Friday, May 9, 2008

Blackstone ss30

"Section 30. Part 1 of Chapter 8 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 8, Part 1"

Chapter the eighth.

Of the King's Revenue.

Having, in the preceding chapter, considered at large
those branches of the king's prerogative, which contribute
to his royal dignity, and constitute the executive power of the
government, we proceed now to examine the king's fiscal prerogatives,
or such as regard his revenue; which the British constitution
hath vested in the royal person, in order to support his dignity
and maintain his power: being a portion which each subject
contributes of his property, in order to secure the remainder.

This revenue is either ordinary, or extraordinary. The king's
ordinary revenue is such, as has either subsisted time out of mind
in the crown; or else has been granted by parliament, by way of
purchase or exchange for such of the king's inherent hereditary
revenues, as were found inconvenient to the subject.

When I say that it has subsisted time out of mind in the
crown, I do not mean that the king is at present in the actual
possession of the whole of this revenue. Much (nay, the greatest
part) of it is at this day in the hands of subjects; to whom it
has been granted out from time to time by the kings of England:
which has rendered the crown in some measure dependent on the
people for it's ordinary support and subsistence. So that I must be
obliged to recount, as part of the royal revenue, what lords of
manors and other subjects frequently look upon to be their own
absolute rights, because they are and have been vested in them
and their ancestors for ages, though in reality originally derived
from the grants of our antient princes.

I. The first of the king's ordinary revenues, which I shall take
notice of, is of an ecclesiastical kind; (as are also the three succeeding
ones) viz. the custody of the temporalties of bishops; by
which are meant all the lay revenues, lands, and tenements (in
which is included his barony) which belong to an archbishop's or
bishop's see. And these upon the vacancy of the bishoprick are
immediately the right of the king, as a consequence of his prerogative
in church matters; whereby he is considered as the founder
of all archbishopricks and bishopricks, to whom during the
vacancy they revert. And for the same reason, before the dissolution
of abbeys, the king had the custody of the temporalties of
all such abbeys and priories as were of royal foundation (but not
of those founded by subjects) on the death of the abbot or prior[a].
Another reason may also be given, why the policy of the law
hath vested this custody in the king; because, as the successor is
not known, the lands and possessions of the see would be liable
to spoil and devastation, if no one had a property therein. Therefore
the law has given the king, not the temporalties themselves,
but the custody of the temporalties, till such time as a successor is
appointed; with power of taking to himself all the intermediate
profits, without any account to the successor; and with the
right of presenting (which the crown very frequently exercises)
to such benefices and other preferments as fall within the time of
vacation[b]. This revenue is of so high a nature, that it could not
be granted out to a subject, before, or even after, it accrued:
but now by the statute 14 Edw. III. st. 4. c. 4 & 5. the king
may, after the vacancy, lease the temporalties to the dean and
chapter; saving to himself all advowsons, escheats, and the like.
Our antient kings, and particularly William Rufus, were not
only remarkable for keeping the bishopricks a long time vacant,
for the sake of enjoying the temporalties, but also committed
horrible waste on the woods and other parts of the estate; and,
to crown all, would never, when the see was filled up, restore to
the bishop his temporalties again, unless he purchased them at an
exorbitant price. To remedy which, king Henry the first[c] granted
a charter at the beginning of his reign, promising neither to sell,
nor let to farm, nor take any thing from, the domains of the
church, till the successor was installed. And it was made one of
the articles of the great charter[d], that no waste should be committed
in the temporalties of bishopricks, neither should the custody
of them be sold. The same is ordained by the statute of
Westminster the first[e]; and the statute 14 Edw. III. st. 4. c. 4.
(which permits, as we have seen, a lease to the dean and chapter)
is still more explicit in prohibiting the other exactions. It was
also a frequent abuse, that the king would for trifling, or no
causes, seise the temporalties of bishops, even during their lives,
into his own hands: but this is guarded against by statute
1 Edw. III. st. 2. c. 2.

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 restitution of his temporalties
quite entire, and untouched, from the king; and then,
and not sooner, he has a fee simple in his bishoprick, and may
maintain an action for the same[f].

II. The king is entitled to a corody, as the law calls it, out
of every bishoprick: 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.

III. The king also (as was formerly observed[i]) is entitled to
all the tithes 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
tithes are held under an implied trust, that the king will distribute
them for the good of the clergy in general.

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 tithe 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 passed to prevent and restrain
it, particularly the statute 6 Hen. IV. c. 1. which calls it a horrible
mischief and damnable 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 compass 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.

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 incumbent 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
compass, 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 passed[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.

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
quantity of provisions and other necessaries for the household:
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.

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 principally 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], nobody would
now wish to see them again revived, it is needless (at least in this
place) to pursue this enquiry any farther.

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 title. 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 whole 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
ashore, 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].

"End of Section 30"