Friday, May 9, 2008

Blackstone ss33

"Section 33. Part 4 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 4"

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
Coke 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 assent
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 3d. 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.

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 2s. for every ton imported by merchant-strangers;
which is called butlerage, because paid to the king's butler[y].

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 12d. in the pound,
on all other merchandize whatsoever: and the other imports were
such as were occasionally laid on by parliament, as circumstances
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.

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 pass 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 unconstitutionally levied and taken without consent
of parliament, (though more than one had been assembled)
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 passing 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.[**missing comma ?]
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 principal cause of the frequent applications to parliament for
acts of naturalization.

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 cum 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 quantity 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.

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 passes, 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 entitled 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[**entering ?] 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[**sic] rupture with the crown. Yet such was
the opinion of it's[**sic] 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
multitude 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 circumstances 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[**seen both with and without hyphen];
vinegars; and the manufacture of glass; 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.

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 3s. 4d. 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
assembly. 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 7000l. 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
assurance 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[**duplicate in text] 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 23600l. in the year 1715, to
170700l. 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.

V. A fifth branch of the perpetual revenue consists in the
stamp duties, which are a tax imposed upon all parchment and
paper whereon any legal proceedings, or private instruments of
almost any nature whatsoever, are written; and also upon licences
for retailing wines, of all denominations; upon all almanacks,
newspapers, advertisements, cards, dice, and pamphlets containing
less than six sheets of paper. These imposts are very various,
according to the nature of the thing stamped, rising gradually
from a penny to ten pounds. This is also a tax, which though
in some instances it may be heavily felt, by greatly increasing the
expence[**expense also used elsewhere] of all mercantile as well as legal proceedings, yet (if
moderately imposed) is of service to the public in general, by
authenticating instruments, and rendering it much more difficult
than formerly to forge deeds of any standing; since, as the officers
of this branch of the revenue vary their stamps frequently,
by marks perceptible to none but themselves, a man that would
forge a deed of king William's time, must know and be able to
counterfeit the stamp of that date also. In France and some other
countries the duty is laid on the contract itself, not on the instrument
in which it is contained: but this draws the subject into a
thousand nice disquisitions and disputes concerning the nature of
his contract, and whether taxable or not; in which the farmers
of the revenue are sure to have the advantage. Our method answers
the purposes of the state as well, and consults the ease of
the subject much better. The first institution of the stamp duties
was by statute 5 & 6 W. & M. c. 21. and they have since in many
instances been encreased to five times their original amount.

VI. A sixth branch is the duty upon houses and windows.
As early as the conquest mention is made in domesday book of
fumage or fuage, vulgarly called smoke farthings; which were
paid by custom to the king for every chimney in the house. And
we read that Edward the black prince (soon after his successes in
France) in imitation of the English custom, imposed a tax of a
florin upon every hearth in his French dominions[a]. But the first
parliamentary establishment of it in England was by statute
13 & 14 Car. II. c. 10. whereby an hereditary revenue of 2s. for
every hearth, in all houses paying to church and poor, was granted
to the king for ever. And, by subsequent statutes, for the more
regular assessment of this tax, the constable and two other substantial
inhabitants of the parish, to be appointed yearly, were,
once in every year, empowered to view the inside of every house
in the parish. But, upon the revolution, by statute 1 W. & M.
st. 1. c. 10. hearth-money was declared to be "not only a great
oppression to the poorer sort, but a badge of slavery upon the
whole people, exposing every man's house to be entered into,
and searched at pleasure, by persons unknown to him; and
therefore, to erect a lasting monument of their majesties' goodness
in every house in the kingdom, the duty of hearth-money
was taken away and abolished." This monument of goodness
remains among us to this day: but the prospect of it was somewhat
darkened when, in six years afterwards, by statute 7 W. III.
c. 18. a tax was laid upon all houses (except cottages) of 2s.
now advanced to 3s. per house, and a tax also upon all windows,
if they exceed nine, in such house. Which rates have been from
time to time varied, (particularly by statutes 20 Geo. II. c. 3. and
31 Geo. II. c. 22.) and power is given to surveyors, appointed
by the crown, to inspect the outside of houses, and also to pass
through any house two days in the year, into any court or yard
to inspect the windows there.

VII. The seventh branch of the extraordinary perpetual revenue
is the duty arising from licences to hackney coaches and
chairs in London, and the parts adjacent. In 1654 two hundred
hackney coaches were allowed within London, Westminster, and
six miles round, under the direction of the court of aldermen[b].
By statute 13 & 14 Car. II. c. 2. four hundred were licensed; and
the money arising thereby was applied to repairing the streets[c].
This number was increased to seven hundred by statute 5 W. & M.
c. 22. and the duties vested in the crown: and by the statute
9 Ann. c. 23. and other subsequent statutes[d], there are now eight
hundred licensed coaches and four hundred chairs. This revenue
is governed by commissioners of it's own, and is, in truth, a
benefit to the subject; as the expense of it is felt by no individual,
and it's necessary regulations have established a competent
jurisdiction, whereby a very refractory race of men may be kept
in some tolerable order.

"End of Section 33"