[the prerogative of fixing this standard our antient law vested in the crown, as in Normandy it belonged to the duke (o). This standard was originally kept at Winchester; and we find in the laws of King Edgar (p), 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 the fathom. But as these are of different dimensions in men of different proportions, our antient historians (q) inform us, that a new standard of longitudinal measure was ascertained by King Henry the first; who commanded that the ulna, or antient 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 mensururum, to compose a pennyweight, 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 the first, in his (0) Gr. Coustum. c. 16. (p) Cap. 8. (q) Will. Malmsb. in Vita Hen. I.; Spelm. Hen. I. apud Wilkins, 299. [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 (r); from whence the antient 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 & 12 Will. III. C. 20. In King John's time, this ordinance of King Richard was frequently dispensed with for money (s), which occasioned a provision to be made for enforcing it, in the great charters of King John and his son (t). These original standards were called pondus regis (u), and mensura domini regis(x); and were directed by a variety of subsequent statutes to be kept in the exchequer, and all weights and measures to be made. conformable thereto (y). But Sir Edward Coke observes that (z), though this had so often by authority of parliament been enacted, yet it could never be effected; so forcible is custom with the multitude.] In our own times, however, new parliamentary enactments have been devised on this subject, and other weights and measures substituted for those which antiently obtained. By 5 Geo. IV. c. 74, 6 Geo. IV. c. 12, 5 & 6 Will. IV. c. 63 (a), and 18 & 19 Vict. c. 72, standards are fixed for length, weight, and capacity; and it is provided that all contracts for sale by weight or measure, where no special agreement is made to the contrary, shall be taken to refer to the standards so established. It is also enacted, that all articles sold by weight shall be sold by avoirdupois weight, except gold, silver, (r) Hoved. Matth. Paris. (s) Hoved. A.D. 1201. (t) 9 Hen. 3, c. 25. (u) Plac. 35 Edw. 1, apud Cowel's Interpr. tit. Pondus regis. (x) Flet. 2, 12. (y) 14 Edw. 3, st. 1, c. 12; 25 Edw. 3, st. 5, cc. 9 & 10; 16 Rich. 2, VOL. II. c. 3; 8 Hen. 6, c. 5; 11 Hen. 6, c. 8; 11 Hen. 7, c. 4; 22 Car. 2, c. 8. (z) 2 Inst. 41. (a) This act repeals a prior act on the same subject, viz. 4 & 5 Will. 4, c. 49. It also abolishes the "Winchester" bushel, and "all local and customary measures." M M platina, diamonds, or other precious stones, which may be sold by troy weight (b); and drugs, which, when sold by retail, may be sold by apothecaries weight (c): and further, that it shall be penal for any person to sell by measure of capacity other than one of the imperial measures or some multiple or aliquot part thereof (d). Thirdly, [as money is the medium of commerce, it is the sovereign'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 scarcest and 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 (e). 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 were calculated to have been imported into Europe from America within less than three centuries; and the quantity is daily increasing (f). The consequence is, that more (b) See 16 & 17 Vict. c. 29, as to sales of bullion by troy weight. (c) See the following cases which have arisen on the construction of the Weights and Measures Acts: Washington v. Young, 5 Exch. 403; Thomas, app., Stephenson, resp., 2 Ell. & Bl. 108; Queen v. Jarvis, 3 Ell. & Bl. 640; Rosseter v. Cahlmann, 8 Exch. 361. (d) This does not extend to sales by weight, see Hughes v. Hum phreys, 3 Ell. & Bl. 954; Jones v. Giles, 10 Exch. 119. (e) Though the circulating medium in this country consists, not only of coin, but of paper, that is, of bank notes, yet as the notes are convertible at pleasure of the holder into cash, the circulating medium is in effect, though not in a literal sense, exclusively metallic. (f) The recent discovery of new regions abounding with gold in [money must be given now for any commodity, the quantity of which has not increased in the same proportion, 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. 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:] and as the value of money not authenticated by this means, cannot be easily ascertained, it is consequently the rule of the common law that no tender of payment of any debt is valid and sufficient unless made in the common coin of the realm (g). This, however, is subject, by the statute law, to exception; for by 3 & 4 Will. IV. c. 98, s. 6, a tender may be made in Bank of England notes, payable to bearer on demand, for all sums above 5l., so long as the Bank continues to pay on demand in legal coin (h). [With respect to coinage in general, there are three things to be considered; the materials, the impression, and the denomination. With regard to the materials, Sir Edward Coke lays it down (i), 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 California and Australia, makes this statement particularly applicable to the present times. (g) Wade's case, 5 Rep. 114. M M. 2. [not upon the same footing with the other, in many respects,] particularly with regard to the offence of coining, which, by 2 Will. IV. c. 34, is somewhat less penal in the case of copper than of gold or silver coin (k). Moreover payment in silver is only a legal tender up to a certain amount; it being provided by 56 Geo. III. c. 68, ss. 11, 12, that gold coin shall be the only legal tender, except as regards sums not exceeding 40s., which may be tendered in the silver coin. [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 (1), 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. if The denomination, or the value for which the coin is to pass current, is likewise in the breast of the sovereign; and, 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 (m), and called esterling or sterling metal; a name for which there are various reasons given (n), but none of them entirely satisfactory. And of this sterling or esterling (k) As to offences relating to the coin, vide post, bk. VI. c. VI. (7) 1 Hist. P. C. 191. (m) See 56 Geo. 3, c. 68; 12 & 13 Vict. c. 41. This standard has frequently varied, but is now thus settled. The pound troy of gold, consisting of twenty-two carats (or twenty-fourth parts), fine, and two of alloy, is divided into 46 sove reigns, or into 461. 14s. 6d. And the pound troy of silver, consisting of eleven ounces and two pennyweights pure, and eighteen pennyweights alloy, is divided into sixty-six shillings. Liverpool on Coins, p. 27; McCulloch's Dict. of Commerce, p. 314. (n) Spelm. Gloss. 203; Dufresne, III. 165. The most plausible opinion |
