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, (x) 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,

(v) 2 Inst. 577.

(w) 1 Hist. P. C. 191.

(z) 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 21s. 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.)

(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 were 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 sustainedthough not always on the same grounds—even when the obligation by its terms was made payable in gold. See Metropolitan Bank v. 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 v. 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

VOL. I.-23

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 (b) Ibid, 197. (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.

(c) 1 Hal. P. C. 197.

(d) 4 Inst. 322, 323.

(e) 12 Rep. 72.

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,

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 and 5, the king may, after the vacancy, lease the temporalties 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 bishoprics a long time *vacant, for the sake of enjoying [*283] the temporalties, 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 temporalties again, unless he purchased them at an exorbitant price. 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. (1) And it was made one of the articles of the great charter, (d) that no waste should be committed in the temporalties of bishoprics, 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 temporalties 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 temporalties 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 bishopric, and may maintain an action for the profits. (ƒ)

II. The king is entitled to a corody, as the law calls it, out of every bishopric, that is, to send one of his chaplains to be maintained by the 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. (2) It is, I *apprehend, now fallen into total dis[ *284] use; 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 reckoned a part of the king's own royal revenue; since a corody supports only his chaplains, and these extraparo chial tythes 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, primitæ, or annates,

(b) Stat. 17 Edw. II. c. 14. F. N. B. 32.

(d) 9 Hen. III. c. 5.

(f) Co. Litt. 67, 341.

(k) 2 Inst. 647.

(e) 3 Edw. I. c. 21. (g) F. N. B. 230.

(c) Matt. Paris.

(h) Notes on F. N. B. above cited. (i) Page 113.

(1) [But Queen Elizabeth kept the see of Ely vacant nineteen years, in order to retain the revenue. Strype, vol. 4, 351.]

(2) [So where the foundation was not royal, it was usual for the founders to give their heirs a corody, viz. a charge upon the particular monastery or abbey sufficient to prevent them from starving. And those persons, disinherited of the lands by their relations, were there subsisted during life.]

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; (7) which valuation of Pope Nicholas is still preserved in the exchequer. (m) (3) The tenths, or decima, 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 [*285] met with a vigorous resistance from the English parliament; and a variety of acts were passed to prevent and restrain it, particularly the statute of 6 Hen. IV, c. 1, which calls it a horrible mischief and a 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 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 1 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 first-fruits; 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. Likewise by the statute 27 Hen. VIII, c. 8, no tenths are to be paid for the first year, for then the firstfruits 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. (4)

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 been *thus indirectly taken [*286] 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 deficiencies of the smaller. And to this end she granted her royal charter, which was confirmed by the statute 2 Ann. c.

(3) [There are several errors in the text, which Mr. Justice Coleridge has pointed out. The correct account is as follows: In 1253, Pope Innocent IV granted all the first fruits and tenths to Henry III for three years, which occasioned a taxation in the following year, sometimes called the Norwich taxation, and sometimes Innocent's valuation. In 1288, Innocent IV (not III as stated in the text,) granted the tenths to Edward I for six years; and a new valuation was commenced in the same year by the king's precept, which valuation was, so far as it extended over the province of Canterbury, finished in 1291, and as to York, also, in the following year the whole being under the direction of John, bishop of Winton, and Oliver, bishop of Lincoln. In 1318 a third taxation, entitled nova taxatio was made, but this only extended over some part of the province of York.]

(4) The commissioners for the administration of what is known as Queen Anne's bounty are incorporated, and they are pursuing a scheme for the augmentation of small livings, by which an annual net income as nearly as may be of 150l. will be secured to the incumbent of every benefice or church with cure of souls, being either a parish, church or chapel, with a district legally assigned thereto, and having a population of 2000, and not being in the patronage of lay proprietors.