote p: In like manner, by the civil law, the inheritances or _fundi patrimoniales_ of the imperial crown could not be alienated, but only let to farm. _Cod._ _l._ 11. _t._ 61.]

VI. HITHER might have been referred the advantages which were used to arise to the king from the profits of his military tenures, to which most lands in the kingdom were subject, till the statute 12 Car. II.

c. 24. which in great measure abolished them all: the explication of the nature of which tenures, must be referred to the second book of these commentaries. Hither also might have been referred the profitable prerogative of purveyance and pre-emption: which was a right enjoyed by the crown of buying up provisions and other necessaries, by the intervention of the king's purveyors, for the use of his royal houshold, at an appraised valuation, in preference to all others, and even without consent of the owner; and also of forcibly impressing the carriages and horses of the subject, to do the king's business on the publick roads, in the conveyance of timber, baggage, and the like, however inconvenient to the proprietor, upon paying him a settled price. A prerogative, which prevailed pretty generally throughout Europe, during the scarcity of gold and silver, and the high valuation of money consequential thereupon. In those early times the king's houshold (as well as those of inferior lords) were supported by specific renders of corn, and other victuals, from the tenants of the respective demesnes; and there was also a continual market kept at the palace gate to furnish viands for the royal use[q].

And this answered all purposes, in those ages of simplicity, so long as the king's court continued in any certain place. But when it removed from one part of the kingdom to another (as was formerly very frequently done) it was found necessary to send purveyors beforehand, to get together a sufficient quant.i.ty of provisions and other necessaries for the houshold: and, lest the unusual demand should raise them to an exorbitant price, the powers beforementioned were vested in these purveyors; who in process of time very greatly abused their authority, and became a great oppression to the subject though of little advantage to the crown; ready money in open market (when the royal residence was more permanent, and specie began to be plenty) being found upon experience to be the best proveditor of any.

Wherefore by degrees the powers of purveyance have declined, in foreign countries as well as our own; and particularly were abolished in Sweden by Gustavus Adolphus, toward the beginning of the last century[r]. And, with us in England, having fallen into disuse during the suspension of monarchy, king Charles at his restoration consented, by the same statute, to resign intirely these branches of his revenue and power, for the ease and convenience of his subjects: and the parliament, in part of recompense, settled on him, his heirs, and successors, for ever, the hereditary excise of fifteen pence _per_ barrel on all beer and ale sold in the kingdom, and a proportionable sum for certain other liquors. So that this hereditary excise, the nature of which shall be farther explained in the subsequent part of this chapter, now forms the sixth branch of his majesty's ordinary revenue.

[Footnote q: 4 Inst. 273.]

[Footnote r: Mod. Un. Hist. x.x.xiii. 220.]

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

VIII. AN eighth branch of the king's ordinary revenue is usually reckoned to consist in the profits arising from his forests. Forests are waste grounds belonging to the king, replenished with all manner of beasts of chase or venary; which are under the king's protection, for the sake of his royal recreation and delight: and, to that end, and for preservation of the king's game, there are particular laws, privileges, courts and officers belonging to the king's forests; all which will be, in their turns, explained in the subsequent books of these commentaries. What we are now to consider are only the profits arising to the king from hence; which consist princ.i.p.ally in amercements or fines levied for offences against the forest-laws. But as few, if any courts of this kind for levying amercements have been held since 1632, 8 Car. I. and as, from the accounts given of the proceedings in that court by our histories and law books[s], n.o.body would now wish to see them again revived, it is needless (at least in this place) to pursue this enquiry any farther.

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

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

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

[Footnote t: Plowd. 315.]

[Footnote u: Stiernh. _de jure Sueonum._ _l._ 2. _c._ 8. _Gr.

Coustum._ _cap._ 17.]

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

[Footnote x: Bracton. _l._ 3. _c._ 3. Britton. _c._ 17. Fleta. _l._ 1.

_c._ 45 & 46.]

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

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

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

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

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

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

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

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

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

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

[Footnote h: --. 28.]

[Footnote i: 2 Inst. 168.]

[Footnote k: Plowd. 166.]

[Footnote l: 2 Inst. 168. Bro. Abr. _t.i.t. Wreck_.]