[279] may also at any time decry, or cry down, any coin of the kingdom, and make it no longer current.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 been recognised 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 supreme head of the church appertaining. And another statute to the same purport was made, 1 Eliz. c. 1. 6 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 byʼsir 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 bish ops represents the house of lords; and the lower house, composed [280] 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) 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 privileges of forming ecclesiastical canons (which before they had not), and also introduced a method of taxing ecclesiastical benefices, by consent of convocations. (g)" 47 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 clergy resembles the convocation of England. It is composed of the bishops and superintendants; 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. (46) As queen Mary by 1 & 2 Ph. & M. c. 8. had repealed all the statutes made in the time of her father derogatory to the see of Rome, and had fully reinstated the pope in all his former power and jurisdiction in this country; queen Elizabeth to shew her attachment to the protestant cause, by the first parliamentary act of her reign repealed this statute of queen Mary, and revived all the statutes relating to the church passed in the time of Henry VIII. This proves how little at that time depended upon the authority of parliament, which could accede to such immense revolutions in the course of four or five years. Christian. (47) The king, before the meeting of every new parliament, directs his writ to each archbishop, to summon a convocation in his peculiar province. The convocation of the province of York constantly corresponds, debates, and concludes the same matters with the provincial synod of Canterbury. God. 99. But they are distinct and independent of each other; and when they used to tax the clergy, the different convocations sometimes granted different subsidies. In the 22 Hen. VIII. the convocation of Canterbury had ranted the king one hundred thousand pounds; in consideration of which an act of parliament From this prerogative also, of being the head of the church, arises the king's right of nomination to vacant bishopricks, and certain other ecclesi. astical preferments; which will more properly be considered when we come to treat of the clergy. I shall only here observe, that this is now done in consequence of the statute 25 Hen. VIII. c. 20. As the 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 more fully be shown hereafter. CHAP. 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 frequently 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. was passed, granting a free pardon to the clergy for all spiritual offences, but with a proviso that it should not extend to the province of York, unless its convocation would grant a subsidy in pro portion, or unless its clergy would bind themselves individually to contribute as bountifully. Gib. Cod. 77. All deans and archdeacons are members of the convocation of their province; each chapter sends one proctor or representative, and the parochial clergy in each diocese in Canterbury two proctors; but, on account of the small number of dioceses in the province of York, each archdeaconry elects two proctors. In York the convocation consists only of one house; but in Canterbury there are two houses, of which the twenty-two bishops form the upper house; and before the Reformation, abbots, priors, and other mitred prelates, sat with the bishops. The lower house of convocation in the province of Canterbury consists of twenty-two deans, fifty-three archdeacons, twenty-four proctors for the chapters, and forty-four proctors for the parochial clergy. By 8 Hen. VI. c. 1. the clergy in their attendance upon the convocation have the same privilege in freedom from arrest as the members of the house of commons in their attendance upon parliament. Bac. Abr. Courts Ecclesiastical, A. 1. Burn. Ecc. L. tit. Convocation. Chitty. (1) As to this subject in general, see Sir John Sinclair on Revenue of Great Britain. ComDig. Prerogative, D. 39, &c. Bac. Ab. Prerogative, B. Chitty, J. Prerogatives of Crown, 166 &c. I. The first of the king's ordinary revenues, which I shall take no[282] tice of, is of an ecclesiastical kind (as are also the three succeeding ones); viz. the custody of the temporalities 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 bishoprick 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 archbishopricks and bishopricks, to whom during the vacancy they revert. And for the same reason, before the dissolution of abbeys, the king had the custody of the temporalities 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 temporalities themselves, but the custody of the temporalities, till such time as a successor is appointed, with power of taking to himself all the intermediate profits, without any account to the successor; and with the right of presenting (which the crown very frequently exercises) to such benefices and other preferments as fall within the time of vacation. (b) This revenue is of so high a nature, that it could not be granted out to a subject, before, or even after, it accrued: but now by the statute 15 Edw. III. st. 4. c. 4, 5. the king may, after the vacancy, lease the temporalities to the dean and chapter; saving to himself all advowsons, escheats, and the like. Our ancient kings, and particularly William Rufus, were not only remarkable for keeping the bishopricks a long time vacant, for the sake of enjoying the temporalities, but also committed horrible waste on the woods and other parts of the estate; and, to crown all, would never, when the see was filled up, restore to the bishop his temporalities again, unless he purchased them at an exorbitant price. [283] To remedy which, king Henry the First (c) granted a charter at the beginning of his reign, promising neither to sell, nor let to farm, nor take any thing from the domains of the church, till the successor was installed. And it was made one of the articles of the great charter, (d) that no waste should be committed in the temporalities of bishopricks, neither should the custody of them be sold. The same is ordained by the statute of Westminster the first ;(e) and the statute 14 Edw. III. st. 4. c. 4. (which permits, as we have seen, a lease to the dean and chapter) is still more explicit in prohibiting the other exactions. It was also a frequent abuse, that the king would, for trifling or no causes, seize the temporalities of bishops, even during their lives, into his own hands: but this is guarded against by statute 1 Edw. III. st. 2. c. 2. This revenue of the king, which was formerly very considerable, is now by a customary indulgence almost reduced to nothing: for at present, as soon as the new bishop is consecrated and confirmed, he usually receives the restitution of his temporalities quite entire, and untouched, from the king; and at the same time does homage to his sovereign: and then, and not sooner, he has a fee-simple in his bishoprick, and may maintain an action for the profits. (f) II. The king is entitled to a corody, as the law calls it, out of every bishoprick, that is, to send one of his chaplains to be maintained by the a 2 Inst. 15. c Mat, Paris. d 9 Hen. II. c. 5. b Stat, 17 Edw. II. c. 14. F. N. B. 32. f Oo. Litt. 67, 34M bishop, or to have a pension allowed him till the bishop promotes him to a benefice. (g) This is also in the nature of an acknowledgment to the king, as founder of the see, since he had formerly the same corody or pension from every abbey or priory of royal foundation. It is, I apprehend, now fallen into total disuse: though sir Matthew Hale says, (h) that it is due of common right, and that no prescription will discharge it. III. The king also (as was formerly observed)(i) is entitled to all the tithes arising in extraparochial places: (k) though perhaps it may be doubted how far this article, as well as the last, can be properly [284] reckoned a part of the king's own royal revenue; since a corody supports only his chaplains, and these extraparochial tithes are held under an implied trust, that the king will distribute them for the good of the clergy in general. IV. The next branch consists in the first-fruits, and tenths, of all spiritual preferments in the kingdom; both of which I shall consider together. These were originally a part of the papal usurpations over the clergy of this kingdom; first introduced by Pandulph the pope's legate, during the reigns of king John and Henry the Third, in the see of Norwich; and afterwards attempted to be made universal by the popes Clement V. and John XXII. about the beginning of the fourteenth century. The first-fruits, primitiae or annates, were the first year's whole profits of the spiritual preferment, according to a rate or valor made under the direction of pope Innocent IV. by Walter bishop of Norwich in 38 Hen. III., and afterwards advanced in value by commission from pope Nicholas III., A. D. 1292, 20 Edw. I.: (1) which valuation of pope Nicholas is still preserved in the exchequer. (m) The tenths, or decimae, were the tenth part of the annual profit of each living by the same valuation, which was also claimed by the holy see, under no better pretence than a strange misapplication of that precept of the Levitical law, which directs, (n) that the Levites, "should "offer the tenth part of their tithes as a heave-offering to the Lord, and give "it to Aaron the high priest." But this claim of the pope met with a vigorous resistance from the English parliament; and a variety of acts were passed to prevent and restrain it, particularly the statute 6 Hen. IV. c. 1. which calls it a horrible mischief, and damnable custom. But the popish clergy, blindly devoted to the will of a foreign master, still kept it on foot; sometimes more secretly, sometimes more openly and avowedly: so that in the reign of Henry VIII., it was computed, that in the compass of fifty years 800,000 ducats had been sent to Rome for first-fruits [285] only. And, as the clergy expressed this willingness to contribute so much of their income to the head of the church, it was thought proper (when in the same reign the papal power was abolished, and the king was declared the head of the church of England) to annex this revenue to the crown; which was done by statute 26 Hen. VIII. c. 3. (confirmed by statute ! Eliz. c. 4.) and a new valor beneficiorum was then made, by which the clergy are at present rated. By these last-mentioned statutes all vicarages under ten pounds a year, and all rectories under ten marks, are discharged from the payment of firstfruits and if, in such livings as continue chargeable with this payment, the incumbent lives but half a year, he shall pay only one quarter of his first-fruits; if but one whole year, then half of them; if a year and a half, three quarters; and if two years, then the whole; and not otherwise. g F. N. B. 230. iPage 113. b Notes on F. N. B. above cited. Likewise by the statute 27 Hen. VIII. c. 8. no tenths are to be paid for the first year, for then the first-fruits are due: and by other statutes of queen Anne, in the fifth and sixth years of her reign, if a benefice be under fifty pounds per annum clear yearly value, it shall be discharged of the payment of first-fruits and tenths. Thus the richer clergy, being, by the criminal bigotry of their popish predecessors, subjected at first to a foreign exaction, were afterwards, when that yoke was shaken off, liable to a like misapplication of their revenues, through the rapacious disposition of the then reigning monarch: till at length the piety of queen Anne restored to the church what had [286] been thus indirectly taken from it. This she did, not by remitting the tenths and first-fruits entirely; but, in a spirit of the truest equity, by applying these superfluities of the larger benefices to make up the deficiences of the smaller. And to this end she granted her royal charter, which was confirmed by the statute 2 Ann. c. 11. whereby all the revenue of first-fruits and tenths is vested in trustees for ever, to form a perpetual fund for the augmentation of poor livings. This is usually called queen Anne's bounty; which has been still farther regulated by subsequent statutes. (0)❜ V. The next branch of the king's ordinary revenue (which, as well as the subsequent branches, is of a lay or temporal nature) consists in the rents and profits of the demesne lands of the crown. These demesne lands, terrae dominicales regis, being either the share reserved to the crown at the original distribution of landed property, or such as came to it afterwards by forfeitures or other means, were anciently very large and extensive; comprising divers manors, honours, and lordships; the tenants of which had very peculiar privileges, as will be shewn in the second book of these commentaries, when we speak of the tenure in ancient demesne. At present they are contracted within a very narrow compass, having been almost entirely granted away to private subjects. This has occasioned the parliament frequently to interpose; and, particularly, after king William III. had greatly impoverished the crown, an act passed, (p) whereby all future grants or leases from the crown for any longer term than thirty-one years or three lives are declared to be void; except with regard to houses which may be granted for fifty years. And no reversionary lease can be made, so as to exceed, together with the estate in being, the same term of three lives or thirty-one years: that is, where there is a subsisting lease, of which there are twenty years still to come, the king cannot grant a future interest, to commence after the expiration of the former, for any longer term [287] than eleven years. The tenant must also be made liable to be punished for committing waste; and the usual rent must be reserved, or, where there has usually been no rent, one-third of the clear yearly value. (9) The misfortune is, that this act was made too late, after almost every valuable possession of the crown had been granted away for ever, or else upon very long leases; but may be of some benefit to posterity, when those leases come to expire. VI. Hither might have been referred the advantages which used to arise to the king from the profits of his military tenures, to which most lands in o 5 Ann. c. 24. 6 Ana. c. 27. 1 Geo. I. st. 2. c. 10. 8 Geo. I. c. 10. q In like manner, by the civil law, the inheritance or fundi patrimoniales of the imperial crown couldi not be alienated, but only let to farm. Cod. l. 11. t. 61. (2) See further, 46 Geo. III. c. 133. and 2 Burn. Eccl. Law, title First-fruits, IV. |