XVII.
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.
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.
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.
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.
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.
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.
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.
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[**sic]
due health and vigour.
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.
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[**sic, for 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.
or perpetual. The usual annual taxes are those upon land
and malt.
I.
former methods of rating either property, or persons in respect of
their property, whether by tenths or fifteenths, subsidies on land,
by hydages, scutages, or talliages; a short explication of which will
greatly assist us in understanding our antient laws and history.
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 29000l. 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.
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.
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 4s. in the pound for lands, and
2s. 6d. 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 70000l. 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.
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 4s. 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 20000l.
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.
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 120000l. 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 800000l. 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 500000l. was equal to 1s. 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 4s. in the pound,
sometimes at 3s, sometimes at 2s, twice[q] at 1s, but without any
total intermission. The medium has been 3s. 3d. 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.
II.
750000l, raised every year by parliament, ever since 1697, by
a duty of 6d. 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 3d. per bushel
was laid upon malt; and in 1763 a proportionable excise was laid
upon cyder and perry.
"End of Section 32"
