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“throughout the land, as well without the staple as within, and that " woollens, and all manner of avoirdupois, shall be weighed by ba"lances," &c.
In these two statutes, the term avoirdupois manifestly refers, not to the weight, but to the article weighed. It means all weighable articles, in contradistinction to articles sold by measure or by tale; and the one weight, meant by the statute staple, is the easterling pound of fifteen ounces, mentioned in the statute of weights and measures of 1504. Money and bullion were not included among these weighable articles, because they had a special weight of their own, and because money was current by tale. Grain and liquids were not weighable articles, because they were bought and sold by measure. Hence arose naturally the practice of calling all articles bought and sold by weight in the traffic of these merchant strangers, articles having weight, or weighable.
2'hat this is the meaning of the term avoirdupois is also demonstrated by an act of 1429, (8 Henry VI. ch. 5.) which reciting these regulations of Edward the Third, expressly says, that they require woollens, and all manner of weighable things, (toutz manerz des choses poisablez] bought or sold, to be weighed by even balance, with weights sealed according to the standard of the exchequer.
The terms avoirdupois, and choses poisablez, were therefore sy. nonymous. But the merchant strangers had a weight of their own; the corresponding commercial weight proportional to their pound troy. This was the weight now called the avoirdupois pound, of sixteen ounces, but the ounce of which was not the same as that of the troy weight. The standard easterling pound of fifteen ounces at the exchequer weighed 6750 grains troy. The avoirdupois pound of the merchant strangers weighed 7000. The difference between them was but of about balf an ounce, and one sees instantly what tempta. tions and opportunities this slight difference furnished to those unprincipled merchants of whom the statute staple complains, of buying by their own foreign larger weight, and selling by the weight of the exchequer.
The statute staple of 1353, and the act of 2 Henry VI., 1423, are both evidences of the conflict between the mint and exchequer easterling pounds on one side, and the troy and avoirdupois weights of the merchant strangers on the other. In this struggle, the latter ultimately prevailed, and completely rooted out the old English weights. The troy weight, being adopted by Henry the Seventh, in 1496, for the composition of the bushel and gallon, and by Henry the Eighth in 1527 for making money at the mint, the avoirdupois pound came in as the corresponding commercial pound; and a statute of 24 Henry VIII., ch. 3, 1532, directs, that beef, pork, mutton, and veal, shall be sold by weight, called haverdupois; the very use of which expression, called haverdupois, indicates that it was a denomination, as applied to the weight, of recent origin, and that the weight itself had not been long in general use for any purpose.
A statute of the preceding year, 23 Henry VIII., ch. 4, 1531, s. 13, had directed, that every cooper should make every barrel for ale “ according to the assize specified in the treatise called Compositio Men“ surarum ; (the statute of 1304] that is to say, every barrel for ale, “shall contain thirty-two gallons of the said assize, or above, of the “ which eight gallons make the common bushel to be used in this “ realm of England," &c.
By this statute, the ale gallon was expressly declared to be the eighth part of the measure of the bushel. Now, it has been proved, that, by the Compositio Mensurarum, the bushel was a measure containing of wheat the weight of eight gallons of wine. The eighth part of this measure, therefore, being the ale gallon, must bear the same proportion to the wine gallon, as the specific gravity of wheat bears to that of wine; and the wine gallon of 231 inches having been made by the rule of the Compositio Mensurarum, but by the troy weight of the statute of 1496, that is to say, weighing eight troy pounds of the wheat thirty-two kernels of wbich were equiponderant to the penny sterling of 1266, the bushel, to balance eight such gallons of wine, must of necessity contain sixty-four avoirdupois pounds of wheat, and measure 2256 cubic inches. The eighth part of this measure is the gallon of 282 inches, which is to this day the standard ale and beer gallon of the British exchequer, and of these United States.
And thus we have seen that all the varieties of standard gallons and bushels, which have been found, from the Irish gallon of 217.6 cubic inches, to the ale gallon of 282, and from the ordained, but never made, bushel of 1792 inches, prescribed by Henry the Seventh's act of 1496, to the bushel of 2256 inches, of which the ale gallon is the eighth part, are distinctly traceable to the inconsistency of human laws, and the consistency of the laws of nature.
The statute of 1496 changed the contents of both the gallons, and of the bushel, without intending it. For, although the bushel of 1792 inches was never made, or at least never deposited as a standard at the exchequer, yet new standard bushels were made from the new wine gallon, by the rule of the Compositio Mensurarum, and they produced the bushel of 2224 of Henry the Seventh, still extant at the exchequer.
The Winchester bushel of the exchequer, however, was not thus · made. It was found in the year 1696 to contain 2145.6 cubic inches. of spring water. Its ale gallon, therefore, by the statute of 1531, and the Compositio Mensurarum, would have been of 268.2, and its wine gallon of 219.2 cubic inches. Its difference from the proportions of the Irish wine gallon, and the Rumford corn gallon, is so slight, that there can be no doubt it was copied from a model made by the statute of 1266.
That the capacity of the wine gallon, although it was very essentially changed, was not intended or understood to be changed by the statute of 1496, is proved by the statute of 28 Henry VIII. ch. 14, 1536; which re-enacts the old statutes requiring that the tun of wino
should contain 252 gallons, and all other casks of the same proportion, including the hogshead of sixty-three gallons. Now, the hogshead which contained sixty-three gallons of 217.6 cubic inches, could contain no more than sixty-one and a quarter gallons of 224 inches, nor more than fifty-nine and one third gallons of 231 inches. The ordinary Bordeaux hogshead contains from fifty-nine to sixty gallons : and the size of this cask, being formed of a certain number of staves of settled dimensions, and made by the coopers in particular forms, has passed down, from age to age, without alteration; while the laws of England, and those of several of the United States, have required that it should contain sixty-three gallons of 231 cubic inches, because, five bundred years ago, the laws required it to contain sixtythree gallons of 219.5 inches.
In the reign of Elizabeth, the change, which had been effected in the wine gallon by the act of 1496, was discovered in its effects upon another branch of trade; but the cause of the change appears not to have been perceived. The statute of 13 Elizabeth, ch. 11, (1570,) recites, that the people employed in the herring fishery “ had, time “ out of mind, used to pack their herring in barrels containing about “thirty-two gallons of usual wine measure, which assize had always
becen gauged and allowed in the city of London, yet the measure " had lately been quarrelled at by certain informers, for not contain“ ing thirty-two gallons by the old measure of standard, which they so never did, though peradventure the extremity of old statutes in words, " by some men's construction, might be stretched to require so much." It then enacts, " that thirty-two gallons wine measure, wbich is about “ twenty eight gallons by old standard, shall be the lawful assize of « herring barrels, any old statute to the contrary notwithstanding." This was cutting the Gordian knot. The wine gallon here referred to was the gallon of 231 inches, made by the troy weight wheat of Henry the Seventh. The old standard is the corn gallon of 1266, which, according to the Rumford quart examined by the committee of the House of Commons in 1758, was of 264.8, or, according to the Rumford gallon, was of 266.25 cubic inches. Now twenty-eight gal. lons of 264 inches are of precisely the same capacity as thirty-two gallons of 231. But, as the wine gallon at Guildhall, though it showed 231 inches by the gauge, did, in fact, contain seven inches less, and as the herring barrels were gauged according to the Guildhall gallon, they would have fallen short nearly one gallon in the barrel of twenty-eight gallons by the old standard: and the act, the ob. ject of which was to rescue the herring fishers from the fangs of informers, is cautious not to tie them down to too close a measure. The old statutes, the construction of which the act professes to consider as doubtful, are not named; but the act of 23 Henry VIII., 1531, must have been that upon which the informers had quarrolled at the assize of the barrels used by the berring fishers.
That act requires that the coopers should make barrels of thirtytwo gallons for ale, according to the assize of the Compositio Mensurarum-gallons, eight of which make the common bushel. Now, the act of 1496 had expressly directed that every gallon should contain eight pounds of wheat troy weight, and that the bushel should contain eight such gallons of wheat. But this law, so far as it prescribed a new bushel, had never been executed: the old standard bushels remained. So that the statute for the coopers of 1531 was on the side of the informers, and the statute of weights and measures of 1496 was on the side of the herring fishers. Parliament found no expedient for the difficulty but to declare the usual existing size of the herring barrels lawful, and to set all the old statutes aside, with a non obstante.
If the parliament of 1496, contrary to their avowed intention, did actually change the capacity of the wine and corn gallons, and did ordain a much greater change of the capacity of the bushel, these varieties, effected by the law, while they were unknown to the legislators, were still less likely to come to the general knowledge of the people. The eagle eyes of informers would occasionally discover that the measures of the people fell short of the standards of the law: but the people took the standards as they came, and used the measures which they and their fore-fathers, time out of mind, had employed.
The Restoration of 1660, after the convulsions of a civil war, formed a new æra, not only in the political history of England, but in that of their vessels of capacity. It was then that a new system of taxation commenced by the excise upon liquors. About the same time, also, commenced a new æra in the philosophical and scientific pursuits of the English nation, by the establishment of the Royal Society. Both these events were destined to have an important influence upon the history of English weights and measures. · The excise was a duty levied, by the gallon, upon malt liquors, and upon wines. The malt liquors were measured by the standard gallon at the treasury, made according to the cooperage act of 1531, by the rule of the Compositio Mensurarum, applied to the troy weight wine gallon of the statute of 1496. This gallon, therefore, was neither the wine gallon of 1496, nor the eighth part of the old standard bushel, nor of the Winchester bushel, but the gallon which, if filled with wheat of the troy weight specified in the statute of 1496, would balance the wine gallon of 231 inches; it was, therefore, a gallon of 282 cubic inches. The wine was measured by the gauge of the wine gallon at Guildhall.
Taxation and philosophy now began to speculate, at the same time, upon the weights and measures of England. In 1685, the weight of a cubic foot of spring water was found, by an experiment made at Oxford, to be precisely 1,000 ounces avoirdupois; and, in 1696, the Winchester bushel was found to be of 2145.6 cubic inches, and to contain, also, 1,000 ounces avoirdupois weight of wheat. Yet so totally lost were all the traces of the old easterling pounds of twelve and fifteen ounces, that this coincidence between the cubic foot of water, and the 1,000 ounces avoirdupois, gave an erroneous direction to further inquiry; for the real original connection between the cubic foot
and the English bushel was not formed by avoirdupois weights and water, but by the easterling pound of twelve and fifteen ounces and Gascoign wine. It was the principle of the quadrantal and congius of the Romans, applied to the foot and the nummulary pound of the Greeks; the measure which, by containing eight pounds of wheat, was intended to contain, at the same time, ten of the same pounds of wine.
In the year 1688, the commissioners of the excise instituted an inqairy why beer and ale were always gauged at 282 cubical inches for the gallon, and other exciseable liquors by the wine gallon of 251 inches. They addressed a memorial to the Lords of the Treasury, stating these facts, and that, being informed the true standard wine gallon ought to contain only 224 cabical inches, they had applied to the Auditor and Chamberlains of the Exchequer, who, upon examination of the standard measures in their custody, had found three standard gallons, one of Henry the Seventh, and two of 1601, which an able artist employed by them had found to contain each 272 cubical inches; that, finding no wine gallon at the Exchequer, they had applied to the Guildhall of the city of London, where they were informed the true standard of the wine gallon was, and they had found, by the said artist, that the same contained 224 cubical inches only: and they added, that the gallons of other parts of the kingdom used for wine, had been made and taken from the Guildhall gallon. .
In consequence of this memorial, the Lords of the Treasury, the 21st May, 1688, directed an authority to be drawn for gauging according to the Guildhall gallon; which was accordingly done: but the authority does not appear to have been signed. The ale gallon at the Treasury was of 282 inches; but the order of the Lords of the Treasury for the benefit of the revenue would have reduced the gal. lon, both for malt liquors and wine, to the Guildhall gallon of 224. The merchants immediately took the alarm, and petitioned that they might be allowed to sell by the same gauge, of 224 inches to the gallon, by which they were to be required to pay the customs and excise, The commissioners of the customs not agreeing with those of the excise, on the proposal for a new gauge, the opinion of Sir Thomas Powis, the attorney general, was taken upon it, who advised against any departure from the usage of gauging, because the Guildhall gallon was not recognized as a legal standard, and because by any of those at the exchequer the king would be vastly a loser.
Sir Thomas Powis then refers to the old statutes, prescribing that eight pounds should make a gallon; and particularly to that of 1496, requiring that the eight pounds should be of wheat; and as there was to be one measure throughout the kingdom, which could not be, unless it was adjusted by some one thing, and that seemed to be intended wheat, therefore he did not know how 231 cubical inches came to be taken up, but did not think it safe to depart from the usage, and therefore the proposal was dropped.
Sir Thomas Powis's reasoning, upon the statute of 1496, was perfectly correct. That statute, as well as many others, does ordain one