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IF any man be so straitly minded, that he thinketh this prerogatiue to be too large and ample for an absolute Mo∣narche: let him think there withall that
himselfe is so base minded, that he cannot suffici∣ently iudge of the great worth and demerit of so high an estate: for the name of a king importeth so great paines and charge, that a kingdome see∣meth not to be a sufficient or counteruailable re∣compence: For Themistocles his choise must ei∣ther be verie reasonable, or exceeding despe∣rate, when he accompted it better to sinke into his graue, then to ascende to a throan: Wherfore not doubting of the great charge of it, let vs examin the continuall custome of Nations in the execu∣ting of this power. S. Lewis the French king, fa∣mous in that nation for integritie, & iustice, doub∣ted not by publike iudgement to prescribe the farmes, lordships, and landes of Peter the Earle of Dreux: And so were the goods and possessions of Charles Duke of Burbon seised and forfeited c 1.1. And they haue a Law in Scotland, that the goodes of persons condemned shall go wholie to the Esche∣quer without any deduction or reprisall to wife, creditor, or children. The Romanes did allot their fines, penalties, and forfaitures to the sacrifice, and seruice of their Goddes, and therefore they were called Sacramenta d 1.2. But the Athenians did giue onely the tenth part of the goodes that were for∣feited to religious vses: as may appeare by the re∣cord of the condemnation of Archiptolemus and Antiphon, which runneth in these tearmes, Ar∣chiptolemus & Antiphon vndecim-uiris capitalibus ad extremum supplicium traditi: bona eorum publi∣cata,
decima Mineruae data, domus eorum solo aequatae: And although Iustinian the Emperour did vpon some scrupulous conceit abrogate the Law of gi∣uing the goods of condemned persons to the pub∣like treasury, and did therefore establish a Law, that they should remaine to their children f 1.3. Yet diuers held this Law to be new, & different from the course of auncient Law-makers: for euen in the most auncient times in case of high Treason in all common weales of the world, such forfei∣tures haue been admitted: for it was thought that the goodes of such persons condemned, were either by fraude, violence, or other corrupt cour∣ses wrested from the common weale: and there∣fore were to be restored to it againe: or els be∣cause such persons hauing offended against the common weale should satisfy it that way: & ther∣fore were such goodes conueyed away by Law from wife and children, because for the most part they were vniustly heaped together for the ad∣uancement of wife and children. But such prero∣gatiues haue been in auncient time so firmely an∣nexed to the Septer and estate roiall, that by the ciuill Law such things which are properly called iura maiestatis, by the common Law iura regalia, cannot be seuered from the regall dignity, & ther∣fore Baldus calleth them g sacra sacrorum, and Cy∣nus, indiuidua h, the inseparable incidents of a king∣dom: And by the ciuil Law such things can not be seuered from the princely Diadem, neither can
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any man prescribe in them i 1.4. And so it is said in our Law, that where the King hath any commo∣ditie in the right of his Crowne; as if he haue a Mine conteining in it gold or siluer, by the graunt of the land in which it is conteined, the Mine doth not passe, because he hath that by his prerogatiue royall, and they be two seuerall thinges and of di∣uers degrees k 1.5. And whereas the Priorie of Wen∣locke was one of the auncient Priories which were of the foundation of the Crowne, and the King graunted the said Priorie in ample words: yet the King onely did medle with the Mines of gold and siluer that were in it l 1.6: And by the graunt omnium & singularum Minerarum, these Mines shall not passe m 1.7. And though the king graunt to one the retourne of all maner of writtes, yet he shall not haue the retourne of the summons of the Eschequer, because that toucheth the Crowne, and is not betwixt partie and partie n 1.8. Neither by the Law of England can any man prescribe in such thinges: For it is said 1. H. 7. that no fraun∣chise may prescribe to hold plea of Treason; and whether the king may graunt any such libertie or no, the Iustices were in great doubt o 1.9. But 46. E. 3. it was held by Kniuet Iustice, that a man might claime a fraunchise of Infangtheefe, and Outfang∣theefe, and waife and straye by prescription; but he cannot haue the chattels of Fugitiues or Felons, vnlesse it be by especiall graunt, because that it belongeth vnto the King as to his Crowne, and
therefore can not passe from him, but by speci∣all graunt: p 1.10 and 21. H. 6. this diuersitie is taken: such thinges as accrue to the king by matter of re∣corde, as the fines, issues, and amerciamentes of courtes doe not lie in prescription: but in such things as belong to the crowne, & the title of thē doth not grow by matter of record, as waife, stray, wrecke of the sea, treasure founde, and the like a man may praescribe in, q 1.11 but as these are speciall prerogatiues which are graunted to a prince so they are graunted for speciall causes: by which princes must bee directed not by their owne vo∣luntary conceits or vnsatiable desires, least it hap∣pen that magna imperia, be magna latrocinia: for good gouernours will not imitate the lewd mo∣narches of nations, as Caligula, Nero, Caracalla, Ca∣rinus, Romaine Emperours, nor Seleucus, nor A∣lexander the great, or rather the proud, which did claime a generall and absolute power indefinite & illimitate ouer all mē, ouer all things, without dif∣ference or exception: which did thinke that they might giue lawes to others and not to bee bound by any; which pretended that there was but one law for all common weales, and that was to obey euerie thing which the king commaunded, and that that was iust in regard of the subiectes which was profitable to their ruler, like to that prince of pirats and robbers in Heliodorus, r 1.12 Si imperij lege v∣tendum fuisset, prorsus mihi velle suffecisset: Like to that saying of Iulius Caesar the vsurper. Sylla lite∣ras
nescijt qui dictaturam deposuit: mecum homi∣nes consideratius loqui debent, ac pro legibus habere quae dico: s 1.13 like to that of Iulianus though spiced with some sprinkle of mildnesse: Polliceor absque omni praerogatiua principum, qui quod dixerint, vel sensuerint pro potestate authoritatis iustum esse existi∣mant: t 1.14 or like to that sinister clause of the Popes insolent vanitie (de plenitudine potestatis,) the last of which wordes Baldus playing withall, put∣teth in steade of it tempestatis: u 1.15 yet I will easi∣lie graunt, that if any prince doe by sword and conquest subdue any countrie; as the whole countrey is gained and possessed by this exploit: so all the landes and goods of euery inhabitant in that countrey are his, vntill hee did giue them or restore them vnto the former owners: As by the lawe of this realme of England, if a man be attainted of felonie, and the Queene pardoneth him all fellonies, and executions, and doth like∣wise pardon and release all forfeitures of lands and tenements, and of goods and chattels, this pardon and this release cannot serue but onely for the life of the partie, if the office be found, for then the land is the Queenes by matter of recorde, and therefore there must bee expresse wordes of restitution: and as to the goodes, the Queene is entituled to them without office: x 1.16 so if it be found by office that I. N. the Queenes tenant was seised of certayne landes, and dyed seysed, and that W. his heyre intruded, and af∣ter
by acte of parliament the Queene pardoneth all intrusions, in this case the entrie and offence are pardoned and released, but not the issues, and profits: for the Queene was before entitled by matter of recorde a 1.17 for when any thing com∣meth to princely possession which did before belong to any inferior person, it cannot bee re∣stored to him without actuall donation. And Xenophon sayeth, that it hath beene a perpetuall lawe amongest all men, that all thinges taken by warre, whether they bee money, goods, or men, doe belong to them which tooke them: b 1.18 and Thucydides affirmeth the same to bee a common lawe to all nations: c 1.19 howbeit the Romanes rather by mercy then rigor of lawe were onely content with the tenth parte of the goods, and did remitte the residue to the con∣quered persons. d 1.20 And it hath alwaies beene ac∣compted the propertie of barbarous nations to haue no lawe written nor ratified by common consent, neither touching these rights nor pre∣rogatiues, nor other matters, but onely the vo∣luntarie conceite of the monarch, as Liuie hath iudiciously obserued: e 1.21 But Aristotle maketh one exception from the rule, and that is of the Spartan Kings, whome hee affirmeth to haue directed their actions by prescript of lawe: and Diodorus* 1.22 Siculus saith, that the Aegyptian kings did first be∣ginne to rule by a setled and determinate lawe, and that all other nations were gouerned by
the chaungeable wil of their soueraigne, g 1.23 and the Romanes did after refine themselues as appeareth by Plinie speaking to Traian; Te legibus subiecisti, legibus Caesar, quas nemo principi scripsit: And pre∣sently after he saith, Quod ego nunc primum audio, nunc primum dico: non est princeps supra leges, sed le∣ges supra principem. h 1.24 But to open and declare fur∣ther the soueraigne and ample authoritie of mo∣narches ouer the lands and goodes of their sub∣iects, though it haue beene in auncient times held and affirmed by the ciuill law, that such thinges as are parcell of the law of nations could not be ta∣ken away by the prince from his subiectes: and therefore they might not be depriued of their de∣mesnes or inheritance of lands, or of the property of their goods and chattels which they enioy by the law of nations: i 1.25 as I haue sufficiently shewed in my Direction to the study of the Law, Cap. 7. & 8. but onely of such thinges as belong to them by the Ciuill law: yet by the opinion of the later Ciuilians this is helde to bee no law, but that the Princes haue for speciall causes free disposall of their landes and goods as Decius fully proueth k 1.26, and this later opinion seemeth to bee more rea∣sonable, and more consonant to the truth: for first though the distinction of demesnes and the propertie of goods be parcel of the law of nations, yet the meanes wherby they are acquired are pre∣scribed by the ciuill and common lawe: so that they are not altogether parcell of the law of nati∣ons:
l 1.27 Againe the right of demesne and property is not alike in all nations, m 1.28 but is moderated, and ordered by the lawes of particular cōmon weales; But suppose that the king wil take away from any of his subiectes the right and power of vsing and pursuing an action for the recouery of their lands, goods, chattels, or dammages: Surely this is per∣mitted by no law, but by the ciuill n 1.29 and common law expressely prohibited: for the king cannot grant to any person that he shal not be impleaded or sued, in this or that action: & though his high∣nesse may graunt that I. S. for trespasses or any thing done wrongfully in his mannor of Dale shal hold conisance of pleas within the same man∣nor, yet in this case he doth not take away the ac∣tion of the partie, but doth onely restreine him to bring his actiō in a certain place: o 1.30 But here it may be obiected that a king or absolute monarch may* 1.31 without cause seise the lands & goods of his sub∣iects: for it is plaine that a king hath more power ouer his subiectes, then the father hath ouer his children: but by the ciuil law the father may take away the goods of his children when hee will: q 1.32 therefore the king may take away &c. To this rea∣son grounded vpon the ciuill lawe, I do thus an∣swere, that by the law of nations kinges haue not such an indefinite power ouer their subiects as fa∣thers by the ciuill law haue ouer their children: for by the law of nations kinges were chosen and ordeined at the first for the safegard and protecti∣on
of the lands goods & persons of their subiects, so that they may not without cause bereaue them of their goods, and therefore there is a good rule in the ciuill law that in priuatorum agris, nihil ne publico quidem consilio cum ipsorum iniuria capi ius est. r 1.33 And to that purpose Cicero speaketh well: Videndum erit ei qui rempub. administrabit, vt suum quisque teneat, neque de bonis priuatorum publice di∣minutio fiat: and for this cause God did appoint a certain portion of land to euery tribe of the Isra∣elites: s 1.34 and by reason of a priuate title Naboth would not sell, or chaunge his vineyard with A∣chab t 1.35 and in the inauguration of the king of Hun∣garie this was exacted of him by oath: vt iura regni integra conseruaret: u 1.36 And in the ciuill law it is said, Qui pleno iure Dominus est, alienandi, dissipan∣di disperdendi, ius habet: a 1.37 And againe, suae quisque rei arbiter, ac moderator est. b 1.38 So that it is euident that without cause, the propertie which subiectes haue in goodes and landes may not bee altered by their prince. And therefore wittily sayeth D. Gentilis, that they which argue to the contrarie do not dispute, or drawe their arguments ex castis fontibus Philosophiae, aut ex ipsis iurisprudentiae riuis, sed escholis sophistarum: hallucinati sunt Theologi, a∣dulati sunt iurisconsulti, qui omnia principibus lice∣re asceuerarunt: c 1.39 I would not be mistaken in this Chapter, sithence I hold an indifferent course be∣twixt prince and people: neither consenting to them which say, that princes may seise the lands
and goods of their subiects without cause, nor to them which thinke that they may not seyse their lands and goods for any cause: but my resolution is, and the summe of this discourse is, if it bee dili∣gently and impartially obserued, that princes may lawfully claime, and take to their owne vse the lands and goods of their subiects for the causes a∣bouesaid, and prescribed by lawe, and not other∣wise: and by this word (Princes) I meane none but absolute Monarches: for the law of nations alloweth this prerogatiue to none other. And therfore I do greatly like of that saying of Hipocra∣tes vrged in the ciuill law: Lex est rerum omnium domina, quia scilicet & ciuitatis cuiusque & ciuium singulorū patrimonium constituit, definit, tuetur: Lex sola dominiū rerum confert: sola dominij acquirendi modos constituit, citra quos acquiri nullius rei domini∣um potest. f 1.40 This foundation being laid, I hope my assertion may firmely stande that the law of Eng∣land in giuing to the Queene the lands and goods of subiects for some peculiar causes is iust and rea∣sonable: as when a true man is pursued as a felon, and he flieth, and waiueth his owne goods, these are forfeited as if they had beene goods stolne. g 1.41 And so if a man be outlawed of felony or treason, he shall forfeyt all the landes & tenements which he had at the time of the felony or treason cōmit∣ted, or at any time after, as well as if he had beene attainted by verdict: h 1.42 howsoeuer M. Parkins hol∣deth opinion that attaynder by outlawrie shall haue relation to the exigent, as to the landes
and tenements: so that a feoffement of land, or a graunt of rent made before the exigent awarded by him that is attainted in such manner is good in his conceit: but he saith that as to an attainder by verdict, that it shal haue relation to the time of the felony done, according to the supposall of the in∣ditement, as to lands and tenementes: and so it is of an attainder by confession: i 1.43 But M. Stam∣ford being better aduised saith, that as soone as a∣ny of the offences aforesaid are committed, hee is restrained to make a gift or any other alienation of his lande: and if he doe, it shall presently bee made void by his attainder, and it is not materiall whether the attainder be by outlawrie or verdict, and this is agreeable to the booke of 38. E. 3. fol. 37. k 1.44 but he saith that the forfeiture of the goods by attainder by outlawrie shall haue relation to the exigent, and forfeiture by attainder by verdict shall haue relation to the verdict. l 1.45
Bodi. lib. 5. de repub. c. 3.
Festus in verb. sacra∣ment.
Authent. bona damna∣to. de bonis d••mnator. C.
Bald. con. 174. lib. 3. et con. 193. eo.
10. Elizab. Com. Infor∣macion pur Mines 310. per Wray.
Fitz. Na. br. Corrod. 232.
Com. Inf. pur Mines ib.
22. E. 3. lib. Assis. pla. 49.
1. H. 7. 23.
46. E. 3. 16.
21. H. 6. praescript. 44.
Heliod. lib. 1. Aethiop. histor.
Sueton in Caesar.
Ammian Marcell. lib. 23.
Alciat. reg. 3. praes. 8. et ad L. 2. C. de in ius voc.
29. H. 8. Br. chart. de pard. 52.
33. H. 8. Br. charters de par. 71. intrusi. 21. Issues ret. 22.
Xenoph. lib. 7. Cyropae.
Thucyd. l. 3
Appian. lib. de bel. ciuil. 2.
Liui. lib. 37.
f) Ar. 3. polit.
Diodor. Si∣cul. lib. 2.
Plin. in Panegyr.
§ Sed natu∣ral. instit. de iu. na.
Deci. Cons. 209. in casu 2. 69. consultus. 390. quoniam 519. visis. 557. accurate.
Bal. & ••a. in l. omnes. C. Si con. ius vel vtilitat. pub.
Herodot. li. 4. Strab. lib. 11. Arist. lib. 2. polit. Tacit. de mor. Germa. Caes. lib. 4. & 6. de bel. Gal.
l. 2. C. de prec. imp. off.
8. H. 6. 19.
p) li. vlt. C. de consul.
l. placet. 79. D. de acquir. haere. l. acqui∣rit. 10. D. de acquir. re. do.
l. Venditor. 13. D. de com. praed.
Deutero. 17
1. Reg. 21.
C. in tellect. 33. ex tr. de iu∣reiuran.
l. 7. cod. de relig. l. sed etsi l. 25. §. consuluit D. de hae••ed. petit.
l. in reman∣dat. 21. C. de mand.
Alberic. Gentil. Dec. 1. disput. 2. disput.
§. 2. de bon. posses. & apud Vlpi eo. tit. reg. 19.
29. E. 3. 29. 37. H. 8. Br. Estray. 9. Stam. fol. 186. a.
28. H. 6. 5.
Parkins Graunts. 6.
Stamford fol. lib. 3. 31. ••.
Stamford. 192.