(III.) The cus on imports or exports. III. Next in order are the customs, duties, toll, tribute, or tariff, levied upon merchandize exported and imported. (100) The considerations upon which this revenue (or the more ancient part of it, which arose only toms or duties from exports) was vested in the sovereign, are said to have been two(k); 1. Because he gave the subject leave to depart the kingdom, and to carry his goods along with him(7). 2. Because he was bound of common right to maintain and *keep up the ports and havens, and to [ *374] protect the merchants from pirates. Some have said that the duties in question were called customs, as being the inheritance of the crown by immemorial usage and the common law, and not granted to it by any statute(m); but sir Edward Coke has shown(n), that the king's first claim to them was by grant of parliament, 3 Edw. I., though the record thereof is not now extant. And indeed this is in express words confessed by statute 25 Edw. 1(0), c. 7, wherein the king promises to take no customs from merchants without the common assent of the realm, "saving to us and our heirs, the customs on wool, skins, and leather, formerly granted to us by the commonalty aforesaid." These were called the hereditary customs of the crown; and were due on the exportation only of the said three commodities, and of none other; which were styled the staple commodities of the kingdom, because they were obliged to be brought to those ports where the king's staple was established, in order to be there first rated, and then exported(p). They were denominated in the barbarous Latin of our ancient records, custumæ (q); not consuetudines, which is the language of our law whenever it means merely usages. The duties on wool, sheep-skins, or woolfels, and leather, exported, were called custuma antiqua sive magna, and were payable by every merchant, as well native as stranger; with this difference, that merchant-strangers were required to pay an additional toll, viz., half as much again as was paid by natives. The custuma parva et nova was an impost of 3d. in the pound, due *from merchant-strangers [ *375] only, for all commodities as well imported as exported; which was usually called the alien's duty, and was first granted in 31 Edw. I.(r), though abolished by the statute 24 Geo. 3, sess. 2, c. 16. But these ancient hereditary customs, especially those on wool and woolfels, were of little account, when the nation had become sensible of the advantages of home manufacture, and had prohibited the exportation of wool by statute 11 Edw. 3, c. 1(s). This prohibition modified and enforced by many succeeding statutes, continued till a comparatively recent period; and in the earlier part of this century, heavy duties were laid on the importation of wool, but now all these duties are repealed, and the trade is perfectly free both for exports and imports(s). logy to the word coust, which signifies price, (100) By act of July 14, 1870, ch. 255, § 6, 16 Stat. at Large, 257, the income tax provided for in the statutes cited in note 99, was repealed, to take effect at the end of the year 1871. lerage. There was also another very ancient hereditary duty belonging to the crown, called the prisage, or butlerage of wines; which is considerably older than the Prisage or but- customs, being taken notice of in the great roll of the exchequer, 8 Richard 1, still extant(t). Prisage was a right of taking two tons of wine from every ship (English or foreign) importing into England twenty tons or more, one before and one behind the mast; which by charter of Edward I. was exchanged into a duty of 2s. for every ton imported by merchant-strangers, and called butlerage, because paid to the king's butler(u). Other customs payable upon exports and imports were distinguished into subsidies, tonnage, poundage, &c. Subsidies were such as were imposed by parliament upon any of the staple commodities before mentioned, over and above the custuma antiqua et magna: tonnage was a duty upon all wines imported, over and above the prisage and *butlerage aforesaid; poundage was a [*376] duty imposed ad valorem, at the rate of 12d. in the pound, on all other merchandize whatsoever; and the other imposts were such as were occasionally laid on by parliament, as circumstances and times required(.). These distinctions are now almost forgotten, the produce of all duties on imports being blended together, under the one denomination of the customs. Tonnage and poundage. By these we understand, at present, a duty or subsidy paid by the merchant, at the quay, upon all imported as well as exported commodities, by the authority of parliament; unless where, for particular national reasons, certain rewards, bounties, or drawbacks are allowed in respect of certain exports and imports. The dues of tonnage and poundage, in particular, were at first granted, as the old statutes (and especially 1 Eliz. c. 20), express it, for the defence of the realm, and the keeping and safeguard of the seas, and for "the intercourse of merchandize" safely to come into and pass out of the same. They were at first usually granted only for a stated term of years, as for two years in 5 Ric. II.(y); but in Henry VI.'s time, they were granted him for life by a statute in the thirty-first year of his reign(2), and again to Edward IV., for the term of his life also(a); since which time they were regularly granted to all his successors for life, sometimes at the first, sometimes at a subsequent parliament, until the reign of Charles I.; when as lord Clarendon expresses it(b), his ministers were not sufficiently solicitous for a renewal of this legal grant. And yet these imposts were imprudently and unconstitutionally levied and taken, without consent of parliament, for fifteen years together, which was one of the causes of those unhapy discontents, justifiable in too many instances, but which at last caused civil war(c), though in this par[ *377] ticular case the king (previous to the commencement of hostilities) gave the nation satisfaction for the errors of his former conduct, by passing an act (d), whereby he renounced all power in the crown of levying the duty of tonnage and poundage, without the express consent of parliament; and also all power of imposition upon any merchandizes whatever. Upon the Restoration this duty was granted to king Charles II. for life, and so it was to his two immediate successors; but afterwards by three several statutes, 9 Ann. c. 6, 1 Geo. 1, c. 12, and 3 Geo. 1, c. 7, it was made perpetual, and mortgaged for the debt of the public. The customs thus imposed by parliament were chiefly contained in two books of rates, set forth by parliamentary authority(e); one signed by sir Harbottle Grimston, speaker of the house of commons in Charles II.'s time, and the other an additional one signed by sir Spencer Compton, speaker in the reign of George I., to which also subsequent additions were made. Until the year 1787, great confusion and perplexity prevailed in the law relating to the customs. Besides the duties enumerated in the above two books of rates, various others had been imposed from time to time, and the accumulation of these duties became at length a great embarrassment to commerce, as the merchant found considerable difficulty in ascertaining the amount to which he was liable. Under the first Customs Consolidation Act(ƒ) the collection of the customs was in some degree improved by abolishing all the duties then subsisting, and declaring the above-mentioned two books of rates to be of no authority, and substituting in their stead one single duty on each article, amounting as nearly as possible to the aggregate of all the various duties then [ *378] *payable thereupon; when any duty consisted of a fractional sum, the nearest integral number being charged. A sytematic and uniform simplicity was, at the same time, introduced into the custom-house accounts, by which a more distinct view has been obtained both of the total amount of this important branch of the revenue and of the various sources from which it is derived. The act referred to regulated the customs until 1826, when all prior enactments were repealed, and the customs acts consolidated. This operation was repeated in the reign of William IV., and again by various acts in the present reign. The effect of the present legislation has been to repeal the majority of the duties formerly charged and to confine the customs to comparatively few articles, the principal of which are wines, spirits, tea, coffee, sugar, and tobacco. Aliens were formerly compelled to pay heavier duties than natural born subjects, to be exempted from which was one of the principal causes of the frequent applications to parliament for acts of naturalization; but by 24 Geo. 3, sess. 2, c. 16, all previously existing duties on the goods of aliens above those paid by natural born subjects were repealed (with the exception of the duties of package and scavage(g) payable in the City of London), the preamble of the act reciting that such duties had "become an unnecessary burden upon commerce without producing any real advantage to the public revenue." In 1833 the duties of package and scavage were purchased from the civic corporaration by the government, and, the duties themselves being, at the same time, abolished (h), aliens are now called upon to pay no more than other persons. These customs are then, we see, a tax immediately paid by the merchant, although ultimately by the consumer. And yet these are the duties felt least by the people; *and, if prudently managed, the people hardly consider [ *379] that they pay them at all. For the merchant is easy, being sensible he does not pay them for himself; and the consumer, who really pays them, confounds them with the price of the commodity; in the same manner, as Tacitus observes, that the emperor Nero gained the reputation of abolishing the tax on the sale of slaves, though he only transferred it from the buyer to the seller: so that it was, as he expresses it, "remissum magis specie, quam vi; quia cum (e) Stat. 12 Car. 2, c. 4; 11 Geo. 1, c. 7. (g) As to which, see the stats. 19 Hen, 7, c. (f) 27 Geo. 3, c. 13. 8; 22 Hen. 8, c. 8. (h) 3 & 4 Will. 4, c. 66. venditor pendere juberetur, in partem pretii emptoribus accrescebat"(i). But this inconvenience attends on the imposing of custom duties, that the imposts levied, if too heavy, are a check and cramp upon trade: and especially when the value of the commodity bears little or no proportion to the quantity of the duty imposed. This gives rise also to smuggling, which then becomes a very lucrative employment: and its natural and most reasonable punishment, viz., confiscation of the commodity, is in such cases quite ineffectual; the intrinsic value of the goods, which is all that the smuggler has paid, and therefore all that he can lose, being very inconsiderable when compared with his prospect of advantage in evading the duty. Recourse must therefore be had to extraordinary punishments to prevent it(k), which, besides other objections to them are apt to confound men's notions of right and wrong by visiting breaches of mere fiscal regulations, with penalties as severe as those inflicted for crimes of violence. There is also another ill consequence attending high imposts on merchandize, not frequently considered, but indisputably certain; that the earlier any tax is laid on a commodity the heavier it falls upon the consumer in the end; for every trader through whose hands it passes must have a profit, not only upon the raw material, and his own labour and time in preparing it, but also upon the *very tax itself, which he advances to the government; otherwise he [ *380] loses the use and interest of the money which he so advances. For instance, when there was an impost on foreign paper, the merchant paid a duty upon importation, which he did not receive again till he sold the commodity, perhaps at the end of three months. He was therefore equally entitled to a profit upon that duty which he paid at the custom house, as to a profit upon the original price which he paid to the manufacturer abroad: and considered it accordingly in the price he demanded of the stationer. When the stationer sold it again, he required a profit from the printer or bookseller upon the whole sum advanced by him to the merchant; and the bookseller did not forget to charge the full proportion to the student or ultimate consumer, who therefore not only paid the original duty, but the profits of these three intermediate traders, who had successively advanced it for him. This, which might be carried much farther in any mechanical or more complicated branch of trade, was a very serious inconvenience, but it has been much diminished by the introduction of the warehousing system, a great and important improvement in our commercial law. Previously to 1803, the duties on most goods imported were either paid at the moment of their importation, or a bond, with sufficient security for their future payment, was given to the revenue officers. The hardships and inconveniences of such a system are numerous and obvious(). Sir Robert Walpole seems to have been one of the first who had a clear perception of its injurious influence, and one object of that minister's famous excise scheme, proposed in 1733, was to oblige the importers of tobacco and wine to deposit their importations in public warehouses, relieving them, however, from the necessity of paying the duties chargeable on the importations till they *were withdrawn for home consumption (m). Sir Robert's [*381] proposed scheme, however, was met by violent popular clamour, and was therefore unavoidably dropped. However, fifty years afterwards, by 43 Geo. 3, c. (Hist. 1. 13. (k) Montesq. Sp. L. b. 13, c. 8. (4) M'Culloch's Com. Dict., art. Warehousing System. (m) 2 Mahon's Hist. 161, 162. Gent. Mag. 1733, 561, 574, 622-624. 132, the provisions of which were improved, and extended by subsequent statutes(n), the commissioners of customs were empowered, under the authority and direction of the lords of the treasury, to nominate the ports at which goods may be warehoused without payment of duty, and the warehouses in which particular descriptions of goods may be deposited. There are various regulations respecting the time during which goods are allowed to remain in the warehouse; their removal from port to port, their sale and stowage in the warehouses, the remission of the duties in case of loss by accident, the allowances for waste, &c. If imported goods be exported from the warehouse, without being taken out of bond, no duty is payable upon them. duties. IV. Directly opposite in its nature to the foregoing is the excise duty, which is an inland imposition, paid sometimes upon the consumption of a commodity, (IV.) The excise or frequently upon the retail sale of it, which is the last stage before the consumption. (101) This is doubtless, impartially speaking, the most economical way of taxing the subject; the charges of levying, collecting, and managing the excise duties being considerably less in proportion than in other branches of the revenue. It also renders the commodity cheaper to the consumer than charging it with customs to the same amount would do; for the reason just now given, because generally paid in a much later stage of it. But, at the same time, the rigour and arbitrary proceedings of excise laws seem hardly compatible with the temper of a free nation. For the frauds that might be *committed in this branch of the revenue, unless [ *382] a strict watch is kept, make it necessary, wherever it is established, to give the officers a power of entering and searching the houses of such as deal in or manufacture excisable commodities, at any hour of the day, and, in some cases, of the night likewise. And the proceedings in case of transgressions are often summary, and in some instances held before the commissioners of excise themselves, instead of a legal tribunal (o). For which reason, though lord Clarendon tells us(p), that to his knowledge the earl of Bedford (who was made lord treasurer by king Charles I., to oblige his parliament) intended to have set up the excise in England, yet it never made a part of that unfortunate prince's revenue; being first introduced on the model of the Dutch prototype, by the parliament itself after its rupture with the crown. Yet such was the opinion of its general unpopularity, that when in 1642 aspersions were cast by malignant persons upon the house of commons, that they intended to introduce excises, the house for its vindication therein did declare, that these (n) 16 & 17 Vict. c. 107; 18 & 19 Vict. c., 96; 20 & 21 Vict. c. 62; 22 & 23 Vict. c. 37; 23 & 24 Vict. c. 36; 30 & 31 Vict. c. 82. (0) For the jurdisdiction of the commissioners and justices of the peace in cases of excise, see Burn's Justice, tit. Excise. The grievances of the excise perhaps exist more in apprehension than in reality, and the prejudice in the public mind, against the excise duties, seems to have been caused more by the regulations connected with their imposition, than by the oppressive extent to which they have sometimes been carried. The great objection to them has consisted in their obscurity and complexity. Being intended for the guidance of traders, they ought to be brief, clear, and level to the apprehension of every one; but instead of this, they were lengthy, contradictory, and unintelligible; they have, however, been simplified in modern times. For the more easily levying the revenue of excise, England and Wales are divided into about sixty-one collections, some of which are called by the names of particular counties, others by the names of great towns, Every such collection is subdivided into several districts, in each of which there is a supervisor; and each district is again subdivided into out-rides and foot-walks, within each of which there is a surveying officer. (p) Hist. b. 3, vol. i. p. 446, Ox. ed. 1826. (101) The statutes cited in note 99, relating to excise duties, are still in force. |