Secondly, the regulation of weights and measures. These, for the advantage of the public, ought to be universally the same throughout the kingdom; being the general criterions which reduce all things to the same or an equivalent value. But, as weight and measure are things in their nature arbitrary and uncertain, it is therefore expedient that they be reduced to some fixed rule or standard; which standard it is impossible to fix by any written law or oral proclamation ; for no man can, by words only, give another an adequate idea of a foot-rule, or a pound-weight. It is therefore necessary to have recourse to some visible, palpable, material standard; by forming a comparison with which all weights and measures may be reduced to one uniform size: and the prerogative of fixing this standard our ancient law vested in the crown, as in Normandy it belonged to the duke. (1) This standard was originally kept at Winchester; and we find in the laws of King Edgar, (m) near a century before the conquest, an injunction that the one measure, which was kept at Winchester, should be observed throughout the realm. Most nations have regulated the standard of measures of length by comparison with the parts of the human body; as the palm, the hand, the span, the foot, the cubit, the ell, (ulna, or arm,) the pace, and [*275] the fathom. But, as these are of different dimensions in men of different proportions, our ancient historians (n) inform us, that a new standard of longitudinal measure was ascertained by King Henry the First, who commanded that the ulna, or ancient ell, which answers to the modern yard, should be made of the exact length of his own arm. And, one standard of measures of length being gained, all others are easily derived from thence; those of greater length by multiplying, those of less by subdividing, that original standard. Thus, by the statute called compositio ulnarum et perticarum, five yards and a half make a perch; and the yard is subdivided into three feet, and each foot into twelve inches; which inches will be each of the length of three grains of barley. Superficial measures are derived by squaring those of length; and measures of capacity by cubing them. The standard of weights was originally taken from corns of wheat, whence the lowest denomination of weights we have is still called a grain; thirty-two of which are directed, by the statute called compositio mensurarum, to compose a penny-weight, whereof twenty make an ounce, twelve ounces a pound, and so upwards. And upon these principles the first standards were made; which, being originally so fixed by the crown, their subsequent regulations have been generally made by the king in parliament. Thus, under King Richard I, in his parliament holden at Westminster, A. D. 1197, it was ordained that there should be only one weight and one measure throughout the kingdom, and that the custody of the assize, or standard of weights and measures, should be committed to certain persons in every city and borough; (0) from whence the ancient office of the king's aulnager seems to have been derived, whose duty it was, for a certain fee, to measure all cloths made for sale, till the office was abolished by the statute 11 and 12 Wm. III, c. 20. In King John's time, this ordinance of King Richard was *frequently dispensed with for money, (p) which occasioned a provision to be made for enforcing it, [ *276 ] in the great charters of King John and his son. (g) These original standards were called pondus regis, (r) and mensura domini regis; (s) and are directed by a variety of subsequent statutes to be kept in the exchequer, and all weights and measures to be made comformable thereto. (t) But, as Sir Edward Coke observes, (u) though this hath so often by authority of parliament been enacted, yet it could never be effected; so forcible is custom with the multitude. (28)

(r) Plac. 35 Edw. 1. apud Cowel's Interpr. tit. pondus regis.

(0) Hoved. Matth. Paris. (8) Flet. 2, 12.

(t) 14 Edw. III. st. 1, c. 12. 25 Edw. III. st. 5. c. 10. 16 Ric. II. c. 3. 8 Hen. VI. c. 5. 11 Hen. VI. c. 8. 11 Hen. VIL c. 4. 22 Car. II. c. 8. (u) 2 Inst. 41.

(28) [The regulation of weights and measures cannot with propriety be referred to the king's prerogative; for from magna charta to the present time there are above twenty acts of

Thirdly, as money is the medium of commerce, it is the king's prerogative, as the arbiter of domestic commerce, to give it authority or make it current. Money is an universal medium, or common standard, by comparison with which the value of all merchandize may be ascertained; or it is a sign which represents the respective values of all commodities. Metals are well calculated for this sign, because they are durable and are capable of many subdivisions; and a precious metal is still better calculated for this purpose, because it is the most portable. A metal is also the most proper for a common measure, because it can easily be reduced to the same standard in all nations: and every particular nation fixes on it its own impression, that the weight and standard (wherein consists the intrinsic value) may both be known by inspection only.

As the quantity of precious metals increases, that is, the more of them there is extracted from the mine, this universal medium, or common sign, will sink in value, and grow less precious. Above a thousand millions of bullion are calculated to have been imported into Europe from America within less than three centuries; and the quantity is daily increasing. *The consequence is, [ *277] that more money must be given now for the same commodity than was given an hundred years ago. And, if any accident were to diminish the quantity of gold and silver, their value would proportionably rise. A horse, that was formerly worth ten pounds, is now perhaps worth twenty; and, by any failure of current specie, the price may be reduced to what it was. Yet is the horse in reality neither dearer nor cheaper at one time than another: for, if the metal which constitutes the coin was formerly twice as scarce as at present, the commodity was then as dear at half the price as now it is at the whole. (29)

The coining of money is in all states the act of the sovereign power; for the reason just mentioned, that its value may be known on inspection. (30) And with respect to coinage in general, there are three things to be considered therein; the materials, the impression and the denomination.

parliament to fix and establish the standard and uniformity of weights and measures. A custom or usage countervailing these statutes is void in law. On these customs, see 3 T. R. 271; 4 id. 314, 150; 5 id. 353; 6 id. 338; 4 Taunt. 102.]

In the United States, the power to regulate weights and measures, is in congress. Const. art. 1, § 8.

(29) [In considering the prices of articles in ancient times, regard must always be had to the weight of the shilling, or the quantity of silver which it contained at different periods. From the conquest till the 20th year of Edward III, a pound sterling was actually a pound troy weight of silver, which was divided into twenty shillings; so if ten pounds at that time were the price of a horse, the same quantity of silver was paid for it as is now given, if its price is thirty pounds.

This, therefore, is one great cause of the apparent difference in the prices of commodities in ancient and modern times. About the year 1347, Edward III coined twenty-two shillings out of a pound; and five years afterwards he coined twenty-five shillings out of the same quantity. Henry V, in the beginning of his reign, divided the pound into thirty shillings, and then, of consequence, the shilling was double the weight of a shilling at present. Henry VII increased the number to forty, which was the standard number till the beginning of the reign of Elizabeth. She then coined a pound sterling of silver into sixty-two shillings. And now by 56 Geo. III, c. 68, the pound troy of standard silver, eleven ounces two pennyweights fine, &c., may be coined into sixty-six shillings. See money, in the index to Hume's Hist. Dr. Adam Smith, at the end of his first volume, has given tables specifying the average prices of wheat for five hundred and fifty years back, and has reduced for each year the money of that time into the money of the present day. But in his calculation he has called the pound since Elizabeth's time sixty shillings. Taking it at that rate, we may easily find the equivalent in modern money of any sum in ancient time, if we know the number of shillings which weighed a pound, by this simple rule: as the number of shillings in a pound at that time is to sixty, so is any sum at that time to its equivalent at present; as for instance, in the time of Henry V, as thirty shillings are to sixty shillings now, so ten pounds then were equal to twenty pounds of present money.]

(30) The power to coin money and to regulate the value thereof, is, by the constitution of the United States, conferred upon congress: art. 1, § 5; and the states, by the same instr ment, are forbidden to make any thing but gold and silver a legal tender in payment of debts. Art. 1, § 10. The question whether congress has the power to make any thing except the coins from these metals a legal tender, has recently become an important one, and has led to several judicial opinions which are not harmonious. The act of congress of February 25

With regard to the materials, Sir Edward Coke lays it down, (v) that the money of England must either be of gold or silver; and none other was ever issued by the royal authority till 1672, when copper farthings and half-pence were coined by King Charles the Second, and ordered by proclamation to be current in all payments, under the value of sixpence, and not otherwise. But this copper coin is not upon the same footing with the other in many respects, particularly with regard to the offence of counterfeiting it. And, as to the silver coin, it is enacted by statute 14 Geo. III, c. 42, that no tender of payment in silver money, exceeding twenty-five pounds at one time, shall be a sufficient tender in law for more than its value by weight, at the rate of 5s. 2d. an ounce.

As to the impression, the stamping thereof is the unquestionable prerogative of the crown for, though divers bishops and monasteries had formerly the privilege of coining money, yet, as Sir Matthew Hale observes, (w) this was usually done by special grant from the king or by prescription, which supposes one; and therefore was derived from, and not in derogation of, the royal prerogative. Besides that they had only the profit of the coinage, and not the power of instituting either the impression or denomination; but had usually the stamp sent them from the exchequer.

[*278]

The denomination, or the value for which the coin is to pass current, is likewise in the breast of the king; and, if any unusual pieces are coined, that value must be ascertained by proclamation. In order to fix the value, the weight and the fineness of the metal are to be taken into consideration together. When a given weight of gold or silver is of a given fineness, it is then of the true standard, (r) and called esterling or sterling metal; a name for which there are various reasons given, (y) but none of them entirely satisfactory. (31) And of this sterling or esterling metal all the coin of the kingdom must be made, by the statute 25 Edw. III, c. 13. So that the king's prerogative seemeth not to extend to the debasing or enhancing the value of the coin, below or above the sterling value, (z) though Sir Matthew Hale (a) appears to be of another opinion. (32) The king may also, by his proclamation, legitimate foreign coin,

(2) This standard hath been frequently varied in former times; but hath for many years past been thus invariably settled. The pound troy of gold, consisting of twenty-two carats (or twenty-fourth parts, fine, and two of alloy, is divided into forty-four guineas and a half of the present value of 218. each. And the pound troy of silver, consisting of eleven ounces and two pennyweights pure and eighteen pennyweights alloy, is divided into sixty-two shillings. (See Folkes on English Coins.)

were

(y) Spelm. Gloss. 203. Dufresne, III. 165. The most plausible opinion seems to be that adopted by those two etymologists, that the name was derived from the Esterlingi. or Esterlings; as those Saxens anciently called, who inhabited that district of Germany, now occupied by the Hanse Towns and their appendages; the earliest traders in modern Europe. (z) 2 Inst. 577.

(a) 1 Hal. P. C. 194.

1862, provided for a considerable issue of treasury notes, and while making them receivable for most dues to the United States, also provided that they should be “lawful money and legal tender in payment of all debts, public and private, within the United States," except duties on imports, and interest on the public debt. The constitutional validity of this act, as applied to pre-existing debts, has frequently been before the state courts, and has generally been sustained— though not always on the same grounds-even when the obligation by its terms was made payable in gold. See Metropolitan Bank . Van Dyck, 27 N. Y. 400; Van Husan v. Kanouse, 13 Mich. 303; Lick v. Faulkner, 25 Cal. 404; Thayer v. Hedges, 23 Ind. 141; Breitenbach v. Turner, 18 Wis. 140; Wood v. Bullens, 6 Allen, 516; Warnibold e. Schlicting, 16 Iowa, 244; George v. Concord, 45 N. H. 434; Maynard v. Newman, 1 Neb. 271. The supreme court of the United States has held, however, that contracts made before the act, and expressly by their terms payable in gold and silver coin: Bronson v. Rodes, 7 Wal. 229; and contracts where it is the clear intent of the parties that satisfaction should be made in such coin: Butler v. Horwitz, 7 Wal. 258; cannot be discharged by a tender of treasury notes. Afterwards that court held in Hepburn v. Griswold, 8 Wal. 603, that all contracts entered into when coin constituted the only legal currency can only be discharged by payment in coin. But a majority of the court has since reversed this decision, and fully sustained the constitutionality of the legal tender act. The case is not yet reported.

(31) [But since 1816 the pound troy of standard gold has been coined into 46 89-129 sovereigns, or 461. 14s. 6d. And since the same date the pound troy of silver has been coined into sixty-six shillings. McCulloch Dic. Com. sub voce, Coins.]

(32) [Lord Hale refers to the case of mixed money in Davies Reports, 48, in support of his opinion. A person in Ireland had borrowed 1007. of sterling money, and had given a bond to repay it on a certain future day. In the mean time Queen Elizabeth, for the purpose of paying her armies and creditors in Ireland, had coined mixed or base money, and by her proclamation 177

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and make it current here, declaring at what value it shall be taken in payments. (b) But this, I apprehend, ought to be by comparison with the standard of our own coin; otherwise the consent of parliament will be necessary. There is at present no such legitimated money; Portugal coin being only current by private consent, so that any one who pleases may refuse to take it in payment. The king may also at any time decry, or cry down, any coin of the kingdom, and make it no longer current. (c)

VI. The king is, lastly, considered by the laws of England as the head and supreme governor of the national church.

To enter into the reasons upon which this prerogative is founded is matter rather of divinity than of law. I shall therefore only observe that, by statute 26 Hen. VIII, c. 1, (reciting that the king's majesty justly and rightfully is and. ought to be the supreme head of the church of England; and so had [ *279 ] been recognized by the clergy of this kingdom in their convocation,) it is enacted, that the king shall be reputed the only supreme head in earth of the church of England, and shall have, annexed to the imperial crown of this realm, as well the title and style thereof, as all jurisdictions, authorities and commodities, to the said dignity of the supreme head of the church appertaining. And another statute to the same purport, was made, 1 Eliz. c. 1.

In virtue of this authority the king convenes, prorogues, restrains, regulates, and dissolves all ecclesiastical synods or convocations. This was an inherent prerogative of the crown long before the time of Henry VIII, as appears by the statute 8 Hen. VI, c. 1, and the many authors, both lawyers and historians, vouched by Sir Edward Coke. (d) So that the statute 25 Hen. VIII, c. 19, which restrains the convocation from making or putting in execution any canons repugnant to the king's prerogative, or the laws, customs and statutes of the realm, was merely declaratory of the old common law: (e) that part of it only being new which makes the king's royal assent actually necessary to the validity of every canon. The convocation, or ecclesiastical synod, in England, differs considerably in its constitution from the synods of other Christian kingdoms: those consisting wholly of bishops; whereas with us the convocation is the miniature of a parliament wherein the archbishop presides with regal state; the upper house of bishops represents the house of lords; and the lower house, composed of representatives of the several dioceses at large, and of each particular chapter therein, resembles the house of commons, with its knights of the shire and burgesses. (f) (33) This constitution is said to be owing to the policy of Edward I, who thereby, at one and the same time, let in the inferior clergy to the privilege of forming *ecclesiastical canons (which before [*280 ] they had not,) and also introduced a method of taxing ecclesiastical benefices, by consent of convocation. (g)

From this prerogative also, of being the head of the church, arises the king's right of nomination to vacant bishoprics, and certain other ecclesastical preferments; which will more properly be considered when we come to treat of the

(d) 4 Inst. 322. 323.

(b) Ibid, 197. (c) 1 Hal. P. C. 197. (e) 12 Rep. 72. (f) In the diet of Sweden, where the ecclesiastics form one of the branches of the legislature, the chamber of the elergy resembles the convocation of England. It is composed of the bishops and superintendents; and also of deputies, one of which is chosen by every ten parishes or rural deanery, Mod. Un. Hist. xxxiii. 18. (g) Gilb. Hist. of Exch. c. 4.

had ordered it to pass current, and had cried down the former coin. The debtor on the appointed day tendered 1007. in this base coin; and it was determined upon great consideration that it was a legal tender, and that the lender was obliged to receive it. Natural equity would have given a different decision.]

(33) [And by stat. 8 Hen. VI, c. 1, the clergy in attendance upon the convocation are privileged from arrest. If not at the period specified, as head of the church, (presuming the pope, temp. Edw. I, to have arrogated that elevated dignity,) yet as king of England, we find a remarkable exercise of power delegated by him to the bishops: "And the kynge hath grantyd to all bysshoppys that twyse in a yere they may curse all men doying against these artycles," The grete Abregement of the Statutys of Englond untyll the xxij yere of Kyng Henry the VIII, 257. This clause is in effect found in the statute, or rather charter, Statutum de tallagio non concedendo. 34 Edw. I, c. 6.]

clergy. I shall only here observe that this is now done in consequence of the statute 25 Hen. VIII, c. 20.

As head of the church, the king is likewise the dernier resort in all ecclesiastical causes; an appeal lying ultimately to him in chancery from the sentence of every ecclesiastical judge: which right was restored to the crown by statute 25 Hen. VIII, c. 19, as will be more fully shown hereafter. (34)

CHAPTER VIII.

OF THE KING'S REVENUE.

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

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

When I say that it has subsisted time out of mind in the crown, I do not mean that the king is at present in the actual possession of the whole of this revenue. Much (nay, the greatest part) of it is at this day in the hands of subjects; to whom it has been granted out from time to time by the kings of England: which has rendered the crown in some measure dependent on the people for its ordinary support and subsistence. So that I must be obliged to recount, as part of the royal revenue, what lords of manors and other subjects *fre[ *282] quently look upon to be their own absolute inherent rights; because they are and have been vested in them and their ancestors for ages, though in reality originally derived from the grants of our ancient princes.

I. The first of the king's ordinary revenues which I shall take notice of is of an ecclesiastical kind; (as are also the three succeeding ones) viz.: the custody of the temporalties of bishops: by which are meant all the lay revenues, lands and tenements (in which is included his barony,) which belong to an archbishop's or bishop's see. And these, upon the vacancy of the bishopric, are immediately the right of the king, as a consequence of his prerogative in church matters; whereby he is considered as the founder of all archbishoprics and bishoprics, to whom during the vacancy they revert. And for the same reason, before the dissolution of abbeys, the king had the custody of the temporalties of all such abbeys and priories as were of royal foundation (but not of those founded by subjects) on the death of the abbot or prior. (a) Another reason may also be given why the policy of the law hath vested this custody in the king; because, as the successor is not known, the lands and possessions of the see would be liable to spoil and devastation if no one had a property therein. Therefore, the law has given the king, not the temporalties themselves, but the custody of the temporalties, till such time as a successor is appointed; with power of taking to himself all the intermediate profits, without any account of the successor; and with right of presenting (which the crown very frequently exercises)

(a) 2 Inst. 15.

(34) Appeals are now taken in these cases to the judicial committee of the privy council.