Friday, May 9, 2008

Blackstone ss29

"Section 29. Part 4 of Chapter 7 of the Commentaries on the Laws of England, Book 1. - This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information, or to volunteer, please visit: librivox DOT org" "Recording by [your name]" "Commentaries on the Laws of England by William Blackstone (pronounced "Blexstun"), book 1. Chapter 7, Part 4"

IV. The king is likewise the fountain of honour, of office,
and of privilege: and this in a different sense from that wherein
he is stiled the fountain of justice; for here he is really the parent
of them. It is impossible that government can be maintained
without a due subordination of rank; that the people may know
and distinguish such as are set over them, in order to yield them
their due respect and obedience; and also that the officers themselves,
being encouraged by emulation and the hopes of superiority,
may the better discharge their functions: and the law supposes,
that no one can be so good a judge of their several merits
and services, as the king himself who employs them. It has therefore
intrusted with him the sole power of conferring dignities and
honours, in confidence that he will bestow them upon none, but
such as deserve them. And therefore all degrees of nobility, of
knighthood, and other titles, are received by immediate grant
from the crown: either expressed in writing, by writs or letters
patent, as in the creations of peers and baronets; or by corporeal
investiture, as in the creation of a simple knight.

From the same principle also arises the prerogative of erecting
and disposing of offices: for honours and offices are in their
nature convertible and synonymous. All offices under the crown
carry in the eye of the law an honour along with them; because
they imply a superiority of parts and abilities, being supposed to
be always filled with those that are most able to execute them.
And, on the other hand, all honours in their original had duties
or offices annexed to them: an earl, comes, was the conservator
or governor of a county; and a knight, miles, was bound to attend
the king in his wars. For the same reason therefore that
honours are in the disposal of the king, offices ought to be so likewise;
and as the king may create new titles, so may he create new
offices: but with this restriction, that he cannot create new offices
with new fees annexed to them, nor annex new fees to old
offices; for this would be a tax upon the subject, which cannot
be imposed but by act of parliament[k]. Wherefore, in 13 Hen. IV.
a new office being created by the king's letters patent for measuring
cloths, with a new fee for the same, the letters patent were,
on account of the new fee, revoked and declared void in parliament.

Upon the same, or a like reason, the king has also the prerogative
of conferring privileges upon private persons. Such as
granting place or precedence to any of his subjects, as shall seem
good to his royal wisdom[l]: or such as converting aliens, or persons
born out of the king's dominions, into denizens; whereby
some very considerable privileges of natural-born subjects are conferred
upon them. Such also is the prerogative of erecting corporations;
whereby a number of private persons are united and knit
together, and enjoy many liberties, powers, and immunities in
their politic capacity, which they were utterly incapable of in
their natural. Of aliens, denizens, natural-born, and naturalized
subjects, I shall speak more largely in a subsequent chapter; as
also of corporations at the close of this book of our commentaries.
I now only mention them incidentally, in order to remark the
king's prerogative of making them; which is grounded upon this
foundation, that the king, having the sole administration of the
government in his hands, is the best and the only judge, in what
capacities, with what privileges, and under what distinctions, his
people are the best qualified to serve, and to act under him. A
principle, which was carried so far by the imperial law, that it
was determined to be the crime of sacrilege, even to doubt
whether the prince had appointed proper officers in the state[m].

V. Another light in which the laws of England consider
the king with regard to domestic concerns, is as the arbiter of
commerce. By commerce, I at present mean domestic commerce
only. It would lead me into too large a field, if I were to attempt,
to enter upon the nature of foreign trade, it's privileges, regulations,
and restrictions; and would be also quite beside the purpose
of these commentaries, which are confined to the laws of
England. Whereas no municipal laws can be sufficient to order
and determine the very extensive and complicated affairs of traffic
and merchandize; neither can they have a proper authority for
this purpose. For as these are transactions carried on between the
subjects of independent states, the municipal laws of one will not
be regarded by the other. For which reason the affairs of commerce
are regulated by a law of their own, called the law merchant
or lex mercatoria, which all nations agree in and take notice
of. And in particular the law of England does in many cases refer
itself to it, and leaves the causes of merchants to be tried by
their own peculiar customs; and that often even in matters relating
to inland trade, as for instance with regard to the drawing,
the acceptance, and the transfer, of bills of exchange[n].

With us in England, the king's prerogative, so far as it relates
to mere domestic commerce, will fall principally under the
following articles:

First, the establishment of public marts, or places of buying
and selling, such as markets and fairs, with the tolls thereunto
belonging. These can only be set up by virtue of the king's
grant, or by long and immemorial usage and prescription, which
presupposes such a grant[o]. The limitation of these public resorts,
to such time and such place as may be most convenient for the
neighbourhood, forms a part of oeconomics, or domestic polity;
which, considering the kingdom as a large family, and the king
as the master of it, he clearly has a right to dispose and order as
he pleases.

Secondly, the regulation of weights and measures. These,
for the advantage of the public, ought to be universally the same
throughout the kingdom; being the general criterions which reduce
all things to the same or an equivalent value. But, as weight
and measure are things in their nature arbitrary and uncertain, it
is therefore expedient that they be reduced to some fixed rule or
standard: which standard it is impossible to fix by any written
law or oral proclamation; for no man can, by words only, give
another an adequate idea of a foot-rule, or a pound-weight. It
is therefore necessary to have recourse to some visible, palpable,
material standard; by forming a comparison with which, all
weights and measures may be reduced to one uniform size: and
the prerogative of fixing this standard, our antient law vested in
the crown; as in Normandy it belonged to the duke[p]. This
standard was originally kept at Winchester: and we find in the
laws of king Edgar[q], near a century before the conquest, an injunction
that the one measure, which was kept at Winchester,
should be observed throughout the realm. Most nations have regulated
the standard of measures of length by comparison with
the parts of the human body; as the palm, the hand, the span,
the foot, the cubit, the ell, (ulna, or arm) the pace, and the fathom.
But, as these are of different dimensions in men of different
proportions, our antient historians[r] inform us, that a new
standard of longitudinal measure was ascertained by king Henry
the first; who commanded that the ulna or antient ell, which
answers to the modern yard, should be made of the exact length
of his own arm. And, one standard of measures of length being
gained, all others are easily derived from thence; those of greater
length by multiplying, those of less by subdividing, that original
standard. Thus, by the statute called compositio ulnarum et perticarum,
five yards and an half make a perch; and the yard is subdivided
into three feet, and each foot into twelve inches; which
inches will be each of the length of three grains of barley. Superficial
measures are derived by squaring those of length; and
measures of capacity by cubing them. The standard of weights
was originally taken from corns of wheat, whence the lowest
denomination of weights we have is still called a grain; thirty
two of which are directed, by the statute called compositio mensurarum,
to compose a penny weight, whereof twenty make an
ounce, twelve ounces a pound, and so upwards. And upon these
principles the first standards were made; which, being originally
so fixed by the crown, their subsequent regulations have been
generally made by the king in parliament. Thus, under king
Richard I, in his parliament holden at Westminster, A.D. 1197, it
was ordained that there shall be only one weight and one measure
throughout the kingdom, and that the custody of the assise or
standard of weights and measures shall be committed to certain
persons in every city and borough[s]; from whence the antient
office of the king's aulnager seems to have been derived, whose
duty it was, for a certain fee, to measure all cloths made for sale,
till the office was abolished by the statute 11 & 12 W. III. c. 20.
In king John's time this ordinance of king Richard was frequently
dispensed with for money[t]; which occasioned a provision to be
made for inforcing it, in the great charters of king John and his
son[u]. These original standards were called pondus regis[w], and
mensura domini regis[x]; and are directed by a variety of subsequent
statutes to be kept in the exchequer, and all weights and measures
to be made conformable thereto[y]. But, as sir Edward Coke
observes[x], though this hath so often by authority of parliament
been enacted, yet it could never be effected; so forcible is custom
with the multitude, when it hath gotten an head.

Thirdly, as money is the medium of commerce, it is the
king's prerogative, as the arbiter of domestic commerce, to give it
authority or make it current. Money is an universal medium, or
common standard, by comparison with which the value of all
merchandize may be ascertained: or it is a sign, which represents
the respective values of all commodities. Metals are well
calculated for this sign, because they are durable and are capable
of many subdivisions: and a precious metal is still better calculated
for this purpose, because it is the most portable. A metal is
also the most proper for a common measure, because it can easily
be reduced to the same standard in all nations: and every particular
nation fixes on it it's own impression, that the weight and
standard (wherein consists the intrinsic value) may both be known
by inspection only.

As the quantity of precious metals increases, that is, the more
of them there is extracted from the mine, this universal medium
or common sign will sink in value, and grow less precious. Above
a thousand millions of bullion are calculated to have been imported
into Europe from America within less than three centuries;
and the quantity is daily increasing. The consequence is,
that more money must be given now for the same commodity
than was given an hundred years ago. And, if any accident was
to diminish the quantity of gold and silver, their value would proportionably
rise. A horse, that was formerly worth ten pounds, is
now perhaps worth twenty; and, by any failure of current specie,
the price may be reduced to what it was. Yet is the horse in
reality neither dearer nor cheaper at one time than another: for,
if the metal which constitutes the coin was formerly twice as scarce
as at present, the commodity was then as dear at half the price,
as now it is at the whole.

The coining of money is in all states the act of the sovereign
power; for the reason just mentioned, that it's value may be
known on inspection. And with respect to coinage in general,
there are three things to be considered therein; the materials, the
impression, and the denomination.

With regard to the materials, sir Edward Coke lays it down[a],
that the money of England must either be of gold or silver; and
none other was ever issued by the royal authority till 1672, when
copper farthings and half-pence were coined by king Charles the
second, and ordered by proclamation to be current in all payments,
under the value of six-pence, and not otherwise. But this copper
coin is not upon the same footing with the other in many respects,
particularly with regard to the offence of counterfeiting it.
As to the impression, the stamping thereof is the unquestionable
prerogative of the crown: for, though divers bishops and monasteries
had formerly the privilege of coining money, yet, as sir
Matthew Hale observes[b], this was usually done by special grant
from the king, or by prescription which supposes one; and
therefore was derived from, and not in derogation of, the royal
prerogative. Besides that they had only the profit of the coinage,
and not the power of instituting either the impression or denomination;
but had usually the stamp sent them from the exchequer.

The denomination, or the value for which the coin is to pass
current, is likewise in the breast of the king; and, if any unusual
pieces are coined, that value must be ascertained by proclamation.
In order to fix the value, the weight, and the fineness
of the metal are to be taken into consideration together. When
a given weight of gold or silver is of a given fineness, it is then
of the true standard, and called sterling metal; a name for which
there are various reasons given[c], but none of them entirely satisfactory.
And of this sterling metal all the coin of the kingdom
must be made by the statute 25 Edw. III. c. 13. So that the
king's prerogative seemeth not to extend to the debasing or inhancing
the value of the coin, below or above the sterling value[d]:
though sir Matthew Hale[e] appears to be of another opinion. The
king may also, by his proclamation, legitimate foreign coin, and
make it current here; declaring at what value it shall be taken in
payments[f]. But this, I apprehend, ought to be by comparison
with the standard of our own coin; otherwise the consent of
parliament will be necessary. There is at present no such legitimated
money; Portugal coin being only current by private consent,
so that any one who pleases may refuse to take it in payment.
The king may also at any time decry, or cry down, any
coin of the kingdom, and make it no longer current[g].

VI. The king is, lastly, considered by the laws of England
as the head and supreme governor of the national church.

To enter into the reasons upon which this prerogative is founded
is matter rather of divinity than of law. I shall therefore
only observe that by statute 26 Hen. VIII. c. 1. (reciting that the
king's majesty justly and rightfully is and ought to be the supreme
head of the church of England; and so had been recognized by
the clergy of this kingdom in their convocation) it is enacted, that
the king shall be reputed the only supreme head in earth of the
church of England, and shall have, annexed to the imperial crown
of this realm, as well the titles and stile thereof, as all jurisdictions,
authorities, and commodities, to the said dignity of supreme
head of the church appertaining. And another statute to the same
purport was made, 1 Eliz. c. 1.

In virtue of this authority the king convenes, prorogues, restrains,
regulates, and dissolves all ecclesiastical synods or convocations.
This was an inherent prerogative of the crown, long
before the time of Henry VIII, as appears by the statute 8 Hen. VI.
c. 1. and the many authors, both lawyers and historians, vouched by
sir Edward Coke[h]. So that the statute 25 Hen. VIII. c. 19. which
restrains the convocation from making or putting in execution any
canons repugnant to the king's prerogative, or the laws, customs,
and statutes of the realm, was merely declaratory of the old
common law: that part of it only being new, which makes the
king's royal assent actually necessary to the validity of every canon.
The convocation or ecclesiastical synod, in England, differs considerably
in it's constitution from the synods of other christian
kingdoms: those consisting wholly of bishops; whereas with us
the convocation is the miniature of a parliament, wherein the
archbishop presides with regal state; the upper house of bishops
represents the house of lords; and the lower house, composed of
representatives of the several dioceses at large, and of each particular chapter therein, resembles the house of commons with it's
knights of the shire and burgesses[i]. This constitution is said to
be owing to the policy of Edward I; who thereby at one and the
same time let in the inferior clergy to the privilege of forming
ecclesiastical canons, (which before they had not) and also introduced
a method of taxing ecclesiastical benefices, by consent of

From this prerogative also of being the head of the church
arises the king's right of nomination to vacant bishopricks, and
certain other ecclesiastical preferments; which will better be considered
when we come to treat of the clergy. I shall only here
observe, that this is now done in consequence of the statute
25 Hen. VIII. c. 20.

As head of the church, the king is likewise the dernier resort
in all ecclesiastical causes; an appeal lying ultimately to him in
chancery from the sentence of every ecclesiastical judge: which
right was restored to the crown by statute 25 Hen. VIII. c. 19. as
will more fully be shewn hereafter.

"End of Section X"