facie most proper for a common measure, because it can easily be reduced to the same unit of value in all nations: and every particular nation fixes on it its own impression, so that the weight and purity (wherein consists the intrinsic value) of coin may be known by mere inspection. (93) 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 would obviously sink in value, and grow less precious if its tendency to do so were not by other circumstances more or less materially counteracted. Above a thousand millions of bullion are calculated to have been imported into Europe from America within less than three centuries after the discovery of this latter continent: and of gold a large additional quantity has recently been obtained from Australia and California. The great increase thus caused in our metallic circulating medium has, doubtless to an extent, (93) "The congress shall have power and of foreign coin." U. S. Const., art. 1, § 8. bills of credit, or make any thing but gold and Ib., § 10. * To coin money, regulate the value thereof, No state is permitted to coin money, emit silver coin a tender in payment of debts. Congress by act of Feb. 25, 1862, 12 Stat. at Large, 345, § 1, provided for the issue of United States treasury notes, and declared that they should "be receivable in payment of all taxes, internal duties, excises, debts, and demands of every kind due to the United States, except duties on imports, and of all claims and demands against the United States of every kind whatsoever, except for interest upon bonds and notes, which shall be paid in coin, and shall also be a lawful money and a legal tender in payment of all debts, public and private, within the United States, except duties on imports and interest as aforesaid." The questions which have frequently arisen under this statute are, 1. Can congress make any thing but gold and silver coin a valid tender; 2. Are treasury notes a valid tender in payment of debts contracted before the statute was enacted; and 3. Are such notes a good tender in payment of debts expressly payable in gold and silver coin. Upon the first question the cases are numerous, that treasury notes are a legal tender in payment of debts. Hague v. Powers, 39 Barb. 427; Reynolds v. Bank of the State, 18 Ind. 467; People v. Meyhew, 26 Cal. 655; Carpenter v. Northfield Bank, 39 Vt. 46; Davis v. Burton, 52 Penn. St. 9, 22; Johnson v. Ivey, 4 Cold. (Tenn.) 608; Belloc v. Davis, 38 Cal. 242; Fosdick v. Van Husan, 21 Mich. 567. Upon the question whether a tender in such notes would be valid where the debt was contracted before the enactment of the statute, the authorities are conflicting. That such a tender would not be good is held in Hepburn v. Griswold, 8 Wall. (U. S.) 603; Martin v. Martin, 20 N. J. Eq. (5 C. E. Gr.) 421. That such a tender is good as to prior debts is held in Knox v. Lee; Parker v. Davis, 12 Wall. (U. S.) 457 (overruling Hepburn v. Griswold); Verges v. Giboney, 38 Mo. 458; O'Neil v. McKewn, 1 S. C. 147; Higgins v. Bear River Co., 27 Cal. 153. That a debt expressly payable in coin may be tendered in treasury notes instead of coin is held in George v. Concord, 45 N. H. 434; Graham v. Marshall, Laughlin v. Harvey, 52 Penn. St. 9; Appel v. Woltman, 38 Mo. 458; Jones v. Smith, 48 Barb. 552; Wilson v. Morgan, 4 Rob. 58; Wilson v. Triblecock, 23 Iowa, 331; Killough v. Alford, 32 Tex. 457; Gilman v. Douglas, 6 Nev. 27; Cary v. Courtenay, 103 Mass. 316. See Murray v. Gale, 5 Abb. (N. S.) Pr. 236; 52 Barb. 429. That a debt expressly payable in coin cannot be paid in any thing but coin or its equivalent in value is held in Bronson v. Rodes, 7 Wall. (U. S.) 229; Trebilcock v. Wilson, 12 id. 687 (reversing S. C., 23 Iowa, 331); Galland v. Lewis, 26 Cal. 46; Vilhac v. Beven, 28 id. 410; Rankin v. Demott, 61 Penn. St. 263; Frank v. Colhoun, 59 id. 381; Bobo v. Goss, 1 S. C. 262; Hill v. Trustees, 7 Phil. (Pa.) 28. See Murray v. Gale, 5 Abb. (N. S.) Pr. 236; 52 Barb. 427, which settle the question that debts in terms payable in coin must be so paid, and that legal tender notes are not sufficient, if of less value than coin. VOL. I.-28 which it might be impossible precisely to indicate(y), diminished or lowered its value. [*332] The coining of money is in civilized states the act of *the sovereign power(z). And with respect to coinage in general, there are three things to be considered therein; the materials, the impression, and the denomination. With regard to its materials, sir Edward Coke lays it down(a), that the money of England must either be of gold or silver(b): and none other was ever issued by the royal authority till 1672, when copper farthings and halfpence were coined by king Charles II., and ordered by proclamation to be current in all payments, under the value of sixpence, and not otherwise. But this copper coin is not quite upon the same footing with the other, particularly as regards the offence of counterfeiting it(c). And in regard to the silver coin, it is enacted by statute 56 Geo. 3, c. 68, s. 12, that no tender of silver money, exceeding forty shillings at one time, shall be a sufficient tender in law. As to the impressing or stamping of coin - this 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(d), this was usually done by special grant from the crown or by prescription which supposes one: and therefore was derived from, and not in derogation of, the royal prerogative(e). And, besides, such grantees had only the profit of the coinage, [*333] and not the power of instituting either *the impression or denomination; having usually had the stamp for impressing coin sent them from the exchequer. The denomination, or value for which the coin is to pass current, is likewise in the breast of the sovereign; and, if any unusual pieces are coined, their value must be ascertained by proclamation or by act of parliament (f). 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 (g), and called "esterling" or 'sterling" metal; a name for which various reasons have been given (h). And of this sterling or esterling metal all the coin of the kingdom must be made, by the statute 25 Edw. 3, c. 13. So that the royal prerogative seems 66 (y) Inasmuch as there is no fixed standard available for this purpose. (z) In the stat. 24 & 25 Vict. c. 99, the royal prerogative of regulating the coinage is thus recognised; sect. 1 sets forth that the expression "the queen's current gold or silver coin," shall include any gold or silver coined in any of her majesty's mints, or lawfully current by virtue of any proclamation or otherwise. (a) 2 Inst. 577. (b) The comparative values of gold and silver have during the last few centuries (preceding 1855) not varied in any very material degree, because the proportion between the demand and supply of the two metals has not materially varied. Macleod on Banking, i. 116. (c) See 24 & 25 Vict. c. 99, ss. 9, 15, 18, 22. (d) 1 Hist. P. C. 191. (e) This privilege was not wholly abolished till the middle of the 16th century. Macleod on Banking, i. 149. (f) See stat. 12 & 13 Vict. c. 41. (g) This standard has frequently varied, but since 1816, the pound troy of standard gold has been coined into 46 89-129 sovereigns, or 46. 14s. 6d. And since the same date the pound troy of silver has been coined into sixty-six shillings. M'Culloch's Dict. Com. sub voce, Coins. (h) Spelm. Gloss. 203; Dufresne, iii. 165. According to these two etymologists, the name was derived from the Esterlingi, or Esterlings; as those Saxons were anciently called, who inhabited that district of Germany now occupied by the Hanse-towns and their appendages; the earliest traders in modern Europe. The word "sterling" has also been derived from the festival of Easter, when certain officials visited the mint and examined the coinage. Macleod on Banking, i. 148. See further as to the derivation of this word Ducange Gloss. sub verb. esterlingus." 66 not to extend to the debasing or enhancing the value of the coin below or above the sterling value(i): though sir Matthew Hale(j) appears to be of another opinion. The sovereign may also, by proclamation legitimate foreign coin, and make it current here(k); declaring at what value it shall be taken in payments(). By stat. 29 & 30 Vict. c. 65, s. 1, her majesty is empowered to proclaim gold coins made at the colonial *branch mints to be a legal tender for payments in the United Kingdom and Colonies(). The [*334] Sovereign may also at any time call in, decry, or cry down, any coin of the kingdom, and make it no longer current(m). Upon the metallic currency of the country and bullion which is convertible into it, our paper currency is based; a bank note expressing on the face of it a promise to pay on demand such or such an amount of metallic currency. This paper currency is issued subject to certain restrictions contained in the Bank Charter Acts, and in the statutes regulating banks of issue. It represents pro tanto the current coin of the realm, and circulates by reason of the confidence reposed in the bank-whether national, joint stock, or private which has issued it(n). VI. Lastly, the sovereign is considered by the laws of England as the head and supreme governor of the national church. (VI.) Is head of the church. To enter into the reasons upon which this prerogative is founded would be more proper for a writer on divinity than for a legal commentator. I shall therefore only observe that by 26 Hen. 8, 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 was enacted, that the king should be reputed the only supreme head of the church of England, and should 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. *In virtue of this authority the sovereign convenes, prorogues, restrains, regulates, and dissolves all ecclesiastical synods or convoca[ *335] tions. This was an inherent prerogative of the crown, long before the time of Henry VIII., as appears by the statute 8 Hen. 6, c. 1, and the many authors, both lawyers and historians, vouched by sir Edward Coke(o). So that the statute 25 Hen. 8, c. 19, which restrains the convocation from making or putting in execution any canons repugnant to the royal prerogative, or to the laws, customs, and statutes of the realm, was declaratory of the old common law(p): that part of it only being new, which makes the assent of the sovereign 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, whether for the province of Canterbury or for that of York (g), is in some sort the miniature of a parliament, over which the archbishop presides in the upper house of bishops representing the house of lords; and the lower house, composed of representatives of the several dioceses at large, and of each particular chapter therein, resembling the house of commons with its knights of the shire and burgesses. 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 framing ecclesiastical canons (which before they had not), and also introduced a method of taxing ecclesiastical benefices, by consent of convocation (r). The functions of *convocation are now practically limited to the discussion of questions affecting the ecclesiastical polity without legislative power. From this prerogative of being the head of the church, arises the sovereign's right of nomination to vacant bishoprics, and certain other ecclesiastical preferments; which will more properly be considered hereafter(s). [ *336] As head of the church, the sovereign is likewise, in theory, the dernier ressort in ecclesiastical causes; an appeal lying therein to the judicial committee of the privy council. [* 337] *CHAPTER VIII. THE ROYAL REVENUE. HAVING, in the preceding Chapter, considered at large those branches of the .prerogative, which contribute to the royal dignity, and constitute the executive power of the government, we proceed now to examine the fiscal prerogatives of the sovereign, or such as regard the royal revenue; which the British constitution has vested in the crown, in order to support its dignity and maintain its power: being a portion which each subject contributes of his property, in order to render more secure the remainder. The hereditary revenue of the crown was anciently derivable from various sources, which will be specified in the ensuing pages. To prevent misconception, however, upon this subject, two preliminary remarks are needed. In the first place, much of the ancient hereditary revenue of the crown long since passed to, and is at this day vested in, the hands of subjects, to whom it was granted out from time to time by the kings of England, which rendered the crown in some measure dependent on the people for its ordinary support and subsistence. So that we shall be obliged to recount, as part of the royal revenue, what lords of manors and others frequently look upon as 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 (9) Hume, Hist. Eng. (ed. 1802), ii. 279. But see Trevor, On Couv. pp. 120, et seq. (r) Gilb. Hist. of Exch. c. 4. After the Reformation subsidies granted by the convocation were always confirmed by parliament; an intimation to the convocation that the legislature did not acquiesce in their our ancient princes. Secondly, since the revolution of 1688, the royal revenue has in this country been from *time to time fixed and ascertained in [ *338] virtue of an arrangement entered into upon the accession of each successive sovereign between the parliament and the crown. The separate pecuniary items which in the aggregate formerly constituted this revenue, except only the income derivable from the private estates of the sovereign(a), and the proceeds of property vested in or appurtenant to the crown, being now paid over directly or indirectly to the nation, and made applicable to public purposes(b). And, in consideration of the hereditary rights and revenues thus relinquished by the sovereign, a yearly sum is directed to be paid out of the consolidated fund, which is available for the support of the royal household, and for upholding the honour and dignity of the crown(c). Ordinary Subject to the preceding remarks the royal revenue may be described as either ordinary or extraordinary. The sovereign's ordinary revenue having either subsisted time out of mind in the crown; or else having been granted by parliament, by way of purchase or exchange for such of its inherent hereditary revenues as were found inconvenient to the subject; this ordinary revenue we will in the first place consider. revenue. I. The first of the sovereign's ordinary revenues to be noticed is of an ecclesiastical kind (as are also the three succeeding ones); viz. the custody of the (I.) Custody of temporalities of bishops: by which are meant all the lay revenues, bishops' tem- lands, and tenements (in which is included his barony) which poralities. belong to an archbishop's or bishop's see. And these upon the vacancy of the see are immediately vested in the sovereign as a consequence of his prerogative in church matters; for the sovereign being considered as the founder of all archbishoprics and bishoprics, to him during vacancy *they revert. And for the same reason, before the dissolution of [* 339] abbeys, the sovereign 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(d). Another reason may also be given, why the policy of the law vested this custody in the crown; because the lands and possessions of a see, as the successor is not known, would be liable to spoil and devastation, if no one had a property therein. Therefore the law has given to the crown, not the temporalities themselves, but the custody of the temporalities, till such time as a successor is appointed, with power of taking to itself all the intermediate profits, without any account of the successor; and with the right of presenting to such benefices and other preferments as fall within the time of vacancy (e). 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. 3, st. 4, c. 4 & c. 5, the crown may, after the vacancy, lease the temporalities to the dean and chapter; saving to itself 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 the temporalities, but also committed horrible waste on the woods and other parts of the estate; and, to crown all, would never, when (a) 25 & 26 Vict. c. 37. public monies is now mainly regulated by The receipt, custody, and issue of the the stat. 29 & 30 Vict. c. 39. (c) Post. (d) 2 Inst. 15. (e) Stat. 17 Edw. 2, st. 1, c. 14; F. N. B. 32. |