Chapter 30

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 120000_l._ 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 800,000_l._ 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 800000_l._ _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 77000_l._) 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 800000_l._ _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 100000_l._ _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 600000_l._ a year[g]: that of king Charles I was[h] 800000_l._ and the revenue voted for king Charles II was[i] 1200000_l._ 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 800000_l._ 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 400000_l._) out of which his fleet and army were maintained at the yearly expense of[o] 1100000_l._ 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 700000_l._ _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] 800000_l._ 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 700000_l._ 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.]