Whether the king owns all property in the kingdom
But the king, is he not lord proprietor of the public revenue? We must treat this point in a more exactly manner than we did the former. In the first place, we must consider that the revenue of the public treasury is one thing, and the proper heritage of the prince another. The goods of the emperor, king, or prince are of a different nature than those of Antonius, Henry, or Phillip; those are properly the king's, which he enjoys as king, those are Antonius' his which he possesses, as in the right of Antonius, the former he received from the people, the latter from those of his blood, as inheritor to them.
This distinction is mentioned frequently in the books of the civil law, where there is a difference is always made between the heritage of the empire, and that of the emperor. That is, the treasury of Caesar is one thing, and the exchequer of the commonwealth another, and both the one and the other have their own procurers, there being different dispensers of the sacred and public distributions, and of the particular and private expenses, insomuch as he who as emperor is preferred before a private man in a grant by deed or charter, may also sometime as Antonius give place to a lower person.
In like manner in the empire of Germany, the revenue of Ferdinand of Austria is one thing, and the revenue of the Emperor Ferdinand is another: the empire and the emperor each have their own treasures, as there is a also a difference between the inheritances which the princes derive from the houses of their ancestors, and those which are connected with being a ruler. Even among the Turks, Selimus, his gardens and inherited lands, are distinguished from those of the public, the one serving for the provision of the Sultan's table, the other used only for the Turkish affairs of state. There is, notwithstanding, kingdoms as the French and English, and others in which the king has no particular heritage, but only the public which he has received from the people -- there this former distinction has no place. For the goods which belong to the prince as a private person there is no question; he is absolute owner of them as other particular persons are, and may by the civil law sell, engage, or dispose of them at his discretion. But for the goods of the kingdom, which in some places are commonly called the demesnes, the kings may not be considered, in any way whatsoever, absolute proprietors of them.
For what if a man, for the sake of the flock, have made you shepherd, does it follow that you have liberty to slay, shear, sell, and transport the sheep at your pleasure? Although the people have established you judge or governor of a city, or of some province, do you therefore have power to alienate, sell, or fritter away that city or province? And seeing that in alienating or passing away a province, the people also are sold, have they raised you to that authority to the end that you should separate them from the rest, or that you should prostitute and make them slaves to whom you please? Furthermore, I demand to know whether the royal dignity is an heritage, or an office? If it's an office, what community has it with any propriety? If it's an heritage, is it not such a one that at least the primary ownership remains still in the people who were the donors? Briefly, if the revenue of the exchequer, or the demesnes of the kingdom, is called the dowry of the commonwealth, and by good right, and such a dowry whose dismembering or wasting brings with it the ruin of the public state, the kingdom and the king, by what law shall it be lawful to alienate this dowry? Let the emperor Wencislaus be infatuated, the French King Charles the Sixth, lunatic, and give or sell the kingdom, or part of it, to the English, let Malcolm, King of the Scots, lavishly dissipate the demesnes and consume the public treasury, what follows from all this? Those who choose the king to withstand the invasions of foreign enemies, shall they through his madness and negligence be made the slaves of strangers? And those means and wealth, which would have secured them in the fruition of their own estates and fortunes, shall they, by the election of such a king, be exposed to the prey and rapine of all comers? And that which particular persons have saved from their own necessities, and from those under their tutorship and government (as it happened in Scotland) to endue the commonwealth with it, shall it be devoured by some panderer or broker, for unclean pleasures?
But if, as we have often said, that kings were established for the people's use, what shall that use be, if it be perverted into abuse? What good can so much mischief and inconvenience bring, what profit can come of such eminent and irreparable damages and dangers? If in seeking to purchase my own liberty and welfare, I sell myself into absolute slavery and willingly subject myself to another's yoke, and become a fettered slave to another man's unruly desires, therefore, as it is imprinted in all of us by nature, so also has it by a long custom been approved by all nations, that it is not lawful for the king by the counsel of his own fancy and pleasure, to diminish or waste the public revenue; and those who have run a contrary course, have even lost that happy name of a king, and stood branded with the infamous title of a tyrant.
I confess that when kings were instituted, there was of necessity means to be assigned for them, as well to maintain their royal dignity, as to furnish the expense of their retinue and officers. Civility, and the welfare of the public state, seem to require it, for it was the duty of a king to establish judges in all places, who should receive no presents, nor sell justice: and also to have power ready to assist the execution of their ordinances, and to secure the ways from dangers, that commerce might be open, and free, etc. If there were likelihood of wars, to fortify and put garrisons into the frontier places, and to hold an army in the field, and to keep his magazines well stored with ammunition. It is commonly said that peace cannot be well maintained without provision for wars, nor wars managed without men, nor men kept in discipline without pay, nor money got without subsidies and tributes.
To discharge therefore the burden of the state in time of peace was the demesne appointed, and in time of wars the tributes and imports, yet so as if any extraordinary necessity required it, money might be raised by subsidies or other fitting means. The main intention of these was ever the public utility, in so much as he who converts any of these public revenues to his own private purposes, much more he who misspends them in any unworthy or loose occasions, no way merits the name of a king, for the ruler, says the apostle Paul, is the minister of God for the good of the people; and for that cause is tribute paid to them.
This is the true original cause of the customs and taxes of the Romans, that those rich merchandises which were brought from the Indies, Arabia, Ethiopia, might be secured in their passage by land from thieves and robbers, and in their transportation by sea from pirates, insomuch as for their security, the commonwealth maintained a navy at sea. In this rank we must put the custom which was paid in the Red Sea, and other tolls of gates, bridges, and passages, for the securing of the great roadways (therefore called the Pretorian Consular, and the king's highways) from the spoil of thieves and free-booters. The repair and maintenance of bridges was referred to commissaries deputed by the king, as appears by the ordinance of Lewis the Courteous, concerning the twelve bridges over the river Seine, commanding also boats to be in readiness, to ferry over passengers, etc.
For the tax laid upon salt there was none in use in those times, the most of the salt-pits being enjoyed by private persons, because it seemed that that which nature out of her own bounty gave to men, ought no more to be enhanced by sale than either the light, the air, or the water. As a certain king called Lycurgus in the lesser Asia, began to lay some impositions upon the salt-pits there, nature, as it were, impatiently bearing such a restraint of her liberality, the springs are said to have dried up suddenly. Yet certain of the court would persuade us at this day (as Juvenal complained in his time) that the sea affords nothing of worth, or good, which falls not within the compass of the king's prerogative.
He who first brought this taxation into Rome, was the Censor Livius, who therefore gained the surname of Salter; neither was it done but in the commonwealth's extreme necessity. And in France King Philip the Long, for the same reason obtained of the estates the imposition upon salt for five years only. What turmoils and troubles it's continuance has bred, every man knows. To be brief, all tributes were imposed and continued for the provision of means and stipends for the men of war: so as to make a province stipendiary or tributary, was esteemed the same with military.
Solomon exacted tributes to fortify the towns, and to erect and furnish a public storehouse. When it was accomplished, the people naturally required of Rehoboam to be freed from that burden. The Turks call the tribute of the provinces, the sacred blood of the people, and account it a most wicked crime to employ it in anything but the defence of the people. Therefore, by the same reason, all that which the king conquers in war belongs to the people, and not to the king, because the people bore the charges of the war, as that which is gained by a factor accrues to the account of his master. Yea, and what advantage he gains by marriage, if it belongs simply and absolutely to his wife, that is acquired also to the Kingdom, for so much as it is to be presumed that he gained not that preferment in marriage in quality of Philip or Charles, but as he was king. On the contrary, in like manner, the queens have interest of endowment in the estates which their husbands gained and enjoyed before they attained the crown, and have no title to that which is gotten after they are created kings, because that is judged to be belonging to the common purse, and has no proper reference to the king's private estate, which was so determined in France, between Philip of Valoys, and his wife Jean of Burgundy. But to the end that there be no money drawn from the people to be employed in private designs, and for particular ends and purposes, the emperor swears not to impose any taxes or tributes whatsoever, but by the authority of the estates of the empire. The kings of Poland, Hungary, and Denmark make similiar promises. The English in like manner enjoy the same to this day, by the laws of Henry the Third, and Edward the First.
The French kings in former times imposed no taxes but in the assemblies, and with the consent of the three estates. From there came the law of Philip of Valoys, that the people should not have any tribute laid on them but in urgent necessity, and with the consent of the estates. Even in old times, after these monies were collected, they were locked in coffers through every diocese and recommended to the special care of selected men (who are the same who at this day are called esleus), to the end that they should pay the soldiers enrolled within the towns of their dioceses: the which was in use in other countries, as namely in Flanders and other neighbouring provinces. At this day, though many corruptions have crept in, yet without the consent and confirmation of the parliament, no exactions may be collected; notwithstanding, there be some provinces which are not bound to anything without the approbation of the estates of the country, as Languedoke, Brittany, Province, Daulphiny, and some others. Finally, all the provinces of the low countries have the same privileges, lest the exchequer devour all, like the spleen which exhales the spirits from the other members of the body. In all places they have confined the exchequer within its proper bounds and limits.
Seeing then it is most certain that what has been ordinarily and extraordinarily assigned to kings, that is, tributes, taxes, and all the demesnes which encompasses all customs, both importations and exportations, forfeitures, amercements, royal escheats, confiscations, and other dues of the same nature, were consigned into their hands for the maintenance and defence of the people and the state of the kingdom, insomuch as if the sinews be cut, the people must fall to decay, and in demolishing these foundations, the kingdom will come to utter ruin. It necessarily follows, that he who lays impositions on the people only to oppress them, and by the public detriment seeks private profit, and with their own sword kills his subjects, he truly is unworthy the name of a king. Whereas contrarily, a true king, if he is a careful manager of the public affairs, so is he a ready protector of the common welfare, and not a lord in propriety of the commonwealth, having as little authority to sell or waste the demesnes or public revenue, as the kingdom itself. And if he misgovern the state, seeing it imports the Commonwealth that every one make use of his own talent, it is much more requisite for the public good, that he who has the managing of it, carry himself as he ought.
And therefore, if a prodigal lord, by the authority of justice, be committed to the custodyof his kinsmen and friends, and compelled to allow his revenues and means to be ordered and disposed of by others; by much more reason may those who have interest in the affairs of state (and whose duty obliges them to have one), take all the administration and government of the state out of the hands of him who either negligently executes his duties, or ruins the commonwealth, if after admonition he endeavours not to perform his duty. And for so much as it is easily to be proved, without searching into those elder times, that in all lawful dominions the king cannot be held lord in propriety of the demesnes; whereof we have an apt representation in the person of Ephron king of the Hittites, who dare not sell the field to Abraham without the consent of the people. This right is at this day practiced in public states: the emperor of Germany, before his coronation, solemnly swears that he will neither alienate, dismember, nor engage any of the rights or members of the empire. And, if he recover, or conquer anything with the arms and means of the public, it shall be gained to the empire, and not to himself. This is why, when Charles the Fourth promised each of the electors a hundred thousand crowns to choose his son Wencislaus emperor, and, having not ready money to deliver them, he mortgaged customs, taxes, tributes, and certain towns to them, which were the proper appurtenances of the empire, there followed much and vehement protest, most men holding this engagement void. And questionless it had been so declared, but for the profit that those reaped thereby, who ought principally to have maintained and held entire the rights and dignities of the empire. And it followed also, that Wencislaus was justly held incapable of the government of the empire, chiefly because he permitted the rights of the empire over the duchy of Milan to be wrested from him.
There is a very ancient law in the kingdom of Poland which prohibits the alienating of any of the kingdom's lands, which was renewed by King Lewis in the year 1375. In Hungary in A.D. 1221 there was a complaint made to Pope Honorius, that King Andrew had engaged the crown lands contrary to his oath. In England was the same by the law of King Edward in the year 1298. Likewise in Spain by the ordinance made under Alphonsus, and renewed in the year 1560, in the assembly of the estates at Toledo. These laws were then ratified, although it was a long time before custom had obtained the vigor and effect of law.
Now, for the kingdom of France where I longer confine myself, because she may in a sort pass as a pattern to the rest, this right has ever remained there inviolable. It is one of the most ancient laws of the kingdom, and a right born with the kingdom itself, that the demesne may not be alienated, which in A.D. 1566 (although but ill-deserved) was renewed. There are only two cases excepted, the portions or appanages of the children and brothers of the king, yet with this reservation, that the right of vassalage remains always to the crown in like manner if the condition of war require necessarily an alienation, yet it must be ever with power of redemption. Anciently neither the one nor the other were of validity, but by the commandment of the states: at this day since the parliament has been made stationary, the parliament of Paris which is the court of the peers, and the chamber of accounts, and of the treasury, must first approve it: as the edicts of Charles the Sixth and Ninth do testify. This is a thing so certain, that if the ancient kings themselves would endow a church (although that was a work much favored in those days), they were, notwithstanding, bound to have an allowance of the estates: witness King Childebert, who might not endow the Abbey of Saint Vincent at Paris before he had the French and Neustrians' consent. Clovis the Second, and other kings have observed the same. They might neither remit the regalities by granting enfranchisements, nor the nomination of prelates to any church. And if any of them have done it, as Lewis the Second, Philip the Fourth, and Philip surnamed Augustus, did in favor of the churches of Senis Auxera, and Nevers, the parliament declared it void. When the king is anointed at Rheims, he swears to observe this law: and if he infringe it, that act has as much validity with it as if he contracted to sell the empires of the Great Turk, or Sophia of Persia. From this spring the constitutions or ordinances of Philip the Sixth, of John the Second, of Charles Fifth, Sixth, and Eighth, by which they revoke all alienations made by their predecessors.
In the assembly of the estates at Tours, where King Charles the Eighth was in person, various alienations made by Lewis the Second were repealed and voided, and there was taken away from the heirs of Tancred of Chastel his great minion, various places which he had given him by his proper authority. This was finally ratified in the last assembly of the estates held at Orleans. Thus much concerning the kingdom's demesne. But to the end that we may yet more clearly perceive that the kingdom is preferred before the king, and that he cannot by his own proper authority diminish the majesty he has received from the people, nor enfranchise or release from his dominion any one of his subjects; nor quit or relinquish the sovereignty of the least part of his kingdom. Charlemagne in former times endeavored to subject the kingdom of France to the German empire, which the French did courageously oppose by the mouth of a prince of Glascony; and if Charlemagne had proceeded in that business, there would have been war. In like manner, when any portion of the kingdom was granted to the English, the sovereignty was almost always reserved. And if sometimes they obtained it by force, as at the treaty of Bretigny, by the which King John quitted the sovereignty of Glascony and Poytou, that agreement was not kept, neither was he more bound to do it, than a tutor or guardian is being prisoner (as he was then), which for his own deliverance should engage the estate of his pupils.
By the power of the same law the parliament of Paris made void the treaty of Conflans, by which Duke Charles of Burgundy had drawn from the king Amiens and other towns of Picardy. In our days, the same parliament declared void the agreement made at Madrid, between Francis the First, then prisoner, and Charles the Fifth, concerning the Duchy of Burgundy. But the domain made by Charles the Sixth to Henry King of England, of the kingdom of France, after his decease, is a sufficient testimony for this matter, and of his madness, if there had been no other proof. But to leave off producing any further testimonies, examples, or reasons, by what right can the king give or sell away the kingdom, or any part of it: seeing it consists of people, and not of earth or walls? And freemen can't be sold, nor trafficked; even the patrons themselves cannot compel the enfranchised servants to make their habitations in places other than they like. Particularlly so in that subjects are neither slaves nor enfranchised servants, but brothers: and not only the king's brethren taken one by one, but also considered in one body, they ought to be esteemed absolute lords and owners of the kingdom.
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