[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 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 [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 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.
[Footnote o: Com. Journ. 28 Mar. 1642.]
[Footnote p: Ibid. 7 Sept. 1644.]
[Footnote q: Ibid. 21 Mar. 1649.]
[Footnote r: Ibid.]
[Footnote s: Scobell. 358.]
[Footnote t: Com. Journ. 9 Jun. 1657. Scobell. 511.]
[Footnote u: Com. Journ. 17 Dec. 1660.]
[Footnote w: Ibid. 22 Dec. 1660.]
[Footnote x: Ibid. 16 Apr. 1735.]
[Footnote y: Ibid. 26 Feb. 1734.]
[Footnote z: Ibid. 28 Mar. 1764.]
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 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.
[Footnote a: Mod. Un. Hist. xxiii. 463. Spelm. Gloss. tit. Fuage.]
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.
[Footnote b: Scobell. 313.]
[Footnote c: Com. Journ. 14 Feb. 1661.]
[Footnote d: 10 Ann. c. 19. Sec. 158. 12 Geo. I. c. 15. 33 Geo. II. c. 25.]
VIII. THE eighth and last branch of the king's extraordinary perpetual revenue is the duty upon offices and pensions; consisting in a payment of 1s. in the pound (over and above all other duties) out of all salaries, fees, and perquisites, of offices and pensions payable by the crown. This highly popular taxation was imposed by statute 31 Geo. II. c. 22. and is under the direction of the commissioners of the land tax.
THE clear neat produce of these several branches of the revenue, after all charges of collecting and management paid, amounts annually to about seven millions and three quarters sterling; besides two millions and a quarter raised annually, at an average, by the land and malt tax. How these immense sums are appropriated, is next to be considered. And this is, first and principally, to the payment of the interest of the national debt.
IN order to take a clear and comprehensive view of the nature of this national debt, it must first be premised, that after the revolution, when our new connections with Europe introduced a new system of foreign politics, the expenses of the nation, not only in settling the new establishment, but in maintaining long wars, as principals, on the continent, for the security of the Dutch barrier, reducing the French monarchy, settling the Spanish succession, supporting the house of Austria, maintaining the liberties of the Germanic body, and other purposes, increased to an unusual degree: insomuch that it was not thought advisable to raise all the expenses of any one year by taxes to be levied within that year, lest the unaccustomed weight of them should create murmurs among the people. It was therefore the policy of the times, to anticipate the revenues of their posterity, by borrowing immense sums for the current service of the state, and to lay no more taxes upon the subject than would suffice to pay the annual interest of the sums so borrowed: by this means converting the principal debt into a new species of property, transferrable from one man to another at any time and in any quantity. A system which seems to have had it's original in the state of Florence, A.D. 1344: which government then owed about 60000l. sterling; and, being unable to pay it, formed the principal into an aggregate sum, called metaphorically a mount or bank, the shares whereof were transferrable like our stocks, with interest at 5 per cent. the prices varying according to the exigencies of the state[e]. This laid the foundation of what is called the national debt: for a few long annuities created in the reign of Charles II will hardly deserve that name. And the example then set has been so closely followed during the long wars in the reign of queen Anne, and since, that the capital of the national debt, (funded and unfunded) amounted in January 1765 to upwards of 145,000,000l. to pay the interest of which, and the charges for management, amounting annually to about four millions and three quarters, the revenues just enumerated are in the first place mortgaged, and made perpetual by parliament. Perpetual, I say; but still redeemable by the same authority that imposed them: which, if it at any time can pay off the capital, will abolish those taxes which are raised to discharge the interest.
[Footnote e: Pro tempore, pro spe, pro commodo, minuitur eorum pretium atque augescit. Aretin. See Mod. Un. Hist. xxxvi. 116.]
BY this means the quantity of property in the kingdom is greatly encreased in idea, compared with former times; yet, if we coolly consider it, not at all encreased in reality. We may boast of large fortunes, and quantities of money in the funds. But where does this money exist? It exists only in name, in paper, in public faith, in parliamentary security: and that is undoubtedly sufficient for the creditors of the public to rely on. But then what is the pledge which the public faith has pawned for the security of these debts? The land, the trade, and the personal industry of the subject; from which the money must arise that supplies the several taxes. In these therefore, and these only, the property of the public creditors does really and intrinsically exist: and of course the land, the trade, and the personal industry of individuals, are diminished in their true value just so much as they are pledged to answer. If A's income amounts to 100l. per annum; and he is so far indebted to B, that he pays him 50l. per annum for his interest; one half of the value of A's property is transferred to B the creditor. The creditor's property exists in the demand which he has upon the debtor, and no where else; and the debtor is only a trustee to his creditor for one half of the value of his income. In short, the property of a creditor of the publick, consists in a certain portion of the national taxes: by how much therefore he is the richer, by so much the nation, which pays these taxes, is the poorer.
THE only advantage, that can result to a nation from public debts, is the encrease of circulation by multiplying the cash of the kingdom, and creating a new species of money, always ready to be employed in any beneficial undertaking, by means of it's transferrable quality; and yet productive of some profit, even when it lies idle and unemployed. A certain proportion of debt seems therefore to be highly useful to a trading people; but what that proportion is, it is not for me to determine. Thus much is indisputably certain, that the present magnitude of our national incumbrances very far exceeds all calculations of commercial benefit, and is productive of the greatest inconveniences. For, first, the enormous taxes, that are raised upon the necessaries of life for the payment of the interest of this debt, are a hurt both to trade and manufactures, by raising the price as well of the artificer's subsistence, as of the raw material, and of course, in a much greater proportion, the price of the commodity itself. Secondly, if part of this debt be owing to foreigners, either they draw out of the kingdom annually a considerable quantity of specie for the interest; or else it is made an argument to grant them unreasonable privileges in order to induce them to reside here. Thirdly, if the whole be owing to subjects only, it is then charging the active and industrious subject, who pays his share of the taxes, to maintain the indolent and idle creditor who receives them. Lastly, and principally, it weakens the internal strength of a state, by anticipating those resources which should be reserved to defend it in case of necessity. The interest we now pay for our debts would be nearly sufficient to maintain any war, that any national motives could require. And if our ancestors in king William's time had annually paid, so long as their exigences lasted, even a less sum than we now annually raise upon their accounts, they would in the time of war have borne no greater burdens, than they have bequeathed to and settled upon their posterity in time of peace; and might have been eased the instant the exigence was over.
THE produce of the several taxes beforementioned were originally separate and distinct funds; being securities for the sums advanced on each several tax, and for them only. But at last it became necessary, in order to avoid confusion, as they multiplied yearly, to reduce the number of these separate funds, by uniting and blending them together; superadding the faith of parliament for the general security of the whole. So that there are now only three capital funds of any account, the aggregate fund, and the general fund, so called from such union and addition; and the south sea fund, being the produce of the taxes appropriated to pay the interest of such part of the national debt as was advanced by that company and it's annuitants. Whereby the separate funds, which were thus united, are become mutual securities for each other; and the whole produce of them, thus aggregated, is liable to pay such interest or annuities as were formerly charged upon each distinct fund; the faith of the legislature being moreover engaged to supply any casual deficiences.
THE customs, excises, and other taxes, which are to support these funds, depending on contingencies, upon exports, imports, and consumptions, must necessarily be of a very uncertain amount; but they have always been considerably more than was sufficient to answer the charge upon them. The surplusses therefore of the three great national funds, the aggregate, general, and south sea funds, over and above the interest and annuities charged upon them, are directed by statute 3 Geo. I. c. 7. to be carried together, and to attend the disposition of parliament; and are usually denominated the sinking fund, because originally destined to sink and lower the national debt. To this have been since added many other intire duties, granted in subsequent years; and the annual interest of the sums borrowed on their respective credits is charged on and payable out of the produce of the sinking fund. However the neat surplusses and savings, after all deductions paid, amount annually to a very considerable sum; particularly in the year ending at Christmas 1764, to about two millions and a quarter. For, as the interest on the national debt has been at several times reduced, (by the consent of the proprietors, who had their option either to lower their interest or be paid their principal) the savings from the appropriated revenues must needs be extremely large. This sinking fund is the last resort of the nation; on which alone depend all the hopes we can entertain of ever discharging or moderating our incumbrances. And therefore the prudent application of the large sums, now arising from this fund, is a point of the utmost importance, and well worthy the serious attention of parliament; which has thereby been enabled, in this present year 1765, to reduce above two millions sterling of the public debt.
BUT, before any part of the aggregate fund (the surplusses whereof are one of the chief ingredients that form the sinking fund) can be applied to diminish the principal of the public debt, it stands mortgaged by parliament to raise an annual sum for the maintenance of the king's houshold and the civil list. For this purpose, in the late reigns, the produce of certain branches of the excise and customs, the post-office, the duty on wine licences, the revenues of the remaining crown lands, the profits arising from courts of justice, (which articles include all the hereditary revenues of the crown) and also a clear annuity of 120000l. in money, were settled on the king for life, for the support of his majesty's houshold, and the honour and dignity of the crown. And, as the amount of these several branches was uncertain, (though in the last reign they were generally computed to raise almost a million) if they did not arise annually to 800,000l. the parliament engaged to make up the deficiency. But his present majesty having, soon after his accession, spontaneously signified his consent, that his own hereditary revenues might be so disposed of as might best conduce to the utility and satisfaction of the public, and having graciously accepted the limited sum of 800000l. per annum for the support of his civil list (and that also charged with three life annuities, to the princess of Wales, the duke of Cumberland, and the princess Amalie, to the amount of 77000l.) the said hereditary and other revenues are now carried into and made a part of the aggregate fund, and the aggregate fund is charged with the payment of the whole annuity to the crown of 800000l. per annum[f]. Hereby the revenues themselves, being put under the same care and management as the other branches of the public patrimony, will produce more and be better collected than heretofore; and the public is a gainer of upwards of 100000l. per annum by this disinterested bounty of his majesty. The civil list, thus liquidated, together with the four millions and three quarters, interest of the national debt, and the two millions and a quarter produced from the sinking fund, make up the seven millions and three quarters per annum, neat money, which were before stated to be the annual produce of our perpetual taxes; besides the immense, though uncertain, sums arising from the annual taxes on land and malt, but which, at an average, may be calculated at more than two millions and a quarter; and, added to the preceding sum, make the clear produce of the taxes, exclusive of the charge of collecting, which are raised yearly on the people of this country, and returned into the king's exchequer, amount to upwards of ten millions sterling.
[Footnote f: Stat. 1 Geo. III. c. 1.]
THE expences defrayed by the civil list are those that in any shape relate to civil government; as, the expenses of the houshold; all salaries to officers of state, to the judges, and every of the king's servants; the appointments to foreign embassadors; the maintenance of the royal family; the king's private expenses, or privy purse; and other very numerous outgoings, as secret service money, pensions, and other bounties: which sometimes have so far exceeded the revenues appointed for that purpose, that application has been made to parliament to discharge the debts contracted on the civil list; as particularly in 1724, when one million was granted for that purpose by the statute 11 Geo. I. c. 17.
THE civil list is indeed properly the whole of the king's revenue in his own distinct capacity; the rest being rather the revenue of the public, or it's creditors, though collected, and distributed again, in the name and by the officers of the crown: it now standing in the same place, as the hereditary income did formerly; and, as that has gradually diminished, the parliamentary appointments have encreased. The whole revenue of queen Elizabeth did not amount to more than 600000l. a year[g]: that of king Charles I was[h] 800000l. and the revenue voted for king Charles II was[i] 1200000l. though it never in fact amounted to quite so much[k]. But it must be observed, that under these sums were included all manner of public expenses, among which lord Clarendon in his speech to the parliament computed that the charge of the navy and land forces amounted annually to 800000l. which was ten times more than before the former troubles[l]. The same revenue, subject to the same charges, was settled on on [Transcriber's Note: duplicate word] king James II[m]: but by the encrease of trade, and more frugal management, it amounted on an average to a million and half per annum, (besides other additional customs, granted by parliament[n], which produced an annual revenue of 400000l.) out of which his fleet and army were maintained at the yearly expense of[o] 1100000l. After the revolution, when the parliament took into it's own hands the annual support of the forces, both maritime and military, a civil list revenue was settled on the new king and queen, amounting, with the hereditary duties, to 700000l. per annum[p]; and the same was continued to queen Anne and king George I[q]. That of king George II, we have seen, was nominally augmented to[r] 800000l. and in fact was considerably more. But that of his present majesty is expressly limited to that sum; and, by reason of the charges upon it, amounts at present to little more than 700000l. And upon the whole it is doubtless much better for the crown, and also for the people, to have the revenue settled upon the modern footing rather than the antient. For the crown; because it is more certain, and collected with greater ease: for the people; because they are now delivered from the feodal hardships, and other odious branches of the prerogative. And though complaints have sometimes been made of the encrease of the civil list, yet if we consider the sums that have been formerly granted, the limited extent under which it is now established, the revenues and prerogatives given up in lieu of it by the crown, and (above all) the diminution of the value of money compared with what it was worth in the last century, we must acknowlege these complaints to be void of any rational foundation; and that it is impossible to support that dignity, which a king of Great Britain should maintain, with an income in any degree less than what is now established by parliament.
[Footnote g: Lord Clar. continuation. 163.]
[Footnote h: Com. Journ. 4 Sept. 1660.]
[Footnote i: Ibid.]
[Footnote k: Ibid. 4 Jun. 1663. Lord Clar. ibid.]
[Footnote l: Ibid. 165.]
[Footnote m: Stat. 1 Jac. II. c. 1.]
[Footnote n: Stat. 1 Jac. II. c. 3 & 4.]
[Footnote o: Com. Journ. 1 Mar. 20 Mar. 1688.]
[Footnote p: Ibid. 14 Mar. 1701.]
[Footnote q: Ibid. 17 Mar. 1701. 11 Aug. 1714.]
[Footnote r: Stat. 1 Geo. II. c. 1.]
THIS finishes our enquiries into the fiscal prerogatives of the king; or his revenue, both ordinary and extraordinary. We have therefore now chalked out all the principal outlines of this vast title of the law, the supreme executive magistrate, or the king's majesty, considered in his several capacities and points of view. But, before we intirely dismiss this subject, it may not be improper to take a short comparative review of the power of the executive magistrate, or prerogative of the crown, as it stood in former days, and as it stands at present. And we cannot but observe, that most of the laws for ascertaining, limiting, and restraining this prerogative have been made within the compass of little more than a century past; from the petition of right in 3 Car. I. to the present time. So that the powers of the crown are now to all appearance greatly curtailed and diminished since the reign of king James the first: particularly, by the abolition of the star chamber and high commission courts in the reign of Charles the first, and by the disclaiming of martial law, and the power of levying taxes on the subject, by the same prince: by the disuse of forest laws for a century past: and by the many excellent provisions enacted under Charles the second; especially, the abolition of military tenures, purveyance, and preemption; the habeas corpus act; and the act to prevent the discontinuance of parliaments for above three years: and, since the revolution, by the strong and emphatical words in which our liberties are asserted in the bill of rights, and act of settlement; by the act for triennial, since turned into septennial, elections; by the exclusion of certain officers from the house of commons; by rendering the seats of the judges permanent, and their salaries independent; and by restraining the king's pardon from operating on parliamentary impeachments. Besides all this, if we consider how the crown is impoverished and stripped of all it's antient revenues, so that it greatly depends on the liberality of parliament for it's necessary support and maintenance, we may perhaps be led to think, that the ballance is enclined pretty strongly to the popular scale, and that the executive magistrate has neither independence nor power enough left, to form that check upon the lords and commons, which the founders of our constitution intended.
BUT, on the other hand, it is to be considered, that every prince, in the first parliament after his accession, has by long usage a truly royal addition to his hereditary revenue settled upon him for his life; and has never any occasion to apply to parliament for supplies, but upon some public necessity of the whole realm. This restores to him that constitutional independence, which at his first accession seems, it must be owned, to be wanting. And then, with regard to power, we may find perhaps that the hands of government are at least sufficiently strengthened; and that an English monarch is now in no danger of being overborne by either the nobility or the people. The instruments of power are not perhaps so open and avowed as they formerly were, and therefore are the less liable to jealous and invidious reflections; but they are not the weaker upon that account. In short, our national debt and taxes (besides the inconveniences before-mentioned) have also in their natural consequences thrown such a weight of power into the executive scale of government, as we cannot think was intended by our patriot ancestors; who gloriously struggled for the abolition of the then formidable parts of the prerogative; and by an unaccountable want of foresight established this system in their stead. The entire collection and management of so vast a revenue, being placed in the hands of the crown, have given rise to such a multitude of new officers, created by and removeable at the royal pleasure, that they have extended the influence of government to every corner of the nation. Witness the commissioners, and the multitude of dependents on the customs, in every port of the kingdom; the commissioners of excise, and their numerous subalterns, in every inland district; the postmasters, and their servants, planted in every town, and upon every public road; the commissioners of the stamps, and their distributors, which are full as scattered and full as numerous; the officers of the salt duty, which, though a species of excise and conducted in the same manner, are yet made a distinct corps from the ordinary managers of that revenue; the surveyors of houses and windows; the receivers of the land tax; the managers of lotteries; and the commissioners of hackney coaches; all which are either mediately or immediately appointed by the crown, and removeable at pleasure without any reason assigned: these, it requires but little penetration to see, must give that power, on which they depend for subsistence, an influence most amazingly extensive. To this may be added the frequent opportunities of conferring particular obligations, by preference in loans, subscriptions, tickets, remittances, and other money-transactions, which will greatly encrease this influence; and that over those persons whose attachment, on account of their wealth, is frequently the most desirable. All this is the natural, though perhaps the unforeseen, consequence of erecting our funds of credit, and to support them establishing our present perpetual taxes: the whole of which is entirely new since the restoration in 1660; and by far the greatest part since the revolution in 1688. And the same may be said with regard to the officers in our numerous army, and the places which the army has created. All which put together gives the executive power so persuasive an energy with respect to the persons themselves, and so prevailing an interest with their friends and families, as will amply make amends for the loss of external prerogative.
BUT, though this profusion of offices should have no effect on individuals, there is still another newly acquired branch of power; and that is, not the influence only, but the force of a disciplined army: paid indeed ultimately by the people, but immediately by the crown; raised by the crown, officered by the crown, commanded by the crown. They are kept on foot it is true only from year to year, and that by the power of parliament: but during that year they must, by the nature of our constitution, if raised at all, be at the absolute disposal of the crown. And there need but few words to demonstrate how great a trust is thereby reposed in the prince by his people. A trust, that is more than equivalent to a thousand little troublesome prerogatives.
ADD to all this, that, besides the civil list, the immense revenue of seven millions sterling, which is annually paid to the creditors of the publick, or carried to the sinking fund, is first deposited in the royal exchequer, and thence issued out to the respective offices of payment. This revenue the people can never refuse to raise, because it is made perpetual by act of parliament: which also, when well considered, will appear to be a trust of great delicacy and high importance.
UPON the whole therefore I think it is clear, that, whatever may have become of the nominal, the real power of the crown has not been too far weakened by any transactions in the last century. Much is indeed given up; but much is also acquired. The stern commands of prerogative have yielded to the milder voice of influence; the slavish and exploded doctrine of non-resistance has given way to a military establishment by law; and to the disuse of parliaments has succeeded a parliamentary trust of an immense perpetual revenue. When, indeed, by the free operation of the sinking fund, our national debts shall be lessened; when the posture of foreign affairs, and the universal introduction of a well planned and national militia, will suffer our formidable army to be thinned and regulated; and when (in consequence of all) our taxes shall be gradually reduced; this adventitious power of the crown will slowly and imperceptibly diminish, as it slowly and imperceptibly rose. But, till that shall happen, it will be our especial duty, as good subjects and good Englishmen, to reverence the crown, and yet guard against corrupt and servile influence from those who are intrusted with it's authority; to be loyal, yet free; obedient, and yet independent: and, above every thing, to hope that we may long, very long, continue to be governed by a sovereign, who, in all those public acts that have personally proceeded from himself, hath manifested the highest veneration for the free constitution of Britain; hath already in more than one instance remarkably strengthened it's outworks; and will therefore never harbour a thought, or adopt a persuasion, in any the remotest degree detrimental to public liberty.
CHAPTER THE NINTH.
OF SUBORDINATE MAGISTRATES.
IN a former chapter of these commentaries[a] we distinguished magistrates into two kinds; supreme, or those in whom the sovereign power of the state resides; and subordinate, or those who act in an inferior secondary sphere. We have hitherto considered the former kind only, namely, the supreme legislative power or parliament, and the supreme executive power, which is the king: and are now to proceed to enquire into the rights and duties of the principal subordinate magistrates.
[Footnote a: ch. 2. pag. 142.]
AND herein we are not to investigate the powers and duties of his majesty's great officers of state, the lord treasurer, lord chamberlain, the principal secretaries, or the like; because I do not know that they are in that capacity in any considerable degree the objects of our laws, or have any very important share of magistracy conferred upon them: except that the secretaries of state are allowed the power of commitment, in order to bring offenders to trial[b]. Neither shall I here treat of the office and authority of the lord chancellor, or the other judges of the superior courts of justice; because they will find a more proper place in the third part of these commentaries. Nor shall I enter into any minute disquisitions, with regard to the rights and dignities of mayors and aldermen, or other magistrates of particular corporations; because these are mere private and strictly municipal rights, depending entirely upon the domestic constitution of their respective franchises. But the magistrates and officers, whose rights and duties it will be proper in this chapter to consider, are such as are generally in use and have a jurisdiction and authority dispersedly throughout the kingdom: which are, principally, sheriffs; coroners; justices of the peace; constables; surveyors of highways; and overseers of the poor. In treating of all which I shall enquire into, first, their antiquity and original; next, the manner in which they are appointed and may be removed; and, lastly, their rights and duties. And first of sheriffs.
[Footnote b: 1 Leon. 70. 2 Leon. 175. Comb. 343. 5 Mod. 84. Salk. 347.]
I. THE sheriff is an officer of very great antiquity in this kingdom, his name being derived from two Saxon words, shire reeve, the bailiff or officer of the shire. He is called in Latin vice-comes, as being the deputy of the earl or comes; to whom the custody of the shire is said to have been committed at the first division of this kingdom into counties. But the earls in process of time, by reason of their high employments and attendance on the king's person, not being able to transact the business of the county, were delivered of that burden[c]; reserving to themselves the honour, but the labour was laid on the sheriff. So that now the sheriff does all the king's business in the county; and though he be still called vice-comes, yet he is entirely independent of, and not subject to the earl; the king by his letters patent committing custodiam comitatus to the sheriff, and him alone.
[Footnote c: Dalton of sheriffs, c. 1.]
SHERIFFS were formerly chosen by the inhabitants of the several counties. In confirmation of which it was ordained by statute 28 Edw. I. c. 8. that the people should have election of sheriffs in every shire, where the shrievalty is not of inheritance. For antiently in some counties, particularly on the borders, the sheriffs were hereditary; as I apprehend they are in Scotland, and in the county of Westmorland, to this day: and the city of London has also the inheritance of the shrievalty of Middlesex vested in their body by charter[d]. The reason of these popular elections is assigned in the same statute, c. 13. "that the commons might chuse such as would not be a burthen to them." And herein appears plainly a strong trace of the democratical part of our constitution; in which form of government it is an indispensable requisite, that the people should chuse their own magistrates[e]. This election was in all probability not absolutely vested in the commons, but required the royal approbation. For in the Gothic constitution, the judges of their county courts (which office is executed by our sheriff) were elected by the people, but confirmed by the king: and the form of their election was thus managed; the people, or incolae territorii, chose twelve electors, and they nominated three persons, ex quibus rex unum confirmabat[f]. But, with us in England, these popular elections, growing tumultuous, were put an end to by the statute 9 Edw. II. st. 2. which enacted, that the sheriffs should from thenceforth be assigned by the lord chancellor, treasurer, and the judges; as being persons in whom the same trust might with confidence be reposed. By statutes 14 Edw. III. c. 7. and 23 Hen. VI. c. 8. the chancellor, treasurer, chief justices, and chief baron, are to make this election; and that on the morrow of All Souls in the exchequer. But the custom now is (and has been at least ever since the time of Fortescue[g], who was chief justice and chancellor to Henry the sixth) that all the judges, and certain other great officers, meet in the exchequer chamber on the morrow of All Souls yearly, (which day is now altered to the morrow of St. Martin by the act for abbreviating Michaelmas term) and then and there nominate three persons to the king, who afterwards appoints one of them to be sheriff. This custom, of the twelve judges nominating three persons, seems borrowed from the Gothic constitution beforementioned; with this difference, that among the Goths the twelve nominors were first elected by the people themselves. And this usage of ours at it's first introduction, I am apt to believe, was founded upon some statute, though not now to be found among our printed laws: first, because it is materially different from the directions of all the statutes beforementioned; which it is hard to conceive that the judges would have countenanced by their concurrence, or that Fortescue would have inserted in his book, unless by the authority of some statute: and also, because a statute is expressly referred to in the record, which sir Edward Coke tells us[h] he transcribed from the council book of 3 Mar. 34 Hen. VI. and which is in substance as follows. The king had of his own authority appointed a man sheriff of Lincolnshire, which office he refused to take upon him: whereupon the opinions of the judges were taken, what should be done in this behalf. And the two chief justices, sir John Fortescue and sir John Prisot, delivered the unanimous opinion of them all; "that the king did an error when he made a person sheriff, that was not chosen and presented to him according to the statute; that the person refusing was liable to no fine for disobedience, as if he had been one of the three persons chosen according to the tenor of the statute; that they would advise the king to have recourse to the three persons that were chosen according to the statute, or that some other thrifty man be intreated to occupy the office for this year; and that, the next year, to eschew such inconveniences, the order of the statute in this behalf made be observed." But, notwithstanding this unanimous resolution of all the judges of England, thus entered in the council book, some of our writers[i] have affirmed, that the king, by his prerogative, may name whom he pleases to be sheriff, whether chosen by the judges or no. This is grounded on a very particular case in the fifth year of queen Elizabeth, when, by reason of the plague, there was no Michaelmas term kept at Westminster; so that the judges could not meet there in crastino Animarum to nominate the sheriffs: whereupon the queen named them herself, without such previous assembly, appointing for the most part one of the two remaining in the last year's list[k]. And this case, thus circumstanced, is the only precedent in our books for the making these extraordinary sheriffs. It is true, the reporter adds, that it was held that the queen by her prerogative might make a sheriff without the election of the judges, non obstante aliquo statuto in contrarium: but the doctrine of non obstante's, which sets the prerogative above the laws, was effectually demolished by the bill of rights at the revolution, and abdicated Westminster-hall when king James abdicated the kingdom. So that sheriffs cannot now be legally appointed, otherwise than according to the known and established law.
[Footnote d: 3 Rep. 72.]
[Footnote e: Montesq. Sp. L. b. 2. c. 2.]
[Footnote f: Stiernhook de jure Goth. l. 1. c. 3.]
[Footnote g: de L.L. c. 24.]
[Footnote h: 2 Inst. 559.]
[Footnote i: Jenkins. 229.]
[Footnote k: Dyer 225.]
SHERIFFS, by virtue of several old statutes, are to continue in their office no longer than one year; and yet it hath been said[l] that a sheriff may be appointed durante bene placito, or during the king's pleasure; and so is the form of the royal writ[m]. Therefore, till a new sheriff be named, his office cannot be determined, unless by his own death, or the demise of the king; in which last case it was usual for the successor to send a new writ to the old sheriff[n]: but now by statute 1 Ann. st. 1. c. 8. all officers appointed by the preceding king may hold their offices for six months after the king's demise, unless sooner displaced by the successor. We may farther observe, that by statute 1 Ric. II. c. 11. no man, that has served the office of sheriff for one year, can be compelled to serve the same again within three years after.
[Footnote l: 4 Rep. 32.]
[Footnote m: Dalt. of sheriffs. 8.]
[Footnote n: Dalt. 7.]
WE shall find it is of the utmost importance to have the sheriff appointed according to law, when we consider his power and duty. These are either as a judge, as the keeper of the king's peace, as a ministerial officer of the superior courts of justice, or as the king's bailiff.
IN his judicial capacity he is to hear and determine all causes of forty shillings value and under, in his county court, of which more in it's proper place: and he has also judicial power in divers other civil cases[o]. He is likewise to decide the elections of knights of the shire, (subject to the control of the house of commons) of coroners, and of verderors; to judge of the qualification of voters, and to return such as he shall determine to be duly elected.
[Footnote o: Dalt. c. 4.]
AS the keeper of the king's peace, both by common law and special commission, he is the first man in the county, and superior in rank to any nobleman therein, during his office[p]. He may apprehend, and commit to prison, all persons who break the peace, or attempt to break it: and may bind any one in a recognizance to keep the king's peace. He may, and is bound ex officio to, pursue and take all traitors, murderers, felons, and other misdoers, and commit them to gaol for safe custody. He is also to defend his county against any of the king's enemies when they come into the land: and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him; which is called the posse comitatus, or power of the county[q]: which summons every person above fifteen years old, and under the degree of a peer, is bound to attend upon warning[r], under pain of fine and imprisonment[s]. But though the sheriff is thus the principal conservator of the peace in his county, yet, by the express directions of the great charter[t], he, together with the constable, coroner, and certain other officers of the king, are forbidden to hold any pleas of the crown, or, in other words, to try any criminal offence. For it would be highly unbecoming, that the executioners of justice should be also the judges; should impose, as well as levy, fines and amercements; should one day condemn a man to death, and personally execute him the next. Neither may he act as an ordinary justice of the peace during the time of his office[u]: for this would be equally inconsistent; he being in many respects the servant of the justices.
[Footnote p: 1 Roll. Rep. 237.]
[Footnote q: Dalt. c. 95.]
[Footnote r: Lamb. Eiren. 315.]
[Footnote s: Stat. 2 Hen. V. c. 8.]
[Footnote t: cap. 17.]
[Footnote u: Stat. 1 Mar. st. 2. c. 8.]
IN his ministerial capacity the sheriff is bound to execute all process issuing from the king's courts of justice. In the commencement of civil causes, he is to serve the writ, to arrest, and to take bail; when the cause comes to trial, he must summon and return the jury; when it is determined, he must see the judgment of the court carried into execution. In criminal matters, he also arrests and imprisons, he returns the jury, he has the custody of the delinquent, and he executes the sentence of the court, though it extend to death itself.
AS the king's bailiff, it is his business to preserve the rights of the king within his bailiwick; for so his county is frequently called in the writs: a word introduced by the princes of the Norman line; in imitation of the French, whose territory is divided into bailiwicks, as that of England into counties[w]. He must seise to the king's use all lands devolved to the crown by attainder or escheat; must levy all fines and forfeitures; must seise and keep all waifs, wrecks, estrays, and the like, unless they be granted to some subject; and must also collect the king's rents within his bailiwick, if commanded by process from the exchequer[x].
[Footnote w: Fortesc. de L.L. c. 24.]
[Footnote x: Dalt. c. 9.]
TO execute these various offices, the sheriff has under him many inferior officers; an under-sheriff, bailiffs, and gaolers; who must neither buy, sell, nor farm their offices, on forfeiture of 500l.[y]
[Footnote y: Stat. 3 Geo. I. c. 15.]
THE under-sheriff usually performs all the duties of the office; a very few only excepted, where the personal presence of the high-sheriff is necessary. But no under-sheriff shall abide in his office above one year[z]; and if he does, by statute 23 Hen. VI. c. 8. he forfeits 200l. a very large penalty in those early days. And no under-sheriff or sheriff's officer shall practice as an attorney, during the time he continues in such office[a]: for this would be a great inlet to partiality and oppression. But these salutary regulations are shamefully evaded, by practising in the names of other attorneys, and putting in sham deputies by way of nominal under-sheriffs: by reason of which, says Dalton[b], the under-sheriffs and bailiffs do grow so cunning in their several places, that they are able to deceive, and it may be well feared that many of them do deceive, both the king, the high-sheriff, and the county.
[Footnote z: Stat. 42 Edw. III. c. 9.]
[Footnote a: Stat. 1 Hen. V. c. 4.]
[Footnote b: of sheriffs, c. 115.]
BAILIFFS, or sheriff's officers, are either bailiffs of hundreds, or special bailiffs. Bailiffs of hundreds are officers appointed over those respective districts by the sheriffs, to collect fines therein; to summon juries; to attend the judges and justices at the assises, and quarter sessions; and also to execute writs and process in the several hundreds. But, as these are generally plain men, and not thoroughly skilful in this latter part of their office, that of serving writs, and making arrests and executions, it is now usual to join special bailiffs with them; who are generally mean persons employed by the sheriffs on account only of their adroitness and dexterity in hunting and seising their prey. The sheriff being answerable for the misdemesnors of these bailiffs, they are therefore usually bound in a bond for the due execution of their office, and thence are called bound-bailiffs; which the common people have corrupted into a much more homely appellation.
GAOLERS are also the servants of the sheriff, and he must be responsible for their conduct. Their business is to keep safely all such persons as are committed to them by lawful warrant: and, if they suffer any such to escape, the sheriff shall answer it to the king, if it be a criminal matter; or, in a civil case, to the party injured[c]. And to this end the sheriff must[d] have lands sufficient within the county to answer the king and his people. The abuses of goalers and sheriff's officers toward the unfortunate persons in their custody are well restrained and guarded against by statute 32 Geo. II. c. 28.
[Footnote c: Dalt. c. 118. 4 Rep. 34.]
[Footnote d: Stat. 13 & 14 Car. II. c. 21.]
THE vast expense, which custom had introduced in serving the office of high-sheriff, was grown such a burthen to the subject, that it was enacted, by statute 13 & 14 Car. II. c. 21. that no sheriff should keep any table at the assises, except for his own family, or give any presents to the judges or their servants, or have more than forty men in livery; yet, for the sake of safety and decency, he may not have less than twenty men in England and twelve in Wales; upon forfeiture, in any of these cases, of 200l.
II. THE coroner's is also a very antient office at the common law. He is called coroner, coronator, because he hath principally to do with pleas of the crown, or such wherein the king is more immediately concerned[e]. And in this light the lord chief justice of the king's bench is the principal coroner in the kingdom, and may (if he pleases) exercise the jurisdiction of a coroner in any part of the realm[f]. But there are also particular coroners for every county of England; usually four, but sometimes six, and sometimes fewer[g]. This officer[h] is of equal antiquity with the sheriff; and was ordained together with him to keep the peace, when the earls gave up the wardship of the county.
[Footnote e: 2 Inst. 31. 4 Inst. 271.]
[Footnote f: 4 Rep. 57.]
[Footnote g: F.N.B. 163.]
[Footnote h: Mirror, c. 1. Sec. 3.]
HE is still chosen by all the freeholders in the county court, as by the policy of our antient laws the sheriffs, and conservators of the peace, and all other officers were, who were concerned in matters that affected the liberty of the people[i]; and as verderors of the forests still are, whose business it is to stand between the prerogative and the subject in the execution of the forest laws. For this purpose there is a writ at common law de coronatore eligendo[k]: in which it is expressly commanded the sheriff, "quod talem eligi faciat, qui melius et sciat, et velit, et possit, officio illi intendere." And, in order to effect this the more surely, it was enacted by the statute of Westm. I[l], that none but lawful and discreet knights should be chosen. But it seems it is now sufficient if a man have lands enough to be made a knight, whether he be really knighted or not[m]: and there was an instance in the 5 Edw. III. of a man being removed from this office, because he was only a merchant[n]. The coroner ought also to have estate sufficient to maintain the dignity of his office, and answer any fines that may be set upon him for his misbehaviour[o]: and if he have not enough to answer, his fine shall be levyed on the county, as a punishment for electing an insufficient officer[p]. Now indeed, through the culpable neglect of gentlemen of property, this office has been suffered to fall into disrepute, and get into low and indigent hands: so that, although formerly no coroner would condescend to be paid for serving his country, and they were by the aforesaid statute of Westm. I. expressly forbidden to take a reward, under pain of great forfeiture to the king; yet for many years past they have only desired to be chosen for the sake of their perquisites; being allowed fees for their attendance by the statute 3 Hen. VII. c. 1. which sir Edward Coke complains of heavily[q]; though they have since his time been much enlarged[r].
[Footnote i: 2 Inst. 558.]
[Footnote k: F.N.B. 163.]
[Footnote l: 3 Edw. I. c. 10.]
[Footnote m: F.N.B. 163, 164.]
[Footnote n: 2 Inst. 32.]
[Footnote o: F.N.B. 163, 164.]
[Footnote p: Mirr. c. 1. Sec. 3. 2 Inst. 175.]
[Footnote q: 2 Inst. 210.]
[Footnote r: Stat. 25 Geo. II. c. 29.]
THE coroner is chosen for life: but may be removed, either by being made sheriff, or chosen verderor, which are offices incompatible with the other; or by the king's writ de coronatore exonerando, for a cause to be therein assigned, as that he is engaged in other business, is incapacitated by years or sickness, hath not a sufficient estate in the county, or lives in an inconvenient part of it[s]. And by the statute 25 Geo. II. c. 29. extortion, neglect, or misbehaviour, are also made causes of removal.
[Footnote s: F.N.B. 163, 164.]
THE office and power of a coroner are also, like those of a sheriff, either judicial or ministerial; but principally judicial. This is in great measure ascertained by statute 4 Edw. I. de officio coronatoris; and consists, first, in enquiring (when any person is slain or dies suddenly) concerning the manner of his death. And this must be "super visum corporis[t];" for, if the body be not found, the coroner cannot sit[u]. He must also sit at the very place where the death happened; and his enquiry is made by a jury from four, five, or six of the neighbouring towns, over whom he is to preside. If any be found guilty by this inquest of murder, he is to commit to prison for further trial, and is also to enquire concerning their lands, goods and chattels, which are forfeited thereby: but, whether it be murder or not, he must enquire whether any deodand has accrued to the king, or the lord of the franchise, by this death: and must certify the whole of this inquisition to the court of king's bench, or the next assises. Another branch of his office is to enquire concerning shipwrecks; and certify whether wreck or not, and who is in possession of the goods. Concerning treasure trove, he is also to enquire who were the finders, and where it is, and whether any one be suspected of having found and concealed a treasure; "and that may be well perceived (saith the old statute of Edw. I.) where one liveth riotously, haunting taverns, and hath done so of long time:" whereupon he might be attached, and held to bail, upon this suspicion only.
[Footnote t: 4 Inst. 271.]
[Footnote u: Thus, in the Gothic constitution, before any fine was payable by the neighbourhood, for the slaughter of a man therein, "de corpore delicti constare oportebat; i.e. non tam fuisse aliquem in territorio isto mortuum inventum, quam vulneratum et caesum. Potest enim homo etiam ex alia causa subito mori." Stiernhook de jure Gothor. l. 3. c. 4.]
THE ministerial office of the coroner is only as the sheriff's substitute. For when just exception can be taken to the sheriff, for suspicion of partiality, (as that he is interested in the suit, or of kindred to either plaintiff or defendant) the process must then be awarded to the coroner, instead of the sheriff, for execution of the king's writs[w].
[Footnote w: 4 Inst. 271.]
III. THE next species of subordinate magistrates, whom I am to consider, are justices of the peace; the principal of whom is the custos rotulorum, or keeper of the records of the county. The common law hath ever had a special care and regard for the conservation of the peace; for peace is the very end and foundation of civil society. And therefore, before the present constitution of justices was invented, there were peculiar officers appointed by the common law for the maintenance of the public peace. Of these some had, and still have, this power annexed to other offices which they hold; others had it merely by itself, and were thence named custodes or conservatores pacis. Those that were so virtute officii still continue; but the latter sort are superseded by the modern justices.
THE kings majesty[x] is, by his office and dignity royal, the principal conservator of the peace within all his dominions; and may give authority to any other to see the peace kept, and to punish such as break it: hence it is usually called the king's peace. The lord chancellor or keeper, the lord treasurer, the lord high steward of England, the lord mareschal, and lord high constable of England (when any such officers are in being) and all the justices of the court of king's bench (by virtue of their offices) and the master of the rolls (by prescription) are general conservators of the peace throughout the whole kingdom, and may commit all breakers of it, or bind them in recognizances to keep it[y]: the other judges are only so in their own courts. The coroner is also a conservator of the peace within his own county[z]; as is also the sheriff[a]; and both of them may take a recognizance or security for the peace. Constables, tythingmen, and the like, are also conservators of the peace within their own jurisdictions; and may apprehend all breakers of the peace, and commit them till they find sureties for their keeping it[b].
[Footnote x: Lambard. Eirenarch. 12.]
[Footnote y: Lamb. 12.]
[Footnote z: Britton. 3.]
[Footnote a: F.N.B. 81.]
[Footnote b: Lamb. 14.]
THOSE that were, without any office, simply and merely conservators of the peace, were chosen by the freeholders in full county court before the sheriff; the writ for their election directing them to be chosen "de probioribus et melioribus in comitatu suo in custodes pacis[c]." But when queen Isabel, the wife of Edward II, had contrived to depose her husband by a forced resignation of the crown, and had set up his son Edward III in his place; this, being a thing then without example in England, it was feared would much alarm the people; especially as the old king was living, though hurried about from castle to castle; till at last he met with an untimely death. To prevent therefore any risings, or other disturbance of the peace, the new king sent writs to all the sheriffs in England, the form of which is preserved by Thomas Walsingham[d], giving a plausible account of the manner of his obtaining the crown; to wit, that it was done ipsius patris beneplacito: and withal commanding each sheriff that the peace be kept throughout his bailiwick, on pain and peril of disinheritance and loss of life and limb. And in a few weeks after the date of these writs, it was ordained in parliament[e], that, for the better maintaining and keeping of the peace in every county, good men and lawful, which were no maintainers of evil, or barretors in the country, should be assigned to keep the peace. And in this manner, and upon this occasion, was the election of the conservators of the peace taken from the people, and given to the king[f]; this assignment being construed to be by the king's commission[g]. But still they were called only conservators, wardens, or keepers of the peace, till the statute 34 Edw. III. c. 1. gave them the power of trying felonies; and then they acquired the more honorable appellation of justices[h].
[Footnote c: Lamb. 16.]
[Footnote d: Hist. A.D. 1327.]
[Footnote e: Stat. 1 Edw. III. c. 16.]
[Footnote f: Lamb. 20.]
[Footnote g: Stat. 4 Edw. III. c. 2. and 18 Edw. III. st. 2. c. 2.]
[Footnote h: Lamb. 23.]
THESE justices are appointed by the king's special commission under the great seal, the form of which was settled by all the judges, A.D. 1590[i]. This appoints them all[k], jointly and severally, to keep the peace, and any two or more of them to enquire of and determine felonies, and other misdemesnors: in which number some particular justices, or one of them, are directed to be always included, and no business to be done without their presence; the words of the commission running thus, "quorum aliquem vestrum, A. B. C. D. &c. unum esse volumus;" whence the persons so named are usually called justices of the quorum. And formerly it was customary to appoint only a select number of justices, eminent for their skill and discretion, to be of the quorum; but now the practice is to advance almost all of them to that dignity, naming them all over again in the quorum clause, except perhaps only some one inconsiderable person for the sake of propriety: and no exception is now allowable, for not expressing in the form of warrants, &c, that the justice who issued them is of the quorum[l].
[Footnote i: Lamb. 43.]
[Footnote k: See the form itself, Lamb. 35. Burn. tit. justices, Sec. 1.]
[Footnote l: Stat. 26 Geo. II. c. 27.]
TOUCHING the number and qualifications of these justices; it was ordained by statute 18 Edw. III. c. 2. that two, or three, of the best reputation in each county shall be assigned to be keepers of the peace. But these being found rather too few for that purpose, it was provided by statute 34 Edw. III. c. 1. that one lord, and three, or four, of the most worthy men in the county, with some learned in the law, shall be made justices in every county. But afterwards the number of justices, through the ambition of private persons, became so large, that it was thought necessary by statute 12 Ric. II. c. 10. and 14 Ric II. c. 11. to restrain them at first to six, and afterwards to eight only. But this rule is now disregarded, and the cause seems to be (as Lambard observed long ago[m]) that the growing number of statute laws, committed from time to time to the charge of justices of the peace, have occasioned also (and very reasonably) their encrease to a larger number. And, as to their qualifications, the statutes just cited direct them to be of the best reputation, and most worthy men in the county: and the statute 13 Ric. II. c. 10. orders them to be of the most sufficient knights, esquires, and gentlemen of the law. Also by statute 2 Hen. V. st. 1. c. 4. and st. 2. c. 1. they must be resident in their several counties. And because, contrary to these statutes, men of small substance had crept into the commission, whose poverty made them both covetous and contemptible, it was enacted by statute 18 Hen. VI. c. 11. that no justice should be put in commission, if he had not lands to the value of 20l. per annum. And, the rate of money being greatly altered since that time, it is now enacted by statute 5 Geo. II. c. 11. that every justice, except as is therein excepted, shall have 100l. per annum clear of all deductions; and, if he acts without such qualification, he shall forfeit 100l. which[n] is almost an equivalent to the 20l. per annum required in Henry the sixth's time: and of this qualification[o] the justice must now make oath. Also it is provided by the act 5 Geo. II. that no practising attorney, solicitor, or proctor, shall be capable of acting as a justice of the peace.
[Footnote m: Lamb. 34.]
[Footnote n: See bishop Fleetwood's calculations in his chronicon pretiosum.]
[Footnote o: Stat. 18 Geo. II. c. 20.]
AS the office of these justices is conferred by the king, so it subsists only during his pleasure; and is determinable, 1. By the demise of the crown; that is, in six months after[p]. 2. By express writ under the great seal[q], discharging any particular person, from being any longer justice. 3. By superseding the commission by writ of supersedeas, which suspends the power of all the justices, but does not totally destroy it; seeing it may be revived again by another writ, called a procedendo. 4. By a new commission, which virtually, though silently, discharges all the former justices that are not included therein; for two commissions cannot subsist at once. 5. By accession of the office of sheriff or coroner[r]. Formerly it was thought, that if a man was named in any commission of the peace, and had afterwards a new dignity conferred upon him, that this determined his office; he no longer answering the description of the commission: but now[s] it is provided, that notwithstanding a new title of dignity, the justice on whom it is conferred shall still continue a justice.
[Footnote p: Stat. 1 Ann. c. 8.]
[Footnote q: Lamb. 67.]
[Footnote r: Stat. 1 Mar. st. 1. c. 8.]
[Footnote s: Stat. 1 Edw. VI. c. 7.]
THE power, office, and duty of a justice of the peace depend on his commission, and on the several statutes, which have created objects of his jurisdiction. His commission, first, empowers him singly to conserve the peace; and thereby gives him all the power of the antient conservators at the common law, in suppressing riots and affrays, in taking securities for the peace, and in apprehending and committing felons and other inferior criminals. It also empowers any two or more of them to hear and determine all felonies and other offences; which is the ground of their jurisdiction at sessions, of which more will be said in it's proper place. And as to the powers given to one, two, or more justices by the several statutes, that from time to time have heaped upon them such an infinite variety of business, that few care to undertake, and fewer understand, the office; they are such and of so great importance to the public, that the country is greatly obliged to any worthy magistrate, that without sinister views of his own will engage in this troublesome service. And therefore, if a well meaning justice makes any undesigned slip in his practice, great lenity and indulgence is shewn to him in the courts of law; and there are many statutes made to protect him in the upright discharge of his office[t]: which, among other privileges, prohibit such justices from being sued for any oversights without notice beforehand; and stop all suits begun, on tender made of sufficient amends. But, on the other hand, any malicious or tyrannical abuse of their office is sure to be severely punished; and all persons who recover a verdict against a justice, for any wilful or malicious injury, are entitled to double costs.
[Footnote t: Stat. 7 Jac. I. c. 5. 21 Jac. I. c. 12. 24 Geo. II. c. 44.]
IT is impossible upon our present plan to enter minutely into the particulars of the accumulated authority, thus committed to the charge of these magistrates. I must therefore refer myself at present to such subsequent parts of these commentaries, as will in their turns comprize almost every object of the justices' jurisdiction: and in the mean time recommend to the student the perusal of Mr Lambard's eirenarcha, and Dr Burn's justice of the peace; wherein he will find every thing relative to this subject, both in antient and modern practice, collected with great care and accuracy, and disposed in a most clear and judicious method.
I SHALL next consider some officers of lower rank than those which have gone before, and of more confined jurisdiction; but still such as are universally in use through every part of the kingdom.
IV. FOURTHLY, then, of the constable. The word constable is frequently said to be derived from the Saxon, koning-staple, and to signify the support of the king. But, as we borrowed the name as well as the office of constable from the French, I am rather inclined to deduce it, with sir H. Spelman and Dr Cowel, from that language, wherein it is plainly derived from the Latin comes stabuli, an officer well known in the empire; so called because, like the great constable of France, as well as the lord high constable of England, he was to regulate all matters of chivalry, tilts, turnaments, and feats of arms, which were performed on horseback. This great office of lord high constable hath been disused in England, except only upon great and solemn occasions, as the king's coronation and the like, ever since the attainder of Stafford duke of Buckingham under king Henry VIII; as in France it was suppressed about a century after by an edict of Louis XIII[u]: but from his office, says Lambard[w], this lower constableship was at first drawn and fetched, and is as it were a very finger of that hand. For the statute of Winchester[x], which first appoints them, directs that, for the better keeping of the peace, two constables in every hundred and franchise shall inspect all matters relating to arms and armour.
[Footnote u: Philips's life of Pole. ii. 111.]
[Footnote w: of constables, 5.]
[Footnote x: 13 Edw. I. c. 6.]
CONSTABLES are of two sorts, high constables, and petty constables. The former were first ordained by the statute of Winchester, as before-mentioned; and are appointed at the court leets of the franchise or hundred over which they preside, or, in default of that, by the justices at their quarter sessions; and are removeable by the same authority that appoints them[y]. The petty constables are inferior officers in every town and parish, subordinate to the high constable of the hundred, first instituted about the reign of Edward III[z]. These petty constables have two offices united in them; the one antient, the other modern. Their antient office is that of headborough, tithing-man, or borsholder; of whom we formerly spoke[a], and who are as antient as the time of king Alfred: their more modern office is that of constable merely; which was appointed (as was observed) so lately as the reign of Edward III, in order to assist the high constable[b]. And in general the antient headboroughs, tithing-men, and borsholders, were made use of to serve as petty constables; though not so generally, but that in many places they still continue distinct officers from the constable. They are all chosen by the jury at the court leet; or, if no court leet be held, are appointed by two justices of the peace[c].
[Footnote y: Salk. 150.]
[Footnote z: Spelm. Gloss. 148.]
[Footnote a: pag. 110.]
[Footnote b: Lamb. 9.]
[Footnote c: Stat. 14 & 15 Car. II. c. 12.]
THE general duty of all constables, both high and petty, as well as of the other officers, is to keep the king's peace in their several districts; and to that purpose they are armed with very large powers, of arresting, and imprisoning, of breaking open houses, and the like: of the extent of which powers, considering what manner of men are for the most part put upon these offices, it is perhaps very well that they are generally kept in ignorance. One of their principal duties, arising from the statute of Winchester, which appoints them, is to keep watch and ward in their respective jurisdictions. Ward, guard, or custodia, is chiefly intended of the day time, in order to apprehend rioters, and robbers on the highways; the manner of doing which is left to the discretion of the justices of the peace and the constable[d], the hundred being however answerable for all robberies committed therein, by day light, for having kept negligent guard. Watch is properly applicable to the night only, (being called among our Teutonic ancestors wacht or wacta[e]) and it begins at the time when ward ends, and ends when that begins; for, by the statute of Winchester, in walled towns the gates shall be closed from sunsetting to sunrising, and watch shall be kept in every borough and town, especially in the summer season, to apprehend all rogues, vagabonds, and night-walkers, and make them give an account of themselves. The constable may appoint watchmen at his discretion, regulated by the custom of the place; and these, being his deputies, have for the time being the authority of their principal. But, with regard to the infinite number of other minute duties, that are laid upon constables by a diversity of statutes, I must again refer to Mr Lambard and Dr Burn; in whose compilations may be also seen, what duties belong to the constable or tything-man indifferently, and what to the constable only: for the constable may do whatever the tything-man may; but it does not hold e converso; for the tithing-man has not an equal power with the constable.
[Footnote d: Dalt. just. c. 104.]
[Footnote e: Excubias et explorationes quas wactas vocant. Capitular. Hludovic. Pii. cap. 1. A.D. 815.]
V. WE are next to consider the surveyors of the highways. Every parish is bound of common right to keep the high roads, that go through it, in good and sufficient repair; unless by reason of the tenure of lands, or otherwise, this care is consigned to some particular private person. From this burthen no man was exempt by our antient laws, whatever other immunities he might enjoy: this being part of the trinoda necessitas, to which every man's estate was subject; viz. expeditio contra hostem, arcium constructio, et pontium reparatio: for, though the reparation of bridges only is expressed, yet that of roads also must be understood; as in the Roman law, ad instructiones reparationesque itinerum et pontium, nullum genus hominum, nulliusque dignitatis ac venerationis meritis, cessare oportet[f]. And indeed now, for the most part, the care of the roads only seems to be left to parishes; that of bridges being in great measure devolved upon the county at large, by statute 22 Hen. VIII. c. 5. If the parish neglected these repairs, they might formerly, as they may still, be indicted for such their neglect: but it was not then incumbent on any particular officer to call the parish together, and set them upon this work; for which reason by the statute 2 & 3 Ph. & M. c. 8. surveyors of the highways were ordered to be chosen in every parish[g].
[Footnote f: C. 11. 74. 4.]
[Footnote g: This office, Mr Dalton (just. cap. 50.) says, exactly answers that of the curatores viarum of the Romans: but, I should guess that theirs was an office of rather more dignity and authority than ours, not only from comparing the method of making and mending the Roman ways with those of our country parishes; but also because one Thermus, who was the curator of the Flaminian way, was candidate for the consulship with Julius Caesar. (Cic. ad Attic. l. 1. ep. 1.)]
THESE surveyors were originally, according to the statute of Philip and Mary, to be appointed by the constable and churchwardens of the parish; but now[h] they are constituted by two neighbouring justices, out of such substantial inhabitants as have either 10l. per annum of their own, or rent 30l. a year, or are worth in personal estate 100l.
[Footnote h: Stat. 3 W. & M. c. 12.]
THEIR office and duty consists in putting in execution a variety of statutes for the repairs of the highways; that is, of ways leading from one town to another: by which it is enacted, 1. That they may remove all annoyances in the highways, or give notice to the owner to remove them; who is liable to penalties on noncompliance. 2. They are to call together all the inhabitants of the parish, six days in every year, to labour in repairing the highways; all persons keeping draughts, or occupying lands, being obliged to send a team for every draught, and for every 50l. a year, which they keep or occupy; and all other persons to work or find a labourer. The work must be completed before harvest; as well for providing a good road for carrying in the corn, as also because all hands are then supposed to be employed in harvest work. And every cartway must be made eight feet wide at the least[i]; and may be increased by the quarter sessions to the breadth of four and twenty feet. 3. The surveyors may lay out their own money in purchasing materials for repairs, where there is not sufficient within the parish, and shall be reimbursed by a rate, to be allowed at a special sessions. 4. In case the personal labour of the parish be not sufficient, the surveyors, with the consent of the quarter sessions, may levy a rate (not exceeding 6d. in the pound) on the parish, in aid of the personal duty; for the due application of which they are to account upon oath. As for turnpikes, which are now universally introduced in aid of such rates, and the law relating to them, these depend entirely on the particular powers granted in the several road acts, and therefore have nothing to do with this compendium of general law.
[Footnote i: This, by the laws of the twelve tables at Rome, was the standard for roads that were straight; but, in winding ways, the breadth was directed to be sixteen feet. Ff. 8. 3. 8.]
VI. I PROCEED therefore, lastly, to consider the overseers of the poor; their original, appointment, and duty.
THE poor of England, till the time of Henry VIII, subsisted entirely upon private benevolence, and the charity of welldisposed christians. For, though it appears by the mirrour[k], that by the common law the poor were to be "sustained by parsons, rectors of the church, and the parishioners; so that none of them dye for default of sustenance;" and though by the statutes 12 Ric. II. c. 7. and 19 Hen. VII. c. 12. the poor are directed to be sustained in the cities or towns wherein they were born, or such wherein they had dwelt for three years (which seem to be the first rudiments of parish settlements) yet till the statute 27 Hen. VIII. c. 26. I find no compulsory method chalked out for this purpose: but the poor seem to have been left to such relief as the humanity of their neighbours would afford them. The monasteries were, in particular, their principal resource; and, among other bad effects which attended the monastic institutions, it was not perhaps one of the least (though frequently esteemed quite otherwise) that they supported and fed a very numerous and very idle poor, whose sustenance depended upon what was daily distributed in alms at the gates of the religious houses. But, upon the total dissolution of these, the inconvenience of thus encouraging the poor in habits of indolence and beggary was quickly felt throughout the kingdom: and abundance of statutes were made in the reign of king Henry the eighth, for providing for the poor and impotent; which, the preambles to some of them recite, had of late years strangely increased. These poor were principally of two sorts: sick and impotent, and therefore unable to work; idle and sturdy, and therefore able, but not willing, to exercise any honest employment. To provide in some measure for both of these, in and about the metropolis, his son Edward the sixth founded three royal hospitals; Christ's, and St. Thomas's, for the relief of the impotent through infancy or sickness; and Bridewell for the punishment and employment of the vigorous and idle. But these were far from being sufficient for the care of the poor throughout the kingdom at large; and therefore, after many other fruitless experiments, by statute 43 Eliz. c. 2. overseers of the poor were appointed in every parish.
[Footnote k: c. 1. Sec. 3.]
BY virtue of the statute last mentioned, these overseers are to be nominated yearly in Easter-week, or within one month after, by two justices dwelling near the parish. They must be substantial householders, and so expressed to be in the appointment of the justices[l].
[Footnote l: 2 Lord Raym. 1394.]
THEIR office and duty, according to the same statute, are principally these: first, to raise competent sums for the necessary relief of the poor, impotent, old, blind, and such other, being poor and not able to work: and, secondly, to provide work for such as are able, and cannot otherwise get employment: but this latter part of their duty, which, according to the wise regulations of that salutary statute, should go hand in hand with the other, is now most shamefully neglected. However, for these joint purposes, they are empowered to make and levy rates upon the several inhabitants of the parish, by the same act of parliament; which has been farther explained and enforced by several subsequent statutes.
THE two great objects of this statute seem to have been, 1. To relieve the impotent poor, and them only. 2. To find employment for such as are able to work: and this principally by providing stocks to be worked up at home, which perhaps might be more beneficial than accumulating all the poor in one common work-house; a practice which tends to destroy all domestic connexions (the only felicity of the honest and industrious labourer) and to put the sober and diligent upon a level, in point of their earnings, with those who are dissolute and idle. Whereas, if none were to be relieved but those who are incapable to get their livings, and that in proportion to their incapacity; if no children were to be removed from their parents, but such as are brought up in rags and idleness; and if every poor man and his family were employed whenever they requested it, and were allowed the whole profits of their labour;—a spirit of chearful industry would soon diffuse itself through every cottage; work would become easy and habitual, when absolutely necessary to their daily subsistence; and the most indigent peasant would go through his task without a murmur, if assured that he and his children (when incapable of work through infancy, age, or infirmity) would then, and then only, be intitled to support from his opulent neighbours.
THIS appears to have been the plan of the statute of queen Elizabeth; in which the only defect was confining the management of the poor to small, parochial, districts; which are frequently incapable of furnishing proper work, or providing an able director. However, the laborious poor were then at liberty to seek employment wherever it was to be had; none being obliged to reside in the places of their settlement, but such as were unable or unwilling to work; and those places of settlement being only such where they were born, or had made their abode, originally for three years[m], and afterwards (in the case of vagabonds) for one year only[n].
[Footnote m: Stat. 19 Hen. VII. c. 12. 1 Edw. VI. c. 3. 3 Edw. VI. c. 16. 14 Eliz. c. 5.]
[Footnote n: Stat. 39 Eliz. c. 4.]
AFTER the restoration, a very different plan was adopted, which has rendered the employment of the poor more difficult, by authorizing the subdivision of parishes; has greatly increased their number, by confining them all to their respective districts; has given birth to the intricacy of our poor-laws, by multiplying and rendering more easy the methods of gaining settlements; and, in consequence, has created an infinity of expensive lawsuits between contending neighbourhoods, concerning those settlements and removals. By the statute 13 & 14 Car. II. c. 12. a legal settlement was declared to be gained by birth, inhabitancy, apprenticeship, or service for forty days; within which period all intruders were made removeable from any parish by two justices of the peace, unless they settled in a tenement of the annual value of 10l. The frauds, naturally consequent upon this provision, which gave a settlement by so short a residence, produced the statute 1 Jac. II. c. 17. which directed notice in writing to be delivered to the parish officers, before a settlement could be gained by such residence. Subsequent provisions allowed other circumstances of notoriety to be equivalent to such notice given; and those circumstances have from time to time been altered, enlarged, or restrained, whenever the experience of new inconveniences, arising daily from new regulations, suggested the necessity of a remedy. And the doctrine of certificates was invented, by way of counterpoise, to restrain a man and his family from acquiring a new settlement by any length of residence whatever, unless in two particular excepted cases; which makes parishes very cautious of giving such certificates, and of course confines the poor at home, where frequently no adequate employment can be had.