value,(z) though Sir Matthew Hale(a) appears to be of another opinion. The king may also, by his proclamation, legitimate foreign coin, 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 The king may also at any time decry, or cry down, any coin of the kingdom, and make it no longer current.(c)32

V. 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 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 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 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) This constitution is said to be owing to the policy of

(e) 2 Inst. 577.

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

(*) Ibid. 197.

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

(d) 4 Inst. 322, 323.

()12 Rep. 72.

() 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 superintendents, and also of deputies, one of which is chosen by every ten parishes or rural deanery. Mod. Un. Hist. xxxiii. 18.

31 Lord Hale refers to the case of mixed money in Davies's Reports, 48, in support of his opinion. A person in Ireland had borrowed £100 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 had ordered it to pass current, and had cried down the former coin. The debtor, on the appointed day, tendered £100 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.

This act of queen Elizabeth does but ill correspond with the flattering inscription upon her tomb:-Religio reformata, pax fundata, moneta ad suum valorem reducta, &c. 2 Inst. 578.CHRISTIAN.

32 Congress have power "to coin money, regulate the value thereof and of foreign coin, and to provide for the punishment of counterfeiting the securities and current coin of the United States." Const. U. S. art. 1, s. 8.-SHARSWOOD.

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

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 convocation.(g)

[*280

From this prerogative also, of being the head of the church, arises the king's right of nomination to vacant bishoprics, and certain other ecclesiastical 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 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.3

(8) Gilb. Hist. of Exch. c. 4.

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 King 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. vi.-CHITTY.

34 From the learned commentator's text, the student would perhaps be apt to suppose that there is only one convocation at a time. But the king, before the meeting of every new parliament, directs his writ to each archbishop to summon a convocation in his peculiar province.

Godolphin says that 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 certainly 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 granted the king one hundred thousand pounds, in consideration of which an act of parliament 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 proportion, or unless its clergy would bind themselves individually to contribute as bountifully. This statute is cited at large in 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. Burn. Conv. 1 Bac. Abr. 610.-CHRISTIAN.

35 By that statute it is declared, that for the future no appeals from the ecclesiastical courts of this realm should be made to the pope, but that an appeal from the archbishop's courts should lie to the king in chancery; upon which the king, as in appeals from the admiral's court, should by a commission appoint certain judges or delegates finally to determine such appeals. 3 Book, 66.—CHRISTIAN.

"No religious test shall ever be required as a qualification to any office or public trust under the United States." Const. U. S. art. 6, s. 3. "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Ibid. Amendments, art. 1.-SHARSWOOD.

215

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, *282] 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.

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 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 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. *283] *vacant, for the sake of enjoying 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, pro

(a) 2 Inst. 15.

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

() Matt. Paris.

mising 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 arti cles 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 1st ; (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. It is, I *apprehend, now fallen into total disuse; though Sir Matthew Hale says(h) that it is due of common right,3 and that no prescription will discharge it.

[*284

III. The king also, as was formerly observed, (i) is entitled to all the tithes arising in extra-parochial 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 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, primitiæ, 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.;() which valuation of popʊ Nicholas is still preserved in the exchequer.(m) The tenths, or decima, were

1 But queen Elizabeth kept the see of Eli vacant nineteen years, in order to retain the revenue. Strype, vol. iv. 351.-CHRISTIAN.

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. See a form of corody, Barr. stat. 80, n. (9.) Sparke's Coll. 157.-CHITTY.

3 The right to a corody does not seem peculiar to the prerogative, and it might be not only for life and years, but in fee, (2 Inst. 630;) assize lay for it, (stat. Westm. 2, c. 25.) The text would appear to indicate that only persons ecclesiastical could enjoy corody; but, by the older books, any servant of the king may be entitled to corody. A pension is proper to an ecclesiastic. See F. N. B. 250; also the previous note.-CHITTY.

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

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 *285] 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 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 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

(*) Numb. xviii. 26.

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, Nicholas IV. (not III., as 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. It became necessary chiefly in consequence of the Scottish invasion of the border counties, which rendered the clergy of those districts unable to pay tenths and first-fruits according to the higher valuation. It was made by virtue of royal mandate directed to the bishop of Carlisle.-HARGRAVE.

5 When the first-fruits and tenths were transferred to the crown of England, by 26 Hen. VIII. c. 3, at the same time it was enacted, that commissioners should be appointed in every diocese, who should certify the value of every ecclesiastical benefice and preferment in the respective dioceses; and according to this valuation the first-fruits and tenths were to be collected and paid in future. This valor beneficiorum is what is commonly called the King's Books; a transcript of which is given in Ecton's Thesaurus, and Bacon's Liber Regis.-CHRISTIAN.

6 The archbishops and bishops have four years allowed for the payment, and shall pay one quarter every year, if they live so long upon the bishopric; but other dignitaries in the church pay theirs in the same manner as rectors and vicars.-CHRISTIAN.

After queen Anne had appropriated the revenue arising from the payment of firstfruits and tenths to the augmentation of small livings, it was considered a proper extension of this principle to exempt the smaller livings from the encumbrance of those demands; and, for that end, the bishops of every diocese were directed to inquire and certify into the exchequer what livings did not exceed 507, a year, according to the improved value at that time; and it was further provided, that such livings should be discharged from those dues in future.-CHRISTIAN.