Commentaries on the Laws of England Part 26

[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 a.s.sessments 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 a.s.sessment 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 c.o.ke[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 n.o.ble 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 c.o.ke 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 a.s.sessments[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 a.s.sessments, 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 a.s.sessments 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 a.s.sessments were granted as the national emergencies required. These periodical a.s.sessments, the subsidies which preceded them, and the more antient scutage, hydage, and talliage, were to all intents and purposes a land tax; and the a.s.sessments 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 a.s.sessment 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 a.s.sessed and raised upon individuals (their personal estates, as well as real, being liable thereto) by commissioners appointed in the act, being the princ.i.p.al landholders of the county, and their officers.

[Footnote n: 29 Nov. 4 Mar. 1642.]

[Footnote o: One of these bills of a.s.sessment, 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 c.o.ke 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 a.s.sent 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 circ.u.mstances 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 pa.s.s 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 unconst.i.tutionally levied and taken without consent of parliament, (though more than one had been a.s.sembled) 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 pa.s.sing 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 princ.i.p.al 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 c.u.m 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 quant.i.ty 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 pa.s.ses, 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 ent.i.tled 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 mult.i.tude 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; 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 circ.u.mstances 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 gla.s.s; 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 a.s.sembly. 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 a.s.surance 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.