CHAP. I ¶ What the principall end is of a well ordered Commonweale.↩

A Commonweale is a lawfull gouernment of many families, [Sidenote 1 - *] and of that which vnto them in common belongeth, with a puissant soueraigntie. This definition omitted by them which haue written of a Commonweale, wee haue placed [ C] in the first place: for that in all arts and actions, it behoueth vs first to behold the end, and afterward the meanes to attaine therunto. For a definition is nothing else than the very end and scope of the matter propounded, which if it be not well and surely grounded, whatsoeuer you build thereupon must together and in a moment fall. And yet oftentimes it falleth out with many, that hauing propounded vnto themselues certaine ends, yet can they not attaine vnto the end by them desired; no more than the vnskilfull archer who shooteth farre and wide from the marke he aimed at, whereas he which shooteth markeman like, although he misse somewhat the marke, yet shall he shoot neerer than he, neither shall [ D] he want the commendation of a good archer, hauing performed what a skilfull archer should haue done. But he which knoweth not the end of the matter he hath in hand, is as farre from the hope of attaining thereunto, as he is from hitting the marke, which shooteth at randon, not knowing whereat. Wherefore let vs well examine the end, and euery part of the definition by vs before propounded. First we said that a Commonweale ought to be a lawfull or rightfull gouernment: for that the name of a Commonweale is holy, as also to put a difference betwixt the same, and the great assemblies of robbers and pirats, with whome we ought not to haue any part, commercement, societie, or alliance, but vtter enmitie. And therefore in all wise and well ordered Commonweales, [Sidenote 2 - *] whether question be of the publike faith for the more safetie to bee giuen; [ E] of leagues offensiue or defensiue to bee made; of warre to bee denounced, or vndertaken, either for the defending of the frontiers of the kingdom, or for the composing of the controuersies and differences of Princes amongst themselues; robbers and pirats are still excluded from all the benefit of the law of Armes. For why? Princes which gouerne their States by their owne lawes, and the lawes of nations, haue alwayes diuided their iust and lawfull enemies, from these disordered, which seeke for nothing but the vtter ruine and subuertion of Commonweales, and of all ciuill societie. For which cause, if ransome promised vnto robbers for a mans redemption, bee not vnto them [Page 2] accordingly payed, there is no wrong done: for that the lawes of Armes ought neither [ F] to be communicated vnto them, neither are they to enioy the benefit of those lawes, which lawfull enemies being taken prisoners, or free men enioy. Yea the lawes do permit him that is taken of robbers, not therby to loose his libertie; but that he may neuerthelesse make his will, and do all other lawfull actes: which for all that was not in former time lawfull for them to doe, which were taken by their iust enemies. For that he which was fallen into the hands of his lawfull enemies, by the law of nations did together with his libertie loose also all such power as he had ouer his owne things. Now if a man should say, that the law commaundeth to restore vnto the robber his pawne, his things committed vnto thee vpon trust, or what thou hast of him borrowed; or to repossesse him, beeing by force thrust out of a possession, neuer so vniustly by him obtained; [ G] there is thereof a double reason: the one, for that the robber in submitting himselfe vnto the Magistrat, and shewing his obedience vnto the lawes, in demaunding justice, deserueth to be therein regarded: the other, for that this is not so much done in fauour of the theefe or robber, as in hatred of him which would vnconscionably detaine the sacred thing left to his trust, or by way of force proceed to the gaining of that which he might by course of justice haue otherwise obtained. Of the first whereof we [Sidenote 3 - *] haue examples enow, but none more memorable than that of Augustus the Emperour, who caused it to be proclaimed by the sound of the Trumpet, that he would giue ten Sestertiees vnto him which should bring vnto him Coracotas, the ring leader of the theeues and outlawes in Spaine: which thing Coracotas vnderstanding, of his owne [ H] accord presented himselfe vnto the Emperour, and demaunded of him the promised reward: which Augustus caused to be paid vnto him, and so receiued him into his fauour, to the intent that men should not thinke, that hee would take from him his life, to deceiue him of the reward promised; or yet violate the publike faith and securitie with him, who of himselfe offered himselfe vnto the triall of justice: albeit hee might haue justly proceeded against the fellon, and so haue executed him. But he that should vse such common right towards pirats & robbers, as is to be vsed against just enemies, [Sidenote 4 - *] should open a dangerous gap to all vagabonds, to ioyne themselues vnto robbers and theeues; and assure their capitall actions and confederacie, vnder the vaile of justice. Not for that it is impossible to make a good Prince of a robber, or a good King of a [ I] rouer: yea, such a pirat there hath beene, who hath better deserued to be called a King, than many of them which haue carried the regall scepters and diadems, who haue no true or probable excuse of the robberies and cruelties which they cause their subiects to endure. As Demetrius the pirat by way of reproach said to Alexander the great, [Sidenote 5 - *] That he had learned of his father no other occupation than piracie, neither from him receiued any other inheritance than two small frigots▪ whereas he which blamed him of piracie, roamed about neuerthelesse, and with two great armies robbed the world without controlment, albeit that he had left him by his father the great and flourishing kingdome of Macedon. Which frank speech so moued Alexander, not to the reuenge of the iust reproach giuen him, but vnto commiseration, with a certaine remorse of [ K] conscience: in so much that he pardoned Demetrius, & made him general ouer one of his legions. And not to go further for examples, in our age Solyman the great Sultan of the Turks, with great rewards allured vnto him Hariadenus Aenobarbus, Dragut Reis, & Occhial, three of the most famous pirats of our memory; whom he made his Admirals, and great commaunders at Sea; by their strength to confirme his owne power, and to keepe vnder the other pirats, then roaming all about the seas, and so to assure his traffique. [Sidenote 6 - *] Truly by such allurements to draw arch pirats into good order, is, and shal be alwaies commendable: not onely to the end, not to make such people through dispaire [Page 3] to inuade the State of other princes, but also by their meanes to ruinate and bring to [ A] naught other pirats, as enemies to mankind: who although they seeme to liue in neuer so much amitie and friendship together, and with great equalitie to diuide the spoile, (as it is reported of Bargulus and Vitriatus, the arch pirats) yet for al that they ought not to be of right called societies and amities, or partnerships; but conspiracies, robberies, & pillages: neither is that their equal parting of the spoile, to be tearmed a lawful diuision, but a meere robberie: for that the principall point wherein consisteth the true marke and cognisance of amitie in them wanteth, that is to wit, right gouernment, according to the lawes of nature. And that is it, for which the auncient writers haue called Common weals, Societies of men assembled to liue well and happily together. Which as it may serue for a description of a Citie, so can it not stand for a true definition [ B] [Sidenote 7 - *] of a Commonweale, as hauing in the one part thereof too much, and in the other too little: three principall things especially to bee required in euery Commonwealth, wanting in this description, that is to say, the family, the soueraigntie, and those things which are common to a Citie, or commonweale: joyning hereunto also, that this word, Happily, as they vnderstand it, is not necessarie: for otherwise vertue should haue no prize, if the fauourable wind of prosperitie still blew not in the poope thereof, which a good man will neuer consent vnto. For a Commonweale may be right well gouerned, and yet neuerthelesse afflicted with pouertie, forsaken of friends, besieged by enemies, and ouerwhelmed with many calamities: vnto which estate Cicero himselfe confesseth him to haue seene the Commonweale of Marseils in Prouince to haue fallen, [ C] at such time as it was by Caius Caesar triumphed vpon: which he saith to haue bene the best ordered and most accomplished that euer was in the world, without exception. And so contrariwise it should come to passe, that a Citie, or Commonweale, fruitfull by situation, abounding in riches, flourishing, and well stored with people, reuerenced of friends, feared of enemies, inuincible in arms, strong in fortification, prowd in buildings, triumphant in glorie, should therefore be rightly gouerned, albeit, that it were surcharged with all villanies, and grounded in all maner of vices. And yet neuerthelesse most certaine it is, that vertue hath not a more capitall enemie, than such a perpetual successe as they cal most happy; which to ioine together with honesty, is no lesse difficultie, than to combine things by nature most contrarie. Wherfore sith that we [ D] may without reproach want other things; as also without praise abound therein: but that vertues we cannot without great imputation want; or be with vices polluted without infamie: it must needs follow, that those things which are thought to make the life of man more blessed, that is to say, riches, wealth, large territories and possessions, not to be of necessitie required vnto well ordered Cities, and commonweals: so that he which will looke further into the matter, must as little as hee may decline from the best or most perfect state of a Commonweale. For as much as by the goodnes of the end we measure the worth and excellencie, as well of Cities and Commonweals, as of all other things: so that by how much the end of euery Citie▪ or Commonweale is better or more heauen-like, so much is it to be deemed worthily to excell the rest. Yet [ E] is it not our intent or purpose to figure out the onely imaginary forme and Idea of a Commonweale, without effect, or substance, as haue Plato, and Sir Thomas More [Sidenote 8 - *] Chauncelor of England, vainely imagined: but so neere as we possibly can precisely to follow the best lawes and rules of the most flourishing cities and Commonweals. In which doing, a man is not bee iustly blamed, although hee fully attaine not vnto the end hee aimeth at, no more than the good Pilot, by force of tempest driuen out of his course; or the skilfull Physitian ouercome with the force of the maladie, are the lesse esteemed: prouided, that the one hath yet in the cure well [Page 4] gouerned his sicke patient; and the other in his course, his ship. [ F]

Now if the greatest felicitie and happinesse of one citisen, and of a whole Citie, [Sidenote 9 - *] be all one and the selfe same, and the chiefe good of both consisteth in those vertues which are proper vnto the mind, and are onely conuersant in contemplation (as they which in wisedome are said to haue farre excelled the rest, haue with great agreement affirmed) it must needs follow also, those citisens and people to enioy true felicitie, which exercising themselues in the sweet knowledge of things naturall, humane, and diuine, referre all the fruits of their contemplation vnto the almightie God, and great Prince of nature. If we then confesse this to be the principall end of the most blessed and happy life of euery one in particular, we conclude, that this is the felicitie and end also of a Commonweale. But for as much as men of affaires, and Princes, are not in [ G] this point agreed, euery man measuring his good by the foot of his pleasures and contentments; and that those which haue had the same opinion of the chiefe felicitie of a man in particular, haue not alwayes agreed, That a good man and a good citisen are not all one; neither that the felicitie of one man, and of a whole Common weale are both alike: this hath made that we haue alwaies had varietie of lawes, customs, and decrees, according to the diuers humors and passions of Princes and gouernours. Most men thinking the life of man to be but base, if his endeuours should bee onely directed vnto necessitie, and not also vnto pleasure, and ornament: they would (I say) account it a miserable thing to dwell in poore cottages couered with turfe, or in strait cabins and lodges to shrowd themselues from the iniury of the weather. But for as much as [ H] the wise man is in a sort the measure of right and wrong, of truth and falshood; or as it were an inflexible rule: and they which are thought to excell all others in iustice and wisdom, with one consent affirme the chiefe good of euery one in particular, and of all in common, to be but one, and the same; we also putting no difference betwixt a good man, and a good citisen, measure the chiefe felicitie and happinesse of euery particular man, and of all men in general, by that most beautifull and and sweet contemplation of high matters, which we before spoke of. Albeit that Aristotle sometimes following [Sidenote 10 - *] the vulgar opinion, seemeth doubtfull in setting downe the chiefe good thing, and not well to agree in opinion with himselfe; as thinking it necessarie vnto vertuous actions to ioyne also wealth and power: yet when he reasoneth more subtilly thereof, placing [ I] the chiefe good and felicitie of man, in Contemplation. Which seemeth to haue giuen occasion vnto Marcus Varro to say, That the felicitie of man consisteth in a mixture of action and contemplation together: whereof this may seeme to haue bene the reason, For that as of one simple thing, the felicitie is simple; so of things double or compound, the felicitie is also double and compound. For the goodnesse of the bodie consisteth in the health, strength, agilitie, comlinesse, and beautie thereof: but the goodnesse of the mind, that is to say, of that facultie or power which is the true bond of the bodie and vnderstanding together, consisteth in the due obedience of our desires vnto reason, that is to say, in the action of morall vertues: whereas the chiefe goodnes and felicitie of the vnderstanding and mind it selfe, consisteth in the intellectuall vertues, [ K] that is to say, Wisedom, Knowledge, and true Religion: Wisedome, concerning worldly affairs; Knowledge, concerning the searching out of the secrets of nature; and Religion, the knowledge of things diuine. Of which three vertues, the first seeth the difference betwixt good and euill, the second betwixt truth and falshood, and the third betwixt true holinesse and impietie: and so altogether containe what is to be desired, or to be fled from. In which three vertues, true wisedome consisteth, better than which God hath not giuen any thing vnto man: For that it cannot be taken from vs by theft, consumed by fire, or lost by shipwrack; but is of it selfe sufficient to make men, otherwise [Page 5] destitute and bare of all other things, happie; and that not euery one in particular [ A] onely, but euen altogether also. Yet for all that shall a citie be much more blessed and fortunate, which encreased by these vertues, shal haue also sufficient territorie, and place capable for the inhabitants; a fertill soyle to plant in, with beasts and cattell sufficient to feed and cloath the people with; and for the maintenance of their health, the sweet disposition of the heauens, temperate and fresh ayre, plentifull and wholsome water, also matter fit for building and fortification, if the countrey of it selfe bee not safe and strong enough against the iniuries both of the weather and the enemy. These are the first beginnings of a growing commonweale, viz. That those things be first prouided [Sidenote 11 - *] for, without which people can in no wise liue; and then after that, such other things as wherewith men liue the more commodiously and better, as medicines to cure diseases, [ B] mettals wherwith conuenient tools may be made for workmen, & armes for souldiers, not onely to repulse, but also to take reuenge vpon the enemie and robber. And for as much as the desires of men are insatiable, after that those things are prouided for which are necessarie, as also those which are profitable; it lusteth vs also to seeke after, and to abound with vaine delights and pleasures, that so we may more sweetly & pleasantly liue. And as we haue no care of nurturing our children, before that they by convenient education being growne, become capable both of speech and reason; no more regard haue cities also for the conforming of manners, or searching after the knowledge of naturall and diuine things, before they haue gotten such things as must needs be had to feed and defend their citisens; but are with meane wisedome content to repulse [ C] their enemies, and defend their people from iniurie. But the man that hath got all things needfull for him to lead a safe and happy life withall, if he be well by nature, [Sidenote 12 - *] and better by education instructed, abhorreth the companie of loose and wicked men, sorteth himselfe with the good, and seeketh after their friendship: and afterwards when he feeleth himself cleane & free frō those perturbations and passions which trouble and molest the mind; and hath not set his whole hope vpon his vaine pelfe, hee at great ease beholdeth the chaunges and chances of the world, the vnstaidnesse and diuersitie of mens maners, their diuers ages, and conditions; some in the height of power and soueraigntie; others in the bottome of calamitie and woe: he then studiously beholdeth the mutations, risings, and downfals of Commonweals; and wisely ioyneth things [ D] forepast, vnto those that are to come. After that, turning himselfe from mens affaires vnto the beautie of nature, he delighteth himselfe in beholding the varietie of natures worke in plants, liuing creatures, and minerals, hee considereth of euery one of them, their forme, their strength, and excellencie: yea he seeth the successiue transmutations of the elements themselues one into another, the singular Antipathie and contagiousnesse of things, the wonderfull order and consent of causes; whereby the things lowest, are ioyned vnto the highest, they in the middle vnto both, and so in briefe all to all: as also whereof euery thing tooke beginning, whether it returneth againe, when and how it shall take end; what in things is mortall and transitory, what immortall and eternall: and so by little and little, as it were with the swift wings of contemplation [ E] carried vp into heauen, wondreth at the brightnesse of the notable starres; the power, placing, distance, and vnequall course of the heauenly bodies; and so the good agreement and as it were most sweet harmonie of the whole world, and of euery part thereof: so rauished with a wonderfull pleasure, accompanied with a perpetuall desire to see the causes of all things, he is still caried on, vntill hee bee brought vnto God, the first cause, and gouernour of all this most faire and beautifull worke: whither when hee is once come, he sta•…]eth to search further, seeing that he is of an infinite and incomprehensible essence, greatnesse, power, wisedome, and beautie, such as cannot either by [Page 6] tongue be expressed, or by any mind of man conceiued: yet so much as in him is hee [ F] prayseth, extolleth, and with great deuotion honoureth, that so great brightnes of the diuine Maiestie, which by such heauenly contemplation draweth him vnto the true glorie, and chiefe end of all goodnesse. For by these meanes men seeme in a manner to haue obtained the most goodly knowledge of things naturall, ciuill, and diuine, and the very summe of humane felicitie and blisse.

If therefore we iudge such a man wise and happie, as hath not gotten store of common wealth and pelfe, but the knowledge and vnderstanding of most excellent things, and remote from the rude capacitie of the vulgar people: how much more happie ought we to iudge a commonweale, abounding with a multitude of such citisens, although [Sidenote 13 - *] it contented with strait bounds, contemne the proud wealth and pleasures of [ G] the greatest cities, which measure their greatest felicitie, by their greatest delights, or by their aboundant wealth and store, or by the vanitie of their glory? Neither yet for all that doe we make that chiefe good of a man, or of a common weale, to be a thing confused, or mixt: For albeit that man be composed of a bodie which is fraile and mortall, and of a soule which is eternall and immortall; yet must it needs be confessed the cheiefe goodnesse of man to rest and be in that part which is more excellent than the rest, that is to say, the Mind. For if it be true (as true it is) that this our bodie is compact and framed of flesh and bones, to serue the soule; and our desires to obey reason: who can doubt the chiefe felicitie of man wholy to depend of the most excellent vertue thereof, which men call the action of the mind? For although Aristotle, according [ H] to the opinion of the Stoiks, had placed the chiefe goodnes of man in the action of vertue; yet he the same man was of opinion, that the same action was still to bee referred vnto the end of contemplation: otherwise (saith hee) the life of man should bee more blessed than that of the Gods, who not troubled with any actions or businesse, enioy the sweet fruit of eternall contemplation, with a most assured repose and rest. And yet not willing to follow the doctrine of his maister Plato, and also accounting it [Sidenote 14 - *] a shame to depart from the opinion by himselfe once receiued and set downe; for as much as he at the first had put the blessed life in action; he afterward with great ambiguitie of words, hath placed the chiefe felicitie of man, in the action of the mind, which is nothing else but contemplation: to the intent he might not seeme to haue put the [ I] chief good, both of men and commonweals, in things most contrary vnto themselues; motion (I say) and rest, action and contemplation. And yet hee neuerthelesse seeing men and commonweals to be still subiect vnto motion, and troubled with their necessary affaires, would not plainly put that chiefe good or happinesse which we seeke after, in contemplation onely; which for all that he must of necessitie confesse. For all beit that the actions whereby mans life is maintained, as to eat, to drinke, to sleepe, and such like, are so necessarie, as that a man cannot long want them: yet is no man so simple, as in them to put mans chiefe good or felicitie. The moral vertues also are of much more worth and dignitie than they: for that the mind by them (or by the vertue diuine) purged from all perturbations, and affections, may bee filled with the most sweet [ K] fruit and cleare light of contemplation. Whereby it is to be vnderstood, the morall vertues to be referred vnto the intellectuall, as vnto their end. Now that can in no wise be called the chiefe good or happinesse, which is referred vnto a farther thing, better and more excellent than it selfe: as the bodie vnto the soule, appetite vnto reason, motion vnto quiet rest, action vnto contemplation. And therefore I suppose that Marcus Varro, who deemed man his chiefe good to bee mixt, of action and contemplation; might (in mine opinion) haue more aptly and better said mans life to haue need of both; yet the chiefe good and felicitie thereof to consist in contemplation: [Page 7] which the Academicks called the sweet, and the Hebrews the pretious death; for that [ A] it doth in a sort rauish the mind of man from out of this fraile and vile bodie, and carrieth the same vp into heauen. Yet neuertheles true it is, that a commonweale cannot long stand if it be quite or long time destitute of those ordinary actions which concerne the preseruation of the peoples welfare, as the administration and execution of iustice, the prouiding of victuals, and such other things necessary for the life of man; no more than can a man long liue whose mind is so strongly rauished with the contemplation of high things, that he forgetteth to eate or drinke, and so suffereth the bodie with hunger and thirst to perish, or for lacke of rest to die.

But as in this fabrick of the world (which we may cal the true image of a perfect and [Sidenote 15 - *] most absolute commonweale) the Moone, as the soule of the world, comming neerer [ B] vnto the Sunne, seemeth to forsake this perspirall and elementarie region; and yet afterwards by the coniunction of the Sunne, filled with a diuine vertue, wonderfully imparteth the same vnto these inferiour bodies: so also the soule of this little world, by the [Sidenote 16 - *] force of contemplation rauished out of the bodie, and in some sort as it were vnited vnto the great [Sidenote 17 - *] Sun of vnderstanding, the life of the whole world, wonderfully lightned with diuine vertue, with that celestiall force maruelously strengtheneth the bodie, with all the naturall powers thereof. Yet if the same, become too carefull of the bodie, or too much drowned in the sensuall pleasures thereof, shall forsake this diuine Sunne; it shall befall it euen as it doth vnto the Moone, which shunning the sight of the Sun, and masked with the the shadow of the earth, looseth her brightnesse and light, by [ C] which defect many fowle monsters are engendred, and the whole course of nature troubled: and yet if the Moone should neuer be seperated from the coniunction of the Sunne, it is most certaine that the whole frame of this elementarie world should in right short time be dissolued and perish. The same iudgement we are to haue of a well ordered commonweale; the chiefe end and felicitie wherof consisteth in the contemplatiue vertues: albeit that publick and politicall actions of lesse worth, be first and the fore-runners of the same, as the prouision of things necessarie for the maintenance and preseruation of the state and people; all which for all that we account farre inferiour vnto the morall vertues, as are also they vnto the vertues intellectuall; the end of which, is the diuine contemplation of the fairest and most excellent obiect that can [ D] possibly be thought of or imagined. And therefore we see that Almightie God who with great wisdome disposed all things, but that especially, for that he appointed only six dayes for vs to trauell and to do our businesse in, but the seuenth day he consecrated vnto contemplation and most holy rest, which onely day of all others hee blessed [Sidenote 18 - *] as the holy day of repose and rest, to the intent we should imploy the same in contemplation of his works, in meditation of his law, and giuing of him praises. And thus much concerning the principall end and chiefe good of euery man in particular, as also of all men in generall, and of euery well ordered commonweale: the neerer vnto which end they approach, by so much they are the more happie. For as we see in particuler [Sidenote 19 - *] men, many degrees of worldly calamitie or blisse, according to the diuers ends [ E] of good or bad that they haue vnto themselues propounded; so haue also commonweals in a sort their degrees of felicitie and miserie, some more, some lesse, according to the diuers ends they haue in their gouernment aimed at.

The Lacedemonians are reported to haue alwayes bene valiant and couragious [Sidenote 20 - *] men; but in the rest of their actions iniust and perfidious, if question once were of the common good: for that their education, their lawes, customs, and manners, had no other scope or end than to make their people couragious to vndertake all dangers, and painfull to endure all manner of labour and toyle; contemning all such pleasures and [Page 8] delights, as commonly effeminate the minds of men, and weaken their strength, referring [ F] all their thoughts & deeds, to the encreasing of their state. But the Romane commonweale hauing flourished in iustice, farre passed the Lacedemonians; for that the Romans, besides that they were passing couragious, had propounded also vnto themselues [Sidenote 21 - *] true iustice, whereunto, as to a marke they addressed all their actions. Wherefore we must so much as in vs lyeth endeuour our selues to find the meanes to attaine or at least wise to come so neere as we possibly can, vnto that felicitie wee haue before spoken of, and to that definition of a Commonweale by vs before set downe. Wherfore prosecuting euery part of the said definition, let vs first speake of a Familie.

CHAP. II. [ G] ¶ Of a Familie, and what difference there is betweene a Familie and a Commonweale.↩

A Familie is the right gouernment of many subiects or persons [Sidenote 22 - *] vnder the obedience of one and the same head of the family; and of such things as are vnto them proper. The second part of the definition of a Commonweale by vs set downe, concerneth a Familie, which is the true seminarie and beginning of euery Commonweale, as also a principall member thereof. So that [ H]Aristotle following Xenophon, seemeth to me without any probable cause, to haue diuided the Oeconomicall gouernment from the Politicall, and a Citie from a Familie: which can no otherwise be done, than if wee should pull the members from the bodie; or go about to build a Citie without houses. Or by the same reason he should haue set downe by it selfe a treatise of Colleges, and Corporations; which being neither families nor cities, are yet parts of a Commonweal. Wheras we see the Lawyers, and law makers (whome we ought as guides to follow in reasoning of a Commonweale) to haue in the same treatise comprehended the lawes and ordinances of a commonweale, corporations, colleges, and families; howbeit that they haue otherwise taken the Oeconomicall gouernment than did Aristotle; who defineth [ I] it to be a knowledge for the getting of goods: a thing common vnto corporations and Colleges, as vnto Cities also. Whereas we vnder the name of a Familie, do comprehend the right gouernment of an house or familie; as also the power and authoritie the maister of the house hath ouer his people, and the obedience to him due: things not touched in the treatise of Aristotle and Xenophon. Wherefore as a familie well and wisely ordered, is the true image of a Citie, and the domesticall gouernment, [Sidenote 23 - *] in sort like vnto the soueraigntie in a Commonweale: so also is the manner of the gouernment of an house or familie, the true modell for the gouernment of a Commonweale. And as whilest euery particular member of the bodie doth his dutie, wee liue in good and perfect health; so also where euery family is kept in order, the whole citie [ K] shall be well and peaceably gouerned. But if a man shall be crosse and froward vnto his wife, if the wife shall be about to take vpon her the office of her husband, and not shew her selfe obedient vnto him; if both of them shall account of their children as of seruants, and of their seruants as of beasts, and so tyrannise ouer them; if children shall refuse the commands of their parents, and the seruants of their maisters; who seeth not no concord to be in that house, no agreement of minds and wils, but all full of strife, brawling and contention? Seeing therfore the way to order wel a citie, leaneth & resteth in the good gouernment of families, as it were vpon certain proper foundations: [Page 9] it behoueth vs first to haue an especiall regard and care for the good ordering [ A] and gouernment of families.

Wee said a Commonweale to bee a lawfull gouernment of many families, and of such things as vnto them in common belongeth, with a puissant soueraigntie. By the word, Many, you may not in this case vnderstand two, as for most part we do; for seeing that the law requireth at the least three persons to make a College, we according to the Lawyers opinion account three persons also, besides the maister of the house, necessary to make a familie; be they children, or slaues, or men enfranchised, or free borne men which haue voluntarily submitted themselues vnto the maister of the house or family, who maketh vp the fourth, and is yet neuerthelesse a member of the family. But for as much as •…]milies, Colleges, Companies, Cities, and Commonweals, yea, and [ B] mankind it selfe would perish and come to end, were it not by martiages (as by certaine Seminaries, or nurseries) preserued and continued, it followeth well that a family cannot be in all points perfect and accomplished without a wife. So that by this account [Sidenote 24 - *] it commeth to passe, there must be fiue persons at least to make vp an whole and entire familie. If therefore there must needs bee three persons, and no fewer, to make a [Sidenote 25 - *] College, and as many to make a familie, beside the maister of the houshold and his wife; wee for the same reason say three families and no fewer to bee necessarie for the making of a Citie, or Commonweale, which should be three times fiue, for three perfect families. Whereupon (in mine opinion) the auncient writers haue called fifteene a people, as saith Appuleius, referring the number of fifteene vnto three entire families. [ C] For albeit that the maister of the family haue three hundred wiues, as had Salomon King of the Hebrews; and sixe hundred children, as had Hermotimus king of the [Sidenote 26 - *] Parthians by his multitude of wiues; or fiue hundred slaues, as had Crassus; if they bee all vnder the commaund of one and the same head of the familie, they are neither to be called a people nor a citie, but by the name of a family onely: Yea although hee haue many children, or seruants maried, hauing themselues children also; prouided alwaies, that they be vnder the authoritie of one head, whome the law calleth father of the family, although he yet crie in his cradle. And for this cause the Hebrews, who alwayes show the proprietie of things by their names, haue called a family 〈 in non-Latin alphabet 〉], not for that a family containeth a thousand persons, as saith one Rabbin, but of the word 〈 in non-Latin alphabet 〉], [ D] which signifieth an head, a Prince, or Lord, naming the familie by the chief therof: better as I suppose than did the Greeks, of 〈 in non-Latin alphabet 〉], or the Latines of Famulis. But what should let (may some man say) three Colleges, or many other particular assemblies without a familie to make a Citie, or Cōmon weale, if they be gouerned by one soueraigne commaund? Truly it maketh a good show, and yet for all that is it no Commonweale: for that no Colledge, nor bodie politique can long stand without a familie, but must of it selfe perish and come to nought.

Now the law saith, that the people neuer dieth, but a thousand yeare hence to be the same that it was before▪ although the vse and profit of any thing granted vnto a common weale be after an hundred yeare extinguished, and againe reunited vnto the proprietie, [ E] which proprietie should otherwise be vnto the Lord thereof vaine and vnprofitable: for it is to be presumed, that all they which now liue wil in the course of an hundred yeares be dead, albeit that by successiue propagation they be immortal; no otherwise than Theseus his ship, which although it were an hundred times changed, by putting in of new plancks, yet still retained the old name. But as a ship, if the keele (which strongly beareth vp the prow, the poup, the ribs, and tacklings) be taken away, is no longer a ship, but an euil fauoured houp of wood: euen so a Commonweale without a soueraintie of power, which vniteth in one body all the members and families of the [Page 10] same is no more a common weale, neither can by any meanes long endure. And not [ F] [Sidenote 27 - *] to depart from our similitude: as a ship may be quite broken vp, or altogether consumed with fire; so may also the people be into diuers places dispersed, or els be vtterly destroyed, the Citie or state yet standing whole; for it is neither the wals, neither the persons, that maketh the citie, but the vnion of the people vnder the same soueraigntie of gouernment, albeit that there be in all but three families. For as an Emot is as well to be called a liuing creature, as an Elephant: so the lawfull gouernment of three families, with a soueraigntie of power maketh as well a common weale, as a great signiorie. So Rhaguse one of the least signeuries in all Europe, is no lesse a common weale, than are those of the Turkes, the Tartars, or Spanyards, whose Empires are bounded with the same bounds that the course of the Sun is. And as a little familie shut vp in a small [ G] cottage, is no lesse to be accounted a familie, than that which dwelleth in the greatest and richest house in the citie▪ so a little king is as well a Soueraigne as the greatest Monarch in the world. So Vlisses, whose kingdome was contained within the rock of Ithaca, is of Homer as well called a King, as Agamemnon: for a great kingdome (as saith Cassiodorus) is no other thing than a great Commonweale, vnder the gouernment of one chiefe soueraigne: wherefore if of three families, one of the chiefe of the families hath soueraigne power ouer the other two, or two of them together ouer the third, or all three ioyntly and at once exercise power and authoritie ouer the people of the three families; it shall as well be called a Commonweale, as if it in it selfe comprehended an infinite multitude of citisens. And by this meanes it may chaunce, that one familie [ H] [Sidenote 28 - *] may sometimes be greater and better peopled then a common weale: as was wel said of the familie of Aemilius Tubero, who was head of a family of sixteene of his owne children, all maried, whome he had all vnder his power, together with their children and seruants, dwelling in the same house with him. And on the contrary part, the greatest [Sidenote 29 - *] Citie or Monarchie, and the best peopled that is vpon the face of the earth, is no more a common weale or citie, than the least. Albeit that Aristotle saith, the citie of Babylon (whose circuit in a square forme was so great, that it could scarce on foot bee gone about in three dayes) was to bee called rather a nation, than a common weale, which ought not, as he saith, to haue more than ten thousand citisens in it at the most: as if it were any absurditie to call an infinite number of nations, and dwelling in diuers [ I] places, gouerned by one soueraigne commaund, by the name of a Commonweale. By which meanes the citie of Rome (more famous than which was neuer any) should not [Sidenote 30 - *] deserue the name of a Commonweale, which at the foundation thereof had not aboue 3000 citisens; but in the time of Tiberius the Emperor, had cessed in it fifteene millions, besides an hundred and ten thousand others dispersed almost throughout the world: not accounting the slaues, the number of whom was ten times greater: and yet in this number were not comprised they of the Prouinces subiect vnto the Empire of Rome, neither the confederat cities, or free nations, who had their Commonweals in soueraigntie diuided from the Roman Empire. Which soueraigntie of gouernment is the true foundation and hinge whereupon the state of a citie turneth: whereof all the magistrats, [ K] lawes, and ordinances dependeth; and by whose force and power, all colleges, corporations, families, and citisens are brought as it were into one perfect bodie of a Commonweale: albeit that all the subiects thereof be enclosed in one little towne, or in some strait territorie, as the commonweale of Schwitz, one of the least of the confederat Cantons of Suisers; not so large as many farms of this [Sidenote 31 - *] kingdom, nor of greater reuenue: or els that the Commonweale hath many large prouinces and countries, as [Sidenote 32 - *] had the Persians, which [Sidenote 33 - *] is reported to haue had an hundred twentie seuen prouinces from the vttermost part of India, vnto the sea of Hellespontus: or as is now also the [Page 11] commonweale of the Aethiopians, wherein are fiftie prouinces, which Pau. Iouius [ A] without reason calleth kingdomes; albeit that they haue not but one king, one kingdome, one Monarch, one Commonweale, vnder the puissant soueraigntie of one and the same Prince whome they call Negus.

But beside that soueraigntie of gouernment thus by vs set downe, as the strong foundation of the whole Commonweale; many other things besides are of citisens to be had in common among themselues, as their markets, their churches, their walks, [Sidenote 34 - *] wayes, lawes, decrees, iudgements, voyces, customs, theaters, wals, publick buildings, common pastures, lands, and treasure; and in briefe, rewards, punishments, sutes, and contracts: all which I say are common vnto all the citisens together, or by vse and profit: or publick for euery man to vse, or both together. That is also a great communitie [ B] which ariseth of colleges and corporations of companies, as also of benefits both giuen and receiued. For otherwise a Commonweale cannot be so much as imagined, [Sidenote 35 - *] which hath in it nothing at all publick or common. Although it may so be, that the greatest part of their lands be common vnto the citisens in generall, and the least part vnto euery one of them in particular: as by the law of Romulus, called Agraria, all the lands of Rome, at that time containing eighteene thousand acres, was diuided * into [Sidenote 36 - *] three equall parts, whereof the first part was assigned for the maintaining of the sacrifices; the second for the defraying of the necessarie charges of the common weale; and the third was equally diuided among the citisens; who being in number but three thousand, had to euerie one of them allotted two acres: which equal partage long time [ C] after continued with great indifferencie, for Cincinnatus the Dictator himself 260 yeres after had no more but two acres of land, which hee with his owne hands husbanded. But howsoeuer lands may be diuided, it cannot possibly bee, that all things should bee common amongst citisens; which vnto Plato seemed so notable a thing, and so much [Sidenote 37 - *] to be wished for, as that in his Commonweale he would haue all mens wiues and children common also: for so he deemed it would come to passe that these two words, Mine and Thine, should neuer more be heard amongst his citisens, being in his opinion the cause of all the discord and euils in a Commonweale. But he vnderstood not that by making all things thus common, a Commonweale must needs perish: for nothing can be publike, where nothing is priuat: neither can it be imagined there to bee [ D] any thing had in common, if there be nothing to be kept in particular; no more than if al the citisens were kings, they should at al haue no king; neither any harmonie, if the diuersitie and dissimilitude of voyces cunningly mixed together, which maketh the sweet harmony, were al brought vnto one and the same tune. Albeit that such a Commonweale should be also against the law of God and nature, which detest not onely incests, adulteries, and ineuitable murders, if all women should bee common; but also expresly forbids vs to steale, or so much as to desire any thing that another mans is. Whereby it euidently appeareth this opinion for the communitie of all things to bee erroneous, seeing Commonweals to haue bene to that end founded and appointed by God, to giue vnto them that which is common; and vnto euery man in priuat, that [ E] which vnto him in priuat belongeth. Besides that also such a communitie of al things is impossible, and incompassible with the right of families: for if in the familie and the citie, that which is proper, and that which is common, that which is publick, and that which is priuat, be confounded; we shall haue neither familie nor yet Commonweale. In so much that Plato himselfe (in all other things most excellent) after he had seene the notable inconueniences & absurdities which such a confused communitie of all things drew after it, wisely of himselfe departed from that so absurd an opinion, and easily suffered that Commonweale which he had attributed vnto Socrates to be abolished; that [Page 12] so he might more moderatly defend his owne. But some will say, that the Massagets [ F] had all things in common: yet they which so say, confesse also euery one of them to haue had his pot, his sword vnto himselfe, as also must they needs haue their priuat apparell and garments also; for otherwise the weaker should bee still spoiled of the stronger, hauing his garments still taken from him.

Wherefore as a Commonweale is a lawfull gouernment of many families, and of those things which vnto them in common belongeth, with a puissant soueraigntie: so is a Familie the right gouernment of many subiects or persons, and of such things as are vnto them proper, vnder the rule and commaund of one and the same head of the familie. For in that especially consisteth the difference betwixt a Commonweale and a Familie: [Sidenote 38 - *] for that the maister of a familie hath the gouernment of domesticall things, and [ G] so of his whole familie with that which is vnto it proper; albeit that euery house or family be bound to giue something vnto the Commonweale, whether it be by the name of a subsidie, taxe, tribute, or other extraordinarie imposition. And it may bee that all the subiects of a Commonweale may liue together in common, in manner of Colleges, or companies, as did in auncient time the Lacedemonians, where the men apart from their wiues and families, vsed to eat and sleep together by fifteene and twentie in a company: As also in auntient time in Creet, all the citisens of all sorts men and women, young and old, rich and poore, alwaies eat and dranke together; and yet for all that, euerie man had his owne proper goods apart, euery one of them still contributing what was thought expedient for the defraying of the common charge. Which [ H] thing the Anabaptists in our time began to practise in the towne of Munster, hauing commaunded all things to be [Sidenote 39 - *] common, excepting their wiues (of whom they might haue many) and their apparell, thinking thereby the better to mainteine mutuall loue and concord among them: in which their account they found themselues farre deceiued. For they which admit this communitie of all things, are so farre from this good agreement of citisens among themselues, which they hope thus to maintaine, as that thereby the mutuall loue betwixt man and wife, the tender care of parents towards their children, and their dutifulnesse againe towards them, and in briefe the mutuall loue of neighbours and kinsmen among themselues, is quite extinquished; all the kind bond of bloud and kindred (than which none stronger can be imagined for the friendship [ I] and good agreement of citisens) being by this meanes taken away. For that which thou shouldest dearely loue must be thine owne, and that also all thine: whereas communitie is of the Lawyers iustly called of it selfe, the mother of contention and discord. Neither are they lesse deceiued, which think greater care to bee had of things that bee common, than of things that be priuat; for wee ordinarily see things in common and publick to be of euery man smally regarded and neglected, except it be to draw some [Sidenote 40 - *] priuat and particular profit thereout of. Besides that, the nature of loue and friendship is such, that the more common it is, or vnto moe diuided, the lesse force it is of: not vnlike to great riuers, which carry great vessels, but being diuided into small branches, serueth neither so keep back the enemie, neither for burthen: in which maner loue also [ K] diuided vnto many persons or things, looseth his force and vertue. So the lawfull and certaine gouernment of a familie, diuideth euery priuat mans wiues and children, seruants and goods, from all other mens families; as also that which is vnto euery particular man proper, from that which is to them all common in generall, that is to say, from a Commonweale. And withall in euery well gouerned Commonweale we see the publick magistrat to haue a certaine especiall care and regard of the priuat goods of orphans, of mad men, and of the prodigall: for that it concerneth the Commonweale to haue their goods preserued vnto them to whome they belong, and that they be not [Page 13] embeseled. As in like case the lawes oftentimes forbiddeth a man to procure, to alienat, [ A] or to pawne his own goods or things, except vpon certain conditions, as also vnto certaine persons▪ for that the preseruation of euery priuat mans goods in particular, is the preseruation of the Commonweale in generall. And yet neuerthelesse although [Sidenote 41 - *] lawes be common to al, it is not inconuenient, but that families may haue their certaine particular statutes for themselues and their successors, made by the auntient heads of their families, and confirmed vnto them by their soueraigne Princes. As we haue example in the most honourable nation of the Saxons, amongst whome are many families, which vse certaine their owne priuat lawes, quite differing both from the lawes of the Empire, and from the common lawes and customs of Saxonie. And betwixt the dukes of Bauaria, and the Counties Palatines there are also their particular lawes, as [ B] well for the lawfull succession in the inheritance of their houses, as in the right of the Electorship, which is in these two honourable houses, alternatiue, by the auntient decrees of their predecessors: which laws & customs the duke of Bauaria, with great instance required to haue renewed at the diet of the Empire at Auspurge, in the yere 1555 which is not so in the other families of the Electors. Betwixt the houses also of Saxonie and Hess, are their domesticall and proper laws [Sidenote 42 - *] confirmed vnto them by the Emperour Charles the fourth, and Sigismund. In like maner it was decreed betwixt the houses of Austria, and Bohemia, that for lack of heirs male, the one of them should succeed into the inheritance of the other, as we see it is now come to passe. And not to go further than this [Sidenote 43 - *] Realme, I haue seene a charter of the house of Laual granted by the [ C] King, and confirmed by the Parliament of Paris, directly contrarie to the customes of Aniou, Britagne, and Mayne, wherein the most part of their inheritance lie: by which Charter the first inheritor (able to succeed) is to enioy all, being not bound to giue any thing vnto his coheirs, more than the moueables; with charge, that the heire male shall beare the name of Guy de Laual; or of Guionne, if she bee an inheritrix, and the armes plaine. In like manner in the houses of Baume, Albret, and Rhodez, the daughters by the auntient lawes of their auncestors, were excluded both in direct and collaterall line from inheriting, so long as there were any males in what degree soeuer; deriuing as it were into their families, the law Salique, vsual vnto the Princes of Sauoy. Such lawes of families, which the Latines had also, and called them Ius familiare, were made [ D] by their auncestors and chiefe of their families, for the mutuall preseruation of their inheritance, name, and auntient armes; which may in some sort well be suffered in some great and honourable families: which priuat lawes and customs by vs thus spoken of, haue oftentimes preserued from destruction, not onely families, but whole common weals; which was the cause that in the diet at Auspurge in the yeare 1555, the Princes [Sidenote 44 - *] of the Empire after long ciuill warre, wisely renewed the auntient lawes of great houses and families, as hauing well perceiued that by that meane the Empire was to be preferued from ruine, and the state of Almaigne from a generall destruction. Which for all that, is not to take place in other obscure and particular base families, to the intent that the publick lawes, so much as is possible, should be vnto all men common and the selfe [ E] same. For it is not without great cause to bee suffered, that the lawes of priuat families should derogat from the customes of the countrey, and so, much lesse from the generall lawes and ordinances. Neither are they which come after, by this law of families by their grand-fathers, & great grand-fathers made, contrarie to the common customs and lawes, further bound than they themselues shall thereunto giue their consent. For which cause the successors of the house of Albret, of Laual, and of Montmorency obtained decrees from the Parliament of Paris, contrarie to the auntient charters of their predecessors; for that they were contrary vnto the customes of those places, when [Page 14] question was of the successions of Laual, of the Countie of Dreux, and of Montmorency, [ F] which they would make indiuisible, contrarie to the custom of the Viscomptie of Paris: For it beseemeth that the customes of families should bee subiect vnto the lawes, in like maner as the heads of families are subiect vnto their soueraigne Princes. Much lesse are the lawes of families and kindreds, allowed by the decrees of the Romans, to be be suffered, least for the priuat the publick should be neglected: as Camillus complained with Liuie, [Sidenote 45 - *] What (saith he) if the sacred rites of families may not in time of warre be intermitted, pleaseth it you that the publick sacrifices and Roman gods should euen in time of peace be forsaken? For it was a law of the twelue tables conceiued in these words, Sacred priuat Rites, firme be they for euer: which M. Tullius translated into his lawes. And thus much in generall, concerning the similitude [ G] and difference of a Common weale and Familie: now let vs discourse also of the singular parts of a Familie.

CHAP. III. ¶ Of the power of an Husband ouer his Wife, as also of the mutuall duties betwixt them: and whether it be expedient to renew the law of diuorcement or not.↩

ALL assemblies of men lawfully ioyned together, whether they be Families, Colledges, Vniuersities, or Commonweals, are kept together and preserued by the mutuall duties of commanding [ H] and obeying: for as much as that libertie which nature hath giuen vnto euery one to liue at his owne pleasure, bound within no lawes, is yet subiect vnto the rule and power of some other. All which power to commaund ouer others, is either [Sidenote 46 - *] publick or priuat: The power publick, is either free from law, as is theirs which hold the chiefest place of soueraigntie; or els restrained by law, as is the power of the Magistrats, who although they commaund ouer priuat men, are yet themselues subiect vnto the commaunds and laws of others their superiours. The power priuat, consisteth either in the heads of families, or in corporations, or colledges, where all by a generall consent, or the greater part, commaundeth ouer the rest. But the domesticall [ I] [Sidenote 47 - *] power is of foure sorts: viz. The power of the Husband ouer his Wife, the power of the Father ouer his children, the power of the Lord ouer his slaues, and the power of the head of a Familie ouer his mercenarie seruants. And for as much as the right and lawfull gouernment of euerie Commonweale, Corporation, Colledge, Societie, and Familie dependeth of the due knowledge of commaunding and obeying; let vs now speake of euery part of commaunding in such order as is by vs before set downe. For naturall libertie is such, as for a man next vnto God not to be subiect to any man liuing, neither to suffer the commaund of any other than of himselfe; that is to say, of Reason, which is alwaies conformable vnto the will of God. This naturall commaundement [Sidenote 48 - *] of Reason ouer our affections and desires, is the first, the greatest and most antient that [ K] is: for before that one can well commaund ouer others, hee must first learne to commaund himselfe, giuing vnto Reason the soueraigntie of commaund; and vnto his affections obedience: so shall it come to passe that euerie one shall haue that which of right vnto him belongeth, which is the first and fairest iustice that is; and that where of the common Hebrew prouerb grew, That euery mans charitie should first begin of himselfe: which is no other thing than to keepe our affections obedient vnto Reason. This is the first law of naturall commaund, which God by his expresse commaundement [Sidenote 49 - *] established, as we see in the speech which God had both vnto her that was the [Page 15] first [Sidenote 50 - *] mother of vs all; as also against him who first defiled himself with his brothers [ A] bloud [Sidenote 51 - *]. For that commaund which he had before giuen the Husband and his Wife, is two wayes to be vnderstood; first literally for the power the Husband hath ouer his Wife, and then morally for the commaund the soule hath ouer the bodie, and reason ouer affection. For that reasonable part of vnderstanding, is in man as the Husband; and Affection, as the Woman: For before God had created Eua, it was said of Adam, Male and female created he them [Sidenote 52 - *]. Wherefore the woman in holy writ is oftentimes taken for affection: but neuer more than with Salomon, who so liued as a man vnto women most kind; but so writ, as if he had bene vnto them a sworne enemie, whereas he thought nothing lesse, all that his speech being to bee vnderstood of mans vnreasonable desires, as well declareth the wise and graue Rabbin Maymon [Sidenote 53 - *]. [ B] But leaue we the morall discourse vnto Philosophets and Diuines to dispute of, and let vs take that which belongeth vnto ciuill policie, and speake of the power the Husband hath ouer the Wife, as proper vnto this our question. By the name of a Wife I vnderstand a iust and lawfull Wife, and not concubine, which is not in the power of him that keepeth her; albeit that the Roman lawes call it mariage, and not concubinage, [Sidenote 54 - *] if the concubine be franke and free: which all nations haue of good right reiected, and as it were by secret consent abrogated, as a thing dishonest and of euill example. Neither doth this power that the Husband nath ouer his Wife extend vnto her that is but betrothed, vpon whome the betrothed man may not lay his hand; which hath euer bene lawful vnto the Husband, both by the Ciuil and Canon law: yea if the betrothed [ C] man shall lay violent hand, or force her that is to him affianced or betrothed, he shall therefore by right suffer capitall punishment. But what if by consent of the man and of the woman, contract of mariage be made by words of the present time, before they know one another; for that, the law calleth iust marriage: I am for all that of opinion the power of an Husband not to be yet gotten by such a contract, except the Wife haue followed her Husband: for as much as by the decrees of the Diuines and Canonists (whose authoritie is in this matter the greatest) as often as question is made of the right of mariages, scarce any regard is had of such mariages betwixt man and wife, except it be of fact consumat, by the mutuall couiunction of their bodies; which by the consent of many nations is expresly receiued, as often as question is made of enioying [ D] of such commodities as are to be gained by mariage. But after that lawful coniunction [Sidenote 55 - *] of man and wife (which we haue spoken of) the Wife is in the power of her Husband, except he be a slaue, or the sonne of the maister of the Familie, who haue no authoritie ouer their wiues, & much lesse ouer their children; which although their married father were manumised, should yet fall into the power of their grandfather. The reason whereof is, for that a Familie should haue but one head, one maister, and one Lord: whereas otherwise if it should haue many heads, their commaunds would be contrarie, one forbidding what another commandeth, to the continuall disturbance of the whole familie. And therefore the woman by condition free, marrying her selfe vnto the maister of the families sonne, is in the power of her father in law, as is also the [ E] free man marrying himselfe vnto the maister of the families daughter, in the power of another man if he go to dwell in the house of his Father in law: albeit that in all other things he enioy his right and libertie. Neither seemeth it a thing reasonable, that is by the Roman laws ordained, That the married daughter, except she be before by her Father set at libertie, although she haue forsaken his house and dwell with her Husband, shall not yet for all that be in the power of her Husband, but of her father: A thing contrary vnto the law of nature, which willeth, That euery man shuld be maister of his owne house, (as saith Homer) to the end that he may be a law vnto his familie: and repugnant [Page 16] also vnto the law of God, which commaundeth the Wife to forsake father [ F] and mother to follow her Husband; and also giueth power vnto the Husband to confirme or breake the vowes of his Wife. Wherefore that law of the Romans is [Sidenote 56 - *] worthily abrogated, and especially with vs: for that the custome generally exempteth the married woman out of the power of her father; as was likewise in the Lacedemonian Commonweale, as Plutarch writeth, where the married woman saith thus; When I was a daughter I did the commaund of my father, but since that I am married, it is my Husband to whome I owe mine obeysance: for otherwise the wife might tread vnder foot the commaundement of her Husband, and acquit her selfe when shee saw good vnder the guard of her father. Now the interpretors of this Roman law haue vsed many cautions to auoid the absurdities and inconueniences following, if the [ G] wife should not be subiect to her husband, vntill she were set at libertie by her father. Yet in that point the lawes of all people agree with the lawes of God and nature, That [Sidenote 57 - *] the wife ought to be obedient vnto her husband, and not to refuse his commaunds not repugnant vnto honestie. One Italian Doctor there is of opinion, That the wife is not in the power of her husband: but for that of his assertion so singuler and absurd, hee hath brought neither reason nor authoritie, there hath bene none so fond to follow the same. For it is certaine by the law of Romulus, that the husband had not onely the commaund of his wife, but also power of life and death ouer her, in foure cases, without [Sidenote 58 - *] any forme of judiciall processe against her: that is to wit, for Adulterie, for suborning of a child, for counterfeiting of false keyes, and for drinking of wine. Howbeit the rigor [ H] of those lawes were by the kindnesse of husbands by little and little moderated, and the punishment of adulterie committed to the discretion of the parents of the wife: which began to be renewed & again put in practise in the time of Tiberius the Emperour; for that the husband putting away his wife for adulterie, or himselfe attainted [Sidenote 59 - *] with the same crime, the offence remained vnpunished, not without the great reproach of their kindred, who in auncient time (after the manner of the Romans) punished the adulterous women with death, or with exile. And albeit that the power of the husband ouer his wife was much diminished, yet neuerthelesse by the oration [Sidenote 60 - *] which Marcus Cato the Censor made vnto the people in defence of the law Oppia (which tooke from women their habilliments of collours, and forbad them to weare aboue [ I] one ounce of gold) it appeareth that the women were al their liues in the gouernment of their fathers, their brethren, their husbands, & next kinsmen, in such sort, as that without their leaue or authoritie, they could make no contract, or yet doe any lawfull act. This Cato the Censor flourished about 550 yeares after the lawes of Romulus: and 200 years after, Vlpian the Lawyer writeth, That Tutors and Gouerners were wont to be giuen to women and orphans; but when they were married, that then they were in the hand of the man, that is to say in the power of the husband. And if any should say That he diuided the title of persons that are in the power of others, from them that are in the power of others; it followeth not thereof that wiues were in the power of their husbands, but was by him so done, to show the difference of power the husband hath [ K] ouer his wife, the father ouer his children, and the lord ouer his slaues. And what doubt is there but that this word Hand, signifieth oftentimes power and authoritie? the Hebrews, Greeks, & Latines, hauing alwaies so vsed it, as when they say, The hand of the King▪ and, To come into the hand of the enemie. And Festus Pompeius, speaking of the husband bringing home his wife, vseth the word Mancipare, a word proper vnto slaues: which word we yet vse in many our customes and lawes, where question is of the emancipating of women. But to make it plaine, this power of husbands ouer their wiues to haue bene common vnto all people, we will by two or three examples declare [Page 17] the same. Olorus King of Thracia compelled the Dacians ouercome by their [ A] [Sidenote 61 - *] enemies, to serue their wiues, in token of extreame seruitude, & of the greatest reproach that he could deuise to doe them. We read also that by the lawes of the Lombards the woman was in the same subiection that the auntient Romans were, and that the husbands had all power of life and death ouer their wiues▪ which they yet vsed in the time of Baldus, not yet 260. yeares ago▪ And not to seeke farther, what people had euer so great power ouer their wiues as had our auncestors? The French men (saith [Sidenote 62 - *]Gaesar) haue power of life and death ouer their wiues and children, in like manner as ouer their slaues: and beeing neuer so little suspected to haue wrought their husbands death, are to be tortured by their owne kinsmen, and being found guiltie are by them to be cruelly executed, without any further authoritie from the Magistrat. But for [ B] [Sidenote 63 - *] drinking of wine it was much more manifest that it was cause sufficient by the Roman lawes for the husband to put his wife to death; wherein all the [Sidenote 64 - *] auntient writers agree; which was not only the custome of the Romans, but also (as Theophrastus writeth) of the auntient inhabitants of Marseiles•…] in Prouinde, and the Milesians, who vsed the same law against their w•…]es that had drunke wine▪ iudging that the disordered desires of the woman subiect to wine, would also make her drunke, and so afterwards [Sidenote 65 - *] an adultresse▪ We also find that the power giuen vnto the husband by the law of R•…]mulus, To put his wife to death for adulter•…]e, without the authoritie of the Magistrar▪ was common to all Greece, as well as to the Romans▪ For the law of Iulia which gaue leaue onely vnto the father to kill his daughter together with the adulterer, being taken [ C] in the deed doing▪ and not otherwise, was made by Augustus the Emperour aboue seuen hundred yeares after the law of Romulus: And yet by the same law it was permitted vnto certaine persons to do the same that the father might, against their adulterous wiues: a right small punishment being appointed for the husband▪ who besides the persons in the law excepted, had killed the adulterours taken in the fact. But the publick punishment of adulterie derogateth nothing from the power of the husband▪ in other [Sidenote 66 - *] sorts of corrections ouer his wife, not extending vnto death▪ which is vnto husbands forbidden. After that Theodora the Empresse hauing got the maisterie ouer Iustinian the Emperour her husband, a blockish and vnlearned Prince▪ when she had made al the lawes she could for the aduantage of women against their husbands▪ she amongst [ D] others also changed the paine of death for adulterie, into the note of 〈◊〉]: as did also in auntient time the Athen•…]ians▪ excommunicating the adulterors•…]▪ with the note also of infantie, as we read In the Pleas of 〈◊〉] which seemeth but a thing •…]idiculous, considering that the note of 〈◊〉] cannot take any honour from her which hath already lost the same, and is altogether de famed▪ 〈◊〉] that vpon the matter she•…] re•…] altogether vnpunishe•…], & that for such a crime as the law of God [Sidenote 67 - *] punishe•…]h with the most •…]igorous death that then was▪ (that is to say with stoning) and which the auntient Aegyptians punished a•…]〈◊◊〉] with cutting off the •…]ose of the woman, and the mans priuities. But in other crimes which more concerned the husband 〈◊〉] the publicke state; and deser•…]ed not death power is by the consent•…] all men 〈◊〉] [ E] vnto the 〈◊〉] and to chastice his wife, so that it be sparingly done▪ and within measure. And to the end that lius band•…] should not abuse the power the law gaue them 〈◊〉] their wiues▪ they had an action against•…] their husbands▪ in case of euill 〈◊〉]; 〈◊〉]•…]oward vsage▪ which was afterward by the law of Iusti•…]an taken away▪ and a •…]tie dec•…]eed against them that had giuen the cause of the seperation▪ which were especially grounded vpon 〈◊〉]; and poi•…]ning attempted▪ but not hauing taken effect. Yet notwithstanding the decree of Iustinian, it is by our custome permitted vnto the wife wronged or euill entreated by her husband, to require seperation. And yet 〈◊〉] all [Page 18] that is no action of iniurie to be suffered betwixt the husband and the wife (as some [ F] [Sidenote 68 - *] would haue it) and that for the honour and dignitie of marriage; which the law hath had in so great regard, that it permitteth not the husband, or any third man to haue an action of •…]elonie against the wife, although she haue embeseled or purloyned all her [Sidenote 69 - *] husbands moueables. But as no loue is greater than that of marriage, (as saith Artem•…]dorus) so is the hatred of all others most deadly, if it once take root betwixt man and wife; as was well declared by Leo Embassadour from them of Bizance vnto the Athenians, whome when they in a great assembly had laughed to scorne for his small stature, Why (said he) do you laugh at me a dwarfe, seeing my wife is much lesse than my selfe, and scarce so high as my knee; who pleased, although wee lie in a verie little bed, yet falling out the one with the other, the great Citie of Constantinople is too [ G] little for vs two? Which his pleasant speech serued wel to the matter he had in hand, which was to persuade the Athenians vnto peace; which is not easie to doe betwixt the husband and the wife, especially if one of them hath once sought after the life of the other. And for that cause the law of God concerning diuorcement (which was afterwards [Sidenote 70 - *] common to all people, and yet at this present is vsed in Affrick, and in all the east) gaue leaue to the husband to put away his wife, if she pleased him not, with charge that he might neuer take her againe, and yet might well marrie another; which was a meane to keepe the insolent wiues in subiection, as also to represse the anger of the wayward husbands; for what woman (except she were an arrant whore) would bee so desirous of a man, as to marry an husband that without any iust or probable cause had [ H] put away his wife. Now if it shall seeme to any an vnreasonable thing, to bee lawfull for a man to put away his wife, for no other cause but for that hee liketh her not, I will not greatly striue, either therefore depart from the law now with vs in vse. Yet nothing seemeth vnto me more pernitious, than to constraine the parties so in dislike to liue together (except they will) to declare the cause of the diuorcement they desire, [Sidenote 71 - *] & also wel proue the same before the Iudge: For in so doing, the honor of the one or of both the parties is hazarded▪ which should not so be if neither of them were enforced [Sidenote 72 - *] to proue the cause of the diuorce vnto the Iudge. As did in auncient time the Hebrews, and yet do at this present also, as we see in their Pandects, where is described the lawful act of diuorcement, & the bil of diuorcement which Rabi Ieiel of Paris gaue vnto [ I] his wife the xxix. of Octob. in the yere from the creation of the world [Sidenote 73 - *] 5018. Another example thereof is also extant in the Epitome of the Hebrew Pandects▪ collected by the Lawyer Moyses de Maymon in Chaldea, where the Iudge of the place hauing seene the special procuratiō, & the act of him that had put away his wife in the presence of three witnesses, adioyneth thereunto these words, That he did purely and simply diuorce her, and without any cause showing, giuing them both leaue to marry whome they should see good. In which doing the woman was not dishonoured, but might with safe reputation marrie with another •…]ortable to her owne qualitie. And albeit that the Athenians admitted no diuorcement, except the cause were first proued before the Iudges, yet seemed it to all good men to be a thing of great daunge•…]: insomuch that [ K] [Sidenote 74 - *]Alcibiades fearing the publick scandall tooke his wife openly complaining before the Iudges, and carried her away home vpon his shoulders. More indifferently delt the auncient Romans, in ioyning no cause at all vnto the bill of diuorcement: as is to be seene when Paulus Aemilius put away his wife, whome he confessed to be very wise, [Sidenote 75 - *] honest; and nobly descended; and by whom he had also many faire children: but when his wiues friends complaining vnto him, would needs know of him the cause of the diuorce, he showed them his shoo▪ which was very handsomly and well made; and yet said he, none of you but my selfe feeleth where this shoo wringeth mee▪ But what if [Page 19] the cause seeme not sufficient vnto the Iudge? or be not well proued? is it therefore [ A] meet to enforce the parties to liue together, in that societie which is of all other the straitest▪ hauing alwaies the one the other the obiect of their griefs stil before their eies. Truly I am not of that opinion: for seeing themselues brought into extreame seruitude, [Sidenote 76 - *] feare, and perpetuall discord, hereof ensue adulteries, and oftentimes murthers and poysonings, for the most part to men vnknowne; as it was discouered in Rome, before the law of diuorcement (first made by Spurius Caruilius, about 500. yeares after the foundation of the citie) a woman being apprehended and conuicted for poysoning her husband, accused other her companions in the fact, who afterward by mutuall accusations appeached seuentie others of the same crime for poysoning their husbands, who were all therefore executed: which how much the more is it to bee feared where diuorcements [ B] are altogether forbidden? For both the Greek and the Roman Emperours, willing to take away the often vse and easinesse of diuorcements, and to amend the auncient custome, ordained no other penaltie than the losse of the dowry, or of the other matrimonial conuentions, vnto the partie that shuld be the cause of the diuorce. Anastasius also suffered diuorcement, by consent of both parties, to bee made without any penaltie or punishment: which was by Iustinian the Emperour, or rather Theodora his wife forbidden. Now of that which we haue alreadie said, euery man as I suppose, may of himselfe iudge which is most expedient for a Commonweale.

But what change or varietie of lawes soeuer in such diuersitie of Commonweals, there was neuer law or custome that exempted the wife from the obeysance, and not [ C] onely from the obeysance, but also from the reuerence that shee oweth vnto her husband; in such sort that the law permitteth not the wife to sue her husband without the leaue of the Magistrat. But as nothing is greater, better, or more necessarie for the preseruation not of Families only, but of Commonweals also, than the honest obedience of wiues towards their husbands, as saith Euripides: so beseemeth it not the husband vnder the shadow of this power, to make a slaue of his wife. And wheras Marcus Varro [Sidenote 77 - *] is of opinion that slaues ought rather to be corrected with words than with stripes; much more ought the wife to be, whom both God and mans law doth call his housefellow. So Homer bringing in Iupiter reprouing his wife Iuno, and seeing her rebellions, vseth great threats, but proceedeth vnto no further extremities. And Cato commonly [ D] reputed to be a sworne enemie vnto women, did neuer beat his wife, reputing that to be as it were a sacrilege; but vsed so to maintaine the power and dignitie of a husband, as that he had his wife alwaies at commaund: which he shal neuer do which of a maister is become her companion, & afterward her seruant, & of a seruant her very slaue. As was of old obiected vnto the Lacedemonians, who called their wiues their [Sidenote 78 - *] Ladies and Mistresses: which the Romans did also, not the priuat men only, but euen [Sidenote 79 - *] their Emperors themselues, in the declination of their Empire; who at length together with their domesticall gouernment lost also their publick soueraigntie. Albeit that [Sidenote 80 - *] such women as take pleasure in commaunding their effeminat husbands, are like vnto them that had rather to guide the blind, than to follow the wise and cleere sighted. [ E]

Now the law of God, and the holy tongue, which hath named all things according [Sidenote 81 - *] to the true nature and proprietie thereof, calleth the husband Bahal▪ that is to say, Lord and maister; to show that vnto him belongeth the soueraigntie to commaund. The lawes also of all nations, to abate the pride of women, and to make men know that they ought to excell their wiues in wisedome and vertue, haue ordained that the honor and glorie of the wife should depend of her husband, as of the Sunne: in such sort that if the husband be noble, he enobleth his base wife; but if the wife beeing nobly borne marry a man of base degree, shee looseth her nobilitie, albeit that of auncient time [Page 20] there haue bene many and yet are, which take their nobilitie and gentrie from their [ F] mothers, and not from their fathers; as the Lycians, the Delphiens, the Xanthiques, the Ilienses, and the Capadocians: whether it were for the vncertaintie of their fathers, or for that they had lost all their nobilitie in the warres; as in Campagne; where the wines (for the cause aforesaid) ennoble their bale husbands and their children; as also among the Indians in Calecut, the kings euen yet▪ and the Nobilitie which they call Naires haue scarce at any time their owne children inheritors of their kingdome or goods▪ but the children of noble women although they be bastards: yet for all that the interpretors of the law hold▪ that it ought not so to be done either by custome or decrees; for the generall agreement of almost all people to the contrarie, as Herodotus hath long ago written. And therefore it is most right that the wife should follow the [ G] Condition, Countrie, Familie, Dwelling, and beginning of her husband: and in case that her husband be an exiled or banished man, yet is the wife bound to follow him, wherein all the interpretors both of the Canon and Ciuill law agree. All lawes and customes also haue made the husband maister of his wiues actions, and to take the profit of all the lands and goods that to her befall: and suffer not the wife to stand in iudgement either as plaintiue or defendant, without the authoritie of her husband; or at least without the authoritie of the Iudge who may giue her authoritie so to do in the absence of her husband, or he refusing so to doe. All vndoubtfull arguments to shew the authoritie, power, and commaund that the husband hath ouer his wife▪ by the lawes both of God and man: as also of the subiection, reuerence, and obedience which [ H] the woman oweth vnto her husband, in all honour and things lawfull. Yet I doubt not, but that women in their matrimoniall contracts haue sometimes vsed to couenant not to be in any thing subiect vnto their husbands▪ but for as much as such couenants and agreements are contrarie to the lawes both of God and man, as also vnto publick honestie, they are not to bee obserued and kept▪ in such sort, as that no man can therevnto to be bound by oath.

CHAP. IIII. ¶ Of the power of a Father, and whether it be meet for the Father to haue power of life [ I] and death ouer his children▪ as had the auntient Romans.↩

THe right gouernment of the Father and the children, consisteth in the good vse of the power which God (himselfe▪ the Father of nature) hath giuen to the Father ouer his owne children: or the law ouer them whom any man adopteth for children vnto himselfe: and in the obedience, loue, and reuerence of the children towards their Fathers. This word Power, is common vnto all such as haue power to commaund ouer others; either publickly or priuatly. So the Prince (saith Seneca) hath power ouer his subiects, the Magistrat ouer priuat men▪ the Father ouer his children, the Maister ouer his schollers, the Captaine ouer his souldiers, and the Lord ouer [ K] [Sidenote 82 - *] his slaues. But of all these the right and power to commaund, is not by nature giuen to any beside the Father, who is the true Image of the great and Almightie God the Father of all things, as saith Proclus the Academick. Plato also hauing first in certaine chapters set downe lawes concerning the honour of God▪ saith them to bee as a Preface to the reuerence which the child oweth vnto the Father, vnto whome next vnto God he is beholden for his life, and for whatsoeuer thing els he hath in this world. And as the Father is by nature bound to nourish his children according to his abilitie▪ and to instruct them in all ciuilitie and vertue: so the children also when they are once grown [Page 21] vp are bound, but with a much more straiter bond, to loue, reuerence, serue, and nourish [ A] [Sidenote 83 - *] their Father, and in all things to shew themselues dutifull and obedient vnto them, and by all meanes to hide and couer their infirmities and imperfections, if they see any in them, and neuer to spare their liues and goods to saue the life of them by whome they themselues tooke breath. The which bond, albeit it bee sealed with the seale of nature, and engrafted in euery one of our minds, and carrieth with it a readie execution: yet so it is neuerthelesse, that to show the greatnes thereof there can be no greater argument, than the first commaundement of the second table, which alone of all the [Sidenote 84 - *] ten Commaundements propoundeth a reward vnto children which honour their parents: although no reward be vnto him due that doth but his dutie: and so much the lesse, for that there is no more religious a decree in all the lawes both of God and [ B] man; neither any curse greater in holy writ, than against him who wickedly laughed at the naked priuities of his Father. Neither is it maruell if wee in holy Scripture read [Sidenote 85 - *] [Sidenote 86 - *] of the contentions and strife of the sonnes among themselues, for the getting and foregaining their Fathers blessing; as they which feared more their curse than death: As young Torquatus who cast off by his Father, slew himselfe for sorrow. And that is it why Plato saith, that aboue all things we must haue care of the cursings and blessings that the Fathers giue vnto their children: for that there is no prayer that God doth more readily heare, than that of the Father towards his children. If children then bee so straitly bound to obey and reuerence their parents? what punishment then deserue they that are vnto them disobedient, irreuerent, or iniurious? what punishment can be [ C] great enough for him which shall presume to lay violent hand vpon his Father or Mother? for against him that shal murder either of them, there was neuer yet Iudge or law maker that could deuise torment sufficient for a fact so execrable: although that by the law Pompeia, a punishment be appointed rather new and strange, than fit for such a crime. And albeit that we haue seene one in our memorie (who had caused his Father to be slaine) torne with hot yron tongs, afterwards broken vpon the wheele, and so at last (being yet aliue) burnt: yet was there no man which did not more abhorre the wickednesse of his villanie, than the horror of his punishment, and which said not that he had deserued more than he had yet suffered. Also the wise Solon; when hee had made lawes for the Athenians, being asked why he had appointed no punishment against [ D] him which had killed his Father; answered, That he thought there was no man so wicked as to commit so horrible a fact: which was grauely answered: for the wise law maker should neuer make mention of an offence which is not at all, or but very little knowne, for feare he should not seeme so much to forbid the fact, as to put the wicked in remembrance thereof. But if the crime be great and execrable, he must neither colour it by sufferance, as forgotten, neither point it out vnto the eye with his finger; but by circumstances and propounding of the punishments of like facts, deterre the wicked from such hainous offences. As we see the law of God hath not appointed any punishment against him that murdereth his Father or his Mother, neither against him that beateth either the one or the other (as doth the law Seruia, which condemneth [ E] them to death for such a crime) yet giueth it full power and authoritie vnto the Father and Mother to stone the disobedient child, so that it be done in the presence of the magistrat, to whome for all that it belongeth not to enquire of the truth thereof, or to examine the matter: which was so decreed least the Father should in his anger secretly kill his sonne. As was one in hunting slaine by his Father, whose wife he had defiled: which thing when Adrian the Emperour had vnderstood, said, That so to kill was not the part of a Father, but of a theefe or murtheret: for that the greatest profit of punishment is, that it be exemplarie vnto all. Another part of the law of God [Sidenote 87 - *] willeth, [Sidenote 88 - *] [Page 22] That the child which reuileth his Father or mother should die the death: the examination [ F] whereof is not left vnto the parents, but to the Iudges themselues, to the intent that the offence should not remaine vnpunished. For so great is the loue of the father [Sidenote 89 - *] and of the mother towards their children, that they would neuer (if they might) permit the Iudges to determine of the life of their children, although they had bene of them mortally wounded. As not long agoe it happened with vs, that a Father hauing receiued a deadly wound of his sonne, whome he would haue lightly corrected; and fearing least his sonne apprehended by the magistrat should die for it, ceased not euen to his last gaspe to crie out vnto his son, by speedie flight to saue his life: whom for all that being afterward taken, and confessing the fact, the Iudges condemned to be hanged from an high beame for a time by the feet, with a great stone about his neck, [ G] and so afterwards to be burnt quicke. We haue also another example of our time, of a Mother who would rather endure to be reuiled, wronged, beaten, and troden vnder foot by her owne sonne, than to complaine of him vnto the Iudge; vntill that at length he in most beastly manner discharged his bellie into her pottage: with which fowle fact the Iudge moued, condemned him to make her an honorable amends, and to aske her forgiuenesse: from which sentence hee appealed vnto the parlement of Toulouze, where the former sentence was reuersed as not iust, and the sonne condemned to be burnt quick; the most wretched mother in vaine complaining and crying [Sidenote 90 - *] out against the rigor of the lawes and seueritie of the Iudges, protesting that she did pardon him, and that she had not of him receiued any iniurie at all. And Seneca speaking [ H] of a Father who but thrust his sonne out of his house; O with what griefe (saith hee) doth the Father cut off his owne limmes! what sighes doth he fetch in the cutting! how often doth he mourne for those limmes cut off! and how often doth hee wish to haue them againe!

All this that I haue said, and the examples of fresh memorie by me produced, serue [Sidenote 91 - *] to show that it is needful in a well ordered Commonweale, to restore vnto parents the power of life and death ouer their children, which by the law of God and nature is giuen them, the most auntient law that euer was common vnto the Persians, vnto the people of the vpper Asia, as also vnto the Romans, the Hebrews, the Celtes, and in vse in all the West Indies, vntill they were conquered by the Spaniards: otherwise wee [ I] must neuer hope to see the good orders, honour, vertue, or antient glorie of Commonweals reestablished. For Iustinian the Emperour deceiueth vs in saying that no people had such power ouer their children as had the Romans: For we haue the law of God, which ought to be holy and inuiolat among all people; wee haue the testimonies of [Sidenote 92 - *] the Histories both Greeke and Latine, whereby it is sufficiently to be vnderstood, the Hebrews, Celtes, and Persians to haue had the same power ouer their children that the Romans had. The French men (saith Caesar) [Sidenote 93 - *] haue power of life and death ouer their wiues and children, as well as ouer their slaues. And although that by the law of Romulus power was giuen vnto the husband, for foure causes onely to kill his wife: yet neuerthelesse by the same law, full power was giuen vnto the Father to dispose of the [ K] life and death of his children, without condition or exception thereunto adioyned; and that whatsoeuer they got, was not theirs, but their Fathers: Which power the Romans had not only ouer their own children, but also ouer the children of other men by them adopted. Which power was about 260 yeares after ratified and amplified by the lawes of the xij Tables, which gaue power also vnto the Father to sell his children: and in case they had afterward redeemed themselues, or were set at libertie by such as had bought them, they might yet sell them againe, and so the third time. The like whereof in all points is to be found in the Westerne islands, as we read in the Historie [Page 23] of the Indies. And yet at this present amongst the Moscouits and Tartars (whom the [ A] auncient Historiographers called the Asian Scythians) it is lawfull for the Father to sell his sonne foure times, after which if he shall redeeme himselfe he is for euer free. By meanes of this fatherly power the Romans long flourished in all honour and vertue; and oftentimes was their Commonwealth therby deliuered from most imminent destruction, when the fathers drew out of the Consistories their owne sonnes being Tribunes, publishing laws tending to sedition. As amongst others Cassius threw his sonne [Sidenote 94 - *] headlong out of the Consistorie, publishing the law Agraria (for the diuision of lands) in the behoofe of the people, and afterward by his owne priuat iudgement put him to death, the magistrats, Sergeants, & people standing thereat astonied, & not daring to withstand his fatherly authoritie, althogh they wold with al their power haue had that [ B] law for the diuision of lands. Which is sufficient proofe, this power of the father not onely to haue bene sacred and inuiolable, but also to haue bene lawfull for him either by right or wrong to dispose of the life and death of his children, euen contrarie to the will of the magistrats and people. Also when [Sidenote 95 - *]Pomponius the Tribune of the people, had for diuers causes accused Torquatus vnto the people, and amongst other things had charged him that he too much oppressed his sonne with countrey labour: so it fell out that the sonne himselfe going vnto the Tribune, and finding him in bed, setting his dagger vnto his throat, caused him to sweare to desist from further prosecuting of the accusation against his father. So the Tribune comming againe into the Consistorie least he might seeme to vse collusion with Torquatus, whome he had before accused, [ C] now excused himselfe vnto the people for not presenting his accusation, by the oath extorted from him: which the people vnderstanding, would not suffer him to proceed therein any further. By which two examples a man may iudge that the Romans in their estate, made greater reckoning of the power of the father, than of the lawes themselues, which they called Sacred: by which the head of him was vowed to Iupiter, who had onely attempted in offensiue manner, but to touch the [Sidenote 96 - *] most holy Tribunes bodie. For they were of opinion that domesticall iustice and power of fathers, were the most sure and firme foundation of lawes, honour, vertue, pietie, wherewith a Commonweale ought to flourish. Neither was it maruell if in the Roman Commonwealth we see such rare examples of reuerend dutie of children towards their [ D] parents, as are not els where to be read of: one I haue amongst a thousand alreadie [Sidenote 97 - *] spoken of; and another such there is, as that Painters euen vnto these times vse therewith to embellish their Tables: that is to wit, of the daughter which secretly gaue sucke vnto her father condemned to be pined to death (which neuer suffereth the healthfull man to liue past the seuenth day) which act of piety the Gaoler hauing perceiued, gaue the magistrats to vnderstand thereof; which by them reported vnto the people, not onely obtained her fathers pardon, but also found such grace as that in the selfe same place in perpetuall remembrance of the fact, they built a Temple dedicated vnto Pietie. Yea the very vnreasonable beasts haue a naturall feeling of this kind dutie, and are seene to feed their parents now growne weake with age: but especially the Storke, [ E] which the holy tongue [Sidenote 98 - *] (which nameth things according to their secret proprieties) calleth Chasida, that is to say, dutifull and charitable; for so much as shee nourisheth her father and mother in their age. And albeit that the father be in dutie bound to instruct his children in all vertues, but especially in the feare of God: yet if hee shall forget his dutie, are not the children therefore excused of theirs: albeit that Solon the lawmaker contrarie vnto reason, hath by his lawes acquited the sonne from the nourishing of his father, if he haue taught him no trade or occupation whereby to get his liuing. But the right instruction of children (than which nothing can be deuised more profitable [Page 24] or better in a Commonweale) dependeth of that fatherly power which I haue before [ F] spoken of. For publick iustice taketh no knowledge of the disobedientnesse & vnreuerentnesse of children toward their parents, neither of their other vices, which disordered libertie bringeth their young years vnto, as dicing, drunkennesse, whoredome: and albeit that punishment be appointed against such offences, yet neuerthelesse the poore parents carefull of their reputation and credit, neuer are to complaine of their children vnto the Magistrat, neither accuse them; and yet the power to punish them is taken from them: so that children now standing in no feare of their parents, and much lesse of God doe for most part escape the iudgement of the magistrat, who commonly punisheth but slaues and such others of base condition.

But impossible it is that the foundation of a Commonweale being euill laid, (that is [ G] [Sidenote 99 - *] to say, the bringing vp of children •…]nd families) any thing that is firme and sure should be thereupon built. Besides that, the contention, strife, and discord, which we daily see amongst brethren and sisters, were easily appeased and extinguished whilest the father yet liued, their marriages not taking from him this power ouer them: and albeit that he had set at libertie them that were maried, & departed out of his house, to keep house by themselues, (which they easily did not) yet neuerthelesse the remembrance of the reuerend duty they ought vnto their parents for euer remained fast imprinted in the harts and minds of the children. Wherefore should wee then maruell the magistrat to be troubled with so many sutes, and those for most part betwixt the husband and the wife, betwixt brethren and sisters; yea and that more, is betwixt parents and their children? [ H] but that the wife, the children, and seruants, are all loased from the domesticall power of their ancestors. So the fatherly power being by little & little diminished vpon the declination of the Roman Empire; so also shortly after vanished away their antient vertue, & al the glorie of their Commonweal: and so in place of pietie & ciuilitie, ensued a million of vices and villanies. The first staine, and beginning of taking away [Sidenote 100 - *] the power of life and death from parents, proceed from the ambition of the Magistrats, who seeking to encrease their iurisdiction, & by little and little drawing vnto them the deciding of all matters, extinguished all domesticall powers: which happened especially after the death of Augustus Caesar; at which time wee read the magistrats to haue bene almost alwayes occupied in punishing of such as had murthered their parents. [ I] As we read in Seneca, who directing his speech vnto Nero, saith, We haue seene more murtherers of their parents executed in fiue yeares of thy father, than were euer in all ages accused since the foundation of Rome. Now to him that will looke neerer into the matter, it is no doubt, but that if one or two that haue murthered their fathers haue bene executed, ten others haue escaped mans punishment; the health and life of parents being subiect to a thousand daungers, except their children either by the feare of God, or the goodnesse of their owne nature, be kept within the bounds of their dutie; neither ought it seeme straunge vnto any man, that Nero made no conscience to kill his mother, neither repented him to haue killed her, for that it was a thing common: the cause whereof Seneca giueth not, which was, for that the father to chastice his son [ K] must then go to the magistrat to accuse him, which the auntient Romans could neuer endure. For Quintus Fuluius the Senator in the time of Cicero, of his owne authority put to death his sonne, for taking part in the conspiracie of Cateline. And in the time of Augustus, Tatius the Senator being about to proceed against his sonne in a capitall crime, requested Augustus home to his house, who being come thither, tooke not vpon him the place of a Iudge (as saith Seneca) but of a priuat man, as come onely to giue counsell. We see also that by the law Pompeia, made against parricides, all they which are next of kinne are bound to the penaltie of the law, except the father. Yet it sufficiently [Page 25] appeareth, that in the time of Vlpian and Paul the Lawyers, the power that fathers [ A] had of life and death ouer their children lay then in a sort buried and forgotten: for that one of them saith, The father must accuse his sonne before the Iudge: and the other, That the children are not of right to complaine, if they be by their fathers disinherited, considering that in auncient time (saith he) they might put them to death. Both of them flourished in the time of Alexander Seuerus. And yet is there no expresse law to be found which hath taken from parents the power of life and death, before the time of Constantine the great: neither did that law of Constantine directly in expresse tearmes abrogat the old lawes: Dioclesian the Emperour but a little before Constantine hauing decreed that the Iudge ought to giue such sentence against the sonne as the father was willing vnto. Now it is manifest by the law, that a positiue law cannot bee [ B] [Sidenote 101 - *] abrogated by any custome, be it neuer so old; except it be repealed by a contrary law, carrying expresse derogation with it: otherwise being in force and readie to be againe put in vse: insomuch that it was necessarie that certaine lawes of the xij. tables by long custome out of vse, yet for all that should by a new law bee abrogated: which was done at the motion of Aebutius, in whose time the fathers power of life and death, yet kept their children with in the compasse of their dutie. But when the children in the time of Constantine had by the sufferance of their fathers by little and little shaken off that power and authoritie of their fathers, they obtained also of the same Emperour, That of their mothers inheritance their fathers should haue but the vse and profit, and they themselues the proprietie, which their fathers might not alienate. And afterwards [ C] they likewise obtained of Theodosius the yonger, That the proprietie of all manner of goods in generall howsoeuer they came by them, should belong vnto the sonnes, the vse and profit thereof onely being left vnto the fathers; so that they could not alienat the proprietie, neither in any sort dispose thereof: yea and with vs not onely the vse and profit of such goods, but not so much as the bare vse is left vnto the father, which hath so puffed vp the hearts of the children, as that they oftentimes commaund their parents, by necessitie constrained to obey them, or to die for hunger.

Iustinian also would not that children should be set at libertie by their parents without [Sidenote 102 - *] their owne consent, that is to say, without some bountie which the father ought to giue vnto his sonne: when as yet for all that in old time emancipation or setting at libertie, [ D] was the reward of the childs kindnesse and dutifulnes towards his parents. Hereof proceeded that filthie buying and selling of emancipation betwixt fathers and their children: insomuch that such things as the father had giuen vnto the sonne in reward of his emancipation, remained vnto him for gaine; neither was he bound to communicat the same with his brethren, or to haue any whit the lesse therefore of his fathers inheritance, except the same were expressely comprehended in the lawfull act of emancipation: which they also yet vse amongst vs, which haue the Roman decrees for lawes. But if the sonne hath learned any gainefull trade, or is by trafficke in marchandise become rich, and giueth something vnto his father that setteth him at libertie, it is counted vnto the father for the right he should haue in the goods of his son dying before [ E] him, so that he can claime no part therein, although it be not at all expressed in the act of the sonnes emancipation; or yet be expressed that such gift vnto the father yet liuing, should be not let wherefore he should the lesse haue the whole right of the lawfull inheritance, his sonne dying before him. For why? that whatsoeuer it is that is giuen to the father, is accounted as giuen him for his lawfull part: so that by this means the father is in worse state than the sonne, who for all that both by the lawes of God and man is bound to nourish his parents so long as they liue, the father not being bound by the law of Romulus to nourish his sonne, but vntill he be seuen yeares old. And although [Page 26] Lawyers goe farther, neuerthelesse to make it plaine that parents are not [ F] bound to feed their children, it was neuer by any law permitted for children to sue [Sidenote 103 - *] their parents for their food, but by the leaue of the magistrat by humble request before obtained. Besides all these indignities, Iustinian hath exempted all Senators, Bishops, & Consuls from the power of their fathers: as in like case them also which enter into houses of Religion. And in countries also where we vse Statute laws, besides those we haue spoken of, they haue also exempted out of their fathers powers them that are married, or haue beene out of their fathers houses by the space of ten yeares: which hath caused the Italian Lawyers to write that the French men are not in the power of their fathers: as in truth there remaineth nothing thereof, but the imaginarie shadow, when as the father authoriseth his children vnto lawfull acts, as to redeeme [ G] lands of inheritance, which the father himselfe hath sold, or to take a possession doubtfull, or for the trade or traffique of marchandise: in which case the Iudge without the kings letters royall at the request of the father may set at libertie his sonne. And albeit that Philip of Valois set at libertie his sonne Iohn, to giue vnto him the dutchie of Normandie: yet such his emancipation serued to no purpose, no more than those which were ordinarily made; seeing that neither the giuer, neither he to whome the thing was giuen, neither the thing it selfe giuen, were subiect vnto the Roman ciuill law: nor that the fathers (in countries gouerned by customs) had any thing to do with the goods of their children.

But the fathers thus dispoiled of their power, and of the goods got by their children, [ H] [Sidenote 104 - *] it is yet by many demanded, If the sonne may of right defend himselfe, or withstand his father, offering him violence? Neither haue there wanted some which were of opinion, That the sonne might of right so do: as if in that there were no difference whether the father or any other should offer him violence. But if it be so that the souldior which had onely broken the vine trunchion of his Captaine, beating him by right or wrong, was by the law of armes to be put to death: then what punishment deserueth the sonne which layeth hand vpon his father? Yea some haue passed further, and written that the sonne might kill his father, if he were an enemie vnto the Commonweale. [Sidenote 105 - *] But in mine opinion that is not vnlawfull onely for any man to doe, but impietie also for any man so to write: for these men in so doing propound not onely pardon vnto [ I] parricides, but giue leaue also vnto others to presume to do the like, secretly encouraging them to commit so detestable a fact, vnder the color of the publick profit: wheras an antient author saith, That no fault so great canby the father be committed, as that the same should with his murther be reuenged. O what a number of fathers should be found enemies vnto the Commonwealth, if these resolutions should take place? And what father is there which in the time of ciuill warre could escape the hands of his murtherous child? For men know well that in such warres the weakest goeth to the wals, and they that get the vpper hand make all traitors whom they list. And in other wars not onely they are iudged traitors which haue giuen vnto their enemies help and counsell, but also they which haue sold them armour, corne, or other victuals. As by [ K] the laws of England, to aid the enemie in any sort whatsoeuer, is accounted high treason. Which points of treason I see not to be distinguished by these interpretos of the Roman law. But by these resolutions, that is come to passe which posteritie will not [Sidenote 106 - *] beleeue: as that a banished man of Venice, hauing brought to Venice his owne fathers head, who was banished as well as himselfe, demaunded and obtained also in reward of his so exectable a murther, the honours and rewards by the Venetian lawes due; viz. His returne into his countrey, his goods, his children, and the liberties of the citie, before taken from him. But happily it had beene better that the citie of Venice [Page 27] had bene swallowed vp with the sea, than to haue giuen a reward vnto so great and detestable [ A] a villanie. Henrie the second the French king, tooke in good part the excuse of Maximilian king of Bohemia in the yere 1557, in that he had refused to giue safe conduct vnto the duke of Wittemberg, ambassadour for the French; confessing that it was indeed against the law of nations, but that yet neuerthelesse he durst do no other for disobeying of his father. Now if it be lawfull to violat the lawes of nations rather than to disobey our father in so small a matter; what iust excuse can there bee, or reason giuen for the killing of ones father? Wherefore I thus resolue, That there can be no iust cause for which a man may lawfully lay violent hand vpon his father. And albeit that such killing of ones father be in it selfe a fowle fact, yet fowler is the reward thereof; but of all other things most fowle and pernitious it is to allow reward for the same, [ B] for that by prounding such rewards for killing of a mans father, neither brethren can be in safetie from being murthered by their brethren; neither the nighest kinsmen for being slaine one by another. As indeed it chaunced in the yeare 1567 that Sampetre Corse was slaine by his owne cosin germaine; for which he had giuen him in reward ten thousand crownes, which the Senat and people of Genua had caused to be leuied for him. But how much better were it to follow the example of Cicero, who thought it better as it were in silence to passe ouer the selfe same questions moued by the two auncient Philosophers Antiochus and Antipater, as a place too slipperie and daungerous. Ioyning hereunto also, that the law of the Romans it selfe forbiddeth any reward to be propounded vnto banished men for the killing of theeues: howbeit that [ C]Adrian the Emperour would haue him pardoned that had killed a theefe. Wherefore I thus conclude, That princes and law makers should measure the power and authoritie of parents, according to the law of God; whether they be their lawful, or naturall children, or both together; so that they be not conceiued in incest, for such the lawes both of God and man haue alwaies had in detestation.

Now if some shall obiect it to be a thing dangerous, least some furious or prodigall [Sidenote 107 - *] fathers should abuse the goods or liues of their children, vnder colour of their fatherly power: to him I aunswere, that the lawes haue for such men prouided guardians, and taken from them that power ouer another man, considering that they haue not power ouer themselues. And if the father be not sencelesse or mad, hee will neuer without [ D] cause kill his sonne, seeing that he willingly chastiseth him not though he deserue the same. For so great is the loue and affection of parents towards their children, that the law neuer presumed that they would do any thing to their disgrace, but all to their honour and profit. Wherefore the parents are euer thought to be free from all fraud in their childrens affaires, whome to encrease with riches and honor, they doubt not oftentimes to forget the lawes both of God and man. And for this cause the Father hauing slaine his sonne, is not by the law Pompeia subiect to the paine of parricides: for why? the law presumeth that he would not without good and iust cause so doe; and hath priuatly giuen power vnto him to kill the adulterer and his daughter found in the fact together. All most certaine and vndoubted arguments, whereby it is to be vnderstood, [ E] that parents cannot abuse the power of life and death ouer their children; neither that if they could, yet would they. But haply some man will say, there haue bene many which haue abused the same to the vnworthy death of their children; yet bring no example therof: Let vs grant some such to haue bene: should therefore a good law giuer leaue a good law vnmade for the inconueniences which some few times ensue thereof? It being a common saying in the law, That of such things as seldome happen the lawmaker ought to take no care. And where euer was there a law so iust, so natural, or so necessarie, that was not subiect vnto many inconueniences? So that he which [Page 28] would abrogat al laws for some few absurdities ensuing of them, should not leaue one [ F] of them, as Cato the greater wisely reasoned. In briefe (I say) that the natural loue of fathers and mothers toward their children, is impossible and incompatible with so great cruekie, as is the vniust killing of their children: and that the greatest torment that a father can endute, is, to haue either by right or wrong killed his sonne. As in fact it chaunced in our memorie, in the countrey of Aniou, that a father desiring to chastice his sonne, whome running from him he could not ouertake, hauing by chaunce without any such purpose slaine him with a blow vpon the head, with an hard clod of earth which he threw after him, forthwith for griefe hung himselfe, although no man knew any thing therof. Which things the antient Aegyptian law giuers wel vnderstanding, appointed no other punishment against him that had wrongfully or without cause [ G] slaine his sonne, but for the space of three daies after to bee shut vp together with the dead bodie of his sonne so by▪ him slaine: For they thought it a thing detestable, for the death of the sonne to take away the life of the father, from whome he had receiued his. Yet might one say, that if fathers had the power of life and death ouer their children, they might constraine them to do something hurtfull vnto the Commonweale: Whereunto I aunswere first, that that is not to be presumed; and then that although it were so, yet that the lawes had therefore wisely prouided, hauing at all times exempted the children out of the power of their fathers, in that which concerned the publick State. As also Fabius Gurges gaue vs well to vnderstand, who being Consull, and seeing his father a priuat man mounted on horseback comming towards him, [ H] commaunded him by one of his sergeants to alight, which he did, doing honour vnto his sonne, and bidding him in such sort to proceed to defend the Consuls dignitie. And so farre hath it bene from wise fathers to commaund their children any thing that might be hurtfull to the Commonweale, as that there haue bene some of them found to haue put them to death for transgressing the publick lawes: as first did Brutus his two sonnes, and after him L. Torquatus the Consul, who hauing caused his sonne to triumph in his campe for vanquishing his enemie in combat, presently after caused his head to be struck off, for that he had fought with him contrarie to his commandement and contrarie to the law of armes. There is yet one obiection concerning the childrens goods, which if they should be in the full disposition of the fathers, they might [ I] without cause disinherit some, and enrich others: whereunto mine aunswere is, That the lawes haue therefore also prouided, by offering iustice vnto children disinherited; and propounding the causes of lawfull disinheriting. Howbeit that the auntient law of the Romans is more commendable, which neuer permitted the child by way of action to impugne his fathers will and testament; but onely by the way of request, and speaking of his dead father in all humilitie all honour and reuerence, leauing all the matter vnto the discretion and conscience of the Iudge. But after that the Pretors, who could not make any man heire vnto his father, yet by their decrees gaue possession of the goods (the force of which possession, was almost the same that it was to be appointed heire,) & that the magistrats had bound certain definit portions vnto the children; [ K] then forthwith began the parents by little and little to be contemned of their children, & their death by them longed for. Which thing was the cause that one of the Ephori of the Lacedemonians made a law * concerning the making of Testaments, whereby [Sidenote 108 - *] it was lawfull for euery man to bequeath his goods as he pleased▪ (when as before, the libertie of making of Wils was by long custome taken away) alledging that the pride and insolencie of children against their parents was so by the feare of disinheriting to be restrayned. But if any man shall account it better for inheritances to be conferred by the appointment of the lawes than by Testament, I will not striue with [Page 29] him therefore, seeing it is by the law of God [Sidenote 109 - *] set downe that children should not by [ A] assentation and flatterie rather than by their kind duties preuenting their fathers inheritances, spoyle themselues of their mutuall and brotherly loue: but yet why vse we not the same diuine law [Sidenote 110 - *] which giueth vnto the father the power of life and death ouer his children.

We haue before said▪ fathers to haue had that power of life and death ouer them [Sidenote 111 - *] also whome they had adopted: in like manner as they had ouer them whom they had in lawfull matrimonie begotten: and although the lawes of adoption were by the new lawes of Iustinian almost abrogated; yet I thinke no man doubteth but that the law of adoption was of so auntient right, & so common also almost vnto all people, as that it deserueth to be againe called into vse. Wee see the most auntient people to haue had [ B] it in singuler estimation: as we read Iacob himselfe to haue adopted Ephraim and Manasses [Sidenote 112 - *] his nephewes, (albeit he had twelue children yet liuing, who had diuers others also) and gaue them part of the land which hee had by force of armes conquered. Which to haue hene before also in vse with the Aegyptians, is manifest by Moyses, whome the kings daughter▪ [Sidenote 113 - *] adopted for her owne. Wee see also Theseus to haue bene solemnly adopted by Aegeus king of Athens, who made him his successor in the State, albeit that he was but his base sonne: After which time all the Athenians which had base children by Athenian women, were constrained to adopt them, and to cause them to be registred as their lawfull children, and to leaue them their part and portion of their goods as they did vnto the rest of their children. For why? they accounted [ C] none a bastard but him that was begotten of a father or a mother, being a straunger▪ albeit she were a woman of neuer so great honour. As also all the people of the East made little •…]no difference betwixt the children that they had by their wiues and their handmaids. For Iacob the Patriarch made like reckoning of those which hee had by his wiues, and of those which he had by his handmaids: although that Sara had driuen out of his fathers house the child begotten by the handmaid, * least he should haue had part in the lawfull inheritance. And Diodorus [Sidenote 114 - *] also writeth, The children of the Aegyptians begotten of their bondwomen, to haue had as great prerogatiue as the rest that were begot in lawfull marriage. For why? it was lawfull for them to haue as many wiues as they would; as it was also vnto the Persians & all the people of Asta•…] and [ D] almost onely the Germans of all the barbarous nations (as saith Tacitus) had euery one [Sidenote 115 - *] of them but one wife. Thus hauing confirmed the matter by course of historie, it followeth by consequence all the children of one and the same father to haue bene in his power, were they adoptiue or not. But the Romans of auntient time made no more account of their base children than of meere straungers▪ neither were they compelled to adopt them, as were the Athenians, neither to bequeath them any thing by their will, neither had they any power ouer them. Which seueritie of the lawes was yet moderated in the raigne of Theodosius and Arcadius. And afterward it was ordained by the Emperor Zeno, that such base children should be accounted for legitimat, by the marriage of their father afterwards ensuing with their mother. And that more is Anastasius [ E] decreed that all bastards should by adoption be reputed legitimat▪ but first Iustinus, and after him Iustinian abrogated that decree, and shut the gate against bastards, to the end that euerie man should desire to haue lawfull wiues and children; and that auntient houses, and the rights of successions and inheritances should not bee altered and troubled by the adoption of bastards: the rights of adoption neuerthelesse yet still remaining, which had bene receiued to supplie the defect of nature; and whereof the auntient Romans had had so great esteeme, as that the adoptiue fathers had the same power of life and death ouer their adoptiue children, that they had ouer their [Page 30] owne: which was the true cause that women could not adopt children before the [ F] edict published by Dioclesian, considering that they themselues were in the perpetuall power of their parents, husbands, or neere kinsmen: as also in Greece it was not lawful for them to adopt, as writeth the Orator Isaeus. So then the right of adoptions, ennobled by the Romans (and especially after that they had extended the frontiers of their Empire more than euer before) other people also had it so much the more in regard: the Gothes, (I say) the Germans, the French, the Saliens; as we see in the lawes of the Ripuaires, where they vse the word Adfatinir for adopter: holding their adoptiue children in the same degree that they did their owne naturall and lawfull children, in the right of their succession into their inheritance: For by the auntient custome of the Romans they were both indifferently called vnto their fathers inheritances as his [ G] heirs. For so we read in Cassiodorus, that Theodoric king of the Gothes, adopted the king of the Herules: and that Luitpr and king of the Lombards adopted the sonne of Charles prince of Fraunce, by cutting his haire, although he had sonnes of his owne in lawfull marriage begotten: as did in auntient time Micipsa king of the Numidians, adopting Iugurtha his base sonne, albeit he had two lawfull children of his owne, and leauing his kingdome equally diuided amongst them three: when as yet the first and chiefe cause of adoptions was to supplie the defect of nature; that he to whome nature had altogether denied children, or at leastwise male children, might by the authoritie of the law haue that defect supplied. As Scipio Africanus hauing no more children but Cornelia the mother of the Gracchi, adopted the sonne of Paulus Aemilius, afterwards [ H] called Africanus the younger, whome he left the inheritor not of his name only, but of his goods also. And so also Caefar the Dictator, hauing no children of his foure wiues, more than Iulia, which was married to Pompeius, adopted Octauius his sisters sonne, whom by his will he made heire of three parts, with charge that he should beare his name; whereby his owne fathers name was taken away, and hee knowne by the name of his adoptiue father. And he againe hauing no children but Iulia (whome he called the Impostume of his house) adopted Caius and Lucius his sisters sonnes bought at home of their father Agrippa, according to the auntient manner: who afterward dead also without issue, he adopted Tiberius, who adopted Caligula: so did Claudius adopt Nero, vnto whome Galba succeeding without children, [Sidenote 116 - *] adopted Piso before [ I] his armie, which custome was afterwards kept in the adoption of * Aurelianus [Sidenote 117 - *] the Emperour; as would Iustinian the Emperour haue adopted Cosroe king of Persia, which he refused; supposing (though yet falsly) the way vnto the Empire to bee by that meane shut vp. [Sidenote 118 - *] We read also that the Emperour Nerua for lacke of children adopted Traian; & he Adrian; who afterward adopted Antoninus Pius; and not contented to haue adopted so good a man, charged him also whilest he yet liued, to adopt Aelius Verus, and Marcus Aurelius, surnamed the Philosopher, to the intent the Empire should not want the most vertuous Emperours that euer were. But this last hauing begot Commodus heire apparant to the Empire, (but the most vitious man that might be) was about to haue adopted another more worthie of the Empire, had hee [ K] not bene otherwise persuaded by his friends. For that almost no man vsed to adopt others, if he had legitimat children of his owne. For which cause Claudius the Emperour was euil spoken of, for being persuaded by the inticement of Agrippina his second wife, he had adopted Nero her sonne, hauing sonnes and one daughter by his former bed, who were afterwards slaine by Nero. But to leaue straungers which are infinite, and to come to our owne domesticall examples: Lewes duke of Aniou and brother to king Charles, was for want of heire adopted by Ioane (who of her incontinencie was in reproach called Lupa) who in the right of that adoption left vnto him the kingdome of [Page 31] Naples, hauing reiected her nephew Alphonsus king of Aragon, whom she had before [ A] by consent of, the [Sidenote 119 - *] Pope adopted. Afterwards also Rene of Aniou, Lewes his nephew, was adopted by Ioane the yonger queene of Naples for want of children. And at the same time as it were, that is to say, in the yere 1408, Henry duke of Pomeran was adopted by Margaret D'wolmar queen of Denmark, Sweden, & Norway, to succeed her in the same kingdoms. And not long after, Henry the fift king of England was adopted, not by Charles the sixt then distracted of his wits, but by his wife: who by her new son in law, caused Charles her owne sonne to be denounced incapable of the Crowne, albeit that he were a right wise and vertuous Prince. But Iustinian the Emperour willing to remedie such abuses, ordained that adoptiue children should neuerthelesse not faile to enioy the inheritance of their owne naturall or lawfull fathers; for that their adoptiue [ B] fathers would oftentimes vpon small occasion cast them off againe, whereby it came to passe that they went without the inheritance of both their fathers: yet did he wrongfully take away the right of the fathers power, which was the onely marke of adoption, which taken away, nothing more remained. Now it were much better to prohibit adoptions to them, which had sonnes either naturall or legitimat: & in case they had none, that the adoptiue children should succeed in all the right of their owne naturall and lawfull children. Truely by our custome it is lawfull for euerie man to adopt: yet no preiudice is thereby made vnto the next of kin, or them which should lawfully inherite: for that more cannot be giuen or bequeathed vnto the adoptiue sonne, than to him that is a meere straunger: and yet that the father might for all that [ C] receiue the profit of the adoption; whereof Scipio Africanus the Great, in his time complained in the Oration which he had vnto the people of his Censureship: as also after the publication of the law Iulia Pappia, which gaue great priueledges vnto them which had children: they which had none adopted some (to haue the benefit of the lawas, to be capable of some Magistracie or office) and in short time after they had once gained that they sought for, cast off those their adoptiue children againe, so abusing the law. As contrariwise Clodius beeing a noble man borne, caused himselfe to be adopted by a man of base condition, that so discharged of his Nobilitie, hee might bee made Tribune of the * people; but hauing got that office, caused himselfe presently to [Sidenote 120 - *] be set at libertie by his adoptiue father: Which the Senat vnderstanding, decreed that [ D] from thenceforth they which were adopted should not enioy the priuiledge of any publick office: neither that any man should vnder the colour of such children as hee had adopted obtaine any magistracie or honour vnto himselfe; neither hinder substitution made for want of children; neither to haue the benefit of any conditionall legacies, or couenants made or conceiued in hope of children; nor that for such adoptiue children, such donations should be void, as were by the law it selfe to be reuoked when the donatour had any children, either naturall or legitimat; nor that by the adoption of male children, women should be kept from their lawfull inheritance, from which they by the law are wont by the male children to bee excluded; neither that the word Sonne added vnto the lawes, testaments, or other lawfull acts was to be extended vnto [ E] them whome we adopt: all which deceits it is good to cut off, and yet not to extinguish the right of adoptions; and at the least to leaue vnto the adoptiue father his fatherly power, to keepe in obedience his adoptiue sonne. And thus much of the second part of a Familie, concerning the power of a father ouer his children, and of their mutuall duties. Now let vs likewise speake of the third part also.

[Page  32 ]

CHAP. V. [ F] Of the power of a Lord or Maister ouer his Slaues, and whether Slaues are to be suffred in a well ordered Commonweale.↩

THe third part of the gouernment of a Familie dependeth of the power of the Lord oues his Slaues, and of the Maister ouer his seruants; and in their mutuall duties one toward another. For the [Sidenote 121 - *] very name of a Familie, came of Famulus and Famulatio, for that it had in it a great number of Slaues: and so of the greatest part of them that are in subiection in the Familie, men call all the whole houshold a Familie; or els for that there was no greater meanes to gather wealth than by slaues [ G] and seruants, which the Latines call Famuli, the auntients not without cause haue called this multitude of Slaues and seruants a Familie. And Seneca willing to show of what moderation a Master ought to be toward his Slaues, saith our ancestors to haue called the head of a Familie, Father of the Familie, and not Lord. And for that the whole world is full of Slaues, excepting certaine countries in Europe (which since also by little and little receiue them) it is needfull here to reason of the power of Lords and Maisters ouer their Slaues, and of the profits and disprofits which may redound vnto a Commonweale, if slauery should againe be called into vse: a question of great moment not for Families and societies onely, but for all Commonweals also in generall.

Now euery Slaue is either naturall, that is to wit, begotten of a woman Slaue, or [ H] made a Slaue by law of armes; or by some crime committed (whome men call a slaue [Sidenote 122 - *] to punishment) or one which hath for money departed with his libertie, or hath plaid away his libertie, as did in auntient time the Almans: or else such an one as hath voluntarily vowed himselfe to be a perpetuall Slaue vnto another man; as was the manner of the Hebrewes. The prisoner in warre was Slaue vnto the vanquisher, who was not bound to put him to his ransome, if it were not otherwise agreed vpon; as it was in auntient time in Greece, that the Barbarian prisoner taken in warre, might bee put to the chayne, and kept as a Slaue; but as for the Greeke, that he should be set at libertie in paying for himselfe a pound of gold. The like law almost was made amongst the Polonians, [Sidenote 123 - *] where it was decreed by the States, That all enemies taken prisoners in iust [ I] wars, should remaine Slaues vnto the vanquishers, except the king would pay two Florins for euery head. But he that had paid the ransome of any prisoner, was bound to set him at liberue, hauing againe receiued his money: otherwise he might keepe him, not as his Slaue▪ but as his prisoner; according to the most auntient law of the Greeks, which from them deriued vnto the Romans▪ was afterward in vse with all nations. As for debtors, prisoners vnto their creditors, although it were lawfull by the law of the twelue Tables, to diuide them in peeces amongst their creditors, giuing to some more, some lesse, according to the proportion of euery mans debt, if they were not able to [Sidenote 124 - *] pay: yet for all that so it was, that if he had one creditour, he could not take from him his life, and much lesse his libertie, a thing much dearer than life. For the father might [ K] well sell, chop, and chaunge his children, yea and take away their liues also, but yet could not take away their liberue: for the good and noble hart would alwaies rather chuse to dye honestly, than vnworthly to serue as a base Slaue. And that is it wherfore the law of the twelue Tables (which adiudged the debtor not able to pay, vnto the creditor) was shortly after at the request of Petilian Tribune of the people, taken away, and a decree made, That from that time forward the debtor should no more bee adiudged vnto his creditor, or diuided in peeces among his creditours, neither by them for his debt be detained; yet reseruing vnto the creditor power to ceise vpon his goods, [Page 33] or by other way of iustice to come by his debt, so as he saw he might by reason: which [ A] law continued firme and inuiolat 700 yeares, vnto the time of Dioclesian, who caused the same law afterward to be published vpon paine of death.

And thus much concerning all sorts of slaues: for as for them which are taken by theeues or pirats, or by false titles are sold for slaues, they continue neuerthelesse free, and in tearms of right may do all lawfull acts. As for other domestical seruants, which for wages or without wages do their seruice, they cannot by contract or agreement [Sidenote 125 - *] whatsoeuer, doe any thing preiudiciall to their libertie: neither in receiuing any legacie vpon condition be it neuer so little seruile: neither can the slaue himselfe when hee is manumised, promise vnto his lord that hath set him at libertie, any thing preiudiciall vnto his libertie, other than the seruices ordinarie & agreeable vnto all such as are enfranchised. [ B] And this is it for which the Arrests of the Parlement of Paris haue oftentimes disanulled the contracts of seruants free borne, which haue bound themselues vpon a paine to serue certaine yeres: which neuertheles they yet do in England & Scotland, where the maisters after the terme of seruice expired, comming before the Iudges [Sidenote 126 - *] of the places, enfranchise their seruants, & giue them power to weare their caps; which was the auntient marke of a slaue newly enfranchised, to couer his shauen head vntill his haire were growne: which gaue occasion vnto Brutus after that Caesar was slaine, to cause certaine money to be coined * with the impression of a cap vpon it; as hauing set [Sidenote 127 - *] at libertie the people of Rome. And after the death of Nero, the common people went vp and downe the streets with caps vpon their heads, in signe of their libertie. And [ C] king Eumenes after the death of Mithridates, comming to Rome, and with his cap on his head entring the Senat, acknowledged himselfe to hold his libertie by the people of Rome. Now albeit that domesticall seruants be not slaues, and that they may do such acts of libertie as free men may, bee it in iudgement or out of iudgement; yet are they not as simple mercinarie men which labour for their daies wages, ouer whome [Sidenote 128 - *] he that hath hired them hath neither power nor commaund, nor any manner of correction, as the maister hath ouer his domesticall seruants, who owe seruice, honor, and obedience vnto their maisters, so long as they are in his house, and may with moderat discretion chastice and correct them. For domesticall seruants ought to reuerence their maister, and do them all honest seruice and duties: wherof, for that they [ D] haue a mutuall comportment one of them towards the other, and belong vnto morall discipline, we will not in this place reason.

But as concerning Slaues, there are two great difficulties, not yet resolued vpon: the [Sidenote 129 - *] one, Whether slauerie be naturall & profitable to a Commonweale, or contrarie vnto nature, and vnprofitable? the other, What power the lord of right ought to haue ouer his slaue. Concerning the first point, Aristotle is of opinion that the seruitude [Sidenote 130 - *] of slaues is of right naturall: and to proue the same, We see (saith he) some naturally made to serue and obey, and others to commaund and gouerne. But Lawyers, who measure the law not by the discourses or decrees of Philosophers, but according to the common sense and capacitie of the people, hold seruitude to be directly contrarie vnto [ E] nature; and do what they can to maintaine libertie, still interpreting such things as are obscure and doubtfull (whether it be in the lawes, or in testaments, in couenants, or iudgements) so in fauour of libertie, as that they giue no way either to lawes or to testaments: And if so be that the force of the lawes be so great and so plaine as that they may not swarue from them▪ yet do they protest that bitternesse of the lawes to displease them, calling it hard and cruell. But of these two opinions wee must chuse the better. Now many reasons there bee to proue that seruitude is profitable vnto the Commonweale, and also agreeable vnto nature: For euery thing that is contrarie vnto [Page 34] nature, is of no long continuance: and if you would force it against nature, yet will [ F] [Sidenote 131 - *] it of it selfe againe returne vnto the naturall course thereof; as is plainly seene in all naturall things. But seruitude seemeth to haue taken the beginning thereof immediatly after the generall deluge; and euen so soone as any forme of a Commonweale was to be seene, and so hath alwaies euer since continued: and although seruitude in these latter times was left off, for about three or foure hundred yeares, yet is it now againe approued, by the great agreement and consent of almost all nations; yea the people of the West Indies, which are three times greater than all Europe, who neuer heard speech of the lawes of God or man, haue alwaies bene full of slaues; neither hath there bene any Commonweale in the world, which hath not had slaues in it: yea the holiest men that euer liued haue vsed them: yea and that more is, in euery Commonweale [ G] the lord had power ouer the goods, the life and death of his slaue, except some few, where the Princes and lawmakers haue something moderated this power. Now like it is not, that all people and nations in euerie place, so many kings and princes, so many lawmakers (men for their vertue and experience most famous) would with so great consent, and so many worlds of yeares, haue receiued slaues, if it had bene a thing repugnant vnto reason and nature. And what can be more agreeing vnto curtesie and naturall reason, than after victorie obtained, to saue them whome thou hast taken prisoners in iust warre, to giue them meat, drinke, and cloathing, & with great charitie to releeue them? & for so great benefits to exact of them only their seruice & labor? is it not much better than in cold bloud to kill them? And this was the first beginning of [ H] slaues. Now whereas it agreeth also with the lawes of God and man, that he that hath not wherewith to pay for the fault by him committed, should be punished in his bodie; is it not better and more curtesie to haue him kept to labour in the publicke works? whereof such were also called seruants to paine, another kind of seruitude. In like sort, he that shall vniustly lie in wait for another mans goods, life, or state; what doubt is there but that he is a verie theefe and robber▪ and deserueth death? Then is it not contrarie vnto nature, to saue him for labour, in stead of putting him to death: for the word Seruant, commeth of sauing, albeit that some vnskilfull Grammarians reprehend Iustinian in so saying. Now if it were contrarie vnto nature, that one man should haue power of life and death ouer another, there should be neither kingdoms nor seignories, [ I] which were not contrarie vnto nature, seeing that kings and monarches haue the same power ouer their subiects, be they lords or slaues, if they once fall into any capitall crime.

These arguments haue some good show to proue that seruitude is naturall, profitable, [Sidenote 132 - *] and honest, but it may well be answered. I confesse that seruitude is well agreeing vnto nature, when a strong man, rich and ignorant, yeeldeth his obedience and seruice vnto a wise, discreet and feeble poore man: but for wise men to serue fools, men of vnderstanding to serue the ignorant, and the good to serue the bad; what can bee more contrarie vnto nature? except a man should thinke it reasonable for a wise counsellour to be ouertuled by his foolish Prince; or a sober and temperat seruant to bee gouerned [ K] by his bedlem and riotous Maister. As for them that thinke it a charitable courtesie, in [Sidenote 133 - *] vniust warres to haue saued the liues of their prisoners whome they might haue killed, it is the charitie of theeues and pirats, who brag themselues to haue giuen life vnto them whome they haue not depriued of life. For oftentimes it commeth to passe in vniust warres, (as are for most part those that are made by the mightie) that good men are most miserably and shamefully enforced to serue the wicked. And if the vanquished haue wrongfully and without cause (as theeues) made warre, why then put they them not to death? why take they not of them exemplarie punishment? why take they [Page 35] them then vnto mercie, seeing that they are theeues. As for that which is said, That [ A] seruitude could not haue continued so long if it had bene contrarie vnto nature: true it is in things meerely naturall, which according to their naturall proprietie follow the immutable ordinance of God: but hauing giuen vnto man the choice of good & euill, it chaunceth oftentimes to the contrarie; him to chuse the worse, contrarie to the law both of God and nature: in whom his corrupt opinion hath so great power, that it passeth in force of a law, of greater power than nature it selfe; in such sort, that there was neuer so great impietie or wickednesse, which hath not bene esteemed for vertue and godlinesse. Let one example serue for many. We know right well that there can be no more cruell or detestable a thing than to sacrifice men, and yet there are almost no people which haue not vsed so to doe, who all for many ages couered the same with [ B] the vaile of pietie and religion: as yet vnto this our age they of Peru and Brasiles doe, and certaine other people vpon the riuer of Plat; vnto which so prophane sacrifices our auncestors for all that with great deuotion resorted. With like pietie and deuotion the Thracians also vsed to kill their fathers and mothers, growne weake with age, and so afterwards did eat them, to the end they should not languish with sicknes, nor being dead become meat for wormes; as they aunswered the Persian king. Neither must we say that there were none but the auntient Gauls that sacrificed men; which indeed they did vnto the time of Tiberius the Emperour: for long time before, the [Sidenote 134 - *] Amorits and Ammonits vsed to sacrifice their children: neither was it a solemnitie among the Barbarians onely, as generally among the Scythes (as Plutarch writeth) but [ C] also among the Greeks (in whome ciuilitie nor onely rested, but euen from whome it was vnto all other nations deriued): for Achilles (as Homer reporteth) sacrificed vnto his dead friend Patroclus with the slaughtar of men [Sidenote 135 - *]Themistocles also in the Persian warre, sacrificed three men; as did the Persian king at the same time twelue: neither could Iupiter Licius (as is reported) be otherwise appeased but by the slaughter of man, led by the ambiguitie of an old Oracle, and of the Greeke word 〈 in non-Latin alphabet 〉], which without accent signifieth either Light, or a Man. M. Tullius detesteth our auncestors, for that they sacrificed with mans blood: but that he spoke as an Orator, and as best serued his cause: for M. Varro attributeth it to all the people of Italie: as also the manner of vowing in the sacred spring time to haue bene, that whatsoeuer man or beast was that [ D]yere first borne should be sacrificed. A man might also bring for example [Sidenote 136 - *]Iephte general of the armie of the Israelites, who is reported to haue sacrificed his daughter vnto almightie God, much about the same time that Agamemnon king of the Greeks sacrificed his daughter Iphigenia [Sidenote 137 - *] (whereof some well learned men haue made Tragedies) although that he sacrificed nothing vnto God but the virginitie of his daughter; as the Hebrew text plainly declareth; and as Rabbi Leui, and the other Hebrew interpetors all agree. How beit other people did the like with great pietie and deuotion: which proueth well that we must not measure the law of nature by mens actions, bee they neuer so old and inueterat: neither thereof conclude, that the seruile estate of slaues is of right naturall: as also much lesse to attribute it to charitie, or to courtesie, that the [ E] people in auntient time saued their prisoners, taken in warres, whome they might haue slaine; to draw a greater gaine and profit from them as from beasts. For who is hee that would spate the life of his vanquished enemie, if he could get a greater profit by his death than by sparing his life? Of a thousand examples I will produce but one. At the siege of Ierusalem vnder the conduct of Vespasian, a Roman souldier hauing found gold in the entrails of a Iew that was slain, made his companions therwith acquainted, who forthwith cut the throats of their prisoners, to see if they had also swallowed any of their crownes; so that in a moment there were slaine [Sidenote 138 - *] aboue twentie thousand of [Page 36] those Iewes. O faire example of charitie towards captiues! But say some, they are [ F] nourished, they are well entreated for their seruice: but how I pray you are they nourished? and for what seruice doing? Cato the Censor (reputed the best and wisest man of his time) after that he had drawne all the seruice and profit he could from his slaues, euen vntill they were growne crooked with age, so that he could wring nothing more from them, set them then to sale to such as would giue most for them, to draw yet from them the verie price of their blood which yet remained in them, least he should be enforced to nourish them for nought, now growne impotent with age, or else bee faine to kill them, or to set them at libertie; in such sort that the poore slaues in recompence of all their seruice made, were drawne to the gallows by their new masters: not yet so happie as Pallas her mule in Athens, which growne old went about whither she [ G] list vnhalt•…]ed, no man daring in her old age to load or charge her. And whereas there is nothing more holy or more naturall giuen by God vnto mankind, than mariage; yet so it is, that it was not permitted vnto slaues: yea in case that a free man taken captiue had a child lawfully begot by his wife; if the father died in the hands of the enemie, although the mother returned into her libertie, yet neuerthelesse was the child reputed illegitimat.

What should I rehearse the execrable and profuse filthinesse of both sexes, which [Sidenote 139 - *] the poore slaues heretofore were and yet are enforced to endure and suffer? But as for crueltie showed vpon them, it is incredible that we read, and that a man might speake of, if but the thousand part thereof were written: for Authors would thereof say nothing, [ H] if good occasion were not giuen; and we haue not but the histories of the most ciuill people that euer were in the world. For they were enforced to till the ground in [Sidenote 140 - *] chaines (as yet they do in Barbarie,) and to lie in dungeons, the ladders being drawn vp from them, as they yet do in all the East▪ for feare they should be lost, or that they should set fire on the house, or otherwise kill their maisters. Now as for euerie light offence of the slaue, except he were of great price, it was so rigorously punished, as that to haue broken a glasse was vnto him death: as for example, the Emperour Augustus being at supper in the house of Vedius Pollio, it chaunced one of the slaues to breake a glasse; who hauing done no other fault but that (as saith [Sidenote 141 - *]Seneca) was forthwith drawn vnto a pond of Lampreis, which were fed with mans flesh: whereat the poore slaue [ I] crying out, fled vnto the feet of Agustus, entreating him, not for his life, but that hee might not after he was put to death be eaten vp of those fishes, for hee found himselfe worthie of death for the glasse he had broken: but the common opinion was, that the soule of the drowned neuer passed ouer into the [Sidenote 142 - *] Elysian fields; or els that it died together with the body: as Synesius writ of his companions sailing to Alexandria, who in a tempest sodainly risen, seeing the outragious violence of the Sea, drew their swords to cut their owne throats, so to giue way vnto the soule, which they thought otherwise to be in daunger to be drowned together with the bodie: so much the poore slaue feared to be eaten vp of the fishes. But Augustus moued with compassion (as saith Seneca) pardoned the slaue, causing all the rest of the glasses to be broken, and the pond to bee [ K] filled vp. Yet Dion the Historiographer, reporting the same historie, saith that Augustus could not obtaine pardon of Pollio for his slaue, neither to haue commaunded the pond of Lampries to haue bene filled vp, than which nothing was more pretious amongst the Remans: which for all that seemeth to haue bene more probable, seeing that Seneca confesseth Augustus to haue bene therwith contented, neither to haue bene therefore angrie with his friend Pollio. And to shew that this was no new matter more than two hundred yeares before, [Sidenote 143 - *]Quintus Flaminius a Senator of Rome, caused one of his slaues to be slaine, for no other cause but to gratifie and please his Bardache, [Page 37] which said that he had neuer seene a man slaine. Now if it chaunced the maister to be [ A] flame in his house, by whomsoeuer that it was, all the slaues that at the same time were vnder the same roofe, were put to death euerie mothers son. As chanced at the murther of Pedanius great Pretor of Rome▪ when question was made of putting to death al his slaues, following (as saith Tacitus) the auntient custome, the common people being for [Sidenote 144 - *] the most part men enfranchised, fell in mutinie, for that they knew well the murtherer was but one, & yet neuerthelesse there must be put to death 400 of his slaues, all innocent of the fact: neuerthelesse the matter being debated in the Senat, it was there resolued, That the antient custome shuld be kept, & so accordingly al the slaues were put to death. Her passe the murthering of slaues, enforced to kill one another in the lists, or to be torne with wild beasts, so to giue pleasure vnto the people, and to breed in them a [ B] contempt of death. And although the law Petronia had forbidden slaues without cause to be cast vnto the wild beasts: yet was it neuer obserued, no more than the edict of the emperour Nero, who was the first that appointed commissioners to heare the complaints [Sidenote 145 - *] of slaues: and after him the emperour Adrian ordained that inquisition should be made against such as had maliciously without cause slaine their slaues: how beit that long time before they were culpable as murtherers, by the law Cornelia: but that was holden in no regard, and all that the poore slaues could do to saue themselues from the fury of their maisters, was to flie vnto the images of the gods, or of the emperours. For neither the temple of Diana in Rome, which king Seruius (himselfe the sonne of a slaue) had appointed as a sanctuarie for slaues; neither the image of Romulus, which [ C] the Senat had of long time appointed for the selfe same purpose; neither the Sepulcher of Theseus at Athens; neither the image of Ptolemee at Cyrene; neither the temple of [Sidenote 146 - *]Diana at Ephesus, could defend the slaues from the furie of their angrie lords and masters. Howbeit that by the law of the Ephesians the slaue which without iust cause had fled vnto the temple of Diana, was againe restored vnto his master, being before sworne not therefore to entreat him euill: but if the cause of his flight were iust, then was he taken from his master and made seruant to Diana: except women, who might not enter into her temple. But Tiberius of all other tyrants that euer were, the most craftie in his old age, appointed his image for a sanctuarie, propounding capitall punishment vnto all such as should by violence draw any slaue from the same; to the intent that by that [ D] meane the slaues might for the least occasion come to accuse their masters, yea euen of high treason. Insomuch that as Seneca writeth, a certaine Senator fearing to bee bewraied of his slaue, craued pardon of Tiberius for that he had but bene about to touch his chamber pot with a ring vpon his finger, wherein the image of Tiberius was engrauen. In such sort, that the images of the emperours, but especially of tyrants were as snares to entangle the magistrats in, who oftentimes secretly murthered their slaues, for hauing recourse vnto the images, so soone as they were returned thence. But the law of God had therefore much better prouided, appointing euerie mans house for a sanctuarie vnto the slaue flying from his master, forbidding to restore him againe vnto his maister whilest he was yet in choller. For all masters are not of like discretion to [ E]Plato, which said to his slaue, That he would sharply haue corrected him, but that hee was angrie: whereas the Germans (as Tacitus saith) neuer punish their seruants or children but in their rage, and that as if they were their enemies. Thus we see the liues of masters not well assured against their slaues; and the liues of slaues much lesse against their masters. For who could assure himselfe of his life, or of his goods in the time of the tyrannie of Sylla, who had proposed thirtie Sesterties vnto free men, and vnto bond men liberty, as a reward if they should discouer their masters, or bring in the head of any one of them that were by him proscribed? In which feare the citisens were, vntill [Page 38] that threescore thousand of them being slaine, and so the state in a manner againe [ F] appeased, a certaine slaue yet presented vnto Sylla the head of his lord & master, whom Sylla for so doing according to his promise set at liberty, but by and by after caused him to be cast headlong from the rocke Tarpeia. At such time also as persecution grew hot against the Christians, there was no Christian master but was in daunger of his life, or els glad to set at libertie his slaues. But the feare of persecution once ceasing, the lords and masters themselues became tyrants ouer their slaues.

So the state of Families and Commonweals is alwaies in daunger of trouble and ruine, [Sidenote 147 - *] by the conspiracie of slaues combining themselues together: all Histories being full of seruile rebellions and warres. And albeit that the Romans were right great and mightie, yet so it was that they could not let the slaues to rise against the state in al the [ G] townes of Italie except Messana: and afterwards for all the lawes they could make, they could not preuent but that threescore thousand slaues rise in rebellion vnder the conduct of Spartacus, who in set battaile ouerthrew three armies of the Romans. For it is most certaine, that in euerie country whatsoeuer, there was at least ten slaues for one free man: as it is easie to iudge by the musters taken in Athens, where for twentie thousand citisens were found ten thousand strangers, and foure hundred thousand slaues. And Italie (victorious ouer all nations) had many moe, as a man may perceiue by the Oration of Cassius the Senator, whereby he persuaded the Senat for the confirming of Sylla his decree: We haue at home (said he) whole nations of slaues much differing among themselues in manners, fashions, language, and religion. And namely M. [ H]Crassus alone had fiue hundred slaues, who daily brought in vnto him the profit of their gainfull arts and trades; besides them whome he imployed in his ordinarie and domesticall seruice. Milo also in one day set at libertie 300 slaues, least they should haue bene put to torture to depose concerning the death of Clodius Tribune of the people. And that multitude of slaues was it for which the Roman Senate, desirous to put a difference in the habit of slaues, to the intent to haue them knowne from free men: one of the grauest Senators dissuaded the same, showing the daunger like to ensue thereof, if the slaues should begin to enter into the number of themselues; for that so they might easily dispatch themselues of their maisters, for the easinesse of their rising into rebellion, and the difference of their habits. Vnto which daunger Africke & some [ I] part of Spaine should be subiect, if there were such a multitude of slaue as in times past: for that they marked their slaues in the face, which they did not in auntient time, except such of them as were villanous and sturdie knaues, who were thereof called Stigmatic; who at any time beeing manumised, could for all that neuer enioy the full fruit of their libertie or the priuelege of citisens: marking the rest vpon their armes. And this was it for which the Lacedemonians seeing their slaues to multiply exceedingly aboue the citisens (for the hope their masters gaue them of libertie which could get most children, and for the profit euery man drew out of them in particuler) made a decree that three thousand of them such as had the most able bodies should bee taken vp for the warres: whome so pressed out, they forthwith caused to be all in one night slaine, [ K] and that so sodainly and secretly, as that no man knew what was become of them, more than they which had the doing of the matter.

Now this feare that Cities and Commonweals had of their slaues, was the cause [Sidenote 148 - *] that they neuer durst suffer them to beare armes, or to be enrolled in their musters, and that vpon paine of death: and if by necessitie they were constrained to take their slaues, they at the same time freely set them at libertie. As did Scipio Africanus the Greater, who after the great ouerthrow of Cannas manumised 300 of his slaues, al able bodies. Howbeit that Florus writeth, That arms were giuento 8000 slaues; which we also read [Page 39] to haue bene done in the confederat warre. But Cleomenes king of Lacedemonia finding [ A] himselfe vnable to withstand the multitude of his enemies, as also of his slaues, his citisens being for the most part slaine; in his so great necessitie proclaimed libertie to al such slaues as were able to pay fiftie crownes for their heads: in which doing he prouided himselfe both of souldiors and money. Yea not so much as the effeminat people of Asia vsed their slaues in warres, except the Parthians, who might not by their lawes manumise their slaues, whom they made almost as much of as of their children: wherby they grew into such a multitude▪ that in their armie wherwith▪ they put to flight the power of M. Antonius, consisting of fiftie thousand men, there was but 4500 free men, as we read in Iustin: yet had they no cause to rebell, being of their masters so well entreated. But as for other people they were so mistrustfull of their slaues, as that sometimes [ B] they would not haue them to serue in their gallies before they were enfranchised: as did Augustus, who at one time set at libertie twenty thousand to serue him in his gallies. And for feare they had▪ least they should conspire together against the state, to keepe them alwaies busied in other mechanicall arts, Lycurgus amongst the Lacedemonians, and Numa Pompilius in Rome, forbad their owne citisens to vse any manuall occupation. And yet they could not so well prouide, but that euer there was some one or other desperat man, who propounding libertie vnto slaues, still robbed the State. As Viriatus the Pirat, who made himselfe king of Portugall: Cinna, Spartacus, Tacfarinas, [Sidenote 149 - *] and Simon the son of Gerson, captaine of the Iewes, who all of base companions made themselues great lords, by giuing libertie vnto the slaues that followed them. And the [ C] ciuill warres yet continuing betwixt Augustus and M. Antonius, was not to be seene but fugitiue slaues stil on the one side or the other: in such sort, as that after the discomfiture of Sex. Pompeius, there were found thirtie thousand slaues which had taken part with him, whome Augustus caused to be apprehended through his dominions, and by a prefixed day to be againe restored vnto their masters, commaunding the rest to bee hanged that had no masters to lay claime vnto them; as we read in Appian. And in truth the power of the Arabians grew by no other meanes. For as soone as Homar one of Mahomets licutenants, had begun to raise warre in Arabia, and promised libertie vnto the slaues that should follow him, he drew such a number after him, that in few yeares they made themselues lords of all the East. The fame of which libertie, and [ D] the conquests made by those slaues, so encouraged the slaues of Europe, that they began to take vp armes, first in Spaine in the yeare 781, and afterward in Fraunce in the time of Charlemaigne, and of Lewes the godly; as is to bee seene by their Edicts then made against the conspiracie of slaues. And after that also Lothaire the sonne of Lewes, hauing lost two battels against his brethren, called the slaues vnto his aid with promise of libertie: who afterwards gaue the ouerthrow vnto their masters in the yere 852. When sodainly this fire took such hold in Germanie, where the slaues hauing taken vp armes, so troubled the state of the German princes and cities, that Lewes king of the Almans was constrained to raise all his forces to subdue them.

And this was the cause that the Christian princes by little and little released their [ E] [Sidenote 150 - *] seruitude, and enfranchised their slaues, reseruing onely vnto themselues certaine seruices, and the auntient right of succession, if their enfranchised slaues should chance to die without issue: a custome yet in vse in all the lower Germanie; as in many places in Fraunce, and England also. For as yet many remembrances of bondage remaine in the Christian Commonweale: as is to be seene in the lawes of the Lombards & Ripuaires whereby slaues could not haue their iust libertie, or alienat their goods, vntill they had bene twice manumised: and oftentimes the lord or master ioyned vnto the act of infranchisment, That it was done for the health of his soule. For they which first laid the [Page 40] foundation of the Christian Commonweale, had nothing in more regard, than to [ F] find the means how Christian slaues might be set at liberty: so that in hope therof many of them oftentimes became Christians; & their masters for the health of their souls were content so to enfranchise them. Wee also read in the Histories of Africk, how that Paulinus bishop of Nolo, after hee had sold all his goods to redeeme Christian slaues, at last (which a man would wonder at) sold himselfe also vnto the Vandales for his brethren. And hereof came the manumission of slaues made in churches before the bishops. Whereof, in the raigne of Constantine the Great, ensued such a multitude of poore and needie men, who had nothing but their libertie to liue vpon (of whome the most part would do nothing, and the rest could do nothing) as that cities were with nothing more charged than with them. Hereof, began the almes-houses, and [ G] [Sidenote 151 - *] hospitals, for the reliefe of little children, of the aged, of the sicke, and of them that could not labour, to be erected and endowed by the Christian princes, at the requests of the bishops. Hereof S. Basil in his sermons complaineth, that the cries and gronings of the poore and weake were in the Churches confounded and mingled with the songs and prayers of the Priests. Much about which time Iulian the Apostata in despite of the Christians [Sidenote 152 - *] exhorted the Pagan bishops by the example of the Christians to the building and endowing of almes-houses and hospitals for the reliefe of their poore. And for that poore men set at libertie, did oftentimes lay forth their children to bee brought vp of the charitie and liberalitie of the Christians: Gratian made a law, That the children so exposed and left vnto the world, should be slaues vnto them that had [ H] so nourished and brought them vp. And not long after, Valens the Emperour by an Edict gaue power to euerie man to take vp the vagrant and idle persons, and to cause them to serue them as slaues; forbidding also and that vpon paine of death, any to goe into the woods or deserts there to liue as Her•…]ts; of whome he caused a great number which had contrarie to his Edict so gone out, to be executed; to the intent to cut off idlenesse, and to draw euerie man vnto labour. But after that Idolatrie began to decay, and the Christian religion to encrease, the multitude of slaues began also to diminish; and yet much more after the publishing of the law of Mahomet, who set at libertie all them of his religion. To the imitation of whome, the Christians also so frankly set at libertie their slaues, as that all seruitude and slauerie seemed in that age to haue [ I] bene shut vp with the West Indians, wherein the Christians had shaken off from their necks all bondage, about the yere 1250: yet for all that, that there were slaues in Italie in the yeare 1212, it is euident, as well by the lawes of William king of Sicilie, and Frederick the second Emperour; as also by the decrees of the bishops of Rome, Alexander (I say) the third, Vrban the third, and Innocentius the third, concerning the marriages of slaues, which the Lawyers call Contabernia, or keeping of companie together: which Alexander was chosen Pope in the yeare 1158, Vrban in the yeare 1185, and Innocentius in the yeare 1188. Whereby it is euident, the Christian Common▪ weale to haue bene cleere of slaues since the yeare 1250, or there about. For Bartholus [Sidenote 153 - *] who flourished in the yeare 1300, writeth that there were no slaues in his time; and [ K] that by Christian lawes men might no more sell themselues, vnderstanding the Edicts made by the Christian princes: which when Nicholas the Sicilian, otherwise called the Abbot of Panormo had learned of Bartholus, he thought it a thing well worth the noting. Neuerthelesse we read in the Historie of Polonia, that euerie prisoner taken in good warre, was then and long time after slaue vnto him that had taken him, if the king would not pay two Florins for his head, as I haue before said: and yet at this present the subiects bound vnto the soyle whereon they were borne, which they call Kmetos, are in the power of their lords, who may at their pleasure kill them, and not bee called [Page 41] into question therefore: and if so be that they kill another mans subiect, then are they [ A] acquited by paying ten crownes; the one moitie to the lord, and the other moitie vnto the heires: so as we read in the lawes of Polonia; which are the like in the kingdoms of Denmarke, Sweden, and Norway. But it is more than 400 yeares agoe, since that Fraunce suffered in it any true slaues. For as for that which we read in our histories, that Lewes Hutin, who came to the crowne in the yeare 1313 (the selfe same time that Bartholus liued) set at libertie all slaues for money▪ to defray the charges of his warres; [Sidenote 154 - *] that is, as I take it, to be vnderstood of manumised men, which we call Mort-maines, whome we euen yet at this present see to be set at libertie by the kings royall letters patents, from that bond of seruitude wherby they are prohibited to marrie a wife, or to alienat their goods out of the territories of their Patron. So also we are to vnderstand [ B] the edict of Charls the fift the French king, wherin in cities euery 70 families, in country villages euerie hundred families, and euery 200 heads of slaues, were be charged with a man at armes; which they should not haue done if they had bene in the possession of another man, & accounted as another mans goods. So it is also to be vnderstood that is written of Humbert Dauphin, who at the same time by one edict enfranchised all the slaues of Dauphine, and commaunded the same to be enrolled in the publick acts and lawes of the countrey. The same curtesie vsed Theobald countie d'Blois towards his slaues, in the yeare 1245. To this also belongeth that which wee read of Sugerius abbot of the couent of S. Dionyse, who set at libertie his manumised slaues, so that they chaunged their dwelling. And also the auntient decree of the Parliament of Paris, [ C] whereby it was permitted to the bishop of Chalons, by the consent of his Chapiter, to enfranchise his slaues. Charles the seuenth also comming to the crowne in the yeare 1430 enfranchised diuers persons of seruile condition. And in our memorie king Henry the second by his letters pattents enfranchised them of Burbonnois, in the yere 1549. By whose example also the duke of Sauoy did the like in all his countries, in the yeare 1561. All which we see done in the great fauour of libertie. Whereas otherwise the Prince, of his owne lawfull power could not enfranchise another mans slaue, and much lesse the magistrat, what intercession soeuer the people should make: neither could he so much as giue vnto him that was by another man enfranchised, so much as leaue to weare a ring of gold, without the consent of his patron. For Commodus the Emperour [ D] by his edict tooke from all them their rings of gold, who had obtained that priueledge of the prince without leaue of their Patron: neither would he haue it any thing preiudiciall vnto the Patron, that his enfranchised slaue had obtained of the prince this priueledge, albeit that the prince had restored him to the state of a free borne man: which was a far greater matter than to haue obtained the priueledge to weare a ring of gold: which albeit that it belonged vnto the prince onely to grant, yet so it was neuerthelesse in the time of Tertullian, that the patrons had in a manner got that power vnto themselues, [Sidenote 155 - *] giuing vnto their enfranchised slaues a ring of gold and a white gowne, in stead of yron giues and whips, causing them so attired to sit downe at the table with them, and to beare their name. And at last Iustinian himselfe by a generall edict restored all [ E] them that had bene slaues enfranchised vnto the state of free borne men; so that for the confirmation thereof they needed not afterwards any the princes charter. Which law for all that we vse not: for in [Sidenote 156 - *] this realme he must of necessitie obtaine the prince his letters patents, which haue alwaies vsed to restore vnto manumised men and of seruile condition, the state of free borne men, and to blot out all the staine of their old slauerie; which letters were woont to be both requested and obtained without the leaue of the patron: who for all that may lay hands vpon such goods of his enfranchised slaue as were got before he was set at libertie wheresoeuer they be; as not long since [Page 42] was adiudged by the court of Paris: as for such things as they get afterwards they may [ F] hold them to themselues; and hauing no children, by their testaments bestow them vpon whome they please. I haue seene the lord of the White Rocke in Gascongue claime to haue not onely a right ouer his manumised subiects, and also that they were bound to trimme his vines, to till his grounds, to mow his meddows, to reape and thresh his corne, to carrie & recarrie whatsoeuer he should command them, to repaire his decayed house, to pay his ransome, and also the foure accustomed payments vsed in this realme; but also that if without his leaue they should chaunge their dwelling places wherein they were borne, or depart out of his land, hee might lead them home againe in an halter: vnto all which the aforesaid seruices his manumised people yeelded, sauing vnto the last, which by a decree of the Parlement of Tholouze was cut off, [ G] as preiudiciall vnto the right of libertie. Truly they whome the Polonians call Kmetons, are not compelled to do their patrons so great seruice; but yet suffer things much grieuous: for that any man may kill them for the small paiment of ten crownes, and their lord may so doe for nothing. And in former time it was lawfull amongst the Indians by all meanes to tyrannise vpon their seruants, which were in number infinit, yea and to kill them also; vntill that Charles the fift by a law which he made commanded then all to be free. But in Fraunce, although there be some remembrance of old seruitude, yet is it not lawfull there to make any slaue, or to buy any of others: Insomuch that the slaues of strangers so soone as they set their foot within Fraunce become [Sidenote 157 - *] franke & free; as was by an old decree of the court of Paris determined against [ H] an ambassador of Spain, who had broght a slaue with him into France. And I remember that of late a Genua marchant hauing brought with him vnto Tholouze a slaue whome he had bought in Spaine, the hoast of the house vnderstanding the matter, persuaded the slaue to appeale vnto his libertie. The matter being brought before the magistrats, the marchant was called for; the Atturney general out of the records showed certaine auntient priueledges giuen (as is said) vnto them of Tholouze by Theodosius the Great, wherein he had granted, That slaues so soone as they came into Tholouze should be free. The marchant alledging for himselfe that he had truly bought his slaue in Spaine, and so was afterward come to Tholouze, from thence to goe home to Genua, and so not to be bound to the lawes of Fraunce. In the end hee requested [ I] that if they would needs deale so hardly with him, as to set at libertie another mans slaue, yet they should at least restore vnto him the money hee cost him: whereunto the Iudges aunswered, That it was a matter to be considered of. In the meane time the marchant fearing least he shou•…]d loose both his dutifull slaue and his money also, of himselfe set him at libertie, yet couenanting with him that he should serue him so long as he liued. Yet for all that, those priueledges which they of Tholouze boast to haue bene granted them by Theodosius, seeme not to haue bene so, seeing that Narbona a true Colonie of the Romans, and the most auntient that was in Fraunce, Lectore, Nysmes, Vienne, Lyons, Arles, Romans, and many others, which were also Roman Collonies, no nor Rome itselfe the verie seat of the Empire, had not any such priueledge. [ K] And thus much concerning the enfranchising of slaues.

But now here might a man say, If it be so that the Mahometans haue enfranchised all the slaues of their religion, which hath course in all Asia, and almost in all Africke, [Sidenote 158 - *] with a good part of Europe also; and the Christians haue semblably done the like (as we haue before showed:) how commeth it to passe that yet the world is so full of slaues and slauerie? For the Iewes may not by their lawes haue any slaue of their own nation, neither by the lawes of the Christians may they haue any Christian. Truely all in that swerue from the law of God: For the law of God forbiddeth any slaue to [Page 43] be made by the order of the Israelites amongst themselues, except that any of them [ A] shall of his owne accord giue himselfe in bondage to another, and suffer▪ his eare to be [Sidenote 159 - *] bored through to a post with an aule: truely it adiudgeth the debtors vnto [Sidenote 160 - *] the creditors, and suffereth the Iewes to bee sold for pouertie: yet the same law commaundeth them at the seuenth yeare to be set at libertie. And although a man haue enthraled himselfe, and suffered himselfe to be thrust through the eare with an aule, insomuch that he be bound to perpetuall seruitude: yet neuerthelesse all the interpretors of the law affirme, That in the yeare of Iubiley he shall againe recouer his libertie, except he had rather againe serue than become free. But such bondslaues as were borne of those kind of slaues which had of their owne accord giuen themselues into bondage, they were in the fiftith yeare to be set free: at which time the law by [Sidenote 161 - *] the sound of [ B] trumpet denounceth libertie vnto all manner of slaues. Yet doth the law permit them to haue straungers, of another nation and religion than their owne, in perpetuall bondage; and that their posteritie and nephews might vse the same right against straungers, that straungers might against the Isiaelites: than which kind of slaues Iulian the Emperour writeth none to haue bene better. You see (saith he) how willingly the Syrians serue other nations: and contrariwise what a loue of libertie is in the people of the Celtes. But the Iewes when they had bought any straunge bond▪slaues of the Christians, or of the Pagans, they instructed them in their owne religion, and so circumcised them: which thing Traian by a speciall law forbad: and albeit that they had yeelded vnto their lords or maisters religion, yet neuerthelesse they enforced them [ C] still to serue: Whereas by [Sidenote 162 - *] the law it was prouided, that such straungers as being circumcised had receiued the law of God, should enioy the same priuiledges and benefits that the natural citisēs did. The same law (saith it) shal be vnto the stranger & the citisen. That is it that God by the Prophet Ieremie [Sidenote 163 - *] complaineth of, Slaues not to be set at libertie according to the law: and therefore a most heauie bondage to hang ouer the maisters heads from their enemies. Hereupon also Philip the French king draue the Iewes out of his kingdome, confi•…]cating their goods, for that contrarie vnto the law they circumcised Christians, and tooke them vnto themselues into bondage for slaues. The like deceit we see the Mahometans to vse, whose manner is to circumcise and to instruct in their religion such Christians as they haue taken in warre, or bought of pirats, [ D] or at leastwise their children, whome neuerthelesse they compell to serue with all their children and posteritie. Whose example the Portingals following, compell the bondmen whome they haue bought out of Africke, to abiure the Mahometan religion, and instructing them in the Christian religion, cause them neuerthelesse with their children and ofspring to serue them in perpetuall slauerie: so that now whole droues of slaues are sold and that openly in all parts of Portugall, as if they were beasts. In like manner the Spaniards hauing brought the Neigros vnto the Christian religion, keepe them neuerthelesse and all their posteritie for slaues. And albeit that Charles the fift had by a generall edict made in the yeare 1540 set at libertie all the slaues of the West Indies, neuerthelesse a sedition there rising through the couetousnesse and insolencie of [ E] them that were in greatest power, Gonsales Pizzare gouernor of that prouince reuolted from Charles: whose power when Lagasca had discomfited, and for publike example had caused him to be beheaded together with the chiefe men of that rebellion, hee according to the edict, set at libertie all the slaues; yet with condition, that they should still serue their patrons. And yet for all that it could not be brought to passe, but that Lagasca returning into Spaine, these late enfranchised men fell againe into their slauerie: and especially for the profit which their lords and masters were▪in hope to haue by the selling of them: to the imitation of the Portugals, who first called in againe Seruitude, [Page 44] now for many worlds of yeares buried in forgetfulnesse in Europe; and are in [ F] [Sidenote 164 - *] short time like enough to disperse the same ouer all Europe, as it is now alreadie begun in Italie. For now a good while ago Africa and Asia, and the Easterne part of Europ also haue accustomed to nourish and bring vp in euery citie, stocks of slaues, in like maner as if they were beasts, and of them to make a great marchandise and gaine. For within this hundred yere the Tartars (a kind of Scythian people) in great number with fire and sword entring into the borders of Moscouia, Lituania, and Polonia, carried away with them three hundred thousand Christians into captiuitie. And not long ago euen in our memorie, Sinan Bassa hauing taken the Ifle of Gozo neere vnto Malta, led away with him 6300 Christians, and all the inhabitants of Tripolis in Barbarie, which he sold in Graecia. So that it is not to be maruelled that the captaine of the [ G] Turkes Ianizaries, and either of his Chauncellors (whome they call Cadelesquiers) vse euerie one of them at their entrance into their office to receiue of the prince three hundred slaues. For as concerning the Turkes Pretorian souldiors, and those youths which are taken from the Christians as tribute, and are called tribute children, I neuer accounted them for slaues; seeing that they are enrolled in the princes familie, and that they alone enioy the great offices, honours, priesthoods, authoritie and honour; which nobilitie extendeth also vnto their nephewes in the fourth degree, and all their posteritie afterward beeing accounted base, except by their vertue and noble acts they maintaine the honour of their grandfathers: For the Turkes almost alone of all other people measure true nobilitie by vertue, and not by discent or the antiquitie of [ H] [Sidenote 165 - *] their stocke; so that the farther a man is from vertue, so much the farther hee is (with them) from nobilitie.

Wherefore seeing it is proued by the examples of so many worlds of years, so many inconueniences of rebellions, seruile warres, conspiracies euersions and chaunges to haue happened vnto Commonweals by slaues; so many murthers, cruelties, and detestable villanies to haue bene committed vpon the persons of slaues by their lords and masters: who can doubt to affirme it to be a thing most pernitious and daungerous to haue brought them into a Commonweale; or hauing cast them off, to receiue them againe? Now if any man shall say, That the rigour of the lawes may by forbidding, and seuere punishment moderat the cruelty of maisters ouer their slaues: [ I] What law can there be more iust, more strong, and indifferent, or better than the laws [Sidenote 166 - *] of God, which hath so wisely prouided as to forbid to chastise slaues with whips (which the Roman lawes permitted) and willeth the slaue to be enfranchised, if his maister shal breake any lim of him? which law Constantine the Emperour afterward approued. But who shall prosecute the suite against the lord for the death of the slaue? who shall heare the complaint? who shall exact due punishment therefore? shall hee that hath nothing to do therwith? considering that tyrants hold it for a rule in policie, That one cannot be too seuere vnto his subiects, so to keepe them low and obedient. But the Spaniards (some will say) entreat their slaues courteously, teach them, and bring them vp, yea and that much more kindly than they do their hired seruans: and they againe [ K] on their part serue their lords and masters with all chearefulnes and loue incredible. But concerning the Spaniards it is a common saying, That there are no maisters more courtious than they at the first; as generally all beginnings are pleasing: so also it is most certaine, That there is no greater loue, than the loue of a good slaue towards his lord: prouided that it meet with an humor agreeing with it selfe. For which cause the law of God (in mine opinion) hath so wisely prouided that no man should serue a perpetuall seruitude, but he which hauing serued seuen yeres, and so well tasted the humor and disposition of his master or creditor, had consented to bee his slaue for euer. But [Page 45] sith there are so few men one like vnto anothe•…] and contrariwise the varietie and [ A] naturall disposition of them infinit, what law giuer can vnto them all prescribe one generall edict, law, or rule. The auntient prouerb, which saith, So many slaues, so many enemies in a mans house, showeth right well what friendship, faith and loyaltie a man may looke for of his slaues. Of a thousand examples of antiquitie I will recite but one, which happened in the time of Iulius Pontanu•…], who reporteth, That a slaue seeing [Sidenote 167 - *] his lord absent, barred the gates, and hauing shamefully abused his mistresse, bound her, tooke his maisters three children, and so going vp to the highest place of the house, seeing his maister comming home, first cast downe vnto him vpon the pauement one of his children, and after that another: the wofull father all dismaid, and fearing least hee should throw downe the third likewise, with prayers and teares besought the slaue to [ B] spare him that was yet left, promising him forgiuenesse for that hee had alreadie done, and libertie also if he would but saue that third. Which his request the slaue yeelded vnto, vpon condition that he should cut off his owne nose: which he chose rather to doe; than to loose his child. But this done, the slaue neuerthelesse cast downe the third child also; and so at last to take that reuenge of himself, which his lord thought to haue done, cast headlong downe himselfe also. And not to be tedious, I omit poysonings, murders, burnings, and many other mischiefes oftentimes euerie where done by slaues. But these inconueniences, you will say, are counteruailed and recompensed with other mutuall profits; for that by receiuing in of slaues we cut off the infinit number of vagabonds and bankrupts, who after they haue deuoured al, would pay their creditors with [ C] [Sidenote 168 - *] bils: & that by that means might be driuen away such a multitude of rogues & naughtie doers, which eat vp whole townes, and as drones sucke the hony from the bees: ioyne also vnto this, that of such idle mates, theeues and pirats furnish themselues; besides that, famine and euil prouision for the poore, draw into townes all populer diseases; for the poore we must nourish and not kill, although it be in a sort to kill them, to refuse to nourish them (as saith S. Ambrose.) These reasons beare some show of truth. [Sidenote 169 - *] For as concerning debtors, if they be not able to pay, God his law commaundeth them to be adiudged to their creditors for seuen yeares, but yet not into perpetuall bondage▪ howbeit that the law of the twelue tables, practised in all the West Indies, and in the greatest part of Africke, will that they remaine still prisoners vnto the creditors, vntill [ D] they be fully satisfied. For they which haue taken away from debtors in ciuil cases the benefit, to leaue vnto their creditors all such goods as they had, and command them to be committed not to their creditors, but to prisons, as the Turkes do; seeme to mee to take away not onely from the creditors, but also from the debtors, all power to keepe themselues, yea and their liues also, as taking from them the meane for them to trauell, and to gaine to acquit themselues. But as for theeues and pirats, there was neuer in any time moe than when the multitude of slaues was encreased: For that the slaue not able to endure slauerie, and at length breaking from his maister, was alwaies constrained to be a theefe or a pirat, not being able to endure his maister, neither to show himself being marked, nor to liue hauing nothing to liue vpon. A better example whereof cannot [ E] be than that of Spartacus the fensor, who at one time assembled out of the verie bowels of Italie three score thousand slaues; when as at the same time aboue fourescore thousand pirats with nine hundred saile of ships were rouing ouer all the Mediterannean, and had with so great forces taken 400 cities vpon the sea coast; as that the Roman Empire was both by land and sea as it were beset with theeues and robbers. But the wise law giuer is not hee that driueth robbers out of the Commonwealth, but he that suffereth them not therein to enter: which may easily bee done without that direfull slauerie, so dreadfull vnto states and cities; by erecting in euery towne and citie [Page 46] publick houses for poore children, where they may learne diuers trades and occupations, [ F] as they do 〈◊〉] Paris, hio•…]s, and Venice, and other well gouerned towns, where Seminaries of Artiz•…] are brought vpto the great benefit of the Commonweale. But in such places as wherein slaues are now alreadie receiued, I am not of opinion to haue them altogether and •…]pone time set at libertie, as Charles the Emperour did at Peru: for that so they hauing nothing to liue vpon, nor occupation to gaine by, and delighted with the sweetnesse of idlenesse and libertie, would take no paines: in such sort that the most part of them died for hunger: but the best way is, by little and little to enfranchise them, hauing before their enfranchisement taught them some occupation whereby to releeue themselues. Now if some shall say, That no man is a good master, but he that hath before bene a good seruant: I say that to be an opinion euill [ G] [Sidenote 170 - *] grounded, although it be right auntient: for there is nothing that doth more discourage and ouerthrow, (and if I may so say) a bastardise a good and noble mind, than seruitude; or that doth more abate the naturall maiestie of good natures to commaund ouer others, than to haue bene once a slaue. Salomon also the maister of wisedom saith in his Prouerbs, That there is nothing more intollerable, than when a slaue is become a maister, or a handmaid a mistresse: which he referreth not only vnto a more misticall sence; as when our intemperat desires beare rule ouer our reason: but vnto him also which so dainly passeth from one extremitie to another; as from seruitude to commaund. But if it be true that reason and the law of God is alwaies and euerie where to take place, and that it was not shut vp only within the bounds of Palestine: why should [ H] not that law so profitably & so wisely made by God himselfe, concerning slauerie & libertie, stand in force, rather than that which was by mans wisedom deuised? Howbeit that the Tartars (which are by many thought to bee descended from the ten tribes of Israel) haue alwaies enfranchised their slaues at the end of seuen yeres: yet with condition that they should depart out of their country: which condition was first by Papinian (the great lawyer) reiected, but afterwards by him againe receiued; but beeing ioyned vnto enfranchisments; is accounted as if it were not written at all. And thus much concerning the power of a maister ouer his slaue, and whether slaues are to be suffered in a well ordered Commonweal. But now that we haue sufficiently, & yet also as briefly as was vnto vs possible, entreated of a Familie, & of all the parts therof, which is the foundation [ I] of the whole cōmonweale; let vs now likewise also speak of a Citisen & a City.

CHAP. VI. ¶ What a Citisen is, and how much Citisens differ from Citisens, and how much from strangers: what also is to be vnderstood by the name of a Towne, a Citie, and of a Commonweale.↩

WHat we haue before said concerning a whole Familie, and euery part thereof, containeth in it the beginning of all Commonweals. And as foundations can of themselues stand without the forme of an house, before [ K] the walles be built higher, or any roofe laid vpon them: so also a Familie can of it selfe be without a Citie or a Commonweale: and so can also the maister of a Familie vse his power and command ouer his houshold without depending of the power of any other man: as they say there are many such families in the frontiers of the kingdomes of Fes and of Marocco, and in the West Indies: but a Commonweale can no more be without a Familie, than a Citie without houses, or an house without a foundation. Now when the maister of the Familie goeth out of his owne house where he commaundeth, to entreat and trafficke with other heads [Page 47] of Families, of that concerneth them all in generall, he then loaseth the title of maister, [ A] head, and lord, to be a companion, equall and fellow like with others, leauing his familie to enter into a Citie, and his domesticall affaires to entreat of publick; and in stead of a lord calleth himselfe a Citisen, which is no other in proper tearmes than A free [Sidenote 171 - *]subiect holding of the soueraigntie of another man. For before there was either Citie or citisen, or any forme of a Commonweale amongst men, euerie master of a familie was a maister in his owne house, hauing power of life and death ouer his wife and children: but after that force, violence, ambition, couetousnesse, and desire of reuenge had armed one against another, the issues of warres and combats giuing victorie vnto the one side, made the other to become vnto them slaues: and amongst them that ouercame, he that was chosen cheefe and captaine, vnder whose conduct and leading they [ B] had obtained the victorie, kept them also in his power and commaund as his faithfull and obedient subiects, and the other as his slaues. Then that full and entire libertie by nature giuen to euery man, to liue as himselfe best pleased, was altogether taken from the vanquished, and in the vanquishers themselues in some measure also diminished, in regard of the conquerour; for that now it concerned euerie man in priuat to yeeld his obedience vnto his chiefe soueraigne; and he that would not abate any thing of his libertie, to liue vnder the lawes and commaundement of another, lost all. So the word of Lord and Seruant, of Prince and Subiect, before vnknowne vnto the world, were first brought into vse. Yea Reason, and the verie light of nature, leadeth vs to beleeue very [Sidenote 172 - *] force and violence to haue giuen course and beginning vnto Commonweals. And albeit [ C] that there were no reason therefore, it shal be hereafter declared by the vndoubted▪ testimonies of the most credible historiographers, that is to say, of Thucydides, Plutarch, Caesar, & also by the laws of Solon, That the first men that bare rule, had no greater honour and vertue, than to kill, massacre and rob men, or to bring them in slauerie. These be the words of Plutarch. Yet haue we more also the witnesse of the sacred history, where it is said, that Nimroth the nephew of Cham, was the first that by force and violence brought men into his subiection, establishing his kingdome in the countrey▪ of Assyria: and for this cause they called him the Mightie hunter, which the Hebrews interpret to be a theefe and robb•…]. Which thing also Philo the Iew, and Iosephus by their testimonies confirme, viz. 〈◊〉] by his wealth and power to haue first exercised [ D] tyrannie. Wherein it appear 〈◊〉]Demosthenes, Aristotle, and Cicero, to haue mistaken [Sidenote 173 - *] themselues, in following the errour of Herodotus, who saith, That the first kings were chosen for their iustice and vertue; and haue hereof faigned vnto vs I wot not what heroicall and golden worlds: an opinion by me by most certaine arguments and testimonies elswhere refelled; seeing that the first Cities and Commonweals, long before the time of Abraham were full of slaues: as also not long agoe the Westerne islands did swarme with them at such time as the Spaniards subdued them: a thing that could not possibly be, but by extreame violent forcing the free lawes of nature. And it is not yet past seuentie yeares that the people of Gaoga in Africke had neuer felt or heard of any king or lord whatsoeuer, vntill that one amongst them a trauell or [ E] had in his trauell seene and noted the maiestie of the king of Tombut: and thereupon conceiuing a desire to make himselfe a king also in his owne countrie, hee at first to begin withall, killed a rich marchant; and so possessed of his horses armes and marchandise, diuided them amongst his nie kinsfolks and friends, acquainted with his purpose; by whose aid he by force and violence subdued now some, and after others, killing the richest, and ceasing vpon their goods: in such sort that his sonne became rich with the robberies of his father, made himselfe king, whose successor hath so continued after him in great power, as we read in Leo of Africke. This was the beginning of [Page 48] the kings of Gaoga, which in short time greatly encreased. [ F]

And thus much concerning the beginning of Commonweals, which may serue to manifest the definition of a Citisen, by vs before set down, to be true, which is no other thing to say, but A free subiect holding of the soueraignitie of another man. A free subiect [Sidenote 174 - *] I say, for albeit that a slaue be much more subiect vnto the commaund of the highest authoritie than a free man; yet so it is, that al people haue alwayes with their common consent agreed, That a slaue is no Citisen, and in questions of right is accounted no [Sidenote 175 - *] bodie; which cannot truely be said of mens wiues and children, who are free from all seruitude and bondage; albeit that their rights and liberties, and the power to dispose of their owne goods, be from them in some sort cut off by the domesticall power: in sort that a man may say, that euerie Citisen is a subiect, some small part of his libertie [ G] being diminished by the maiestie of him to whome he oweth obeysance. But euerie subiect is not a Citisen, as we haue said of a slaue; and may also so say of a stranger, who comming into an other mans segniorie, is not receiued for a Citisen, hauing not any part in the rights and priueledges of the Citie; neither is to bee accounted in the number of friends, allies, or coallies, who are not altogether straungers, (as the Lawyer saith) neither enemies also. Howbeit that the Greeks of old called straungers enemies, as also did the Latines, which Cicero hath noted out of the law of the twelue tables; [Sidenote 176 - *] The mildnesse of the word (saith he) mitigating the hardnesse of the thing: and they were called enemies which had conspired against the state. And it may well bee also that those whom we yet by a common word cal Hotes, or Hostes, were in antient time [ H] nothing els but straungers. But men haue since corrected the proprietie of words, the forme of speech still remaining: for the Greeks haue called their enemies 〈 in non-Latin alphabet 〉], as men making warre vpon them; and straungers 〈 in non-Latin alphabet 〉], which signifieth not pilgrims (as saith Acursius) but straungers, be they another mans subiects, or themselues soueraignes in their owne countrey.

Now amongst them whome we said to be subiects vnto publick empires and soueraigne power; some are naturall, some are naturallised; and of them which are naturall [Sidenote 177 - *] some are free borne, some are slaues, and these slaues being set at libertie, in an instant become Citisens, whereas straunger slaues be not so. Yet true it is that the enfranchised slaues in Greece were not admitted to be Citisens, although that they were [ I] of the same countrie, and naturall subiects. For the request of Demosthenes the Orator, which he made vnto the people after the great ouerthrow at Cherronaea, That all the inhabitants of Athens, as well the enfranchised as others, might be accounted Citisens; was reiected and denied, for feare least the enfranchised men (of whom there was a great multitude) should become lords of their estate, and with the number of voyces exclude the naturall Citisens from all honours and promotions; which the greatest number still carried away: which thing the Romans at the first not regarding, had almost before they were aware fallen into the power of the enfranchised men, had not Fabius Maximus in good time foreseene the matter, and thrust the multitude of the enfranchised men, before dispersed amongst all the tribes, into foure tribes apart by [ K] themselues; to the intent that one and thirtie tribes of the free borne men and auntient Citisens, might stil with the number of voices preuaile: for they counted not in Rome their voices by the poll, as in auntient time they did at Athens, and now doe also at Venice; but by degrees and centuries, in the assemblies of their great estates; and by lines or tribes, in their lesse estates. And for that it so great a matter was without sedition done by the onely wisedome of Fabius the Censor, he tooke the surname of Maximus (or of the Greatest:) in which doing he amended the errors of Appius the Censor▪ [Sidenote 178 - *] who had dispersed the enfranchised and naturallised Citisens (the issue of slaues and [Page 49] straungers) amongst all the tribes of the free borne men: yet afterwards (notwithstanding [ A] the order taken by Fabius) it was granted vnto the Citisens enfranchised, that they might enroll one of their sonnes beeing fiue yeares olde or more in the tribe or line of their patron: But when those foure tribes of the enfranchised Citisens seemed yet too puissant and strong, it was decreed, That there should by lot one tribe bee drawne out, wherein all the enfranchised Citisens should giue their voyces. And this was the state of the enfranchised Citisens, vntill the ciuill warre betwixt Marius and Sylla, at which time the people at the motion of Pub. Sulpitius made a law, That the enfranchised Citisens should from that time forward be againe diuided amongst all the tribes, which was the first and principall cause of the ruine of that Commonweale. Wherefore as of slaues some are borne, some are made; so also of Citisens some are made, some are [ B] borne: the naturall Citisen, is he that is free of that wherein he is borne; whether he be borne but of one of his parents a Citisen, or of both of them Citisens. True it is that of [Sidenote 179 - *] auntient time (and yet at this present also in diuers Commonweals) to bee a Citisen it was needfull to haue both father and mother Citisens, as in Greece, otherwise they called them Bastards, or Mungrels, which were but Citisens on the one side, and could not themselues neither their children be partakers of the greatest benefits or offices in the Commonweale, which they called Archontes, as saith Demosthenes in his Oration against Neaera, albeit that many (as Themistocles himselfe) were thereinto secretly entered. But in the time of Pericles fiue thousand of them were sold slaues, who had born [Sidenote 180 - *] the countenance of Citisens. And Pericles himselfe hauing lost his children that were [ C] right Citisens, made request vnto the people, That his sonne might be enrolled among the Citisens, which sonne he had begot at Athens of his wife being a straunger. Wee also read that the Romans made a Collonie of foure thousand Spaniards, whome the Romans had begot of Spanish women, for that they were not true Citisens. But afterward it tooke place that he should be a Citisen whose father was a citisen: and in many places it is sufficient for the making of a citisen, that his mother was a citisen. For the place maketh not the child of a straunger (man or woman) to be a citisen: and hee that was borne in Africk of two Roman citisens is no lesse a citisen, than if hee had bene borne in Rome. Now the made or naturallised citisen is he who hath submitted himselfe vnto the soueraigntie of another, and is so receiued into the number of citisens. [ D] [Sidenote 181 - *] For the citisen of honour onely, who for his merits towards the Commonweale, or of [Sidenote 182 - *] speciall fauour hath obtained the right and priueledge of a citisen, cannot of right bee called a citisen, for that hee hath not put himselfe vnder the power of of anothers commaund.

Wherfore of many citisens, be they naturals, or naturallised, or els slaues enfranchised (which are the three meanes that the law giueth to become a citisen by) is made a Commonweale, when they are gouerned by the puissant soueraigntie of one or many rulers: albeit that they differ among themselues in lawes, language, customes, religions, and diuersitie of nations. But if all the citisens be gouerned by the selfesame lawes and customes, it is not onely one Commonweale, but also one very citie, albeit that [ E] [Sidenote 183 - *] the citisens be diuided in many villages, townes, or prouinces. For the enclosure of wals make not a citie, (as many haue written) no more than the wals of an house make a familie, which may consist of many slaues or children, although they bee farre distant one from another, or in diuers countries, prouided that they bee all subiect vnto the commaund of one head of the familie: So say we of a Citie, which may haue many townes and villages, which vse the same customes and fashions, as are the Bailiwicks, or Stewardships of this realme: And so the Commonweale may haue many cities and prouinces which may haue diuers customes, and yet are neuerthelesse subiect vnto the [Sidenote 184 - *] [Page 50] command of their soueraigne lords, and vnto their edicts and ordinances. And it may [ F] also be that euery towne and citie may haue certaine priuileges in particuler, which are not common vnto them of the suburbes; and the suburbs also may haue certaine prerogatiues which are not common vnto the villages, nor to the inhabitants of the open countrie; who are yet neuerthelesse subiects of the same Commonweale, and citisens of their citie; yet are they not for all that burgesses: for the word citisen hath I know not how a more speciall signification with vs, than hath the word Burgesse: and is properly the naturall subiect, who hath the right of a corporation, or colledge, or [Sidenote 185 - *] certaine other priueledges, which are not common also vnto the burgesses. I haue said the naturall subiect, for that the subiect naturallised although hee dwell in the towne, and enioy the right of a burgesse, is yet called in many places a burgesse: & the [ G] other is called a citisen, who enioyeth a certaine particular priueledge proper vnto free borne citisens. As in Paris there is none but naturall citisens, and borne in Paris, that can be Prouost of the marchants. And in Geneua a burgesse cannot be Syndic, or Senator of the priuie counsell of xxv, which a citisen may well be: which is also vsed amongst the Swissers, and all the townes of Germanie.

And thus much briefly concerning the difference of subiects, citisens, burgesses, and straungers; as also concerning a Commonweale, a Citie, and a Towne. But for as much as there is neither Greeke nor Latine, nor any other writer that I haue seene, which haue vsed these definitions, it is needfull by lawes and by examples to make plaine that which I haue before said, being otherwise of it selfe obscure. For we oftentimes [ H] see great quarrels and controuersies to arise as well betwixt princes, as citisens of the same towne or citie amongst themselues. For not vnderstanding the difference of these words, yea they from whome wee ought to expect the true resolutions of these things, are themselues oftentimes farre wide, mistaking a citie for a towne, a Commonweale for a citie, and straungers for citisens. But they which write of a Commonweale without knowledge of the law, and of the common right, are like vnto them which go about to build faire high houses, without any foundations at all. Aristotle hath defined [Sidenote 186 - *] vnto vs; A citie to be a multitude of citisens, hauing all things needfull for them to liue well and happily withall: making no difference betweene a Commonweale and a citie: saying also, That it is not a citie if all the citisens dwell not in one and the selfe same [ I] place: which is absurditie in matter of a Commonweale; as Iulius Caesar in his Commentaries well declareth, saying, That euerie citie of the Heluetians had foure villages, or cantons. Where it appeareth that the word Citie, is a word of right or iurisdiction, which signifieth not one place or region, as the word Towne, or Citie; which the Latines call Vrbem of Vrbo, that is to say of aratio, or plowing: for that as Varro saith, the compasse and circuit of cities was marked out with the plough. It is also certaine in question of right, That he which hath caried out of the citie, that which was by the law forbidden to be carried out, and hath carried the same into another citie or towne of the same prouince; is neither to be said to haue caried the thing out of the citie, neither to haue offended against the law. Yea the doctors go farther, saying, That hee hath [ K] not done contrarie vnto the law, that hath transported the thing forbidden into any other citie or towne subiect vnto the same prince. And albeit that writers oftentimes confound both, taking sometimes the one for the other, as the greeks oftentimes vse the word 〈 in non-Latin alphabet 〉], and the Latines the word Ciuitas for a towne, a citie, or the right of citisens, for that the generall which is the citie, comprehendeth in it the particular, which is the town: yet so it is, that they abused not the word 〈 in non-Latin alphabet 〉], as we see that Cicero hath well kept the proprietie both of the one and of the other: for the word [Sidenote 187 - *]〈 in non-Latin alphabet 〉] signifieth properly a towne, wherof came the word astuti, which with the Greeks [Page 51] signifieth as much as doth with the Latines Vrbani, for that the inhabitants of townes [ A] are commonly in their behauiour more ciuill and gratious, than are the pesants or rude countrey men: for the word Ciuilis, which we call ciuill, was not of the auntient Latines receiued for Vrbanas, that is to say courteous, or after the manner of the citie. And least any man should thinke them to be rashly confounded, and to be but a question of words, and not of matter: it may be that a towne may be well built and walled, and that more is well stored also with people, and furnished with plentie of all things nececessarie to liue withal, & yet for all that be no citie, if it haue not laws and magistrats for to establish therin a right gouernment (as we haue said in the first chapter) but is more truely to be called an Anarchie than a citie. And so contrariwise it may be, that a towne may be in all points accomplished and haue the right of a citie, and of an vniuersitie, [ B] and well ruled also with lawes and magistrats; and yet neuerthelesse shall it not bee a Commonwealth: as we see the townes and cities subiect vnto the seignorie of Venice, which are no Commonweals no more than the townes in the prouinces subiect and tributarie vnto the citie of Rome were of auntient time no Commonweals, neither enioyed the right or priuiledge of Commonweals; but the citie of Rome it selfe onely, which had great priueledges and prerogatiues against them all in generall, and against euery one of them in particuler: albeit that the lawes speaking, of the other townes, doe oftentimes vse this word (Citie) but that also vnproperly, for Traian the emperour writing to Plinie the yonger, Proconsul of Asia, denieth the citie of the Bithynians to haue the right of a Commonweale, in being preferred before other priuat [ C] creditos in the right of a pledge, and that truely. For why? that was proper vnto the citie of Rome, and to them to whome they had especially giuen this prerogatiue, as was onely the citie of Antioch in all the Roman Empire. So wee see that a towne [Sidenote 188 - *] may be without a citie, and a citie without a towne, and neither the one nor the other of necessitie a Commonweale: and that more is, one and the same citie may still bee kept in the whole and entire state of a citie, the wals thereof being laid flat with the ground, or it quite abandoned by the citisens; as did the Athenians at the comming of the Persian king, vnto whome they left their towne, putting all themselues vpon the sea, after they had put their wiues and children in safetie amongst the Trezenians; following therein the counsell of the Oracle, which had aunswered them, That their citie [ D] could not be saued but by woodden wals: which Themistocles interpreted, That the citie (which consisteth in the lawfull bodie of citisens) could not be saued but by ships. In like manner it happened also vnto the inhabitants of Megalopolis, who vnderstanding of the comming of Cleomenes king of Lacedemonia, all voyded their towne, which for all that was no lesse a towne than before; yet was it then neither citie nor Commonweale: in sort that a man might say, That the citie was gone out of the towne. So spake Pompey the Great, after he had drawne out of Rome two hundred Senators, and the better part of the citisens, and so leauing the towne vnto Caesar, said thus, Non est in parietibus respublica, The Commonweale is not in the wals. But forasmuch as it had in it two sorts of partakers, and that the citisens diuided into two parts [ E] had put themselues vnder the protection of two diuers heads, they now seeme of one Commonweale to haue made two. Wherfore by these words Citie, Towne, Commonweale, Colledge, Court, Parish, Familie, are signified the right of these things. And as oftentimes it hath bene iudged that the church being without the wals of the citie, and the parishioners within the citie, that they should enioy the right of citisens, as if the parish were within the compasse of the wals: so also is it to bee iudged of a citie. Neither let it seeme vnto any man straunge, that I stand something the longer vppon this matter; if he but remember what importance the lacke of knowledge of these [Page 52] things was long ago vnto the Carthaginensians. For at such time as question was [ F] made in the Senat of Rome, for the rasing of Carthage: the report thereof being bruited abroad, the Carthaginensians sent their ambassadors to Rome, to yeeld themselues vnto the mercie of the Romans, and to request the Senat not vnworthily to rase that their citie one of the fairest of the world, famous for the noble acts therof, an ornament of Rome it selfe, and a monument of their most glorious victories. Neuerthelesse the matter being long and throughly debated in the Senat, it was at last resolued vpon, That for the safetie of the Roman empire Carthage should bee destroied, as well for the oportunitie of the place, as for the naturall persidiousnesse of the Carthaginensians themselues, who had now alreadie made warre vpon the allies of the Romans, rigged vp a number of ships contrarie to the agreement of peace, and secretly stirred vp their [ G] neighbour people vnto rebellion. The matter thus resolued vpon, the Carthaginensian ambassadors were sent for into the Senat, vnto whome aunswere was giuen by the Consull, That they should continue in their faith and fidelitie vnto the Senat and the people of Rome, and in pawne thereof to deliuer vnto the people of Rome three hundred hostages and their ships: in which doing they should haue their citie safe, with all their rights, priueledges and liberties, that euer before they had enioyed. With this answere the ambassadors returned merily home. But by and by after commission [Sidenote 189 - *] was giuen vnto Scipio Africanus the yonger, To go in all hast with a fleet to Carthage, and with fire and sword to destroy the towne, sauing the citisens and all other things else that they could carrie out of the towne. Scipio ariuing in Africke with his [ H] armie, sent Censorinus his lieutenant to Carthage, who after he had receiued the promised hostages together with the Carthaginensian ships, commaunded all the people of Carthage to depart out of the towne, yet with free leaue to carrie out with them what they would, and to build them a citie further off from the sea, or elswhere to their best liking. With this strait commaund of the lieutenant the Carthaginensians astonished, appealed vnto the faith of the Senat, & of the people of Rome, saying, That they had promised them that their citie should not be rased: to whome it was aunswered, That the faith giuen vnto them by the Senat should in all points be kept; but yet that the citie was not tied vnto the place, neither vnto the wals of Carthage. So the poore inhabitants were constrained to depart and abandon the towne vnto the fire, which was [ I] set vpon it by the Romans, who had not had it so good cheape, had the ambassadors before vnderstood the difference betweene a towne and a citie. As oftentimes it chanceth that many embassadors ignorant of the law of armes, and of that which right is, do euen in matters of state commit many grosse faults. Although that Modestinus writeth, That Carthage was no more a citie after it was rased, and that the vse and profit left vnto the citie, was in this case extinct aboue an hundred yeares before: but hee was in the same errour wherein the ambassadours of the Carthaginensians were, vnto whome all their rights, prerogatiues, and priueledges were reserued. The like errour was committed in the agreement made betwixt the Cantons of Berne and Friburg, in the yeare 1505, wherein it was agreed, That the amitie and alliance betwixt those two [ K] Commonweals should be for euer, and so long to endure as the wals of both the cities should stand. Neither are we to stay vpon the abuse which is ordinarily committed, or vpon the acts of greatest importance of them, which call one and the same thing a towne, a citie, and an vniuersitie: as some say of Paris, and certaine other places, calling that the citie which is contained in the Isle, and the vniuersitie the place wherein the colledges stand, and all the rest the towne, when as the towne it selfe is contained within the compasse of the wals and suburbs: howbeit that wee herein follow not the proprietie of the law, calling it the towne and suburbs, for the diuers priuiledges graunted [Page 53] vnto them by diuers kings; and the vniuersitie the bodie of all the burgesses of Paris [ A] together: but the citie the coniunction or ioyning together of the towne it selfe and the liberties, as also of the men vsing the same lawes and customes, that is to say the coniunction of the prouostship and of the countie of Paris together: which abuse is growne, for that of auntient time all the towne was not but the isle inuironed with wals, and the riuer about the wals, so as we read in the Epistle of Iulian, gouernour of the West empire, who made his ordinarie residence in Paris; the rest of the citie that now is being then in gardens and arable land.

But the fault is much more, to say, That he is not a citisen, which is not partaker of the offices of gouernment, of giuing of voices in the consultations of the people, whether [Sidenote 190 - *] it be in matters of iudgement, or affaires of the state. This is the definition of a citisen, [ B] which Aristotle hath left vnto vs by writing, which he afterward correcting himself, [Sidenote 191 - *] sayeth it not to haue place put in the popular state only. Now he in another place himselfe confesseth that definition not to be good which is not generall. Small apparance also is there in that he saith in another place, The noble to be more a citisen than the base, and the inhabitant of the towne rather than the plaine country peasant; and that as for the yong citisens, they as yet but grow as nouices, whilest the elder citisens decay; and that they of the middle age are the entire citisens, and the other but in part. Now the nature of a definition neuer receiueth diuision; neitheir containeth in it any thing more or lesse than is in the thing defined. And yet neuerthelesse that description of a citisen that Aristotle hath giuen vnto vs, is defectiue and lame, not being aptly to be [ C] applied euen vnto the popular estate, seeing that in the Athenian estate it selfe which had no peere for the libertie and authoritie of the people, the fourth ranke or degree of citisens being more than three times as great as all the rest of the people, had no part in the offices of gouernment, or in iudgements. So that if we will receiue the definition of Aristotle, we must needs confesse, that the greater part of the naturall burgesses of Athens, were in their owne Commonweales strangers, vntill the time of Pericles. And as for that which he saith, The noble to be alwaies more citisens than the base and vnnoble, is vntrue, not onely in the popular estate of the Athenians, but also in the popular Commonweals of the Swissers, and namely in Strasbourg, where the nobles (in the qualitie of nobles) haue no part in the offices of state and gouernment. [ D]

Wherefore it is better and more truly said of Plutarch, That they are to bee called [Sidenote 192 - *] citisens that enioy the rights and priueledges of a citie. Which is to be vnderstood according to the condition and qualitie of euerie one; the nobles as nobles, the commonets as commoners; the women and children in like case, according vnto the age, sex, condition, and deserts of euery one of them. For should the members of mans bodie complaine of their estate? Should the foot say to the eye, Why am not I set aloft in the highest place of the bodie? or is the foot therefore not to be accounted amongst the members of the bodie? Now if Aristotles definition of a citisen should take place, how many seditions, how many ciuill warres, what slaughters of citisens would arise [ E] euen in the middest of cities? Truly the people of Rome, for no other cause departed from the Senators, than for that they enioyed not the same authoritie and priueledges that the nobilitie did; neither could it otherwise be appeased than by the meane of the fable of the members of mans bodie, whereby the graue and wise Senator Agrippae reconciled the people vnto the Senators. For Romulus the founder of the citie of Rome, excluded the people from the great offices of commaund, from the offices of priesthood, and from the augureships; commaunding the same to be bestowed vpon such onely as were descended from them whome he himselfe had chosen into the Senat, [Page 54] or els from them whome he had afterwards ioyned vnto them. And this new [ F] people hauing vanquished their neighbours, enforced many of them to abandon their owne countrey and customes, to become inhabitants and citisens of Rome, as they did the Sabines. Afterwards hauing vanquished the Tusculans, the Volscians, and Herniques, they agreed together that the vanquished should haue part in their offices, and voices also in the assemblies of their estates, without any other chaunge either in their law or customes; who for that cause were not called citisens, but municipes (as who should say, Men made partakers of their immunities) yet indeed lesse esteemed and honoured than the Romans themselues, albeit that their estate were vnited vnto that of the Romans. As we see that Cateline descended of the auntient familie of the Sergians in Rome, and so a naturall Roman, by way of disgrace obiected to M. [ G]Tullius Cicero, That he was but a new vpstart of Arpinas. And that was the cause that many municipiall townes chose rather to vse the Roman lawes than their owne, to become true citisens of Rome, vntil the time of Tiberius the emperor, who vtterly took away the verie shadow of the popular libertie which Augustus the emperour had yet left; hauing remoued the popular assemblies from the people vnto the Senat: at which time the municipiall townes of Italie refused the priueledges of the citie of Rome, whereat the emperour Adrian maruelled (as saith Aul. Gellius) but without cause, for that they seeing the popular honours and offices to be all in one mans bestowing, they thought it now better to vse their owne lawes than others.

Thus we see two sorts of citisens differing in priueledges, that is to wit, the Roman [ H] [Sidenote 193 - *] citisen, and the municipiall or countrey citisen. Now the third sort were the Latines, who had at the beginning threescore townes, but were afterward augmented with twelue Latine Colonies, who after long warres made peace with the Romans vppon condition, That they should liue after their own maners and customes, and yet should be made citisens of Rome, whosoeuer of them should remoue his dwelling into the citie, hauing yet left behind him some lawfull issue at home in the countrey. Yet when many of them fraudulently abused this agreement, & gaue their children vnto the citisens of Rome in adoption, or vnder the colour of seruitude, to the intent that by them forthwith againe set at libertie, they might in a moment enioy the liberties and priueleges of the citie; order was taken by the law Claudia, confirmed by a decree of the [ I] Senat, and edict of the Consuls, That all the Latines which had so by craft obtained the freedome of the citie, should be constrained againe to returne into the Latine cities: which thing was done at the request of the Latine cities themselues. And so is that to be vnderstood that Boetius writeth, The Romans sent into the Latin Colonies, to haue lost the liberties of the citie: as also that which Titus Liuius saith, The Roman Colonies sent to Puteoli and Salerne by the decree of the Senat, to haue bene no more citisens: which is not further to be vnderstood or extended, but to their right for giuing of voices, by that meanes now taken from them. So were they of Reims, of Langres, of Saintonges, of Bourges, of Meaux, and of Autun, free people of Fraunce, allies of the Romans, and citisens also, but without voice (as saith Tacitus) before that it was permitted [ K] vnto them to haue states and honourable offices in Rome. And those of Autun were the first that had the priueledge to bee Senators of Rome, and therefore called themselues Brethren vnto the Romans: howbeit that the Auuergnats tooke vnto them the same priueledge & title, as descended from the Troians (as saith Lucan.) Now it is not to be doubted, but that that the Roman Colonies were true and natural citisens of Rome, drawne out of the Roman blood, vsing the same lawes, magistrats, and customes; the true markes of a true citisen. But the further that these Colonies were distant from the citie of Rome, the lesse they felt of the glorie and brightnesse of [Page 55] the sunne, and of the honours and offices which were diuided among the citisens and [ A] inhabitants of Rome: insomuch that the inhabitants of the Roman Colonies at Lyon, Vienne, and Narbone, thought themselues verie happie to haue gained but the priueledges of the Italians, who were of auntient time the allies and confederats of the Romans, enioying the honourable freedome of citisens, and yet without chaunging either of their owne lawes or customes, or loosing any point of their liberties. And forasmuch as the Romans, holpen by the strength & power of their friends and allies, had subdued diuers other nations, and yet suffered not those their friends and companions [Sidenote 194 - *] to be admitted to sue for the honours and honourable offices in the citie; thereof rise the confederats warre in all Italie against the Romans, which neuer tooke end vntill that after much harme on both sides both done and receiued, the libertie of the [ B] citie of Rome was by the law Iulia graunted vnto [Sidenote 195 - *] all Italians, some few onely excepted. For the cities of Italie were called some Colonies, some Allies, some of them of the Latines, and some of the Italian iurisdiction, and all of them different. And that is it for which Titus Liuius saith, I am inde morem Romanis Colendi socios, ex quibus alios in [Sidenote 196 - *]ciuitatem, at que aequum ius accepissent: alios in ea fortuna haberent, vt socij esse quam ciues mallent. viz. Now since that time the manner of the Romans was to honour their fellowes, of whome some they tooke into the citie, and into like freedome with themselues: othersome they had in that estate, as that they had rather to haue them their fellowes, than citisens with them. And hereof proceeded that speech of Tiberius the emperour, in the Oration which he had in the Senat, which is yet seene engrauen [ C] in brasse in Lyon. Quidergo? Num Italicus Senator prouinciali potior est? What then? Is an Italian Senator better than the prouinciall Senator? As if he would haue said them both to haue bene Senators alike. And yet the same emperour excluded the Frenchmen which had obtained the freedome of the citie of Rome, from suing for the honours or offices thereof. Whereby is better to be vnderstood that which Plinie writeth, Spaine to haue in it 470 townes; that is to wit, 12 Colonies: 3 of citisens of Rome, 47 of them which had the freedome of the Latines: 4 of Allies, 6 of them that were enfranchised, and 260 tributaries. And albeit that the Latines were so straitly allied vnto the Romans, as that they seemed to be verie citisens; yet neuerthelesse that they were not so, it is to be well gathered by that saying of Cicero: Nihil acerbius Latinos [ D]ferre solitos esse, quam id, quod perrarò accidit, a Consulibus iuberi ex vrbe exire. viz. The Latines vsed to take nothing more heauily, than that which but verie seldome times happened, To be commaunded by the Consuls to void the citie: for as for other straungers we read, them to haue oftentimes bene driuen out of the citie. In briefe, such was the varietie of priueledges and prerogatiues amongst them which were contained within the Roman empire, besides their confederat and free people, as that almost no one thing was so proper vnto the Roman citisens in generall, as that the magistrats and gouernours might not proceed in iudgement against them in matters concerning [Sidenote 197 - *] their life and libertie, without the peoples leaue. Which prerogatiue was by the tribunitiall law Iunia graunted to all the citisens of Rome, after that the people had [ E] expulsed their kings, and was called, The holy Law, being oftentimes after reuiued and confirmed by the Valerian Consull laws, at diuers times made by the Consuls Publius, Marcus, and Lucius, of the honourable familie of the Valerians: and last of all by the Tribunitiall law Sempronia, and Portia, where to meet with the proceedings of the magistrats and gouernours, who encroached vpon the iurisdiction of the people, and proceeded oftentimes against the people, without yeelding thereunto, there was the penaltie of treason annexed vnto the law; for that those lawes were oftentimes broken by the magistrats. And at such time as Cicero was about to haue commaunded [Page 56] the Roman citisens priuie to the conspiracie of Cateline to be strangled in prison: Caesar [ F] desiring to dissuade the matter in the Senat, said, Our auncestors imitating the maner of the Grecians, did punish and correct their citisens with stripes; and of men condemned tooke the extreamest punishment: but after that the Commonwealth was growne strong, the law Portia and other lawes were prouided, whereby for men condemned banishment was appointed. Which law Cicero hauing transgressed, was therefore not onely driuen into exile, but also proscribed, his goods confiscated, his house (esteemed to be worth fiftie thousand crownes) burnt, and a temple built in the plot thereof, which the people at the motion of Clodius their Tribune, commaunded to be consecrated to Libertie: wherewith the magistrats terrified, durst not but from that time forward with lesse seueritie proceed against the Roman citisens, yea euen after [ G] that the popular state was chaunged. And that is it for which Plinie the younger, Proconsull of Asia, writing to Traian the emperour, concerning the assemblies made by the Christians in the night, to the disquiet of his iurisdiction: I haue (saith he) many in prison, amongst whome there are certaine citisens of Rome, whom I haue put apart for to send them vnto Rome. And S. Paul at such time as he was drawne into question, as a seditious person, and a troubler of the common quiet; so soone as he perceiued that Felix the gouernor would proceed to the triall of his cause, he required to bee sent vnto the emperour; saying, That he was a citisen of Rome, for that his father being of the tribe of Beniamin, and borne at Tharsis in Caramania, had obtained the right of a Roman citisen: Which so soone as the gouernour vnderstood, hee surceased to proceed [ H] any further in the matter; and sent him to Rome, saying, This man might haue bene set at libertie, if he had not appealed vnto Caesar. Whereas otherwise if hee had not bene a citisen of Rome, the gouernour would haue proceeded in the matter, seeing the countrey of Palestine was before brought into the forme of a prouince. As in like case Pontius Pilat, gouernour of the same countrey, was constrained to condemne Christ Iesus as a tributarie subiect of his prouince, whome for all that hee seemed to haue bene willing to haue deliuered out of the hands of his enemies, and from all punishment, if he could well in so doing haue auoided high treason, which the people threatned him with: Which the gouernour fearing, least he should seeme to haue any thing therein offended, sent the whole processe of the matter vnto Tiberius the emperour [ I] (as saith Tertullian.) For if the municipiall magistrats of the Iewes had had soueraigne power and iurisdiction, they would not haue sent him back againe vnto the gouernour, crying That he had deserued the death, but that they had not the power to proceed thereunto against him. For the municipiall magistrats of prouinces had not any iurisdiction, more than to commit the offendors into safe keeping, for feare of the present daunger, and to receiue cautions, or to giue possession, and sometimes to appoint tutors vnto poore orphans: but in criminall causes, had no power or authoritie, neither ouer the citisen of Rome, neither ouer the straunger or prouinciall subiect, or ouer others that were enfranchised; but onely ouer their flaues, whome they might at the vttermost but with stripes correct. For as for the iurisdiction giuen to them that [ K] had the defence of townes, they were established by Valentinian three hundred and fiftie yeares after. Whereby it is to be gathered, all power and authoritie for the execution of iustice to haue bene giuen to the Roman gouernours, and their lieutenants in their prouinces, and taken from the rest. For they but deceiue vs, which thinke the Iewes priests, for the qualitie of their priesthood to haue made conscience to condemne to death our Sauiour Christ Iesus, as if by their religion they had bene hindred so to do; and hereupon haue concluded, That churchmen ought not to giue iudgement that carried with it the execution of blood: which proceeded of the ignorance [Page 57] of fantiquitie: For it is euident that before the land of Palestine was brought into [ A] the forme of a prouince, it had but the Senat of the Iewes, consisting of 71 persons, composed in part of priests and Leuites, who had the power of condemning offendors to death, as the Chaldean interpretor plainly sheweth, and the Hebrew Pandects more plainely than he.

Wherefore this was the greatest and chiefest priueledge proper to the citisens of [Sidenote 198 - *] Rome, That they could not by the magistrats be punished either with death or exile, but that they might still from them appeale; which libertie all the citisens of Rome enioyed. The other Roman subiects which had not this priueledge, were not called citisens: yet thereof it followeth not, that to speake properly they were not indeed citisens, and according to the true signification of a citisen: for they must needes be citisens, [ B] or straungers, allies, or enemies, seeing that they were not slaues; for so much as they were contained within the bounds of the Roman empire. But we cannot say that they were allies, for that onely free people which defended the maiestie of their estate, were called the fellowes or allies of the Romans: neither could it bee said that they were enemies or straungers, seeing that they were obedient subiects, and that more is, paid tribute vnto the Roman empire: wee must then conclude that they were citisens; for it were a verie absurd thing to say, That the naturall subiect in his owne countrey, and vnder the obeysance of his soueraigne prince, were a straunger. And that is it for which we haue said, That the citisen is a franke subiect, holding of the soueraigntie of another man. But the prerogatiues and priueledges that some haue more than others, [ C] maketh vs to call some of them citisens, and others tributaries. Yet we read that the emperour Augustus was so iealous of these priueledges, that hee would neuer giue the right of a Roman citisen vnto French men, for any request that his wife Liuia could make vnto him; yet for all that, not refusing to ease them from paying of tributes: neither liked he well of it, that his vncle Caesar had together & at once giuen the freedome of the citie, vnto that legion which he had raised of Frenchmen, and in generall to all the inhabitants of Nouocome: and blamed also M. Antonius, for that he had for money sold the freedome of the citie vnto the Sicilians. Neuerthelesse the succeeding princes kept not with so great deuotion the rights and priueledges of the Roman citisens. Antonius Pius by a generall edict gaue the freedome of the citie of Rome vnto [ D] all the citisens of the Roman empire (slaues alwaies excepted) that so the citie of Rome might be the commmon countrey of all nations. Wherein hee seemed in a sort to imitat the example of [Sidenote 199 - *]Alexander the Great, who called the whole world but one citie, and his campe the chiefe fortresse thereof. But Antoninus contented himselfe with the Roman world. And albeit that the citie, or rather the grant of the immunities of the citie seemed so to be communicated vnto all, yet were the priueledges of citisens diuers, some alwaies enioying more than others; as is to bee seene not onely in the Commentaries and answeres of the great lawyers, which flourished after Antoninus [Sidenote 200 - *]Pius, but also in the edicts of other princes. For Seuerus more than fiftie yeres after Antoninus was the first that gaue the priueledge to them of Alexandria, that they [ E] might be made Senators of Rome: but the other Aegyptians could not be made citisens of Rome, except they had before obtained the freedome of the citie of Alexandria. Which well sheweth, that the greatnesse of the priueledges make not the subiect therefore the more or lesse a citisen. For there is no Commonwealth where the citisen hath so great freedome, but that he is also subiect vnto some charge: as also the nobilitie, although with vs exempted from taxes and tallages, are yet bound to take vp armes for the defence of the Commonweale and others: and that vpon paine of their goods, their blood, and life. For otherwise if the largenesse of prerogatiues and priuileges [Page 58] should make a citisen, then verely straungers and allies were to bee called citisens, [ F] seeing that oftentimes greater and larger priueledges are giuen vnto strangers or allies, than to citisens themselues: For why? the freedome of the citie is oftentimes for an honour giuen vnto straungers, who yet for all that are bound vnto no commaund or necessarie duties. As the Swissars gaue the freedome of their citie first to Lewes the eleuenth, [Sidenote 201 - *] and so afterwards vnto the rest of the French kings. So Artaxerxes king of Persia, gaue the freedome of the citie vnto Pelopidas (and all his posteritie) entreating of alliance with him. So the Athenians made free of their citie Euagor as king of Cyprus, Dionysius the tyrant of Sicilie, and Antigonus and Demetrius kings of Asia. Yea that more is, the Athenians gaue vnto all them of the Rhodes the freedome of their citie: and the Rhodians with like courtesie vpon the agreement of the league, made all the [ G] Athenians citisens of their citie, as we read in Liuie: which league was called, The treatise of Comburgeosie. What manner of league that was made betwixt the Valesians, and the fiue little Cantons in the yeare 1528; and betwixt the Cantons of Berne and them of Friburg, in the yeare 1505; and againe betwixt them of Geneua & them of Berne in the yeare 1558: the force of which leagues was such, as that there should be a mutuall communication betwixt them both of their citie and amitie: and in case that any of the confederats forsaking his owne citie, had rather to goe vnto the citie of his fellowes and confederats, he should presently become a citisen and subiect of the other citie, without any new choyce or speciall letters of his naturalisation or enfranchising. But the freedome of any citie giuen for honour sake vnto any, bindeth no [ H] man vnto the commaund thereof; but him which forsaketh the dwelling place of his natiuitie or citie, that so he may come into the power of another prince: For neither were those kings whom we haue spoken of; neither Hercules, or Alexander the Great, when they were made honourable citisens of the Corinthians, subiect or bound vnto their commaunds; in such sort as that the right of a free citisen was vnto them but as a title of honour. Wherefore seeing it impossible for one and the same person to bee a citisen, a stranger, and an allie; it may well be said that the priueleges make not a citisen, but the mutuall obligation of the soueraigne to the subiect, to whome for the faith and obeisance he receiueth, he oweth iustice, counsell, aid, and protection, which is not due vnto strangers. [ I]

But some may say, How can it then bee, that the allies of the Romans, and other people gouerning their estate, were citisens of Rome (as those of Marseilles and of Austun?) Or what is that which M. Tullius crieth out: O the notable lawes, and of our auncestors by diuine inspiration made and set downe, euen from the beginning of the Roman name, That none of vs can be the citisen of more than one citie: (for dissimilitude of cities must also needs haue diuersities of lawes) nor that any citisen can against his will be thrust out, or against his will be detained in the citie. For these are the surest foundations of our libertie, Euery man to bee master both of keeping and of leauing of his right and libertie in the citie. And yet he the same man, before had said it to be a thing granted vnto all other people, that euerie man might be a citisen of many [ K] cities: with which errour (saith he) I my selfe haue seene many of our citisens, ignorant men, led; to haue at Athens bene in the number of the judges, and of the Areopagi, in certaine tribe, and certaine number, when as they were yet ignorant whether they had obtained the libertie of that citie; and to haue lost this, except they had by the law made for the recouerie of things lost, againe recouered the same. Thus much hee.

But first to that which he writeth concerning the Athenians; that law of Solons was long before abolished, which admitted not a straunger to the freedome of a citisen [Page 59] of Athens, except he were banished out of his owne countrey: at which law Plutarch [ A] wondreth aboue measure; not foreseeing that to haue bene done of Solon, to the end (as it is like) That no man should enioy the immunitie and priueleges of a citisen of Athens, and that popular prerogatiue which the people had, except he were bound vnto the commaund and lawes of the Athenians. But he which is against his will detained vnder the commaund of a straunge citie, hath without doubt lost the right of his owne citie: which can in no wise be applied vnto those kings whome wee haue before spoken of, or yet to the Rhodians which had ordained the freedome of the Athenians. Wherefore this is it, as I suppose, that M. Tullius meant (for why, hee well agreeth not with himselfe) That he which was indeed a true citisen of Rome, that is to say, which was bound vnto the Senat and the lawes of the people of Rome, could not [ B] be bound vnto the commaund of another citie. As Pomponius Atticus borne in the citie of Rome, being a Roman citisen, and of the honourable order of the knights, who for his loue towards the Athenians, was thereof called Atticus (and vnto whome three of the Roman emperours referred the beginning of their discent) refused the freedome of the citie of Athens offered him by the Athenians; least (as saith Cornelius Nepos) he should haue lost the freedome of the citie of Rome: which is true in regard of the true subiects and citisens; but not in the citisens of honour, which are not indeed subiects: neither in respect of them which are citisens of diuers cities, vnder the power of one and the same prince, a thing lawfull vnto all euen by the Roman law. For although one may be the slaue or vassall of many maisters or lords, yet can no man be the subiect of [ C] diuers soueraigne princes, but by the mutuall consent of the princes; because that these are vnder no mans commaund, as are they vnto whome seruice is by turne done by slaues, who may by the magistrats be enforced to sell their slaue, except the seruile labours, which cannot at once be done to them all, be by turnes done by the slaue. And this is the point for which we oftentimes see warres betwixt neighbour princes, for the subiects of their frontiers, who not well knowing whome to obey, submit themselues sometimes to the one and sometimes to the other: and oftentimes exempting themselues from the obeisance of both two, are ordinarily inuaded and preyed vpon by both the one and the other. As the countrey of Walachie hauing exempted it self from the obeisance of the Polonians, hath become subiect vnto the Turks; and afterwards submitting [ D] it selfe vnto the kings of Polonia, paied tribute neuerthelesse vnto the Turke, as I haue learned by the letters of Stanislaus Rasdrazetoski sent to the c•…]nstable of France, bearing date the 17 of August 1553. Neuerthelesse there are many people vpon the frontiers, which haue set themselues at libertie, during the quarrels of princes, as it is come to passe in the low countrey of Leige, of Lorraine, & of Burgundie: where there are more than twelue subiects of the French king, or of the empire, or of Spaine, who haue taken vpon them the soueraigntie. Amongst whome Charles the fist reckoned the duke of Bouillon, whome he called his vassall: and for that he was his prisoner in the yeare 1556, at the treatie made for the deliuerance of prisoners, hee demaunded an hundred thousand pound for ransome; for that he called himselfe a soueraigne prince. [ E] But there are well also others beside the duke of Bouillon: & to go no further than the marchesse of Burgundie (which is called, The forbidden countrey) six princes haue soueraigne power ouer their subiects, which the mutual wars betwixt the French and the Burgundians haue by long prescription of time brought forth. And in the borders of Lorraine, the counties of Lume & of Aspremont haue taken vpon them the right and authoritie of soueraigntie. Which hath also happened vpon the borders of England and Scotland, where some particular men haue made themselues great commaunders within this twenty or thirty yeres, against the antient agreements. For, for to meet with [Page 60] such enterprises, the English and the Scots had of auntient time agreed, That the [ F] Batable ground, (that is to say a certaine part of the countrey so called, vpon the frontiers of both realmes, being fiue miles long, and two miles broad) should neither be tilled, built, or dwelt vpon; howbeit that it was lawfull for both people there to feed their cattell: with charge that if after the sunne setting, or before the sunne rising, any of their beasts were there found, they should be his that so found them: which was one of the articles agreed vpon by the states of Scotland, in the yere 1550, and sent to Henrie the second the French king, as was by him prouided. But where the soueraigne lords are good friends, as the Swissers of the countrey of Lugan, and the other territories which belong in common to all the lords of the league, whither they send their officers euerie Canton by turne: there the subiects are not reputed to bee the subiects of [ G] diuers soueraignes, but of one onely, which commaundeth in his order; in such sort as that one of them seeke not to encroach vpon the others. Whereof rise a sedition betweene the seuen Cantons Catholick, and the foure Protestants, in the yeare 1554, the Catholicks desiting to chastice the inhabitants of Lugan and Louerts, who had seperated them from the church Catholike: and the Protestants hindring them so to do, and were now vpon the point to haue taken vp armes the one against the other, if the Cantons of Glaris, and Appenzell, who allow of both religions, had not together with the ambassadour of the French king, interposed themselues, and so pacified the matter. Now therefore the full and entire citisen or subiect of a soueraigne prince, can bee no more but a citisen of honour of another seignorie. For so when as we read that king [ H]Edward the first gaue the freedome of citisens vnto all the inhabitants of base Britaine; that is to be vnderstood for them to enioy the liberties, exemptions and freedoms, that they of the countrey enioyed. So say we also of the Bernois, and the inhabitants of Geneua, who call themselues by their treaties of alliance, Equall, and by their letters Combourgeses. For as for that which Cicero saith, That the citisens of Rome might [Sidenote 202 - *] at their pleasure leaue their freedome of citisens, to become citisens of another citie: nothing was vnto them therein more lawfull, than that was in like case vnto all other people lawfull also: and that especiallie in a popular estate, where euerie citisen is in a manner partaker of the maiestie of the state, and doe not easily admit strangers vnto the freedome of citisens. As in Athens, where to make a straunger free of their citie, [ I] there must of necessitie 6000 citisens, by their voices in secret giuen consent therunto. But in such places and countries as wherein tyrants rule, or which for the barrennesse [Sidenote 203 - *] of the soile, or intemperature of the ayre are forsaken by the inhabitants; not onely the citisens, but euen the strangers also are oftentimes by the princes of such places prohibited to depart, as in Moscouia, Tartaria, and Aethiopia; and that so much the more, if they perceiue the stranger to be ingenious and of a good spirit, whome they detaine by good deserts, or els by force, if he would depart: in stead whereof hee must buy it deare, or right well deserue of the Commonweale, that shall get his freedome of a citisen amongst the Venetians or Ragusians, or such other free states. And although that by the Roman law euerie man might giue vp his freedome; and that in Spaine it is [ K] free for euery man to remoue elswhere, and to be enrolled into another citie, so that it be done by protestation to the prince: yet hath it and shall bee alwayes lawfull to all princes and cities, by the right of their maiestie and power to keepe their citisens at home. And therefore princes in making of their leagues, protest that they will not receiue any the subiects or vassals of their confederats into their protection, freedome, or priueleges, without their expresse consent. Which is conformable vnto the auntient clause of the Gaditane confederation reported by [Sidenote 204 - *]Cicero: Ne quis faederatorum a populo Romano ciuis reciperetur, nisi is populus fundus factus esset; id est auctor. viz. That [Page 61] none of the confederats▪ should of the people of Rome be receiued for a citisen, except [ A] that people so confederat had bene the ground, (that is to say, the author thereof.) For therein lieth the state of that cause: for that Cornelius Balbus was a citisen of a confederat citie, & therfore could not contrarie to the league, by Pompeius be made a citisen of Rome without the consent of the confederats. The same Cicero writeth also in the leagues of the French with the Romans to haue bene excepted, That none of them should of the Romans be receiued for a citisen. The same laws we yet at this present vse. For althogh that the Swissers are with vs ioined in a most strait bond of amity & frendship: yet neuerthelesse is the same clause conceiued in that league, which was with them made in the yeare 1520. And againe at such time as the fiue lesser Cantons of the Swissers made a league of alliance and amitie amongst themselues, it was excepted [ B] that no citisens of the confederats should be receiued; or if they should desire the freedome of another citie, they should not otherwise obtaine it, except they would dwell [Sidenote 205 - *] in the countrey, their land and goods remaining as before. And besides these leagues, there is no prince which hath not taken the like order. So that oftentimes the subiect dare not so much as to depart out of the countrey without leaue, as in England, Scotland, Denmarke, and Sweden, the noble men dare not to goe out of their countrey without leaue of the prince, except they would therefore loose their goods: which is also obserued in the realme of Naples, by the custome of the countrey. As also it was forbidden by the emperour Augustus to all Senators to goe out of Italie without his leaue, which was alwaies right straitly looked vnto. And by the ordinances of Spaine [ C] it is forbidden the Spaniards to passe ouer into the West Indies, without the leaue of the king of Spaine: which was also of auntient time forbidden in Carthage, when Hanno their great captaine had first discouered the islands of the Hesperides. And by the [Sidenote 206 - *] decrees of Milan, it is not lawfull for any subiect to receiue the freedome of any other citie; or to enter into alliance or league with any other princes or Commonweales, without the expresse leaue of the Senat of Milan. And that more is, we see oftentimes that it is not permitted vnto the subiect, so much as to change his dwelling place, albeit that he depart not out of the seignorie and obeysance of his soueraigne prince: as in the dutchie of Milan, the subiect comming to dwell in the citie of Milan, or within a certaine circuit of Milan, must first haue leaue so to doe; and also pay vnto his prince [ D] three duckets. We also find that it was in auntient time forbidden the Bithynians (subiects vnto the Romans) to receiue any other subiects into their towne, or to giue vnto them the freedome of a citisen, as they oft times did, to decline the iurisdiction of others, or to ease them of paying of customes and tributes due: in which case the law commaundeth, That he which hath so chaunged his dwelling should beare the charges of both places; which was also decreed by the kings, Philip the faire, Iohn, Charles the fift, and Charles the seuenth. Howbeit that the decree of Philip the long would, That the Prouost or bailiefe of the place, assisted with three burgesses, should receiue into the freedome of their citie, whosoeuer of the kings subiects as would, prouided, That within a yeare and a day he should in the same citie into which hee remoued, [ E] buy an house of the price of 60 soulz Paris at the least; and to signifie the same by a sergeant, vnto the lord vnto whome the iurisdiction of the place wherein he dwelled belonged; and after that, that he should dwell in the same citie whereinto he was receiued for a citisen, from the first of Nouember, vnto the 24 of Iune; and yet paying the like tax or tribute that he did before he remoued, so long as hee dwelleth in that new freedome; and without declining the iurisdiction for any suit commenced against him three months before.

And albeit that it be lawfull for euerie subiect to chaunge the place of his dwelling, [Page 62] yet is it lawfull for no man to forsake his natiue countrie; and much lesse for them [ F] [Sidenote 207 - *] which are enrolled and tied to the soyle, whome we call Mort-maines, who of auntient time might not chaunge their dwelling place without speciall leaue. And so generally a man may say in tearmes of right, That the freedome of a citisen is not lost, neither the power of a prince ouer his subiect, for chaunging of the place or countrey; no more than the vassall can exempt himselfe from the faith and obedience hee oweth vnto his lord; or the lord without iust cause refuse to protect and defend his vassall, without the consent of one to the other, the bond betwixt them being mutuall & reciprocall. But if the one or the other haue giuen their expresse or secret consent; or that the subiect forsaking his prince, hath yeelded himselfe vnto the protection of another prince, by the sufferance of the first, without contradiction, he is no more bound vnto [ G] the obeisance that he oweth him: neither can otherwise than as a stranger afterwards returne into the former citie. For princes oftentimes by large gifts or priueleges draw [Sidenote 208 - *] into their countries ingenious straungers; whether it be so to weaken their neighbour princes, or for the better instruction of their owne people, or so to encrease their wealth and power, or els for their immortall fame and glorie which they hope to get in making the towns and cities by them built, more renowned with the multitude of citisens and plentie of all things. So Theseus by proposing the libertie of the citie to all strangers, made the citie of Athens most famous of all the cities of Greece. So Alexander the Great by granting of great priueleges, least the city by him built at the mouth of the riuer Nilus (which he after his owne name called Alexandria) the greatest, and best traded [ H] of all the cities of Aegypt. So king Lewes the eleuenth gaue the priueleges of the citie of Burdeaux to all straungers whether they were friends or enemies (except the English) so that they dwelt within the towne. So Frauncis the Great, founder of the citie by him built at the mouth of the riuer Sequana, which they call The Port of Grace, proponing immunitie from all tributes, to all them that should dwell therein, in short time made it a most populos citie. Neither should the citie of London abound with so great wealth, nor such a multitude of citisens, had not Richard king of England proposed vnto straungers all the immunities graunted vnto the citisens: so that they had dwelt ten yeares in the citie: which space of time for the obtaining of the libertie of the citie, most part of the Swissers and Germans, indifferently propounded to al strangers: [ I] a thing well agreeing with the Roman lawes. True it is that more or lesse time is required in one place then in another, according to the commodiousnesse of the place, or the greatnesse of the priueleges. As in Venice to obtaine the grant and priueledges of a simple citisen (without hauing any other interest in the state, except in certain meane offices) a man must haue dwelt foureteene yeares within the citie. They of Ferrara were content with ten yeares, so that the inhabitants had all the meane while borne the same burthen with the citisens. And yet it sufficeth not to haue dwelt in another mans countrey the time prefined in the customes, to obtaine the freedome of a citisen; if the [Sidenote 209 - *] straunger do not demaund the citisens right and freedome, and be thereinto also receiued: for it may bee that the straunger would not for any thing chaunge his prince, [ K] howbeit that his affaires hold him out of his owne countrey. For howbeit that many be of opinion, that a man hauing staid the prefixed time in another mans countrey, without hauing obtained letters of naturalising, is yet capable of testamentary legacies: they in that agree in fauour of testaments, and especially of charitable legacies giuen vnto poore straungers, who are alwaies as much to be fauoured as the widdowes and orphans. But to obtaine the full right and priueledge of a citisen, it sufficeth not to haue dwelt the time appointed by the decrees and ordinances of the place, if a man haue not both demaunded and obtained the same. For as a gift is to no purpose, except [Page 63] that both he which giueth, and he to whome it is giuen agree, the one in giuing and the [ A] other in receiuing: so neither is he made a citisen that would not; neither if he would could he so be, either of the princes interposing themselues. For which cause those Consuls, of whome the one was by an he•…]ald at armes yeelded vnto the Numantines; and the other to the Samnites, for that they had without the commaundement of the people made peace with the enemies▪ left not therefore to bee citisens of Rome: because they were not receiued by the enemies. Which question for all that could not yet be fully decided, for the different opinions of Brutus & Scaeuöla betwixt themselues. For when the Consull yeelded to the Samnites, returning to Rome was come into the Senat, the Tribune of the people compelled him to go out of the Senat: howbeit in fine the Senat by decree declared, That hee had not lost the right of a citisen of [ B] Rome, being refused by the enemie: howbeit that in truth he was not onely depriued of the right of a citisen, but also made a slaue of the enemies, by the decree of the people, for hauing without their leaue capitulated and treated of peace with the enemies: and ought to haue bene againe restored by the people. Neuerthelesse the milder opinion of the Senat interpreted that the depriuing of him of his freedome was conditionall, as in case that he were of the enemie receiued. But if so be that a straunger doth enen against his will retaine the rights of his owne citie, when as hee yeelded himselfe vnto the power of another prince, by whom he is refused: much more doth he retaine the same when he requireth not the right of a straunge citie: and then when it hath bene offered him, hath refused the same: and much lesse if he haue not bene presented [ C] vnto the strange prince, neither hath of him required letters of his naturalising, but onely to stay in his countrey as a straunger the time prefixed by the decrees. Whereby is decided the difficultie and doubt which the Senat of Naples made, and therin resolued nothing; that is to wit, If he that had dwelt all his life in a strange countrey should enioy the right and freedome of a citisen in his owne countrey. And many there be, that thinke he ought not to enioy the same; saying, That regard is to be had to the place of his long dwelling: but I am of opinion (if mine opinion may take place) That hee ought neuerthelesse to enioy the priueledge of a free citisen, if he haue not by consent of his prince expresly renounced it, or els done some fact contrarie to the dutie of a naturall subiect. Neither am I alone of this opinion. For the the court of parliament of [ D] Paris, by decree made the xiiij of Iune, in the yeare 1554 adiudged that a French man hauing dwelt fiftie yeares in Venice, continued yet still subiect to the French king, and was receiued vnto the succession of his next kinsmen: hee hauing in the meane time done no harme against his countrey, neither committed any crime for which he ought to loose his libertie, neither hauing refused to come being called home by his prince; nor yet requested the freedome of the citie of Venice to haue bene giuen him. For as for secret consent it ought to hurt no man, being esteemed as no consent in things preiudiciall, except it be by word or deed plainly expressed: especially when wee may otherwise interpret the mind of him that hath not declared the same. Whereby it is to be vnderstood what is to be iudged of the question propounded: which the court of [ E] Burdeaux all the judges being assembled together could not determine. As whether a Spaniard borne and brought vp in Spaine, and yet the sonne of a French man (which French man had alwaies dwelt in Spaine, & expresly renounced the place of his birth) being come into Fraunce there to make his perpetuall residence, ought to enioy the priueleges of a citisen, without letters of his naturalizing? Neuerthelesse I am of opinion that he is a straunger, for the reasons before alleged, and that he ought not to enioy the priuelege of a citisen; sauing vnto the prince to reforme it if it shall so seeme good vnto him. And if a straunger which hath obtained letters of his naturalising out [Page 64] of his owne countrey, and yet will not there dwell, he looseth the right he there pretendeth: [ F] for that the lawes suffer not a double fiction. And for this cause Lewes the xij. the French king thrust out from the right of free citisens all straungers, who had obtained of him letters of their naturalising, and were retired out of his realme home. For by our customes he that will get the freedome of a citisen, must obtaine the princes letters to that purpose, and hauing obtained them, pay his fine vnto maisters of the receipt.

These reasons show not onely the difference that is betwixt a citisen and him that is none, but also of citisens amongst themselues; and that if we follow the varietie of priueleges to iudge of the definition of a citisen, there shall bee fiue hundred thousand of definitions of citisens, for the infinit diuersitie of the prerogatiues that citisens [ G] haue one against another, and also ouer straungers: seeing that it is oft times better in [Sidenote 210 - *] the same citie to be a straunger, then a citisen, especially in such cities as are oppressed with the crueltie and insolencie of Tyrants. As in Florence many citisens requested Cosmus the new duke to be reputed and esteemed as straungers, by reason of the libertie of straungers, and thraldome of the citisens, which they obtained not: and yet hee allured fiftie straungers to sue for the freedome of the citie, putting them in hope of the great offices and commaunds: whereby it was brought to passe, that from those fiftie citisens so made, he extorted fiftie thousand crownes, confirmed the authoritie of the new citisens gotten by deceit, and thereby brake the power of the conspirators against him. So in auntient time the Venetians empouerished and brought low by [ H] the warres against the Genowayes, and fearing the rebellion of many subiects, with a few of the great states, sold the right and priueledge of a gentleman of Venice vnto three hundred citisens, so to strengthen themselues with their goods, their force, and counsell, against the power of the people. It is then the acknowledgement and obedience [Sidenote 211 - *] of the free subiect towards his soueraigne prince, and the tuition, iustice, and defence of the prince towards the subiect, which maketh the citisen: which is the essentiall difference of a citisen from a straunger, as for other differences they are casuall and accidentarie; as to haue part in all or certaine offices or benefices; from which the straunger is debarred as it were in euerie Commonweale. As for offices it is cleere. And although the Bishops of Rome haue of long time attempted to giue all benefices [ I] to all men as of right: yet haue princes oftentimes reiected those ambitious decrees of the Popes. I except the kings of Spaine, of all others the most obedient seruants of the Bishops of Rome, who not without great reward obtained by the decree of Sixtus Bishop of Rome, That beuefices should not be bestowed vpon straungers. And so in Boulongne la Grace, where the Pope is soueraigne lord, the offices and benefices are not giuen but to the naturall inhabitants and subiects. The like whereof is done also in all the seignorie of Venice. But the Swissers haue farre otherwise proceeded than by way of agreement, who by a law made in the yeare 1520, decreed the Popes Buls and Mandats, whereby he had not doubted to giue benefices vnto straungers, to bee publickly torne, and they that vsed them to be cast in prison. And by the lawes of the Polonians [ K] also euen from the time of Casimire the Great, vnto the raigne of Sigismundus Augustus, straungers were kept farre from all benefices; which thing also the Germans by couenants, of late wrested from the Popes: in which couenants they of Mets were also comprised, and so iustly by their letters complained vnto Charles the ix the French king, those couenants to bee broken by the craft of the Bishops of Rome.

Another priueledge there is also graunted more vnto citisens than to straungers, in that they are exempted from many charges and payments, which the straunger is constrained to beare: as in auntient time in Athens the straungers payed a certaine speciall [Page 65] tribute for the right of their dwelling place, which they called 〈 in non-Latin alphabet 〉]: whereas the citisens [ A] were free from all impositions. But the most notable priueledge that the citisen had aboue the straunger, is, that he had power to make his will, and to dispose of his [Sidenote 212 - *] goods, according to the customes; or leaue his neerest kinsmen his heires; whereas the straunger could do neither the one nor the other, but his goods fell vnto the lord of the place where he died. Which is no new law in Fraunce, as the Italians complaine, but a thing common also vnto the kingdome of Naples, of Sicilie, and all the East, where the Grand Signior is not onely heire vnto the straungers, but also to his Timariots, for their immouables; and to his other subiects for the tenth. As in auntient time in Athens, the common treasure receiued the sixt part of the inheritance of straungers, and al their slaues borne in the citie: wheras in Rome the rigour was much [ B] greater (the common treasure swallowing vp all the inheritance of straungers.) And albeit that where Diodorus saith, The Aegyptians and Romans to haue suffered the heires of straungers to succeed them: he spoke therein like a straunger himselfe without regard; for it is most certaine, that it was no way permitted for a straunger to dispose of his goods, neither to receiue any thing by the testament of a citisen of Rome, the common treasure carrying away the succession: whereof our laws are ful. Which we may also iudge by the oration of Cicero, who to show that Archias was a citisen of Rome, saith amongst other things, That he had by his testament disposed of his goods. And himself in his own cause to giue men to vnderstand that the decree of banishment made against him at the sute of Clodius the Tribune, was of none effect: What Roman [ C] citisen is there (saith he) that hath made any doubt to leaue me what hee pleased by his testament, without regard to the decree of my banishment. The selfe same argument vsed also Demosthenes, to proue that Euxithenés was a citisen of Athens: Haue not his next of kinne (saith he) recouered the inheritance of their father that suruiued? And like as in Fraunce, and in England, particular lords take vnto them the inheritance of straungers which die within their iurisdiction: so the Romans also after the manner of their auncestors, tooke vnto them the heredetarie goods of straungers, whome they had receiued into their protection, being left at Rome, which they called, The right of application. And that is it for which they said in Rome, That the right to make a will and testament was onely granted to a citisen of Rome. Whereby it is plaine that [ D] right of application, or of Albinage (as some call it) to haue beene most auntient, and common as well to the Greeks and Romans, as to other people also, vntill that Frederick the second had derogated from the same by his edict, which was but euill kept: For he gaue leaue to all straungers dying within the compasse of his empire, by their testament to dispose of their goods; or if they dyed intestat, to leaue their next of kin their heires. But the force of that law is euen in Germanie it selfe nothing, and much lesse in Italie, where straungers are much worse dealt withall than in Fraunce. For by our customes it is permitted vnto the straunger to get in this * realme all the goods [Sidenote 213 - *] mouable and immouable that he can, and them whilest he yet liueth, to sell, giue, exchaunge, or dispose of by contracts made with men yet liuing, according to his owne [ E] pleasure; and for a small sum of money, as for some twentie or thirtie crownes paid into the common treasure, to obtaine letters of naturalisation, and the right of a citisen; so that he may by his will giue legacies, or appoint such an heire as himselfe pleaseth. But in many countries of Germanie, and by the generall custome of Bohemia, it is not suffered straungers to haue one foot of land. As in like case in Italie it is forbidden all [Sidenote 214 - *] straungers to get any immouables in proprietie, as in the duchie of Ferrara it is a formall custome. And that more is, by the custome of Perouze, it is forbidden to transfer vnto a straunger not onely the proprietie, but euen the possession of any immouable. [Page 66] And by the custome of Milan it is not permitted vnto the straunger, so much [ F] as to haue the vse and profit of any thing immouable, and that vpon paine of confiscating the reuenew with the inheritance; forbidding inheritours also to marrie with straungers, vpon like paine of confiscating their goods. And that which more vniust is, it is not lawfull for the creditor being a straunger, to take his debtors immouables or land, for default of paiment assigned vnto him, but that he must within the yere againe cleere his hands thereof; which causeth the creditor oftentimes to sell his land vnderfoot, or for little, especially if the naturall inhabitants feare or loue the debtour. And not long since, by the ordinance of the emperour Charles the fift, all straungers are embarred from the succession of the subiects of Milan. By the custome of Venice also it is lawfull to bind a citisen to a stranger, yet by that bond are not the heirs bound, more [ G] than for so much profit as came vnto them thereby; quite contrarie vnto the Roman ciuill law. And by the custome of Brixia in Italie, a woman married vnto a straunger cannot transferre her immouables vnto straungers, neither the value thereof, neither directly, or indirectly. See now the good entertainment that straungers haue in Italie; whereof they haue no occasion to complaine of Fraunce, seeing that in England the subiects cannot pawne their lands vnto their creditors being straungers: whereof the ambassadors of forraine nations haue oftentimes complained to haue reason of their debtors: yet suffer they the next of kinne to enioy the goods and money of the straunger. The contrarie whereof is done in Lituania, Moscouia, Tartaria, and all the Turkish empire: in which place the goods of straungers dying there, are confiseat in like [ H] manner as in Fraunce: where neuerthelesse it is permitted to straungers if they die out of Fraunce, to make a will, and to appoint his children borne in Fraunce his heires, so that their mother be not a stranger. And as for the clause commonly ioyned vnto the letters of their naturalisation: Modo haeredes sint Regnicolae, the judges haue so interpreted it of straungers dwelling in Fraunce, who are preferred before them that are neerer of kinne dwelling out of the realme, in the succession of the naturalised straunger: for otherwise it is requisit to make the straungers children to succeed, for that they were borne in France, and of a free citisen, or naturall subiect. But the children of strangers borne in Fraunce, enioy their fathers inheritance, not by will (which is not lawfull for strangers to make) but as from him dying intestat, if their mother be a free woman [ I] when the inheritance descendeth. And more than this, it is graunted by our kings of an extraordinarie bountie vnto such marchant strangers as frequent the fairs of Champagne and Lyon, That none of their goods, if they die in the meane time shall be confiscated: which right the English marchants enioy also in Guienne. But as for them of the low country of Henault & Artois, of the townes of Amiens, Cambray, & Turnay, they are in the same state that citisens be, for so much as concerneth the right of succession: and that the edicts of our princes, and iudgements giuen, haue oft times proued yet so as that the same should also be lawfull for vs, that was for them. The companies also of marchants of those cities which stand vpon the Baltique sea, haue obtained the same, or greater priueledges, now euer since the time of Lewes the younger, and more [ K] solemnly confirmed by king Charles the eight: which a few yeares agoe were sent to king Charles the ninth (by Danezay the French ambassadour, vnto the king of Denmarke) to be by him renewed. And yet this priueledge granted vnto those marchants, extendeth not vnto other strange marchants, which haue obtained the right of citisens, as hath bene adiudged by the priuie counsell. Of which so many and so great priueleges, by our kings graunted vnto straungers, our marchants could obtaine none in all Graecia, Asia, or Africa. For in our time when as Crozile a rich marchant of Tours, diing, had left behind him almost two hundred thousand crownes, nothing thereof came [Page 67] vnto his neerest kindred, all the same being by the Turkish emperor giuen vnto Abraham [ A] the chiefe of the Visier Bassaes.

There is yet another difference (besides those we haue alreadie spoke of) betwixt citisens and strangers; for that citisens by the auntient law Paetilia and Iulia, may forsake [Sidenote 215 - *] their goods, leauing them in satisfaction vnto their creditors, which the straunger may not doe: for otherwise it should bee lawfull for strangers, for their aduantage to sucke the blood and iuice of the subiects, and afterward to pay them with papers, although there be not fewer of these bankrups than of them that forsake their goods. This also a citisen differeth from a straunger, that the straunger in euerie place before he can plead in action, either reall or personall, must put in caution for the paiment of that which shall bee adiudged. Which caution our citisens, except they haue before [ B] plaid bankrupt, or forsaken their goods, are not bound to performe. But in a personall action, whether the defendant be a citisen or a straunger, he is not bound to put in caution to pay the thing that is adiudged, as was in auntient time determined, as well in the court of Rome, as in the court of Paris. But the same court hath departed from the opinion of our auncestors, and adiudged it to be a thing reasonable, that the straunger whether he be plaintife or defendant, should put in caution to pay the thing that is adiudged. But there is one difference which is and hath alwaies bene common to al people, that is to wit, the right of marque against strangers, which hath no place against the subiects: for which cause the emperour Frederick the second, sent backe vnto the states of the empire, those which demaunded the right of reprisall against the subiects of the [ C] empire. And in briefe the straunger might be driuen out of the countrey, not onely in time of warre (for then we dismisse the ambassadours themselues) but also in time of peace; least the naturall subiects manners should by the euill companie of straungers be corrupted: for which onely cause Lycurgus seemeth to haue forbidden the Lacedemonians [Sidenote 216 - *] his subiects without leaue to depart out of his kingdome, or to haue the vse of gold or siluer; as the East Indians of China forbid their subiects vpon paine of death from receiuing of straungers: so to meet with the enterprises that the straunger might make against another mans estate. Wherefore Cicero well foresaw not what harmes hang (as it were) ouer our heads from straungers, when as he writ, They do euil which forbid straungers their cities, and cast them out, as with our auncestors Penuu•…], and of [ D] late Papius: For by such straungers, who for the most part are banished men, the good manners of the naturall subiects are corrupted. But if warre be proclaimed against the prince, the straunger may be detained as an enemie, according to the law of armes: whereas otherwise he might not be staied, if he had not otherwise bound himselfe by contract, or by some offence by him committed.

Now if the straunger shall against the will, or without the consent of his owne prince▪ submit himselfe vnto the power of another prince, and be of him also receiued [Sidenote 217 - *] for his subiect; yet hath his owne prince still for euer power ouer him, and authoritie to lay hands vpon him as vpon his fugitiue seruant; yea although he come as an ambassadour sent from his new prince. For so the emperour Theodosius the Great pronounced [ E]Danus the tyrant to be a rebell vnto his maiestie, and cast in prison his ambassadours, being subiect to his power. So the emperour Charles the fift did the like against the ambassadours of the duke of Millan his subiect, whom he detained prisoner, at such time as he vnderstood the duke his maister to haue entred into league with the other princes, and to haue proclaimed warre against him. And howbeit that the news thereof being come into Fraunce, Granuellan, Charles his ambassador, was by the kings commaundement there likewise imprisoned, yet was hee forthwith againe deliuered, so soone as it was vnderstood that the ambassadors and heralds of Fraunce, England, and [Page 68] Venice, were with safe conduct sent out of Spai•…]e. Neither seemeth Charles in so doing [ F] to haue violated the law of nations, or to haue done any thing against the law: seethat the Romans did with greater seueritie punish the fugitiue subiect, than they did the verie enemie. And the best excuse that the Imperials could find to excuse the murther done vpon the persons of Rincon and Fregosi•…]s the French ambassadors toward the Turke, was, That the one of them was a Spaniard, a naturall subiect of the emperours, and the other a Genoway vnder his protection, both sent in the seruice of his enemie; the bruit being giuen out, that they went to raise new warres against him: how beit that the emperour would not auouch the murther, but promised to do iustice vpon them that had done the same, if they should fall into his power. But doe the subiect what he can, yet can he not exempt himselfe from the power of his naturall soueraigne, [ G] [Sidenote 218 - *] albeit that he become a soueraigne prince in another mans countrey: no more than Philip Barbarius a slaue, who being for his vertue become Pretor of Rome, being pursued and chalenged by his maister, was yet glad to agree with him for his libertie. For in that the lawyers all agree, That the subiect in what place soeuer he bee become soueraigne, may by his prince be called home. As not long since Elizabeth queene of England called home againe vnto her the earle of Lineux, together with his son, who but a little before had maried the queene of Scots; for not obeying of which her command, she confiscated their goods, for that contrarie to the custome of that realme, they had without leaue departed out of England, and maried contrarie to the queenes commaundement. For the subiect wheresoeuer he be, is bound to the lawes of his prince [ H] conceiued, concerning his person; in such sort, as that if the subiect be forbidden to contract or to alienat, the alienations are void, albeit that he make them in a forren country, and of such goods as he hath without the territorie of his owne prince: and if the husband being out of his owne countrie, giue any thing vnto his wife, contrarie to the commaundement of his prince, or the customes of his countrey, such a donation is nothing worth: for that the power to tie and bind a subiect, is not tied vnto places. And for this cause princes haue accustomed to vse mutuall requests one towards another, either to call home their subiects, or to enforce them to obey, in such places as wherein they haue not power to commaund: or els by mutuall denouncing of their griefes themselues to lay hand vpon straungers, vntill that they doe obey them. For when the [ I] marquesse of Rotelin, who had the tuition of the duke of Longueuille, was sued vnto to suffer the controuersie of Neu•…]chastel to be decided before the judges of the court [Sidenote 219 - *] of Requests at Paris: the lords of Berne reuoked the cause, for that iudgement was to be giuen by them, of lands contained within the precinct of their country. See here the principal differences of subiects and citisens, from strangers; leauing the particular differences of euerie countrey, which are in number infinit. As for the differences of subiects amongst themselues▪ there are in many places no fewer, or happely moe than▪ betwixt the subiects and the straungers (whereof we haue much spoken before) as not onely of the difference of the nobilitie among themselues, but of the difference betwixt the nobilitie and the vulgar people also. But particularly to prosecute how much the vulgar [ K] people differ among themselues, with such other things as appertaine vnto the sex, age or state of euerie man, were a thing almost infinit.

Now to make the matter short, it may be that of right among citisens, some be exempted from all charges, taxes, and imposts, whereunto others are subiect: whereof wee haue infinit examples in our lawes. As also the societie is good and auailable, [Sidenote 220 - *] where some of the associats haue part in the profit, and yet beare no part of the losse. And that is it for which we see the diuision of citisens or subiects into three estates, that is to say▪ the Spiritualtie, the Nobilitie, and Commonaltie, which is obserued almost [Page 69] in all Europe. And beside this so generall a diuision, there bee other more speciall [ A] in many Commonweales, as in Venice the gentlemen, the citisens, and the common people: in Florence before it was brought vnder one prince, they had the great ones, the common people, and the reseall menie. And our auntient Gauls had their Druides, their Chiual•…]ie▪ and the vulgar people. In Aegypt the priests, the souldiers, and the a•…]ans; as we read in Diodorus. Also the aun•…]ent law giuer Hippodamus, diuided the citisens into souldiors, handie crafts men, and labourers; & hath without cause bene blamed by Aristotle; as we read in the Fragments of his ordinances. And albe▪ [Sidenote 221 - *] it that Plato enforced himselfe to make all the citisens of his Commonwealth equall in all rights and prerogariues; yet so it is, that he diuided them into three states; that is to wit, into Gouernours, Souldiors, and Laborers: which is to show that there was neuer [ B] Commonweale, were it true, or but imaginarie, or the most popular that a man could thinke of; where the the citisens were equall in all rights and prerogatiues; but that alwaies some of them haue had more or lesse than others.

CHAP. VII. ¶ Of them that are vnder protection, and the difference betwixt Allies, Strangers, and Subiects.↩

WE haue now alreadie told what difference there is betwixt Subiects, Citisens, and Straungers: let vs now also speake of Allies, and first of them [ C] which are in protection; for that there is not one of them which haue written of a Commonweale, which haue rouched this string; which for all that is the most necessary for the vnderstanding of the states of Commonweales. The word of protection in generall extendeth vnto all subiects which are [Sidenote 222 - *] vnder the obeysance of one soueraigne prince or seignorie; as we haue said▪ That the prince is bound by force of armes, and of his lawes, to maintaine his subiects in suretie of their persons, their goods, and families: for which the Subiects by a recipro•…]all obligation owe vnto their prince, faith, subiection, obeysance, aid, and succour. This is the first and the strongest protection that is. For the protection of maisters towards their slaues, of patrons towards their enfranchised, of lords towards their vassals, is much [ D] lesse than that of princes towards their Subiects: insomuch that the slaue, the enfranchised, the vassall, oweth faith, homage, and succour, vnto his lord; but yet that is after his owne soueraigne prince, to whome he is a bound Subiect▪ the souldior also oweth obeysance and succour vnto his captaine▪ and by the law deserueth death, if hee defend him not at his need. Yet in all treaties and actions of peace betwixt princes & people [Sidenote 223 - *] in amitie and friendship ioyned together: the word of Protection is special, importing not any subiection of him that is in protection, neither commaund of the protecture towards his adherents, but onely an honourable and reuerent respect of the adherents towards their protector, who hath taken vpon him their defence and protection, without any other impeachment of the maiestie of the adherents ouer whome the Protector [ E] hath no power at all. So that the right of protection is well deemed to bee the greatest, fairest, and most honourable of all others that are amongst princes. For the [Sidenote 224 - *] soueraigne prince, the maister, the lord, the patron, draw vnto themselues great profit and obedience, for the defence of their subiects, their slaues, their enfranchised, and vassals: but the Protector is to content himselfe with the honour and acknowledgement of his adherent, seeing that of all duties of courtesie, none is greater, than as euerie man standeth in most need of helpe, so to giue him the greatest relief•…]; neither of so great kindnesse to accept any other reward than thanks: for if hee couenant for any [Page 70] thing farther, he looseth the name of a Protector. For as he which lendeth vnto anoman [ F] part of his goods or trauell, if he receiue any gaine or profit thereby, he is no more to be called a lender, or that his doing to be tearmed a lending or pleasuring, but a meere mercinatie gaining: so he which hath liberally promised to doe any thing for another man, is without any hire by the law bound to accomplish his promise: and the reason is, for that vnto dutie no hire is due. Neither is there any band of promise stronger, or more effectuall, than that which is made to defend the goods, the life, the honor of the weake against the stronger, of the poore against the rich, of the good distressed against the violence of the wicked. And that is it for which Romulus, founder of the citie of Rome, setting in order the state of his subiects, to keepe them all at peace and vnitie among themselues, assigned vnto euery one of the hundred gentlemen, or Senators [ G] that he had chosen to be of his priuie counsell, a certaine number of his other meaner subiects, to be by them maintained vnder their protection and safegard; holding him accursed and execrable, who should leaue the defence of any his adherents. And the Censors marked them with the note of infamie, that had forsaken their adherents. The law also of the xij tables in that case carrieth with it the paine of excommunication, as in these words: If the Patron deceiue his Client let him be accursed. Yet Plutarch writeth, The clients to haue giuen money to the bestowing of their patrons daughters: which I remember not to haue bene elswhere written; for in so doing they should haue cosened their clients: but it may bee that he mistooke clients, for men enfranchised; who albeit that they be both called clients or adherents, yet is the bond of the enfranchised [ H] greater towards their patrons that set them at libertie; than is that of the free borne clients, who had no patrons but aduocats, who defended the causes of their clients. How beit with vs the patrons exact money of their enfranchised clients, the better to bestow their daughters, which is like enough to haue come from the Romans vnto vs. Now when that forren people saw the Roman clients or adherents to be safe from the iniurie and oppression of the more mightie, not onely euery particular man, but men euen generally, yea whole cities and prouinces yeelded themselues into [Sidenote 225 - *] the protection of the Senators. For so the house of the Marcelles had in their protection the citie of Syracusa, the Antonies had likewise the citie of Boulongne la Grasse: and so others afterwards tooke vpon them the protection and defence of others also. [ I] Yea the straungers in like case, that frequented the citie of Rome, had also their protectors, who by the law of application or patronage, tooke vnto •…]hem whatsoeuer the straunger dying in the citie possessed. And of these same Romans that filled Fraunce with the multitude of their Colonies, it is like this law of protection, which of the aduocats and not of the clients, they cal the law of Auoison, or Auouerie to haue taken▪ beginning. But the enfranchised clients differ much from the free borne clients, albeit [Sidenote 226 - *] that they be both called clients, for the likenesse that is betwixt the one and the other) but especially in this, that the enfranchised clients may from their libertie be againe reduced into slauerie, if they shall be proued to haue bene vngratefull vnto their patrons whereas the free borne clients cannot so be. The enfranchised clients are constrained [ K] also to helpe their patrons with their labours: wheras the free borne clients are bound to reuerence their protectors or aduocats, and to do them mutuall kindnesse, but not seruile seruice or labour: neither if they haue done any thing to deceiue their patrons do they therefore loose their libertie: beside that the patrons suruiuing may by the law take part of the goods of their enfranchised clients: whereas the aduocats, or protectors can take nothing of the goods or inheritance of their free borne clients or adherents.

And although there be so many things common to the free borne clients, with the vassals or adherents, as that they are almost accounted for one, yet is there great difference [Page 71] betwixt them. For the vassall is bound with all fidelitie to honour and reuerence [ A] [Sidenote 227 - *] his lord, to helpe him being in daunger, and to do him all the kindnesse possible: and if so be that he shall deceiue his lord, disgrace him, perfidiously abiure him, or giue him the lye: hee by and by looseth therefore his fee, which escheateth vnto his lord by the right which the lord hath against his vassall in such case: whereas from the vndutiful or vnkind client, or adherent, nothing can at all be taken. Moreouer if the vassall hath without any exception giuen his faith vnto his lord, or acknowledge no man greater than him; whether he be sworne or not, he is bound vnto the subiection & command of him the same his lord and prince: whereof he cannot be said to be discharged, albeit that he neuer so much renounce his fee: whereas the client or adherent standeth not in these tearmes, being in nothing subiect to his aduocat or protectour. The vassall [ B] also whether he be a king or pope, or whatsoeuer els oweth faith and seruice vnto the lord of whome he holdeth his fee, except he renounce the fee: whereas the free borne client or adherent, whether he be prince or priuat man, is free from all seruice and commaund of his more mightie aduocat or protectour. In briefe the right of a [Sidenote 228 - *] vassall age seemeth in a manner to be but new, and before the comming of the Lombards into Italie vnknowne: whereas the law of protection is most auntient and before the time of Romulus, who borrowed it of the Greeks: for it was long before vsed in Thessalie, Aegypt, Asia, and Sclauonia, as we read in auntient writers: that so the weaker might be the safer from the violence or iniurie of the more mightie. The vassall also receiueth inheritance and fees of his lord, from whose fealtie and obesance [ C] which he oweth vnto him, he cannot bee exempted, albeit that the soueraigne prince should raise the fee of his vassall depending of him into a countie, dutchie, or principalitie, as hath beene adiudged by the decree of the parliament of Paris. Whereby it is to be vnderstood them to erre and be deceiued, who out of Cesars Commentaries interpret them whome he calleth Soldurios et deuotos, to be vassals, seeing that hee hath made no mention of their fee, without which they cannot so be, ioyning thereunto also, that they were indeed true and naturall subiects: for that their liues, their goods, and their persons, were consecrated vnto their lord: which is the true marke of subiection, which the vassals owe onely vnto their soueraigne prince, not in the qualitie of vassals, but in the qualitie of naturall subiects, who ought to runne the same fortune with their [ D] prince, and to liue and die for him if need bee, albeit that the vassall bee more specially bound, than the other subiects.

All which things tend to this purpose, that it may plainely be perceiued, what and [Sidenote 229 - *] how much difference there is betwixt the rights of patronage, vassallage, and protection, which we see to bee of many for the likenesse among themselues confounded. For the vassall and the adherent owe their fidelitie vnto their lord and protector; and the one of them are reciprocally bound vnto the other, albeit that the lord be not bound by expresse word to giue his oath of fidelitie to his vassall, as the protector ought to his client or adherent, and so solemnly to keepe all the treaties of protection. The lord and the vassell also ought to deliuer solemne letters of their mutuall obliging of themselues [ E] the one to the other: like as the protectour and the adherent, are bound to giue letters of protection the one of them to the other: but especially if one soueraigne prince vpon a league made, receiue another soueraigne prince into his protection, which are to be renewed either of the princes dying. For the right of protection belongeth not vnto the heires, except the same be in the league so comprlsed: and bee it neuer so prouided for, yet neuerthelesse either of the princes being dead, it is needful for his successor by lawfull acts to professe his protection, & to haue the league renewed. But to make more manifest the matter of protection betwixt soueraigne princes, [Page 72] whereof we are to entreat: it seemeth that the soueraigne prince or people, which hath [ F] put it selfe into the protection of another, is become his subiect. And if he be a subiect, then is he no more a soueraigne, and his subiects shall also be the subiects of the protector. And what subiection would a man haue greater, than to put himselfe into the protection of another man, and to acknowledge him for his superiour? For protection [Sidenote 230 - *] betwixt great princes, is nothing else but the confederation and alliance of two princes, or soueraigne lords, wherein the one acknowledgeth the other for superiour; whome he bindeth himselfe to obserue and reuerence, and into whose protection hee is receiued, so to be the safer from the iniurie of some other more mightie: also when the subiect of a prince retireth himselfe into the territorie of another prince, hee is likewise in his protection; in such sort, as that if he be pursued after by the enemie, & taken [ G] prisoner in the territorie of another soueraigne prince, hee is not prisonet of him that pursueth him, but of him into whose territorie he hath fled: as was iudged by the law of armes at the interparle of peace, which was betwixt the French king & the emperor Charls the fist, in the yere 1555, when question was made of the imperial prisoners that the French had taken in the countie of Guynes, which was then in the subiection of the English; it was maintained by the Chancellor of England, That they could not be detained as prisoners, being taken in the territorie and protection of the English: howbeit that the contrarie might be said: for albeit it was not permitted to pursue or take prey in another mans territorie, yet it is lawfull hauing raised it in his owne territorie, to pursue it into another mans ground: which yet suffereth this exception, If the lord [ H] of the ground forbid him not so to do: as did the lord Grey, gouernour of Calais and Guines, who comming in the time of the pursute, was said to haue taken the flying Spaniards into his protection, although that they were carried away by the French. Now in this case the word Protection, is not taken in proper signification; for there is no protection, if there be no conuention: and the strange prince cannot take another princes subiect into his protection without the consent of his owne prince, as wee shall hereafter declare.

But yet before let vs determine the propounded question, Whether a soueraigne [Sidenote 231 - *] prince submitting himself vnto another soueraigne prince, looseth the right of his own soueraigntie; and whether he become subiect to the other? For it seemeth that he is [ I] no soueraigne, acknowledging a greater than himselfe. Neuerthelesse I am of opinion that he continueth still a soueraigne, and not a subiect. And this point is decided by a law, whereof there is not the like, and hath in diuers readings bene altered: but we follow the originall of the Pandects of Florence, which hold, That soueraigne princes who in treatie of alliance acknowledge the protectour to bee greater than themselues, are not yet for al that their subiects. I doubt not (saith the law) but that allies, and other people vsing their libertie are not straungers vnto vs, &c. And albeit that in the treatie of confederats and allies, by vnequall alliance, it be expresly said, That one of them shall respectiuely regard the maiestie of the other; that maketh not that hee should bee therefore his subiect, no more than our adherents and clients are lesse free than our [ K] selues, although they be not equall with vs, neither in goods, power, nor honour. And the ordinarie clause inserted into the treaties of vnequall alliance in these words, Comiter maiestatem conseruare (that is to say, curteously to preserue the maiestie of the greater) importeth no other thing, but that betwixt the princes allied, the one is greater and more honourable than the other; and that the lesser allies should in al modestie respect the greater. So that it euidently appeareth, that protection importeth not subiection, [Sidenote 232 - *] but the superioritie and prerogatiue of honour. And the more cleerely to vnderstand this point, and the nature of treaties and alliances, we may say that all treaties amongst [Page 73] princes are made either with friends, enemies, or newters. The treaties betwixt enemies, [ A] are made to haue peace and amitie, or truce, or to compose warres begun for seignories or for persons, or to redresse the iniuries and displeasures of one of them against the other, or for traffick and hospitalitie that might bee betwixt enemies during the time of truce. As for the others which are not enemies, the treaties which are made with them, are either by alliance equall, or vnequall: in this the one acknowledgeth [Sidenote 233 - *] the other to be superiour in the treatie of alliance; which is in two sorts, that is to wit, when the one acknowledgeth the other to be his superiour for honour, and yet is not in his protection: or els the one receiueth the other into protection, and both the one and the other is bound to pay a certaine pention, or to giue certaine succours; or els owe neither pention nor succours. As for allies by alliance equall, which the Latines [ B] call Aequo foedere, the qualitie is vnderstood, when the one is in nothing superiour [Sidenote 234 - *] vnto the other in the treatie: and that the one hath nothing aboue the other for their prerogatiue of honour, albeit that the one must do or giue more or lesse than the other for the aid that the one oweth vnto the other. And in this sort of treatie, they haue alwaies entreated of amitie, traffique, and hospitalitie, to harbour the one with the other, and to traffique together with all kind of marchandise, or some certaine kindes onely, and at the charge of certaine imposts agreed vpon by the treaties. And both the one and the other alliance is of two sorts, that is to wit, defensiue onely, or defensiue [Sidenote 235 - *] and offensiue; and yet may be both the one & the other, without exception of person, or with the exception of certaine princes: and the most strait alliance is that which is [ C] both defensiue and offensiue, towards all, and against all; as to be a friend to friends, and an enemie to enemies; and so most commonly order is taken, and treaties of mariages one of them had with the other. But yet the alliance is more strong, when as one king is allied with another king, realme with realme, and one man with another man; as were in auntient times the kings of Fraunce and Spaine, and the kings of Scotland and Fraunce. And that was it for which the ambassadours of Fraunce aunswered Edward the fourth, being driuen out of the realme of England, That the king could not giue him aid, for that the alliances of Fraunce and England were made with the kings, and the realmes, in such sort that king Edward chased out of his realme, the league continued with the realme and the king that therein raigned: the effect of which words [ D] was this, with such a king, his countries, territories, and seignories: which words are as it were in all treaties expressed. But these treaties ought also to bee published in soueraigne courts or parliaments, and ratified by the estates, by the consent of the Atturney generall, as was decreed in the treatie made betwixt king Lewes the eleuenth, and Maximilian the arch duke, in the yeare 1482. The third sort of alliance is that of neutralitie, which is neither defensiue nor offensiue, which may be betwixt the subiects of two [Sidenote 236 - *] princes being enemies; as those of the Franche-countie haue alliance of neutralitie with the house of Fraunce, and are assured in time of warre: in which alliance was also comprised the countrie of Bassigny, by the decree of Bade in the yeare 1555, in confirming with the king the renouation of the neutralitie for the Franch-countie. And all [ E] these aforesaid alliances are perpetuall, or limited to a certaine time, or for the life of princes, and some yeares more, as is alwaies in treaties of alliance agreed vpon betwixt the kings of Fraunce, and the lords of the leagues.

And thus much for the generall diuision of all the treaties which are made betwixt princes, vnder the which are comprehended all the particular alliances. For as for the diuision of the Roman ambassadors, at the enterparle of peace betwixt them and Antiochus the great, it is verie short. Liuie saith, Tria sunt Genera foederum, vnum cum bello victis dicer entur leges: alterum cum pares bello aequo foedere in pacem & amicitiam venirent: [Page 74] tertium cum qui hostes nunquam fuerunt in amicitiam foedere co•…]unt, qui neque dicunt [ F]neque accipiun•…] leges. There are (saith he) three kinds of leagues or confederations; one, when as lawes and conditions are appointed to them that be in battell ouercome: another when men in warre equall come together in like league into peace & friendship: the third, when as they which neuer were enemies, by league ioyne in amitie, who neither giue nor take lawes. All the others, which are neither subiects nor allies, are either coallies, or enemies, or newters without alliance or hostilitie, who all generally, if they be not subiects (bee they allies, coallies, enemies, or newters) are straungers. The coallies are the allies of our allies, which are not for all that our allies, no [Sidenote 237 - *] more than the companion of our associat is ou•…] companion; who yet neuerthelesse either in generall or speciall tearmes, are alwaies in all leagues comprised. As the lords [ G] of the three confederats of the Grises, the antient allies of the Swissers, were in expresse tearmes comprised in the treatie of alliance made in the yere 1531, betwixt king Frances the first of that name, and the Swissers, in qualitie of coallies. But in the yeare 1550 they were allies vnto the house of France, and comprised in the treatie of alliance renewed betwixt king Henrie and the Swissers, in qualitie of allies by alliance equall, in like degree and pension with the Swissers, that is to wit 3000 pound, for euerie league or confederacie, to take away the partialitie that was betwixt the one and the others. For although the Swissers were allied with the league of the Grises, by alliance equall by the treatie made betwixt the Grisons and the seuen little Cantons, in the yeare 1498: so it was yet neuerthelesse that they constrained the lords of the leagues of the Grises to [ H] obey the decrees made in their diets, if it should be there otherwise determined; which was like to haue broken the alliance betwixt the Grisons and the Swissers, in the yeare 1565, for no other cause, (as said the Grisons) than to make the Swissers to know that they were their equals in alliance: but the truth is, that the emperour practised vnder hand, and gaue eleuen thousand crownes vnto certaine of the most factious of the Grisons, to make head, as they confessed afterwards being put to torture, and were condemned in a fine of ten thousand crownes; as I haue learned out of the Commentaries and letters of the French ambassadours, which then was sent vnto the Grisons. Wee haue also example of them of Geneua, who were comprised in the treaties of alliance made betwixt the house of Fraunce and the Bernois, in whose protection they then [ I] were; and so were since the yeare 1527, vnto the yere 1558, that they exempted themselues out of protection, and entreated in alliance equall, and haue alwaies in alliance bene comprised in the qualitie of coallies.

But as those alliances which are defensiue and offensiue towards and against all persons [Sidenote 238 - *] without exception, are of all others the straitest and strongest: so also there is no alliance more vnsure or weaker, than the simple alliance of commerce and traffique which may be euen betwixt enemies: which although it may seeme to bee grounded vpon the law of nations, yet we see it oftentimes to bee forbidden by princes in their own countries, least their subiects should riotously abuse the store of things broght in, or be pinched with the want of things carried our. And for this cause princes haue in [ K] this respect vsed particular treaties, & granted certaine special priueleges & liberties: as in the treaty of commerce or traffick betwixt the house of France & the porttowns of the Easterlings, & the Milanois with the Swissers; wherein they are by the treaties of commerce bound to deliuer a certain quantitie of graine, at a certain price expressed in the said treaties, which the French ambassadors would oftentimes haue broken, for the doubt that the Swissers made to enter vpon the Milanois, enemies vnto the French, for feare the transportation of corne shuld haue bene forbidden: which when the gouernor of Millan had done, in the yeare 1550, the Swissers were vpon the point to haue made [Page 75] alliance defensiue with the Millanois, or at leastwise to haue had them excepted [ A] amongst the confederats as newters. The force of which league was, that such as were in the same league excepted, could not become prisoners to any the confederats; when as yet for all that straungers, although they were no enemies, were by the law prisoners to them that tooke them: For so Pomponius writeth vnto Quintus Mutius: For (saith he) if we haue neither friendship nor hospitalitie, nor league of amitie with any nation, these truely are not enemies: yet what thing soeuer of ours falleth into their hands becommeth theirs; insomuch that a free man borne of ours, by them taken, becommeth their slaue; and so likewise it is, if any thing come from them to vs: thus much he. But this law we now vse not, for regard of that curtesie which ought to bee betwixt man [Sidenote 239 - *] and man. But by the name of enemies we vnderstand them vnto whome we, or they [ B] vnto vs, haue publickly denounced warte; or els without any denuntiation haue of fact made warre vpon vs: as for the rest they are to be deemed of, as of theeues or pirats, with whome we ought to haue no societie or communitie. In auntient time also there was a treatie of alliance to haue iustice done them in a straunge citie, as we read in the books of the Grecians; but at length by the great consent and agreement of all nations, the port of iustice hath by little and little bene still opened, as well to strangers as to citisens.

But in euerie alliance, league, confederation, or conuention whatsoeuer, it behoueth [Sidenote 240 - *] that the lawes of maiestie be vnto euerie prince or people reserued safe and vntouched: for otherwise the one should fall into the power and mercie of the other; as the weaker [ C] oftentimes are by the power & might of the stronger enforced to receiue lawes; which is not so in the treaties of alliance equall: wherein euen little cities are in the indifferent lawes of leagues equall vnto most mightie kings and people, being not bound either to obserue the maiestie of their more mightie confederats, or to giue them place. As a man may see in that treatie of alliance made betwixt the kings of Persia, & the seignori•…] of Thebes: For albeit that the Persian empire was bounded almost with the same bounds that the course of the sunne was, viz▪ from the riuage of Hellesponrus vnto the remotest parts of India; and that the citie of Thebes was enclosed but in strait wals, and the countrey of Beotia; yet for all that were they both in the league of their alliance equall. Now where we said, that in alliance of protection, the protector hath [ D] a prerogatiue of honour; that is not to be vnderstood onely, that hee ought to be the chiefe allie, as was Lewes the eleuenth the French king with the Swissers, who did him that honour aboue the duke of Sauoy, who was before the chiefe: For alwayes the soueraigne prince be he neuer so little, in alliance equall, is maister in his owne house, and holdeth the first place aboue all other princes comming into his countrie: but if the protector himselfe come, he is the first both in sitting and all other honours.

But here might one say, Why should allies in league defensiue & offensiue against all without exception, vsing the same customes, the same lawes, the same state, the same diets, be reputed straungers one to another? Wee haue hereof example of the Swissers, who are allied amongst themselues, with such alliance as I haue said, since [ E] the yeare 1315; yet say I neuerthelesse that such alliance letteth not, but that they are still straungers one vnto the other, and maketh not that they are one citisens to the [Sidenote 241 - *] other. We haue also hereof example of the Latines, and the Romans, who were allies in league defensiue and offensiue, vsed the same customes, the same armes, the same language, and had the same friends and enemies: Whereupon the Latines maintained, that it was and ought to be one and the selfe same Commonweale; and therfore by their ambassadours demaunded to haue their part in the estate & offices of Rome, as had the Romans themselues. S•…] societ•…]s (said they) equatio iuris est, si socialis exercitus [Page 76] illis est quo duplicent vires suas; cur non omnia aequantur? cur non alter ab Latinis [ F]Consuldatur? Vbi pars virium, ibi & imperij pars est. And immediatly after, Vnum populum, vnam rempublicam fieri aequum est. Tum Consul Romanus. Audi Iupiter haec scelera: peregrinos Consules, & peregrinum Senatum in tuo templo, &c. If societie (said they) be an equalitie of right, if they haue their allies armie, whereby they double their strength: why then are not all things made equall? why is not one of the Consuls chosen of the Latines? where part of the strength is, there should also part of the gouernment be. And immediatly after, It is but right that there should bee but one people and one Commonweale. Then said the Roman Consull, Heare ô Iupiter these villanies, straunge Consuls, and a straunge Senat in thy temple, &c. So hee calleth them straungers which were allied vnto the Romans with the strongest alliance that was [ G] possible to deuise, insomuch that they seemed to be all of one and the selfe same citie. Yea Festus teacheth vs the Municipes (or enfranchised men) not to haue bene citisens: whose words we haue thought good here to set downe: Municip•…]um id genus hominum dicitur, qui cum Romam venissent, neque ciues Romani essent, participes tamen fuerunt omnium rerum ad munus fungendum vnà cum Romanis ciuibus, praeterquam de suffragio ferendo aut magistratu capiendo: sicut fuerunt Fundani, Formiani, Cumani, Acerrani, Lanuuini, Tusculani, qui post aliquot annos ciues Romani effecti sunt. Al•…]o modo id genus hominum dicitur, quorum ciuitas vniuersain ciuitatem Romanam venit, vt Aricini, Cerites, Anagnini. Tertio definiuntur ij qui ad ciuitatem Romanam it a venerunt, vt Municipia essent suae cuiusque ciuitatis coloniae, vt Tiburtes, Praenestini, Pisani, Arpinates, [ H]Nolani, Bononienses, Placentini, Sutrini, Lucenses. That kind of men (saith hee) is called Municipials, who comming to Rome and being no citisens, were yet partakers of all things together with the Roman citisens, except in giuing of voyces, and bearing of offices; as were the Fundani, the Formiani, the Cumani, the Acerrani, the Lanuuini, and the Tusculani, who after certaine yeares were made citisens of Rome. And otherwise that sort of men is so called also, whose whole citie came into the citie of Rome; as the Aricini, the Cerites, and the Anagnini. And thirdly they who so came vnto the citie of Rome, as that the Colonies of euerie citie were accounted Municipials; as were the Tiburts, the Praenestini, the Pisani, the Arpinates, the Nolani, the Bononienses, the Placentini, Sutrini, and Lucenses. [ I]

Now many I see to be in the same errour, as that the Swissers for like reason are all [Sidenote 242 - *] but one Commonweale: and yet it is most certaine that they be thirteene Commonweals, holding nothing one of another, but euerie one of them hauing the soueraignty thereof diuided from the rest. In former time their countrey was but one member of the German empire, gouerned by the emperours deputie. The first that rebelled were the inhabitants of Schwits, Vri, and Vnderuald, who treated of alliance both defensiue and offensiue, in the month of December, in the yeare 1315: whereof the first article [Sidenote 243 - *] was, That none of them should more admit the commaund of any prince, or endure any soueraigne prince ouer him. And afterwards in the yeare 1332 alliance was made of foure Cantons, which were called the foure townes of the wood, viz. Vri, Schwits, [ K] and Lucerne. And in the yeare 1351, Zurith entred into alliance with these foure. And in the yeare 1352 Zug was also receiued with these fiue; and the yeare following Berne. And afterwards in the yeare 1393, was made the treatie of Sempach (after that the nobilitie of the Swissers was by the commonaltie discomfited and ouerthrowne) wherein they of Zurich, Lucerne, Berne, Soleure, Zug, Vri, Schwits, Vnderuald, and Glaris, entred into alliance defensiue and offensiue; which they renewed in the yeare 1481. Basill was also receiued in the yeare 1501: Schaffuse also and Apenzel in the yeare 1513, Mulhouse in the yeare 1520, Rotwill in the yeare 1519. The Valesians also [Page 77] in the yeare 1528, with whom beside the auntient treatie, a particular treatie was made [ A] betwixt them and the Bernoies for league defensiue. Bienne also entred into league offensiue and defensiue with the Bernoies, in the yere 1352, after that they had exempted themselues out of the power of the bishop of Basill their soueraigne prince. All which treaties of alliance, the abbat of Orbez, ambassadour for the French king vnto the Swissers, hath let me see. Whereby a man may not onely note the pluralitie of Commonweals, but the diuersitie of alliances also. For they of Berne may summon the three little Cantons of Vri, Schwits, and Vnderuald, vnto their succour, by vertue of their first league: and they of Zurich and Berne, may reciprocally summon the one the other: they of Lucerne may of eight Cantons summon fiue: And the three little Cantons of Schwits, Vri, and Vnderuald, may summon all the rest of the Cantons vnto [ B] their aid, if they chaunce to be inuaded, and that for diuers causes. The assemblies of al the Swissers, except the Rhaetians, them of Geneua, and the Valesians, are holden euerie yeare: and whatsoeuer is decreed by the greater part of the ambassadours of the cities, bindeth them all in particular, and the lesser part of the whole in common. The last that entred into the league vnder the protection of the Bernois, were they of Geneua. [Sidenote 244 - *] All these allies, confederats, and coallies, made two and twentie Commonweales, with the abbat of St. Gal a soueraigne prince; all seperated in soueraigntie, and euerie one of them hauing their magistrats apart, their state apart, their bursse, their demaine and territorie apart. In briefe, their armies, their crie, their name, their money, their seale, their assemblies, their iurisdiction, their ordinances in euerie estate diuided. [ C] And if one of the Cantons of themselues get any thing, the rest haue no part therein: as the Bernoies haue well giuen to vnderstand: For since they entred into the league, they haue ioined vnto their own domesticall gouernment little lesse than fortie towns, vpon whome they leuie men and money, and giue vnto them lawes: ouer which the other Cantons haue no power at all: as was iudged by Frauncis the first, the French king, by them chosen arbitrator in this matter. They of Basil also, when in the yeare 1560 they had lent fiftie thousand crownes vnto the French king, they tooke the Canton of Soleure to themselues in caution▪ but hauing by the common aid of al the Cantons taken in the bailiwike of Lugan, with certaine other lands beyond the mountaines; euerie Canton by turne one after another, sent thither their magistrats and gouernours, [ D] for the administration of iustice▪ that so vnto euery Canton of the Swissers might be reserued their right and due. The towne also of Bade, where they commonly hold their yearely assemblies or diets, is common vnto eight Cantons, which after the victorie of Sempech ioyned in league together. It is also (as I suppose) wel known vnto all men, how that they are not all of one and the same religion, but to bee therein diuided, and had therfore oftentimes taken vp arms one of them against another, if the French king had not wisely prouided therfore; as well for the sincere loue and affection hee bare vnto them, as for the notable interest hee had to maintaine them in peace: for that of their health and welfare the securitie of Fraunce seemeth almost wholy to depend. [ E]

But vnto manie it may seeme, that they altogether make but one estate, considering that, that which is decreed in their diets in common, bindeth euerie one of the Cantons, [Sidenote 245 - *] and the lesser part of them all: as the seuen Cantons Catholike gaue well to vnderstand vnto the foure Cantons Protestants, at the diet holden in September, in the yeare 1554, insomuch that the common countrie situat beyond the mountaines, diuided in religion, and gouerned by the magistrats that euerie Canton sendeth thither by turne; it chaunced that the seuen Cantons Catholike caused them of the common countrey to bind themselues not to chaunge the religion Catholike: and so following [Page 78] the same obligation would afterwards haue proceeded against them of the religion [ F] there, against whome the cantons protestants opposed themselues, and were now readie to haue entred into armes, had not the ambassadour of Fraunce stept in betwixt them, and wisely pacified the matter: yet for all that with this prouiso, That the common subiects of the religion should be punished (for chaunging their religion, contrary vnto the league) if the greater part of the cantons should be of that opinion, and that the cantons catholike should neuerthelesse redeliuer the letters obligatorie of the common subiects. By which meane their differences were againe well appeased. Wherunto the cantons of Glaris and Apenzel serued in good stead; who indifferently receiued both the one and the other religion, and made as it were an equall counterpoise betwixt the one of them and the other. So that it appeareth that the greater part of the [ G] cantons bindeth the lesse, and euerie one of them in particular. Yea and that more is, none of the cantons may haue alliance with any prince whatsoeuer without the whole [Sidenote 246 - *] consent of the rest. As the cantons protestants hauing made alliance with Philip the Landgraue of Hessen, and the seignorie of Strasburg, in the yeare 1532, were by the rest of their allies enforced againe to depart from the same. As in like case the cantons catholike were compelled to renounce their new alliance made with the house of Austria. And albeit that the fiue cantons catholike Lucerne, Vri, Schwits, Vnderuald, and Zug, had made alliance with Pope Pius the fourth, for the defence of their religion; yet could they not with any rewards (were they neuer so great) be enduced to renew the same with his successours. But when treatie was had, for alliance to bee made betwixt [ H]Frauncis the first, the French king, and the Swissers, nothing more letted the same, than the opposition of the cantons protestants; who before instructed in the new religion, and persuaded by the earnest sermons of Zuinglius their preacher, who affirmed it to be vnlawfull for them to serue straunge princes in their warres, preuailed so much, that his followers and countrie men would no other wise make alliance with the king, but by the way of peace and friendship onely. But the leagues renewed with Henry the second, they of Basil and Schaffuse, with the catholike cities, ioyned themselues vnto the French, not in league of friendship onely, but in giuing of their aid also: when as for al that, they of Zutic and Berne, in the yeare 1554, forbad their subiects vpon paine of death to serue the French king in his warres. And the same yere the gouernors of the [ I] canton of Vnderuald, requested by the cardinall of Trent, That by their leaue hee might leuie certaine men in their countrey; forbad their subiects in generall, vppon paine of death, and confiscation of their goods, to go to serue any other prince than the French king: which are all vndoubted arguments to shew, that among the Swissers there are as many Commonweals as there are cities or cantons. In like case the three confederat cities of the Grisons, which consist of fiftie companies or fellowships, haue their gouernments diuers one from another; and yet as oft as they haue their assemblies, the greatest citie of the Grisons vseth to send thereunto eight and twentie deputies, the second twentie foure, and the last fourteene: with power, that whatsoeuer the greatest part of these their deputies shall agree vpon, in matters concerning their common [ K] societie, shall bind euery one of them in particular: and sometimes also in matters of greater importance all the people assemble themselues. Wherefore they are deceiued, which of those three cities would make one Commonweale. For common assemblies and meetings, common demaines, common enemies and friends, make not the same Commonweale; no not although they haue the same bourse, or certaine common treasure: but the soueraigntie of power that euerie one hath to commaund or restraine their subiects: as in like case, if many heads of families should become partners of all their goods, yet should they not therefore make one and the selfe same familie. [Page 79] The same opinion we may haue of the alliance contracted betwixt the Romans [ A] and the rest of the townes of Italie, combined in league both offensiue and defensiue, against all men without exception: who yet neuerthelesse were diuers Commonweales, diuided both in their assemblies and soueraigntie. The like we may say of the league of the seuen townes of the Amphictioniques, who had their meetings and soueraigntie diuided: to whose example most of the townes and seignories of Greece afterwards entred into the same league and confederation, for the deciding of their controuersies: and euerie yeare euery seignorie sent their ambassadours and deputies vnto the common estates, where the greatest affaires, proceedings, and differences, betwixt the princes and seignories, were determined by their deputies, whom they called Myrios: by whom the Lacedemonians were condemned to the seignorie of Thebes, [ B] in the summe of thirtie thousand crownes: and for not obaying the decree, were condemned in double thereof: for that contrarie to the treatie of peace, they had surprised the castle of Cadmee. The Phocences also afterwards when they had robbed the holy treasure at Delphos, were by the decree of the Amphictioniques, enioyned to restore the money by them so euill taken out of the temple: for default of which doing, all their country was adiudged vnto the treasurie of the temple: so that if there were any person which shewed himselfe disobedient vnto the decrees of the Amphictioniques, he therefore incurred the indignation of all Greece.

Here might one say, That all Greece was but one Commonweale, considering the power of the Amphictioniques: and yet neuerthelesse there were almost as many diuers [ C] Commonweales, as cities, holding nothing one of them of another, neither of the states of the Amphictioniques; but that they had so promised one to another, as princes haue accustomed to promise among themselues, and to chuse their allies for their arbitrators: which neither the Lacedemonians, nor the Phocenses had done, neither could against their wils be of right thereunto enforced. Yea the Phocenses to giue the Amphictioniques to vnderstand that they had no power ouer them, pluckt downe and tore in peeces the decrees of the Amphictioniques, fastened vnto the pillers of the temple of Delphos. Yet true it is, that Philip king of Macedon (beeing himselfe none of the league) tooke hereupon occasion to denounce the sacred warre vnto the Phocenses, and to ruinat their state: and in recompence therof obtained the place and priueleges [ D] of the Phocenses: the Lacedemonians being also excluded out of the league of the Amphictioniques, for hauing giuen vnto them succours. The like league almost we also find to haue bene amongst the auntient Gaules, as is to bee seene in the Commentaries [Sidenote 247 - *] of Caesar, where he saith, That Vercingentorix chosen their generall, caused all the states of Gaule to be assembled. And albeit that the lords of Autun, of Chartres, of Gergoye in Auuergne, and of Beauuois, held nothing one of them of another; and that the seignorie of Bourges was in the protection of Autun; and those of Viarron in the protection of Bruges, and so consequently the other townes in like sort: yet so it was, that all the princes and seignories passed their differences by the decrees and iudgements of the Druydes; vnto whose censure if they refused to obey, they were [ E] by them excommunicated, and so of euerie man shunned, as men of all others most detestable. And yet is it most manifest that these Commonweales which I haue spoken of, had their soueraignties diuided one of them from another, the territories of their cities certainely bounded out, and euery one of them their owne proper state and maiestie.

But it may also happen, that to become but one estate, one Commonweale, & one seignorie, when the partners of one league doe agree in the same soueraigntie: a thing not easie to be iudged; if a man looke not neere into it. As the league of the Achaeans [Page 80] was not at the first but of three cities, diuided in estate, assemblies, and soueraigntie; allies [ F] [Sidenote 248 - *] by alliance equal, both defensiue & offensiue: who hauing the same enemies & the same friends, yet at the beginning kept euery one of them vnto themselues the maiesty of their owne citie. But being troubled with continuall warres, and enforced to hold their often assemblies, they by little and little became so straitly vnited together, that in fine they became but one Commonwealth composed of many: and in tract of time drew vnto their estate all the townes and cities of Achaia and Morea, they all retaining still the first name of the Achaeans. As it happened vnto them of the league, whome [Sidenote 249 - *] they call Swissers; for that the canton of Schwits, the least of all the rest, was the first that reuolted, after that they had slaine their gouernor. And as the Achaians were called the correctors of tirants; so also the Swissers (to their great praise) carried this title [ G] of honour. The townes also of the kingdome of Naples, after the massacre of the Pithagorians, being much troubled, and not knowing vnto whome to haue recourse, cast themselues into the protection of the Achaians. But the author and meane of all these cities, to make one and the same Commonweale, was Aratus, who procured it to be decreed by the estates, That euerie yere one chiefe generall should bee chosen to commaund in their warres, and to gouerne their estates: and hee was prince of the Achaians, that is to say, the first that called together their assemblies. And whereas before euerie citie sent their ambassadours and deputies with instructions vnto the assemblie of the Achaians (as the Swissers vse to doe) there to giue their voyces deliberatiue: Aratus brought to passe, that the assemblie of the ambassadours and deputies [ H] so sent, should make choyce of ten principall men, whome they called Demiurges, who alone had voices deliberatiue, and power to resolue, to determine, and decide matters of state: therest of the ambassadours and deputies hauing onely voyces consultatiue. These two points gained, there by little and little grew vp an Aristocraticall Commonweale, in stead of diuers particular Monarchies, Aristocraties, and popular Seignories: many tyrants partly for loue, partly for feare, being drawne thereunto. Now all the spoyle of the enemies, and conquests made by the generals, were not any one cities, but belonged to them all. So that at length such was the vnion and consent of the confederats, that all the townes of Achaia and Morea being made subiect, vnited, and incorporat vnto the state of the Achaians, vsed the same lawes, the same right, [ I] the same customes, the same religion, the same tongue, the same language, the same discipline, the same manners, the same money, the same weights and measures, as saith Polybius. The kings of Macedon entred also into this league; yea the two Philips, Antigonus, and Demetrius, were chosen chiefe captaines of the Achaians, holding neuerthelesse their realme seperated apart from the seignorie of the Achaians. And the Romans knowing well that they could not possibly conquer Greece, the league of the Achaeans standing whole, gaue commaundement vnto Gallus their Proconsull, by all meanes possible to doe what he might to breake the same; which hee not in vaine attempted. For diuers cities complaining vnto the states, that vnder colour of a league and alliance equall, they had taken from them the managing of their estate and soueraigntie; [ K] and assuring themselues of the aid of the Romans, reuolted from the communitie of the Achaians: to meet wherewith, and to stay the other cities from doing the like, Aratus obtained commission from the states to enforme against these rebels: after which the cities before reuolted, put themselues into the protection of the Romans; yet with prouiso, that their estate and soueraigntie should remaine vnto them still. But when the power of the Romans seemed vnto the rest of the Achaeans inuincible, they for the safegard of their libertie, entred into amitie with the Romans also; yet with condition, That the Lacedemonians, whome the Romans had in a manner [Page 81] drawne from the state of the Achaeans, should from thenceforth be vnder the protection [ A] and power of the Achaeans, except in case concerning the life or goods of a Lacedemonian citisen, wherewith the Achaeans might not meddle. Which was by the Romans most subtilly done: that so there might still be matter of perpetuall discord and ciuill warre betwixt the Lacedemonians and the Achaeans. For if the Lacedemonians had bene altogether in power of the Achaeans, they had with their wealth greatly augmented the strength of the associats: and on the other side if the Romans should haue left them altogether free, it was to be feared least they should together with their wonted valour, haue recouered their auntient Commonweale also. The like deceit they vsed also against the Aetolians, which was another estate and league diuided from the [Sidenote 250 - *] Achaeans, composed of three cities, who had also their estate, assemblies, & soueraigntie [ B] diuided; but in fine, following the example of the Achaeans, they of three Commonweals allied with alliance equall, both defensiue and offensiue, established one Aristocratical Commonweale, mannaged by the states of the three confederats, & by one common Senat, wherein was president one chiefe captaine euery yeare chosen. The [Sidenote 251 - *] like we may say of the three and twentie cities of Lycia, which established one Aristocraticall Commonweale, like vnto that of the Achaeans; sauing that the deputies of the greater cities had in their generall assemblies three deliberatiue voices, the meaner citisens two, and the rest but one; as saith Strabo: and moreouer out of the estates they chose a captaine generall, whome they called the Lyciarque, and so the other magistats and judges of all the cities also. Other alliances also and leagues there were of the thirteene [ C] [Sidenote 252 - *] cities of Ionia, of the twelue cities of Tuscanie, and of the fortie seuen cities of the Latines, strongly made by alliance equall, both defensiue and offensiue, holding their assemblies of their states euerie yeare, and chusing also sometimes (but not euer) a chiefe captaine or generall, especially in time of warre: and yet neuerthelesse the soueraigntie of euerie citie continued in the estate of it selfe, as doth the Swissers. For albeit that the citie of Rome was entred into league with the Latines, and that Seruius Tullius, and Tarquin the proud king of Rome, had bene chosen chiefe captaines of the league of the Latines; yet so it is neuerthelesse, that euerie citie kept still the assemblies and soueraigntie thereof: and yet the kings of Rome lost nothing thereby of their maiestie. Now it seemeth at the first show, that such leagues of cities were like vnto those [ D] of the Achaeans: but the like thereof there is not one, except those of the Aetolians: and at this present the estate of the empire of the Germans, which we will in due place show to bee no monarchie, but a pure Aristocratie, composed of the princes of the empire, of the seuen electors, and the imperiall cities. Yet this is a thing common to all confederat cities, that in time of warre they haue vsed to make one generall captaine, euery yeare to be chosen, or els once for all. For as the seignorie of the Achaeans chose for their captaines the kings of Macedon, Antigonus, and Philip the second; and the league of the Aetolians made choice of Attalus king of Asia, as saith [Sidenote 253 - *]Liuie; and likewise the Latines, of the kings of Rome, and other their neighbour princes▪ so also the electors haue oftentimes chosen straunge princes, as Henrie of Lutzemburg, Alphonsus [ E] the tenth, and Charles the fift, kings of Castile; who although they were soueraignes in their owne realmes, were yet neuerthelesse subiects to the empires, as captaines [Sidenote 254 - *] in chiefe. For as a captaine in chief, being not soueraigne to them that haue chosen him, maketh not them of the league to be one Commonweale: so also he chaungeth in nothing the estate and vnion of the Commonweale whereunto hee is called. So Philip Valois the French king, was chosen generall of the ecclesiasticall forces, as we see in that league which was made betwixt Philip Valois, & Henry count Palatine, who was afterwards of the Germans chosen emperour. And not long since Adolphus vncle [Page 82] to the king of Denmarke, was chosen chiefe captaine of the league of the Hauns cities. [ F] The Venetians also as oft as they are to make warre, haue vsed to make choyce of any straunge generall, rather than of a citisen of their owne. But the German emperours take vpon them a stile of much higher qualitie than of Captains in chief, or Generall; auoching themselues not onely to bee cheife captaines and magistrats, but euen monarchs also: which whether it be so or no, we will in due place declare. They pretend also to haue power to commaund not onely the princes of the empire, but euen them also who hold of them nothing. For it is not long since that the emperour Ferdinand sent his ambassadours vnto the Swissers, to the end they should not receiue Grombach, nor the conspiratours his adherents, banished out of the empire: which thing, when the emperour seemed by his letters rather to commaund than to request; the Swissers [ G] (a free people) were therewith not a little moued. And before that also, Morlet Musa ambassadour for the French king vnto the Swissers, certified the king, How that the gouernour of Milan (as hauing such charge from the emperour) had forbidden the cardinall of Syon to enter into league with the French king, for that hee was a prince of the empire: of which his commaund the cardinall made no great account, but without regard of his prohibition made alliance with the French king; from whome he receiued twelue hundred pounds pention yearly. True it is, that in all the leagues of the Swissers with forren princes, the empire is alwayes excepted, if there be not thereof expresse [Sidenote 255 - *] mention made. And for that cause Guiche the kings ambassadour to the Swissers had thereof expresse charge (as I haue seene by the instructions that were giuen [ H] him) to make mention of the emperour in the treatie of alliance, of the yere 1521. For the Germans grounded themselues vpon a maxime, in vertie whereof the emperour Sigismund caused the Swissers to take vp armes against Frederick of Austria, to the preiudice of the alliance made with the house of Austria: presupposing that the empire was superiour vnto the Swissers, and that in all treaties of alliance, the right of the superiour is still to be excepted, although there be thereof no expresse mention made. Which is certaine, for as much as concerneth the lawes of maiestie; but the Swissers confesse not that the emperor hath any superioritie ouer them, and much lesse the emperour, subiect to the states of the empire. It is also true, that by the treatie made betwixt the eight auntient cantons, there is an expresse clause, whereby the cantons of Zurich, [ I] Berne, Schwits, and Vnderualden (as hauing sometime bene part of the German empire) declared, That for their part they entended to comprehend in that treatie the maiestie of the sacred empire, the right whereof they purposed not to preiudice by that treatie of alliance. And within a few yeares aftet, the cantons of Zurich, Berne, Lucerne, Vri, and Glaris, in the name of all the cantons of the Swissers, sent their ambassadours to obtaine the confirmation of their auntient priueledges, of Ferdinand, then holding a diet of the states of the empire, at Ausburg. And by the treaties of alliance made betwixt the sacred empire and the cities of the cantons, it is expresly articulated, That they should not giue any aid vnto any straunge prince, to make warre vpon the territorie of the empire; as I haue learned by a copie of the letters of the emperour [ K]Charles the fift, written to the lords of the cantons; whereby hee complaineth, That their subiects ioyned with the forces of the French king, had entred vpon the territories of the empire, contrarie to the expresse tenour of the alliance that they had with the empire. And not long after, he by other letters demandeth of the lords of the cantons to punish their subiects, who had inuaded the territories belonging to the house of Austria, contrarie to the hereditarie alliance made betwixt the princes of the house of Austria and the Swissers, in the yeare of Grace 1467, and renewed in the yere 1501, in which league, the See of Rome, the Pope, and the empire, are excepted: and a yerely [Page 83] pention set downe, of two hundred florins to be yeately paid vnto euery canton. [ A] Which alliance was againe renewed by the xiij cantons, at the diet of Bade holden the xx day of Iuly 1554. As for the league betwixt the said lords of the cantons, and the French king, it was onely a league defensiue, for the preseruation of the states of the allies, and not for the inuading of forreners: which are the true reasons for which the Swissers are withholden to inuade the territories of the empire, and of the house of Austria; and not for the right of any preheminence, or superioritie that the empire hath ouer them. Which is also yet more expresly verified by the treatie of alliance, renewed betwixt the French king and the lords of the cantons, in Iune 1549, out of which are excluded all such as are not subiect to the Swissers, nor vse not the German tongue. And that is it for which Charles the fift, the emperour, laboured by all meanes to make [ B] agreement with the Swissers, that the dukedome of Millan, with the kingdoms of Naples and Sicilie, might be comprised in the hereditarie treaties of alliance, made with them for the house Austria: which the Swissers •…]latly refused to grant in the yere 1555. The same we may iudge of the cities of the Grisons, rent from the German empire, who sufficiently declared themselues to bee in nothing bound vnto the edicts of the empire, or of the emperor; in that they would not accept euen of a German prince by the emperor appointed to be their bishop: but the 3 cities of the Grisons, being at variance among themselues, about the choice of their bishop▪ the Swissers by the authority of the league, taking vpon them to be arbitrators of all controuersies arising betwixt the confederat cities, without any regard had to the prouision of the pope, or confirmation [ C] of the emperour appointed him to be bishop which was chosen by the Chapiter, subiect to the Grisons; and decreed, that from that time forward hee should be bishop whome the league of the Cadde should make choyce of.

Now seeing that our reasoning is of leagues, and of lawes of armes, question might [Sidenote 256 - *] be made, Whether it be lawfull for subiects to entreat of any particular league or alliance among themselues, or with other forren princes, without the leaue or consent of their owne soueraignes? Such alliances, and especially with strangers princes haue vsed to embarre, for the euill consequences that might ensue thereon: and namely the king Catholike by expresse edicts hath forbidden all his subiects so to do. And at such time as Lewes of Fraunce, duke of Orleance (he which was slaine at Paris) was charge with [ D] many matters, nothing was more grieuously obiected against him beeing slaine, than that he had secretly entred into league with Henrie duke of Lancaster. Yet for all that the princes of the empire thinke it lawfull for them so to doe: and for their owne safetie to enter into league of alliance, both among themselues, and with other forren princes, so that it be done without the preiudice of the German empire. For whatsoeuer leagues are by them otherwise made, are void and of none effect. But when the empire is excepted, the emperour himselfe is not therefore excepted, as hath oftentimes but neuer more plainely bene vnderstood, than in the league which many of the German princes made with Henrie the second, the French king, at Chambort, for the defence of the German empire, against the emperour Charles the fift, in the yeare 1552. [ E] In which league they acknowledged king Henry for their superiour, promising curteously to reuerence his maiestie; and so by their common consent made him generall of their warres, calling him The Protectour of Princes, and of the libertie of the empire. And in the yeare 1559 the like alliance both defensiue and offensiue was made betwixt the king of Sweden, the marques Assemberg, the duke of Brunsuich, the duke of Cleue, the prince of Orange, the countie Aiguemont, and diuers other imperiall townes on the one part, and the king of Denmarke, the duke of Saxonie, the Landgraue of Hesse, the duke of Holste, the duke of Bauyere, the towne of Nuremberg, the [Page 84] bishops of Wirciburg, and Bamberg the towne of Lubec, and diuers other, with Sigismund [ F]Augustus king of Polonia, on the other part. Yea the emperour Charles the fift himselfe made particular alliance with the duke of Bauaria, and other the catholike princes, to chuse his brother Ferdinand king of Romans. And a little after also the league of Franconia was made betwixt the house of Austria, the duke of Bauaria, the three bishops of Franconia, the archbishop of Salisburg, and the cities of Nuremberg and Ausberg. And Ferdinand also king of the Romans, for the catholike religion sake made a particular league with the bishop of Salisburg against the protestants, in the yeare 1556. Wee haue seene also the league which was called The league of Sueuia, to haue made alliance offensiue and defensiue for 40 yeares, without excepting any thing sa•…]e the empire. And the like league also betwixt the Sea townes, which they cal [ G] the Vandales, that is to wit, Lubech, Hambourg, Vimare, Rostoc, Bresme, Suid, imperiall townes, chusing for their chiefe captaine Adolph vncle to the king of Denmarke, who was not any way subiect to the empire. Yet in all these leagues was euer excepted the maiestie of the German empire. Yea that more is, the nobilitie of Denmarke entred into a league defensiue with Sigismund Augustus king of Polonia, & the towne [Sidenote 257 - *] of Luec, against the king of Denmarke himselfe: greater treason than which none could haue bene deuised, if the king of Denmarke had the highest power ouer his people, and were an absolute soueraigne: of which matter, and of all the law of armes wee will in due place reason: but first it behoueth vs to speake of maiestie, or Soueraigntie. [ H]

CHAP. VIII. ¶ Of Soueraigntie.↩

MAiestie or Soueraigntie is the most high, absolute, and perpetuall [Sidenote 258 - *] power ouer the citisens and subiects in a Commonweale: which the Latines cal Maiestatem, the Greeks 〈 in non-Latin alphabet 〉], & 〈 in non-Latin alphabet 〉], and 〈 in non-Latin alphabet 〉]; the Italians Segnoria, and the Hebrewes 〈 in non-Latin alphabet 〉], that is to say, The greatest power to commaund. For maiestie (as Festus saith) is so called of mightinesse. [ I] For so here it behoueth first to define what maiestie or Soueraigntie is, which neither lawyer nor politicall philosopher hath yet defined: although it be the principall and most necessarie point for the vnderstanding of the nature of a Commonweale. And forasmuch as wee haue before defined a Commonweale to be the right gouernment of many families, and of things common amongst them, with a most high & perpetuall power: it resteth to be declared, what is to be vnderstood by the name of a most high and perpetuall power. We [Sidenote 259 - *] haue said that this power ought to be perpetuall, for that it may bee, that that absolute power ouer the subiects may be giuen to one or many, for a short or certaine time, which expired, they are no more than subiects themselues: so that whilest they are in [ K] their puissant authoritie, they cannot call themselues Soueraigne princes, seeing that they are but men put in trust, and keepers of this soueraigne power, vntill it shall please the people or the prince that gaue it them to recall it; who alwaies remained seased thereof. For as they which lend or pawne vnto another man their goods, remaine still the lords and owners thereof: so it is also with them, who giue vnto others power and authoritie to iudge and commaund, be it for a certaine time limitted, or so great and long time as shall please them; they themselues neuerthelesse continuing still seased of the power and iurisdiction, which the other exercise but by way of loane or borrowing. [Page 85] And that is it for which the law saith, That the gouernour of a countrey, or lieutenant [ A] of a prince, his time once expired, giueth vp his power, as but one put in trust, and therein defended by the power of another. And in that respect there is no difference betwixt the great officer and the lesser: for otherwise if the high and absolute power graunted by a prince to his lieutenant, should of right be called Soueraigntie, he might vse the same against his prince, to whome nothing was left but the bare name of a prince, standing but for a cipher: so should the subiect commaund his Soueraigne, the seruant his maister, than which nothing could be more absurd: considering that in all power graunted vnto magistrats, or priuat men, the person of the prince is alwaies to be excepted; who neuer giueth so much power vnto another, but that hee alwayes keepeth more vnto himselfe; neither is euer to be thought so depriued of his soueraigne [ B] power, but that he may take vnto himself the examination and deciding of such things as he hath committed vnto his magistrats or officers, whether it be by the way of preuention, concurrence, or euocation: from whome he may also take the power giuen them by vertue of their commission or institution, or suffer them to hold it so long as shall please him. These grounds thus laid, as the foundations of Soueraigntie, wee conclude, that neither the Roman Dictator, nor the Harmoste of Lacedemonia, nor the Esmynaet of Salonick, nor he whom they cal the Archus of Malta, nor the antient Baily of Florence, (when it was gouerned by a popular state) neither the Regents or Viceroyes of kingdoms, nor any other officers or magistrats whatsoeuer, vnto whom the highest, but yet not the perpetual power, is by the princes or peoples grant committed, [ C] can be accounted to haue the same in Soueraignty. And albeit that the antient Dictators had all power giuen them in best sort that might be (which the antient Latines called Optima Lege) so that from them it was not lawfull to appeale▪ and vpon whose creation all offices were suspended; vntill such time as that the Tribunes were ordayned as keepers of the peoples libertie, who continued in their charge notwithstanding the creation of the Dictator, who had free power to oppose themselues against him; so that if appeale were made from the Dictatour, the Tribunes might assemble the people, appointing the parties to bring forth the causes of their appeale, & the Dictator to stay his iudgement; as when Papirius Cursor the Dictator, condemned Fabius Max the first, to death; and Fabius Max the second had in like manner condemned M•…]nutius, [ D] both Colonels of the horsemen, for that they had fought with the enemie contrarie to the commaund of the Dictator; they were yet both by appeale and iudgement of the people acquited. For so saith Liuie, Then the father of Fabius said, I call [Sidenote 260 - *]vpon the Tribunes, and appeale vnto the people, which can do more than thy Dictatorship▪ [Sidenote 261 - *]whereunto king Tullus Hostilius gaue place. Wherby it appeareth that the Dictator was neither soueraigne prince, nor magistrat, as many haue supposed; neither had any thing more than a simple commission for the making of wa•…]e▪ the repressing of sedition, the reforming of the state▪ on instituting of new officers. So that Soueraigntie is not limited either in power, charge, or time certaine. And namely the ten commissioners established for the reforming of customes and lawes; albeit than they had absolute [ E] power, from which there was no appeale to be made, and that all offices were suspended, during the time of their commission; yet had they not for all that any Soueraigntie; for their commission being fulfilled, their power also expired; as did that of the Dictators. So 〈◊〉] hauing vanquished the enemie, forth with discharged himselfe of the Dictatorship, which he had not had but fifteene dayes, Seruilius in eight dayes, Mamercus in one day. And the Dictator was also named, not by the Senat, or the people, neither by the magistrats, or request made vnto the people; nor by any laws which were alwayes necessarie to the creating of officers, but by an interrex, or a king [Page 86] created for a time, borne of honourable blood: for why, it was not enough for him to [ F] be a noble Senator onely, that should name the Dictator. Now if one should say, that Sylla was by the law Valeria made Dictator for threescore yeares: I will aunswere as Cicero did, That it was neither Dictatorship nor law, but a most cruell tyrannie; whereof for all that he discharged himselfe the fourth yere after he was made Dictator, when as he with the blood of the citisens had quenched the flames of the ciuill warres; hauing yet still in the meane time reserued vnto the Tribunes their free power to oppose themselues against his authoritie. And although Caesar fortie yeares after had inuaded the perpetuall Dictatorship together with the libertie of the people, yet left hee vnto the Tribunes of the people, their power to oppose themselues against his proceedings: but when as before, Pompeius being Consull, the verie name of the Dictatorship was [ G] taken out of the Commonweale, and Caesar, contrarie to the law of Pompeius, had procured himselfe by the law Seruia, to be created Dictator, hee was by the conspiracie of the Senators slaine in the middest of the Senat. But let vs graunt an absolute power without appeale or controlement, to be graunted by the people to one or many to mannage their estate and entire gouernment: shall wee therefore say him or them to [Sidenote 262 - *] haue the state of Soueraigntie, when as hee onely is to bee called absolute soueraigne, who next vnto God acknowledgeth none greaterthan himself? wherefore I say no soueraigntie to be in them, but in the people, of whom they haue a borrowed power, or power for a certaine time, which once expired; they are bound to yeeld vp their authoritie. Neither is the people to be thought to haue depriued it selfe of the power [ H] thereof▪ although it haue giuen an absolute power to one or moe for a certaine time: and much more if the power (be it giuen) be reuocable at the pleasure of the people, without any limitation of time: For both the one and the other hold nothing of themselues, but are to giue account of their doings vnto the prince, or the people of whome they had the power so to commaund: whereas the prince or people themselues, in whome the Soueraigntie resteth, are to giue account vnto none, but to the immortall God alone.

But what if such absolute power as we haue spoken of, be giuen to one or moe for nine or ten yeares? as in auntient time in Athens the people made one of the citisens [Sidenote 263 - *] their soueraigne, whome they called Archon. I say neuerthelesse that hee was no [ I] prince, neither that the Soueraigntie of the state rested in him: albeit that hee was a soueraigne magistrat, but yet countable of his actions vnto the people, his time beeing expired. Yet might one say, What if that high & absolute power which we haue spoken of, were giuen to one or moe▪ for a yere, with condition not to giue any account at [Sidenote 264 - *] all for their doings▪ For to the Cnidiens euery yeare chose 〈◊〉] of their cirisens, whome they called Amymones, that is to say, Men without imputation, with such soueraignty of power, as that they might not be called to account for any thing that they had done, neither during the 〈◊〉] of their charge, nor after that the same was expired: I say yet for althat, that the soueraigntie of the state was not in them▪ seeing that they were bound at the yeares end to restore againe vnto the people, the authoritie they were put in trust [ K] withall; the Soueraigntie still remaining with the people, and the execution thereof with the Amymones, whome a man might well call soueraigne magistrats, but not simple Soueraignes: For the one was the prince, the other the subiect; the one the lord, the other the seruant; the one the proprietarie and seised of the Soueraigntie, the other neither proprietarie nor possessed thereof, neither holding any thing thereof, but as a feoffer or keeper in trust.

The same we may say of the Regents of Fraunce, created for the infancie, furie, or [Sidenote 265 - *] absence of the king, whether the edicts, mandats, and letters pattents, be signed and sealed [Page 87] with the signe and seale of the Regents, and in their name (as they did before the [ A] law of Charles the fift the French king) or els that it be done in the name of the king, and the mandats sealed with his seale: for in that there is little or no difference at all: seeing that whatsoeuer is done by the atturney, the lord allowing the same, may well be thought to be done by the lord himselfe. Now the Regent is the true protectour of the king and of his kingdome: for so the good countie Theobald called himself Procuratorem regni Francorum, that is to say, Protectour of the kingdome of Fraunce. So when a prince giueth absolute power to a Regent, or to a Senat, in his presence, or in his absence, to gouerne in his name; albeit that the edicts or letters of commaund go in his or their name, yet is it alwaies the king that speaketh or commaundeth. So we see [Sidenote 266 - *] that the Senat of Milan or Naples, in the absence of the king of Spaine hath absolute [ B] power to dispatch all mandates in his name: As a man may see by the decree of the emperour Charles the fift in these words. Senatus Mediolanensis potestatem habeat constitutiones principis confirmandi, infirmandi, tollendi, dispensandi, contra statuta, habilitationes, prerogationes, restitutiones faciendi, &c. A Senatu ne prouocari possit, &c. Et quicquid faciet, parem vim habeat vt si à principe factum ac decretum esset: Non tamen possit delictorum veniam tribuere, aut liter as salui conductus reis criminum dare. That is to say, The Senat of Milan hath power to confirme the constitutions of the prince, as also to infirme the same, to disanull them, to dispense with them contrarie to the statutes, to make enablements, prerogatiues, and restitutions, &c. No appeale shall be made from the Senat, &c. And whatsoeuer it shall doe, shall haue like force as if it were done or [ C] decreed by the prince: yet may it not graunt pardon for offences committed, or giue letters of safe conduct vnto parties conuicted. This power almost infinit, is not giuen vnto the Senat of Milan and Naples, in any thing to diminish the maiestie of the king of Spaine, but altogether to the contrarie, to ease him of his care and paines: ioyne hereunto also, that this power how great soeuer it be, is to be reuoked at the pleasure of him that gaue it.

But suppose that such great power be giuen to a kings lieutenant, or the gouernour [Sidenote 267 - *] of a countrey for tearme of his life, is not that a soueraigne and perpetuall power? For otherwise if we should interpret that onely to be a perpetuall power which shall neuer haue end, there should be at all no soueraigntie, but in the Aristocraticall and [ D] popular state, which neuer dieth except it be vtterly rooted out. Or if we vnderstand the word, Perpetuall, in a monarch for him and his heires, there should be few perpetuall soueraigne monarches, seeing there bee but few that be hereditarie; so that they which come to the crowne by way of election, should not be soueraignes: wherefore we must vnderstand the word Perpetuall, for the tearme of the life of him that hath the power. Now if the soueraigne and annuall onely, or which hath a certaine prefixed and limited time to rule, chance to continue his gouernment so giuen him, beyond the appointed time; that must either be by the good liking of him that gaue the power, or els by force: if by force, it is called tyrannie; and yet neuerthelesse the tyrant is a soueraigne: as the violent possession of an intruder is in nature a possession, although it [ E] be contrarie to the law, and they which had the possession before are so thereof disseised: but if such a magistrat continue his soueraigne power by the good liking of the superiour that gaue it him, wee will not therefore say that hee is a soueraigne prince, seeing that he holdeth nothing but by sufferance; and that a great deale the lesse, if the time be not limited, for in that he hath nothing but by commission during pleasure: and he that so holdeth his power, is neither lord nor possessor therof. Men know right well, that there was neuer greater power giuen to magistrat next vnto his prince, than [Sidenote 268 - *] that which was of late yeares graunted to Henrie of Fraunce, duke of Aniou, by king [Page 88] Charles the ninth his brother, for it was most great and perpetuall, without any exception [ F] of the regall power: yet for all that one cannot say that it was soueraigne, inasmuch as he was called Leiutenant General for the king, So long as it shall stand with our good pleasure, ioyned vnto it in his letters patents: which wel declareth a power but during pleasure. Which power of lieutenancie (as of all other magistracies) ceaseth in the presence of the prince.

But what shall we then say of him to whom the people haue giuen absolute power [Sidenote 269 - *] so long as he liueth? in this case we must distinguish: If such absolute power bee giuen him purely and simply without the name of a magistrat, gouernour, or lieutenant, or other forme of deputation; it is certaine that such an one is, and may call himselfe a Soueraigne Monarch: for so the people hath voluntarily disseised and dispoyled it selfe of [ G] the soueraigne power, to sease and inuest another therein; hauing on him, and vppon him transported all the power, authoritie, prerogatiues, and soueraignties thereof: as if a man should by pure gift deliuer vnto another man the proprietie and possession that vnto him belongeth: in which case such a perfect donation admitteth no conditions. In which sort the regall law is by the lawyer said to haue bene made in these words, [Sidenote 270 - *]Cum populus ei & in eum omnem potestatem contulit: when as the people conferred vnto him, and on him all their power. But if the people shall giue all their power vnto any one so long as he liueth, by the name of a magistrat, lieutenant, or gouernour, or onely to discharge themselues of the exercise of their power: in this case he is not to be accounted any soueraigne, but a plaine officer, or leiutenant, regent, gouernour, or [ H] guerdon and keeper of another mans power. For as the magistrat, although hee make a perpetuall lieutenant, and hath no care of his own iurisdiction, leauing the entire exercise thereof vnto his lieutenant, yet for all that, it is not in the person of the lieutenant that the power lyeth to commaund, or iudge, neither the exercise and force of the law: but if he passe beyond the power vnto him giuen, it is to none effect; if his doings bee not ratified, liked, and approued by him that hath giuen the power. And for this cause king Iohn of Fraunce, led prisoner into England, after his returne thence, solemnly ratified all the acts of Charles the Dolphin, his eldest sonne, made regent in his absence, to strengthen and confirme the same, so farre as should be conuenient and needfull. Be it then that a man either by commission, or institution, or by delegation, for a certaine [ I] time, or for euer, exercise the power of another man: he that so exerciseth this power, is not therefore a soueraigne, although that by his letters of commission or deputation he be not called a protector, lieutenant, regent, or gouernour: no not, albeit that such power be giuen him by the customs and lawes of the countrey, which should be much [Sidenote 271 - *] stronger than election. As by an auntient law amongst the Scots, the entire gouernment of the kingdome was committed vnto him that was neerest of blood vnto the king in his minoritie, or vnder the age of xxv yeares, yet with charge that all things should be done in the kings name: which law was long ago abrogated, for the danger might grow vnto the young king, by his nigh kinsmen affecting the kingdome: for which, Caesar thought it lawfull for a man to become villanous. [ K]

Now let vs prosecute the other part of our propounded definition, and show what these words, Absolute power, signifie. For we said that vnto Maiestie, or Soueraigntie [Sidenote 272 - *] belongeth an absolute power, not subiect to any law. For the people or the lords of a Commonweale, may purely & simply giue the soueraigne and perpetuall power to any one, to dispose of the goods and liues, and of all the state at his pleasure: and so afterward to leaue it to whome he list: like as the proprietarie or owner may purely and simply giue his owne goods, without any other cause to be expressed, than of his owne meere bountie; which is indeed the true donation, which no more receiueth condition, [Page 89] being once accomplished and perfected: as for the other donations, which carrie with [ A] them charge and condition, are not indeed true donations. So also the chiefe power giuen vnto a prince with charge and condition, is not properly soueraigntie, nor power absolute; except that such charge or condition annexed vnto the soueraigntie at the creation of a prince, be directly comprehended within the lawes of God and nature. As it is at the inuesting of the Tartar king. For the great king of Tartarie beeing dead, the prince and the people to whome the right of the election belongeth, make choice [Sidenote 273 - *] of one of the kinsmen of the dead king, which they thinke best of (prouided that he be either his sonne or his nephew) and hauing placed him in a throne of gold, the bishop (after a solemne song sung according to the manner of their auncestours) turning his speech vnto the king, in the name of the people, saith thus, Wee pray thee, and charge [ B] thee to raigne ouer vs: to whom the king aunswereth, If you will haue me so to doe, you must be readie to performe whatsoeuer I commaund; whomsoeuer I appoint to be slaine, you shall slay him presently, and into my hand you shall commit the whole estate of the kingdome: whereunto the people aunswere, Bee it so: after which the king continuing his speech, saith, My word shall be my sword: whereunto the people giueth a great applause. This done, he is taken out of his high throne, and set vpon the ground vpon a bare boord, vnto whome the bishop againe turning his speech, saith, Looke vp vnto heauen and acknowledge almightie God, the king of the whole world: and behold also this table whereon thou sittest below: if thou rule well, thou shalt haue althings according to thy harts desire; but if thou forget thy dutie and calling, thou shalt be cast headlong [ C]downe from thy high seat, and dispotled of thy regall power and wealth, bee brought so low, as that thou shalt not haue so much as this boord left thee to sit vpon. This said, hee is lifted vp on high, and by all the people proclaimed king of the Tartars. This so great a power giuen by the people vnto the king, may wel be called absolute and soueraigne, for that it hath no condition annexed thereunto, other than is by the law of God and nature commaunded.

The same or like forme of inuesting we may also see to haue bene sometimes vsed in [Sidenote 274 - *] realmes and principalities, descending by succession. But the like is not to that of Carinthia, where yet at this present neere vnto the citie of St. Vitus, in a meddow is to be seene a marble stone, whereunto a countrey pesant vnto whom that office of right belonged, [ D] stept vp, hauing vpon his right hand a blacke cow, and on his left a leane euill fauored mare, and all the people about him; towards whome he that is to be created duke commeth marching, with a great number of lords, all apparelled in red, and his ensignes displayed before him; all in good and seemely order, except the new duke himselfe, who is apparrelled like a poore shepheard, with a sheephooke in his hand: whome the clowne vpon the stone seeing comming, crieth alowd in the Sclauonian tongue, Who is that (saith he) that commeth marching so proudly? whereunto the people aunswere, That it is their prince: then demaundeth he, Is he a iust iudge? seeketh hee the good of his countrey? is he free borne? is he worthie of that honour? and withall religious? Hee is, saith the people, and so shall hereafter be. Then the peasant giuing the duke a [ E] little blow on the eare, goeth downe from the stone, and is for euer after free from all publique charges: so the duke mounting the stone, and brandishing his sword, promiseth vnto the people, To be a good and a iust man: and in that habit goeth to heare masse; which in solemne manner done, he putting off his shepheards apparrell, and attired like a prince, goeth vp to the stone againe, and there receiueth the homage and oath of fidelitie of his vassals and subiects. True it is, that in auntient [Sidenote 275 - *] time the duke of Carinthia was the emperours greatest Huntsman: but since that the empire fell into the house of Austria, wherunto that dukedome belonged, both the name of the Great [Page 84] Huntsman, and the old maner of inuesting the duke grew out of vse, and the duchies [ F] of Carinthia, Stiria, and Croatia, with the counties of Cilia, and Tirol, remaine annexed vnto the dukedome of Austria.

As for those things which are reported concerning the inuesting of the king of Arragon, [Sidenote 276 - *] they are long since growne out of vse; but this wee haue heard them to haue wont to bee done: The great magistrat of Arragon, whome they call the Chief Iustice, thus said vnto the king: We which are vnto thee in vertue nothing inferiour, and in power greater than thy self, create thee our king; yet with this condition, that one amongst vs shall still haue more power and commaund than thy selfe. Wherein he is deceiued that so writeth, the king to haue bene then chosen of the people; a thing that neuer was there done. For Sanctius the Great by force of armes draue the Moores out [ G] of the kingdome of Arragon, after they had seuen hundred yeares possessed the same: after which time his posteritie of both Sexes, held that kingdome by inheritance. And also Peter Belluga, who most exactly writ of the kingdome of Arragon, denieth the people to haue any right in chusing the king; but when the line of the king vtterly saileth. That were also a new and more absurd thing, that the king of Arragon should haue lesse power than the states of Arragon, seeing that the same author Belluga saith, That the states might not assemble themselues without the kings expresse commaundement; neither being assembled, might depart without leaue giuen them from the king. That were also more absurd and ridiculous, that such speech should bee vsed by the magistrat, vnto him that was now crowned, sacred, and receiued a king by right [ H] of succession, who also placed and displaced the same great magistrat whensoeuer hee list. For the same author writeth, Martin Didato the greatest magistrat, to haue beene placed in that office by the queen of Aragon, in the absence of Alphonsus her husband, king of Arragon and Sicilia; and also by her againe discharged of the same office. And albeit that by sufference of the king, that great magistrat or justice of Arragon, determineth of the processe and controuersies betwixt the king and his people: as it is also in England sometime by the high court of Parliament, and sometime by the magistrat, whome they call the Lord Chiefe Iustice of England, and by all the judges of this [Sidenote 277 - *] realme, and in all places: yet neuerthelesse so it is, that the great justice of Arragon, and all the estates remaine in full subiection to the king, who is no wayes bound [ I] to follow their aduice, neither to consent to their requests, (as saith the same doctor) which is generall to all estates of a monarchie, as saith Oldard, speaking of the kings of Fraunce and Spaine, Who haue (saith he) absolute power. Yet true it is, that none of these doctours tell vs, what absolute power is. For if wee shall say, that hee onely hath absolute power, which is subiect vnto no law; there should then bee no soueraigne prince in the world, seeing that all princes of the earth are subiect vnto the lawes of God, of nature, and of nations.

So to the contrarie it may be, that some one subiect may be dispensed withall, and [Sidenote 278 - *] absolued from all the laws, ordinances, and customes of his Commonweale, and commaundement of the magistrat; and yet be neither prince, nor soueraigne. Example [ K] we haue of Pompey the great, who was dispensed withall from the lawes for fiue yeres, by expresse decree of the people, published at the request of of Gabinius the Tribune, at such time as extraordinarie power was giuen him to make warre against the pirats: neither is it any new thing or straunge thing to dispence with a subiect for his obedience to the lawes, seeing that the Senat sometimes so dispenced without the consent of the people: vntill the law Cornelia published at the request of a Tribune, whereby it was ordained, That no person should be exempted out of the power of the laws, nor dispenced withall by the Senat, if he had not at the least the consent of two hundred [Page 73] Senators. For by the law of the twelue tables, it was forbidden vpon paine of death [ A] to graunt any priueledge but by the great assemblies of the people; but that law was euill executed, being still infringed by the Senat. Yet he that is so exempted from one law, or moe, or all lawes, is for all that alwaies in the subiection and obeysance of them which haue the soueraigntie: yea although he bee for euer absolued from all the lawes of his countrey. As Augustus, who although he was the prince of the people of Rome, that is to say, the chiefe in that Commonweale, yet faigning himselfe to be inferiour to the people in generall, he oftentimes propounded questions vnto the people, as if the people, and not Augustus, should make the lawes: and at the chusing of magistrats, would shake the citisens by the hands, that so hee might commend them that stood for the offices vnto the people. But it behoueth him that is a soueraigne not to [ B] be in any sort subiect to the commaund of another: which thing Tiberius wisely meaning in these words, reasoned in the Senat concerning the right of soueraigntie, saying that The reason of his doings were no otherwise to be manifested, than in that it was to be giuen [Sidenote 279 - *]to none: whose office it is to giue laws vnto his subiects, to abrogat laws vnprofitable, and in their stead to establish other: which hee cannot do that is himselfe subiect vnto lawes, or to others which haue commaund ouer him. And that is it for which the law saith, That the prince is acquitted from the power of the lawes: and this word the Law, in the Latine importeth the commaundement of him which hath the soueraigntie. Wee also see that vnto all edicts and decrees there is annexed this clause, Notwithstanding all edicts and ordinances whereunto we haue derogated, and do derogat [ C]by these presents: a clause which hath alwaies bene ioyned vnto the antient lawes, were the law published by the present prince, or by his predecessours. For it is certaine, that [Sidenote 280 - *] the lawes, ordinances, letters pattents, priueleges, and grants of princes, haue no force, but during their life, if they be not rati•…]by the expresse consent, or at least by sufferance of the prince following, who had knowledge there of, and especially of the priueleges. As when Bartolus was sent ambassadour vnto Charles the fourth, the German emperour, for the confirmation of the priueleges of the citie of Perouze, hee obtained the same, yet with condition, That they should so long haue force, vntill they were reuoked by the succeeding emperours: vnto whom for all that, no preiudice could haue bene done, although that clause had not bene put to: which was the cause that Michael [ D]Del Hospital chauncelour of Fraunce, constantly refused, yea euen at the request of the queene, to seale the priuileges by Charles the ix. graunted vnto S^t. Maur des Fossez, for that they carried with them a perpetuall enfranchisment and immunitie from taxes, which is contrarie to the nature of personall priueledges, and tended to the diminishing of the power of his successours, and could not be giuen vnto corporations or colleges, which liue for euer, but for the life of the prince that graunted them onely, although the word (perpetuall) were thereunto adioyned. Which for all that if they were graunted vnto corporations or colleges, by a popular or Aristocraticall state, must needs bee for euer, or at leastwise so long as that popular or Aristocraticall state should continue. And for this cause Tiberius the emperour, successour to Augustus, [ E] would not that the priueledges graunted by the dead emperours, should bee of any effect, if their successors had not confirmed them: when as before the priueleges granted by princes, if they were not limited vnto a time certaine, were accounted as giuen for euer. Wee also see in this [Sidenote 281 - *] realme, that at the comming of new kings, colleges and corporations require to haue their priueleges, power, and iurisdiction confirmed; yea the verie parliaments and soueraigne courts, as well as other particular officers.

If then the soueraigne prince be exempted from the lawes of his predecessors, much lesse should he be bound vnto the lawes and ordinances he maketh himselfe: for a [Page 92] man may well receiue a law from another man, but impossible it is in nature for to giue [ F] [Sidenote 282 - *] a law vnto himselfe, no more than it is to commaund a mans selfe in a matter depending of his owne will: For as the law saith, Nulla obligatio consistere potest, quae a voluntate promittentis statum capit, There can be no obligation, which taketh state from the meere will of him that promiseth the same: which is a necessarie reason to proue euidently that a king or soueraigne prince cannot be subiect to his owne lawes. And as the Pope can neuer bind his owne hands (as the Canonists say;) so neither can a soueraigne prince bind his owne hands, albeit that he would. Wee see also in the end of all edicts and lawes, these words, Quia sic nobis placuit, Because it hath so pleased vs: to giue vs to vnderstand, that the lawes of a soueraigne prince, although they be grounded vpon good and liuely reasons, depend neuerthelesse vpon nothing but his meere [ G] and franke good will. But as for the lawes of God and nature, all princes and people [Sidenote 283 - *] of the world are vnto them subiect: neither is it in their power to impugne them, if will not be guiltie of high treason to the diuine maiestie, making warte against God; vnder the greatnesse of whome all monarches of the world ought to beare the yoke, and to bow their heads in all feare and reuerence. Wherefore in that wee said the soueraigne power in a Commonweale to be free from all lawes, concerneth nothing the lawes of God and nature. For amongst the Popes, [Sidenote 284 - *] hee that of all others best knew the lawes of maiestie or soueraigntie, and had almost brought vnder him the power of all the Christian emperours and princes, said him to be indeed a soueraigne that was able to derogat from the ordinary right (which is as I vnderstand it, from the laws of his [ H] countrey) but not from the lawes of God or nature.

But further question maybe, Whether a prince bee a subiect to the lawes of his [Sidenote 285 - *] countrey, that he hath sworne to keepe, or not? wherein wee must distinguish. If the prince sweare vnto himselfe, That he will keepe his law: hee is no more bound to his law, than by the oath made vnto himselfe: For the subiects themselues are not any way bound by oath, which they make in their mutuall conuentions, if the couenants be such as from which they may by law shrinke, although they be both honest and reasonable. But if a soueraigne prince promise by oath to keep the lawes which he or his predecessours haue made, he is bound to keepe them, if the prince vnto whome hee hath so giuen his word haue therein any intrest; yea although he haue not sworne at [ I] al: But if the prince to whom the promise was made haue therin no intrest, neither the promise nor the oath can bind him that made the promise. The like we say, if promise be made by a soueraigne prince vnto his subiects, or before hee bee chosen; for in that case there is no difference, as many thinke: not for that the prince is bound to his laws, or by his predecessours; but to the iust conuentions and promises that hee hath made, be it by oath, or without any oath at all; as should a priuat man bee: and for the same causes that a priuat man may be releeued from his vniust and vnreasonable promise, as for that it was too grieuous, or for that he was by deceit or fraud circumuented; or induced thereinto by errour, or force, or iust feare; or by some great hurt: euen for the same causes the prince may be restored in that which toucheth the diminishing of his [ K] maiesty, if he be a soueraigne prince. And so our maxime resteth, That the prince is not subiect to his lawes, nor to the lawes of his predecessours: but well to his owne iust and reasonable conuentions, and in the obseruation whereof the subiects in generall or particular haue intrest. Wherein we see many to be deceiued, which make a confusion of lawes, and of a princes contracts, which they call also lawes: as well as he which calleth a princes contracts pactionarie lawes; as they tearme them in the state of Arragon, when the king maketh any law at the request of the people, and receiueth therefore any money or subsidie; then the Arragonians say that the king is vnto that law [Page 93] bound, but not so vnto other lawes: and yet neuerthelesse they confesse that the prince [ A] may derogat from the same, the cause of the law ceasing: which to bee true, as it may by reason and authoritie be confirmed, so was there no need of money, or of oath, to bind the soueraigne prince, if it concerned his subiects (to whome he had promised) to [Sidenote 286 - *] haue the law kept. For the word of a prince ought to bee as an Oracle; which looseth his dignitie, if his subiects haue so euill an opinion of him, as not to beleeue him except he sweare; or else to be so couetous, as not to regard his promise except therefore he receiue money. And yet neuerthelesse the maxime of right still standeth in force, That the soueraigne prince may derogat vnto the lawes that hee hath promised and sworne to keepe, if the equitie thereof ceased, and that of himself without consent [Sidenote 287 - *] of his subiects: yet true it is, that a generall obscure or doubtfull derogation, in this case [ B] sufficeth not, but that there must bee a derogation in words speciall. But if there bee no probable cause of abrogating the law he hath promised to keepe, he shall do against the dutie of a good prince, if he shall go about to abrogat such a law: and yet for al that is he not bound vnto the couenants and oathes of his predecessours, further than standeth with his profit, except he be their heire. And for this cause the states of Arragon complained to king Alphonsus, for that he for gaine had altered and chaunged the money of Arragon, to the great preiudice of the subiects, and marchants straungers, contrarie to the promise made by Iames the first, king of Arragon, in the yeare 1265, in the moneth of August, and confirmed by king Peter, in the yeare 1336, who swore vnto the estates neuer to chaunge the money; in recompence wherof the people had [ C] promised euery one of them euery seuen yeares to pay vnto him a maruedie, if they were in goods worth fifteene maruadies. Now the kingdome of Arragon discendeth by inheritance vnto the heires, both males and females; but the effect of the contract betwixt the prince and the people ceasing, as the subsidie for which the kings of Arragon had made that order which I haue said, the king was no more bound to keepe his promise: then were the people to pay the subsidie vpon them imposed.

We must not then confound the lawes and the contracts of soueraigne princes, for [Sidenote 288 - *] that the law dependeth of the will and pleasure of him that hath the soueraigntie, who may bind all his subiects, but cannot bind himselfe: but the contract betwixt the prince and his subiects is mutual, which reciprocally bindeth both parties, so that the one partie [ D] may not start therefrom, to the preiudice, or without the consent of the other. In which case the prince hath nothing aboue the subiect, but that the equitie of the law which he hath sworne to keepe, ceasing, he is no more bound to the keeping thereof, by his oath or promise, as we haue before said: which the subiects cannot do among themselues, if they bee not by the prince releeued. The soueraigne princes also wel aduised, [Sidenote 289 - *] will neuer take oath to keepe the lawes of their predecessours; for otherwise they are not soueraignes. But then might some man say, Why doth the German emperour, who hath a preheminence aboue all other Christian kings, before he be crowned sweare betwixt the hands of the archbishop of Cullen, to keepe the laws of the empire, the golden Bul, to establish iustice, to reuenge the pope, to keepe the catholike faith, to [ E] defend the widdowes, the fatherlesse, and poore? Which forme of oath, wherewith the emperour Charles the fift bound himselfe when he was crowned, cardinall Caietan is said to haue sent vnto the pope, whose legat he then was in Germanie. Whereunto I aunswere, that the emperour is subiect vnto the states of the empire; neither taketh vpon him the soueraigntie ouer the princes electours, nor ouer the estates; as we shall in due place declare. And if a man say, That the kings of the Epirots in auntient time swore, that they should raigne well and orderly according to the lawes and customs of the countrey, and the subiects also on their part swore to defend and maintaine their [Page 94] king, according to the lawes and customes of their countrey: I say yet notwithstanding [ F] all these oathes, that the soueraigne prince might derogat from the lawes, or frustrat and disanull the same, the reason and equitie of them ceasing. The oath also of our kings, which is the fairest and shortest that can be, containeth nothing in it concerning the keeping of the lawes and customes of the countrey or predecessours. The words I will set downe, as they be taken word for word out of the librarie of Rheims, out of an auntient booke, which thus beginneth Iuliani ad Erigium Regem Anno 1058 Henrico Regnante 32 iiij. Calend. Iunij. Ego Philippus Deo propiciante mox futurus Rex [Sidenote 290 - *]Francorum, in die ordinationis meae promitto coram Deo & sanctis eius, quod vnicuique de nobis commissis canonicum priuilegium, & debitam legem atque iustitiam conseruabo, & defensionem adi•…]uante Domino quantum potero exhibebo: sicut Rex in suo regno vnicuique [ G]Episcopo & Ecclesiae sibi commisse per rectum exhibere debet: populo quoque nobis credito, me dispensationem legum in suo iure consistentem, nostra auctoritate concessurum. viz. The booke of Iulian Erigius, Anno 1058, in the xxxij. yeare of the raigne of Henrie the first, the fourth of the calends of Iune. I Philip, by the grace of God forthwith to become king of Fraunce, on the day of my inuesting, doe promise before God and his Saints, that I will keepe canonicall priueledge, with due administration of law and iustice, to euerie one committed to our charge: and by the help of God to the vttermost of my power defend them, in such manner as a king in his kingdome ought of right to giue vnto euerie bishop & church committed vnto him: & by our authoritie to grant vnto the people committed vnto vs, the execution of the lawes remaining in force. I [ H] know that which is found in the librarie of the Beauuais is like vnto this, and the oath of the same Philip the first: but I haue seene another in a little auntient booke in the Abbay of S. Allier in Auergne, in these words; Ie iure au nom de Deiu tout puissant, & promets de gouuerner bien et deuement les subiects commis en ma garde, & faire de tout mon pouuoir iudgement, iustice, et misericorde: I sweare by the name of the Almighty God, and promise well and duly to gouerne my subiects committed to my charge: and with all my power to doe them iudgement, iustice, and mercie. Which seemeth to haue bene taken from the prophet Hieremie, where he saith, I am the great eternall [Sidenote 291 - *]God, which do iudgement, iustice, and mercie; and in which things I take singular pleasure. Which formes of oathes shew plainely vnto the eye, that the oathes contained in the [ I] booke lately printed and published by the title of Sacre Du Roy, are much changed and altred from the auntient forme. But both in the one and the other oath, a man may see that there is not any bond for the soueraigne prince to keepe the lawes, more than so farre as right and iustice requireth. Neither is it to be found that the auntient kings of the Hebrewes tooke any oath: no not they which were anointed by Samuel, Helias and others. But some take a more precise oath, such as is the oath of Henry the 3 king of Fraunce, and of Polonia. Ego Henricus Rex Poloniae, &c. Iuro Deo omnipotenti, quòd omnia iura, libertates, priuilegia publica & priuata iuri communi non contraria, Ecclesijs, [Sidenote 292 - *]principibus, Baronibus, nobilibus, ciuibus, incolis, per meos praedecessores Reges, & quoscumque principes Dominos, Regni Poloniae iustè concessa, & quae in interregno decreta [ K]sunt seruabo, iusque omnibus incolis more maiorum reddam. Ac si quidem (quod absit) Sacramentum meum violauero nullam nobis incolae Regni obedientiam praestare tenebuntur, &c. sic Deus adiuuet. viz. I Henrie king of Polonia, &c. Sweare vnto almightie God, that I will keepe all the lawes, liberties, publick and priuat priueleges, not contrarie to the common law, iustly graunted vnto churches, princes, barrons, noble men▪ citisens, or inhabitants, by the kings my predecessours, or whatsoeuer other princes, lords of the kingdome of Polonia: as also all such things as were decreed in the time of the vacancie of the kingdome: and that I will administer iustice vnto all the inhabitants [Page 95] of this kingdome, after the manner of our auneestours: And if I shall violat this mine [ A] oath (which God forbid) then the inhabitants of this kingdom shall be bound to yeeld vnto vs no obedience, &c. And so God helpe vs. But this forme of oath sauoureth not of royall maiestie, but the condition of a meaner prince, such an one as (amongst others) is chiefe in a Commonweale.

But touching the lawes which concerne the state of the realme, and the establishing thereof; forasmuch as they are annexed & vnited to the crowne, the prince cannot derogat [Sidenote 293 - *] from them, such as is the law Salique: & albeit that he so do, the successor may alwaies disanull that which hath bene done vnto the preiudice of the laws royall; vpon which the soueraigne maiestie is stayed & grounded. Yet might one say, That Henry the 5, king of England & France, marying Katherine of France, sister to Charles the 7, [ B] took an oath to keep the high court of parliament in the liberties & soueraigntie therof; and to cause iustice to be administred in the realme, according vnto the customes and lawes thereof. See the words of the decree agreed vpon for to make him successour vnto the crowne of Fraunce, the xxj of May, in the yeare 1420. I say they caused him to take such an oath, for that he was a straunger come to a new kingdome; from which the lawfull inheritour was excluded by a decree of the Parliament of Paris, giuen for default and conrumacie; for the murther committed vppon the person of Iohn duke of Burgoigne, which was by sound of trumpet pronounced at the marble table in the presence of the princes. But as for generall and particular lawes and customs, which concerne not the establishing of the state of the realme, but the right of men in [ C] priuat, they haue not vsed to haue bene with vs otherwise chaunged, but after generall assemblie of the three estates of Fraunce well and duly made; or of euery bailiwike in particular: not for that it is necessarie for the king to rest on their aduice, or that hee [Sidenote 294 - *] may not do the contrarie to that they demaund, if naturall reason and iustice so require. And in that the greatnesse and maiestie of a true soueraigne prince, is to bee knowne; when the estates of all the people assembled together, in all humilitie present their requests and supplications to their prince., without hauing any power in any thing to commaund or determine, or to giue voice, but that that which it pleaseth the king to like or dislike of, to commaund or forbid, is holden for law, for an edict and ordinance. Wherein they which haue written of the dutie of magistrats, & other such like books, [ D] haue deceiued themselues, in maintaining that the power of the people is greater than the prince; a thing which oft times causeth the true subiects to reuolt from the obedience which they owe vnto their soueraigne prince, & ministreth matter of great troubles in Commonweals. Of which their opinion, there is neither reason nor ground, except the king be captiue, furious, or in his infancie, and so needeth to haue a protector or lieutenant appointed him by the suffrages of the people. For otherwise if the king should be subiect vnto the assemblies and decrees of the people, hee should neither bee king nor soueraigne; and the Commonwealth neither realme not monarchie, but a mee•…] Aristocratie of many lords in power equall, where the greater part commaundeth [ E] the lesse in generall, and euery one in particular: and wherein the edicts and lawes are not to be published in the name of him that ruleth, but in the name and authoritie of the states, as in an Aristocraticall Seignorie, where hee that is chiefe hath no power, but oweth obeysance vnto the commaundements of the seignorie: vnto who me yet they all and euerie one of them faigne themselues to owe their faith and obedience: which are al things so absurd, as hard it is to say which is furthest from reason. So when Charles the eight, the French king, being then but about xiiij. yeres old, held a parliament at Tours, although the power of the parliament was neuer before [Sidenote 295 - *] no•…] after so great as in those times, yet Relli, then speaker for the people, turning [Page 96] himselfe vnto the king, thus beginneth his oration, which is yet in print extant. Most▪ [ F]high, most mightie, and most Christian king, our naturall and onely lord, we your humble and obedient subiects, &c. Which are come hither by your commaund, in all humilitie reuerence and subiection present our selues before you, &c. And haue giuen mee in charge from all this noble assemblie, to declare vnto you the good will and hartie desire they haue with a most firme resolution and purpose to serue, obey, and aid you in all your affaires, commaundements and pleasures. In briefe, all that his oration and speech is nothing els but a declaration of all their good wils towards the king, and of their humble obedience and loialtie. The like speech almost we see was also vsed in the parliament at Orleans▪ vnto king Charles the ninth, when he was yet but scarce eleuen yeares old. Neither are the parliaments of Spaine otherwise holden, but that euen a greater obedience & a [ G] greater loialtie of all the people in generall, is giuen vnto the king, as is to bee seene in the acts of the parliament holden at Toledo by king Philip, in the yeare 1552, when he was yet scarce full xxv▪ yeares old. The aunswers also of the king of Spaine vnto the [Sidenote 296 - *] requests and humble supplications of his people, are giuen in these words, We will; or else, We decree and ordaine; and such other like aunsweres, importing the refusall or consent of the prince: yea the subsidie that the subiects pay vnto the king of Spaine, they call seruice. Wherby it appeareth them to be deceiued, which say that the kings of Arragon cannot derogat from the priueledges of the states, by reason of the priueleges giuen them by king Iames, in the yeare 1260, and confirmed in the yeare 1320. For as the priueleges was of no force after the death of the king, without the confirmation [ H] of his successours: so also the same confirmation of the rest of the kings following was necessarie, for that by the law no man can raigne ouer his equals. And albeit that in the parliaments of England, which haue commonly bene holden euerie third yeare; there the states seeme to haue a verie great libertie (as the Northerne people almost all breath thereafter) yet so it is, that in effect they proceed not, but by way of supplications and requests vnto the king. As in the parliament of England, holden in October, [Sidenote 297 - *] 1566, when the estates by a common consent had resolued (as they gaue the queene to vnderstand) not to entreat of any thing, vntill she had first appointed who should succeed he•…] in the crowne: She gaue them no other aunswere, But that they were not to make her graue before she were dead. All whose resolutions were to no purpose without [ I] her good liking: neither did she in that any thing that they required. Now also the estates of England are neuer otherwise assembled (no more than they are in this realme of Fraunce, or Spaine) than by parliament writs, and expresse commandements proceeding from the king. Which showeth verie well that the estates haue no power of themselues to determine, commaund, or decree any thing; seeing that they cannot so much as assemble themselues; neither beeing assembled, depar, without expresse commaundement from the king. Yet this may seeme one speciall thing▪ that the laws made by the king of England, at the request of the states, cannot bee againe repealed, but by calling a parliament of the estates: Which is much vsed and ordinarily done, as I haue vnderstood by M. Dale, the English ambassadour, an honourable gentleman [ K] [Sidenote 298 - *] and a man of good vnderstanding, who yet assured me, that the king receiued or reiected the law as seemed best vnto himself: and stucke not to dispose therof at his pleasure, and contrarie to the will of the estates: as wee see Henry the eight to haue alwaies vsed his soueraigne power, and with his onely word to haue disanulled the decrees of parliament▪ albeit that the kings of England are not otherwise crowned, but that they must sweare inuiolatly to keepe the lawes and customes of the land: which how that oath is to be vnderstood, I referre you to that which wee haue before reported. But here might some obiect and say▪ That the estates of England suffer not any extraordinary [Page 97] charges and subsidies to be laid vpon them, if it be not first agreed vpon and consented [ A] vnto in the high court of parliament: for so it is prouided by an auntient law of Edward the first, king of England, wherewith the people as with a buckler hath bene oftentimes seene to defend it selfe against the prince. Whereunto mine aunswere is, That other kings haue in this point no more power than the kings of England: for that it is not in the power of any prince in the world, at his pleasure to rayse taxes vpon the people, no more than to take another mans goods from him; as Philip Commines wisely shewed in the parliament holden at Tours, as weread in his Comentaries: and yet neuerthelesse if the necessitie of the Commonweale be such as cannot stay for the calling of a parliament, in that case the prince ought not to expect the assemblie of the states, neither the consent of the people; of whose good foresiight and wisedome, next [ B] vnto God, the health & welfare of the whole state dependeth: but concerning all sorts of taxes and tributes, more shall be said in place conuenient. True it is, that the kings of England, since the time of Henrie the first (as we read in Polidore) haue as it were alwaies accustomed euery third yeare to demaund of the people an extraordinarie subsidie, which is for the most part graunted. As in the parliament holden in Aprill, in the yeare 1570, the queene of England by the consent of the estates, drew from them fiue hundred thousand crownes (as the like whereof is sometime also vsed to bee done in Spaine) from which manner of tribute she had now many yeares before abstained. Now here might some obiect also, That the estates of England haue power to condemne, [Sidenote 299 - *] as king Henrie the sixt was condemned by the estates, to be kept prisoner in the [ C] Towre of London. I say that that was done by the ordinarie judges of England, the lords spirituall and temporall of the vpper house, at the request of them of the neather house; who presented also a bill of request to the vpper house, in the yeare 1571, tending to the end, that the earles of Northumberland, and Westmerland, & other conspiratours, might be declared to haue incurred the paines contained in the lawes of the land, made against them that were guiltie of treason. Which showeth well that the estates in bodie together haue neither power nor iurisdiction, but that the power is with the judges of the vpper house, as should be, if the parliament of Paris assisted by the prince and peers, should be from the estates in bodie together seperated, to iudge of themselues of great matters. [ D]

But yet there remaineth another difficultie to resolue vpon, concerning the aforesaid estates of England, who seemed to haue power to commaund, resolue, and decide of the affaires of state. For queene Marie hauing assembled them for the passing of the articles of agreement concerning the mar•…]iage with king Philip: after many disputes and difficulties proposed, in fine, the conclusion of the treatie was made the second day of Aprill in the yeare 1554, in forme of a decree conceiued in the name of the estates, in these words: The articles aforesaid, and that which dependeth thereof, seene and considered of, by the estates assembled in parliament, holden at the palace of Westminster, it hath bene said, That concerning the disposition and collation of all benefices and offices, they are reserued vnto the queene; as also of all the fruits, profits, [ E] rents, reuenews of her countries, lands, and seignories, the queene, as sole and alone shall enioy the royaltie and soueraignetie of her said realmes, countries, lands, and subiects, absolute, after the consummation of the mariage; so that the said prince shall not pretend by the way of the courtesie of England, any claime to the crowne or soueraigntie of the realme, nor to any other rights, preheminences, or authorities: That all mandats and letters pattents shal passe vnder the name of the said prince and queene iointly: which letters signed with the hand of the queene alone, and sealed with the great seale, shall be auailable: but being not signed by the said queene, shall be void and [Page 98] to none effect. I haue willingly set downe the ratification at large, to show that the [ F] soueraigntie wholly without diuision belonged vnto the kings of England, and that the estates had but the view thereof: For the ratification of the estates, no more than of a court, a parliament, a corporation, or colledge, sufficeth not to show the power to commaund, but rather their consent to strengthen the acts, which gtherwise might haue bene called into some doubt, after the death of the queene: or in her life time by the magistrats and officers of the realme, opposing themselues against her. Wherfore we conclude the maiestie of a prince to be in nothing altered or diminished by the calling together or presence of the states: but to the contrarie his maiestie thereby to bee much the greater, & the more honorable, seeing all his people to acknowledge him for their soueraigne: albeit that in such assemblies, princes not willing to reiect their subiects, [ G] graunt, and passe many things, whereunto they would not otherwise yeeld their consent, if they were not ouercome by the requests, prayers, and iust grieuances of the people, anfflicted and vexed oftentimes without the knowledge of the prince, who yeeldeth many things vnto them all, which he would deny vnto them in particular; or at leastwise not so easily graunt them: either for that the voyces of euerie one in particular, are lesse heard, than of al together: or for that the prince at other times commonly vseth to see but by other mens eyes▪ and to heare but by other mens eares and reports: whereas in parliament hee seeth and heareth his people himselfe, and so enforced with shame, the feare of religion, or his owne good disposition, admitteth their iust requests. [ H]

So wee see the principall point of soueraigne maiestie, and absolute power, to consist [Sidenote 300 - *] principally in giuing laws vnto the subiects in generall, without their consent. And not to speake of straunge countries, we haue oftentimes seene in this realme of Fraunce [Sidenote 301 - *] certaine generall customs abolished by the edicts of our kings, without the assembling or consent of the estates: when the iniustice of the same is plainely to be seene; as the custome of this realme, commonly vsed in euery place, concerning the succession of mothers vnto the goods of their children, hath bene chaunged without assembling of the estates, either in generall or particular. Which chaunging of customes is no new thing, for since the time of Philip the faire, the custome generall in this realme, which suffered not him that was ouerthrowne in sute, to be condemned in charges also, was [ I] disanulled by edict, without assembling the estates. And the generall custome which forbad to receiue the testimonie of women in ciuill causes; was abolished by the edict of Charles the sixt, without calling together of the estates. For it behoueth that the soueraigne prince should haue the lawes in his power, to chaunge and amend them, according as the case shall require; as saith the lawyer Sextus Cecilius: euen as the master pilot ought to haue the helme alwaies in his hand, at discretion to turne it as the wether or occsion requireth: for otherwise the ship might oftentimes perish before hee could take aduice of them whome he did carrie. Which is a thing necessarie, not onely vnto a soueraigne prince, but sometimes vnto a magistrat also, the necessitie of the Commonweale so requiring, as we haue said of Pompee, and of the Decemuiri. And [ K] for that cause Augustus after he had ouerthrowne Marcus Antonius at Actium, was by the Senat absolued from the power of the lawes, albeit that he as then was but chiefe of the Commonweale, and no soueraigne prince, as we shall in due place declare. And after that Vespatian the emperour was also exempted from the power of the lawes, not by the Senat onely, but onely by the expresse law of the people as many thinke, and as yet it is to be found engrauen in marble in Rome: which the lawyer calleth the law Royall, howbeit that it hath no great probabilitie, that the people which long time before had lost al their power, should giue it to him that was stronger than themselues.

[Page 99] Now if it be profitable that the soueraigne prince, for the good gouernment of an [ A] estate, should haue the power of the laws vnder him; then it is more expedient for the gouernour in an Aristocraticall estate; and necessarie for the people in their popular estate: for the monarch is diuided from the people; and in the Aristocraticall state, the lords or gouernours are diuided from the commonaltie and vulgar people; in such sort as that in both the one & other Commonweal, there are two parties, that is to wit, he or they that hold the soueraigntie on the one part, and the people on the other; which causeth the difficulties which are betwixt them for the rights of soueraigntie, which cease in the popular estate. For if the prince or lords which hold the estate be bound to obserue the laws, as many think they are, and that they cannot make any law without the consent of the people, or of the Senat; it cannot also bee againe by law repealed, [ B] without the consent of the one or of the other: which can take no place in a popular estate, seeing that the people make but one bodie, and cannot bind it selfe vnto it selfe. But, Why then (will some say) did the people of Rome sweare to keepe the lawes? That was first begun by Saturnius the Tribune of the people, that so hee might the more straitly bind the Senators to the lawes by him made: which Dio Nicaeus writeth to haue bene afterward done in all lawes. But it is one thing to bind all together, and to bind euerie one in particular: for so al the citisens particularly swore to the obseruation of the lawes, but not all together; for that euery one of them in particular was bound vnto the power of them all in generall. But an oath could not be giuen by them all: for why, the people in generall is a certaine vniuersall bodie, in power and nature [ C] diuided from euery man in particular. Then againe to say truly, an oath cannot bee [Sidenote 302 - *] made but by the lesser to the greater, but in a popular estate nothing can bee greater than the whole body of the people themselues. But in a monarchie it is otherwise, where euerie one in particular, and all the people in generall, and (as it were) in one bodie, must sweare to the obseruation of the lawes, and their faithfull alleageance to one soueraigne monarch; who next vnto God (of whome he holdeth his scepter & power) is bound to no man. For an oath carrieth alwaies with it reuerence vnto whom, or in whose name it is made, as still giuen vnto a superiour: and therefore the vassall giueth his oath vnto his lord, but receiueth none from him againe, although that they be mutually bound the one of them vnto the other. [ D]

But if it be so, that a soueraigne prince next vnder God, is not by oath bound vnto any, why did Traian the emperor standing vpright, before the Consul sitting, solemnly sweare to the keeping of the lawes? That seemeth to haue beene so done by him for two causes, the one, for that hauing gotten the Consulship, together with his principalitie, he swore as the Consuls did at their entrance into their Consulship; as also al the new magistrats did the first of Ianuarie, after they had sacrificed in the Capitoll: The other reason was, for that the Roman emperours at the first had not any soueraigne power, but were onely called princes, that is to say, the chiefe men in the Commonweale; which fo•…] me of a Commonweale, is called a principalitie, and not a monarchy: [Sidenote 303 - *] but a principalitie is called a certaine forme of an Aristocratie, wherein one is in honor [ E] dignitie and place, aboue the rest: as amongst the Venetians: For the Roman emperour or prince, at the first was in honour aboue the rest, but not in power: howbeit that in truth the greatest part of the Roman emperors were indeed tyrants. Which is well to be vnderstood, for that which happened in the raigne of Caligula the cruell tyrant, [Sidenote 304 - *] who hauing bid certaine forten kings and allies of the people of Rome to supper, and question there at the table arising about their honour and greatnesse; hee to stay their strife, rapt out this verse, taken out of Homers Iliades;

[Page 100] 〈 in non-Latin alphabet 〉]. [ F]

Good it is not to be ruled by many,

One king, one lord, if there be any.

And it missed but a little (as saith Suetonius) but that hee had euen then chaunged [Sidenote 305 - *] his principalitie into a monarchie, and set a crowne vpon his owne head. For in a principalitie the prince or chiefe magistrat, who is aboue the rest, is yet no soueraigne; as we shall hereafter show in the Commonweals of the Venetians, and of the Germans. And albeit that many of the Roman emperors, had taken vpon them the soueraigntie, and by diuers sleights wrested from the people their libertie; yet neuerthelesse it was no [Sidenote 306 - *] maruell if Traian, one of the best princes that euer liued in the world, swore (as is aforesaid) [ G] to keep the laws, although he in the name of a soueraigne prince were exempted; to the end by his own example to moue his subiects to the more carefull obseruing of them: but neuer one of the emperours before him so swore to the obseruing of the lawes. And therefore Plinie the younger, who in a pannegiricall oration, set forth the praises of that most worthy prince, speaking of the oath of Traian, crieth out in this sort, A great noueltie (saith he) and neuer before heard of, hee sweareth by whome wee sweare. And after that in the declination of the empire, Theodoric desirous to gaine the fauour of the Senat and people of Rome, followed the example of Traian, as wee read in Cassiodore, Ecce Traiani nostri clarum seculis reparamus exemplum; iurat vobis per quem iuratis, Behold (saith he) we renew the example of our Traian, famous through [ H] all ages; he sweareth vnto you, by whome you your selues sweare. And like it is, that other princes haue vsed the same custome, of taking the like oath at their coronation, although they haue the soueraigntie by the right of succession. True it is, that the kings of the Northerne people take such oathes as derogat from their soueraigntie: As for example, the nobilitie of Denmarke withstood the coronation of Frederick, in the moneth of August, in the yeare 1559, vntil that he had solemnly sworne that he should not put any noble man to death, or confiscat his goods, vntill he were iudged by the Senat; and that all noble men should haue iurisdiction & power of life & death ouer their subiects, without appeale; and that the king should haue no part in their fines or confiscation of their goods; and also that the king should not giue any office without consent [ I] of the counsell: which are all arguments, that the king of Denmarke is no absolute soueraigne. But this oath was first drawne out of the mouth of Frederick this mans grandfather, at such time as he made warre against Christierne king of Denmark (who was driuen out of his kingdome, and after long banishment returning, at length died in prison, wherein he had liued twentie fiue yeares) and was afterward confirmed by Christierne father of Frederick, who tooke the same oath. And to the end hee should not violat, or breake the same, the nobility to that purpose treated a league with the towne of Lubec, and Sigismundus Augustus king of Polonia, who also himselfe seemes not to haue much more power ouer his owne subiects than hath the king of Denmarke ouer his. [ K]

But of two things the one must be: that is to wit, the prince that sweareth to keepe [Sidenote 307 - *] the lawes of his countrey, must either not haue the soueraigntie; or els become a periured man, if he shall abrogat but one law, contrarie vnto his oath: whereas it is not only profitable that a soueraigne prince should sometimes abrogat some such lawes, but also necessarie for him to alter or correct them, as the infinit varietie of places, times, and persons shall require. Or if wee shall say the prince to be still a soueraigne, and yet neuerthelesse with such condition, as that he can make no law without the aduice of his counsell or people; he must also be dispensed with by his subiects, for the oath that [Page 101] he hath made for the inuiolat obseruation of the laws; & the subiects againe which are [ A] obliged & bound vnto the lawes, be it in particular, or in generall, haue also need to be dispensed withall by their prince, for feare they should bee periured: so shall it come to passe that the maiestie of the Commonweale▪ enclining now to this side, now to that side, sometimes the prince, sometimes the people bearing sway; shall haue no certaintie to rest vpon: which are notable absurdities, & altogether incompatible with the maiestie of absolute soueraigntie, & contrarie both to law & reason. And yet we see many, euen them that thinke themselues to see more in the matter than others, which maintaine it to be most necessarie, that princes should be bound by oath to keep the laws & customs of their country. In which doing they weaken & ouerthrow all the rights of soueraign maiesty, which ought to be most sacred & holy, & confound the soueraigntie [ B] of one soueraigne monarch, with an Aristocratie, or Democratie: whereby it commeth to passe, that many princes, seeing that power to be taken from them, which properly belongeth vnto them, & that men would make them subiect to the laws of their country, dispense in the end, not only with those their country laws, but euen with the laws of God & nature, making account of them all alike, as if they were bound to neither, but of both discharged. But to make all this matter more plaine to be vnderstood, [Sidenote 308 - *] we will by examples make manifest that before said. Wee read it thrice repeated in Dan. that by the customs of the Medes & Persians, the laws by their kings made, were immutable & irreuocable; & albeit that the king of the Medes would haue exempted the Prophet Daniel, from the punishment of death, which by the edict which hee had [ C] broken was to haue bene inflicted vpon him; yet was he by the princes forbidden so to doe, who shewed him, that the edict by him made could not by the law of their countrey be reuoked: wherunto when the king euen against his will (as should seeme) had assented, Daniel was accordingly condemned vnto the beasts, and so cast vnto the hungrie lions. If then the greatest monarch vpon earth could not derogat from the lawes by himselfe made; the grounds of maiestie and soueraigntie by vs before laid, must needs faile: and that not onely in a monarchie, but in a popular state also: as was that of Athens, whereof Thucydides speaking, showeth that the warre of Peloponesus [Sidenote 309 - *] began for a law made by the Athenians, whereby the Megariens were forbidden to come into the port of Athens; wherein the Megariens complained vnto their allies [ D] and friends themselues to be wronged and the lawes of nations violated: whereupon the Lacedemonians sent their ambassadours to Athens, to request the Athenians, that that law might be againe repealed. Wherunto Pericles then in greatest grace & authoritie with the people, aunswered the ambassodours, That by the expresse lawes of their auncestours, the lawes once made and confirmed by the people, and so hanged vp vppon the common pillar, might neuer be taken away. Which if it were so▪ the people was bound not to their owne lawes onely, but euen to the lawes of their predecessours also. And that more is, Theodosius the emperour would not that the lawes by himself made, should be of any force, except they were confirmed by the generall decree of the whole Senat. In like maner also by the decree of Lewes the eleuenth, the French king, [ E] concerning the institution of knights of the order, in the eight article, it is expresly said, That the king shall vndertake no warre, nor other thing whatsoeuer of great importance, concerning the high estate of the Common weale, without knowledge thereof giuen vnto the knights of the order, so to haue and vse their aduice and counsell. And for that cause, as I suppose, the edicts of our kings are of none effect, vntill they be read, published, verified, and registred in parliament, with the consent of the great Atturney generall, and the approbation of the court. And in England it is by [Sidenote 310 - *] auntient custome receiued, that lawes concerning the state of the Commonweale [Page 102] should take no place, except they were authorised by the Estates assembled in the high [ F] court of Parliament.

These reasons, although they seeme probable, yet are they not sufficient to proue the rule concerning Soueraignetie, before by vs set downe, not to be true: For, as for [Sidenote 311 - *] that which was obiected concerning the law of the Medes, and authoritie of the king in abrogating of the lawes; it is manifest that it was false, and by the courtiers his enemies deuised against the life of Daniel: who grieuing to see a man for his wisdome and royall discent honourable, and yet a stranger, to be in greater grace and fauour with the king than themselues, and exalted in their countrey in degree next vnto the king, made that false allegation of the strength of their lawes against him, with whose accusation the king deceiued, or els to proue if Daniels God could saue him from death, caused [ G] him to be cast vnto the hungrie lyons. But hauing in him seene the wonderfull power and mercie of God towards his seruants, he gaue Daniels enemies to bee deuoured of the same lyons: wherein the end well shewed, the king to haue beene aboue the lawes of his countrey. In like sort Darius Memnon at the request of a young Iewish ladie reuoked [Sidenote 312 - *] the decree whereby he had appointed all the nation of the Iewes to be vtterly rooted out. As for that which Pericles answered vnto the ambassadours of the Lacedemonians, he therein respected not so much the truth, as the shew thereof, that so taking occasion of warre, which he sought after, he might frustrate the accusations of his aduersaries, and danger of the law, as Timaeus and Theopompus haue truly written, and Plutarch hath not denied. And that was it for which hee said to the Lacedemonian [ H] ambassadours, That the edicts once hanged vpon the pillars, might not be taken away: which his sophistication the ambassadours returned vnto him againe, with a Lacedemonian quip, saying, That they desired not to haue the edict taken away from the pillar, but onely the table turned. For if the lawes of the Athenians had bene immutable, why had they such varietie, and infinit multitude of lawes, which they were wont to establish at the continuall motion of their magistrats, & to abrogat the old, that so the new might take place? But that Pericles therin abused the Lacedemonian ambassadors, it is manifest by the oration of Demosthenes against Leptines, who had preferred a request vnto the people, to the end that by a perpetuall and irreuocable edict it might from that time forward bee forbidden vpon paine of death, to present any request vnto [ I] the people for the obtaining of any priueledge or exemption, and the like paine to bee inflicted vpon him that should so much as speake for repealing that edict. Wherein Demosthenes hardly withstood Leptines, & so wrought the matter, that his request was receiued, hauing manifestly showed the people by consenting to this law, to be dispoiled not onely of the prerogatiue that it had to graunt exemptions and priueledges to such as should well deserue of them, but also of the power to abrogat lawes by them made, if the necessitie of the Commonweale should so require. They had also a popular action, concerning the breaking of lawes, which was commenced against them that would haue the people to passe any edict contrarie to the lawes before receiued; as one may see in all the orations of Demosthenes: but yet that neuer letted, but that the [ K] new and profitable lawes were still preferred before the old vniust lawes. And in like case the generall edict, wherein it was decred, That the offendors fine once adiudged and set downe by the people, might not in any wise bee forgiuen or abated; was yet many times reuoked, and that once in fauour of Pericles himselfe, and another time in fauour of Cleomides and Demosthenes, who by di•…]ers iudgements of the people, had bene euerie one of them condemned in a fine of [Sidenote 313 - *] thirtie thousand crownes. They say also in this realme of Fraunce, the fine once being paid, be it right or be it wrong, is neuer [Sidenote 314 - *] againe to be restored: and yet we see oftentimes the contrarie, and the same to bee [Page 103] againe recouered. It is then a formalitie which is and hath alwaies beene in euerie [ A] Commonweale, that the law makers to giue vnto their lawes the greater weight and authoritie, ioyne thereunto these words of course, Edicto perpetuo & irreuocabili sancimus, &c. By a perpetuall and irreuocable decree we ordaine. And with vs in the beginning [Sidenote 315 - *] of euery law, Vniuersis praesentibus & futuris: which words are added to the eternall memorie of posteritie, least the law should by any be infringed. And the more to shew the difference of the lawes, such as be made for perpetuitie, are with vs sealed with greene waxe, and strings of greene and purple silke: whereas vnto the temporary Edicts are put neither strings of silke, nor greene waxe, but yellow onely. And yet for all this, there is no law which is perpetuall, no more than were those of the Greekes and Romanes, who in making their lawes, commonly vsed to ioyne thereunto this [ B] clause, Vt nec per Senatum, nec per populum, lex infirmari possit: That the law might not either by the Senate or the people bee weakened: which wordes if they imported a perpetuitie, why did the people almost in the same moment that it had established a law, againe abrogate the same. Concerning which matter, Cicero writing vnto his friend Atticus: Thou knowest (sayth he) the Tribune Claudius to haue decreed that his law should hardly, or not at all, by the Senate or the people be infringed. But it is sufficiently knowne that regard was neuer had vnto this clause: Vt nec per Senatum nec per populum lex infirmari possit: for otherwise (sayth he) one should neuer see law repealed, seeing that there is no law which carieth not this clause with it: from which men yet doe ordinarily derogate. Thus much he. Which is yet more plainely to be vnderstood out of the Oration [ C] of Fabius Ambustus against the intercession of the Tribunes of the people, who maintained, that the people could not chuse both the Consuls of the nobilitie, for that by a law before made it was ordained, That one of the Consuls should be still chosen out of the people: Fabius alledged the law of the twelue Tables in these words, Quod postremum iussit populus id ratum esto, What the people shall last decree, let that stand for good.

So we see the Medes, the Persians, the Greeks, the Latines, to haue vsed the same forme and cautions, for the establishing of their edicts and lawes, that our kings doe: who vnto the lawes by them made, oftentimes ioyne this clause: Without that therefrom can by vs, or our successors be derogated. Or els, without regard hauing vnto any derogation, [ D]which from this present we haue declared to be of none effect. And yet no man can so make a law vnto himselfe, but that he may depart therefrom, as we haue before said. Wherefore the repeales and derogations of the former edicts and lawes, are almost alwaie subiect vnto the latter edicts and derogations. And therefore Solon did wisely, who would not bind the Athenians to keep his lawes for euer, but contented himselfe to haue them kept for an hundred yeares: and yet neuerthelesse hee yet liuing, [Sidenote 316 - *] and present, suffered (though against his will) the greatest part of them to bee chaunged.

But that publication or approbation of lawes in the assembly of the Estates or parliament, is with vs of great power and importance for the keeping of the lawes; not [ E] that the Soueraigne prince is bound to any such approbation, or cannot of himselfe make a law without the authoritie or consent of the States or the people: but yet it is a courteous part to do it by the good liking of the Senat, as saith Theodosius, which [Sidenote 317 - *]Baldus enterpreted not to be a thing so much of necessitie, as of courtesie: as that is also a speech well beseeming soueraigne maiestie, for a prince to professe himself bound vnto the lawes of himselfe that raigneth. And certainely there is nothing better, or more beseeming a prince, than by his deeds and life to confirme those lawes which hee himselfe hath made: for that is of greatest force, for the honour and obedience of the [Page 104] subiects towards their prince: as contrariwise nothing is more daungerous for the [ F] contempt both of the prince and of the lawes▪ than without iust cause to breake or infringe that which thou hast commaunded: as an auntient Roman Senatour said, Leuius est, & vanius, sua decreta tollere quam aliorum, It is more lightnesse and vanitie [Sidenote 318 - *] to take away a mans owne decrees, than the decrees of other men. But it is one thing for a man so to doe willingly and of his owne accord, and another thing to bee bound by bond or oath so to do it.

But what if a prince by law forbid to kill or to steale, is hee not bound to obay his [Sidenote 319 - *] owne lawes? I say that this law is not his, but the law of God and nature, whereunto all princes are more straitly bound than their subiects: in such sort as that they cannot be from the same exempted, either by the Senat, or the people, but that they must bee [ G] enforced to make their appearance before the tribunall seat of almightie God: For God taketh a straiter account of princes than of others, as the maister of wisdome Salomon himselfe a king, hath most truly written. Whereunto well agreeth that saying of Marcus Aurelius, who for his desire of knowledge, was called the Philosopher: The magistrats are iudges ouer priuat men, princes iudge the magistrats, and God the princes. This is the opinion of 2 great princes, esteemed of all other the wisest; vnto whom we wil ioine the third, Antigonus king of Asia, who hearing a flatterer say, that al things were lawfull for kings: Yea, said he, forbarbarous kings and tyrants. The first that vsed this kind of flatrerie, was Anaxarchus towards Alexander the Great, whome hee made to beleeue, That the goddesse Iustice, was still at the right hand of Iupiter, to shew that [ H] princes could do nothing but that was right and iust: Of which their iustice he shortly after made proofe, for being fallen into the hands of the king of Cyprus, he was by h•…]s commaundement with hammers beaten to death vppon an anuill. But how much more truely did Seneca say to the contrarie, Caesaricum omnia licent, propter hoc minus licet, When all things are vnto Caesar lawfull, euen for that are they lesse lawfull. And therefore they that generally say, that princes are not subiect vnto lawes, nor to their owne conuentions, if they except not the lawes of God and nature, and the iust contracts and conuentions made with them, they do great wrong both vnto God and nature, in that they make not the speciall exemption to appeare; as men say in matters of priueleges. So Dionisius the tyrant of Sicilie, said to his mother, That he could dispence [ I] with the lawes and customes of Syracusa, but not with the lawes of nature. For as the contracts and testaments of priuat men, cannnot derogat from the decrees of the magistrats, nor the decrees of the magistrats from the auntient customes, nor the auntient customes from the generall lawes of a soueraigne prince: no more also can the lawes of soueraigne princes alter or chaunge the lawes of God and nature. Wherefore the Roman magistrats did notably, who vnto the end of all their requests & laws which they propounded vnto the good liking of the people, commonly annexed this clause, Si quid ius non esset E. E. L. N. R. eius ea lege nihilem rogaretur, that is to say, That if any thing were therein contained that was not iust and reasonable, they by that law requested nothing. But of all others they are most absurd, which say, That a [ K] soueraigne prince can decree nothing against the lawes of God and nature, without most apparant reason. For what apparant reason can there be diuised, for which wee ought to breake the lawes of God? And hereof proceed such paradoxes as this, That he whome the Pope hath dispensed withall for the lawes of God, is sufficiently assured before God: which how true it is let others iudge.

There resteth yet another obiection, by them obiected which with more reason [Sidenote 320 - *] examine matters. If princes (say they) be bound vnto the lawss of nature, that is to say, of vpright reason: and that ciuill lawes be (in all things) agreeable vnto right and reason, [Page 105] it must needs thereof follow, that the prince is also bound vnto the ciuil laws. And [ A] to that end they alleage that saying of Pacutius vnto Theodosius the emperour, Tantum tibi licet quantum per leges licebit, So much is lawfull for thee to do, as thou maiest by law doe. For the plainer aunswering of which doubt, we must thus distinguish: That [Sidenote 321 - *] the lawes of a soueraigne prince, whereof question is made, concerne either that which is publick, or priuat, or common to both: and generally when question is, it is either of that which is profitable and not honest, or of that which is honest and not profitable, or is both profitable and honest; or els of that which is neither of both. And that I call honest, which is agreeing vnto the equitie of nature; vnto which naturall equitie it is manifest all princes to be bound, seeing that which nature teacheth, is altogether comprehended in the law of nature, whereunto euery prince is bound to obey: neither [ B] is such a law to bee called a ciuile law, albeit that the prince cause it to bee published, but rather the law of nature. And with so much the more reason, when the law is both honest and profitable. But if that which is by law commaunded, bee neither honest nor profitable, although of such things there ought to be no law; yet may the prince bind his subiects vnto those lawes, whereunto he is not himselfe bound, if they haue no dishonour or dishonestie ioyned with them. For there bee some things honest, some things dishonest, and some in a meane betwixt both. But if profit repugne against honestie, it is good reason that honestie should take place. As Aristides the iust, to whom Themistocles was commanded to communicat his deuice, aunswered, That the counsell of Themistocles was profitable to the Commonweale; but yet in his [ C] iudgement dishonest: the Athenians hearing so much, enquired no farther after the matter, but decreed that his profitable counsell to be reiected. But here when we reason of a Commonweale, we must speake according to the common manner; which our speech is not to be examined according to the subtiltie of Philosophers: for they set downe, nothing to be profitable which is not honest, neither anything to bee honest which is not iust: but that old custome is growne out of vse, so that of necessitie we must make a difference betwixt things honest, and things profitable. But if that which the prince by his law commaundeth, be not honourable, but profitable, he himselfe is not by that law bound, although his subiects be, so that nothing bee therein contained contrarie to the lawes of God and nature: and such lawes the prince may [ D] at his pleasure abrogat, or from them derogat, and instead of them make others, either more or lesse profitable: for things honest, iust, and profitable, haue their degrees of more and lesse. If then it be lawfull for a prince amongst lawes profitable, to make choice of them that be more profitable; so also amongst lawes iust and honest, he may chuse out them that be most vpright and honest, albeit that some therby receiue profit, and some others losse; prouided that the profit be publicke, and the losse particular: and yet if the prince shall otherwise decree, it is not lawfull for the subiect to breake the laws of his prince, vnder the colour of honestie, or iustice: as if the prince in time of famine, forbid the carrying out of victuals (a thing not only profitable to the Commonweale, but oft times also iust and reasonable) he ought not to giue leaue to some few to [ E] carry thē out, to the preiudice of the common state, & of other marchants in particular; for vnder the colour of profit that these flatterers and scrapers carrie things, many good marchants suffer losse, and all the subiects in generall are famished: and yet neuerthelesse the famine and dearth ceasing, it is not yet lawfull for the subiect to transgresse the edicts of his prince, and to carrie out victuals, vntill the law forbidding the same, be by the prince abrogated, no not though there seeme neuer so great occasions for the transgressing of the law: as that now the citie is full of victuall, and all other things necessarie; and that the law of nature persuadeth vs to giue reliefe vnto distressed [Page 106] strangers, in letting them haue part of such good things as it hath pleased God to [ F] send encrease of more in one countrey than in another: for as much as the power of the law that forbiddeth, is greater than the apparant equitie, the show whereof euerie man might pretend to his desires, except the prohibition in the law be directly against the lawes of God and nature.

But so sometimes things fall out, as that the law may be good, iust, and reasonable, [Sidenote 322 - *] and yet the prince to be no way subiect or bound thereunto: as if he should forbid all his subiects, except his guard and garrison souldiors, vpon paine of death to carrie weapon, so to take away the feares of murders and seditions; he in this case ought not to be subiect to his owne law, but to the contrarie, to be well armed for the defence of the good, and punishment of the euill. The same we may say of other edicts and lawes [ G] also, which concerne but some part of the subiects; which edicts and lawes are called priueleges, and are iust in respect of certaine persons, or for a certaine time, or place; or for the varietie of punishments which depend alwaies of the lawes; albeit that the forbidding of offences is proceeding from the lawes of God and nature. Vnto which edicts and lawes the princes are not any way bound, further than the naturall iustice of the same hath place; which ceasing, the prince is no more therunto bound, vntill the prince haue abrogated the same. For it is not onely a law of nature, but also oftentimes repeated amongst the lawes of God, That we should be obedient vnto the lawes and ordinances of such princes as it hath pleased God to set to rule and raigne ouer vs, if their lawes and decrees be not directly repugnant vnto the lawes of God and nature, [ H] whereunto all princes are as well bound as their subiects. For as the vassall oweth his oath of fidelitie vnto his lord towards & against al men, except his soueraigne prince; so the subiect oweth his obedience to his soueraigne prince, towards and against all, the maiestie of God excepted, who is the absolute soueraigne of all the princes in the world.

Out of this resolution we may draw another rule of estate, that is to wit, that the soueraigne [Sidenote 323 - *] prince is bound vnto the contracts by him made, bee it with his subiect, or with a straunger: for seeing he is the warrant to his subiects of the mutuall conuentions and obligations that they haue one of them against another: of how much more reason is he the debter of iustice in his owne fact, and so bound to keepe the faith and [ I] promises by himselfe giuen and made to others? As the court of parliament at Paris writ backe vnto king Charles the ix, in the moneth of March, in the yeare 1563, That his maiestie alone could not breake the contract made betwixt him and the clergie, without the consent of the clergie; and that for this reason, For that he was himselfe the debtor of iustice, and so bound to giue euerie man his right. Which putteth mee in remembrance of a resolution concerning the vpright dealing of princes, worthy to be engrauen in letters of gold, in their lodgings and pallaces; which is, That it ought to bee accounted amongst things which by chaunce seldome happen, if a prince fayle of his promise; [Sidenote 324 - *]and that it is not otherwise to be presumed. For that of his promise there is a double bond; the one for the naturall equitie thereof: for what can be more agreeing vnto [ K] naturall equitie, than to haue iust promise kept? The other, for the honour of the prince himselfe, who is bound to keepe his promise, although it be vnto his losse; for that he is the formall warrant to all his subiects, of the faith that they haue amongst [Sidenote 325 - *] them; as also for that there is no more detestable crime in a prince, than to bee false of his oath and promise. And that is it for which the soueraigne prince ought alwaies in iustice to bee lesse respected or releeued than his subiects, when question is of his promise. For if a prince haue once bestowed an honour or an office vpon a man, it is deemed, that he may not without iust cause take it againe away from him; but a particular [Page 107] subiect may: and so it is ordinarily iudged. And wheras by the law the patron [ A] might without cause take his fee from his vestall; yet was it not lawfull for the prince so to doe. Whereby it is well to be perceiued, the doctors of the Canon law to erre, and to be deceiued, who deny a prince to be bound to his owne conuentions or agreements, otherwise than with a naturall bond: for that say they, euery bond is proper vnto the ciuill law; which their errour is to be remoued: For who can doubt, but that the bond is of the same nature with the couenant? Wherefore if the couenant be naturall, and common to all nations, the bonds and actions arising thereof must needs consequently be of the same nature also. But no couenant almost, neither any obligation or bond can be deuised, which is not common both vnto the law of nature and nations. But let vs graunt some couenants to proceed from the meere ciuill law; yet [ B] [Sidenote 326 - *] who dare to deny a prince to be more straitly bound euen vnto such ciuill couenants, and promises, than are the priuat subiects themselues? yea and that in so strait a maner as that he cannot with all the absolute power he hath derogat from the same? For so almost all the learned lawyers are of opinion and accord. And what maruell? seeing God himself is bound vnto his promises. For so he plainly protesteth with the prophet Hieremie, Call together vnto me (saith he) all the people of the earth, that they may iudge betwixt me and my people, if there be any thing that I ought to haue done, which I haue not done. Let vs noth therefore call into question those things wherof many doctors haue doubted. As whether a prince be bound vnto the couenants which he hath made with his subiects? whereat we need not to maruell, seeing that out of the same fountaine is [ C] sprung, that no lesse straunge position: that a prince may of right, without any iust cause enrich himselfe with another mans losse: an opinion repugnant vnto the lawes both of God and nature. But how much more vprightly was it of late iudged in the court of Paris, that the prince might giue his intrest vnto the partie condemned; but not the intrest of another man. And that in confiscations creditours are by right first to be preferred, The same court also by another decree determined, That the prince might derogat from the ciuill lawes, so that it were done without preiudice to any particular mens right: which is to confirme the resolutions which wee before haue set downe, concerning the absolute soueraignetie. And Philip of Valois, by two testaments which he made in the yeare 1347, and 1350, (which are in the treasurie of France [ D] in a coffer, intituled The testaments of kings, number 289) ioyneth a clause derogatorie vnto the lawes of his countrey, from which he protested himselfe to be discharged, as not vnto them bound. The like protestations he also vsed, when hee gaue vnto the queene his wife certaine treasure, and priuat lands, contrarie vnto the lawes: with aswel his prodigall gift, as also that his derogation from the lawes of his countrey, are yet extant in the publick records. Howbeit that Augustus the emperor thought it not good for himselfe in like case to vse the like libertie in his Commonweale, but being willing to giue vnto his wife Liuia, that which he could not by reason of the law Voconia, hee requested to be dispensed with all from that law by the Senat (although that it was not needfull for him so to haue done, considering that he was long time before in all other [ E] things dispensed with from the lawes) to the intent the better to assure his gift, for that he was not a soueraigne prince, as we haue before showed. For otherwise hee had not bene any way bound so to doe; as it was in most strong tearmes iudged by a decree in the court of Paris, in the case of Philip the second, the French king, That he was not bound vnto the customes of the ciuil law, at such time as they which were next of kindred would haue redeemed of him the countie of Guynes: howbeit that many both thinke and write, the prince to be bound to that law: for that they thinke that law to be common to all nations, and not proper to any citie: and yet then the which law the [Page 108] Romans themselues (in some cases) thought nothing more vnreasonable. But our ancestours [ F] [Sidenote 327 - *] would not haue euen their subiects bound vnto the Roman lawes; as we see in the auntient records, that Philip the faire, erecting the parliament of Paris and Monpellier declared, That they should not be bound vnto the Roman laws. And in the erection of Vniuersities, the kings haue alwaies declared, That their purpose was to haue the ciuill and canon laws in them publickly professed and taught, to make vse therof at their discretion, but not that the subiects should be any way bound therunto, least they should seeme to derogat from the lawes of their owne country by aduancing the laws of straungers. And for the same cause Alaricus king of the Gothes, forbad vpon pain of death, any man to allege the Roman lawes contrarie to his decrees and ordinances. Which M. Charles du Moulin (my companion, and ornament of all lawyers) mistaking, [ G] is therefore with him verie angrie, and in reproach calleth him therefore barbarous: howbeit that nothing was therein by Alaricus decreed or done, but that which euerie wise prince would of good right haue decreed and done: for subiects will so long both remember, and hope for the gouernment of strangers, as they are gouerned by their lawes. The like edict there is of king Charles the faire, and an old decree of the court of Paris, whereby we are expresly forbidden to alleage the laws of the Romans, against the lawes and customes of our auncestours. Yea the kings of Spaine also haue vpon capitall paine forbidden any man to alleage the Roman laws, in confirmation of their owne laws, (as Oldrad writeth.) And albeit that there were nothing in the lawes and customes of their countrey which differed from the Roman lawes, yet such is the [ H] force of that edict, that all men may vnderstand that the judges in deciding of the subiects causes, were not bound vnto the Roman lawes: & therfore much lesse the prince himselfe, who thought it a thing daungerous to haue his judges bound vnto straunge lawes. And worthy he is to be accounted a traitor, that dare to oppose straunge lawes and straunge decrees against the lawes of his owne prince. In which doings when the [Sidenote 328 - *] Spaniards did too much offend, Stephen king of Spaine forbad the Roman lawes to be at all taught in Spaine▪ as Polycrates writeth: which was more straitly prouided for by king Alphonsus the tenth, who commaunded the magistrats and judges to come vnto the prince himselfe, as often as there was nothing written in the lawes of their countrey concerning the matter in question. Wherein Baldus is mistaken, when hee writeth [ I] the Italians to bee bound to the Roman lawes; but the French no otherwise than so farre as they should seeme vnto them to agree with equitie and reason. For the one are as little bound as the other; howbeit that Italie, Spaine, the countries of Prouince, Sauoy, Languedoc, and Lyonnois, vse the Roman lawes more than other people: and that Frederike Barbarussa the emperour, caused the books of the Roman laws to be published and taught: the greatest part whereof haue yet no place in Italie, and much lesse in Germanie. But there is much difference betwixt a right, and a law: for a right still without commaund respecteth nothing but that which is good and vpright; but a law importeth a commaundement. For the law is nothing els but the commaundement of a soueraigne, vsing of his soueraigne power. Wherefore then as [ K] a soueraigne is not bound vnto the laws of the Greeks, nor of any other stranger whatsoeuer he be, no more is he bound vnto the Roman laws, more than that they are conformable [Sidenote 329 - *] vnto the law of nature; which is the law whereunto (saith Pindarus) all kings and princes are subiect. From which we are not to excepteither the pope or the emperour (as some pernitious flatterers do) saying, That those two viz. the pope and the emperour, may of right without cause take vnto themselues the goods of their subiects. [Sidenote 330 - *] Which opinion the Canonists themselues, the interpretors of the popes law detest, as contrarie to the law of God: whereunto for all that they ioine this euill limitation, in [Page 109] saying, That they may yet do it of their most high and absolute power and authority, [ A] as they tearme it: which is as much as if they should say it to bee lawfull for them to rob and spoyle their subiects, oppressed by force of armes: which law, the more mightie vse against them that be weaker than themselues, which the Germans most rightly call, The law of theeues and robbers. But pope Innocent the iiij himself, most skilfull in both the lawes, saith that most high and absolute power, to bee able but to derogat from the ordinarie law▪ whereas they would haue such absolute and soueraigne power to extend to the abrogating of the lawes of God and nature. For what is more religiously by Gods lawes forbidden, than to rob and spoyle other men of their goods? what thing do we read more often repeated, than to keepe our hands from other mens things? yea we are by the most holy Decalogue commaunded, not so much as [ B] to desire that which is another mans. Now certainly it is a greater offence to infect princes with this doctrine, than it is to rob and steale. For pouertie commonly causeth theeues to seeke after other mens goods: but they that maintaine such opinions, show the lion his clawes, and arme the prince so instructed, to pretend vnto his outrages, this goodly show of Law and Iustice: who by nature naught, & made worse by instruction: so prouing to be a tyrant, maketh no question most shamefully to confound and breake all the lawes both of God and man: and afterward enflamed with corrupt desires and affections, which altogether weaken the more noble parts of the mind, hee quickly breaketh out from couetousnesse to vniust confiscations, from lust to adulterie, from wrath to murder. So that as thunder is indeed before the lightning, although [ C] it be latter heard: so also an euill prince, corrupted with these pernitious & pestilent opinions, peruetting iustice, causeth the fine to runne before the accusation, and the condemnation before the iudgement. Howbeit it is an in congruitie in law, to say that [Sidenote 331 - *] a prince can do any thing which is not agreeing with honestie; seeing that his power ought alwaies to be measured with the foot of iustice. For so said Plinie the younger vnto Traian the emperour, Vt enim foelicitatis est posse quantum velis: sic magnitudinis velle quantum possis, As it is (saith he) in thy happinesse to be able to doe what thou wilt; so beseemeth it thy greatnesse, to will what thou maist. Whereof may be gathered, that a prince can do nothing that is fowle or vniust. It is also euill done, to say, that a soueraigne prince hath power by violence to take away another mans goods, [ D] to rob, to commit adulterie, or to do euill, seeing that so to doe, is rather an impotencie, or feeblenes, proceeding from a weake mind ouercome with impotent lust and desire, rather than any soueraignty. Now then if a soueraigne prince may not remoue the bounds which almightie God (of whom he is the liuing & breathing image) hath prefined vnto the euerlasting lawes of nature: neither may he take from another man that [Sidenote 332 - *] which is his, without iust cause, whether it be by buying, by exchaunge, by confiscation, by league with friends, or peace made with enemies, if it cannot otherwise bee concluded than by priuat mens losse; whose goods princes oftentimes permit the enemies to enioy, for the generall welfare of the subiects and of the Commonweale: howbeit that many be not of this opinion, but would that euerie man should keepe his owne; [ E] and that no publick diminution should be made of any priuat mans goods, or that if publicke necessitie so required, it were againe to bee made goodby the whole state: which opinion I like well of, if conueniently it might so be done. But forasmuch as the welfare of priuat men, and all the goods of the subiects are contained in the health of our country, it beseemeth priuat men without grudging to forgiue vnto the Commonwealth, not onely their priuat displeasures, and iniuries receiued from their enemies, but to yeeld also for the health of the Commonweale, their goods. For peace hath for the most part some hard measure in it, which is againe recompenced with the [Page 110] publique profit: and this law doth all people vse, that in conclusions of peace, not only [ F] publick things are recompensed with publike, and priuat things with priuat; but both with the mutuall profits and detriments of both. And yet I see many great maisters of both lawes, both to be, & to haue bene of opinion, that in those leagues wherein it is excepted, that no question should be made of the losse on both sides receiued, such exception should be void, neither to be any thing preiudiciall vnto priuat men: howbeit that we vse it otherwise; for in the peace of Peronne, made for the deliuerance of Lewes the xj the French king, prisoner vnto Charles earle of Burgundie, it was in one article prouided, That Seigneur de Torci should not execute the sentence of the [Sidenote 333 - *] court of Paris against the lord of Saneuses. And therefore is Thrasibulus (and that not vnworthily) commended, that hauing ouerthrowne and driuen thirtie tyrants out of [ G] the citie of Athens, he caused the law of forgetfulnesse to be proclaimed. Wherein was contained the forgetting of all priuat iniuries and losses receiued in the late ciuill warre: which was also afterwards proclaimed in Rome, after that Caesar was s•…]aine in the Senat, at the treatie made betwixt the conspirators on the one side, and Caesars partakers on the other. Yet is it by all meanes to be enduoured, that mens harmes receiued, should be recompensed with other mens profits, and so as neere as may bee euery man to haue his owne, which if it cannot be done without tumult and ciuill warres, we must defend the possessors of other mens things, although they hold them wrongfully, vntill the right honours may be satisfied out of the common treasure: or if the common treasure be exhausted, to borrow money to content them. As did Aratus, who [ H] hauing restored his countrey to liberrie, after it had for the space of fiftie yeares bene oppressed with tyranny, restored also sixe hundred banished men, whose lands & goods had bene by the tyrant confiscated. Yet would hee not the possessors of those lands, which the tyrants had vniustly taken from those citisens, to be spoyled therof: for that much thereof was lawfully bought and sold, and much of it holden in dowrie, so that it could not be done without a most daungerous turmoile in the state. Wherefore he bound all the citisens by oath, That they should keep peace and amitie vntill such time as he returning out of Aegypt, should then take order for all things. For hauing there borrowed threescore thousand crownes of K. Ptolemaeus Philadelphus, he returned into his countrey, and pri•…]ing the land, so wrought the matter, that some made choice to [ I] take money and leaue the land; and other some thought it better to take mony themselues, than to recouer againe that which had beene before their owne. Wherefore these causes that I haue said ceasing, the prince cannot take nor giue another mans goods, without the consent of the owner. And in all gifts, grants, immunities, and priueledges, this clause is still annexed, Sauing alwaies our owne right: and the right of other men: Which clause added vnto the inuestiture of the dutchie of Milan, which Maximilian the emperour made to king Lewes the xij, was the occasion of new warres, for the right which the Sforces pretended to the dutchie, which the emperour could not nor would not giue away. And this clause although it be left out, is yet supposed to be still put in: for that euen the emperour would he neuer so faine, can no otherwise giue [ K] or graunt any other thing to any bodie. For that which the common people commonly saith, All to be the princes, is to be vnderstood concerning power and soueraigntie, [Sidenote 334 - *] the proprietie and possession of euerie mans things yet reserued to himselfe. For so saith Seneca, Ad reges potestas omnium pertinet, ad singulos proprietas, Vnto kings belongeth the power of all things, and vnto particular men the proprietie. And a little after, Omnia rex imperio possidet singuli dominio, The king in power possesseth all [Sidenote 335 - *] things: and priuat men as owners. And for this cause our kings by the lawes and decrees of Court, are bound to void their hands of such lands as are fallen vnto them by [Page 111] way of confiscation (if they be not simplie and without meane holden of the crowne) [ A] to the end that the patrons of them that were proscribed, should loose nothing of their right in the lands confiscated. And if the king be debtor to any priuat man his subiect, he is therefore oft times sued, condemned, and enforced to pay the debt. But that straungers aswell as subiects, and all posteritie may know of what integritie our kings haue bene, and with what moderation they haue borne themselues towards their subiects, let this be for example, That the king himselfe in the yere 1266, was by the iudgement of the court of Paris, condemned to pay vnto the curat, the tyth of the fruits euen of his garden of pleasure. So when another of our kings had by the negligence of his aduocat, made default of appearence at his day; hee by ordinarie course requested to haue that negligent ouersight pardoned: which the kings request the court of Paris [ B] denied, as appeareth by the decree of the court, in the yeare 1419. But no such strict proceeding is vsed against priuat men, who alwaies in such case are againe restored into the state they before were. And albeit that subiects vnder xxv yeares old, almost in all priuat iudgements vse to be againe restored into the state they were, by the priuelege of their age; yet our kings although but children, are neuer so restored by the benefit of their age, but in all iudgements are deemed to bee of full age. And yet the Commonweale neuerthelesse is alwaies reputed to be in minoritie: which is to aunswere them which are of opinion, That the Commonweale ought not to be restored; in that they confound the patrimonie of the prince, with the Commonweale, which is alwaies in a monarchie diuided: but all one in a popular or an Aristocraticall state. [ C] With this stoutnesse of courage the magistrats bare themselues towards our kings, & with this moderation also did our kings reuerence iustice, preferring still in all sutes the Commonweale before priuat men, and priuat men before princes. There is also extant in the records of the court of Paris, a iudgement giuen against king Charls the seuenth, wherein he was condemned to suffer a wood of his to bee cut downe which hee had neere vnto the citie of Paris, for the publike vse in generall, and the vse of euerie one of the citisens in particular: and that more was, the price thereof was set downe for him in the decree, whereunto a priuat subiect could hardly haue bene driuen. Then was it plainely to be seene how much a king differed from a tyrant: for when this Charls the vij had driuen the English forces out of the hart of Fraunce, and easily taken the citie [ D] of Paris (which confederated with the English, had wrested the scepter out of this kings hand) he was so farre from reuenging of his receiued iniuries, that hee vsed the citisens most curteously, and showed himselfe more obedient vnto the judges than priuat men haue vsed to be. When at the same time Philip Maria, duke of Milan, hauing oppressed the Commonweale with taxes and tributes, embarred also his ports and riuers, in such sort as that none of the citisens without his leaue could passe or trauell thereby, but that first they must therefore pay money.

Thus we haue hitherto showed in what sort a soueraigne is subiect vnto the lawes [Sidenote 336 - *] and conuentions by him made with his subiects: Now it resteth for vs to see whether he be subiect vnto the contracts and promises of the kings his predecessours; and whether [ E] such his obliging be compatible with soueraigne maiestie or not. Which in few words to discusse, passing ouer a multitude of nice questions which might bee made in this matter: I say that a prince is bound vnto the couenants of his auncestors as well as other priuat heirs, if his kingdome come vnto him by inheritance, or bee giuen him by testament being not next of kinne: as Ptolemee king of Cyrene, Nicomedes king of Bithynia, Attalus king of Asia, and Eumenes king of Pergame, by their wils appointed the people of Rome to inherit their kingdomes. But what if a kingdome be by will giuen vnto the next of kinne? as Henry the eight by his will left the kingdome of England [Page 112] to his son Edward the sixt: and substituted vnto him his sister Mary, and vnto her [ F]Elizabeth her sister, who all successiuely enioyed the kingdome. In this case wee must distinguish, whether the appointed heire will accept the state in the qualitie of an heire by testament appointed; or renouncing the succession of the testator, demaundeth the crowne by vertue of the custome and law of his countrey. For in the former case the successour is bound vnto all the hereditary obligations and actions of his predecessors, as if he were a priuat inheritour: but in the second case, he is not bound vnto the dome of his predecessour, albeit that his predecessour were thereto sworne. For neither the oath nor the obligation of the dead predecessour, bindeth the successour in the law, more than so farre as the obligation made by the testatour tendeth to the good of the Commonweale, and so farre he is bound. And therefore king Lewes the xij, when he [ G] was demaunded the artillerie lent vnto Charles the eight, answered, That he was none of Charles his heire. So of late king Francis the second, to like effect writ his letters vnto the lords of the Swissers, demaunding of him his fathers debts, the copie whereof taken out of the records, bearing date the xix of Ianuarie 1559, I haue here set downe as followeth, viz. Although that we be not bound to pay the debts of our most honourable [Sidenote 337 - *]Lord, and dead father: for that we haue not taken vpon vs this crowne by right of inheritance as his heire, but by the royall law and custome generally obserued euen from the first institution thereof, which bindeth vs not, but onely to the obseruing of such confederations and treaties, passed and made by the kings our predecessors, with other forren princes and Commonweales, for the good and profit of this crowne. Neuerthelesse desiring to discharge [ H]the credit and conscience of the said our dead lord and father, wee are resolued to discharge his lawfull debts, &c. Onely this requesting you, to moderat the interest, in such sort as you haue vsed, according to the lawes and customes of your countrey, and that no greater be of vs exacted. Which his request the Swissers by their common decree approued, so that whereas before they had taken of our people so deepe intrest, as euery sixt yeare came almost to as much as the principall, (which is twice so much as they doe in Fraunce) they brought it downe to a third part, which commeth to so much as the principal but in twentie yeares. But that our kings were not bound vnto the bonds of their predecessours, the court of Paris determined, viz. In the yeare 1256. Wherefore they are greatly deceiued, which receiue as from an oracle the formall and conceiued words of [ I] the oath which the bishops of Rheims haue at their pleasure not long since deuised, which our kings at their coronation now vse. For after that the archbishop of Rheims hath set the crowne vpon the kings head, the twelue peers of Fraunce putting to their hands, he saith vnto him these words, Stay you here (saith he) and the kingdome which you haue before vntill now holden by succession from your father, now from henceforth hold as the true heyre thereof, put into your hands by the power of almightie God, and by the iust deliuerie thereof, which we the bishops and other the seruants of God here presently make vnto you. An honest speech if it were true. But I thinke no man doubteth, but that the king euen before his consecration enioyeth both the possession and proprietie of the kingdome, not by inheritance or his fathers right, and much lesse by the bountie of [ K] the bishops or peers, but by the royall law and custome of the realme, as was long since decreed by [Sidenote 338 - *] a decree of the French men, That no man should thinke the power of the king to depend of the pleasure of the bishops: not for that the Senat euer doubted of the power of the king before his coronation; but that those vaine quirkes of the bishops might be vtterly refelled. For it is an old prouerbe with vs, That the king [Sidenote 339 - *] doth neuer die, but that so soone as he is dead, the next male of his stocke is seised of the kingdome, and in possession thereof before he be crowned, which is not conferred vnto him by succession of his father, but by vertue of the law of the land; least the succession [Page 113] of the kingdome should be vncertaine, then which nothing can be more daungerous [ A] in a Commonweale. Wherefore let vs this hold, that the king which is by lawfull right called vnto his kingdome, is so farre bound vnto the couenants and promises of the kings his predecessours, as is for the good of the Commonweale: and so much the more, if the contracts were made by the consent and good liking of the people ingenerall, or of the states, or high court of parliament: which it is not onely seemely for a king to keepe, but also necessarie, although it be hurtfull vnto the Commonweale, considering that it concerneth the faith and obligation of his subiects. But if the soueraigne prince hath contracted either with strangers, or with his subiects, for such things as concerne the Commonweale, without the consent of them wee haue before said, if any great harme redound vnto the Commonweale by such contract, it is not reason [ B] the lawfull successour to be therunto bound: and much lesse if hee haue obtained the kingdome by election: For that he holdeth nothing from his predecessor, as he should doe if he held his state by resignation, for then he should be bound vnto the contracts and promises of his predecessours, except it were expresly otherwise excepted. But by what right soeuer the prince shal haue receiued his kingdome, whether it be by law, by testament, by election, or by lot, it is reason that the successours should performe all such contracts of his predecessor, as redounded to the profit of the Commonweale: for otherwise it should be lawfull for him contrarie to the law of nature, by fraud and indirect meanes to draw his owne profit out of others harmes: but it much concerneth a Commonweale, so much as in it lieth, to preserue and keepe the publike faith, least in [ C] the extreame daungers thereof, all the meanes for the reliefe thereof should be shut vp. And thus are to bee vnderstood, those things which the court of Paris decreed in the yeares 1256, and 1294, viz. The king not to be bound vnto the couenants and agreements of the former kings his predecessours: their opinion being reiected, which say, That a soueraigne prince is to be thrust out of his kingdome, if he performe not the testament of the former prince his predecessor: without putting the difference of princely successions, by vs before put, but vtterly confounding the succession of princes.

But what needeth (might some man say) this distinction in succession of princes? seeing that all princes are bound and subiect vnto the lawes of nations, whereof contracts and testaments do depend. Which is not so if wee speake of all contracts and testaments [ D] in generall: but admit that to be true, yet there of it followeth not, that a prince is more bound vnto the laws of nations, than vnto his owne: and that so far as they agree with the laws of God and nature: wherunto all that we haue said concerning the obliging of princes, is to be referred. For as for the laws of nations, if they be any of them vniust, the prince may abrogat them by the law of his realme, & forbid his subiects to vse the same: as we said before of seruitude and slaues: which by a daungerous example, by the law almost of all nations brought into Commonweales, were againe by the wholsome decrees of many princes well agreeing with the lawes of nature taken away: which being said of one thing, may also be extended vnto other things of like condition: prouided alwaies, that nothing be done contrarie to the lawes of God and [ E] nature. For if iustice be the end of the law, and the law is the worke of the prince, and the prince is the liuely image of almightie God; it must needes follow, that the law of the prince should be framed vnto the modell of the law of God.

[Page  114 ]

CHAP. IX. [ F] ¶ Of a Prince tributarie or feudatarie: and whether he be a soueraigne Prince: and of the prerogatiue of honour amongst Soueraigne Princes.↩

THis question deserueth a speciall Chapter by it selfe, for that it hath no communitie with the auntient markes of Soueraigntie, which were before the right of Fees, vsed in all Europe and Asia, and yet more in Turkie than in any place of the world: where the Timariots hold not the Fees they haue to serue in the warres, but so long as pleaseth the king of the Turkes, who giueth them no longer but for tearme of their liues: which haue them with condition, that in time of warre the Timariots [ G] shall of their owne charge without any pay bring such a number of horsemen and horses, as is appointed in the subsidie bookes, according to the proportion of the rent of the fees, which they cal Timar, which is to say in their language, the Vse and profit, deriued as I suppose of the Greeke word 〈 in non-Latin alphabet 〉]; and the word Timar signifying with them the honourable vse and profit, which is the true nature of Fee, to bee free from all tribute or base charges. And for this cause the vassall in the auntient law of the Lombards, is called Leude, which is to say, franke and free: Aldius and Alda, affranchised, from whence the words Alaudium and Laudimia are deriued, signifying the honourable rewards woont to be giuen to the lord of the fee, taking the oath of fealty of his vassall. But hauing thus much said for the explanation of these words, let vs proceed [ H] vnto our purpose.

We haue said here before, him to be an absolute soueraigne, who next vnto almightie God, is subiect vnto none: neither holdeth any thing next vnto God, but of his owne sword: For if he be enforced to serue any man, or to obey any mans commaund (be it by his owne good liking, or against his will) or if he hold of another man, he looseth the title of maiestie, and is no more a soueraigne, as saith a certaine Poet:

Esse sat est seruum, iam nolo [Sidenote 340 - *] vicarius esse:

Qui Rex est, Regem Maxime non habeat.

To be a slaue it is enough, I will not serue a slaue: [ I]

Who is a king, friend Maximus, no other king must haue.

If they then which hold in fealtie and homage haue no maiestie or soueraigntie, there should be but few soueraigne princes to be found. And if were graunt that they which hold in fealtie and homage, or that are tributaries, be soueraignes, wee must by the same reason confesse, the vassall and his lord, the master and the seruant, to be equal in greatnes, power, and authoritie. And yet the doctors of the law hold that the dukes of Milan, Mantua, Ferrara, and Sauoy, yea euen and some Counties also are soueraignes: [Sidenote 341 - *] which altogether differ from those things which wee haue before said of the right of maiestie and soueraigntie. Wherefore it is requisit for vs more exquisitly to [ K] entreat of these matters, whereof dependeth the principall point of soueraigntie, and the prerogatiue of honour amongst princes, which they esteeme as a thing vnto them most deare of all things in the world.

Wee said before in the Chapter of Patronage (which we otherwise call Protection) that princes which are in protection, if they haue no other subiection, hold yet their maiestie and soueraigntie, although they haue enred into inequal alliance, whereby they are bound to acknowledge their protectors in all honour. But there is great difference betwixt them which are in simple protection onely, and them which hold [Page 115] in fealtie and homage. For the client, or he which is the simple protection of another [ A] [Sidenote 342 - *] prince onely, acknowledgeth his patron his superiour, in the league of their confederation, but no further than the dignitie of the person and place requireth: but the vassall, or he which holdeth in fealtie and homage, is glad not onely to acknowledge his lord for his superiour, but is enforced also in humble wise to giue vnto him his faith and dutie, or els to forgo his fee. When I say fealtie & homage, I meane the oath of fidelity, the submission, the seruice, and dutie of the vassall, which he is by the tenour of his fee bound to giue vnto his lord.

Which that it may be the better vnderstood, we will make nine degrees of inferiours, [Sidenote 343 - *] in respect of their superiours: beside him who next vnto almightie God, acknowledgeth none superiour vnto himselfe. The first sort, is of such princes as are in the [ B] protection of him whose maiestie they obserue and reuerence, and commonly giue themselues into his protection, so to bee the safer against their most mightie enemies. The second, is of such princes as acknowledge a superiour in their confederation, vnto whome they vse to pay a tribute or pension, so by his helpe and aid to bee the safer: which deserueth not to be called patronage, because it is mercenarie, whereas vnto kind dutie no reward is due. The third is, of such princes as being overcome by the more mightie, haue of him receiued peace, who yet keepe their maiestie and soueraigntie, with condition, courteously to reuerence the maiestie of the victor, and to pay vnto him a yearely tribute, for which they are from him to receiue neither protection nor aide. And albeit that these seeme to be more charged than they which are [ C] but in protection; yet is it so, that in effect they are greater, for in paying the tribute they haue promised for their peace, they are acquited, and haue nothing to doe with any other for the defence of their estate. The fourth sort is of them which are themselues kings, and freely exercise their soueraigntie ouer their owne subiects; but yet are vassales or feudataries to some other prince for some fee, bee it greater or bee it lesse, which they from him receiue. The fift sort, is of them which are not kings, neither haue any soueraigntie, but are become vassals for their fee, and are simply called meere vassals, who are bound to defend the honour of their lord, and to take vp arms for him, but not at all times, nor against all men. The sixt sort are they whom wee call liege vassals, who are not naturall subiects vnto the prince, but hauing giuen him their [ D] faith, are bound to defend his dignitie and honour, and for his defence to take vp armes without exception; yet not alwaies, nor in all places, but so farre forth as the profit of the fee, or the contract of their vassallage extendeth. The seuenth sort are they whom we call subiects, whether they be vassals or tenants, or such as hold no land at all, who are bound to fight for the honour and defence of their prince as well as for themselues, and to haue the same enemies and the same friends that he hath. The eight sort is of them, which in former time deliuered from slauerie, yet retaine a certaine kind of seruitude, as doe they which are tied vnto the soyle, and are of vs called Mort-maines. The last sort are the right slaues. This distinction of the degrees of subiection, I haue made to take away the confusion that many make of the subiect with the vassall; and of the [ E] simple vassall with the liege man; and hold, that the liege man oweth all obedience vnto his lord towards and against all men; and that the simple vassall reserueth his superior: and yet neuerthelesse there is but the subiect onely which oweth his obeysance. For the vassall, be he liege or simple, if he be not a subiect, oweth but the seruice and homage expressed in his inuestiture, from which hee may without fraud exempt [Sidenote 344 - *] himself, by yeelding vp his fee: but the naturall subiect, which holds in fee, in farme, or fee simple, or be it that he hold nothing at all that he can call his owne, yet can hee not by any meanes without the consent of his prince exempt himselfe from the personall [Page 116] obligation wherewith he is vnto him bound, as we have before declared. The simple [ F] vassall is bound but once in his life to giue his oath of fidelitie vnto his lord: and such a vassall it may be as is neuer bound to giue his oath: for that the fee may bee without any such obligation of giuing his faith, as is to be seene in the old lawes of fees, (contrarie to that which M, Charles du Molin hath both thought and writ) but the subiect whatsoeuer is alwaies and in all places bound to give his oath, and so oft as it shal please his soueraigne prince to require it: yea although he were a bishop without any temporalitie at all. As for the liege man, it is not requisite that he should bee subiect vnto the lord of whom he holdeth: for it may be, that he may be a soueraigne prince, holding some seignorie of another prince in liege, fealtie and homage: it may also be, that he may be the naturall subiect of one prince, and liege man to another, by reason of his [ G] fee: or well the simple vassall of one Lord, without being subiect or liegeman to another: and naturall subiect to another, to whome he is iusticiable, and yet holdeth of him neither fee nor reuenew. For the vassall of a vassall is not for that, either vassall or subiect of the same lord, if it bee not in regard of the same fee. But it is needfull to explaine that we haue said by examples.

We find that the kings of England haue giuen their liege faith and homage vnto the kings of Fraunce for all the countries which they hold on this side the sea, except the counties of Oye and Guynes: And yet neuerthelesse they held the kingdomes of England and Ireland in soueraigntie without acknowledgement of any other prince whatsoeuer. But after in the yeare 1212 they made themselues vassals vnto the Pope [ H] and the church of Rome, and not onely vassals, but also tributaries: beside the annuall gift of smoke money, of auntient time graunted by Ine king of England, in the yeare 740, & augmented by Etelpe, which they called S. Peters pence. For it is found, that Iohn king of England, by the consent of all the counties, barrons and lords of the land, made himselfe vassall vnto the pope and church of Rome, and vowed to hold the realmes of England and Ireland of him in fealtie and homage, with the charge to pay the yearely rent and reuenew of a thousand markes for euer, vpon Michaelmas day, beside the Peter pence, which I haue spoken of: & gaue his faith and homage vnto the legat of pope Innocent the third, in the yeare 1213, in the presence of his chauncelor, the archbishop of Canterburie, foure bishops, sixe counties, and many other great lords. [ I] The Bull was made in autentique forme, whereof I haue seene the copie in a register of the Vatican, taken out by the commaundement of chauncelour du Prat, when he was Legat. And albeit that Sir Thomas More, chauncelour of England, was the first that maintained the contrarie: yet so it is, that in the same time, and vntill that king Henrie the eight reuolted from the pope, in the yeare 1534, the yearely reuenew and tribute was alwaies paied. But that is worth the noting, that the act of fealtie and homage, giuen vnto pope Innocent the the third, importeth that Iohn then king of England, humbly requested forgiuenesse of his sinnes of the popes legat. Whereby it is plaine, that patronage of the bishop of Rome to haue bene by him sought for, to extenuat the horrible murder which he had cruelly committed vpon the person of young [ K]Arthure his brothers sonne, duke of Britaine, and lawfull successour to the crowne of England; least otherwise he should haue bene therfore excommunicated by the pope. Whereas Philip Augustus, king of Fraunce, for the same cause had confiscated the duchies of Normandie, Guyenne, Aniou, Touraine, le Maine, & all the countries wherevnto he pretended any right, on this side the sea: which the kings of England held by fealtie and liege homage of the king of Fraunce; and yet had the chiefe soueraigntie [Sidenote 345 - *] ouer the realmes of England, Ireland, and Scotland. For first Constantine king of the Scots, with the rest of the nobilitie of that country, did fealtie and homage to Adelstan [Page 117] king of England; and after that Baliol king of Scots did fealtie and homage also to the [ A] king of England, declaring himselfe to hold the kingdome of Scotland vnder the protection of the English, excepting the xxxij Islands of the Orcades, which then & afterwards also were holden in fealtie and homage of the kings of Norway; and owe vnto the new king comming to the crowne ten markes of gold, as was agreed betwixt the kings of Scotland and Denmark, to end the warres, which were renewed for the same isles, in the yeare 1564; as I haue learned by the letters of M. Danzai, ambassador for the king in Denmarke. Howbeit the kings of Scotland which raigned after Baliol, renounced their homage vnto the English, neither acknowledging them for their superiours, or yet to be vnto them vassals. And albeit that Dauid king of Scots did what he could with his subiects to consent that the kingdome of Scotland might bee holden [ B] of England in fealtie and homage: yet so it was, that he remained nine yeares in prison, and by the treatie made betwixt Edward the third his brother in law, and him, it was agreed, that he should be set at libertie, without any more obtained from his estates but that he should liue in amitie and friendship with him. As for the realme of Ireland, it is not long since it receiued the English gouernment, excepting yet the earle of Argueil, who seemed alwayes to keepe the state of soueraigntie.

So might we say also of the king of Denmarke, who is a soueraigne prince in part [Sidenote 346 - *] of the kingdome of Norway, without acknowledging any prince for his superiour whatsoeuer; and yet holdeth part of the duchie of Holsatia of the emperour in fealty and homage: in which sort he in auntient time held the countrey of Denmarke, which [ C] was but a plaine dukedome, when Canutus duke of Denmarke yeelded fealtie and homage vnto the emperour Lothaire, and afterward to the emperour Frederike the fift: who first of all sent vnto Peter duke of Denmarke the sword and the crowne, and honoured him with royall dignitie; yet with condition, That hee should for euer yeeld vnto the emperour fealtie and homage: howbeit that his posteritie afterwards reuolted from the empire. And yet neuerthelesse these whome I haue named, beeing no subiects, neither acknowledging the greatnes of any prince, but in respect of the fees [Sidenote 347 - *] that they hold of other princes, are acquitted of their fealtie homage and seruice, by giuing vp their fee without fraud. I say without fraud, for that it is not lawfull for the vassall to forsake his lord and patron at his need, although he would renounce his fee: albeit [ D] that there be no other penaltie but the losse of fee appointed for him who in time of warre forsaketh his lord; for that he doth an irreparable preiudice vnto his honour, which for euer remaineth engaged for so foule a fact, as to haue forsaken his lord in time of daunger: seeing that by the oath of fidelitie the vassall, but especially the liege vassall ought to aide him, were it against his owne brethren and children. Yea some lawyers are of opinion, that he ought to aid his lord and patron, euen against his owne father: wherein I can in no wise agree with them, for that the first and chiefe fidelitie is due vnto our parents. But if the vassall be also a subiect, hee looseth not onely his fee and honour, if he forsake his soueraigne prince at his need, but euen his life thereon dependeth: seeing that it is death euen for a common souldior, not to defend his captaine [ E] in battell. Wherefore we are not to maruell, if Iohn de Montfort, and Peter, dukes of Britaigne would neuer yeeld their fealtie vnto the French kings without exception, as their liege men for the dukedome of Britaigne: about which matter the chauncelors of Fraunce and Britaigne were twice at debate before the kings, Charles the fift, and Charles the sixt. And albeit that these two kings caused two acts to be produced, concerning the fealtie and homage done by the dukes of Britaigne, to Philip the victorious and Lewes the eight: yet for all that, the dukes would not doe their homage as liege men, but were receiued doing their simple homage onely. True it is, that the liege [Page 118] homage yeelded to Lewes the eight, was not but for the life of him that did it, as appeared [ F] by the act, without binding of his successours. And the other act which is of yong Arthure, was not pure and simple, but onely conditionall; as to be restored by Philip the victorious, vnto the territories and segnories from which he was embarred; which he did not. Now such is the force and nature of true and lawfull acts, as not to admit any time or condition, and the act of fealtie and homage of all other acts the least. But the end of the controuersie was, that the simple oath of Iohn and Peter should bee taken, least they should seeme to bee the liege vassals of the French: although both those dukes ought of right to haue bene depriued of the fee of the dukedome of Britaigne, for that they had renounced the French king their lawfull patron. Neither is [Sidenote 348 - *] there any doubt, but that in truth the auntient counties of Britaigne were true subiects [ G] and liege men vnto the kings of Fraunce (as is to be seene in the histories of Gregorie bishop of Tours) and being reuolted, were subdued by Charlemaigne, and afterwards by Lewes the deuout, to whome they did homage, and yeelded all obeysance with hostages; as a man may see in the histories of Floard and Girald, whome some call Vitald, the nephew of Charlemaigne. And againe for another rebellion against Charles the Bauld, in the yeare 1359, they were accused vnto the estates, of treason, & so condemned and executed: which could not haue taken place but against the naturall subiect, for treason against his soueraigne prince. And after that Herispo countie of Britaigne, doing his fealtie, and with a great summe of money giuen appeased Charles the Bauld: as had also before him duke Iudicael pleased Dagobert. Neither is it true, or [ H] like to be true, that Clodoueus, who had bounded the kingdome of Fraunce with the Pyrenei Mountaines, both the seas, and the riuer of Rheine; or Charlemaigne that had in many places vanquished infinit numbers of the barbarous nations, and had subdued Spaine, Italie, Hungarie, Germanie, the Saxons, them of Pomerland, the Polonians, and Russians, and had extended his empire euen as faire as Scithia, would haue receiued the dukes of Britaigne, euen in the bowels of Fraunce, as companions of the French empire. And admit that by the fauour of any the French kings, they obtained respite of homage, that could not be preiudicial vnto the kings their successors, and much lesse vnto the crowne of Fraunce. And that more is, in the treaties betwixt the kings of Fraunce, and the first dukes of Normandie, it is expresly set downe, That the [ I] counties of Britaigne, should be vassals vnto the dukes of Normandie, vnto whome they had oftentimes giuen their fealtie and homage: which could nor possibly haue bene, if they had not bene vassals and liege men vnto the crowne, seeing that the dukes of Normandie had giuen their fealtie and liege homage vnto the kings of Fraunce, & the counties of Britaigne vnto the dukes. And if true it be, that the vassall can neuer prescribe for his fealtie and homage against his lord; how then can the subiect prescribe for his subiection against his prince? So the Seneschall of Renes (a man verie well learned) cannot abide that Peter de Dreux prince of the blood, surnamed Maucler, had acquited the soueraigntie of Britaigne vnto the kings of Fraunce, seeing that hee was vassall and naturall subiect vnto the king: and yet neuerthelesse, in yeelding the homage, [ K] had reseruation to make lawes, to graunt pardons, to call parliaments, to take the [Sidenote 349 - *] benefit of confiscations euen in cases of high treason, the regall rights in churches, and feofments of trust. By which arguments not onely probable, but also necessarie, I am persuaded to write the dukedome of Britaigne, now euen from the times of the first kings of Fraunce, to haue bene a prouince of the kingdome of France, although Argentraeus otherwise thinke. Yet is it worth the noting that Iohn Montfort and his successors, although they went about to haue rent the dukedome of Britaigne from the kingdome of Fraunce, yet as counties of Montfort and Virtus to haue alwaies yeelded [Page 119] their fealtie vnto the French kings, without exception, as we read in the records, although [ A] that they still exercised in the countries of Britaigne certaine roialties granted them by the king.

There is then great difference betwixt him which holdeth simply in fealtie and homage (being himselfe no soueraigne, nor subiect vnto him which is lord of the fee) and him which is soueraigne of a countrey, and yet vassall to some other lord for some fee; as of him which is in protection onely, or which is tributarie vnto a prince, hauing soueraigntie ouer his subiects, or which is himselfe a naturall subiect. Wherfore [Sidenote 350 - *] we conclude, that there is none but he an absolute soueraigne, which holdeth nothing of another man; considering that the vassall for any fee whatsoeuer it be, be hee Pope or Emperor, oweth personall seruice by reason of the fee which he holdeth. For albeit [ B] that this word Seruice, in all matter of fees, and customes, is not preiudiciall vnto the naturall libertie of the vassall; yet so it is, that it importeth a certaine right, dutie, honor and reuerence that the vassall oweth vnto the lord of the fee: which is not indeed a seruitude reall, but is annexed and inseperable from the person of the vassall, who cannot be therefrom freed, but by quitting his fee: prouided yet, that hee bee no naturall subiect of the lords of the fee, from whome he cannot discharge himselfe by renouncing his fee.

Now when I say, that homage and personall seruice is inseperable from the vassall; [Sidenote 351 - *] that is so true, as that the vassall cannot acquit himselfe thereof by his deputie or atturney, as was permitted by the auntient lawes of fees; which in this point is abrogated [ C] in Europe, and Asia; yea and in Italie it selfe from whence the lawes of fees (as many thinke) first tooke their beginning. For Lewes Sfortia, gouernour of Lombardie, sent his Agent into Fraunce, to king Charles the eight, to haue obtained of him that his nephew the duke of Milan might by him be receiued to do his homage by his deputie for the duchie of Genes: whereunto the king would not condescend. And when question was made of taking of fealtie and homage of the marques of Salusse, the court of Paris decreed, That his deputie shuld be admitted in his name, if the king so thought it good; for that the marques pretended himselfe to be sicke: yet with that condition, that so soone as he was able he should come and doe it himselfe in person. The same hath also bene oft times iudged in such like cases. But contrariwise the lord of the fee [ D] may constraine his vassall to yeeld his fealtie and homage vnto his deputie, as is commonly vsed. But if the vassall be yet vnder age, or so young as that he yet wanteth vnderstanding, he is to be borne with for doing of his fealtie and homage, vntill he be of age to do it, except it pleaseth the lord of the fee to receiue it by his deputie: As did king Lewes the xj, who by Philip Commines his ambassador receiued fealtie & homage of the mother of young Galeas duke of Milan, for the duchie of Genes, the duke her sonne being vnder age, and paying fiftie thousand ducats for reliefe. And for the same cause in the treatie made betwixt Lewes the eleuenth, and Maximilian archduke of Austria, in the yeare 1482, in the 56 article it was expresly set downe, That the subiects on both parts should be receiued to do their homage by their atturneies, which otherwise [ E] they should haue bene constrained themselues in person to haue done, if they had not bene sicke, or had some other iust and reasonable let; or that it was some bodie collegiat. For it much concerneth the honour of the lord and patron, whether homage be done vnto him in the person of a king his vassall, or by some oeher base atturney or deputie. And for this cause it was agreed in the treatie of Amiens, made betwixt Philip the faire the French king, and Henrie king of England, in the yeare 1303, That the king of England should himselfe in persom come to do his fealtie and homage without exception, if he were not otherwise letted by sicknesse without deceit: in which case [Page 120] he should send his eldest sonne to doe the fealtie in his stead. And by another treatie [ F] made in the yeare 1330, betwixt Philip Valois, and king Edward the third, it was also said, That the king of England should in person come to doe his fealtie and homage, if he were not without fraud by sicknesse letted; which ceasing, hee should then also come. And by the treatie of peace, made in the yeare 1259, betwixt Lewes the ninth the French king, and Henrie the second, king of England, it is expresly declared, That the king of England should in person himself yeeld his fealtie & liege homage vnto the French king. Which liege homage (as they tearme it) is of that force, as that the person of no prince, pope, or emperour, is therein excepted. Now the forme of the homage declared by the treatie, in the yeare 1331, betwixt Philip Valois the French king, and Edward the third, is this: The king of England hauing his hands ioyned, and put [ G] [Sidenote 352 - *] betwixt the hands of the French king, the Chauncel or of Fraunce for the French king, shall thus say vnto the king of England, Thou shalt become a liege man to the king of Fraunce, who here is, as duke of Guyenne, and peere of Fraunce, countie of Poitou, and Monstrueil, and shalt promise to beare vnto him faith and loyaltie: Whereunto the king of England shall say, I consent thereunto: Then the king of Fraunce shall receiue the king of England into his fealtie with a kisse. But the oath of Charles the king of Nauarre was more religious, when he yeelded his fealtie vnto Charls the fift, the French king, in the yeare 1370: for that he was not onely the French kings vassall, but his subiect also, vnto whome hee promised his faith and loialtie towardes and against all men, which could liue or die: albeit that he was then soueraigne king of Nauarre, and pretended [ H] a right vnto the soueraigntie of Berne, which yet resteth vndecided. The forme of the simple homage done by Iohn de Montfort, Arthure the second, and Peter the second, dukes of Britaigne, is like, excepting the word Liege man. But for vassals which be also subiects, the forme of fealtie is more religious & precise, for that they are bound with a double bond, whereas the forren vassals are not so. For the king of England, Edward the third being come to Amiens to doe his homage vnto the king of Fraunce, refused to ioyne his hands betwixt the hands of the king, and so returned into his kingdome, where it was sixe moneths debated betwixt the French kings commissioners, and the assembly of the estares, about the resolution for the forme of the homage: in fine, king Edward thought it better to follow the prescript forme, than to loose so many [ I] benefits as he then enioyed in Fraunce. But if the vassall be also a naturall subiect vnto his lord and patron, he is bound to lay by his sword, his gloues, his hat, his cloke, his spurres, and vpon his knees to put his hands ioyned together, into the hands of his prince, or of his deputie, and so to take his oath: and by the custome of this realme, if it pleaseth not the lord, he is not bound to be present, or to kisse his vassall; but may (if he so please) being present, see him in forme, as we haue aforesaid, giue his fealtie and homage to some small officer, or before his house, by kissing the hammer of his doore. But by the customs of Vermandbis, the vassall is bound to do his fealtie vnto his lord being present; but if he be absent, it is sufficient for the vassall being present, to cause it to be done by his atturney, least the honour of the vassall should bee impaired by the [ K] basenesse of the person of his lords atturney. But if the vassall haue thirtie heires, euery one of them is constrained to yeeld his fealtie vnto his patron requiring the same: as was long since prouided by the decree of Philip the Victorious, the French king, in the yeare 1209. Yet some vse another custome.

Shall we then say, a Vassall (that is to say another mans man) although he at home [Sidenote 353 - *] enioy a kingdome, to haue a soueraigne maiestie and power? Shall we call him that is bound to doe most vile seruices, (and to vse the words of fealtie) him that serueth another man, shall we call him, I say, a soueraigne prince? And that is it for which manie▪ [Page 121] honourable princes had rather to loose and forgoe right great seignories, and their [ A] most rich fees, than to serue such a slauerie. And othersome againe, to the contrarie, would not sell their soueraigntie for any thing in the world. As the prince of Orange refused of king Lewis the eleuenth, ten times so much as his principalitie was worth, which stood him in more than hee receiued profit thereby: And for the same cause Edward the third, king of England, in the first article of the treatie of Bretigni expresly excepted, that all royalties should be giuen vnto himselfe in those countries which he had by inheritance in Fraunce; least he should for them haue beene enforced to haue yeelded fealtie and homage vnto the French kings. Neither for any other cause did Stephen, Vayuod of Valachia, reuolt from the kings of Polonia, but for that the king of Polonia had caused his tent to be cast wide open at the same very instant that the [ B] Vayuod was therein doing vnto him his homage, that so he might be seene of all men in doing of it. Which s•…]ie disgrace the Vayuod tooke in very euill part: which is not to be maruelled at in so great a lord as he, if wee doe but consider, that Calisthenes the nephew of Aristotle chose rather to loose his life, than after the Persian guise, in humble and deuout manner vpon his knees to honour Alexander the Great: albeit that Alexander courteously tooke them vp with a kisse that so honoured him. Which was also an vsuall thing with the Romane emperours, when they gaue vnto the kings that were in their protection, their scepters and diademes. For so Tiridates king of Armenia being come to Rome, humbled himselfe vpon his knee before the emperour Nero, whom Nero taking by the hand, lift him vp, kissed him, and taking his turbant from off [ C] his head, set thereon a royall crowne, and caused him to sit on his right hand. For albeit that the kingdomes were giuen by the Romane emperours without reseruation of fealtie or homage, yet so it was, that the kings laying aside their scepters and crownes, of their owne accord serued the Romane emperours, some as seruitors in their chambers, othersome called themselues but the Romane stewards, as Adherball king of Numidia tearmed himselfe nothing but the steward of the people of Rome. And Eumenes king of Pergame after the discomfiture and death of Mithridates king of Pontus [Sidenote 354 - *] came to Rome, and with a cap vpon his head (in token of his late recouered libertie) thanked the people of Rome for the same. But Prusias king of Bithynia as oft as he went into the Senate, commonly kissed the threshold of the gate, calling himselfe [ D] the Senates slaue: albeit that he was neither subiect nor tributarie, nor so much as in the Romanes protection, but ioyned vnto them in equall confederation. All these honours, were they neuer so great, proceeding from their owne voluntarie will, did little or nothing at all diminish the maiestie of a soueraigne prince, as doth that forme of homage which is seruile and constrained, and which the Tartars, Persians, and Turkes esteeme to bee the true seruice of a very slaue. And truly Solyman the Turkish king was about to haue restored Iohn king of Hungarie into his kingdome in the yeare 1555, with condition to haue holden the same of him in fealtie and homage, without other subiection (as he by a Chiaus his embassadour, certified Sigismundus Augustus king of Polonia) if king Ferdinand, who pretended the kingdome [ E] of Hungarie to belong vnto himselfe by inheritance, had not letted him so to doe; as I haue seene by the letters of Sanislaus Rosdrazeroski, a Polonian, written to Anne Mommorancie constable of Fraunce the same yeare 1555. And for this cause Francis the French king to hinder that Charlet of Austria should not bee chosen emperour, declared vnto the princes, Electors of the Empire, that the maiestie of the Empire should be much debased, if they should of his vassall make their head and Emperour: wherewith the emperour not a little moued, and afterwards at the battell of Pa•…]ie hauing taken him prisoner, would neuer consent vnto his deliuerance, vntill hee had quite [Page 122] discharged the Low countries from the fealtie and homage wherein they were before [ F] bound vnto the French.

But it seemeth that it is not enough to say, that Charles of Austria was vassall vnto the crowne of Fraunce, but that he was thereunto a liegeman also; and not onely a [Sidenote 355 - *] liegeman, but euen the French kings naturall subiect; as borne & brought vp in Flanders, then a prouince of the French kingdom: although many think the citie of Gaunt the natiue place of Charles, and the cities vpon the sea coast to haue bene excepted. For the earles of Flaunders were alwaies accounted peers of Fraunce, euen from the first beginning of that kingdome: and the soueraigne roialties thereof, alwaies before reserued vnto the same, but especiallie at the solemne treatie of Arras betwixt Charles the seuenth and Philip the second duke of Burgundie. Also Charles the fift beeing chosen [ G] emperour, asked leaue of Francis the French king, that hee might leuie of his subiects the subsidie graunted him at Arras, in the yeare 1520; whereunto the kings aunswere was, That he would therein do what he might, without diminishing in any thing the right of his crowne: as I haue seene by the instructions giuen to M. De la Roche-Gaucourt at such time as hee was sent ambassadour into Spaine. Although that greater causes might haue beene alleaged, which might haue stayed German princes from the election of Charles the fift. For Charles of Austria was as then [Sidenote 356 - *] not onely the vassall, liegeman, and naturall subiect to the king of Fraunce, but also a liegeman vnto the pope and the church of Rome, for all the countries, lands, and seignories that he then held, except that which he held of the crowne of Fraunce, or of the [ H] empire; howbeit that he as then held nothing of the empire, but the lands neere vnto the Rhene, and Cambray: For Arnold the last of that name, countie of Burgundie, gaue it with the other countries to the emperor Conrade the second, in the yeare 1205, and after that, the emperour Charles the fourth gaue it to Charles the sixt, the Dolphin, by fealtie and homage, as appeareth by the inuestiture thereof in the treasure of Fraunce, the copie whereof we haue out of the records. But at such time as he professed [Sidenote 357 - *] himselfe to be the liegeman of the bishop of Rome, in his fealtie giuen for the kingdome of Naples, he then promised by his oath, not to take vpon him either the charge of the German empire, if he were chosen emperour by the German princes; either of the dukedome of Milan; and with these conditions gaue his fealtie and homage vnthe [ I] pope: which is not to be thought any new clause, but an auntient condition, ioyned vnto all the acts of fealtie and homage giuen vnto the pope by the kings of Naples and Sicilie, since the time that pope Vrban the fift, therin inuested Charles of France brother vnto king Lewes. And in the inuestiture of that kingdome, made by Innocent the fourth, vnto Edmond the sonne of Henrie king of England, in the yeare 1255, the copie whereof we haue written out of the Vatican records, are these words, Ego Henricus, Dei gratia Rex Angliae, nomine Edmundi filij nostri Regis Siciliae, plenum & ligeum vassallagium facio ecclesiae Romana. viz. I Henrie, by the grace of God king of England, in the name of Edmund our sonne, king of Sicilie, yeeld full and liege homage vnto the church of Rome, &c. And in the act of fealtie and liege homage giuen [ K] by Robert king of Sicilie, in the 1338, he by oath promised neuer to receiue the imperiall crowne, neither the dukedome of Milan, nor any seignorie whatsoeuer in Tuscanie, vpon paine of the losse of all such right as he might pretend vnto the kingdomes of Naples and Sicilie. The like is also found giuen by Charles king of Naples, in the yeare 1295: and by queene Ione in the yeare 1348, as I haue read in the register of the Vatican. And for this onely cause pope Iulius the second refused to inuest Ferdinand king of Arragon, Charles the fift the emperours grandfather by the mothers side, in the kingdome of Naples, but vpon the conditions I haue aforesaid: and a yearely [Page 123] rent of eight thousand ounces of gold, or of foure score thousand crownes, which the [ A] [Sidenote 358 - *] kings of Naples were bound to pay euerie yeare, and a white ambling gelding, beside the aid expressed in the inuesture, with reseruation of the countie of Beneuent. Which their obligation was of such consequence vnto the popes, that so soone as they denounced warre vnto any, the kings of Naples were straight wayes in armes for the defence of the Church of Rome. So Alphonsus king of Naples, at the denuntiation of pope Sextus, made warre vpon the state of Florence, for that they had hanged the Cardinall of Pisa, the popes Legat a latere in his pontificalibus. And in our time pope Paulus the third by his Ambassadour Alexander Farnesius, summoned the emperour Charles the fift, being then with a great armie in France, to make peace with the French king, so with their vnited forces to make warre vpon the Protestant princes, as was [ B] agreed vpon in the first article of the treatie of Soissons, made in September in the yere 1544: which haply the emperour would not haue done (hauing had his armie but a little before by the French men ouerthrowne in Italie, and now with doubtfull euent making warre in Fraunce) if he had not bene liege vassall vnto the pope, & by him threatned to loose the kingdoms of Naples and Sicilie, as he was well giuen to vnderstand. Which the pope did, not so much moued with the publike calamitie or troubled estate of the Church, as with the power of Charles, wherewith he was like to haue subdued most part of Europe, had hee not bene letted by the armes and power of the French. And albeit that in the yeare 1528, by the treatie made betwixt pope Clement the vij and his Cardinals, besieged in the castle S. Angelo on the one side, and the emperour [ C]Charles the fift on the other, it was set downe, That the kings of Naples should for euer be acquited of the yerely rent of 8000▪ ounces of gold, and of all the arearages, which amounted vnto great summes: yet so it was, that all the rest of the pointes of the auntient inuestiture, still stood in their former force and vertue. But euer since, the German emperours haue well knowne, and the pope better, (seeing Rome sacked, and himselfe put to ransome of 400000 duckets, after he had released the fairest rights of S. Peters demaine) what daunger it was to make choice of the vassall of a soueraigne prince, and the natural subiect of another, to be head of the Empire: For with the forces of Germanie he brought downe the pope, and with the popes power hee ruinated the princes of Germanie. And albeit that by the imperiall title hee held the duchies of [ D] Milan, of Gelders, and other seignories of the empire, yet so it is, that hee was the popes antient vassall & liege man, and so consequently to him first bound, & that more straitly vnto the Church than to the empire. Ioine hereunto also, that the popes haue since [Sidenote 359 - *] this 300 yeres pretended that the emperor may not take vpon him the empire, but hauing before of them receiued the imperiall crowne; as pope Pius the fift by his Legats sharply rebuked the emperour Ferdinand, for that he had not of him receiued the imperiall crowne, which his brother Charles had not before doubted so to receiue; and had by excommunication compelled him so to doe, had hee not by the intreatie of king Philip his kinsman, and of the French king, otherwise appeased.

But heresome man will say, How could it be that the emperor Charls the fift, should [ E] [Sidenote 360 - *] be liegeman vnto the pope, the French king, and the empire? seeing that no man can be liegeman vnto many lords, although he haue many fees holden of them all separatly: For his faith and aid is due to one alone, and him the first and chiefest, without exception of any man liuing. And in case he be the vassall of many coheires for one and the same fee, he is liegeman vnto them all together, but not to any of them separatly, considering that his fealtie cannot be diuided; neither can he do his liege homage vnto one of them without exception, for the concurrence of the rest: yet truer it is, his fealtie to be due vnto one onely of his patrons, whome he shall make choice of, if that [Page 124] his patrons cannot agree, or els to them altogether; and that law we now vse. For the [ F] condition of the vassall ought not to be made more hard, than if there were vnto one man, but one heire; but it should be much harder if he should bee enforeed to doe many duties, many seruices, and many times to giue his faith: and that much more the liege vassall, who cannot giue vnto manie his faith seuerally, without exception.

I here vnderstand the liege homage properly as it is to bee vnderstood in the lawes of Fees; for that our auncestors haue abused this word Liege, in all their auntient treaties of alliance and oathes that they made: I remember that I haue seene 48 treaties of alliance, which our kings Philip the v, and Charles the v. vj. vij. and Lewes the xj, made with the three electors on this side the Rhine, and diuers other the princes of the empire, wherein they by oath sworne betwixt the hands of the kings deputies, solemnly [ G] promised to serue them in their warres against all men, except the emperour, and the king of the Romans; vowing to be their vassals and liege men, more or lesse; some calling themselues councellours, some other pentioners, all liege vassals: except the Archbishop of Treuers, Elector of the empire, who no otherwise called himselfe, but the kings confederat, and not his vassall, although he receiued his pention from the king, as did the other princes; who for all this held nothing of the crowne of France, but were nothing but pentioners vnto the French kings, to whome they gaue their oath to aid them, at their charge, vpon the conditions expressed in their oathes. Onely the oath of the duke of Guelders, and countie of Iuliers, I will for example set downe, that thereby men may iudge of the rest, in Latine conceiued in these words, Ego deuenio vassallus ligius [ H]Caroli Regis Francorum, pro ratione quinquaginta millium scutorum auri, ante festum D. Rhemigij mihi soluendorum, &c. viz. I become liege vassall of Charles the French king, for the summe of fiftie thousand crownes of gold, to be paid vnto mee before the feast of S. Rhemigius, &c. This oath bore date in Iune, in the yeare 1401. Yea, euen betwixt kings themselues leagues were oftentimes conceiued in such words, as that the one of them professed himselfe to be the others vassall. As in the league made betwixt Philip of Valois the French king, and Alphonsus king of Castile, in the yeare 1336, it is said, That they should giue and receiue fealtie and homage the one of the other: which proceeding but of the ignorance of their ambassadours, is now better vnderstood, as but an abuse of the words Vassall and Liege: the oathes also of the kings pentioners, [ I] and their treaties, carrie no more such words.

Wherefore againe to returne from whence we haue a little digressed. I say then, [Sidenote 361 - *] that the emperour Charls the fift could not yeeld his liege fealtie and homage vnto the pope without exception, considering that he was liege man, peere, and naturall subiect vnto the French king, and that the seruice and homage is inseparable from the person. And admit he were not the kings subiect, but his liege man, or not his liege man but his vassall onely; yet so it is, that in tearmes of right the liege homage is due vnto the most auntient, and that the vassall ought to serue his most auntient Lord. But if the lords be equall, and yet at variance amongst themselues for the seruice, hee oweth aid neither to the one nor to the other: For that in matter of seruices or seruitude, the [ K] seruice (for the indiuisible nature therof) is letted by the concurrence of them to whom it is to be done. For amongst equals the condition of him which forbiddeth (the seruice) is better: howbeit that in question of simple alliance, the aid is due vnto him that is wronged and inuaded in his countrey against the other common allie which maketh warre vpon him, as it commonly falleth out if the assailant haue no iust cause, and that after denuntiation to him giuen by the common allies to come to some reasonable agreement, he refuse so to doe.

But most certaine it is, that the naturall subiect ought alwayes to preferte his naturall [Page 125] lord aboue all, if he bee present; as him to whome he is first bound, & from whom [ A] he cannot exempt himselfe. And therefore in the decrees of king Lewes the eleuenth, and of Philip the second, duke of Burgundie, made for the order of Fraunce, the xiij article, and for the order of the golden Fleece, the ix article, it is set downe, That the knights of what prince soeuer it be, ought to aid their naturall lord, whose liege men they are, and the countrey wherein they were borne, against him that shall make war vpon them, without any blemish to their honour; prouided that their naturall lord be there in person, and not otherwise, and that they signifie so much vnto the chiefe of the order whereof they are knights. Whereby it appeareth that the emperour Charles the fift could not giue his faith vnto the electors of the empire, but with reseruation of his fealtie vnto the French king, and afterward vnto the Pope. For beside the kingdome [ B] of Naples and Sicilie, holding of the pope immediatly and without meane, hee was also his vassall and liege man for the kingdome of Arragon, as I haue red in the records taken out of the Vatican▪ where the graunt giuen by Peter king of Arragon is set downe in these words, Ego Petrus Dei gratia Rex Arragonum, Comes Barcinonae, Dominus [Sidenote 362 - *]Montispessulani, cupiens praeter Deum, principali beati Petri, & Apostolicae sedis protectione mu•…]ri, tibi reuerendissime pater, & Domine summe Pontifex Innocēti, & pro te, sacrosanctae Romanae Ecclesiae, & Apostolicae sedi, offero regnum meum: illudque tibi pro remedio animae meae primogenitorum meorum constituo censuale, vt annuatim de Camera Regis ducenta quinquaginta Massimitinae Apostolicae sedi reddantur: & ego ac successores mei, specialiter & fideles & obnoxi teneamur: hac autem lege perpetua seruandum forum [ C]decerno, quia spero & confido, quod tu & successores tui, quali beati, Petri manibus in regem duxeris solemniter coronandum. Actum Romae anno Christi 1204. In English thus: I Peter by the grace of God king of Arragon, Countie of Barcelona, Lord of Montpelier, desiring next vnto God to be strengthened with the principall protection of blessed S. Peter and the Apostolicall See; do offer vnto thee most reuerent father and high Lord, Pope Innocent, and for thee vnto the most holy Church of Rome, and to the Apostolicall See, my kingdome; and the same for the health of my soule and of my predecessours, I make vnto thee tributarie, so that out of the kings chamber shall bee yerely paied vnto the Apostolical See, two hundred & fifty Massimitines, & that I and my successors shall be especially bound to be (vnto you) faithfull and subiect; and by [ D] this perpetuall law decree a court to be kept: for that my hope and trust is, that thou & thy successors shalt lead vs as it were with the hands of blessed Peter, to be solemnly crowned king. Enacted at Rome in the yeare of Christ 1204. So that kingdome of Arragon was by the Arragonian kings offered vnto the Bishops of Rome, least they should for their enormities and murders haue bene well beaten. But the kingdomes of Sardinia and Corsica, was by the popes giuen vnto the kings of Arragon (as the popes guise is bountifull to giue that is none of their owne) for which kingdome the Emperour was also liege man vnto the Pope, as I haue scene by the inuestiture thereof made vnto Peter the third, king of Arragon, in this sort, Pontifex Max de fratrum suorum ascensus, [Sidenote 363 - *]dat in feudum regnum Sardiniae & Corsicae, proprietatē ecclesi•…] Romanae &c. Per capam [ E]Auream te praesentialiter inuestimus, &c. Ita tamen quod tu & successores tui, praestabitis homagium ligium, vassallagium plenum, & fidelitatis iuramentum, &c. Et centū equites armatos, & vno equo ad arma, & duobus equitaturis adminus per quēlibet, & quintagentis peditibus terrae vestrae de Arragonia, cum gagijs per trimestre, a die quo intrabūt terrā Ecclesiae, &c. Et in super censum duorū milliū marcarū argenti bonorum, & legaliū strelingorū: vbicun{que} fuerit Romanus Pontifex in festo▪ beatorus Petri & Pauli, annis singulis, sub poena excommunicationis post quatuor menses, &c. & post tertium terminum non solueris, tu haeredes{que} tui, a dicto regno Sardiniae & Corsicae cadetis ex toto, & regnum ad Romanam [Page 126] ecklesiam reuertetur. viz. The great bishop by the assent of his bretheren, doth [ F] giue in fee the kingdome of Sardinia and Corsica, the inheritance of the church of Rome, &c. And we personally therein, inuest thee by a cape of gold, &c. yet so as that thou and thy successours shall therefore giue liege homage, full vassalage, and oath of fidelitie, &c. And an hundred armed horse-men, and one horse for seruice, and two furnitures at the least for euery one, and fiue hundred foote-men of your country of Aragon, with pay for three moneths from the day that they shall enter into the territorie of the church, &c. And moreouer the rent of two thousand markes of good and lawfull sterling money, wheresoeuer the pope shall be in the feast of the blessed Apostles, Peter and Paul, euerie yeare, vpon paine of excommunication after foure moneths, &c. and if after the third time thou shalt not pay it, thou and thy [ G] heires from the said kingdome of Sardinia and Corsica, shall altogether fall; and the same kingdome shall againe returne vnto the church of Rome. And after that, Iames king of Aragon, did also like homage at Valence, betwixt the hands of the popes legate, in the yeare 1353, with reseruation vnto the pope of appeales, put in by the clergie, and abolishing of the lawes and customes brought in by the kings of that country. I finde also that Ferdinand, and after him Alphonsus, kings of Aragon, did the like fealtie and homage in the yeare 1455. And in the publike records of the court of Rome, are to be seene the names of the vassall kings set downe in this order: the kings of Naples, Sicilia, Aragon, Sardinia, Hierusalem, England, Ireland, and Hungary. And this is the old description of such princes as 380 yeres ago, yeelded their [ H] fealtie & homage vnto the bishops of Rome. And since the kingdom of Portugall, was [Sidenote 364 - *] by the valour of Henry of Benonia, taken from the Moores, the kings thereof made themselues vassalls vnto the bishop of Rome, and payd the yearely tribute of two thousand duckats into the bishop of Rome his treasure. And therefore Innocent the fourth, bishop of Rome, by his letters admonished the princes of the kingdome of Portugall, to appoint ouerseers to their prodigall king, who should also take vpon them the gouernement of the kingdome. And as for the Islands of the Canaries, Nigaries, [Sidenote 365 - *] and the Gorgonides; the emperour holdeth them also of the pope. We also reade, that Lewes king of Spaine, did fealtie and homage vnto the pope, in the yeare 1343, with charge to pay yearely into the chamber of Rome, foure hundred florines of the [ I] weight and coine of Florence. And as for the remainder of the westerne Isles, and of Peru, it is certaine that pope Alexander the sixt, diuiding the new world betwixt the kinges of Castile and Portugall, expresly kept vnto himselfe the inheritance, the iurisdiction and soueraignetie thereof, by consent of the two kings; who from that time made themselues his vassalls, of all the purchases and conquests by them already gained, and that they should from that time forward, gaine or make, as the Spaniards themselues haue written. In like manner pope Iulius the second, gaue vnto Ferdinand king of Spaine, Charles the fift, his grandfather by the mothers side, the kingdomes of Granado and Nauarre; when he had driuen the Moores out of the one, and Peter D'Albret out of the other, vpon condition to hold them by fealty and homage of the [ K] church of Rome. For albeit that Charles the fift, the emperor pretended right vnto the kingdome of Nauarre, by reason of the donation to him made by Germaine D'Foix, second wife vnto king Ferdinande: yet so it was, that his ambassadours and deputies, when they came to the conference, seeing that their donation to want sure foundation, doubted not to pretend the popes interdictions, as the surest stay of their most vniust rapines. And the cause of the interdiction was, for that Peter Albret, king of Nauarre, would not at the command of pope Iulius the second, breake faith and friendship with Lewes the xij, the French king, who was first called father of his country, when as hee [Page 127] was king Lewes his liege vassall, and no way bound vnto the pope. So that there remained [ A] [Sidenote 366 - *] no kingdome, no not any little territorie or peece of ground, which Charles the emperour held not by fealtie aud homage, or whereof he could call himselfe a soueraigne. For as for the Islands of Maiorca and Minorca, they were long time before reunited vnto the kingdome of Aragon, after that they were taken from the heires of Iames the Fortunate. And in the Low-countries, he had nothing which was not of necessitie holden of the crowne of France, or of the empire. And albeit that our princes haue by diuers leagues, granted the principalitie of Flanders and Artoise vnto Charles the emperour, yet remaineth there a country in Burgundie, which they call the countie of Charrolois, the proprietie whereof belongeth vnto the king of Spaine, but the soueraignetie thereof vnto the French king, and is by the king of Spaine holden in fealty: [ B] so that euen for that, he is to ackdowledge himselfe to be our kings vassall. As for [Sidenote 367 - *] the kingdome of Castile, no man doubteth (which hath but looked into the Spanish affaires) but that the kingdome of Castile by inheritance, descended vnto king Lewes the ix. of France, in the right of Blanch his mother: yea, and the nobilitie of Castile by solemne acts, which are yet extant in the records of France, inuited king Lewes to haue taken vpon him his mothers kingdome. Howbeit I doubt not, but that the Spaniards will reply, that Blanch, the daughter of Lewes the ix. married the king of Castile, vpon condition that all such right vnto the kingdome, as might haue fallen vnto her father, should now be giuen vnto his sonne in law: which thing Lewes could not doe vnto the preiudice of his successours; without the consent of the states: ioyning therevnto [ C] also that the French kings daughters or sisters, when they are bestowed and married, can receiue nothing but money of the royall possessions of the crowne of France▪ And albeit that some may thinke that the French king might giue those lands vnto his daughter, as not yet vnited or incorporate into the crowne of France; yet neuerthelesse there is yet extant in the records of France, a league made in the yeare 1369, betwixt king Charles the fift and Henry king of Castile, then driuen out of his kingdome, whereby I haue seene, that Henry promised as well for himselfe, as for his successours, to become vassall, and to hold his kingdome of Castile, of the kings of Fraunce: for that by the meanes of the king of France, he was againe restored into his kingdome. Seeing then that the kingdome of Castile is hereditarie descending vnto the heires [ D] both males and females, the successours of Henry are bound vnto his deedes and promises. True it is, that the promise of Henry had not power to preiudice his successours, neither the estates of Castile, without the consent of whom, the treatie was made, if the realme of Castile had not beene hereditarie. But of the kingdome of Fraunce, it is otherwise to be thought and determined. And therefore it was by the wise resolued, that Phillip the Faire, the French king, could not make Arthur duke of Britaine, vassall vnto the king of England, without the dukes consent; except he would by the same right, giue vp his kingdome of France vnto the king of England, which he could by no soueraigne power doe, without the consent of the estates of France. For otherwise, his yeelding of it vp, should be to none effect or purpose, no more then that of king Iohn [ E] of Fraunce, made vnto the king of England in the treatie at Calais, wherein he without [Sidenote 368 - *] consent of the states, yeelded vnto the king of England, all the right and title he had in the kingdome of France: which was againe disanulled by the treatie of Chartres, whereby the king of England refused that right giuen vnto him by such yeelding vp. The same is to be thought of the league of Tricasse, wherein Charles the sixt, without the consent of the states, yeelded the kingdome of France vnto Henry the fi•…]t, king of England. And therefore pope Martine could by no request of the English, be perswaded to ratifie that league, but called Charles the seauenth, sonne to Charles the sixt, [Page 128] by the name of the French king: for that the kingdome of Fraunce is neither deuolued [ F] by right of succession, (which they tearme from one intestate,) neither by testament, neither by resignation, but by vertue of the law royall, from which the kings themselues cannot derogat without the consent of the estates; which is not so in the kingdomes of Spaine, England, Scotland, Naples, and Nauarre.

But cannot the imperiall title (may some man haply say) make him a soueraigne which is another mans vassall? As the prince or the people making a slaue a magistrat seemeth thereby to haue also enfranchised him; whereof there is no doubt, if he be the princes or the peoples slaue; for otherwise it is not lawfull either for the prince, or for the people, to dispose of another mans seruant: so neither haue the German princes any power ouer other mens citisens or subiects, such as was Charles the fift. Ioyne hereunto [ G] [Sidenote 369 - *] to also, that the imperiall title of the emperour carrieth with it no soueraigntie: albeit that the emperour writing vnto the princes of the empire, vse these wordes, Wee command you, &c. You shall do this, &c. which other princes do not toward their own subiects: yea and that more is, that the princes electors carrie the titles of Butlers, Esquiers, and Tasters to the emperour, yet the soueraigntie of the empire resteth not in the person of the emperour, but in the assemblie of the states of the empire, who are able to giue law vnto the emperour, and to euerie prince of the empire in particular, in such sort as that the emperour hath not power to make any particular edict, neither peace nor warre, neither to charge the subiects of the empire so much as with one impost, nor to call or dismisse the diets of the empire, without the consent of the princes. And [ H] that is it for which the emperour Maximilian the first, at the diet of Constance, holden in the yeare 1507, said vnto the estates (the popes legat then vrging that the imperiall crowne was both to be requested and receiued of the pope,) That to take the imperiall crowne of the pope was but a needlesse ceremonie, seruing to no purpose; considering that the imperiall authoritie and power depended of the estates of the empire: which in due place we will more particularly declare.

Whereby a man may easily iudge, that there are few or none absolute soueraigne [Sidenote 370 - *] princes. For the Venetian Commonweale excepted, there are no princes or Commonweals in Italie, which hold not of the empire, the pope, or the crowne of Fraunce: which concerning the kingdome of Sicilie and Naples, we haue alreadie declared. As [ I] for the duke of Milan he is a naturall vassall of the empire, from which hee taketh his [Sidenote 371 - *] inuesture, and thereto payeth reliefe: for which the emperour Maximilian the first, in lesse than xv, or xvj yeares space, drue thence vnto himselfe, aboue three hundred thousand pounds: For king Lewes the twelfth at one time paid therfore an hundred thousand pounds: and the Sforces had it no better cheape. For they which are now called dukes of Milan, in the remembrance of our auncestors, that is to say about an hundred and fiftie yeares agoe, were called but lieutenants, and the citie it selfe but the ordinarie chamber of the empire. And so namely Iohn Galeace the second, and Barnabas his brother, in the inuestiture which they had from the emperour Charles the fourth, are simply called lieutenants of the empire. And Galeace the first being accused for charging [ K] the subiects with subsidies, without the emperours leaue, was by a decree from the emperour sent prisoner vnto the castle of Modene; where after he had of long time liued, he at length died; whose sonne Actius being by the emperour Lewes of Bauyere put into his fathers place, for the summe of an hundred thousand crownes, obtained of him the first title of a prince, in the yeare 1338. And after that, Galeace the third, father in law to Lewes duke of Orleans, payed vnto the emperour Fredericke the third, an hundred thousand florines, for the honour and title of a duke, in the yeare one thousand three hundred ninetie seuen.

[Page 129] So say we also of the duke of Mantua, who acknowledgeth himselfe to hold of the [ A] [Sidenote 372 - *] Germaine empire, and to be also a prince thereof.

As for the duke of Ferrara he confesseth euen at this present to hold part of his seignorie, [Sidenote 373 - *] euen Ferrara it selfe, of the pope, and therefore payeth a yearely rent or fee into the popes coffers. For not long ago, viz. in the yeare 1372, the marques of Este was by pope Gregory first established his lieutenant in the city of Ferrara, reseruing vnto the church fealtie and homage, iurisdiction and soueraigntie; with condition also, that he should yearely pay ten thousand florens of gold into the chamber of S. Peter, and to find an hundred men at armes paied for three monethes, for the defence of the Church of Rome, so often as need should require, as I haue learned out of the Vatican records. And as for Rhegium and Modene, he acknowledgeth him to hold them of the empire: [ B] albeit that pope Iulius the second maintained them to be the Church fees, and in that quarrell made warres vpon the Ferrariens and the French king, who gaue them aide: as also to haue the entire reuenue of the fee, beeing before diminished by pope Alexander the sixt, in marrying his base daughter Lucrece vnto the duke Alphonsus. And true it is, that the French kings long since tooke vpon them the defence and patronage of the prince of Ferrara, since the time that Borsus, first duke of Ferrara, acknowledged himselfe liege vassall vnto Charles the sixt, and therfore it was vnto him permitted, that those dukes of Ferrara might beare the armes of Fraunce, the publike acts whereof yet remaine in the records of Fraunce.

As concerning the Florentines, they of long time haue pretended libertie against the [ C] [Sidenote 374 - *] empire, for the payment of sixe thousand Florines vnto the emperour Rodolphe. As also do the Genowayes, who as they say, were by the same emperour enfranchised. How [Sidenote 375 - *] be it that afterwards they hauing receiued great harme from the Venetians, gaue themselues into protection vnto king Charles the sixt, the French king: and not long after vnto the duke of Milan, who receiued them vpon condition that they should therefore do fealtie and homage vnto the French kings.

In like case they of Luca paied vnto the emperour Henrie the fift, twelue thousand Florines to be enfranchised; Sienna ten thousand; And Peter Gambecourt payed twelue thousand vnto the emperour Charles the fourth for the seignorie of Pisa.

But these were not true alienations, nor exemptions from subiection; but rather [ D] simple graunts and gifts, with certaine priueleges to gouerne their estate, vnder the obeisance [Sidenote 376 - *] of the empire. It was not also in the power of the emperours, neither of any prince whatsoeuer, to alienat any thing of the publike demaine, and much lesse of the rights of the soueraigne maiestie, but that it was alwayes in the power of the successour to lay hand thereon againe, as it is lawfull for the lord to lay hold vppon his fugitiue slaue. As the emperour Maximilian, hauing thrust his armie into Italie, with the power of king Lewes the xij, and hauing brought a great feare vpon all the cities of Italie, gaue them well to vnderstand: At which time the Florentines sent their ambassadors vnto him, to yeeld vnto him fealtie and homage for their estate, and to obtaine of him the confirmation of their priueleges, which cost them fortie thousand ducats. And albeit [ E] that Cosmus duke of Florence, by force of armes made himselfe lord of Sienna: yet so it was, that he tooke the inuestiture therof, & yeelded therfore sealtie & homage vnto the king of Spaine, as perpetuall lieutenant of the empire. Which is sufficient reason to show, that they of Sienna were not before enfranchised or exempted from the empire; or if they were, why did then pope Iulius the second pay thirtie thousand ducats to Maximilian the emperour, to redeeme of him the libertie of Sienna, to the intent to inuest therein [Sidenote 377 - *] the duke of Vrbin. And yet neuerthelesse all that letted not, but that the duke of Florence, which had conquered it by force of armes, was constrained [Page 130] to take the inuestiture thereof of the king of Spaine, and to pay therefore [ F] sixe hundred thousand crownes, which afterwards the king of Spaine would haue againe repayed vnto the duke of Florence, to haue restored Sienna into the former estate; which he would not do, being enformed that the king of Spayne would haue giuen it to the duke of Parma, to reunite Placence and Parma vnto the duchie of Milan, from whence they had bene before distracted. And how then could the German emperours, which are subiects vnto the estates of the empire, alienat the demaine and rights of soueraigntie, in giuing the rights of soueraigntie vnto the cities of Italie, or libertie vnto the tributarie people; seeing that the absolute soueraigne prince cannot so do? no not so much as to distract one clod of the publike land, much lesse to giue away the proprietie. For kings and other great princes (to say truely) haue not the proprietie [ G] of the publike demaines, nay not so much as the whole vse and profit: for that [Sidenote 378 - *] contenting themselues with the bare vse, the rest belongeth vnto the common-weale. And for that cause the Emperour Charles the fourth, granting the confirmation of the priuileges to them of Perouze, ioyned thereunto this clause, Quoad vi•…]eret: So long as he should liue. And yet for all that pope Iulius the second tooke that towne from the Baillions, and put it vnder the obeysance of the Church, from whence it was said to haue bene taken. And how could the cities of Italie, or duke of Florence, haue any absolute soueraigntie, seeing that for all differences and controuersies concerning their estates, frontiers, demaines, and tenures, they plead the same before the emperour, or at least wise in the imperiall chamber, where their causes are decided, and they enforced [ H] to doe as is there adiudged. And albeit that they of Genes, who seemed to hold lesse of the empire than any one of the other townes of Italie, where by the marques of Finall (whome they had driuen out of his estate) summoned before the emperour Maximilian the second, in the yeare 1559: and that they would receiue the emperour as an arbitratour, and not as a judge or a superiour: yet so it was, that the emperour taking vpon him the authoritie of a iudge, caused them before warned, to be summoned, and when that after many peremptorie edicts they made not their appearance, he pronounced sentence against them, and by an herault at armes threatned to proscribe the territorie of Genes if they obeyed not his censure. Now most certaine it is, that there is none but the cities and townes which hold of the empire, that can be proscribed by [ I] [Sidenote 379 - *] the imperiall proscription, whether it be by sentence of the emperour, or by decree of the imperiall chamber. For the imperiall chamber could not haue proscribed Minde, Munster, Magdeburg, and others, had they not bene contained within the bounds and power of the German empire: much lesse could the emperour haue proscribed Genes, if it had not bene within the power of the Germans. And therfore when they of Genes had appealed from the interlocutorie sentence of Maximilian vnto the pope, they afterwards renouncing their appeale, yeelded to the sentence, acknowledging the iurisdiction and soueraigntie of the empire. And so at length the emperour gaue sentence for the marques, acknowledging himselfe to be a vassal vnto the German empire, whome they of Genes would haue had to haue bene thiers. And since that the marques [ K] hath by that definitiue sentence bene maintained in possession of his marquisat, as I haue seene by the letters of Signior D'la Forest, embassadour for the king, dated at Vienna the xviij of Iuly, in the yeare 1560: which iudgement the emperour gaue after he had seene the opinions of the lawyers of foure vniuersities. And not long after they were by another sentence of the same emperours, giuen in the moneth of Iuly, in the yeare one thousand fiue hundred sixtie foure, condemned in a processe which they had against Anthonie Flisque, by them banished, who ouerthrew them by an appeale made vnto the emperour.

[Page 131] Which things although they bee so plaine as that there ought thereof to bee no [ A] doubt, but that the cities of Italie on this side the riuers Rubicon and Tiber, excepting some few, are contained within the bounds of the German empire, & so haue of themselues no soueraigntie; yet is the same made more euident by the generall consent of all the lawyers of Italie, who deny it to be lawfull for any cities of Italie to make any lawes or customes, contrarie or derogatorie to the Roman laws, published by the commaundement of the emperour Frederick. And that the cities of Italie either had no right of soueraintie at al, or else renounced the same, it is manifest by that league which was made in the citie of Constance; for in that league among such priueleges as are confirmed vnto the cities of Italie, the rights of soueraignty are expresly excepted. And therfore Alexander Imolensis of all the lawyers of his time the most skilful, saith, A certaine [ B] iurisdiction to be thereby giuen vnto the cities of Italie; but not the rights of maiestie or soueraigntie to be therefore vnto them graunted, and that euen for that reason, for that the cities doubting or disagreeing about their right, the emperours were wont to appoint them judges and commissioners for the deciding of their controuersies.

Much lesse therefore may the imperiall townes and cities contained within the [Sidenote 380 - *] bounds of the German empire, pretend themselues to haue any soueraigntie, albeit that we see certaine of them to boast of a certaine show of libertie, which they of old receiued from the emperors; as Nuremberg from the emperour Fredericke the first; Isne from Otho the third; Egre from Lewes of Bauyere: yea and some of them there were, which not able longer to endure the hard bondage of their lords, princes of the [ C] empire, set themselues at libertie, as did the cities of Vlme, Brunswic, Lubec, and others: but that which they call libertie, is but an old vacation from certaine seruices, and an immunitie from customes and tributes graunted by the emperours, without any impeachment to their maiestie. And therefore those cities which I haue spoken of, honour the maiestie of the German empire, receiue from it lawes, obey the magistrats thereof, accept of the decrees of the imperiall chamber, and of the assemblies of the empire: and not onely publique and priuat iudgements of princes and cities among themselues, but also the priuat iudgements of particular men are decided by the imperiall chamber, if appellation be made from the sentence which exceedeth the summe of fiftie crowns. Seeing therefore that the imperiall chamber may of the power of it selfe [ D] confirme or disanull the iudgements of princes or cities, it must needs follow, that neither those prinees nor cities haue the power of soueraigne maiestie: For as a certaine Poet (I know not who) saith,

Rescindere nunquam Dijs licet acta Deûm.

It is not lawfull for the Gods the acts of Gods t'vndoe.

As for the Swissers Commonweals, we said before, them to haue bene rent from the [Sidenote 381 - *] German empire, as oppressed with the tirannnie of their gouernours: and yet they so honour and reuerence the maiestie of the German empire, as that they in generall requested [ E] of the emperour Ferdinand, to haue the libertie of their priueleges vnto them confirmed: which is a certaine forme of auntient fealtie, and acknowledgement that they hold their libertie of the empire. And albeit that some there be on this side the Rhene, which vaunt themselues to haue soueraigne power ouer their subiects, yet must they needs be the subiects and vassals either of our kings, or of the German empire. For there is no man which knoweth not (if he remember the antiquitie of the French) that all the countrey of Loraine, and the realme of Arles, after the death of the three children of Lothaire were diuided betwixt the emperour Charles the Bauld of Fraunce, [Page 132] and Lewes king of Germanie his brother. As Vitald, Floard, and Lambert the best [ F] antiquaries do in their histories at large declare. Now so it is that the vassall can neuer prescribe for his homage towards his lord, nor the subiect against the iurisdiction of his prince; and that the graunts and sufferances of the emperour, and the kings of France could not preiudice either the crowne or the empire: wherfore we must conclude these possessours of this maiestie by sufference, to bee subiects and vassals either vnto ou•…] kings, or to the German empire.

And albeit that many thinke the duke of Loraine to be an absolute soueraigne, by [Sidenote 382 - *] reason of the Armes that he beareth, being an armed arme, saying, as it should seeme, That he holdeth nothing but of the sword: yet neuerthelesse so it is, that in his title he calleth himselfe a prince of the empire; which is indeed to acknowledge the imperiall [ G] maiestie. Ioyne thereunto also, that he hath vsually receiued judges from the imperial chamber, and submitted himselfe to the iurisdiction thereof. For as for that that hee is the last among the German princes, nor in their ceremonies holdeth not the place of the auntient dukes of Loraine; that is, for that he holdeth but a little, viz. scarce the sixt part of the auntient duchie of Loraine (a prouince of the German empire) which containeth all that countrey which lyeth betwixt the riuer of the Maze and the Rhene. And therefore the dukes of Brabant, and the German emperours, called themselues dukes of Loraine. So the emperour Charles the fourth, in the league which he made with Iohn the French king, calleth himselfe duke of Loraine. But this countrey which now is called Loraine, is a part of the German empire and the duke himselfe a vassall [ H] of the empire. For Stephen countie of Boulongne, was in that dukedome inuested by the emperour Henrie the first, and for that cause acknowledged himselfe a vassall of the empire, in the yeare 1019. And Frederick of Loraine countie of Vaudemont, duke Charles being dead without heire male, before Sigismund the emperour and the fathers assembled at Constance, claimed that dukedome of right to belong vnto him, as next of kin; for that it was an imperiall fee, whereof Isabel duke Charles his heire, who had married Renat duke of Aniou, was not (as he said) capable: which Renat denyed it not to be an imperiall fee, but shewed many such imperiall fees to haue descended vnto the daughters. And afterward the title comming to be tryed by the sword, Renat being ouerthrowne and taken prisoner by Frederick, could not be before deliuered, vntill [ I] that he had married his daughter Yoland vnto Anthonie the sonne of Frederick, with condition, that if Renat died without heires male, the duchie of Loraine should descend vnto the heires of Frederick, & so vnto the house of Vaudemont, as it is come to passe.

Now if so it be that the dukedome of Loraine be an imperiall fee, comprehended [Sidenote 383 - *] within the bounds of the German empire: neither the lord of Lumes nor the countie of Aspremont, who are contained within the precinct of Loraine, can chalenge vnto themselues any right of soueraigntie, as they haue done, seeing that it is plaine by the law, that he which hath a limited territorie, hath but the same right ouer euerie one of his subiects which are within the compasse of his territorie, that hee hath ouer them all in generall; except it appeare, him by some speciall priuiledge to be free and from the [ K] generall expresly exempted. By which reason all such as pretend a soueraigntie, being enclosed within the bounds and territorie of another man, may bee thereof debarred: which a man cannot so easily iudge of them, which in the frontiers of kingdomes, take vpon them a kinde of soueraigne power; as do the fiue lords or princes in the confines of Burgundie, whome both the free counties, and the dukes haue oftentimes chalenged for their vassals: and for the soueraigntie of whome, at such times as they had taken vp armes, they obtained of the generals of both parts, that in the meane time they beeing free might be as newters, vntill the euent of the warre had decided the cause: and so at [Page 133] length abusing the long possession of soueraigntie, made of that their right, which [ A] they had but by sufferance, a perpetuitie: but as we haue oftentimes before said, so wee must hereafter oftentimes say, That neither the right of soueraigne maiestie, nor the [Sidenote 384 - *] right of libertie, can by the client or vassall be prescribed against: and much lesse if it be withholden by concealement or by sufferance. In like sort the countrey of Bearne, betwixt the confines of Fraunce and Nauarre, which the kings atturney generall in the court of Paris maintained to be a prouince holden of the crowne of Fraunce, and disallowed of the plea of the kings atturney of the parliament of Thoulouze, who had confessed it not to hold of the crowne, in the yeare 1505; which although it remaine vndecided, yet the king of Nauarre for all that by sufference holdeth it in soueraigntie. In like case the principalitie of Dombes was maintained by Lizet the kings atturney, [ B] to hold in fee of the crowne of Fraunce, and that the duke of Sauoy had no power to giue it to the empire, vnder the colour of being the emperours lieutenant, which hee showed to be done in the most wofull times of the ciuill warre, when as the dukes of Orleans and Burgundie had drawne all the whole kingdome into parts, in the yeare 1398: in like manner the princes of East Frizeland, and they which hold the territory betwixt England and Scotland, which they call the Batable ground: as also the abbot of Gosen, betwixt Metz and Pont a Mousson, who holdeth the abbey and twenty fiue villages, in title of soueraigntie, without acknowledging any superior lord whatso. euer: as also the lords of Beauieu, willing to exempt▪themselues from the crowne of Fraunce, yeelded themselues vnto the empire, and so by the duke of Sauoy, the emperours [ C] lieutenant, were receiued into the protection of the empire, from which they also by little and little exempted themselues, without acknowledging either duke, king, or emperour for their soueraigne.

As for the dukes of Sauoy, the Italian doctors with one common errour haue holden [Sidenote 385 - *] them to haue absolute power and soueraigntie, and to haue so beene iudged by the decree of the parliament of Sauoy: a thing altogether contrarie vnto the office of a lieutenant and vassall. And also Osazque the first president of Piemont writeth, That the dukes of Sauoy haue obtained this power of the emperors, which they could not haue as lieutenants of the empire; as Felinus the best interpretor of the law hath most truly written. For what can be more contrarie vnto soueraigne maiestie, than to professe [ D] ones selfe to be another mans deputie or officer, (for so the name of a lieutenant doth signifie) or from whom shouldest thou think thy selfe to haue the power of soueraigntie in that prouince wherein thou thy selfe bearest rule? But euen the dukes of Sauoy themselues confesse, and all their histories declare, this prouince of the German empire which is now called Sauoy, to haue bene a fee of the same empire, erected into a countie (holden of the empire in fealtie) by Henry the fi•…]t; and afterwards into a duchie by the emperour Sigismund. And euident it is the dukes alwayes heretofore, and not long since duke Charles restored vnto his countrey, to haue yeelded fealtie and homage vnto the emperour: and two yeares after, viz. in the yeare 1561, to haue sent speciall letters of atturney vnto the countie D'Arques chiefe chamberlaine to the emperour, to [ E] obtaine for him of the emperour another inuestiture: for because that that which hee had before taken at Ausburg, seemed not vnto him in sufficient good forme, as I haue seene by the letters of M. D'la Forèst, ambassadour for the king vnto the emperour. But an hard matter it was to make such a forme as should be vnto him good; for that it seemeth that the title or qualitie of a perpetuall lieutenant, doth preiudice not only vnto soueraigntie, but also vnto the qualitie of a feudatarie & proprietarie in those lands which he holdeth of another man, if it bee not by a doubtfull or improper kind of speech.

[Page 134] The dukes of Saxonie and the counties Palatine are also perpetuall lieutenants of [ F] [Sidenote 386 - *] the empire; but that is in the emperours absence, to doe iustice vnto the princes and imperiall townes, yea euen against the emperour himselfe, (as shall in due place bee declared) and to all them which are of their gouernment: which is a personall office, and not belonging vnto lands; neither can he that taketh vpon him the qualitie of a deputie, lieutenant, o•…] gouernour, be feudatarie or proprietarie of those seignories that he holdeth of him whose lieutenant he is. And so the title of perpetuall lieutenantship ought to haue relation vnto other countries, without the terrritorie and demaines of his countrey of Sauoy: which neither the Swissers, nor other princes of Italie & Germanie could endure, and much lesse the French king, who holdeth nothing of the empire, whereby he might be iusticiable to the lieutenants of the empire. Ioyne hereunto [ G] also, that the Emperour Charles the fourth made Charles the sixt Dauphin of Viennois, [Sidenote 387 - *] his perpetuall lieutenant, the xiiij day of Ianuarie, in the yeare 1378. And for that he was but nine yeares old, he gaue him the priuelege of his age, by a most ample and gracious charter, whereunto hang seales of gold, which I haue read in the records of our kings. But withall made him perpetuall lieutenant of the kingdome of Arles, (excepting onely the countie of Sauoy) and that more is, gaue him power of life and death ouer the subiects of the empire; with power also to conferre honors, to impose and raise taxes, and from the same to exempt whome he saw good, to receiue appeales made vnto the emperour, to make peace and warre, to giue laws vnto the subiects, and to disanull and abrogat the same, and such other like. This lieutenancie was for all the [ H] kingdome of Arles, which extended from the mountaine Iura (commonly called saint Claudius mount) and the riuers Araris and Rhodanus, vnto the Alpes, and the sea of Genes; all which the imperials haue alwaies pretended to be holden of the empire. But the earles of Prouince haue long since exempted themselues from the German empire, amongst whome was Raymund the last, one of whose daughters was married vnto Lewes the ninth, the French king, and the other vnto Charles duke of Aniou, by which meanes the countie of Prouence is come to the house of Aniou, & from thence by the bountie of countie Renat, vnto the crowne of Fraunce. Albeit that Philip Valois [Sidenote 388 - *] the French king, had bought of the emperour Henrie the fi•…]t, the soueraigntie of all the realme of Arles, without excepting either the countie of Sauoy, or the principality [ I] of Oreng, or Beiauieu, which was afterwards giuen to Lewes duke of Burbon; either of the countie of Prouence, which was then in the house of Aniou; either of the franke countie, which was giuen to Philip the hardie, by the emperour Charles the fourth, in the yeare 1362, being deuolued to the empire for want of heires male. And the sale of soueraigntie of the said kingdome of Arles, was made for the summe of three hundred thousand markes of siluer, with promise to cause it to be ratified by the princes of the empire, who afterwards consented thereunto: of which their confirmation the emperour gaue Iohn king of Bohemia suretie, who sold also the towne of Luques vnto the same king, for an hundred and fourescore thousand florines of gold, in the yeare 1330. The contracts, ratifications, and quittances, are yet in the treasurie of Fraunce to bee [ K] seene, from whence I haue the exemplifications conferred with the originals, wel worthy to haue bene seene of them who were deputed for the affaires of Sauoy, in the yeare 1562. But that me thinke well worth the marking, that in the deedes of bargaine and sale, are comprised all the lawes of soueraigne maiestie, which the German emperours giue vnto themselues in all the prouinces of the kingdome of Arles: wherein are contained the Sauoians, they of Belloioci, they of Prouence, they of free Burgundie, which the emperour Charles the fourth gaue to Philip duke of Burgundie to bee possessed in the imperiall right, the issues male of the counties fayling. Whereby it is manifest [Page 135] the French kings to haue the right of soueraigne maiestie ouer all the people of [ A] the kingdome of Arles, and not therefore to owe any fealtie or homage vnto the Getman empire.

And at the same time as it were the emperour Lewes of Bauatia made Edward the [Sidenote 389 - *] third, king of England his perpetuall lieutenant; and by his letters pattents gaue him power to make lawes, and to administer iustice to all the subiects of the empire: and that all the subiects of the empire should obey him, and in his name to yeeld vnto him fealtie and homage: which was an occasion rather sought for, than offered, for him to make warre vpon the French king, who then held Cambray and the castles of Creueceur, and Payerne, members of the empire: for that by the auntient leagues made betwixt the French kings and the emperours, it was prouided, That they should not one [ B] of them take any thing from the other, or molest one the others sublects; as was declared vnto king Edward by the imperiall princes allied with him, and then assembled in the towne of Hale: which is a most certaine argument that the kings of Fraunce hold [Sidenote 390 - *] nothing of the empire; neither that the emperours haue any right in that kingdome. Which is also expresly set downe in the contract of purchase of Philip Valois, which I haue here before rehearsed, which beareth this clause: And the kings and realmes of Fraunce shall continue in their priueleges, enfranchisments, and liberties, that they haue alwayes holden against the German empire, whereunto they are in nothing subiect. Which was well giuen the emperour Sigismund to vnderstand, at such time as he of his imperiall power would haue made the countie of Sauoy duke, in the towne of Lyons▪ against [ C] whome the kings officers there so opposed themselues, as that hee was glad to get him out of the kingdome, at libertie to vse his owne power, which he did in great choller and displeasure. And this was done by the expresse commaundement of the king, Charles the sixt, to couer two notable errors that had bene before committed: the one passing by sufferance, in that the emperour Sigismund being magnifically receiued at Paris, and as beseemed the kings vncle, had place in a royall seat in full parliament; and the other, that afterwards he was suffered to make Seneschal D' Beaucaire knight; although the court had in this last point admonished the king, that vnto him onely it belonged to make knights in his owne kingdome; as it had twice before bene solemnely iudged by two decrees against the counties of Flaunders and Neuers. Which I haue [ D] the more willingly noted, to show the errour of Alciat, who hath maintained, that the [Sidenote 391 - *] French king is subiect to the empire; which is a wilfull errour or ingratitude, considering the entertainment he had in Fraunce to teach and write the truth: which I thinke not to haue proceeded from him of ignorance, but in fauour of the emperour Charles the fift, who drew him to Pauie, and there doubled his salarie: or els to the imitation of Bartholus, author of that errour, who writ the same things of the French kings that Alciat did: at such time forsooth as he was by the emperour Charles the fourth of a bastard not onely made legitimat, and by him ennobled, but power also giuen him to take the benefit of age to him and his, which should professe to teach the lawes, with armes also answerable vnto his dignitie and honour: viz. a Lyon Azure in a field Argent. [ E] For which so many and so great benefits he writ all them to be heretikes, which should deny the German emperour to be lord of all the world: which hee seemeth to haue gathered of the words of Antoninus Augustus, vnto the law Rhodia; I am (saith he) the lord of the world, and law of the sea: which words seeing they were spoken but for ostentation sake, and for the augmenting of his honour, lesse need to bee refuted; seeing that the Roman empire when it was at the greatest, (which was in the time of [Sidenote 392 - *]Traian the emperour) contained scarce the thirtieth part of the world, and that the German empire is not now the tenth part of the Roman empire. And yet the emperour [Page 136] Sigismund sick of that incurable disease of ambition, sought to haue brought euery [ F] mans gouernment vnder his, although he was in that his hope much deceiued. For intruding himselfe to haue made the duke of Lituania a king (whose countrey lieth aboue two hundred leagues from the frontiers of the empire of Germany) hee sent him a crowne and a sword, which for all that the duke refused, neither thought it good to chaunge the name of the Great Duke (whereby he was called) although he had of himselfe shaken off the seruile yoke of the Tartars, least in so doing hee might seeme to haue attributed his power and soueraigntie vnto the Germans.

We see also that the Germaine Emperors haue sent the royall Crownes vnto the [Sidenote 393 - *] Dukes of Polonia, before they were by the Pope suffered to beare the Royall title; which they refused: and yet certaine it is, that the Kings of Polonia neuer held any [ G] thing of the Empire. Oftentimes indeed the Germaines haue attempted to haue subdued the Polonians, whose vaine attempts the Polonians haue not onely repulsed, but also ioyned vnto their kingdom the countries of Silesia and Prussia, both rent from the body of the Germaine Empire. Which when the Prutenian knights had taken in euil part, and thereof oftentimes complained to the states of the empire, yet the emperors thought it not good for to attempt any thing against the Polonians, by whom they had knowne the imperiall armies to haue been many times repulsed and ouerthrown. And yet for all this, the Polonians refused not to take their royall scepters from the bishops of Rome. True it is that the bishops of Rome of long time striue with the Germaine [Sidenote 394 - *] emperours for the soueraigntie and chiefe gouernment of the Christian Commonweale, [ H] and as chiefetaines of the faction, drew all the Christian princes and cities into armes; so that many cities and Commonweales, especially in Italie, were at such mortall hatred amongst themselues, as that they receiued not greater harme from the enemies of the Christian religion and name, than they did from one another. Neither wanted there some which writ in earnest, al Christian kings to be the bishop of Romes clyents and vassals; and in case that they were foolish, furious, or prodigall, that they might haue ouerseers appointed ouer them by the pope: which we haue before said, to haue been done by pope Innocent the fourth, against the king of Portugall. And albe it that pope Innocent said, That his meaning therein was not in any thing to preiudice the regall power, in appointing such an ouerseer; yet did not his sayings at all agree [ I] with his dooings. Pope Vrban the fift also made no doubt, to make legitimate Henry the bastard king of Castile, so to thrust out of his kingdom his brother Peter, borne in lawfull wedlocke: who therevpon, by the power of the French, was not onely thrust out of his kingdom, but s•…]aine also by his bastard brother. Some there haue been also [Sidenote 395 - *] which haue passed further, saying that the pope hath in power iurisdiction ouer the emperour; but ouer all other kings and princes really and indeed: excepting ouer the French king, whom the canonists themselues confesse, indeed, and ofright to acknowledge none greater than himselfe vnder God. Which Belluga a Spanish doctor, and Oldrade the beautie of his time do also better declare, saying that the French king neither in fact nor of right acknowledgeth any prince of the world superiour vnto himselfe. [ K] But these great clearks which thus giue the popes power ouer other princes, haue no better reason for that they say, than the authoritie of pope Gelasius, who hath written, That the pope hath power to dispoyle all kings and princes of their soueraigntie and power. And some others there be which haue maintained, That appeales may be made from all people and princes vnto the pope, That there is none but the emperour and the pope which can reuoke their owne decrees, and deptiue other kings and princes of their soueraigntie and rule; That there is no prince but hee, vnto whom the pope hath confirmed his principalitie: And that which of all other is most absurd, [Page 137] that hee of himselfe may giue priueleges, exemptions, and immunities vnto another [ A] princes subiects contrarie to the decrees and lawes of all princes; and that he is the only and supreme vmpiere and judge of all mans lawes. And what maruell if he rule ouer princes, which commaundeth ouer angels? For so truely Clement V. P. M. doubted not to commaund the angels. Yea some there be that haue written, That so often as the pope shall put this clause to his rescripts, De plenitudine potestatis, Of the fulnesse of our power: so oft doth he therein derogat from the lawes of all princes. And albeit that some haue holden also, That we must rest vpon that that the pope saith, without farther enquire of the veritie therof; yet so it is neuerthelesse, that Baldus hath written, That a man may say vnto him, Salua reuerentia vestra, By your reuerences leaue. And vpon the maxime set downe by the canonists, That the pope can do all: the diuines [ B] graunting it to be so, do yet more subtilly, and as it were in two words moderat the same, Claue non errante, The key not erring. And forasmuch as it is euery good subiects part to maintaine the greatnesse and maiestie of their owne princes, I will not enter into the disputes of Iaques de Terranne the popes chamberlaine, nor of Capito, nor of M. Charles du Moulin, and others, who haue oftentimes ouershot themselues either of set purpose, or els pressed with violent passions, haue vnawares entred into matter of religion, and so carried away either with loue or hatred of the pope, haue filled their writings with raylings. Whereas I here speake not but of temporall soueraigntie, which is the subiect that I entreat of, (whereof they speake not) to the end it may be vnderstood, who be absolute soueraigne princes; and whether the other princes be subiect [ C] vnto the emperour, or the pope, or not.

For at the beginning, after that pope Gregorie (he which first called himselfe the seruant [Sidenote 396 - *] of the sernants of God) had obtained of Phocas emperour of Constantinople, the prerogatiue ouer all the bishops; his successours after turning the spirituall power into the temporall, by little and little still encreased their power, in so much that the princes as wel for the fear they then had towards God, as for the dignitie of the prelacie, began to reuerence them much more than in former times; but much more after that the empire of the East began to decline, which was after that the popes had by their interdictions forbidden the people of Italie their obedience vnto the Constantinopolitan emperours, or to pay them any tribute; vpon occasion taken, that Leo the emperour, [ D] surnamed Monomachus, or the Image breaker, and also Thomas the emperor, had caused the images of Saints to be cast downe and broken: wherewith the people moued, and enraged with the authoritie of the bishop of Rome, slew Thomas in the temple of Saint Sophia. Wherefore the power of the Greeke empire being weakened in the East, by the incursions of the Barbarians; and the Greeke emperors out of hope againe to recouer Italie; the kings of Lombardie then also doing what they might to make themselues lords of all Italie, and the popes also on their parts no lesse desirous to haue therein a share, and finding themselues too weake to make their partie good against the Lombard kings, vppon this difference cast themselues into the protection of the kings of Fraunce, who then were the greatest Monarches of Christendome; [ E] wherein they were not of their hope deceiued. For hereupon, Pipin Grande [Sidenote 397 - *] M_r. of Fraunce (a man of great wealth and power, who then disposed of all the affaires of the realme) with a great army passing ouer the Alpes, ouerthrew and discomfited the power of the Lombards, and afterward going to Rome, was the first that gaue vnto pope Zacharie, part of the seignorie of Italie, who had before crowned him king of Fraunce, forbidding the peeres and people of Fraunce to make choyce of any other for their kings but of the house of Pipin, hauing publikely pronounced king Childerike for his sottishnesse to bee vnable for the gouernment. Whereunto the people of [Page 138] Fraunce made so much the lesse resistance, for that Pipin then had the nobilitie and the [ F] armie of Fraunce at commaund: and for that the pope (who as then was esteemed as a God vpon earth) was the author thereof, vnto whome Pipin had before solemnly promised, and giuen him letters pattents thereof, That if hee should become victorious ouer the Lombards, he should giue vnto the Church of Rome the Exa•…]chat of Rauenna, which contained thirtie cities, and the prouince of Pentapole, which contained sixteene cities moe: which he after the victorie performed, laying the keyes of the said cities vpon Saint Peters altar: yet reseruing vnto himselfe and his successours in the crowne of Fraunce, the soueraigntie of both the prouinces; and that more is, power also to chuse the popes. Whereunto the pope not onely willingly graunted, but almost persuaded Pipin to take vppon him the name of an emperour: which title none [ G] then vsed, but the emperours of Constantinople. But Pipin being dead, the Lombards againe tooke vp armes, to the great disquiet of the popes, who againe had recourse vnto the French kings, as vnto a most sure sanctuarie. Whereupon Charles, Pipin his sonne (for his many and worthy victories surnamed the Great) with a strong army passing the Alpes, not onely ouerthrew the king of the Lombards, but euen their kingdome also: and hauing surely established the power of the Roman bishops, was by them called Emperour: and they againe by Charles so long as he liued, all chosen bishops of Rome. But after the death of this Charlemaigne, they which were of great credit in Rome, caused themselues to be chosen pope by the clergie, whether it were [Sidenote 398 - *] for the distrust they had to obtaine that dignitie of the kings of Fraunce, hauing no fauour [ H] in the court; or through the negligence of the French kings, who had thereof no great care; or that it was by reason of the great ciuill warres which arose betwixt the children of Lewes the Gentle, wherewith the French kings busied, lost the prerogatiue they had in chusing of the chiefe Bishop. Yet Guitard, a good antiquarie, who liued in the same time writeth, 3 popes successiuely to haue come into France to excuse themselues to Lewes the Gentle, That they had beene by the clergie of Rome constrained to accept of the papal dignitie, beseeching him to confirme the same: which he either as a man not desirous of glorie, or els fearing to prouoke the clergie (being then in great authoritie) did: of which his error he afterwards though to late full sore repented him; being by the colledge of cardinals constrained to yeeld vp his c•…]owne, & to make himself [ I] a monke, and the queene his wife a nunne, shut vp apart from her husband in a cloister with other nunnes, who yet were againe afterwards deliuered by the princes and nobilitie of Fraunce, (disdaining to see the pride of the clergie) and so againe restored vnto their former honours.

But after the death of this Lewes the Gentle (who was emperour of Fraunce, of Germanie, and of the greater part of Italie, and Spaine) the empire was diuided into three kingdomes, which the brethren Charles the Bauld, Lothaire, and Lewes, euerie one of them held in title of soueraigntie, without acknowledging any superioritie of one another; and againe, the kingdom of Lothaire was diuided amongst his children into three parts: vnto one fell the kingdome of Loraine, vnto another the kingdome of Arles, [ K] and to the third the kingdome of Italie: Lewes holding Germanie, and Charls the emperour, Fraunce. So their diuided power began to decay, and the wealth of the bishops of Rome greatly to encrease: they now succeeding one another by way of election, and in nothing acknowledging the maiestie of the French kings, as they ought to haue done: which came to passe especially in the time of pope Nicholas the first, [Sidenote 399 - *] who better vnderstood to mannage matters of state than had his predecessours, and was the first that vsed the rigour of excommunication against princes, hauing excommunicated Lothaire the younger brother of Lewes king of Italie. But the children of [Page 139] Lothaire being afterwards dead without issue, those three kingdomes which I spoke of, [ A]viz. of Loraine, Arles, and Italie, were diuided betwixt their vncles, Charles and Lewes. Wherefore Lewes king of Germanie gouerned Italie, which fell vnto his part, by his lieutenants and deputies; whose power was not such asto withstand the popes, but that [Sidenote 400 - *] they still by little and little extended their power and gouernment: which especially hapned at such time as Guiscard the Norman had subdued the kingdome of Sicilie and Naples, taken from the Greekes and Moores; who to weaken the power of the Germans, and to raigne himselfe the more safely in Italie, ioyned hands against them with the Bishops of Rome. But the posteritie of Guiscard being dead without heires male, left the kingdome of Naples and Sicilie vnto a woman their heire; married vnto the German emperor Frederick the second, who going into Italy, there to confirme his [ B] power, made choice of another pope (one of his own fauorites) than was he whom the colledge of cardinals had before chosen: which was pope Innocent the fourth, a man both for his birth and learning famous; who driuen out of Italie, and comming into Fraunce (the popes surest sanctuarie) and strengthened with the wealth and power of Lewes the ix, the French king (whether it were for reuerence of him the pope so solemnly by the cardinals chosen, or to weaken the power of the Germans) excommunicated the emperour Frederick the second: who seeing himselfe thereby become odious vnto all men, & himselfe like to be forsaken euen of his own subiects, & great trobles arising also against him in Italy, fearefully returned into Germany, hauing obtained absolution of pope Innocent, by yeelding vp his authoritie and power for any more [ C] creating of the bishops of Rome, leauing the kingdomes of Naples and Sicilie vnto his base sonne Manfred, who was also excommunicated by pope Vrban the fist: who not yet so contented, called in Charles of France, duke of Aniou, brother to king Lewes the ix, whome he inuested in the aforesaid two realmes of Naples and Sicilie, reseruing vnto the See of Rome the countie of Beneuent; fealtie, homage, iurisdiction, and soueraigntie for the rest; with a yearely and perpetual fee of eight thousand ounces of gold, as we haue before said. After which time the house of Arragon, which by right of kindred [Sidenote 401 - *] succeeded the posteritie of Manfred, being alwaies at oddes with the house of Aniou, and so in continuall warres for these kingdomes of Naples and Sicilie; and seeing it not possible for them to recouer them so long as the pope was their enemie, they [ D]•…]ound meanes to gaine the popes fauour, and so made themselues the popes vassals, not onely for the kingdomes of Naples and Sicilie, but also for the kingdomes of Arragon, Sardinia, Corsica, Maiorque, and Minorque: which they partly did also for to obtaine the popes pardon for their offences, as we haue before said. The bishops of Rome in the meane time out of the troubles of these two great houses, encreasing their owne power and profit, peaceably enioyed the territorie about Rome, Spolet, and Beneuent, with a good part of Tuscanie, by vertue of the donation which wee haue before spoken of.

As for the citie of Rome, sometimes mistresse of the world, they brought it vnder [Sidenote 402 - *] their obeysance, hauing by little and little oppressed the libertie thereof, no man gainsaying [ E] them. Albeit that Charlemaigne hauing conquered Italie, expresly commaunded that it should remaine in full libertie, with power left vnto the inhabitants to gouerne their estate, which the Roman bishops had also by their oathes confirmed; as Augustine Onuphre the popes chamberlaine writeth, and as it well appeareth by the Vatican records.

Now if there were any soueraigne prince that were a tyrant, or an heretike, or that [Sidenote 403 - *] had done any notorious crime, or not obeyed the popes commaund; hee was by the pope forthwith excommunicated: which was occasion enough to cause his subiects [Page 140] to reuolt from him, and to arme other princes against him which was so excommunicated; [ F] who then had no other meane left to be againe receiued into fauour, but to make himselfe feudatarie to the Church of Rome, and the popes vassall. As I haue before said of Iohn king of England, who made himselfe vassall to Innocent the third, for the murther committed in the person of young Arthur duke of Britaine. And augmented also the feodall rent of England, for the murder committed by the commaundement of the king of England, in the person of Thomas Archbishop of Canterburie. As in like case it chaunced for the murther committed in the person of Stanislaus archbishop of Guesne, by the commaundement of the king: for which the pope excommunicated the king, and tooke the roiall title from the kings of Polonia; enioyning also their subiects therefore (as some haue written) to shaue their heads behind, in such sort [ G] as we yet see them to doe: which whether it be true or no, I dare not to affirme, neither could the Polonians tell me the cause thereof when I asked it of them: but manifest it is by auntient records, that after the murther of that bishop, the kings of Polonia all thought they had the power of soueraigne maiestie, yet were they called but by the name of dukes, vntill the time of Lucold duke of Polonia, who receiued the royall crowne and title, of pope Iohn the xxij, vpon condition to pay into the popes coffers a certaine yearely tribute, which is yet at this day paid for the lampe of Saint Peter, as we [Sidenote 404 - *] read in their histories. And beside those kingdomes which wee haue spoke of, viz. England, Arragon, Naples, Sicilie, Hierusalem, Polonia, Sardinia, Corsica, and the Canaries, all feudataries or tributaries vnto the popes, or els both together; they haue also [ H] pretended the soueraigntie of the kingdome of Hungarie, to belong vnto them, and so it is comprised in the Catalogue of the Chauncerie of Rome. And I haue seene in the Vatican Register, an act dated in the yeare 1229, whereby Ladislaus the first, king of Hungarie, promiseth his obedience vnto pope Benedict the xij, and acknowledgeth that he ought to receiue the crowne at his hands. And by another act of Ladislaus the second, king of Hungarie, excommunicated for the disobedience by him committed against the popes Legat; for to haue his obsolution, he bound himselfe to pay yearely into the popes chamber an hundred markes of siluer; which obligation beareth date the yeare 1280. Yet in the same Vatican register, dated in the yeare 1308, whereby it appeareth also, the barons of Hungarie to haue sharply opposed themselues [ I] against the popes Legat, alleaging Saint Stephen the first king of Hungarie, to haue receiued his crowne of the pope, and that they would not endure the pope to haue any such prerogatiue ouer them: and yet neuerthelesse they letted not, but that the king by themselues chosen, might if so pleased him cause himselfe to bee crowned by the pope. And in the end of that act are many decrees of the popes legat, concerning the state of that kingdome, with prohibitions to the kings of Hungarie for alienating any the demaines of the crowne: which may seeme to haue bene the cause that Andrew king of Hungarie, was by Honorius the pope cited to Rome, to show why he had alienated part of the publike demaines. Innocentius also the third expresly enioyned the king of Hungarie to fulfill his dead fathers vow; threatning if he should refuse so to doe, to depriue [ K] him of his kingdome, and to giue it to him that was next of kin. Which a man need not to thinke strange in those times, seeing that at the same time wee see the prohibitions made by the pope vnto the counties of Tholouze, (and inserted into the Decretals) that they should not raise any new charges vpon their owne subiects. As for the kingdome of Hierusalem and Syria, wonne by Godfrey of Buillon and his allies, it is manifest that he therefore professed himselfe to be the popes vassall, and to hold it of him by fealtie and homage: besides that we find it comprised in the Catalogue of the feudatarie kings of the church of Rome. And as concerning the Grand Masters of the [Page 141] honourable order of S. Iohn Hierusalem, which was composed of eight sundtie people [ A] [Sidenote 405 - *] of diuers language, they were alwayes inuested by the pope, and yet do fealtie and homage vnto the popes for the soueraigne power which they haue ouer the knights of their order: albeit that they did homage also vnto the emperour Charles the fist, for Tripolis in Barbarie, before it fell into the hands of the Turke: as now also they doe at this present vnto the king Catholike, for the isle of Malta, which was vpon that condition giuen them.

And as for the kingdome of Nauarre, vnder the colour of excommunication taken [Sidenote 406 - *] from Peter Albret, we said before, that it is by the kings of Spaine holden of the popes of Rome by fealtie and homage. And not many yeares ago pope Pius the fift would vnder the same colour of religion, haue taken also the rest that was yet left, from Ione [ B] queene of Nauarre, hauing caused her to be cited to Rome; and afterward for default and contumacie, causing her by his commissioners to bee condemned: had not king Charles the ix taken vpon him to protect her, as being his subiect, vassall, and neere kinswoman: which he gaue all Christian princes to vnderstand, vnto whose maiestie the proscription of that most honourable queene might well haue seemed preiudiciall.

For many were of opinion that the pope was absolute soueraigne lord of all the kingdoms of Christendome. And in our age, at such time as Henry the eight, king of England, was reuolted from the pope, the earle of Aisimund, an Irish man, sent letters vnto Henry the second the French king, (the copie whereof I haue taken out of the records) whereby he offered himselfe to become his subiect, if he should of the pope obtaine [ C] the soueraigntie of the kingdome of Ireland, which we said to haue bene vnder the fealtie of the bishop of Rome, since the time of Innocent the third. They haue also pretended themselues to haue the soueraigntie of Mirandula, and of the counties of Concorde, Rege, Modene, Parma, & Placence, for which the popes Iulius the second and third, both of them made great warres against the French king, when as yet it was most manifest those cities to depend of the German empire. Of Parma, and Placence there is no doubt; and the rest they confesse Maud the countesse to haue had by inheritance, holden by fealtie of the emperours, which she gaue to the church of Rome.

Now if we graunt the aforesaid cities might haue beene giuen vnto the bishop of [Sidenote 407 - *] Rome, and to haue bene indeed giuen, as the bishops themselues vaunt; they must also [ D] confesse themselues to haue bene vassals vnto the German empire. But for that it seemed a dishonour to the bishop of Rome, which said himselfe to haue power ouer all princes, to be accounted a vassall and client of the emperours; they said (but falsly) the soueraigntie of all the cities of Italie, which were within the dominions of the Church of Rome, to haue bene by the emperours graunted vnto the bishop of Rome. And to exempt themselues, they produce a donation which I haue read in the Vatican register without date or name of bishop, whereby Otho the emperour (but which Otho it is not said, when as there haue bene foure of that name) doth giue vnto the church of Rome Pisaurum, Ancona, Fossabrum, and Ausun. Other letters pattents also there is of the emperour Otho the fourth, vnto pope Innocent the third, conceiued in these words, [ E]Ego Otho quartus rex Romanorum semper Augustus, tibi domino meo papae Innocentio tertio, tuis{que} successoribus ecclesiae Romanae, spondeo, polliceor, & iuro, quod omnes possessiones Ecclesiae, &c. I Otho the fourth, king of the Romans, alwayes victorious, do auow, promise, and sweare, to thee my lord pope Innocent the third, and to thy successours of the church of Rome, that all the possessions of the Church, &c. And that which followeth after, containeth a most copious confirmation of all the lands and cities which then were in the dominion or patrimonie of the church of Rome, whether they were giuen by the emperours themselues, or by any other lords or princes whatsoeuer: in the [Page 142] number of which cities are these contained: Comitatus Perusiae, Reatae, Saluiae, Interamnae, [ F]Campaniae, nee non Roman, Ferrariam, &c. Marchiam, Anconitanam, terram Comitisse Matildis & quecunque sunt circa Rodicofanum vsque Ceperanum, exerchatum Rauenne, Pentapolim cum alij terris, &c. The same forme of confirmation is in the Vatican records to be seene, both of Rodolph the emperour, and Charles the fourth, bearing date the yeare 1289, and 1368, importing that they also out of their aboundance gaue vnto the pope and to the church of Rome so much as should be needfull, and all that which Henrie the fift his grandfather had before giuen and confirmed vnto the church, that so all the occasions of discord which had before bene betwixt the emperors & the popes, might be altogether taken away. So that if these donations be good, the popes are exempted from their fealtie and homage due vnto the emperours, by reason of the fees [ G] that they hold and which are members of the German empire. But if the emperours could not without the consent of the princes and cities of the empire, giue away the publike territories and rights of soueraigntie; and that the imperiall and publike territories cannot be encroached vpon; and much lesse the right of soueraigntie and patronage, whose authoritie for euer ouer the subiects and vassals cannot bee prescribed against; it must needes follow, the popes to bee the vassals of the German empire.

The same we may say of the election of the bishops of Rome, which the German [Sidenote 408 - *] emperours pretend of right to belong vnto them. For the emperour Frederick the second to haue absolution from pope Innocent the fourth, caused to be deliuered vnto [ H] him his letters pattents, sealed with a seale of gold, dated the yere 1229: whereof I haue seene the extract, and of his empire the seuenth, and of his raigne in the kingdome of Sicilie the xxij. Whereby he entirely renounceth the right of election which he had in the creating of bishops, vsing these words, Illum abusum abolere volentes, quem quidam praedecessorum vt electiones libere fiant & c•…]nonice, Wee willing to abolish that abuse which some of our predecessours were knowne to haue exercised in the elections of prelats, graunt that those elections may be freely and canonically made. By which words he seemeth to renounce not onely the creation of the bishop of Rome, but all other bishops also. Howbeit that in truth that right of chusing of the popes belonged to the kings of Fraunce, and not vnto the German princes, who haue but vsurped [ I] the name and title of emperours, got by the prowesse and force of Charlemaigne king of Fraunce, and by him left vnto his successors the kings of Fraunce, and not vnto the kings of Germany: for so they were called in all the auntient treaties and histories of Germanie and Fraunce, and not emperours, except those which were crowned by the popes. But after that the power of the German kings was farre spred in Italie, they then sought to vsurpe vnto themselues that right of chusing of the bishops of Rome: whether it were for the encreasing of their owne wealth and power, or for to take away the ambition and foule corruption then vsed in voyces giuing, and in their elections. For the emperour Henrie the third thrust out of his papacie Gregorie the sixt, chosen pope by the clergie, and set Clement the second in his place; and afterwards [ K] [Sidenote 409 - *] compelled the clergie to sweare, not from thenceforth to admit any into the papacie, without the consent of the German emperours; as we haue learned out of the Vatican records. But Clement the second being dead, the colledge of Cardinals sent ambassadours vnto the emperour to appoint whome hee thought good to bee pope, who appointed Pepon, afterwards called Damasus the second; who dead, the clergie againe sent ambassadours vnto the emperour, for the creating of a new pope: who sent vnto them Brunon, otherwise called Leo the ix: and after him Victor the second. After whose death the clergie made choyce of Frederick, and after him of Alexander the [Page 143] second: which when the emperour Henry the fourth vnderstood, he sent them Cadol [ A] bishop of Parma for pope, who although he were so receiued in all Lombardie, yet was he thrust out by pope Alexander. After Alexander succeeded Hildebrand, otherwise called Gregorie the seuenth, chosen also by the clergie, who vpon the grieuous paine of excommunication, forbad all lay men to bestow any Ecclesiasticall liuings or benefices vpon any whomsoeuer: And also excommunicated the emperour Henrie the fourth, for disobeying his commaundement in creating of bishops in Germanie. Wherewith the emperour moued, and with his armie passing ouer the Alpes, chased this Gregorie the seuenth out of the citie, who had holden the papacie eleuen yeares, and placed in his stead Clement the third, who held that dignitie seauenteene yeares, against foure popes successiuely chosen by the clergie. After whose death Henrie the 5 [ B] the emperour made Bourden pope; without regard of whom, the clergie neuerthelesse made choice of Calistus the second a Burgundion, who draue out Bourdin, before nominated by the emperour: and by a decree made at Wormes, enforced Henrie to sweare neuer more to take vpon him to bestow any spirituall liuings vpon anie: yet with condition, that he might be in the assemblies of the Bishops assistant, if he thought it so good. Which decree of the emperour Henry the fift is yet extant in the Vatican records, in these words, Pro salute animae meae dimitto Deo & sanctis Apostolis Petro & Paulo, sanctaeque Ecclesiae Catholicae, omnem inuestituram per annulum & baculum, & concedo in omnibus ecclesijs quae in imperio meo sunt, Canonicam fieri electionem. For the health of my soule I remit vnto God and the holy Apostles Peter and Paule, and [ C] to the holy Catholique Church, all inuestiture to bee made by Ring and pastorall staffe, and do graunt Canonicall election to be made in all the Churches which are in mine Empire. Neuerthelesse 229 yeares after, the Emperour Lewes of Bauaria created Nicholas the fift bishop of Rome: Iohn the two and twentith, a Frenchman, then •…]itting as pope at Auignion, who peremptorily citied the emperor to appeare before him and for default & contumacie, pronounced sentence of excommunication against him: The emperour likewise on the contrarie side summoned the same pope Iohn to come before him, saying the bishops of Rome to be subiect vnto his edicts and commaunds, as emperour: and by sentence giuen at Rome, where Nicholas the Antipape held his seat, depriued Iohn of his papacie. Which Nicholas afterwards retiring himselfe [ D] vnto Pisa, was by the citizens there betraied into the hands of pope Iohn his mortall enemie at Auignion, where he shut vp in prison, for sorrow languished to death: and the emperour excommunicated, and therefore detested of all men, was forsaken of his subiects. And this was the eight emperour whome the bishop of Rome excommunicated: [Sidenote 410 - *] after whose fall the German emperours thought it not good afterwards to attempt any thing against the bishops of Rome. But to the contrarie the emperour Charles the fourth gaue out his letters pattents, in the yeare 1355, whereby he acknowledgeth vnto pope Innocent the fift, That although hee were chosen emperour by the princes, yet that he ought to take the confirmation of his election, and the imperiall crowne of him the pope; beginning in these words, Post pedum oscula beatorum, &c. [ E] After the kissing of your blessed feet, &c. Which words we see still repeated in all the emperours letters vnto the bishop of Rome, euen from the time of Lewes of Bauaria, vntill now.

There is also extant in the Vatican, the forme of the coronation of the emperors, [Sidenote 411 - *] and by the emperour Charles the fourth approued; but no where more seruile seruices: where amongst other ceremonies, the emperour is as a subdeacon to minister vnto the pope whilest he is saying masse; and after diuine seruice done, to hold his stirrop whilest he mounteth to horse, and for a certaine time to lead his horse by the bridle: with diuers [Page 144] other ceremonies at large set downe in the Vatican records, which it is needlesse [ F] here to rehearse. And yet one thing more is worth the marking which is not in the record expressed, which is, that the emperour to receiue the imperiall crowne, must goe to seeke the pope wheresoeuer he be, and to follow him if hee chaunce to remoue; as did the emperour Charles the fift, who being come into Italie, with hope to haue gone vnto the* pope at Rome, being aduertised of his departure thence to Bononia, was [Sidenote 412 - *] glad thither to follow him: that so the dutie of an inferiour prince towards the maiesty of his superiour might the more plainely be perceiued. But after the death of Charles the fift, Ferdinand the emperour could not obtaine, that the pope should in his absence ratifie his election; but was oftentimes by the pope threatned, That hee would take such order for him, as that he should haue nothing to doe with the affaires of the German [ G] empire: neither would he admit the emperours lawfull excuse, vntill hee was by the requests and meditation of the French king, and of the king of Spaine appeased: which the German princes tooke in euill part, seeing they had promised vnto Ferdinand to imploy their whole power for the defence of the ma•…]estie of the empire, against that the popes enterprises; as I haue learned by the letters of the kings ambassadour, [Sidenote 413 - *] dated at Vienna, in Iuly 1559. And to show a greater submission of the emperours vnto the popes, the subscription of the emperours letters vnto the pope, is this, Ego manus ac pedes vestrae sanctitatis deosculor, viz. I kisse the hands and feet of your Holinesse. So vsed alwayes the emperour Charles the fift to subscribe to his letters, when he writ vnto pope Clement the seuenth. Which he did not vpon a faigned courtesie, but indeed in [ H] most humble and seruile manner kissed the popes feet, in the open sight of the people, and the greatest assemblies of many noble princes, at Bononia, Rome, and last of al at Marsielles in Prouence, where were met together the pope, the emperour, the kings of Fraunce and Nauarre, the dukes of Sauoy, of Buillon, Florence, Ferrara, Vitemberg the Grand Master of Malta, with many other princes and great lords, who all kissed the popes feet, except the dukes of Buillon and Vitemberg, Protestant princes, who had forsaken the rites and ceremonies of the church of Rome. In farre more base [Sidenote 414 - *] sort did that duke of Venice humble himselfe (who of the Venetians themselues is called a dog) for that he with a rope about his necke, and creeping vpon all foure like a beast, so craued pardon of pope Clement the 5. But nothing was more base, than that [ I] which almost al historiographers which writ of the popes affairs, report of the emperor Fredericke the second▪ who to redeeme his sonne out of prison, lying prostrat vpon the ground at the feet of pope Alexander the fourth, suffered him to tread vppon his head, if the histories be true. Whereby it is well to be perceiued, the maiestie of the Emperours, [Sidenote 415 - *] by the power (should I say) or by the outragiousnesse of the Bishops of Rome, to haue bene so diminished, as that scarce the shadow of their antient maiestie seemeth now to remaine. They also say themselues to be greater than the emperours, and that so much greater, as is the Sunne greater than the Moone: that is to say, six thousand six hundred fortie and fiue times, if we will beleeue Ptolomee and the Arabians. And that more is, they haue alwaies pretended a right vnto the empire: for the imperiall [ K] seat being vacant, they haue giuen the inuestitures vnto them which held of the empire, and receiued of them their fealtie: as they did of Iohn and Luchin, vicounts of Milan, the imperiall seat being emptie in the yeare 1341, who are in the records called vassals of the church of Rome, and not of the empire; and are forbidden their odedience vnto Lewes of Bauaria the emperour, who was then excommunicated, as we haue before said. For which cause the Canonists haue maintained, that the emperour cannot giue vp his imperiall dignitie vnto any, but vnto the pope: for which they yeeld this reason, That the emperours haue their soueraigntie of men, and the popes of God: [Page 145] howbeit that both of them, as all others also in general, are of right to attribute all their [ A] power vnto almightie God. Neuerthelesse the emperour Charles the fift worne with yeares and sicknesse, resigned his imperiall dignitie into the hands of the princes electors, and sent vnto them his resignation by the prince of Orenge. But howsoeuer the Bishop of Rome pretended to haue a soueraigntie ouer all Christian princes, not only in spirituall, but also in temporall affaires; whether they got it by force of armes, or by the deuotion and graunt of princes; or by long possession and prescription: yet could not our kings euen for any most short time endure the seruitude of the bishop of Rome, nor be moued with any their excommunications, which the popes vsed as firebrands to the firing of the Christian Commonweales. For these the popes interdictions, [Sidenote 416 - *] or excommunications, were wont with other nations, to draw the subiects from [ B] the obedience and reuerence of their prince: but such hath alwaies bene the loue of our kings towards their people (and so I hope shall be for euer) and the loyaltie of the people towards their kings: that when pope Boniface the eight saw himselfe nothing to preuaile by his excommunication, nor that the people were to be drawne from the obedience of their king, after he had publikely excommunicated Philip the Faire, he in like maner excommunicated all the French nation, with all them which tooke Philip for a king. But Philip hauing called together an assemblie of his princes, and other his nobilitie, and perceiuing in his subiects in generall a wonderfull consent for the defence of his state and soueraigntie: he thereupon writ letters vnto Boniface (which are common in euerie mans hand) to reproue him of his folly: and shortly after sent Nogaret [ C] with his armie into the popes territorie, who tooke the pope prisoner, (giuing him well to vnderstand that the king was not his subiect, as he had by his Bull published) but seeing him through impatiencie to become furious and mad, he set him againe at libertie. Yet from that the popes interdiction, the king by the aduice of his nobilitie and Senat, appealed vnto a generall councell, which had power ouer the pope, abusing the holy cities. For the king next vnto almightie God had none his superiour, vnto whom he might appeale: but the pope is bound vnto the decrees and commaunds of the councell. And long tims before Philip the Victorious, and his realme being interdicted by pope Alexander the third, who would haue brought him into his subiection: answered him by letters, That he held nothing of the pope, nor yet of any prince in the [ D] world. Benedict the third, and Iulius the second, had vsed the like excommunication against Charles the seuenth, and Lewes the twelfth (who was called the Father of his countrey) that so as with firebrands they might inflame the people to rebellion: yet failed they both of their hope; the obedience of the subiects being in nothing diminished, but rather increased: the Bull of excommunication which the popes legat brought into Fraunce, being by the decree of the parliament of Paris openly torne in peeces, and the legat for his presumptuousnesse cast in prison. And not long after Iohn of Nauarre, who called himselfe countie Palatine, when he had made certaine publike notaries in Fraunce, and made legitimat certaine of his bastards, by vertue of the authoritie which he had (as he said) from the pope, he was therfore by a decree of the parliament [ E] of Tholouze condemned of treason. True it is, that they which haue thought better to assure the maiestie of the kings of Fraunce against the power of the pope, haue obtained the popes buls whilest they yet sate in the citie of Auignion▪ to bee exempted from their power. And namely there is in the records of Fraunce a Bull of pope Clements the fift, whereby he not onely absolueth Philip the Faire and his subiects from the interdiction of Boniface the eight, but also declareth the king and the realme to be exempted from the popes power. Pope Alexander the fourth also gaue this priuilege vnto the realme of Fraunce, That it could not for any cause bee interdicted▪ [Page 146] which was afterward by seuen popes successiuely confirmed, viz. by Gregory [ F] the viij. ix. x. xj, Clement the fourth, Vrban the fift, and Benedict the twelft; whose bul•…] yet remaine in the records of Fraunce: which yet seeme vnto me not to encrease, but rather to diminish the maiestie of our kings, who were neuer in any thing beholden vnto the popes. And that more is, the court of parliament of Paris, hath by many decrees declared that clause, Auctoritate Apostolica, By the authoritie Apostolicall: [Sidenote 417 - *] vsually inserted into the popes rescripts sent into France, to be void, meere abusiue, and to no purpose: and therefore it behoueth him, that would helpe himselfe by any such the popes rescript, to protest in iudgement, That he would not any way take benefit of that clause. By all which things it is plainely to be vnderstood, not onely the kings, but the kingdome of Fraunce also, to haue bene alwayes free from all the popes power [ G] and commaund. For as for that which Iohn Durand himselfe a French writer, saith, That the French kings are subiect vnto the pope, so farre as concerneth their oath, it needeth no refuting; as by him written being bishop of Mende, and at such time as vnder the color of oathe ioined vnto contracts, the ecclesiastical iudges drew vnto themselues the hearing and determining of all matters: which their iugling craft was both by the kings edicts, and the decrees of the high courts of parliament, long since met withall, and taken away. But if the French king shall in his owne priuat name contract with the pope, he may voluntarily and of his owne accord bind himselfe vnto the popes iurisdiction, which we read to haue bene done by Philip Valois, at such time as he borrowed the summe of three hundred and thirtie thousand florines of gold, of [ H] pope Clement the sixt, which is an ordinarie clause in all obligations, in which sort the pope himselfe might aswell as a priuat man be bound also. But this money the pope may seeme also not to haue lent without reward; but beeing himselfe of the house of Turene, it may be thought that he for this summe so lent, procured of the king the great priueleges which the counties of Turene yet at this day enioy. Yea but I know some to pretend, that the French kings ought to receiue their royall crowne at the hands of the pope: for that king Pipin so receiued it at Saint Denise in Fraunce, of pope Zacharie: as though one act in discontinued solemnities, and of so great consequence, could giue a right, or establish a perpetuall law: which it cannot do in the getting of the least discontinued seruice; but by the prescription of 100 yeres: albeit that in truth the king [ I] leaueth not to bee king, without any coronation or consecration, which are not things of the soueraignty. And that no man can deny, but that if the donation of the exarchat of Rauenna & Pentapolis, one of the fairest countries of al Italie, be made by the kings of Fraunce vnto the popes, and the church of Rome; it is also holden of that crowne of Fraunce: seeing that the confirmation of the seignories so giuen, was requested of Lewes the Gentle, successour to Charlemaigne: which confirmation Carolus Sigonius, a most skilfull man in the antiquities of Italie, writeth himselfe to haue seene and read. Wherefrom a man may draw two most certaine arguments; The one, That the donation was made by the predecessours of Lewes the Gentle: And the other that the soueraigntie of the seignories so giuen, was yet reserued: For otherwise there should not [ K] haue needed any of king Lewes his confirmation; considering that king Pipin had by law of armes wonne those territories from the emperours of Constantinople, & therfore might of right both giue them by himselfe so wonne, and also appoint lawes vnto them so by him giuen. Albeit that the Constantinopolitan emperour sent ambassadors into France vnto Pepin, to haue had him to haue infringed & reuoked the said donatiō: which they could not of him obtaine, but returned as they came; as is to be seene in the histories of Floardus and Sigonius. And that more is, Augustinus Onuphrius the popes chamberlaine, who had diligently searched all the Vatican records (speaking of the [Page 147] popes) confesseth, that the exarchat of Rauenna, Romandiola, the duchie of Vrbin, [ A] and part of Tuscanie, were giuen to the Church of Rome. But hee speaketh not of that which I haue read in the extract of the Vatican register, viz▪. Iohn, surnamed Digitorum, to haue written in letters of gold, the donation pretended to haue bene made by Constantine: in the end whereof are these words, Quam fabulam longi temporis mendacia finxit; which words I thought not good in any thing chaunge: as being much stronger arguments than those of La•…]. Valla, to conuince the lies of Augustin Egubin, who of purpose to deceiue, hath forged in Greeke the donation of Constantine, to giue it the more credit; whose deceit is easie to be refuted both by the manner of the stile, and the knowledge of antiquitie: and is sufficiently refelled by Sigonius and Onuphrius both Italians. Which is also well iustified by the epistle of pope Iohn, written in the [ B] yeare 876, who therein confesseth the great largeses and donations bestowed vpon the church of Rome by Pipin, Charlemaigne, and his successours: and by the auntient marble table, which is yet to be seene at Rauenna, wherein are these words contained, Pipinus Pius primus amplificaendae ecclesiae v•…]am aperuit, & exarchatum Rauennae cum ampliss. The rest of the inscription time hath defaced. And thus much concerning the greatnesse and soueraigntie of our kings.

I will not here touch the greatnesse and soueraigntie of the Negus of Aethiopia [Sidenote 418 - *] commonly called Prester Iohn, whome Paeu. Iouius writeth to haue fiftie tributarie kings vnder him, or (to say better) gouernours of Prouinces, which yeeld vnto him not onely their ordinarie tributes, but also their fealtie and homage, and that in greater humilitie, [ C] than verie slaues do vnto their lords: as a man may see in the historie of Francis Aluares a Portugall, who dwelt sixe yeres in Aethiopia, and yet neuerthelesse they are called kings without cause, because they be no absolute soueraignes, seeing that they be but tributaries, yeelding fealtie and homage vnto another man.

As for those princes which are no Christians, I haue nothing to say, for the small assurance [Sidenote 419 - *] we haue by the writings and reports of others, much differing among themselues. Yet neuerthelesse so it is, that in one chapiter of the Alcoron, it is expresly for bidden all the Musulman (that is to say the right beleeuing) princes, to call themselues lords, except their Caliph or great bishop their great prophet Muhamed his vicar. By meanes of which prohibition the Mahometan bishops haue vsurped absolute soueraigntie [ D] aboue all their princes, giuing kingdomes and principalities, to whome they thought good, in name and title of gouernments: which may be also the cause that no Musulman prince weareth a crowne vpon his head: albeit that before the most auntient kings of Asia and Afrike did weare crownes. And namely Ioiada the high priest, hauing consecrated Ioas king of Iuda, set a crowne vpon his head. But the Musulman princes think that chapter not to haue bene made by Muhamed their law giuer, but by their Caliphes, (who of many diuers corrupt Alcorans made but one, long time after the death of Muhamed, defacing the rest, and for the augmenting of their maiestie, to haue bene into their Alcoran by them inserted. But at such time as three of their great bishops had for the desire of soueraignty, at one time taken vpon them the name of the [ E] great Caliph, the princes of Persia, the Curdes, the Turkes, the Tartars, the Sultans of Aegypt, the kings of Marocco, of Fez, of Telensin, of Tanes, of Bugia, and the people of Zenetes, and of Luntune, exempted themselues from the obeysance of the Caliphs, to hold their kingdomes in soueraigntie: as also the kings of Tombut, of Guynee, of Gaoga, and other kings, which dwell more into the hart of Afrike, who know not the Caliphes commaund, neither acknowledge any greater than themselues: except they [Sidenote 420 - *] which hold in fealtie and homage of the king of Portugall, as the kings of Calecut, of Malachie, of Cambar, and of Canor, whomethey haue compelled so to do, and to pay [Page 148] them tribute; hauing also subdued all the sea coast of Afrike, and of the East Indies, and [ F] almost in infinit number of places built fortresses; yea and in the island of Ormus euen vnder the nose of the Persian king, hauing built a most strong castle, and straitly exacting tribute and custome of such as passe that way, or chaunce to arriue in the Persian gulfe; and had done the like in the red sea, had not Barnagas gouernour of that coast, and the king of Aethiopia his subiect, cut the Portugals in peeces, and rased the fortresses which they had begun to build, vnder the colour of alliance and amitie contracted by Lopes ambassadour for the king of Portugall, with the king of Aethiopia, in the yere 1519. And yet for all that certaine it is, that the king of Portugall was of auntient time feudatarie or vassall vnto the king of Castile, and the kingdome of Portugall a member [Sidenote 421 - *] of the kingdome of Castile: which for the greater part holden by force by the [ G] Moores, was giuen to Henrie, brother to Godfrey of Buillon, in marriage with the base daughter of Alphonsus king of Castile: from whome are descended all the kings of Portugall, since this foure hundred and fiftie yeares, vnto Henrie the Cardinall, who last raigned: hauing (of long) exempted themselues from the soueraigntie of Castile, and holding diuers kings their tributaries and feudataries, of whome Emanuel was the greatest, and for his martiall prowesse amongst the rest most famous; who vanquished the aforesaid kings, and caused them to pay him tribute. For there are now no feudatarie kings in Asia, or Africa, which are not also tributarie; howbeit in auntient time the kings of Persia, and the Romans, hauing subdued kings vnto their empire, for most part made them to become their tributaries: as for such fealtie and homage as is of [ H] vassals exacted, they knew not what it ment. For Philip the second, king of Macedon, being by the Romans ouercome, they graunted him peace vppon condition, that he should pay them into their common treasure, a certaine yearly tribute; which Perseus, Philip his sonne, afterwards refusing to pay, drew vpon himselfe a great and heauy warre, to his owne vtter destruction. And yet oftentimes such tributarie kings had others tributarie vnto themselues, who had also power of life and death, and other roiall soueraignties ouer their owne subiects. So the kingdome of Dauid was contained within the bounds of Palestine, and yet he enforced the neighbour kings to pay vnto him tribute, his posteritie neuerthelesse not long after yeelding tribute vnto the Aegyptians, and the Assirians. So the kings of Slauonia, and the Commonweale of Carthage [ I] vsed the like authoritie and right ouer the princes vnder their dominion, that the Romans exercised ouer them, enforcing them to bring their yearely tributes into their treasuries.

Yet is there difference betwixt a tribute and a pention: for a pention is paid in respect [Sidenote 422 - *] of fealtie, or in time of warres to receiue aid against our enemies: but a tribut is giuen, thereby to haue peace; howbeit that he which receiueth such a pention, commonly boasteth of it, as of a tribute: as the kings of England called the pention of fiftie thousand crownes, which Lewes the xj paid vnto them by the treatie of Piqueni, by the name of a tribute; vntill that Elizabeth the daughter of Edward king of England was married vnto Charles the eight, king Lewes his sonne. Howbeit that Philip Comines [ K] denyeth it to haue bene either pention or tribute; yet needes it must bee either the one or the other. So the Grand Signior calleth the German emperour his tributarie, for the pention which he payeth euerie yeare for the peaceable enioying of a part of Hungarie. The Venetians also, the Genowayes, the Ragusians, the kings of Algiers and of Tunes, in his letters and in the conuentions of peace, he calleth by the name of his great friends and allies, but accounteth them indeed his tributaries. But the great Precop Tartar, who in auntient time was soueraigne of all the realmes from Volga to Boristhenes, held all the princes and lords of those countries as his vassals and tributaries, [Page 149] who not onely kneeled before himselfe, but stood before his ambassadours sitting: [ A] For so the Knez of Moscouie behaued himselfe before the ambassadours of this▪ Tartar prince, and was therefore of other princes commonly called but by the name of a duke: howbeit that the dukes of Moscouie, for this and diuers other such indignities cast off the seruile Tartars yoke, in the yeare 1524. And the first that reuolted from them was B•…]silius the first, who called himselfe The Great Chamberlaine of God, and [Sidenote 423 - *]King of Moscouie: and so he which at this present raigneth, in despight that other princes tearme him but a duke, stileth himselfe The Great Emperour: as in truth he in power either excelleth, or is equall vnto the greatest kings his neighbours, excepting the kings of the Turkes▪ albeit that the right of soueraigne maiestie be not defined by the spatiousnesse of places, or the greatnesse of countries, as if that might make a prince either [ B] [Sidenote 424 - *] more or lesse soueraigne: as Eumenes being ouerthrowne, and hauing nothing left him of his owne more than the castle wherein he was besieged, yet when as he was to treat of peace with Antigonus king of Asia (who as he was in power, would also in honor haue seemed to haue bene his superiour) answered, That he [Sidenote 425 - *] acknowledged no man greater than himselfe, so long as he had his sword in his hand.

And yet among soueraigne princes there is a certaine prerogatiue of honour due [Sidenote 426 - *] vnto the more auntient Monarches and Commonweals, although they bee in wealth & power inferior vnto them that be more new or of later time: as we see amongst the xiij Cantons of the Swissers, who are all soueraignes, acknowledging nether prince nor monarch in the world for their soueraigne: the Canton of Zurich in all their assemblies [ C] [Sidenote 427 - *] hath the prerogatiue of honour: For their deputie as a prince in the name of all the rest of the Cantons, receiueth and dismisseth the ambassadours of other kings and Commonweals; and vnto him onely it belongeth to call a generall assemblie of all the states of the Cantons, and againe to dismisse the same; albeit that the Canton of Berne be much greater and stronger: Next vnto them of Berne, are Lucerne, and Vri, albeit that they are defended neither with wals nor ditches, no more than are the Schwits, and Vnderuald, which follow in order vnto them of Vri: then follow after them Zug, Glaris, Basill, Friburg, and Soleurre. Now haply a man may say, That this is done according to the time that euerie Canton entred into their alliance: which is not so; for by their treaties it appeareth, that the first that entred in that confederation [ D] and alliance were they of Vri, Schwits, Zug, and Vnderuald.

Sometimes also the more auntient Monarches and Commonweals lose their prerogatiue of honour; as when they put themselues into the protection of latter princes, [Sidenote 428 - *] or yeeld themselues tributaries: in which case it is most certaine, that they are alwaies lesse than the other into whose protection they put themselues, or vnto whome they pay tribute. As it chaunced almost to all kings and princes which sought the protection of the Romans: whereas others which were come into equall alliance with them, as the Hed•…]i, were in their leagues called their confederats, their equals and brethren: and yet for all that, they in truth and effect were inferiour vnto them in honour. And verily Augustus the emperour showed himselfe wonderfull ceremonious and difficult [ E] in the honours which he bestowed on kings and princes, allies and vnder the protection of the empire of Rome; making Tetrarques, inferiour vnto Ethnarques, and these inferiours vnto kings; and the more auntient allies of the Romans, superiours vnto the rest that came into their alliance after them. And albeit that the Romans in the flourishing time of their popular estate, seemed not much carefull of such ceremonies of dignitie and honour which is of kings and princes more regarded, yet did Q. Martius Philippus their ambassadour show himselfe therein curious: Who contending with Perseus king of Macedon, which of them shuld come ouer the riuer vpon the frontiers [Page 150] of Macedon, vnto the other: and Perseus for that he was a king, refusing to come ouer [ F] vnto the Roman ambassadour, the ambassadour yet by sweet speech drew him ouer: Which he did (as he said vnto the ambassadors of the allies and confederats there present with him) to show that the honour of the Romans was greater than that of the Macedonian kings; who for all that would in nothing giue place vnto the Romans. Yet was there a greater cause than that, which Martius, or els Liuie omitted, which was forthat Philip the father of Perseus had vpon conditions, receiued peace of the Romans and also paid vnto them tribute; which his father Philips act, if he had disliked, he should not haue medled with the kingdome: although that he was otherwise vnworthy therof, who his father yet liuing, had aspired vnto his inheritance: and being but borne of a concubine, had slaine his brother borne in lawfull marriage. But after that hee [ G] ouerthrowne and vanquished by Paulus Aemilius▪ had lost the hope of his kingdome▪ he writ letters vnto Aemilius, generall of the Roman army, yet stiling himselfe a king: which his letters the Roman generall reiected, and would not vouchsafe to open them, except he first renounced his roiall dignitie, which can onely agree vnto him which hath a soueraigne power, subiect to no other princes commaund.

And for the same cause Francis the first the French king declared vnto Cardinall Bibiene the popes legat, that the pope his master ought not to suffer the emperour Charles the fift to call himselfe king of Naples and of Sicilie, seeing that he was but the Popes vassall. Whereof the legat gaue aduertisement vnto Iulian Cardinall de Medices, who was afterwards pope; to the end that that title might haue beene rased, which [ H] as he certified him by his letters, was by the charters of fealtie, forbidden the kings of Naples to take: whereas for all that, in all the records which wee haue got out of the Vatican, that is not onely not forbidden, but the name and dignitie of the king of Naples and Sicilie expressely set downe, as namely in the inuestitures of Charles of France, of Carobert, and of Iohn. So many times ambassadours euill instructed in their masters affaires, through ignorance commit therein many notable defaults. And by the same reason we should take the royall title of a king from the king of Bohemia, who holdeth his kingdome in fealtie and homage of the empire; and not for that it is so little, as many haue written, that it is for that cause no kingdome, which were to measure kings by the elne: but it is, for that the countrey of Bohemia was by the emperour [ I]Fredericke the first, for title of honour onely erected a kingdome, without preiudice vnto the right or soueraignetie of the empire. But to say truth, this title agreeth vnto none that is another mans vassall, nor hath nothing of his owne in title of soueraigntie. And it maybe, that for this cause pope Pius the fourth gaue not the royall title to [Sidenote 429 - *]Cosmus duke of Florence, albeit that he would very gladly haue so done: whereof the emperour Maximilian the second, being by the French embassadour aduertised, not vnfitly replied, Italia non habet regem nisi Caesarem: Italy hath no king but the emperor. Although that be to be vnderstood of the maiestie of the German empire (whereof the Florentine state dependeth) & not of the emperour, who is himselfe subiect vnto the estate of the empire: albeit that all christian princes giue him the prerogatiue of honor, [ K] next vnto the pope, whether it be for that he is chiefe of the German empire, or els hath got it by long prescription of time. So also next vnto the emperour, all other princes haue vsed to giue this prerogatiue of honour vnto the French kings; not only for the long possession thereof, but also for that in all the world (whether you looke among the Christians, or the Tartars, the Turkes, the Ethyopians, the Indians, or Barbarians) is not to be found so auntient a kingdome, or such a continuall discent of kings of the same stocke and line as is among the French kings. And therefore Baldus (being himselfe an Italian Lawyer and a subiect of the empire) sayth well, That the French king [Page 151] carieth the crowne of glorie aboue all the kings, who haue alwaies giuen him that [ A] preheminence of honour. And there is also yet extant an epistle of pope Gregories vnto king Childebert, the beginning whereof is this: Quanto caeteros homines regia maiestas antecellit, tanto caeterarum gentium regna, regni vestri culmen excellit: by how much the royall Maiestie excelleth other men, by so much doth the Maiestie of your kingdome excell the kingdomes of other nations. As in truth this prerogatiue is vnto him due: for the Germane emperours themselues cannot denie, but that the German empire was sometime a prouince and member of the auntient kingdome of Fraunce, conquered by the prowesse of Charlemaigne king of France, and power of the French nation: but afterwards rent againe from the same, being giuen in partition to Lewes of France, yongest son to Lewes the Gentle, at such time as Charles the Bauld the French [ B] emperour held the imperiall seat of the empire: Howbeit that yet neuerthelesse the Germane princes the Othons, by the graunt of the Roman bishops hauing got the imperial title, haue by little & little through the ignorance of our embassadors vsurped & taken vnto themselues this prerogatiue of honour aboue the French kings. As in like case the king of Spaine not many yeares agoe would haue preuented our kings ambassadours: but was at the request of M. Nouuaille, ambassadour for the French king, by a decree of the Venetian Senat embarred so to doe, in the yeare 1558: and so likewise afterwards by a decree of the pope, giuen by the consent of all the colledge of Cardinals: where the pope said with a lowd and cleare voyce, That the French kings had beene alwayes the auntient protectours of the church of Rome, and that the fairest [ C] and fruitfullest prouinces of the kingdome of Spaine, had bene dismembred and rent from the kingdome of Fraunce: than which nothing could in that kind haue beene more truely spoken; for by our kings, the authoritie of the bishops of Rome hath bene deliuered from contempt, their wealth encreased, and their power confirmed. [Sidenote 430 - *] Wherein the pope also in some sort amended the errour committed in the councell of Trent; where Mendoza the Spanish ambassadour, preferring himselfe and taking place before the French ambassadour (which then was M. Lansac, assisted with the M. M. of Ferrier & Faut) was to haue bin compelled to haue departed from the councell, or els to haue kept the auntient order of ambassadours, and so to haue followed the French ambassadours: who withstanding the Spanish ambassadors presumption, [ D] requested that he might not so inuert the order of the ambassadours: saying, that otherwise he would himselfe forsake the Councell, and cause the French bishops to depart thence also. Whereunto the Spanish ambassadour craftily answered, That as he would not go before the French ambassadour, so would he not be enforced to follow him; and so tooke his place by himselfe apart from all the rest of the ambassadors. Yet notwithstanding these two former decrees which I haue spoken of, the Spanish ambassadour not long after at Vienna in Austria, earnestly requested of the emperor, That he might goe in the same degree and order with the French ambassadour; or that they might at leastwise go formost by turnes (as did the Roman Consuls, who had the preheminence, the twelue sergeants, and power to commaund, successiuely, each of them [ E] his day) which Henrie the second the French king hearing of, writ againe to his ambassador, That prerogatiue of dignitie to be of so great moment and consequence, as that nothing therein was by him to be said or done more than he had commission for. And Ferdinand the emperour not willing to offend either the one or the other, thought it good to forbid them both from comming together, either vnto sermons or other publike [Sidenote 431 - *] assemblies. The Senat of Polonia troubled with the same difficultie, thought it not good to preferre one ambassadour before another, neither to preferre them by turnes, or yet to make them equall: but decreed of all ambassadours in generall, that [Page 152] as euery of them first came into the frontiers of the kingdome of Polonia, so should [ F] they be first in order heard. And so accordingly M. De Monluc bishop of Valence (who for his wisedome and dexteritie for mannaging of matters of estate, had beene fifteene times ambassadour) hauing by great celeritie preuented the Spanish ambassador, had also first audience; wherewith the Spanish ambassadour offended, would as then say nothing: as I haue vnderstood by M. de Nouuaille abbot of Belle-iste, a man of great honour and vertue; who then was also ambassadour into Polonia, as he now is at Constantinople. But before the yeare 1558, neuer Christian prince made question of the preheminence of the French ambassadours before them of Spaine: and namely the English men alwayes preferred them before the Spaniard; albeit that they had bene auntient allies and friends vnto the one, and enemies vnto the other. As after the [ G] death of queene Marie, in the chapter holden by the knights of the most honourable order of the Garter, vpon Saint Georges eue, in the yeare 1555, concerning the conferring [Sidenote 432 - *] of honours, it was decreed, That the French kings place should be aboue the rest, next vnto the prince on the right hand; where before was the place for Spaine, while king Philip was married vnto the queene. And the next day after being Saint Georges day, a day of great solemnitie vnto the knights of that order, a seat was accordingly reserued for the French king, on the right hand next vnto the prince: and another on the left hand for the king of Spaine, next vnto the emperours seat on the same side, being then emptie. And afterward in the time of Charles the ix, the queene of England caused to be sent vnto him the banner of Fraunce, of the same stuffe and greatnes that [ H] her owne was, as the king was aduertised by M. de Foix then his ambassador there; and in the roll or Catalogue of these knights, which is signed euerie yeare by the queene, the French kings name is euer the first, next vnto her owne.

But to take away these difficulties and ielousies betwixt princes, about their honors, which are otherwise ineuitable and daungerous: it is declared in the xiij article of the ordinances of king Lewes the xj, touching the order of knights, that they should bee placed according to the time of their receiuing into the order, without prerogatiue of king or emperour. For euerie soueraigne prince who is neither tributarie, vassall, nor in the protection of another, may as seemeth vnto him best in his owne countrey bestow the prerogatiues of honour vpon whomsoeuer hee pleaseth, and to reserue the [ I] chiefe place vnto himselfe. We know right well that the Venetians, the Rhagusians, the Genowayes, the Moscouites, and the Polonians, are in league with the great Turk, and yet hath he alwaies giuen the prerogatiue of honour vnto the French king, calling him in his letters the Greatest, and the Greatest among the most Great Princes of the Christians: & stileth himselfe The greatest of all Princes, and the chiefe Sarrach or Prince of the Musulmans; that is to say, Chiefe Prince of the right beleeuing or faithfull, which last prerogatiue of honour the Christian princes themselues haue giuen him by their letters: and as for the first title it seemeth himselfe to haue taken it from the auntient [Sidenote 433 - *] emperours of Constantinople, who bare in their armes foure B. which we call Fusills, wherby thesewords are signified; 〈 in non-Latin alphabet 〉], [ K] that is to say King of kings, raigning ouer kings. Which was the title that the kings [Sidenote 434 - *] of Babilon in auntient time tooke vpon them also, as we may see in Ezechiel, who calleth the great king Nabucodonosor〈 in non-Latin alphabet 〉] that is to say, King of kings; for that all the kings of Asia were vnto him tributaries: after which the kings of Persia hauing ouercome the kings of Asiria, as Esdras writeth, vsed the same title: & after them the Parthian kings also, as Dion writeth, that Phraates the king of Parthia called himselfe King of kings. But neither feudatarie kings which hold all their territories of others; neither dukes, marquesses, counties, or other like princes can of right vse the title of soueraigne [Page 153] maiestie, but only of his Highnesse, his Serenitie, or his Excellencie, as wee haue before [ A] said. Wherfore seeing that princes Tributaries, and Feudadaries, are not to be accounted absolute soueraignes; neither they which are in the protection of others: let vs now speake of the true markes of Soueraigntie, thereby the better to know them who they be that be such.

CHAP. X. ¶ Of the true markes of Soueraigntie.↩

SEeing that nothing vpon earth is greater or higher, next vnto God, [Sidenote 435 - *] than the maiestie of kings and soueraigne princes; for that they are in [ B] a sort created his lieutenants for the welfare of other men: it is meet diligently to consider of their maiestie and power, as also who and of what sort they be; that so we may in all obedience respect and reuerence their maiestie, and not to thinke or speake of them otherwise than of the lieutenants of the most mightie and immortal God: for that he which speaketh euill of his prince vnto whome he oweth all dutie, doth iniurie vnto the maiestie of God himselfe, whose liuely image he is vpon earth. As God speaking vnto Samuel, of whome the people of Israel had vnaduisedly asked a king, It is not thee (saith God) but me whome they haue despised.

Now to the end that one may know him that is such an one (that is to say a Soueraigne [ C] prince) we must know the markes, which are not common vnto other subiects also: for if they were common vnto others, than should there be no soueraigne prince. And yet they which haue writ best of or concerning a Commonweale, haue not sufficiently and as it ought, manifested this point, than which none is more plentifull or more profitable in the discourse of a Commonweale▪ whether it were by them for flatterie, for feare, for hatred, or by forgetfulnesse omitted. For when Samuel had denounced him king whome God had before chosen, and consecrated him before the people, as if he had but come by chaunce; he is reported to haue writ a booke of the power and Soueraigntie of a king, which the Hebrew priests haue written to haue bene by their kings suppressed and rent, that so they might more freely tyrannise ouer [ D] their subiects. Wherein Phi. Malancthon in mine opinion is deceiued, who hath [Sidenote 436 - *] thought those things which Samuel spoke vnto the people, concerning the crueltie or insolencie of tyrants, to belong vnto the right of soueraigne maiestie: Whereas hee in that his Oration vnto the people, would haue reclaimed them from the alteration and innouation of the state, and to haue beene better aduised. Will you (saith he) know the custome of tyrants? It is to take away the goods of their subiects, and to dispose of them at their pleasure; to take the tenth of their labours, to rauish other mens wiues, to take from them their children to abuse them, or to make of them their slaues: For the word 〈 in non-Latin alphabet 〉] which hee vseth, signifieth not lawfull rights in that place, but mens customes and manner of doing. For otherwise the good prince Samuel should in all his speech [ E] be contrarie vnto himselfe: for in giuing of an account before the people, of the charge that God had giuen him ouer them; Which of you (saith he) is it amongst you that can accuse me of euill, or say that I haue taken of him either gold or siluer, or other present whatsoeuer? Whereunto all the people with great applause and acclamation gaue him this prayse, That he had neuer done them wrong, nor taken any thing of any person whomsoeuer. Should then this good prince being of so great integritie, godlinesse, and iustice, as he is reported to haue bene of, haue pronounced the cruelties, insolencies, and adulteries of Tyrants, as lawes of Soueraigntie for princes to imitate? And amongst the [Page 154] Greekes there are none, who haue any thing written concerning the lawes of Soueraigntie, [ F] except Aristotle, Polybius, and Dionysius Halicarnasseus, who haue writ with so great breuitie and obscuritie▪ as that they seeme rather to haue propounded the question, than to haue declared what was to be thought thereof, as not therein well resolued themselues. For there are (saith * Aristotle) three parts of a Commonweale, the [Sidenote 437 - *] one to take aduice and councell, the other to establish magistrats and officers, and euerie man in his charge, and the third to administer and execute iustice. Here (in mine opinion) or else no where he seemeth to speake of the right of Soueraigntie; for that a Commonweale can by no meanes receiue that diuision, as it were of the whole into parts, except the soueraigne gouernment were also spoken of. Nether hath [Sidenote 438 - *]Polybius▪ also determinatly defined or set downe the rights and marks of Soueraigntie: but in [ G] speaking of the Roman Commonwealth, he saith, That their estate was mixt of the Power royall, of the Aristocraticall gouernment, and the Popular libertie: seeing (saith he) that the people made lawes and officers; the Senat▪ disposed of the prouinces and common treasure, receiued and dismissed ambassadours, and had the mannaging of the greatest affaires; the Consuls held the prerogatiue of honour, in royall forme and qualitie, but especially in warres, wherein they were all in all. Wherein it appeareth, that he hath touched the principall points of Soueraigntie, seeing that they vnto whom he attributeth the same, had the chiefe gouernment of the Commonwealth. But Dionysius [Sidenote 439 - *]Halycarnasseus seemeth thereof to haue written better, and more plainly than the other. For he saith, That king Seruius, to take away power from the Senat, gaue power [ H] to the people, to make and abolish lawes, to determine of peace and warre, to place and displace officers, to heare the appeales of all the magistrats. And in another place speaking of the third trouble which happened in Rome, betwixt the nobilitie and the people, he saith, That Marcus▪ Valerius the Consul showed vnto the people, that it ought to [Sidenote 440 - *] content it selfe, to haue the power to make lawes, to chuse officers, to receiue appeales from all the magistrats, and so to leaue the rest vnto the Senat. Since which time the lawyers haue amplified these rights, and they of later time, much more than they before them, in the treaties which the call The rights of Regaltie, which they haue filled with an infinit number of particularities, such as are common vnto dukes, counties, barons, bishops, officers, and other subiects of soueraigne princes: in such sort that they [ I] call dukes soueraigne princes, as the dukes of Milan, Mantua▪ Ferrara, and Sauoy: yea [Sidenote 441 - *] euen some counties also dukes subiects, being all or most part blinded with this errour; which hath in it a great appearance of truth. For who is there that would not deeme him to be a soueraigne, which giueth lawes vnto his subiects, which maketh peace and warre, which appointeth all the officers and magistrats of his countrey, which imposeth tributes, and at his pleasure easeth whome he seeth good: which hath power of life and death, and in briefe to dispose of the whole Commonweale. All which they before rehearsed, haue power to doe: and what more can a man desire in a Soueraigne prince? For all these are the markes of Soueraigntie. And yet neuerthelesse we haue [Sidenote 442 - *] before shewed that the dukes of Milan, of Sauoy, of Ferrara, of Florence, and of Mantua, [ K] hold all of the empire: and that the most honourable title that they haue, is to be princes and deputies of the empire: we haue also said that they haue their inuestiture from the empire: and that they yeeld their fealtie and homage vnto the empire: in briefe that they are naturall subiects of the empire, and borne in the territories subiect vnto the empire. Then how can they be absolute soueraignes? For how should hee be a soueraigne, which acknowledgeth the iurisdiction of another greater then himselfe? of one which reuerseth his iudgements, which correcteth his lawes, which chastiseth himselfe, if he commit abuse? We haue before shewed that Galeace the first, vicount [Page 155] of Milan▪ was accused, attainted, conuinced, and condemned of treason by the [ A] emperour, for hauing without leaue raysed taxes vpon his subiects, and that hee therefore died in prison. And if any of them shall contrarie vnto the lawes, by force; sufferance, or by vsurpation take vpon them the soueraigntie; are they therefore soueraigns? or shall they prescribe against the fealtie and obedience which they owe vnto their prince? Seeing that they confesse themselues but princes and deputies of the empire. They must then renouce the titles of princes and dukes, of Highnesse and Excellencie, & stile themselues kings, to vse the title of soueraigne maiestie, which they cannot doe, without reuolting from the empire; as did Galuagno vicount of Milan, who therefore endured the grieuous punishment of his rashnesse. We haue also shewed that the cities of Lombardie were subiect vnto the empire. In briefe we had declared also the [ B] intollerable absurdities that should ensue, if the vassals should be soueraignes, especially when they haue nothing but what they hold of another: and that this were nothing else but to make the subiect equall with his lord, the seruant with his maister: he that receiueth the law, with him that giueth the law, him that oweth his obedience vnto him that is to commaund, which seeing they are things impossible, wee may well conclude that dukes, counties, and all they which hold of another man; or that receiue law or commaundement from another, be it by force, or otherwise by contract, are in no wise soueraignes.

The same opinion we haue of the greatest magistrats, of kings Lieutenants general, [Sidenote 443 - *] Gouernours, Regents, and Dictators; what power so euer they haue, if they be bound [ C] vnto the lawes appeales, and commaund of an other man, they are not to be accounted soueraigns. For it behoueth that the markes and recognisances of soueraigntie be such, as that they cannot agree to any other, but to a soueraigne prince: for otherwise if they be to be communicated with subiects, a man cannot say them to be the true markes of soueraigntie. For as a crowne if it be broken in peeces or opened, looseth the name of [Sidenote 444 - *] a crowne; so soueraigne maiestie looseth the greatnesse thereof, if any way bee opened to tread vnder foot any right thereof; as by communicating the same with subiects. And for this cause in the exchange made betwixt king Charles the fift, and the king of Nauarre, for the territories of Mante and Meullan, with Montpellier, wherin the royall rights are articulated, they are said all wholly and alone to belong vnto the king. It is [ D] also by the common opinion of the lawyers manifest, that those royall rights cannot by the soueraigne be yeelded vp, distracted, or any otherwise alienated; or by any tract of time be prescribed against: and therefore Baldus calleth them Sacra Saerorum, of Sacred things the most Sacred: and Cynus Indiuidua, things inseparable, or not to bee diuided. And if it chance a soueraigne prince to communicat them with his subiect, [Sidenote 445 - *] he shall make him of his seruant, his companion in the empire: in which doing he shall loose his soueraigntie, and be no more a soueraigne: for that he onely is a soueraigne, which hath none his superiour or companion with himselfe in the same kingdome. For as the great soueraigne God, cannot make another God equall vnto himselfe, considering that he is of infinit power and greatnes, and that there cannot bee two infinit [ E] things, as is by naturall demonstrations manifest: so also may wee say, that the prince whom we haue set down as the image of God, cannot make a subiect equall vnto himselfe, but that his owne soueraigntie must thereby be abased; which if it be so, it followeth that the administration of iustice, which Aristotle maketh the third part of a Commonweale, is not the true marke of soueraigntie; for that it indifferently agreeeth almost to all magistrats aswell as to the prince: neither in like sort to make or displace officers; for that the prince and the subiect haue both this power; not only in appointing the officers seruants at home, and in time of warre, but euen of the officers, [Page 156] and magistrats themselues, which commaund in peace or in warre. For we read that [ F] the Consuls, in auntient time created the militarie Tribunes, who were as marshals in the armie, and he whome they called the Interrex created the dictator, and the dictator appointed the collonel of the horsemen: & in euery Commonweale where iustice is giuen with fees, the lord of the fee may at his pleasure appoint officers, and without cause displace them againe, if they haue not their offices in recompence of some their deserts. The same opinion we haue of punishments and rewards, which magistrats or captaines inflict or giue vnto them that haue deserued the same, aswell as the soueraigne prince. Wherefore it is no true marke of Soueraigntie to giue reward, or to inflict punishment vnto such as haue so deserued, sith it is common both to the prince and the magistrat: albeit that the magistrat haue this power of the prince. It is also no [ G] marke of Soueraigntie to haue power to consult of the affaires of the state, which is the the proper charge of the priuie Councell, or Senat of a Commonweale; which is alwayes diuided from him which is therein soueraigne; but especially in a popular estate where the soueraigntie lieth in the assemblie of the people, which is alwaies an enemy vnto wisedome and good councell. Whereby it is to be perceiued, not any one thing of those three wherein Aristotle said a Commonweale to consist, to be the true marke of Soueraigntie.

As for that which Dionysius Halycarnasseus saith of Marcus Valerius the Consull, in the Oration which he made vnto the people of Rome, for the appeasing of the troubles then risen betwixt the Senat and them; That the people ought to content themselues [ H] to haue the power to make lawes and magistrats; that is not sufficient to declare a Soueraigntie of power in them, as I haue before declared concerning the magistrats. Yea the power to make lawes is not the proper marke of Soueraigntie, except we vnderstand thereby the soueraigne princes lawes; for that the magistrat may also giue lawes vnto them that are within the compasse of his iurisdiction, so that nothing be by him decreed contrarie to the edicts and lawes of his soueraigne prince. And to manifest this point, we must presuppose that this word Law, without any other addition, signifieth The right commaund of him or them, which haue soueraigne power aboue others, without exception of person: be it that such commaundement concerne the subiects in generall, or in particular: except him or them which haue giuen the law. Howbeit [ I] to speake more properly, A law is the commaund of a Soueraigne concerning all his [Sidenote 446 - *]subiects in generall: or els concerning generall things, as saith Festus Pompeius, as a priuilege concerneth some one, or some few: which law if it bee made by the priuie councel, or Senat of a Commonweale, it is called Senatus consultum, as the priuie councell: [Sidenote 447 - *] or decree of the senat. But if the vulgar people made any such commaund, it was called Plebiscitum, that is to say, The commaund of the meniall people: which after many seditions and sturs, betwixt the Nobilitie and the common people, was in the end called a law. For the appeasing whereof all the people in the assemblie of the great estates, at the request of M. Horatius the Consull made a law, that the Nobilitie and the Senat in generall, and euerie one of the people in particular, should bee bound to [ K] keepe the decrees and lawes which the common people should make, without appealing therefrom; or that the Nobilitie should haue any voyce therein. But forasmuch as the nobilitie and the Senat made small account of such the peoples decrees and ordinances; the aforesaid law was afterward renewed, and againe published, at the instance of Q. Hortentius and Pub. Philo Dictators: From which time forward such the peoples decrees were no more called Plebiscita, but simply laws, whether they concerned euery man in particular, or all men in generall. As for the commaundements of the magistrates, they were not called lawes, but onely edicts. For an Edict (as [Page 157] M. Varro defineth it) is the commaund of a Magistrat; which his commaund bound [ A] [Sidenote 448 - *] none, but them which were of his owne iurisdiction; prouided alwaies that such his cōmands were not contrary vnto the ordinances of the great magistrats, or to the laws and commaundements of his soueraigne prince, and were no longer in force than the magistrat pleased, or had charge. And for that all the magistrats were annuall in the Roman Commonweale, there edicts had not force but for one yeare at the most. And therefore they which succeeded in the same office, were either to allow or reuoke the edicts, by their predecessors before made: & if so be that they were against the laws, or for longer time than the magistratie of him that made them, then were they to none effect: which when C. Verres did, he was in these words accused by Cicero, Qui plurimum (inquit) edicto tribuūt, legem annuam appellāt, tu plus edicto complecteris, quàm lege, [ B] They that attribute most (saith he) vnto an edict, cal it but an annual law; but thou comprehendest more in an edict, than in a law. And for that the emperour Augustus, hauing oppressed the liberty of the cōmonweal, called himself but Imperator (that is to say chief captain & Tribune of the people) he called also his own decrees by the name of edicts: but such as the people made at his request, he called them Leges Iuliae; which maner of speech the other emperors after him vsed also; in such sort, that this word Edict, is by little & litle taken for a law, especially when it commeth out of the mouth of him which hath a soueraigne power; be it for one, or for al, be it an edict perpetual or onely prouisionall. Wherefore they abuse the words, which call edicts which are proper vnto magistrats by the name of laws: but in what sort soeuer that it be, there are none but soueraigne [ C] princes, which can giue laws vnto their subiects, without exception, be it in ge nerall or in particular. But here might some man obiect, That the Senat of Rome had [Sidenote 449 - *] power to make laws, & that the more part of the greatest affaires of estate, in peace or war, were in the power of the Roman Senat to determine of▪ But what the authority of a Senat is, or ought to be in euery Commonweale, we shal in due place declare. But by the way to answere that that is obiected, I say, that the Senat of Rome, from the expulsion of the kings, vntill the time of the emperours▪ had neuer power to make law, but onely certaine decrees and ordinances: which were not in force past a yeare, wherewith for all that the common people were not bound, and so much lesse the whole body and estate of the people. Wherein many are deceiued and especially Conan, who [ D] saith, That the Senat had power to make a perpetuall law: for Dionysius Halycarnasseus, who had diligently read the Commentaries of Marcus Varro, writeth, That the decrees of the Senat had not any force, if they were not by the people confirmed: and albeit that they were so confirmed, yet if they were not published in forme of a law, they then had force but for one yeare. No more than the citie of Athens, where the decrees of the Senat were but annuall, as saith Demosthenes in the Oration which hee made against Aristocrates: and if it were a matter of importance, it was referred vnto [Sidenote 450 - *] the people to dispose thereof as they thought good: which Anacharsis the philosopher seeing merily said, The wise and graue propound matters at Athens, and fooles and mad men resolue thereof. And so the Senat in Rome did but consult, and the people [ E] commaund: For so Liuie oft times saith, Senatus decreuit, populus tussit, The Senat hath decreed, and the people commaunded. Yet true it is, that the magistrats, and namely the Tribunes, oft times suffered the decrees of the Senat, in a maner to haue the force of lawes, if the matter seemed not to impare the power of the people, or to be preiudiciall vnto the maiestie of the estates in generall. For so properly the auntient Romans said [Sidenote 451 - *]Imperium in magistratibus, auctoritatem in Senatu, potestatem in plebe, maiestatem in populo inesse dicebant, Commaund to be in the magistrats, authoritie in the senat, power in the meniall people, and maiestie in the people in generall. For the word [Page 158] Maiestie, is proper vnto him which stirreth the helme of the soueraigntie of a Commonweale. [ F] [Sidenote 452 - *] And albeit that the law Iulia concerning maiestie made by the people at the request of Augustus, hold him guilty (Laesaemaiestatis, or as we say) of treason, which striketh a magistrat in the execution of his office: and that sometime the Latine historiographers, yea and the lawyers themselues also giue the title of maiestie vnto the Consull and Pretor; as in saying, Maiestatem consulis, maiestatem praetoris, The maiestie of the Consull, the maiestie of the Pretor: yet is it but improperly spoken, neither by our lawes is he guiltie laesae maiestatis, that hath hurt a prince, a duke, a countie, or a magistrat: but he onely that hath violated the person of a soueraigne prince. And so by the lawes of Sigismundus Augustus king of Polonia, made in the yeare 1588, it is set downe that the crime Laesae maiestatis, should take no place further than his owne [ G] person; which is according to the true signification of laesa maiestas. And for this cause it seemeth that the dukes of Saxonie, of Bauaria, of Sauoy, of Loraine, Ferrara, Florence, and Mantua, put not into their stiles of honour, this word Maiestie, contenting themselues with the title of Highnesse: and the duke of Venice with the addition of [Sidenote 453 - *] his Serenitie, who (to speake properly) is but a verie prince, that is to say, the first, for hee is nothing else but the first of the gentlemen of Venice: and hath no more aboue the rest of the Senators, than the chiefe place and dignitie of the Commonweale in all their assemblies, wherein he sitteth as chiefe; and the concluding voyce into what corporation [Sidenote 454 - *] or colledge he come, if there be any question of voyces. And as in Rome the edicts of the magistrats bound euery man in particular (so that they were not contrary [ H] to the decrees of the Senat) and the decrees of the Senat in some sort bound the magistrats (if they were not contrarie to the ordinances of the common people) and the ordinances of the common people were aboue the decrees of the Senat; and the law of the whole bodie and estates of the people, was aboue all the rest: euen so in the Venetian Commonweale, the decrees of the magistrats bind euerie man in particular, according to the precinct and iurisdiction of euerie magistrat: but the corporation and colledge of the Decemuiriis aboue particular magistrats: the Senat is aboue the Decemuiri, and the great Councell (which is the assemblie of all the gentlemen of Venice) hath the power of soueraigntie, containing the Senat, and all the rest of the magistrats, within the power of the commaund thereof, in such sort, that if the Decemuiri bee diuided [ I] with euen voyces, they appeale vnto the councell of the Sages, consisting of xxii, who if they cannot agree, the Senat is assembled, and if the matter concerne the high points of soueraigntie, as is the maiestie of the Commonweale, then it is referred vnto the great Councell. And therefore when any thing is decreed by the Decemuiri these words are ioyned vnto the decree, In consiglio Di Dieci: whereunto if the colledge of Sages be ioyned, there is also commonly added, Con la Giunta, but if it be a decree of the Senat, it is declared in these words, In Pregaidi: but if it be in the great assemblie of the gentlemen of Venice, these words are commonly adioyned thereunto, In Consiglio Magiore. For in these three corporations or colleges, are almost all things dispatched which belong vnto their lawes, their customes, and Commonweale, except such [ K] matters which the Septemuiri (the most secret councell of the State) vse by themselues to determine. It is therefore but by sufferance that the Decemuiri or the Senat make decrees and ordinances, which for that they are found iust and reasonable, they passe sometime into the force of law, as did the edicts of the auntient Roman Pretors, which if they were equall and iust, their successours kept them: and so by tract of time were receiued as lawes; yet for all that was it alwayes in the power of the new Pretors to make others: neither were they bound to obserue or keepe them of their predecessors. But Iulian the lawyer gathered a great number of such of these edicts of the former [Page 159] Pretors, as he thought best, and after that he had interpreted them, and brought them [ A] [Sidenote 455 - *] into ninetie bookes, he gaue the same vnto the emperour Adrian for a present; who in recompence of so great a worke, made him great Prouost of the citie of Rome, and thereby made way for his nephew Didius Iulianus, afterwards to aspire vnto the Roman empire. Adrian himselfe also perswaded the Senat, that not onely the edicts which Iulian had gathered, but other his owne writings should bee taken for lawes, which he confirmed also by his authoritie, and yet neuerthelesse still held the name of edicts, which hath deceiued many, who haue accounted those lawes as Pretors edicts. So also Iustinian the emperour, to the example of Adrian, by decree commaunded many things which the lawyers had after Iulian written vnto the Pretors decrees (after they had bene by him as he thought good corrected) to be receiued for laws, the name [ B] of edicts still remaining, being yet indeed nothing lesse than edicts, but lawes aswell as those which euery soueraigne prince in his owne Commonweale by the decrees of his lawyers and courts, hath commaunded to be receiued for lawes; as it oft commeth to passe in this realme, that the kings seeing diuers ordinances and decrees of parliament most equall and iust, haue confirmed the same, and caused them to be published, and to passe in force of lawes; to show that the power of the law lyeth in him that hath the soueraigntie: and which giueth force vnto the law by these words, Sancimus Iubemus, We ordaine and commaund; which are words proper vnto soueraigne maiestie, as saith the Consull Posthumius, in the oration which he made vnto the people, Nego iniussu populi quicquam sanciri posse, quod populum teneat, I deny that any thing can bee [ C] ordayned without the peoples commaund, that can bind the people. The magistrat also presenting his request vnto the people, for the enacting of a law, commonly began with these words, Quod bonum, faustum, foelixque sit vobis ac Reipub. velitis, Iubeatis, Will you, and commaund you, that which may be good, happie, and fortunat, to you, and the Commonweale. And in the end of the law are still these words, Si quis aduersus eafecerit, &c. If any man shall do against these things, &c. Which they called Sanctio, that is to say an ordaining or enacting, declaring the punishments or rewards due vnto them that should keepe or breake the law: which are speciall formalities and proper vnto the maiestie of them which had the power to make the law; but neuer vsed by the Senat in their decrees, nor by the magistrats in their edicts. Ioyne hereunto [ D] also, that the penaltie annexed vnto the lawes of a soueraigne prince, is farre different from that which is ioyned vnto the decrees or ordinances of magistrates, or of corporations and colledges, which haue certaine limited penalties and fines, for the most part concluded by a mercement or forfeit of money, or with whipping chere: For there is none but the soueraigne prince, which can vnto his edicts ioyne the paine of death, as it hath bene also forbidden by an auntient act of parliament, and the clause of arbitrarie punishment ioyned vnto the ordinances and decrees of magistrats and gouernours, which euer inclusiuely extended vnto death.

Wherefore let this be the first and chiefe marke of a soueraigne prince, to bee of [Sidenote 456 - *] power to giue lawes to all his subiects in generall, and to euerie one of them in particular, [ E] (yet is not that enough, but that we must ioyne thereunto) without consent of any other greater, equall, or lesser than himselfe. For if a prince be bound not to make any law without consent of a greater than himselfe, he is then a verie subiect: if not without his equall, he then hath a companion: if not without the consent of his inferiours, whether it be of his subiects, of the Senat, or of the people, hee is then no soueraigne. And as for the names of Lords and Senators, which wee oftentimes see ioyned vnto lawes, they are not thereunto set as of necessitie to giue thereunto force or strength, but to giue vnto them testimonie and weight, as made by the wisedome and discretion of [Page 160] the chiefe men, so to giue them the better grace, and to make them to bee the better receiued; [ F] and not for any necessitie at all. For we find the most auntient edicts of Saint Denys in Fraunce, of Philip the first, and of Lewes the Grosse; whereunto the names and seales of the Queenes Anne and Adella, as also of Robert and Hugh are annexed: And namely in the twelft yeare of the raigne of Lewes the Grosse, and of Adella the sixt.

Now when I say that the first and chiefe marke of Soueraigntie is for the prince to [Sidenote 457 - *] be of power to giue lawes vnto all his subiects in generall, and to euerie one of them in particular: these last words concerne priuileges, which only belong vnto soueraigne princes to graunt, and particularly to others, to whome they be graunted. A priuilege I call a l•…]w made for one, or some few particular men: whether it bee for the profit or [ G] disprofit of him or them for whome it is graunted. For so speaketh Cicero, Priuilegiam [Sidenote 458 - *]de meo capite latum est, A priuilege was made concerning my life, he meaneth the law made against him by the common people at the motion and instigation of Clodias the Tribune, (to haue him called to account for certaine citisens put to death contrarie to their appeale, about the conspiracie of Cateline) which he in many places calleth Lex Clodia, or a Law made by Clodius, whereof he oftentimes most grieuously complained, both in the Senat and before the people, saying, That by the law of the xij Tables it was forbidden any priuileges to be graunted, but Comitijs Centuriatis, that is to say, in the generall assembly of the whole bodie of the people. For so be the words of the law, Priuilegia nisi comitijs centuriatis ne irroganto; qui secus faxit capital esto, Priuileges [ H] let them not be graunted but in the greatest assemblies of the people; and hee that shall otherwise do, let it be vnto him death. As for such priuileges as bring profit and commoditie to them to whome they be graunted, they are more truely called benefits. And in this all that haue written of Royalties agree, that it belongeth not to any, but vnto a Soueraigne, to graunt priuileges, exemptions, immunities, and to dispence with the edicts and ordinances of other former princes: howbeit that priuileges in monarchies haue not bene vsed, but onely for the tearme of the life of the monarch himselfe that graunted them: as Tiberius the emperour made them all to know which had obtained any priuileges from the emperour Augustus, as Suetonius writeth. But now if any shall obiect vnto me, the magistrats themselues to discharge men oftentimes [ I] of the lawes: and the Senat of Rome to haue so oftentimes done. I will aunswere him as did Papinian the lawyer, That we are not to consider what is done at Rome, but what ought indeed to be there done. For by the tribunitiall law Cornelia, the Senat is forbidden to discharge any Roman of the lawes, except there were two hundred of the Senators▪ present: which exemption from the laws seemeth also to haue bene granted vnto the Senat, by reason of the difficult assembling of the whole people.

But some man may say, that not onely the magistrats haue power to make edicts and lawes, euerie one according to his authoritie and iurisdiction, but also that particular men make customes, both generall and particular. Which customes haue almost the force of lawes, and yet depend not of the iudgement or power of the soueraigne [ K] prince, who as he is maister of the law, so are particular men maisters of the customes. Whereunto I answere, that custome by little and little take force; and in many yeres [Sidenote 459 - *] by the common consent of all or most part; but the law commeth forth in a moment and taketh strength of him which hath power to commaund all: custome creepeth in sweetly and without force, whereas the law is commaunded and published with power, yea and oftentimes contrarie to the good liking of the subiects. For which cause Dion Chrisostome compareth the law to a tyrant, and custome to a king. Moreouer the power of the law is much greater than the power of custome: for customes [Page 162] are by lawes abolished, but not lawes by customes; it beeing alwayes in the authoritie [ A] and power of the magistrat againe to put in execution such lawes as are by custome almost out of vse. Custome also propoundeth neither reward nor punishment, whereas the law alwayes carrieth with it either the one or the other, if it be not a law permissiue, which easeth the penaltie of another law: and in briefe custome hath no force but by sufferance, and so long as it pleaseth the soueraigne prince, who may make thereof a law, by putting thereunto his owne confirmation: whereby it is to be scene, that all the force of lawes and customes lieth in the power of him that hath the soueraigntie in a Commonweale.

This then is the first and chiefest marke of Soueraignty, to be of power to giue laws [Sidenote 460 - *] and commaund to all in generall, and to euerie one in particular; which cannot bee [ B] communicated vnto subiects. For albeit that a soueraigne prince giue power to any one to make lawes, of such strength and vertue as if he himselfe had made them: as did the people of Athens to Solon, and the Lacedemonians to Lycurgus: yet were these lawes neither the lawes of Solon nor Lycurgus, who were but as commissioners and procurators for them which had giuen them that charge; but they were the lawes of the Athenians, and Lacedemonians: neither had these lawes had any force, had not the people by their consent authorised the same. They indeed wrot those lawes, but the people commaunded them; they composed them, but the people enacted them. And almost alwayes in a Popular or Aristocraticall state, the lawes tooke name of him which propounded or engrossed the same, who was nothing els but the simple procurer [ C] thereof: the confirmation of the same being from him which had the soueraigntie. So when the Decemuiri by the people created at Rome for the making of lawes without appeale, had sent ambassadours into Greece, to amplifie their lawes, and in xij tables comprehended the best of them, they commaunded all the people to bee called together, to behold and consider of those lawes publikely set vp: and so at length after three Faire dayes (the vsuall time appointed for the establishing of laws) the people in their greatest and generall assembly, commaunded, or rather enacted them to stand for laws. But vnto what power it belongeth to make a law, vnto the same also it appertaineth to abrogat or derogat from the same. Vnder this power of making & of abrogating of the law, is also comprised the declaration & correction of the same, when it is so [ D] obscure, that the magistrats vpon the cases propounded find contratietie or intollerable absurdities, yet may the magistrat according vnto right and reason also interpret the laws, & encline them either vnto lenitie or seueritie: so that he beware that in bending them too much, he breake them not; yea although that they seeme vnto him hard or vniust: but let him heare what Vlpian saith, Duralex, sic tamen scripta est, An hard law [Sidenote 461 - *] (saith he) but so it is written: which if the judge shall presume vnder the colour of equitie to breake, he is by the law condemned of infamie. So ought the law called Laetoria, (or rather Praetoria) to be vnderstood, which Papinian reciteth, without naming of the author. Wherby it is permitted vnto the Great Praetor of the citie of Rome, to supply, to correct or amend the laws: which must (as we said) be moderatly & in a measure [ E] done: for if a man should otherwise vnderstand it, it should thereof follow, that a simple magistrat should be aboue the lawes, if hee might at his will and pleasure alter and infringe the same: and also that he might bind both the people and the prince vnto his edicts; which we haue before showed to be a thing impossible.

Vnder this same soueraigntie of power for the giuing and abrogating of the law, are [Sidenote 462 - *] comprised al the other rights & marks of soueraignty: so that (to speak properly) a man may say, that there is but this only mark of soueraigne power, considering that all other the rights thereof are contained in this, viz. to haue power to giue lawes vnto all and [Page 163] euerie one of the subiects, & to receiue none from them. For to denounce warre vnto [ F] [Sidenote 463 - *] the enemie, or to make peace with him, although it seeme to be a thing different from the name of the law, yet is it manifest these things to bee done by the law, that is to say by the commaundement of the soueraigne power. So also is it proper vnto soueraigne maiestie, to receiue the subiects appeales from other, and the greatest magistrats, to place and displace the greatest officers, charge or exempt the subiects from taxes and subsidies, to graunt pardons and dispensations against the rigour of the law, to haue power of life and death, to encrease or diminish the valour and weight of the coyne, to giue it title, name, and figure: to cause all subiects and liegemen to sweare for the keeping of their fidelitie without exception, vnto him to whome such oath is due: which are the true markes of soueraigntie, comprised vnder the power of being able to giue a [ G] law to al in generall, and to euery one in particular, and not to receiue any law or commaund from any other, but from almightie God onely. For a prince or duke who hath power to giue lawes vnto all his subiects in general, & to euery one of them in particular, is yet no soueraigne, if he receiue his power from the emperour, the pope, or the king, or any other greater than himselfe: or yet haue a companion in his gouernment, a companion I say, for that he seemeth in a manner to haue a superiour or maister, which hath a companion, without whose helpe and consent hee can commaund and doe nothing: much lesse is he a soueraigne, if hee bee another mans lieutenant or deputie.

But forasmuch as the word Law, is too general a marke, it is the more expedient particularly [ H] [Sidenote 464 - *] to specifie the rights of Soueraigntie, comprised (as I haue said) vnder that soueraigne law; as to denounce warre, or treat of peace, one of the greatest points of soueraigne maiestie: for that oftentimes it draweth after it the ruine, or assurance of a Commonweale; which is to be verified not onely by the law of the Romans, but of al other nations. And for that there was more daunger to be feared from warre, than from peace, it was lawfull for the common people of Rome, to commaund peace, but if question were for making of warre, it might not be decreed, but in the greatest assembly of all the states together, vntill such time as that the meniall people had also full power to make lawes. And therefore was it that warre was decreed against Mithridates by the law Manilia, against the pirats, by the law Gabinia, against Philip the second, [ I] king of Macedon, by the law Sulpitia: peace was also made with the Carthaginensians, by the law Martia. And for because Caesar had without commaund of the people made warres in Fraunce, Cato Vticensis was of opinion in the Senat, that the armie was to be called home, and Caesar for his presumption deliueted vnto the enemie. In like case the estates of the people of Athens determined of warre and peace. As a man may see by the war by them decreed against the Megarians, against the Syracusians, and against the kings of Macedon. I here but briefly set downe certaine examples of two of the greatest and most famous popular Commonweales that euer yet were: For in a regall state there is none (as I suppose) which doubt all the power of peace and warre to be in the king: insomuch as that for any man to attempt euen the [ K] least thing therein without the kings commaund, is vnto the dooer thereof dangerous, if the king might thereof haue before bene aduertised: and what charge soeuer that they giue vnto their deputies or commissioners, to entreat of peace or of alliance, yet consent they vnto nothing, without the aduertising of the king; as was to be seene in the last treaty of Cambray, betwixt the French king & the king of Spain; the cōmissioners on the kings behalfe writ to him from howre to howre, the whole proceedings both of the one part and of the other. But in popular or Aristocraticall estate, we oft times see that after the warre is once denounced, it is then managed by the aduise of the Senat, or [Page 162] priuie counsell onely: yea and sometimes by the aduice of one onely captaine also: [ A] [Sidenote 465 - *] for that nothing is more dangerous in warre, than to haue the secret pollicies thereof reuealed: which must needes be, if the people haue therein to doe. And therefore we read in the Greeke and Latine histories the designes and enterprises of warre to haue beene still managed by the wisdome and direction of some one or other captaine, or in case that the matter were of greater importance and consequence, by the counsell of the Senate, without any more speaking thereof vnto the people, after it was once by the peoples commaund denounced and proclaimed against this or that enemie. But if one should say, warre to haue beene oftentimes denounced by the advice of the Senate, without the consent or commaund of the people: I confesse it to haue sometimes indeed so happened and fallen out, but yet very seldome: and that the Senate in so doing [ B] did vsurpe the maiestie of the people: which was the cause, that the Tribunes of [Sidenote 466 - *] the people, and faithfull keepers of their libertie, oftentimes interposed themselues to crosse the matter, as we see in Liuie, where he sayth: Controuersia fuit vtrum populi iussu indiceretur bellum, an satis esset S. C. peruicere Tribuni, vt Q. Consul de bello adpopulum ferret, omnes Centuriae iussere. Controuersie was (sayth he) whether war should be denounced by the commaundement of the people: or els that the decree of the Senate was sufficient, but the Tribunes preuailed; so that Quintus the Consull propounded the matter vnto the people, which all the assembly of the people commaunded. Howbeit, that the Senat it selfe would not ordinarily denounce war, except the people had before so decreed, As T. Liuius speaking of the second Carthaginensian war, sayth, [ C]Latum inde adpopulum vellent iuberent, populo Carthaginensi bellum indici: It was afterward [Sidenote 467 - *] propounded vnto the people, whether they willed and commaunded war to be denounced vnto the people of Carthage. And in another place, Ex S. C. populi iussu bellum [Sidenote 468 - *]praenestinis indictū. By a decree of the Senat, by cōmandement of the people war was proclaimed against them of Praeneste. And againe, Ex authoritate patrum populus Palaepolitanis [Sidenote 469 - *]bellum fieri iussit, The people following the authoritie of the Senat, commaunded [Sidenote 470 - *] warre to be made against them of Palaepolis. And afterward, Populus bellum fieri Aequis iussit, The people commaunded warre to be made against the Aequi. And at such time as warre was to be vndertaken against the Samnites, Patres solemni [Sidenote 471 - *]more indicto decreuerunt, vt ea de re adpopulum ferretur, The fathers after the solemne [ D] manner decreed, that concerning that matter it should bee referred vnto the people: Where Liuie in calling it the solemne manner, declareth it to haue bene a thing so vsed to be done. And so against the Herniques, * Populus hoc bellum frequens iussit, The [Sidenote 472 - *] people in great number commaunded this warre. And against the Vestines, * Bellum ex authoritate patrum populus aduersus vestinos iussit, The people following the authoritie of the Senators commaunded warre to be made against the Vestines. The like manner of denouncing warre was also amongst the Tarentines, so long as their popular state endured. For so saith Plutarch, Ex authoritate Senatus populum Tarentinum Romanis in ferri bellum iussisse, The people of Tarentum following the authoritie of the Senat, to haue commaunded warre to bee made against the Romans. And Liuie [ E] speaking of the Aetolians, which were gouerned by a popular gouernment, saith it to haue bene by their lawes forbidden, that any thing should bee determined concerning peace and warre, but in the Panaetolian and Pylaican counsell. And for that the nobilitie of Polonia, Denmarke, and Sweden, pretend the right of Soueraigntie to belong vnto them, it is not lawfull for their kings without their authoritie and consent either to denounce warre, or to vndertake it being denounced against them, except in case of urgent necessitie, according to the order of Casimire the great. True it is that in Rome concerning peace the Senate oftentimes determined thereof without the consent of [Page 163] the people; as we may see in all the treaties of peace betwixt the Romane and the Latines: [ F] and in the confederats warre the Senate passed all the treaties of peace and alliance without the people, viz. in the tumult and vprore of Italie: least the hard assembly of the people, and danger of delay, might haue brought some detriment vnto the Commonweale. Yea sometimes the generals and great commaunders in the warres, of themselues determined of peace and warre, without the commaundement of the [Sidenote 473 - *] people or Senate, especially if the warres were in some countrey a farre off: as wee see in the second warre of Carthage, the three Scipioes made all the treaties of peace and alliance with the people and princes of Spaine and Affricke, without the aduise of the Senat. Yet true it is, that the Senate, yea and oft times the people authorised their actions, and ratified their treaties, after that they were made: and if they were in anie thing [ G] preiudiciall vnto the estate, had ofthem no regard. In which case the hostages and captaines yeelded vnto the enemie, were at their owne perill to answer the matter. As the Consull Mancinus, who for that the peace he had made with the Numantines, was reiected and not ratified by the Senate and the people, was himselfe deliuered unto the [Sidenote 474 - *] enemie. And that is it which a certaine Senatour of Carthage, as Liuie reporteth by way of exprobration obiected vnto the Romane embassadours, saying, Vos cum Luctatius Consul primò nobiscum fedus icit, quia neque authoritate Patrun, nec populi iuss•…] ictum erat, negastis vos eo teneri. Itaque aliud foedus publico consilio ictum est. You at such time as Luctatius the Consull first made peace with vs; for that it was made without the authoritie of the Senat, or commaundement of the people, said you were not therunto [ H] bound: and therefore another peace was by your common councell made. And the same author speaking of Manlius the Proconsull of Asia saith, Gallograecis bellum illatum, non ex Senatus authoritate, non populi iussu: quod quis vnquam de sua sententia facere ausus est? Warre was made vpon the Gallogrekes, neither by the authority of the Senat, nor the commaund of the people, which what man durst of himselfe euer do? But this was Orator like spoken by the aduersarie against Manlius being absent; for that it was sometime so done, we haue by examples declared. Spurius Posthumius the Consull, also being himselfe with his armie shut vp in the Straits and rockes of the Appennin mountaines, in daunger with hunger to perish, before hee could haue heard from the Senat or the people, what they would haue had him to haue done; to deliuer [ I] himselfe and the Roman armie out of those straites, of himselfe made peace with the enemie, though vpon verie hard and dishonourable conditions. But when he with his armie disarmed, was returned to Rome; the Senat and the people reiected the peace with the conditions by him accepted. Yea Posthumius the Consull himselfe, in the assembly of the people said, Cùm me seu turpi, seu necessaria sponsione obstrinxi, qua tamen, quando iniussu populi facta est, non tene tur populus Romanus, nec quicquam ex ea praeter Corpora nostrae debentur Samnitibus, dedamur per faeciales nudi vinctique, Seeing that I haue bound my selfe, whether it be with a shamefull or a necessarie promise and agreement, wherewith for all that the people of Rome is not bound, forasmuch as it was without their commaundement made, neither is there any thing thereby vnto the [ K] Samnites due, more than our bodies; let vs naked and bound be so yeelded vnto them. So the Consull called it not a treatie of peace, but a simple or necessarie promise. And in truth the enemies had caused the Consull and all the captaines and lieuetenants of the army to sweare, and further taken sixe hundred hostages, al which they might haue put to death, if the people would not confirme the agreement taken; in which making they yet committed one grosse ouersight, in that they bound not all the souldiers in the armie by oath to returne into those straits and enclosures of the mountaines, and euen into the same state they were before, or els to yeeld themselues all prisoners, in case the [Page 165] people would not confirme the agreement by them made; which had they done, no [ A] doubt but that the Senat and the people would haue sent them againe into the same state they were, as they did the Consull, with the sixe hundred sworne hostages, whom for all that, the Samnites refused to receiue of the herauld. For in like case after the great ouerthrow by the Romans receiued at Cannas, when Hanniball had sent eight thousand souldiers, there taken prisoners, to Rome, to redeeme their libertie with the ransome of a pound of gold for euery head; and that the Senat would not agree thereunto, but decreed, that they should either become the enemies slaues, or die: the Consuls charged those souldiers, before the appointed day to returne vnto the enemie; who all obeyed their commaund, but one, who by a craftie wile sought to delude the oath, before by him giuen vnto the enemie for his returne; whome the Senat for all that [ B] sent bound hand and foot vnto Hannibal. Or if it had seemed too hard a thing vnto the Senat, to haue yeelded the whole army being sworne vnto the Samnites, they would vndoubtedly yet haue confirmed those hard conditions of peace by them agreed vpon. As did Lewes the xij, the French king, in the treatie made at Dijon by the lord Trimouille with the Swissers, giuing them hostages of the chiefest men of his army, with condition that the Swissers might put them to death, if the king should not ratifie the agreement with them made. As did the duke of Aniou vnto the hostages which those which were besieged in the castle of Eruall had giuen him: when he saw that Robert Knolles, captaine of the castle, being arriued within the castle, after the agreement, would by no meanes suffer the castle to be surrendred, saying, That the besieged [ C] without him could couenant nothing: and so also caused the prisoners that he had taken to be beheaded▪ For otherwise, if it were lawful for captains to entreat or conclude of peace at their pleasure, without expresse commaundement or ratification, they might bind both people and soueraigne princes, vnto the pleasure and appetite of their enemies, and such hard conditions as they pleased: a thing most absurd and vnreasonable, seeing that a common aduocat may not in the least matter of another mans, come to agreement, without expresse charge from him whome it concerneth.

But some may say, that these rules take no place in Venice, where the Senat doth wholly discerne and determine of peace and warre, neither amongst the customes of the Swissers and Grisons, which are popular estates. And in the conuersion of the [ D] Florentine Commonweale, from the nobilitie vnto the popular estate, it is in one article especially prouided, that the people shall haue to do with nothing, but with making of lawes, creating of magistrats, and the common treasure; as for peace and warre, and other things concerning the soueraigntie of the state, should be wholly in the power of the Senat. Whereunto we haue before said, that Popular and Aristocraticall estates [Sidenote 475 - *] cannot if they would, well manage martiall affaires, for the hard assembling together of the people: and in case that the people might be at all times assembled, yet were it a thing of great perill and daunger, to haue those things which ought of all others to bee most secret in a Commonweale, the councels (I say) of peace and warre, reuealed and made knowne vnto the Vulgar people: which therfore were of necessitie to be left vnto [ E] the Senat, yet the power of peace and warre cannot be taken from the nobilitie or people in either state, the soueraigne maiestie thereof saued. And albeit that the people giue the charge thereof vnto the Senat, yet a man knoweth right well, that the commissions and mandats which are giuen out for such purpose, depend of the authority of the people, and vnder the peoples name are put in execution by the Senat, which is but the peoples procurator and agent, taking authoritie from the people, as all other their magistrats doe. As for monarchies, it is without any question that the resolution of peace and warre dependeth of the soueraigne prince, if the estate bee a pure monarchie, [Page 166] For the kingdome of Polonia, Denmarke, Sweden, and Norway, as they are [ F] states changeable and vncertaine, as the nobilitie is stronger than the prince, or the prince than the nobilitie: the resolution of peace and warre so dependeth of the nobilitie, as that the state seemeth to be rather Aristocraticall than regall. And therefore the names of their dukes, marquesses, counties, gouernours, and councellors, commonly to be in their leagues expressed, and their seales thereto annexed: as the peace betwixt the Polonians and the Prussians, made by king Sigismundus Augustus was sealed with an hundred and three seales of the nobilitie of his countrey: neither was there fewer in the act of the lawfull creation of king Henry to be king of Polonia.

The third marke of Soueraigne maiestie is to be of power to create and appoint [Sidenote 476 - *] magistrats, than which no more certaine signe can be, especially the principall officers, [ G] which are not vnder the commaund of other magistrats. This was the first law that Tublius Valerius made after the expulsion of the kings out of Rome: that the magistrats should be chosen and appointed by the people. Which selfe same law was published also by the Venetians, at such time as they first assembled into the Gulfe, for the establishing of their state, as Contarenus writeth: than which law there is none more religiously kept by the Senat and the Venetian people. Yet much better is it kept in monarchies, where all is gouerned by one, and where the greatest, the meaner, yea and the least offices of all, as of Porters, Sergeants, Clarkes, Trumpeters, Criers, which in the Roman state were placed and displaced by the Roman magistrats are prouided for by order from the prince, euen vnto the meanest offices. I haue said the appointing of [ H] princes officers, that is to say, of the chiefe magistrats, for there is no Commonweale, where it is not permitted vnto greater magistrats, as also to many corporations and colledges, to make certaine meniall officers vnder them: as I haue before showed of the Romans. But yet that they doe by vertue of the office, which they hold, and as proctours created with power, to substitute other their deputies vnder them. We see also that clients and vassals, albeit that they hold their iurisdiction of some soueraigne prince in fealtie and homage, haue neuerthelesse power to establish judges and officers in their iurisdiction: but yet this power is giuen them by some soueraigne prince. For no doubt dukes, marquesses, counties, barons, and lieutenants of countries, were no other of their first institution but judges and officers; as we shall in due place declare. [ I] But sometimes in a popular estate power is giuen unto the greater magistrats to create the lesser; as we read that the people of Carthage had a custome to make fiue magistrats, [Sidenote 477 - *] for to make choyce of the hundred and foure magistrats of the Commonweale; as they do also at Nuremberg, where the Censors which are chosen of the great Councell, chose the new Senators, and that done, giue vp their charge. The Senate which is of xxvj, making choyce of the eight Auntients: and afterward of the xiij of the seuen Burgamasters, and of the xij Iudges for ciuill causes, and fiue for criminall. Neither is this any new matter; but an old and auntient fashion. For Aristotle writeth, the people of Carthage to haue vsed to chuse fiue men, who according to their discretion still made of the hundred and foure magistrates: which was also a thing ordinarie [ K] vnto the Roman Censors, who by their discretion supplied the number of the Senators, which the Consuls did before by the sufferance of the people, who from the beginning made them, as Festus Pompeius saith. And sometime the dictators were for that purpose onely made to supply the number of the Senators. As Fabius Buteo named Dictator by the Consull Terentius, following the decree of the Senat, made choyce at one time of an hundred seuentie seuen Senators, in stead of them that were dead. Howbeit that to speake properly, a Senator is no magistrat, as we will show in the discourse concerning the Senat. But howsoeuer that it was, whether it were the [Page 167] Consuls, the Dictators, or Censors, that made choice of the Senators, & so supplied the [ A] Senat, they did it not but by the power of the people, which was also to be reuoked at the peoples pleasure. So may we also say of the Turkes Cadelesquires, which are as the kings two great Chauncelours, who haue power to place and displace all the Cadies and Paracadies, that is to say, the judges and their deputies. And in Aegypt, in the time of the Sultans gouernment, before it was by Selymus the first conquered, the great Edegnare, which was a Cunstable to the Sultan, had power to place all the other officers: as had in auntient time the Grand M. of the Pallace in Fraunce. And it is not long ago but that the chauncelour of Fraunce had power at his pleasure to bestow all offices which had none, or but some little fees, viz. of some three or foure crownes at the most: which was reuoked by king Francis the first. And albeit that alwaies the [ B] chauncelor, the great Edegnare, and the Grand M. of the pallace, had all their power from the kings and Sultans, as by them placed: yet was so great power verie daungerous vnto the former kings and Sultans, which by little and little haue since beene cut so short, as that in the raigne of Charles the seuenth, the verie baylieffes and seneschals were placed by the prince, who before were wont to be placed by the maiors, whose lieutenants they were. Sometime also it may be that magistrats, corporations, or colleges, haue power to nominat and chuse the principall magistrats: as we read in the records of the court of Paris, that by a law made in the yeare 1408, it was decreed that the officers of the high court of parliament should be made by election; and so therevpon commaundement was giuen vnto the chauncelour to go into parliament for the election [ C] for the offices vacant. Which law was againe reuiued by king Lewes the xj, in the yeare 1465. And after him in the time of Charles the eight, not only the presidents, the kings councellors, and aduocats, were made by election, but euen the kings atturney generall (who is the onely man of all the body of the court, which oweth not oath but to the king alone: albeit that the atturneyes of other parliaments, which he calleth substitutes, take their oath in the court) was chosen also by the suffrages of the court: In the yeare 1496. But yet all their letters of prouision & confirmation of their elections into their offices, then were, and yet are, alwayes graunted by the king▪ without whose confirmation their election was to no purpose. Which may serue for aunswere to that which one might say, that Arthure duke of Bretaigne, was chosen Cunstable [ D] of Fraunce, by the voyces of all the princes, of the great Councell, and of the parliament in the yeare 1324. For albeit that the king Charles the sixt, was then distraught of his wits, & that the seales of France had in them not the image of the king, but of the queene onely: yet neuerthelesse the said new constable taking vpon him the gouernment of the kings sword, and of the French armie, being sworne to the keeping of the lawes, at the same instant acknowledged himselfe to hold his office and power in fealtie and homage of the king: so that all authoritie and power to commaund, may well seeme to flow and be deriued from the fountaine of the prince onely.

Yet may some say that the Great Palatine of Hungarie, who is the greatest magistrat [Sidenote 478 - *] of that kingdome, and the kings lieutenant generall, is chosen by the estates of the [ E] countrey: it is true; but yet his prouision, institution, and confirmation, belongeth vnto the king, who is the chiefe head and author of his power. Howbeit that the estates of the kingdome of Hungarie, yet pretend to haue the right to make choyce of their kings; the house of Austria maintaining the contrarie. And it seemeth that the kings haue by sufferance passed it ouer, that the estates should still haue the chusing of the great Palatine, so to cause them to forget the election of the king. Whereunto for all that they haue beene so obstinatly wedded, as that they haue thosen vnder the colour of protection, to put themselues vnder the Turkes slauerie, rather than to haue this [Page 168] power for the choyce of their kings (by the house of Austria) wrested from them. It is [ F] not therefore the election of great officers which declareth the right of soueraigntie; but the princes approbation, ratification, and confirmation, without which the magistrat is of no power at all. Yet if such creation of magistrats were by the founders of Commonweales, and law makers, so giuen vnto the people, or colleges, as that they could not from the people or colleges be taken, then truly the prince should not haue the right of soueraigne maiestie or power: for that the magistrats power were not to be attributed vnto the prince, but to the people; as by little and little it happened vnto the kings of Polonia. For when as by a law made by Sigismundus Augustus, all the magistrats of euerie countrey, were to be chosen by the particular states of euery gouernment; the maiestie of the kings, who also raigned by the good [ G] liking of the people, was therby much impaired. Which confirmation of magistrats so chosen, is no new thing; for euen from the time of the Gothes we read in Cassiodorus, that Theodoricus king of the Gothes, gaue his letters of confirmation vnto the officers whome the Senat had chosen; vsing these words in his letters directed vnto the Senat, for one whom they had made a Senator, Iudicium vestrum P. C. noster Comitatur [Sidenote 479 - *]assensus, Our consent, Reuerent fathers, doth accompany your iudgement. Now seeing that power to commaund ouer all the subiects of a Commonweale belongeth vnto him that holdeth therein the soueraigntie; it is good reason also that all magistrats should acknowledge their authoritie to proceed from him.

But now let vs speake of the fourth marke of Soueraignetie, that is to wit, of the Last [ H] [Sidenote 480 - *]Appeal, which is and alwayes hath beene one of the most principall rights of soueraignetie. As a man may see after that the Romaines had driuen out their kinges: not onely the last Appeal, but euen all Appeales from the Magistrates, were by the Law Valeria reserued vnto the people. And for that the Consuls and other Magistrates oftentimes gaue small eare vnto them that did appeal vnto them, the same Law was often times* renewed: and by the Tribunitiall law Duillia the paine of death adioyned [Sidenote 481 - *] there vnto, for him that should oppose himselfe against the same; which Law Liuie calleth the foundation of the popular libertie: albeit that it were euill executed. The same Law was yet more straitly kept in Athens, where the last Appeal was reserued vnto the people, not onely from the Magistrates of the citie, but euen from the Magistrates [ I] of their allies and fellowes also: as the writings of Zenophon and Demosthenes do right well declare. The same Law Contarenus writeth to haue been the first that was by the Venetians made for the establishing of their Commonweale: viz. That all men might freely appeal from the Magistrates, vnto the Graund counsell of the people. Nether was Francis Valori Duke of Florence for any other cause slaine, then for not hauing giuen way vnto the Appeal, made from him vnto the Great counsell of the people, by three Florentines by him condemned to die, and so notwithstanding their appeal by him executed. But some may say, that not onely this Duke at Florence, but at Rome the Dictators, and other Magistrates also oftentimes put to death condemned citisens, notwithstanding their appeal made vnto the people, as is in many [ K] histories to be seene. Whereof there was an heauie example made by the Senate of Rome, which caused the remainder of the Legion sent to Rhegium being taken and brought to Rome, to be whipped and afterward beheaded without regard of the appeales by them made vnto the people: or to the intercessions of the Tribunes exclaiming, the sacred Lawes concerning Appeales to be violated, and troden vnder foote. Whereunto in briefe I aunswere, as did Papinian, That we ought not to rest our selues vpon that they doe at Rome, but on that which ought to bee there done. For it is most certaine, that a man might appeale from the Senat vnto the people: and that ordinarily [Page 169] the opposition or intercession of one of the Tribunes, stayed the proceedings [ A] of the whole Senat; as we haue before touched. And the first that gaue the power vnto the Roman Senat to iudge without appeale, was Adrian the emperour, for the edict of Caligula, whereby he gaue power to all magistrats to iudge without appeale, tooke no place. And albeit that Nero decreed, that they which without cause had appealed vnto the Senat, should be punished with like punishment, as if they had appealed vnto his owne person: yet forbad he not men to appeale from the Senat vnto himselfe, although he had referred the appeales from all the magistrats vnto the Senat. But this aunswere seemeth directly contrary vnto that we haue before said. For if no appeale were to be made from the Senat vnto the emperour, but that the last appeale was vnto the Senat, then was not the last appeale the true marke of soueraigntie. Ioine [ B] also hereunto, that the Great master of the Pallace, whome they called Praefectum Praetorio, gaue iudgement without appeale, receiuing also the appeales of all the magistrats and gouernours of the empire, as sayth Flauius Vopiscus: as in euery Commonweale [Sidenote 482 - *] we see certaine courts and parliaments which gaue iudgement without appeale; as the eight parliaments in Fraunce, the foure courts in Spaine, the imperiall chamber in Germanie, the councell at Naples; the fortie at Venice, the Rota at Rome, the Senat at Milan; and so the greater courts of other cities, who heare and decide either all or most part of causes, both publike and priuat, without appeale: and in all the imperiall townes, duchies, and counties, depending of the empire, no appeale is to be made vnto the imperiall chamber, in criminall causes once iudged by the magistrats of the prince, [ C] or of the imperiall cities: whereby it appeareth the last appeale not to belong onely vnto the right of soueraigne maiestie. Whereunto I aunswere, vnder the name of Appeale, to be also contained requests made vnto the prince, which the law call Ciuill Supplications: so that when we may not appeale from the sentence of the greater magistrats, yet may we by way of request put vp our supplications vnto the prince, which hath moued many of our late lawyers to say, Ciuill supplications to belong vnto the right of soueraigne maiestie: and albeit that almost alwaies the decrees are againe iudged by the same judges, as oft as request is made vnto the prince concerning a iudgement giuen▪ yet is it in his wil & power either to receiue or reiect the request▪ and oftentimes hee calleth the cause vnto himselfe therof to determine, or to reuerse that which [ D] hath bene done; or else remitteth it vnto other judges, which is the true marke of soueraigntie and last appeale, wherein the maiestie of the prince or people doth most appeare: forasmuch as it is not lawfull for any magistrat or judge to chaunge or amend their iudgement once giuen or recorded, without leaue of their soueraigne prince, and that vpon paine of false iudgement. And if so bee that the soueraigne prince would [Sidenote 483 - *] make an edict, that none of his subiects should appeale from any of his magistrats, or preferre any request vnto himselfe against their iudgements, as the emperour Caligula was about to haue done: yet neuerthelesse should it alwaies be lawfull for the subiects to appeale, or to exhibit their requests vnto the prince: For that the prince cannot so bind his owne hands, or make such a law vnto himselfe; either prohibit his grieued [ E] subiects from comming vnto him with their humble supplications and requests: For that such edicts concerning appeales and iudgements, are but ciuill decrees and lawes wherewith the prince cannot be bound, as we haue before said. For which cause it seemed a new and absurd thing vnto the Senat of France, and especially vnto Michael del' Hospital, that the commissioners appointed to proceed against the president of Allemand, forbid him by a decree made against him, to come within twentie leagues of the court, so to cut him off from the meanes to preferre his petitions; which the king himself could not of right take from his subiect, althogh it were in his power to grant or [Page 170] reiect his request being once made vnto him knowne. We see also, that in all graunts [ F] of publike lands by way of pention, with power and iurisdiction vnto the children or neere kinsmen of the house of Fraunce, and generally in the erection of duchies, marquisats, counties, and principalities, fealtie and homage, appeale and soueraigntie, are still reserued: that sometime there is onely reseruation made of appeale and soueraigntie: as in the declaration made by king Charles the fift, to Iohn duke of Berrie, bearing date the third of March, in the yeare 1374: wherein is also fealtie and homage comprised. For it is certaine that the duchie of Berrie was then the portion giuen vnto the duke of Berry with the charge of rights royall, and reuersion to the crowne for want of heires male: as I haue learned by the letters of graunt, which are yet in the treasurie of Fraunce. We see also the like declaration of Philip Archduke of Austria, (Charles [ G] the fifts father) made to king Lewes the twelft, and another of him the same, in the yeare 1505: wherein he acknowledgeth and professeth himselfe readie to obey the decrees of the parliament of Paris, in regard of the countries of Artois and Flaunders, and of other lands which he held of the king; and not to forbid them of those countries to appeale vnto the court at Paris. And in the treatie of Arras, made betwixt▪ king Charles the seuenth, and Philip the second, duke of Burgondy, there is expresse reseruation made of fealtie and homage, appeale and soueraigntie, for those lands which he and his auncestors held in fee of the crowne of Fraunce. Neither did Charles the fift the French king take any other occasion to make warre against the English men, than for that their English magistrats and gouernors which had the gouernment of Aquitaine, vnder the [ H] fealtie of the French, would not heare the subiects appeales. At which time the court of Paris commaunded the king of England to be summoned, and for default of appearance pronounced sentence against him: whereby the duchie of Aquitaine was for that cause confifcated vnto the king, as is to bee seene by the decree of the parliament of Paris, giuen the xiiij of May, in the yeare 1370. For otherwise if a soueraigne prince shall remit vnto his vassall the right of appeale and soueraigntie; which is vnto himselfe due, he maketh him of a subiect a soueraigne prince; as did king Francis the first, discharging the duke of Loraine of all fealtie and homage, appeale and soueraigntie, for the castle of Chasteler vpon the Maze in the yeare 1517. But when hee suffered the same duke in soueraigne manner without appeale to gouern in the duchie of [ I] Bar; and that the dukes, officers, and magistrats afterward abused their permissiue authoritie, as in absolute soueraigntie, the kings atturney generall thereof complained vnto the king, aduising him not to suffer the rights of his soueraigne maiestie to be so impaired. Which thing Anthonie then duke of Loraine vnderstanding, and after him Francis his sonne, by recognisance in autentique manner declared, that their purpose was not in any thing to derogat from the fealtie and homage, appeale and soueraigntie that they ought unto the crowne of Fraunce, by reason of the said duchie; and that they had not therein vsed soueraigne iustice but by sufferance: which letters of recognisance are in the publique records to be seene, and were afterward exhibited vnto the priuie councell, in the yeare 1564, in the raigne of Charles the ninth, who by all means [ K] sought by a most gratious and large charter to haue giuen vnto Charles then duke of Loraine, the soueraigntie of the duchie of Bar: but all in vaine, forasmuch as the king can by no meanes alienat from himselfe, the rights belonging vnto his soueraigntie, no not the high court of Paris assenting thereunto, although the power and authoritie of that court may where the king is, seeme to be nothing; in the presence of whom all the power and authoritie of all magistrats cease.

Wherfore the best & most expedient way, for the preseruation of a state is, neuer to giue any marke or right of soueraigntie vnto a subiect, and much lesse vnto a straunger: [Page 171] for that is one step and degree to mount vnto his soueraigne maiestie. And therefore [ A] [Sidenote 484 - *] it was long doubted in the councell, whether power and authoritie without appeale, should be graunted vnto Francis duke of Alencon (who had made mee master of the requests and one of his councell) in that his dukedome; as had before bene graunted vnto the auntient dukes there. And although he were the kings best and most louing brother, yet one of the atturneyes generall was so bold as to say in full councell, That it were better to bring in twelue courts of parliament, than to suffer that, albeit that that iurisdiction was for a short time granted, and extraordinarie judges by the king appointed; with reseruation of appeales, in many cases and causes, as also with exception of fealtie and homage. Wherein our auncestors much offended, who with too much facilitie (should I say, or necessitie) graunted the same iurisdiction vnto the dukes of [ B] Normandie. For by this meanes the dukes of Britaigne and Burgundie reuolted from our kings vnto the kings of England; for that such judges were denied them, as had bene granted vnto the dukes of Alencon: taking it grieuously themselues, in the name of their magistrats to be summoned vnto the court at Paris, there to haue those things reuersed which their magistrats had vniustly determined; althogh sometime they were things of right small weight and importance; whereof the dukes of Britaigne complained both vnto king Philip the Faire, and Philip the Long, who by their letters patents sent vnto the court of parliament in February 1306, and in October 1316, declared that their meaning was not, that the duke of Britaigne or his officers, should bee called before them into the court; but in question of soueraigntie, or in case they should deny [ C] to doe iustice, or els had giuen false iudgement.

The same we are to thinke of all the princes and cities of Germanie, from whome euen in priuat iudgements men may iustly appeale vnto the imperiall chamber, if the matter exceed the summe of 50 crowns, or if any controuersie be betwixt the cities and princes themselues. Whereby it is to be vnderstood, neither the German princes, nor cities to haue in them the right of soueraigntie: For that it is a capitall crime, euen treason it selfe, to appeale from a soueraigne prince, except he appeale as did that Greeke (whosoeuer he was) who appealed from Philip king of Macedon euill aduised, vnto himselfe being better aduised. Whice manner of appeale Lewes of Burbon, prince of Conde vsed also from the interlocutorie sentence of Francis the second, the French [ D] king, which he hauing vnderstood the cause, is said to haue giuen against him in the priuie councel: Which manner of appeale Baldus the great lawyer alloweth as good▪ and to be receiued. And well it would beseeme the maiestie of soueraigne princes to behold and follow the example of that Macedonian king, who receiued the appeale; or if they would needs that their decrees whatsoeuer should stand fast and irremouable, because they would not seeme vnconstant or variable, that then they should do as did the same king to Machetas, who of his owne goods recompensed him, for that hee had vniustly condemned him in, without chaunging of his former decree and iudgement.

From this marke of Maiestie, and benefit of supreame Appeale, dependeth also the [ E] [Sidenote 485 - *] power to grant grace and pardon vnto the condemned, contrarie to iudgement giuen, and to the rigour of the lawes; be it for life, be it for goods, be it for honour, or recalling from banishment: for it is not in the power of the magistrats or judges, how great soeuer that they be, to graunt the least of these things vnto the condemned person, or of themselues, to alter any thing of the iudgements by them once giuen. And albeit that the Proconsuls and gouernours of prouinces, had as much power in their iurisdiction, as had all the magistrats of Rome together: yet so it was, that it was not lawfull for them so much as to restore him whome they had but for a time banished (as wee [Page 172] read in the letters of Plinie the younger, gouernor of Asia vnto Traian the emperor) [ F] and much lesse giue pardon vnto men condemned to die: which is most straitly forbidden all magistrats in euery Commonweale, be it well or euill ordered or gouerned. And albeit that Papirius Cursor, the dictator, may seeme at the request of the people to haue giuen pardon to Fabius Max. collonell of the horsemen, for hauing giuen battle contrarie to his commaund, although he had slaine xxv thousand of the enemies: yet neuerthelesse in effect it was the people which gaue the pardon: albeit that they most instantly besought the dictator to pardon the fault: Which they themselues might at the same time haue done, but yet had rather to request it of Papirius, than to take the guiltie person from him against his will. For Fabius vnderstanding himselfe in his absence to be by the dictator condemned, appealed vnto the people: before whom Papirius [ G] defended his iudgement, as iustly giuen against Fabius: which a man of his vertue and seueritie would not haue done, if an appeale might not haue bene made from the dictator, vnto the people: and that in it was the power of life and death. Sergius Galba the Orator also, in like iudgement by Cato the Censor, attainted of treason, tooke his refuge vnto the people, who moued with his teares, and embracing of his children, pardoned him. Whereupon Cato said, That Galba had beene well whipped, had hee not taken himselfe vnto his teares and his children. The same power of life and death had also the people of Athens, as appeareth by Demosthenes, and Alcibiades, who both condemned, were afterward by the people pardoned, and againe restored both vnto their goods and honour. And amongst the Venetians it is not lawfull for any their [ H] magistrats, no not for the duke himselfe, the Senat, or the Decemuiri, to graunt pardon vnto the condemned: for that is left vnto the discretion of the great councel of the Venetian gentlemen onely. The Decemuiri before abusing their power by sufferance, graunted pardons, and neuerthelesse was order taken in the yeare 1523, that the counsell of the Sages, which are in number xxij, should therein be assisting vnto them: and that the pardon should take no place, without the generall consent of them all: but at length in the yeare 1562, the councell was forbidden at all to meddle, or to haue to doe in that matter. And albeit that the emperour Charles the fift, in the erection of the Senat at Milan, graunted thereunto all the markes of soueraigntie, as vnto his lieutenant and deputie in his absence, comming verie neere vnto absolute soueraigntie: yet [ I] so it is, that hee still reserued vnto himselfe the power to graunt pardon and mercie vnto the condemned; as I haue learned by the letters patents by him graunted: which hath bene a thing right straitly obserued and kept in all Monarchies. And although that in Florence during the popular state, the eight men without all right had vsurped the power to graunt pardons: yet was that power againe restored vnto the people by Sodorin, after the chaunge of the state. As for other kings they haue still thought nothing more royall, than to deliuer the condemned from death: neither do they suffer the judges or magistrats of other dukes and princes, to examine the letters graunted by the king for the restoring of the condemned: although that they examine the pardon graunted. And albeit that king Francis the first had giuen vnto his [ K] mother power to graunt pardon vnto the condemned: yet for all that the court of Paris, hauing taken order to haue it showed vnto the king, that it was one of the fairest markes of soueraigntie, which could not be communicated vnto a subiect without impairing of his maiestie: the Queene mother thereof aduertised, renounced this [Sidenote 486 - *] priuilege, and restored the letters patents vnto the king, before they were of her requested. For indeede that prerogatiue could not of right bee graunted vnto the French Queene, neither any other the proper markes of Soueraigntie.

And albeit that the Roman lawes say that the empresse is dispensed with from all [Page 173] edicts and lawes: yet that taketh no place in this realme of Fraunce; yea there is [ A] found a decree in the records of the court, in the yeare 1365, in Iuly: whereby the queene was condemned to lay downe in the court the money of her demaunded, whilest the matter was in tryall; that the creditor might demaund it so laid downe vppon good caution giuen: which by the Roman law is a meere iniurie, so to begin sute of execution. I find also that king Charles the sixt, gaue power to M. Arnald de Corbie, chauncelour of Fraunce, by letters pattents, the xiij of March, in the yeare 1401, to grant pardons vnto the condemned, some of the great Councell being present with him▪ but that was at such time as the chauncelours were almightie, hauing all in their owne hands: and that king Charles the sixt was then not in the power of himselfe but of others, by reason of his maladie. [ B] [Sidenote 487 - *]

Now if any man shall obiect and say, That in auntient times the gouernours of prouinces gaue pardons, as we yet may see by the custome of Henault, and of Daulphinie: as also that the bishop of Ambrun, by autentique charters pretended this power. Hereunto I aunswere, that such customes and priuileges, wrongfully wrested and exported from our kings, were of good right abrogated by an edict of king Lewes the twelft. And if such priuileges be of no force: so may we also say their confirmations to bee of no more strength. For the confirmation is neuer any thing worth, if the priuilege bee of it selfe naught. Now must it needes be naught, for that it cannot bee seperated from the crowne. For as wee haue before said, that the priuileges by princes euen lawfully graunted, cannot stand good for euer: so the rightes of Soueraigntie, [ C] which cannot by the kings themselues bee graunted vnto any, without giuing away of ther Scepter and kingdome, can much lesse being granted, bee by them confirmed.

As for Gouernours, Deputies, Lieutenants generall of Soueraigne princes, it is another reason; for that they haue not that power by priuilege, or by office, but by commission, as the deputies or lieutenants of their princes. But in the state of a well ordered Commonweale, this power of Soueraigntie ought not to bee giuen to any, neither by commission, neither by title of office, except it bee for the establishing of a Regent in his gouernment, for the great distance of places; or for the captiuitie of Soueraigne princes: or for that they are furious; or else in their infancie▪ [ D] As it was done by Lewes the ninth, who for his tender yeares, was by the estates of Fraunce committed to the tuition of his mother Blanche of Castile; after that she had giuen certaine princes for assurance that shee should not giue the tuition of him to any other person. So the gouernment of the kingdome was committed vnto Charles the fift, as Regent during the captiuitie of his father king Iohn. And in the captiuitie of Francis the first, Louise of Sauoy his mother, tooke vppon her the protection of the kingdome committed vnto her by the king her sonne▪ with all the royalties thereof, in the title of Regent. And the duke of Bedford Regent in Fraunce, king Charles the sixt being there distraught of his wits.

But heer may one say vnto mee, that notwithstanding the decree of Lewes the xij. [ E] [Sidenote 488 - *] the chapiter of the church of Roan pretendeth alwaies to haue priuiledge to graunt pardon in the fauour of S. Romane: the day before whose feast, it forbiddeth all the judges, yea and the parlament of Roan it selfe, to execute or put to death any one of such as then be condemned; (as I haue seene it put in practise being in commission for the Prince, for the generall reformation of Normandie) and for that the court notwithstanding the chapiters pardon, had after the feast caused to bee put to death one, which it had before the feast condemned: the chapiter thereof greeuously complayned vnto the king; hauing to friend one of the princes of the blood▪ the parlament [Page 174] sent also their deputies, amongst whom Bigot the kings attourney was verie earnest in [ F] his oration in the Senat for the abuse, and encroaching vpon the kings maiestie: but the fauour of the great bishops more preuailing then reason, that priuilege was for all that he could say or do with the publike shame and losse continued: but was since taken away by king Henry the third. This priuilege had great affinitie with that which [Sidenote 489 - *] was giuen vnto the Vestall virgins at Rome, which was to giue pardon vnto him that was going to execution, if any one of the Vestal virgins by chaunce happened to meete him, as saith Plutarke in the lyfe of Numa. The like custome whereof is yet kept in Rome, for if a condemned man there meet a Cardinall, he is thereby deliuered from punishment. But I deeme that to bee most pernitious in the priuilege of S. Romane, that no man could enioy the benefit thereof which had but lightly offended: but he [ G] onely that had done the most execrable villanies that were possible to be found, such as the king vsed not to pardon, that such offences as could nether by the lawes of God nor man, nor by the fauour of Princes be pardoned, might yet vnder the colour of S. Romanes priuilege be remitted and forgiuen. But that is ioyned with the greatest impietie to thinke the pardon to be so much the more acceptable to Cod, by how much the fact committed is the more haynous or detestable. But I am of opinion (sauing alwaies the better iudgement) that no soueraigne Prince, nether yet any man [Sidenote 490 - *] a▪ liue can pardon the punishment due vnto the offence which is by the law of God death, no more then he can dispence with the law of God, wherevnto he is himselfe subiect. And if it be so, that the magistrat deserue capitall punishment, which dispenseth [ H] with the law of his king▪ how shall it be lawfull for a soueraigne prince, to dispence with his subiect from the law of God? And further if the Prince him selfe cannot giue away the least ciuill interest of his subiect, or pardon the wrong done vnto an other man: how can he than pardon the wrong done vnto almightie God? or the murther wilfully committed; which by the law of God is death, for all the pardon he can giue. But then wherein (might a man say) should the princes mercie show it selfe or appeare? if it could not show grace vnto the punishment appointed by the law of God? Wherunto I aunswere, that there are meanes plentie, as in pardoning bloodshed committed by chaunce, or in defence of a mans selfe, or in mitigating the rigour of the positiue ciuill lawes: as if the prince should vpon paine of death forbid a man to beare armes, [ I] or to carrie victuals vnto the enemie; pardon shall yet well be bestowed vpon him that hath borne armes for the defence of himselfe onely; or on him which constrained by pouertie, hath sold victuals deere vnto the enemie, to releeue his owne great necessitie. Or whereas by the law the punishment for theft is death, the good prince may conuert that punishment into the restitution of foure fold, which is the punishment by the law * of God appointed. But the wilfull murderer You shall take him [Sidenote 491 - *] (saith the law) from my sacred altar, neither shalt thou haue pitie on him, but cause him to dye the death: and afterwards I will stretch forth my great mercies vpon you. Neuerthelesse the Christian kings on that day which they commaund to bee most holy kept, as on Good Friday, vse for most part to pardon some one man or other, condemned of [ K] [Sidenote 492 - *] most horrible and notorious crime. Now pardons graunted to such villaines drawe after them plagues, famine, warres, and ruines of Commonweales; and that is it for which the law of God saith, That in punishing them that haue deserued to dye, they shall take away the cause from among the people: for of an hundred villaines there commeth scarce two of them into the triall of iustice: and of those that come, the one halfe of them for want of proofe and of witnesses escape vnpunished: and then if when they are proued princes graunt vnto them pardon, what exemplarie punishment shall there be for offences and villanies committed in the Commonweale? And many offendors, [Page 175] when they cannot of their owne prince obtaine grace and pardon, interpose [ A] the fauour of some other forren prince, who becommeth an intercessour for them. Whereof the States of Spaine complained vnto king Philip, presenting vnto him a request, to the end he should aduertise his ambassador in Fraunce, no more in the behalfe of the French king, to request pardon of the king of Spaine, for the condemned men which had retired themselues out of Spayne into Fraunce: for that hauing obtained pardon, they many times slew the judges, who had before condemned them. But of [Sidenote 493 - *] all the graces and pardons that a prince can giue, there is none more commendable, than when he pardoneth the iniurie done against his owne person: and of all capitall punishments none is more acceptable vnto God, than that which with most seueritie is executed, for the wrong done vnto the maiestie of himselfe. But what then are we for [ B] to hope for of the prince, which most cruelly reuengeth his owne iniuries, and pardoneth the wrong done to others; and especially those which are directly done to the dishonour of almightie God.

Now that which we haue said concerning the grace and pardon graunted by a soueraigne prince vnto men condemned, is to the vttermost to be extended, euen vnto the preiudice of the great lords, vnto whome the confiscation of the offendours lands or goods by law or custome belong, who are not to be receiued to debate or impugne the pardon graunted by the prince; as by decree of parliament hath bene adiudged. Now many there be, which draw the grace of the princes gracious restitutions vnto priuat iudgements: as when a man is for want of councell deceiued or cosoned; or requesteth [ C] the benefit of his minoritie, which in many cities and Commonweals are proper vnto soueraigne princes: but yet are not the markes of soueraigne maiestie, except only the legitimating of bastards, of fees, and such like: for why the rest were partly by the magistrats hauing vnderstood the cause, and partly by the lawes and customes vsually graunted. For in the lawes of Charles the vij and Charles the viij, it is expresly commaunded vnto the judges, in deciding of causes, not to haue any regard of the decrees of forraine courts, further than they should with equitie agree: which by this common clause vnto all decrees in this realme commonly annexed (Si satis superque apparet, If it shall sufficiently, and more than sufficiently appeare) is declared. Which clause if it be not ioyned vnto the decree, the magistrat hath but to vnderstand of the [ D] fact; the punishment thereof being reserued vnto the law, and the pardon vnto the soueraigne prince. And that is it for which Cicero crauing pardon of Caesar for Ligarius saith, I haue oftentimes pleaded with thee before the iudges, but I neuer said, for him whom I defended, Pardon him my lords, he was deceiued, he thought it not, if euer hee do so againe, &c. So children vse to say vnto their parents, of whome they craue pardon: But before the iudges we say, That the crime is for euill will forged, the accusor is a slanderer, the witnesses false and subborned. In which words he plainely shewed▪ that Caesar hauing soueraigne power, had also the power of life and death, (and so to graunt pardon) which the judges had not.

Now as for liege fealtie and homage, it appeareth, that it is one of the greatest rights [ E] [Sidenote 494 - *] of soueraigntie; as we haue before declared: in respect of him to whom it is due, with out exception.

As for the right and power to coyne money, it is of the same nature with the law, [Sidenote 495 - *] and there is none but he which hath power to make a law, which can appoint the value, weight, and stampe of the coyne: which is well to be vnderstood by the Greeke and Latine worde; for the Latine word Nummus▪ seemeth well to haue beene de•…]iued of the Greek word 〈 in non-Latin alphabet 〉]. For nothing is in a Commonweale of greater consequence next vnto the law, than the value, weight, and stampe of the coyne; as we haue in a spe▪ [Page 176] ciall treatise declared: and in euerie well ordered Commonweale, none but the soueraigne [ F] prince hath power to appoint the same. As we read they did in Rome, when the value of the Victoriat was appointed and set downe, it was done by an expresse law of the people. And albeit that the Senat by decree to ease the publike necessitie, made the halfe pound of copper as much worth as the pound; and a while after the quarter, as much worth as the pound, vntill that the ounce was valued as much worth as the pound: yet all this was done by the consent of the Tribunes, without which nothing that the Senat had therein decreed was of any force. And after that, Constantine the emperour made a law, That they which had coyned false money should be punished as men guiltie of high treason: which law all princes haue most straitly kept, taking vnto themselues the confiscations of false coynes, excluding all others, which haue any [ G] claime thereto. With like punishment also are they to be punished, which without the princes leaue coyne good money. And albeit that many particular men in this realme, had in auntient time priuilege to coyne money, as the countie of Touraine, the [Sidenote 496 - *] bishops of Meaux, Cahors, Agde, and Ambrun, the counties of S. Paule, of Marche, Neuers, Blois, and others: yet for all that king Francis the first, by a generall edict took away all those priuileges: which could not indeed be graunted: but beeing graunted, were by the law made void: ioyning hereunto also, that they were not to endure, but for the life of them that graunted them, as we haue before showed in the nature of priuileges: howbeit that this marke and right of soueraigntie ought not in any sort to be at all communicated vnto a subiect. As it was well declared to Sigismundus Augustus, [ H] king of Polonia, who in the yeare 1543, hauing giuen priuilege vnto the duke of Prusse, to coyne money: the estates of the countrey made a decree, wherein it was comprised, that the king had no power to giue away that right, as beeing inseparable from the crowne. For which selfe same reason the Archbishop of Gnesne in Polonia, and the Archbishop of Canterburie in England, both chauncelours, hauing obtained the same right and priuilege from their kings, were thereof againe depriued. And for this cause all the cities of Italie holden of the empire, which had of the former emperours obtained this priuilege of coyning of money; in the treatie at Constance gaue vp the same vnto the emperour, excepting them of Luca, vnto whom in fauor of pope Lucius the third, their countrey man; the emperour at his request graunted that priuilege. [ I] We read also, that the principall occasion that Peter king of Arragon tooke hold of, to driue Iames king of Maiorque out of his kingdome was, for hauing coined money; pretending that he had no right nor power so to doe. Which was also one of the occasions that Lewes the xj tooke hold of, to make warre vpon Francis duke of Britaigne, for that hee had stamped a coyne of gold, contrarie to the treatie made in the yeare 1465. And the Romans when as they suffered money of Brasse, and siluer to be coyned in all their prouinces, yet did they forbid any to be there coyned of gold, reseruing that still vnto themselues. Howbeit that Iohn duke of Berry had priuilege of Charles the fift, the French king, to coyne money of both mettals; who because hee would not any thing therein offend, caused peeces of gold to bee coyned with the figure [ K] of a sheepe vpon them, of the finest and purest gold that euer was either before or since coyned in this realme.

Yet is it not to be omitted, that though the prince contrarie vnto the law, shall giue to any man power to stampe money, that the worth and valour thereof stil dependeth of the soueraigne prince; in such sort, that they which so coyne the same, haue no other profit thereby but the stampe onely; where of princes do wonderfully vaunt and glorie. But of auntient time in the Roman Commonweale, whilest it was a popular state, the Triumuiri Monetales, or masters of the mint, coyned the money with such a stamp [Page 177] or marke as they themselues thought good, with their names & these letters thereuppon, [ A]III Viri, A. A. A. FF. which Caulis baileiffe of the mountaines interpreteth, Aere, Argento, Auro, Flauo, Ferunto: but more truely thus, Trium viri, Auro, Argento, [Sidenote 497 - *]Aere, Flando, Feriundo. And truely Seruius king of the Romans was the first that there stamped an heauy coyne of brasse, with the figure or impression of an Oxe vpon it, to the imitation of Theseus king of Athens, who had coyned money with the [Sidenote 498 - *] same figure or marke, and the figure of an Owle. Whereby it appeareth the Greeke and Latine princes of old, not to haue bene touched with that vaine desire of glorie, wherewith other princes were tormented: and wherafter the kings of Asia and Affrike most greedily longed. The first that coyned money in Greece with his owne image [Sidenote 499 - *] thereon, was Philip king of Macedon: which peeces of money were therof called Philippaei; [ B] therein imitating the Persean kings, who called their peeces of gold first stamped with the image of Darius, by the name of Dariques. Whereof king Darius was so ielous (as Herodotus writeth) as that he caused Ariander gouernour of Aegypt to bee beheaded, for hauing stamped the money with his owne image. As for the same cause also the emperour Commodus beheaded his minion Pecenninus. And also king Lewes the xij hauing left all the power and right of Soueraignty vnto the Genowayes, whom he had ouercome, forbad them neuerthelesse to stampe their money with any other marke or figure, than with his owne image, in stead of the forme of a Gibbet, which they before gaue, and yet giue vpon their money, as the marke of iustice.

Now if the power of coyning money be one of the rights and markes of Soueraigntie; [ C] [Sidenote 500 - *] then so is also the power to appoint measures and weights; although that by the customes receiued there is none so pettie a lord, which pretendeth not to haue this right. Whereby it commeth to passe, that by the infinit varietie of weights and [Sidenote 501 - *] measures, the Commonweale taketh no small harme. Which was the cause that the kings Philip the Faire, Philip the Long, and Lewes the xj had resolued, that there should be in this kingdome but one manner of weight and measure: and now the commissioners appointed for that purpose, by comparing them together, had made euen all the measures and weights of this realme, and brought the matter to good effect, had not king Lewes by death bene taken away, before it was fully perfected: yet the booke whereby the same might more easily be brought to passe, is yet extant in the court of [ D] accounts: howbeit that the execution thereof proued more difficult than was thought it would haue done, by reason of the great contention, and sutes that thereof arise. Neuerthelesse we read in Polybius, that the same was wel executed in all the cities of Achaia, [Sidenote 502 - *] and Morea, where they had not but like money, like weights, like measures, customes, lawes, religion, officers, and gouernment.

As for the right to impose taxes, or imposts vpon the subiects, is as proper vnto soueraigne [Sidenote 503 - *] maiestie, as is the law it self: not for that a Commonweale cannot stand without taxes and tallages, as the President the M. hath well noted, that taxes were not leuied in this realme, but since the time of Saint Lewes the king. But if it must needs be that they must for the publike necessitie be leuied or taken away; it cannot bee done [ E] but by him that hath the soueraigne power; as it hath bene iudged by a decree of parliament, against the duke of Burgundie; and many times since, aswell in the high court of parliament, as also in the priuie Councell. And for that diuers particular lords, cities, and corporations, vnder show of the common good, haue imposed diuers taxes and payments vpon their people: king Charles the ninth, by a generall edict by him made in the parliament at Orleans, expresly forbiddeth them so to doe without leaue: albeit that for the common necessitie they be borne withall in so doing without commission, so that they exceed not the summe of twentie fiue pounds. And afterward [Page 178] the same edict was more straitly againe renewed at Moulins, well agreeing both [ F] with law and equitie. And although that the Roman Senat in time of warres, yea and the Censors themselues imposed certaine taxes and payments, which could hardly haue bene extorted from the bodie of the whole commonaltie: yet so it was, that that still passed by the sufferance of the Tribunes of the people, who ost times also opposed themselues against the same. Yea and that in such sort, that they presented a request vnto the people, that from that time forward no man vpon paine of his head should bee so hardie, as to cause any law to be passed in the campe: for that the Senat by subtill meanes had there in the campe at Sutrium, caused to be published that notable imposition, which they called Vicesima Manumissorū, that is to say, the twentith part of the goods of them that were manumised; vnder colour that it was to pay the armie withall: [ G] which thereunto right willingly agreed: and so suffered the law to passe. And in [Sidenote 504 - *] the second Carthaginensian warre, at such time as there was great want of coyne in the common treasurie; there was by a law made a taxe generally imposed vppon euery man, which was by another contrarie law againe repealed, after the returne of Paulus Aemylius, who with the spoyles of Perseus king of Macedon, so filled the citie, and euerie priuat man also with wealth, as that the people was from that time discharged of all taxes and payments, vntill the Triumuirat ciuill warre, about an hundred yeares after, vntill that such new taxes and tributes as by the power or couetousnes of former tyrants had bene imposed vpon the people, were by the good [Sidenote 505 - *] emperour Pertinax againe eased and taken away. [ H]

But here might some say, diuers particular lords here and there, to exact not onely customes, but tributes also, not onely in Fraunce, where (as Caesar hath most truly written) nothing is more contemptible than the vulgar people: but in England and Germanie, and much more straitly in Denmarke, Polonia, and Norway: which impositions and tributes, are confirmed and growne strong, both by long prescription of time, and vse of iudgements: yea and that to be lawfull, euen vnto such as haue neither soueraigntie, nor any iurisdiction at all, the court of Paris hath adiudged. Whereunto I aunswere, that the thing hauing begun by abuse, and by long continuance of time inueterat, hath well some colour of prescription: but yet an abuse can neuer be so ouergrowne, but that the law shall euer be of greater force than it; whereby the abuse is to [ I] be reformed: and for that cause it was forbidden by an edict of Moulins, that any tribute should be exacted of the subiects, vnder the colour of prescription: for that many lawyers and judges haue exposed all the strength and force of iudgements onely in prescription alone: not regarding whether that which is in question can of right bee prescribed or not.

Now if Pompeius hath denied, that the common high way can by any continuance of time be prescribed vpon: why then should these men thinke the rights of customes and tributes, or of soueraigne maiestie to be prescribed against; and yet the common high way belongeth not vnto the right of Soueraigntie. Wherefore it were better to [ K] confesse (which yet without deadly wrong cannot bee done) those aforesaid things which we haue spoke of, not at all to belong vnto the right of soueraigne maiestie: or else to say that the kingdome it selfe, and in briefe the royall crowne and scepter might be prescribed vpon. The same we are to thinke also of the exemptions from the payment of taxes and tributes, which no man can graunt vnto another man, but hee which hath the soueraigne power in a Commonweale: which is also prouided for in an article of the edict at Moulins: neither is that enough, but that the charters of such immunities graunted, must be also enrolled in the records of the court of accounts, and be allowed of by the judges of the court of Aydes. But what kind of taxes and tributes [Page 179] there be, and how farre they are to be exacted, shall in due place be declared: let it now [ A] for the present suffice, it to appeare, that right and power to belong only vnto Soueraigne maiestie. [Sidenote 506 - *]

Now many there be that thinke also, that to haue power to lay an imposition vpon salt, is a more proper marke of Soueraigntie than the rest: and yet therof giue no good reason. For almost in euery Commonweale we see salt pits and mines both to be, & alwayes to haue bene in priuat mens possession, not onely vpon the sea coasts towardes the South (for toward the north it hardeneth not with the Sunne) but also in the mediterranean regions, wherein mines of salt, and wels of salt water are found. As in Spaine, in Italie, Fraunce, and the countrey of Cracouia, is found salt in great aboundance. Yea euen at Rome we read, some priuat men to haue had salt mines. Yet true it is, that manie [ B] soueraigne princes haue of auntient time imposed tribute vpon salt; as did Lysimachus [Sidenote 507 - *] king of Thrace, Ancus Martius king of Rome, Philip Valois king of France, who were the first that exacted tribute vpon salt, euery one in his owne kingdome. And albeit that by the law Valeria the people of Rome were freed from such customes & tributes, as had by their kings bene brought in and imposed vpon them: yet Liuius the Censor thought no imposition in the Commonweale lighter or fitter, than that which was laid vpon salt; who thereof surnamed Liuius Salinator, (or Liuius the Salter.) For why that imposition little or nothing impaireth the right of priuat men: but that they still remaine lords and owners of their salt pits, aswell as of their other mines, sauing vnto the Soueraigne prince his rights and customs. [ C]

But forasmuch as the sea it selfe cannot be proper vnto any priuat man, the rights [Sidenote 508 - *] thereof belonging vnto such soueraigne princes as dwell thereby, who may lay impositions thereupon thirtie leagues off from their owne coast, if there bee no other soueraigne prince neerer to let them, as it was adiudged for the duke of Sauoy. Neither can any but a soueraigne prince giue them letters of safe conduct; which the Italians call Guidage; nor yet of right take any wracke: as is expresly prouided for by the decree of the emperour Fredericke the second. A thing truely most barbarous, and not in auntient [Sidenote 509 - *] time of soueraigne princes vsed, shamefully to suffer the reliques of the goods and fortunes of such as haue by shipwracke miserably perished, and whome we ought with some part of our owne to releeue, being cast vpon our coast, and which ought with [ D] good faith to be againe restored, to be most shamefully I say spoyled. Yet such is the manner of all that haue ports vpon the sea, in this case to show such extremitie aswell vnto their owne people, as to straungers. But by what right doe you aske? The common errour maketh the right: or if the wrong be done not by errour, but by knowledge, then it is meere wickednesse, masked with the vaile of errour. For I haue heard that at such time as the emperours ambassadours complayned vnto Henry the second, the French king, in the yeare 1556, that two gallies which had suffered wracke vpon the coast of Corcyca, were taken by Iordan Vrsin, requesting to haue the same gallie againe restored: he was aunswered by Anne Mommerance then constable of Fraunce, that wracks by the law of all nations belonged vnto such princes as ruled vpon the coasts [ E] whereon they were cast. Which law was so strong, as that Andrew Doria neuer so much as complained of the losse of two of his gallies, confiscated by the prior of Capona the French Admyrall, for casting anchor onely vppon the land without leaue, which of antient time men by the law of nations might right lawfully do. And wheras by the Roman law it was lawfull for any man to seise vppon things lost, or vppon goods or lands vacant and forbidden: now it is onely lawfull vnto them which haue the soueraigne power, or some other iurisdiction by law or custome confirmed vnto them, to take vnto themselues things lost or forsaken, and that after a certaine determinat [Page 180] time: which in a thing moueable is defined to be fortie dayes after the publication [ F] of the thing lost or forsaken: except it be in the meane time by the right owner chalenged. And as for vacant possessions, the Roman emperours haue decreed, That they may at any time within foure yeares be againe recouered by the prince: but that after foure yeares once expired, a man may prescribe euen against the common receipt. But forasmuch as these things are also graunted vnto priuat men, they no more belong vnto the right of Soueraigntie, than it doth to haue a receipt of his owne: which is not a thing common vnto priuat men onely, but euen the prince himselfe hath his owne receipt diuided from the publike receipt; and his owne possessions seperat apart from the possessions of the Commonweale: and so diuers officers were by the Roman emperours appoynted vnto both. So Lewes the xij the French king, hauing obtained the [ G] crowne, erected the chamber at Blois, for his particular demaines of Blois, Montfort, and Cousi, which he commaunded to be diuided from the dukedome of Orleans, and the other publike possessions; and the accounts thereof to be kept apart by themselues. But amongst the rights of receipt, there be some that belong not, but vnto the soueraigne prince onely: as the confiscation of goods or lands in cases of high treason, vnder which are comprehended also such as be conuicted of impietie against God, which we call Heresie; or of offence against the Commonweale, as in coyning false money. Howbeit if our late lawyers haue with two much learned and curious subtiltie in an hundred and fiftie chapters found out the lawes and rights of the receipt: but yet so as that of one they make ten, that so they may seeme the moe: so confounding and mingling [ H] the rights of soueraigntie with the rights of receipt (which are also common vnto priuat men) and publike things with things priuat. The other rights of receipt are almost all common vnto the soueraigne prince, with other lords iusticiaries, as to haue right vnto treasure found: and the power to graunt Faires, which was in auntient time a marke of Soueraigntie; as now it is at this present comprised vnder the case of priuileges.

As for the right of Marque, or of Reprisall, which soueraigne princes haue proper [Sidenote 510 - *] vnto themselues from all others, it was not of auntient time proper vnto a soueraigne prince; but permitted vnto euery man without leaue, either of magistrat or of prince to take reprisall, which the Latines called Clarigatio: howbeit that the princes by little [ I] and little gaue this power vnto magistrats and gouernours; and in the end reserued this right vnto their owne soueraigntie, for the better assurances of their peaces and truces, which were oftentimes broken by the rashnesse of some particular men, abusing this right of Marque or Reprisal. In this realme the parliament graunted letters of Marque, as we find by the decree of the xij of Februarie 1392, vntill that Charles the eight by an especiall edict, reserued that power vnto himselfe, in the yeare 1485. It is also of our men properly called a royaltie or right of soueraigntie, whereby the prince, a bishop being dead, taketh vnto himselfe the profits of the bishopricke, in the meane time whilest another bishop is chosen by the chapter, or by the prince himselfe appointed: and so being sworne, is put into possession thereof: but forasmuch as that in all places is not [ K] obserued: and few there be that haue that right, it is not to bee accounted among the markes of soueraigntie.

There be many other right small things, which are accounted proper vnto princes, [Sidenote 511 - *] as things concerning their greater reputation and dignitie, as in their edicts, mandats, and commissions to vse these words, Dei Gratia, by the grace of God; which wordes Lewes the xj, the French king, forbad the duke of Britaigne to vse in his life; although we read them to haue bene vsed almost in all auntient leagues; and attributed not vnto great princes and commaunders onely, but euen to the least magistrates and deputies [Page 181] also. The kings of Fraunce haue also reserued vnto themselues the right to seale [ A] with yellow waxe, a thing forbidden their nobilitie and other their iusticiaries; which Lewes the xj by speciall priuilege and letters patents graunted as a great fauour vnto Renate [Sidenote 512 - *] of Aniou, king of Naples and Sicilie, that in fealing he might vse yellow waxe: with like priuilege vnto his heires also, confirmed in parliament the 28 of Iune 1465. He which copied the Comentaries of Tillet, calleth it white waxe, which I find our kings neuer to haue vsed.

But much more it belongeth vnto the royaltie of soueraigne maiestie, to be able to [Sidenote 513 - *] compell the subiects to vse the language and speech of him that ruleth ouer them: which the Romans so commaunded their subiects, that euen yet at this day they seeme farre and wide to raigne ouer a great part of Europe. But the king of the Hetruscians, [ B] who last was by the Romans ouercome in all other things yeelded vnto them, but in that he could in no wise be perswaded to yeeld, to chaunge his countrey language, and to receiue the Latine tongue, as Cato Censorius writeth. But France for that it swarmed [Sidenote 514 - *] as it were with citisens of Rome, did so confound the Latine tongue, with the naturall countrey speech, as that the auntient writers called our countrey men Romans; yea the iudgements and decrees of the higher court of parliament, viz. of Paris were set downe in Latine (which the presidents and gouernours were commaunded to doe) vntill that Francis the first had giuen order that they should vse their owne countrey language: as by like edict Edward the third commaunded the judges and magistrats of England, to giue iudgements in their owne countrey language, when as before they [ C] vsed the French. And at such time as the Sarasins had subdued the greatest part of Asia, and Afrike: they withall most farre spred their language and religion euen into the farther part of Spaine: which when Philip king of Spaine would gladly haue suppressed, yet could he by no meanes effect it.

Some amongst the markes of Soueraigntie, haue put also the power to iudge and [Sidenote 515 - *] decide matters, according to their conscience; a thing common to all iudges, if they be not by expresse law or custome prohibited so to doe. And that is it for which wee oftentimes see in the edicts vpon the articles committed to the arbitratarie iudgement of the judges, this clause added, Wherewith we haue charged our conscience. For if there be either custome or law to the contrarie, it then is not in the power of the judge, to [ D] passe beyond the law, or to dispute against the receiued law. For that was a thing forbidden by the most politique lawes of Lycurgus: and also by the most auntient lawes of Florence, whereas a soueraigne prince may do both, if he be not by the law of God forbidden; whereunto we haue before showed him to be still subiect.

As for the title of Maiestie it selfe, it sufficiently appeareth, that it onely belongeth to [Sidenote 516 - *] him that is a soueraigne prince: so that for him that hath no soueraigntie to vsurpe the same, were a verie absurd thing: but to arrogat vnto himselfe the addition of most excellent and sacred maiestie, is much more absurd▪ the one being a point of lightnes, and [Sidenote 517 - *] the other of impietie: for what more can we giue vnto the most mightie and immortall God, if we take from him that which is proper vnto himselfe? And albeit that in [ E] auntient time neither emperours nor kings vsed these so great addition or titles: yet the German princes neuerthelesse haue oft times giuen the title of Sacred Maiestie vnto the kings of Fraunce; aswell as vnto their emperour. As I remember my selfe to haue seene the letters of the princes of the empire, written vnto the king, for the deliuerance of countie Mansfeld, then prisoner in Fraunce: wherein there was sixe times V. S. M. that is to say, Vestra, Sacra, Maiestas, or Your Sacred Maiestie▪ an addition proper vnto God, apart from all worldly princes. As for other princes which are not soueraignes some vse the addition of His Highnesse, as the dukes of Loraine, Sauoy, Mantua, Ferrara, [Page 182] and Florence: some of Excellencie, as the princes of the confines; or else of Serenitie, [ F] as the duke of Venice.

I omit here many other meaner rights which Soueraigne princes euery one of them pretend in their own countries, in number infinit, which yet are no marks of soueraign [Sidenote 518 - *] ty, such as ought to be proper to all soueraigne princes in generall, apart from all other lords, iusticiaries, magistrats, and subiects, and which are of their owne nature incessible and not to be alienated from the soueraigntie: nor by any course of time to be prescribed. And if the soueraigne prince shall giue or grant any lands or lordship of the publique possessions, vnto any, with iurisdiction and power to vse the same, in such sort as he himselfe might: albeit that the royall rights properly belonging vnto soueraigntie, be not in the charter or writings expresly excepted: yet are they alwayes by the verie [ G] [Sidenote 519 - *] law it selfe thought to be excepted, which by an old decree of the counsell of France was decreed not only for graunts made vnto priuat men, but also for such gifts or grants as were made vnto the princes themselues descended of the royall blood and familie: which royall rights can by no tract of time whatsoeuer, be prescribed against or vsurped vpon. For if publique place, or the publique possessions of the Commonweale cannot be got by any prescription: how much lesse then can the royalties proper vnto soueraigne maiestie be prescribed vpon. But it is certaine by the edicts and lawes concerning the publike demaine, that it is not to bee alienated, neither by any tract of time to be gained. Which is no new thing: For it is two thousand yeares agoe since that Themistocles, making seisure of certaine lands belonging vnto the publike demaine, [ H] vsurped by some priuat men; said in the oration which hee made vnto the people of Athens, That mortall men could nothing prescribe against the immortall God: neither could priuat men in any thing prescribe against the Commonweale. The selfe same speech Cato the Censor vsed also in the Oration which he made vnto the people of Rome, for the reuniting of some part of the publike demain, vsurped vpon by certaine priuat men. How then can a man prescribe vpon the rights and markes of Soueraigntie? And that is it, for which in law he is guiltie of death, that in any sort vseth the markes properly reserued vnto the maiestie of a Soueraigne prince. And thus much concerning the principall points of Soueraigne maiestie, in as briefe manner as I possibly could, hauing handled this matter more at large in my booke De Imperio. And [ I] forasmuch as the forme and estate of a Commonweale dependeth of them that haue the Soueraigntie therein: Let vs now see how many sorts of Commonweales there be.

Finis Lib. Primi.

[ K]

CHAP. I. ¶ Of all sortes of Commonweales in generall, and whether there bee any moe then three.↩

FOrasmuch as we haue before sufficiently spoken of Soueraigntie, [ C] and of the rights and markes thereof; now it behoueth vs to consider who they bee which in euery Commonweale hold that Soueraigntie; thereby to iudge what the estate is: as if the Soueraigntie consist in one onely prince, wee call it a Monarchie: but if all the people bee therein interressed, we call it a Democracie, or Popular estate: So if but some part of the people haue the Soueraigne commaund, we account that state to be an Aristocracie. Which words we will vse, to auoide the obscuritie and confusion which might otherwise arise, by the varietie of gouernours good or bad: which hath giuen occasion [ D] vnto many, to make moe sorts of Commonweales than three. But if that opinion should take place, and that we should by the foot of vertues & vices, measure the estate of Commonweales; we should find a world of them, and them in number infinit. Now it is most certaine, that to attaine vnto the true definitions and resolutions of all things, wee must not rest vppon the externall accidents which are innumerable, but rather vpon the essentiall and formall differences: for otherwise a man might fall into an infinit and inextricable labyrinth, whereof no knowledge is to bee had, or certaine precept to be giuen. For so a man should forge and fashion infinit numbers of Commonweales, not onely according to the diuersitie of vertues and vices; but euen according to the varietie of things indifferent also. As if a Monarch were to bee chosen for [ E] his strength, or for his beautie, for his stature, or for his nobilitie, or riches, which are all things indifferent; or for his martial disposition, or for that he is more giuen to peace, for his grauitie, or for his iustice, for his beautie, or for his wisdom, for his sobrietie, or his humilitie, for his simplicitie, or his chastitie; and so for all other qualities, a man should so make an infinitie of Monarchies: and in like sort in the Aristocratique state, if some few of many should haue the soueraigntie aboue the rest, such as excelled others in riches, nobilitie, wisedome, iustice, martiall prowesse, or other like vertues, or vices, or things indifferent, there should thereof arise infinit formes of Commonweales: a thing [Page 184] most absurd, and so by consequent the opinion whereof such an absurditie ariseth, is [ F] to be reiected. Seeing therefore that the accidentall qualitie chaungeth not the nature of things: let vs say that there are but three estates or sorts of Commonweales; namely a Monarchie, an Aristocratie, and a Democratie. We call it a Monarchie, when [Sidenote 520 - *] one man alone hath the soueraigntie in a Commonweale, in such sort as wee haue aforesaid. And a Democratie, or Popular estate, when all the people, or the greater part thereof hath in it the soueraigne power and commaund, as in one bodie. The Aristocratie is, when the lesser part of the people hath the Soueraigntie, as in one bodie, and giueth lawes vnto the rest of the people, whether it be in generall, or in particular: all which things are of themselues more cleerer than the day. And true it is, that the writers of auntient time do therein well agree, that there can be no lesse then three [ G] kindes or sortes of Commonweales: Whereunto some others haue ioyned a fourth, composed of all three: and some other a fift, diuers from all the rest.

Plato hath vnto these three well adioyned a fourth kind, that is to wit, where some few of the better sort excelling the rest in vertue, haue the soueraignetie: which for all [Sidenote 521 - *] that in proper tearmes, is nothing else but a pure Aristocratie: how be it, he hath not receiued the mixture of the aforesaid three states, for an other diuers forme of a Commonweale. Aristotle beside these three kinds of Commonweales which we haue spoken of: and the fourth also named by Plato, setteth downe a fift kind of Common weale, by confounding together the three former states, and so maketh fiue sorts of states or Commonweales. But Polybius reckneth vp seauen sorts; three commendable: [ H] three faultie: and the seauenth compounded of the mixture of the three first. Dionysius Halycarnasseus, Marcus Tullius, Thomas More, Gaspar Contarenus, Frauncis Machiauell, and many other following Polybius, haue as it were with one consent approoued his opinion, which in deed is most auntient, and tooke not beginning from Polybius, although he would seeme to be the authour thereof, neither from Aristotle, but aboue foure hundred yeares before Aristotle. Herodotus (the father of antiquitie) writeth, that fourth kind of a Commonweale, confused of the three other, to haue be•…] commended of many, and yet for all that contenting himselfe with the three former kinds, reiecteth the rest as imperfect: And were it not that I were not onely by probable arguments, but euen by forcible reasons drawne from that opinion of Polybius, [ I]Tullie, and the rest, I could easilie haue suffered my selfe to haue been ouercome by the authoritie of so great and graue men. It behoueth vs therefore by liuely reasons to shew them to haue erred and been deceiued, which haue brought in that fourth kind of Commonweale composed of the mixture of the other three: which I trust the more plainly to bring to passe, if I shall vse the same examples in refelling of them, that they themselues haue before vsed. For they them selues haue set downe the Lacedemonian, Roman, and Venetian Commonweales to haue been compounded and sweetely mingled with the three kind of states, that is to say, with the Monarchie, Aristocratie, and Democratie. But when Plato said, the best kind of a Commonweale •…]o be composed of the mixture of a Monarchie and Democratie, he was therefore forthwith [ K] reprehended by his scholler Aristotle, saying, that of these two could no commendable state be made, and that therefore it was better of all three estates to make a fourth: wherein Aristotle reasoneth also against himselfe; for if he confesse no good thing possiblie to be made of two extreames; what shall then bee made of three confounded amongst them selues? And for that this opinion for the making of a fourth [Sidenote 522 - *] estate of the confusion of the rest, may moue great troubles in Commonweales, and therein worke maruelous effects, it is requisite for vs well to examine the same: For when states of Commonweales are in them selues contrarie, as a Monarchie and a [Page 185] Democratie, they are by contrarie lawes and ordinances to be gouerned. The Florentins [ A] throughly perswaded of that opinion of the auntients for the mingling of the three estates together, as the best forme of a Commonweale; when they moued with the seditious sermons of P. Soderin, and Hierome Sauanarola, had translated the soueraignetie or chiefe power of the Commonweale vnto the people: thought it best to keepe the rout of the vulgar and common people from bearing of offices and rule, and altogether from the affaires of state: that so the chiefe managing of matters might be reserued vnto the more auntient sort of the citizins, and such as were of greater wealth and abilitie then the rest: who yet had not power to dispose of all matters, but onely of such things as were the chiefest, viz. the making of lawes, the creating of magistrats, and disposing of the common treasure: reseruing the rest vnto the Senat and magistrats, [ B] that so they might inioy that moderat state of a Commonweale, whereof they had so strongly dreamed. And certes if of the three estates moderately mixed might a fourth state arise, it should haue a certein power by nature diuers from the rest: as we see in Harmonicall consent, composed of Arithmeticall and Geometricall proportion artificially confused; yet quite differing from them both: so as if the mixture of things of diuers and contrarie natures, ariseth a third all together differing from the things so together mixed. But that state which is made of the mixture of the three kinds of Commonweales, differeth in deede nothing from a meane popular state; For if three cities, whereof one of them is gouerned by a king, and so a Monarchie; the second by the nobilitie, and so an Aristocratie; the third by the people, and so a Democratie; [ C] should be confounded, and so thrust together into one and the same forme of a Commonweale, and so the chiefe power and soueraignetie communicated vnto all: who is there that can doubt but that that state shall be all together a state popular? except the soueraignetie should by turnes be giuen; first to the king, then to the nobilitie, and afterwards to the people; As in the vacancie of the Roman kingdome, the king being dead, the Senators ruled by turnes: yet must they needes againe fall vnto one of these three kinds of a Commonweale which we haue spoken of: nether could this alternatiue manner of gouernement be of any long continuance, either yet more profitable to the Commonweale, then as if in an euill gouerned familie, the wife should first commaund the husband; then the children them both; and the seruants after them to [ D] dominier ouer all.

But to confound the state of a monarkie, with the Popular or Aristocratical estate, is a thing impossible, and in effect imcompatible, and such as cannot be imagined. For i•…] soueraignetie be of it selfe a thing indivisible, (as wee haue before showed) how can it then at one and the same time be diuided betwixt one prince, the nobilitie, and the people in common? The first marke of soueraigne maiestie is, to be of power to giue lawes, and to commaund ouer them vnto the subiects, and who should those subiects bee that should yeelde their obedience vnto that law, if they should also haue the power to make the lawes? who should he be that could giue the law? being himselfe [ E] constrained to receiue it of them vnto whom he him selfe gaue it? So that of necessitie we must conclude, that as no one in particular hath the power to make the law in such a state, that then the state must needs be a state popular. Now if we shall giue power vnto the people to make lawes, and to creat magistrats, and not to meddle in the rest; we must yet needs confesse that such power giuen vnto the magistrats belonged vnto the people, and that it is not giuen but as in trust vnto the magistrats: whom the people may againe displace, euen aswell as they placed them, in such sort as that the state should alwaies be popular.

And to proue that which wee haue said to be true, let vs take the same examples that [Page 186] Polybius, Contarenus, and the rest haue left vs; They say that the state of the Lacedemonians [ F] was composed of all the three kinds of states which we spoke of: For that in that Commonweale they had two kings representing a Monarchie; eight and twentie Senators representing an Aristocratie; and fiue Ephori figuring and patronizing the popular estate. But what will these men then say to Herodotus, who bringeth the [Sidenote 523 - *] Lacedemonian estate for an example of a most pure Aristocratie? what will they also aunswere vnto Theucidides, Xenophon, Aristotle, and Plutarche? who speaking of the warres of Peloponnesus (which continued twentie yeres betwixt the Popular and the Aristocratique Commonweals) say, that the whole drift of the Athenians and their allies was to chaunge the Aristocraties into Democraties, as they did in Samos, Corfu, and all the other cities by them subdued. Whereas contrariewise the Lacedemonians [ G] purpose and intention was to chaunge the Popular states into Aristocraties, as in deede they did in all the cities of Greece after the victorie of Lysander; yea euen in the citie of Athens it selfe, where after he had layed the wals euen with the ground, he tooke the soueraignetie from the people, and gaue the same vnto thirtie citizens, (who are therefore of the Athenians called the thirtie Tyrants) to rule and gouerne in such sort and manner as they did amongst the Lacedemonians, where so many, and no moe had the gouernement of the state. But among the citizens of Samos, the Siaeyons, the Aeginits, the Mylesians, and other cities of Ionia and the lesser Asia, they gaue the soueraignetie vnto Tenne principal men, with one chiefe Captaine ouer them, for the managing of the warres; calling hoame againe such as had bene banished [ H] for holding with the Aristocratie, and driuing into exile them that were chiefe of the popular factions.

What will they also say to Maximus Tyrius, who reckning vp the States which held the pure Aristrocratie first of all nameth the Lacedemonians, and after them the Thessalians, the Pellenians, the Cretentians, and the Mantineans. We must first conuince these so many and so famous authours of vntruth, before we can thrust the Lacedemonians from their Aristocratie: which writers liuing almost in the same time wherein the Athenian and Lacedemonian Commonweales flourished, and beeing [Sidenote 524 - *] themselues Grecians, were like more certainly and truely to know these things, than a Venetian Senator, a Florentine, or an English man. [ I]

What was it then that deceiued Polybius, who was himself a Megalopolitan, borne neere vnto the Lacedemonians? Truely it was euen the name of the Lacedemonian kings. For Lycurgus hauing altered the state of the Commonweale, and by the good will and consent of the kings themselues (who deriued their pedegree from Hercules) hauing translated the soueraigntie vnto the people, left vnto the kings, but the bare name and title onely, and to be the generals in warres. For why the regall power was now before alreadie sore shaken and weakned: after that Aristodemus king of Lacedemonia, had at once left his two sonnes to raigne together ouer the Lacedemonians (to the imitation of the Messenians, ouer whome Amphareus and Leucippus together raigned) who whilest they would both be kings and commaund ouer all, could neither [ K] of them so be, but by their ielous conceits and contentions, drawing the state into factions, gaue occasion to Lycurgus, being descended also of the same stocke with them, to ouerthrow their royall power, leauing vnto them and their house nothing els but the name and show of kings, giuing the rest vnto the Senat and the people. But as in Athens and Rome, after the kings were thence driuen out, they yet left the name of a king vnto a certaine priest, whome they called King of the Sacrifices, to doe a certaine sacrifice, which the king himselfe onely had in former time done: Which priest for all that was himselfe subiect vnto the great bishop, and could not (as Plutarch saith) haue [Page 187] any estate, or beare any office as the other priests might: euen so did Lycurgus vnto [ A] the two kings of Lacedemonia, who vpon the matter were nothing but Senators, hauing but their voyces with the rest, without any power at all to commaund; but to the contrarie were themselues constrayned to obey the commaundements of the Ephori, who oftentimes put them to their fines, yea and condemned them to death also, as they did the kings Agis and Pausanias, the soueraigntie still resting with the people, in whose power it was to confirme or infirme the acts and decrees of the Senat. Thucidides also himselfe reiecteth the opinion of them which thought the kings each of them to haue had two voyces. But about an hundred yeares after the popular state, ordayned, was againe chaunged by the kings Polydorus and Theopompus; seeing it to bee an hard matter to call the people together, and a great deale harder to rule them by reason, [ B] being assembled; oftentimes at their pleasure reuersing the most wholesome and religious decrees of the Senat. Wherefore they chaunged that popular gouernment into an Aristocratie, subtilly wresting an Oracle of Apollo to that purpose: whereby the God (as they said) commaunded that from thenceforth the gouernment of the Commonweale should be in the power of the Senat: and yet to please the people so grieued to haue left their power, they gaue them leaue to draw out of themselues fiue judges, called Ephori, as Tribunes or patrons of the people, who should examine the sayings, doings, and deuises of the kings, and by all meanes let them from the exercising of tyranny. And these Ephorie, euerie ninth yeare once, vpon some cleere night gazing vpon the firmament (as Plutarch saith) if they then saw any starre, as it were, sparkle or [ C] shoot, they thereupon committed their kings to prison, who might not thence be deliuered, vntill the Oracle of Apollo had so declared. In like manner the Phylactes or Gailor, euerie yeare had the king of Cumes in prison, vntill the Senat had determined what should be done with him. Now this state of the Lacedemonian Commonweale endured about fiue hundred yeares, vntill the time of Cleomenes, who hauing slaine the Ephori and the Senatours, and so oppressed the Commonweale, tooke vppon himselfe the soueraigntie, and so held it vntill such time as he was ouercome by Antigonus king of Macedon; who hauing vanquished him, restored that Commonweale into the state it was before: howbeit that twentie yeares after, being fallen againe into the power of Nabis the tyrant, who was afterward slaine by Philopomenes, that Commonweale was [ D] vnited vnto the state of the Achaeans, whereof it was a prouince, vntill that about thirty yeares after, it was by Gallus the Roman Proconsull taken from the Achaeans, and by Roman emperours set at libertie. Thus in few words you may see the true historie of the the Lacedemonian Commonweale, for most part taken from Xenophon, Thucidides, Liuy, & Polybius, whereof yet no man hath more curiously written than Plutarch, who out of the Lacedemonian acts and publike records, hath corrected such things as of others haue bene but slightly or falsly set downe and reported: which hath giuen occasion to many to be deceiued, and to thinke that state to haue bene mingled of the three diuers kindes of Commonweales. Which is plainly to be gathered out of Liuie, where he bringeth in Nabis the first tyrant of Lacedemonia, thus speaking to Titus [ E]Flaminius, Noster legulator Lycurgus, non in paucorum manu Rempub•…]esse voluit, quem vos Senatum appellatis, nec eminere vnum aut alterum ordinem in ciuitate, sed per aequationem fortunae & dignitatis fore credidit, vt multi essent qui propatria arma ferrent, Our lawgiuer Lycurgus (saith he) would not the state of our Commonweale to bee in few mens hands, which you call the Senat, neither would haue any one or other order to excell the rest in our citie; but by the making equall of mens fortune and dignitie, thought it would come to passe, that there should be many which would beare armes for their countrey. Thus he couereth his tyrranny with the show of a popular state, [Page 188] when as then there was no popular estate at all; yet in that he said most truely, that [ F]Lycurgus at the beginning gaue the soueraigntie vnto the people.

But let vs see the rest. They also haue put for example the Roman Commonweale, which they said to haue bene mingled of the three kinds of Commonweales: For so saith Polybius (who was maister to Africanus the Great) Wee see (saith hee) the regall power in the Consuls, the Aristocratie in the Senat, and the Democratie in the people. [Sidenote 525 - *] Vnto whome do plainely assent Dionysius Halycarnasseus, Cicero, Contarenus, Sir Thomas More, and many others: which opinion for all that is neither grounded vppon truth not reason. For where is this Monarchie, that is to say, the soueraigne gouernment of one man? which in the two Consuls cannot bee imagined. But soueraigne maiestie, if it were in the consuls could not possibly be diuided betwixt two, for the indiuisible [ G] nature thereof, which it seemeth more probable and reasonable to attribute the same vnto the dukes of Genua or Venice. But what regall power could there bee in the two Roman Consuls? who could neither make law, nor peace, nor warre, neither [Sidenote 526 - *] any great officer, neither graunt pardon, neither take a peny out of the common treasure, neither so much as to whip a citisen, if it were not in time of warre, without leaue of the people: which hath bene a power alwaies giuen to all gouernours of armies, whome we also may so call kings, and with greater appearance than the Consuls, who had not power but the one of them after the other, and that but for the space of one yeare onely. The constable of Fraunce, the chiefe Bassa of the Turkes, the Bethudere in Aethiopia, the Edegnare in the kingdome of Afrike, haue ten times more power [ H] than had the two Consuls together, & yet for all that they are but subiects & slaues to other princes, as were the Consuls subiects and seruants vnto the people. And to what purpose say they, that the Consuls had such royall authoritie, seeing that the least of the Tribunes of the people might imprison them. As did Drusus the Tribune, who by a sergeant tooke Philip the Consull by the coller, and cast him in prison, for that hee had interrupted him, as he was speaking vnto the people: and that he might lawfully so doe, shall hereafter be declared. The power of the Consuls was to lead the armies, war being before denounced, to assemble the Senat, to present the letters of the captaines and allies vnto the Senat, to giue audience vnto ambassadours before the people or the Senat, to call together the great estate, and to demaund the aduise of the people, about [ I] the election of officers, or promulgation of lawes; who yet standing, spake vnto the people sitting, and their mases downe, in token of their subiection vnto the people. The same authoritie with the Consuls had the chiefe gouernour of the citie in their absence. Ioyne hereunto also, that the Consuls had power but for one yeare: wherefore I leaue this opinion as scarce worthy the refuting.

Now as concerning the Senat, which they say to haue had the forme and power of [Sidenote 527 - *] an Aristocratie, it was so farre there from, as that there was neuer priuie councell, which had not more authoritie: for it had no power to commaund either particular men, or magistrats: yea the Senators might not assemble themselues, except it so pleased the Consuls, or the Praetor in the absence of the Consuls: insomuch that Caesar a popular [ K] man, perceiuing himselfe not gratious with the Senat, oftentimes called the people together in the yeare of his Consulship: but the Senat in all that yeare he assembled but once or twice, still presenting his request vnto the people when he would obtaine any thing: which was no great noueltie, for the Consull for his pleasure to doe, contrarie to the good liking and mind of the Senat. For we read (that the Senat at such time as it was in greatest authoritie that euer it was) in the daungerous time of the Commonwealth, hauing requested the Consuls to name a dictatour, the Consuls would therein doe nothing: insomuch that the Senat hauing no power to commaund them, neither [Page 189] any sergeant or like officer, which are the true markes of them which haue the power [ A] to commaund, sent Seruilius Priscus with their request vnto the Tribunes in this sort, * Vos (inquit) Tribuni plebis Senatus appellat, vt in tanto discrimine Reipublicae dictatorem [Sidenote 528 - *]dicere, Consules pro vestra potestate cogatis: Tribuni pro collegio pronunciant, placere Consules Senatui dicto audientes esse, aut in vinculase duci iussuros, The Senat (saith he) appealeth vnto you the Tribunes of the people, that in so great daunger of the Commonweale, you for the great authoritie you haue, would compell the Consuls to nominat a Dictator: whereupon the Tribunes pronounced for their whole societie, that their pleasure was, that the Consuls should be obedient vnto the Senat, or els that they would commaund them to prison. And in another * place the same author saith, That [Sidenote 529 - *] the Senat was of aduise, that the Consull should present the request vnto the people, [ B] for the commaunding of him whom they would haue Dictator: which if the Consull should refuse to doe, that then the Praetor of the citie should do it: who if he should refuse also, that then the Tribunes of the people should propound the matter. Consul negauit se populum rogaturum, Praetoremque rogare vetuit: Tribuni plebis rogarunt, The Consull denied to request the people, and forbad the Praetor also to request them, the Tribunes made the request. Wherby it euidently appeareth, that the Senat could not so much as commaund the lesser magistrats, the greater magistrats forbidding them. And as for that which Polybius saith, That the Senat had power to iudge of cities and prouinces, and to take punishment of conspirators against the state: * Liuie [Sidenote 530 - *] showeth it to haue bene otherwise, as when question was made for the chastising of the [ C] traitors of Campania, who after the battell at Cannas had ioyned themselues vnto Hannibal, an auntient Senator said in full Senat, Per Senatum agi de Campanis iniussu populi non video posse, I see not that any thing can by the Senat bee done concerning the Campanians without the commaundement of the people. And a little after, Rogatio ferator ad populum, qua Senatui potestas fiat statuendi de Campanis, Let request bee made vnto the people, wherby power may be giuen vnto the Senat, to determine concerning the Campanians. And vpon the request to that purpose presented vnto the people, the people gaue them commission, and commaunded the Senat to proceed [Sidenote 531 - *] against them in this sort, Quod Senatus maxima pars censeat, qui assident id volumus iubemusque, What the greatest part of the Senat shall agree vppon, wee that here sit [ D] will and commaund the same. Neither is Polybius•…]sse deceiued, in saying, That the Senat at pleasure disposed of the prouinces and gouernments: whereas Liuie the best author of the Roman antiquities, is of contrarie opinion, writing thus, Qui•…]tus Fuluius postulauit a Consule vt palam in Senatu diceret, permitteret ne Senatui vt de prouincijs decerneret, staturusque eo esset quod censuisset, an ad populum laturus: Scipio respondit se quode Republica esset facturum. Tum Fuluius a vobis peto Tribuni plebis vt mihi auxilio sitis. Quintus Fuluius requested of the Consul, that hee should openly say in the Senate whether hee gaue leaue or not vnto the Senat, to determine of the prouinces, and whether he would stand to that it should decree, or els would referre the matter vnto the people: Whereunto Scipio answered, That hee would do that which should [ E] be for the good of the Commonweale. Then said Fuluius, I request you the Tribunes of the people to aid and helpe me. So that it plainely appeareth, the Senat to haue had no power at all, neither the decrees thereof to haue bene of any force, without the consent of the Tribunes of the people: and that the rest they had by the sufferance of the same people. Now he that hath nothing but by sufferance, hath indeed nothing of his owne, as we haue before said. Yea such decrees of the Senat, as were confirmed by the consent of the Tribunes of the people, vnto whome they were to be communicated, could not yet be put in execution, except that either the Consuls did so command; [Page 190] or that the Consuls refusing so to do, the Tribunes themselues propounded the same [ F] vnto the people. So that in briefe all matters of estate, and namely all the councels and decrees of the Senat were of no force or vertue, if the people did not so command: or if the Tribunes of the people consented not thereunto, as wee haue before touched, and shall more at large declare in speaking of a Senat. Wherefore in the Roman state, the gouernment was in the magistrats, the authoritie and councell in the Senat, but the soueraigne power and maiestie of the Commonweale was in the people. Excepting that time wherein the Decemuiri contrarie to the law, kept in their hands longer than a yeare, the soueraigne power to make lawes committed vnto them; from which they were shortly after by force of armes remoued: for then it might of right haue bene called an Aristocracie, or more properly to say an Oligarchie. Now as we [ G] haue before said, that the power of magistrats (how great soeuer it be) is not of themselues, neither theirs, but as committed vnto them in trust: so at the first, after the driuing out of the kings, the Senators were chosen by the people; who to discharge themselues of that labour, committed that charge to the Censors, who were also chosen by the people, so that vpon the matter all the authoritie of the Senat depended of the people, who at their pleasure vsed to confirme or infirme, to ratifie or disanull the decrees of the Senat.

The same opinion hath Contarenus of the Venetian Commonweale, saying it to be [Sidenote 532 - *] also mixt of the three formes of Commonweales, as were those of Rome and Lacedemonia: For, saith he, the royall power is in a sort in the duke of Venice, the Aristocracie [ H] in the Senat, and the popular estate in the Grand Councell. But Ianot after him hath most curiously brought to light the true estate of the Venetian Commonweale; wherein he sheweth by most euident testimonies, drawne out of the most auntient and true Venetian records, That Contarenus in so saying was much deceiued. He sheweth plainely, that not past three hundred yeares ago, before the time of Sebastian Cyanee duke of Venice, the Venetian estate was a pure monarchie. Howbeit that Contarenus writeth it to haue bene established in the state it now is eight hundred yeares: and Pau. Manutius, saith it to haue so stood twelue hundred yeares: all which Ianot proueth out of the publike records, and certaine historie to be vntrue. But howsoeuer that be, plaine it is, at this day to be a pure Aristocracie: For by the view of the citie and the [ I] [Sidenote 533 - *] citisens, which was taken about thirtie yeares ago, were reckoned nine and fiftie thousand three hundred fortie nine citizens, beside children vnder seuen yeares old, but of Gentlemen, in whome resteth the soueraigne power of that state, betwixt foure and fiue thousand yong and old: yet had the church men and gentlemen vnder fiue and twentie yeares old, nothing to do with the state, more than to looke on, neither had they accesse into the Grand Councell, but by way of request: the young gentlemen beeing so vpon request receiued at the age of thirtie yeares, according as discretion was to be seene more in some one, than in some others: and yet hath it not bene found this hundred yeare, that the Grand Councell assembled, to decide the great affaires of that state, hath exceeded the number of fifteene hundred, as is to be seene in the histories [ K] of Sabellicus, and of cardinall Bembus, the rest being absent. It is therefore the least [Sidenote 534 - *] part of the Venetians that haue the soueraigntie, and they also of certaine noble families, for all the gentlemen borne in Venice, are not receiued into the Grand Councell; but there are of one and the same stocke, of the same race, of the same name, whereof some are citisens, and come not into the councell, and the others come. I do not here set downe the reason why, which euery man may see in Sabellicus. This great councel as Contarenus saith, hath soueraigne power to make and repeale lawes, to place or displace all officers, to receiue the last appeales, to determine of peace and warre, and to [Page 191] giue pardon vnto the condemned. Wherein Contarenus condemneth himselfe: for [ A] seeing it is (as he saith) it cannot be denied, but that the state of this Commonweale is Aristocratique. For were it that the Great Councell had no other power than to make lawes and magistrats, it were enough to proue it to be an Aristocraticall state, as we haue before said: for if those officers haue any power, they hold it of the Seigneurie: which sufficeth to show, that neither the Decemuiri, neither the Senat, neither the Sages, nor yet the duke with his sixe councellors, haue any power but by sufferance, and so farre as it shall please the Great Councell. As for the duke himselfe he alone of all [Sidenote 535 - *] other magistrats hath no command at all, as not hauing power to condemne any man before him, neither to stay or examine any man; which is the first marke of command, giuen euen vnto the least magistrats, neither may he decide any cause whether it be in [ B] matters of state, or administration of iustice; either in the assembly of the sixe councellors, or of the Decemuiri, or of the Sages, or of the Senat, or of the fortie judges in ciuill or criminall causes, or of the Grand Councell. For albeit that he may enter into all their corporations and colleges, yet so it is, that he hath but his voice, as any one of them; but that he vseth to giue it to the last: neither dare he to open any letter directed vnto the Seigneurie, or admit or discharge any ambassadours, but in the presence of his sixe councellors, or of the Decemuiri, or to go out of the citie without leaue. Yea Falerius the duke, for that he had without the consent of the councell married a straunger, was by the Decemuiri hanged. And beside him Sabellicus reckoneth vp twelue dukes moe, either by the tumultuous people slaine, or otherwise put to death for abusing their [ C] authoritie. But he weareth a most pretious cap, a robe of gold, he is followed, honoured, and respected as a prince: and the coyne carrieth his name, albeit that the stampe of the Seigneurie be vpon it, which are all tokens of a prince: all which royall magnificence we graunt him to haue, but yet all without power or commaund. Now if it were so that we should not according vnto truth, but after showes and appearances iudge of the estate of Commonweales, there should be found none simple and pure, but all mixt and confused in such sort as they say. Yea the empire of Germanie should be much more mixt, than the Venetian state. For the emperour hath other markes and [Sidenote 536 - *] more royall than hath the duke of Venice: then the seuen princes electors, with the other princes, haue the show of an Aristocracie, or of an Oligarchie: and the ambassadours [ D] of the imperiall townes resemble a Democracie. And yet for all that most certaine it is, that the imperiall state of Germanie is a pure Aristocracie, composed of three or foure hundred persons at most, ouer whome one prince beareth rule, to put in execution the decrees of the councell, or els is to be forced to giue vp his office, as wee shall in due place declare. In like manner they say also the states of the Swissers to be mixed of the three diuers formes of a Commonweale: Amongst whome the Burgamaister representeth the king, the Senat an Aristocracie, and the assemblies generall and particular, the state popular: and yet for all that men know might well, that all their states and Commonweales are either popular, as are they which inhabit the mountaines, or els Aristocratike, as are almost all the rest. [ E]

And this opinion of the mixed state hath so possessed the mindes of men, that many [Sidenote 537 - *] haue both thought and w•…]it this monarchie of Fraunce (than which none can bee imagined more royall) to be mixt and composed of the three kinds of Commonweals, and that the parliament of Paris hath the forme of an Aristocracie, the three estates of a Democratie, and the king to represent the state of a monarchie: which is an opinion not onely absurd, but also capitall. For it is high treason to make the subiect equall to the king in authoritie and power, or to ioyne them as companions in the soueraigntie with him. And what popular power appeareth, when the three states are [Page 192] assembled? or the parliament called? or wherein is the soueraigne maiestie of a prince [ F] so much manifested, as when euery man in particular, and all men in generall, aswel the noble as the meniall, with bended knee, and bare head, adore their king? offer vnto him their requests, which he at his pleasure admitteth or reiecteth. What counterpoise of a popular power against the maiestie of a monarch can there be in the assembly of the three estates? yea of the whole people, if it could be gathered into one place, which [Sidenote 538 - *] humbleth it selfe, requesteth and reuerenceth their king. So farre is it from that such an assembly in any thing diminisheth the power of a soueraigne prince, as that thereby his maiestie is the more encreased and augmented. For it cannot bee exalted into a more high degree of honour, of power, and of glorie, than to see an infinit number of great lords and princes, and people innumerable, of men of all sorts and qualitie, to [ G] cast themselues downe at his feet, and to doe homage vnto his maiestie; seeing that the honour, glorie, and power of princes, consisteth not but in the obeysance, homage, and seruice of their subiects. If then no forme or fashion of a popular power can bee imagined in the assembly of the three estates, which they make in this realme, no more or haply lesse than in England and Spaine: much lesse shall there be an Aristocracie in the Court of Peeres, (who are so called, for that they bee equall one with another among themselues, but not with the prince, as some haue too rustically deemed) or in the assembly of all the officers of the realme, considering that the presence of the king doth make all power and authoritie of all corporations and colleges, and of all officers aswell in generall as in particular to cease: in such sort, as that no magistrat hath power [ H] to commaund any thing in his presence, as we will in d•…]e place declare. And albeit that the king sitting in his seat of iustice, the chauncelour first addresseth himselfe vnto him, to know his pleasure, by commaundement from whome he goeth, gathering the aduise and opinions of the princes of the blood, and other great lords, the peeres and magistrats, which he reporteth againe vnto him: yet is not that so done, to the intent to number the voyces, as in the consistorie among the judges, but that the king vnderstanding their opinions, may as seemeth vnto him good, receiue or reiect the same. And albeit that most times he follow the opinion of the greater part, yet to make it knowne, that it is not the judges or magistrats decree, but the decree of the prince onely, and that the rest of the magistrats haue therein no power, the chauncelor pronounceth [ I] not this or that to be thought good vnto the judges of the court, but with a lowd voice vseth these words, The king sayeth vnto you. Wee see also that the court of parliament, writing vnto the king, keepeth euen yet the auntient stile, which is this in the superscription of their letters, To our Soueraigne Lord the King. The beginning of [Sidenote 539 - *] which letters is on this sort, Our Soueraigne Lord in most humble wise, and so much as in vs is we recommend vs to your good grace, And the subscription placed as low as may be: Your most humble and obedient subiects and seruants, the men holding your court of Parliament. Which is not t•…] th•…]anner of the lords of an Aristocracies speech: neither of such as are companions in Soueraigntie with the king, but of true and humble subiects. And for that I haue touched this point before, I will now lightly passe it ouer. [ K] The state of Fraunce therefore is a pure Monarchie, no•…] mingled with the popular power, and so lesse with the Aristocratique Seigneurie: which mixture of states is altogether impossible, and incompatible. And Aristotle most subtilly examining this opinion, for the mixture of states, truly calleth the state composed of an Aristocratic and a Democratie 〈 in non-Latin alphabet 〉], that is to say a Commonweale: but showeth not how that may be done, neither giueth thereof example, as he vsually doth in others: but to the contrarie confesseth, that he knew none such in his time; or yet had found any such before, albeit that he is reported to haue gathered an hundred Commonweales into [Page 193] one booke, which booke is now lost. And forasmuch as Aristotle seldome or neuer reporteth [ A] the true opinions of Plato, but to the contrarie alwaies disguiseth and obscureth them as the antient Academiques haue right well noted; and namely where hee reiecteth his Commonweale; vpon whose sayings many resting themselues haue oftentimes deceiued both themselues and others. We not addicted to either, will in few words set downe the true opinion of Plato concerning his Commonweale, deseruing well to be knowne for the better vnderstanding of the question we haue in hand, which some which neuer read the same, call a diuine opinion: some others in the meane time treading the same vnder foot, and rayling thereat as fast.

Plato faigned vnto himselfe onely two Commonweales, whereof the first hee attributed to Socrates, who neuer thought (as saith Xenophon) of that which Plato maketh [ B] him to say: and in his Commonwealth he taketh away these words, Mine, and Thine, as the source and fountaine of all euil, and would haue al goods, yea wiues and children to be common. But seeing euerie man to find fault therewith, he quietly left it, as if he had so writ more for argument sake, than for that he so thought, or to haue the same put in effect. The second is his owne, wherein hee taketh away the communitie of [Sidenote 540 - *] goods, of women and children: as for the rest those Commonweales are both in all things alike. For both in the one and the other, he would not haue aboue fiue thousand and fortie citisens, a number by him chosen to haue 59 entire parts: in which Commonweales he also maketh three estates or degrees of men: viz. the Guardes, Souldiors, and Labourers: and after that diuideth the citisens into three degrees, according [ C] to the vnequall rate of their substance. As for the soueraigntie hee giueth it vnto the whole multitude of the people; as to make and abrogat lawes, cause sufficient enough to iudge that he ment to make it a popular estate, if there were nothing else. But he passeth on farther, and giueth vnto the whole assembly of the people power to place and displace all the officers: and not content with that, willeth also that the people should haue all the power to iudge in criminall causes; for that they are (as he saith) all therein interessed. In briefe he giueth vnto the people power of life and death, to condemne, and to graunt pardon; which are all euident arguments of a popular state. For he appointeth no soueraigne magistrat, which might represent the state royall, and but a little of the forme Aristocratique: for he willeth, that the Senat, or the counsel for [ D] the affaires of the state, which he calleth Guards or keepers should consist of foure hundred citisens, to be chosen of the people. Whereby it is most euidently to bee vnderstood, that Plato his Commonwealth is the most popular that euer was, yea then that of his owne countrey of Athens, which Xenophon thought to haue bene the most popular state in the world. I omit the 726 lawes set downe by Plato, in the twelue books for the gouernment of his Commonweale: sufficeth it mee to haue showed Plato his imagined Commonweale not to haue bene made of a mixture of an Aristocracie, and Democracie, as Aristotle said, whose errour Cicero, Contarenus, and others, one after another following, led the rest that followed them into errour also.

Let vs therefore conclude, neuer any Commonwealth to haue beene made of an [ E] Aristocracie and popular estate; and so much lesse of the three states of Commonweales, and that there are not indeed but three estates of Commonweales, as Herodotus first most truely said amongst the Greekes, whome Tacitus amongst the Latins imitating, saith, Cunctas nationes & vrbes, populus, aut primores, aut singuli regunt, The people, the nobilitie, or one alone, do rule all nations and cities.

But some man will say, May there not be a Commonweale, wherein the people hath the power to create the magistrats, to dispose of the common reuenew, and power of life and death; which are three markes of soueraigntie, & the nobilitie to haue power [Page 194] to make lawes, to dispose of peace and warre, and of the impositions and taxes; which [ F] are also markes of soueraigntie: and besides all these to haue one royall magistrat aboue all, vnto whome all the people in generall, and euerie one in particular should yeeld their faith and liege loyaltie, and from whose iudgement none might appeale or present any ciuill request. For so the rights and markes of soueraigntie should seeme to be diuided in three parts: the people chalenging one part thereof, the nobilitie another, and the king the third: whereby in that state a mixture might seeme to bee made of the royall Aristocratique and popular state together. Whereunto I aunswere, that such a state was neuer found, neither that such a state can bee made, or yet well imagined, [Sidenote 541 - *] considering that the markes of soueraigntie are indiuisible. For the nobilitie which should haue the power to make the lawes for all: (which is as much as to say to commaund [ G] and forbid what them pleased, without power to appeale from them, or for a man to oppose himselfe against their commaunds) would by their lawes at their pleasure forbid others to make peace or warre, or to leuie taxes, or to yeeld fealtie and homage without their leaue: and he againe to whome fealtie and homage is due, would bind the nobilitie and people not to yeeld their obedience vnto any other, but vnto himselfe. And admit that euerie one would seeke to defend his owne right, and not suffer any thing to be taken from him that he thought belonged to himselfe: yet that doth most differ from the nature of a Monarchie, that he which hath the soueraigntie, should himselfe bee enforced to obey any other but especially his subiect. Whereby it commeth to passe, that where the rights of soueraigntie are diuided betwixt the [ H] prince and his subiects: in that confusion of the state, there is still endlesse sturres and quarrels, for the superioritie, vntill that some one, some few, or all together haue got the soueraigntie. Whereof as there be many examples of old, so is there none fitter in our time, than the example of the kings of Denmarke, whome the nobilitie euer since Christiern the great grandfather of Frederike which now raigneth, hath almost made subiect vnto the lawes. Christiern they thrust out of his kingdome, and set vp his cosen in his place, with condition that he should neither make peace nor warre, without the leaue of the senat: nor that he should haue any power to condemne any gentleman to death; with many other like articles, which I will in their place set downe: which the kings since that time haue sworne to keepe: which that they should not go against, [ I] but that they might be the more firmly kept, the nobilitie will in no case that the king should of himselfe make any peace; and yet haue themselues made a league with the king of Polonia, and them of Lubec, against the king, for the defence of their libertie. So indeed are the rights of Soueraigntie diuided betwixt the king and the nobilitie, but so as that they both liuing in perpetuall feare and distrust; do seeke for the alliance and fellowship of their neighbour princes and people, so to receiue the lesse harme one of them from another. With like surges and tempests is the kingdome of Sweden also tossed, the king whereof liued in such distrust with his nobilitie, as that king Henry was [Sidenote 542 - *] glad to take a German for his Chauncelour, and one Var•…]nnes a Norman for his high Constable: and yet at length was by his nobilitie thrust out of his royall seat, and by [ K] them cast in prison, wherein hee liued seuenteene yeare. Wherefore such states as wherein the rights of soueraigntie are diuided, are not rightly to bee called Commonweales, but rather the corruption of Commonweales, as Herodotus hath most briefly, but most truely written. For as bodies by nature well framed, if they begin to change, with wonderfull stinke and contagion annoy all that come neere them, vntill they bee quite altered, and become new things; as when egges are set vpon, which before they were set, and after they be hatched also haue a good smell and taste, though in the verie alteration of them not so: so also Commonweales which chaunge their state, the soueraigne [Page 195] right and power of them being diuided, find no rest from ciuill warres and [ A] broiles, vntill they againe recouer some one of the three formes, and that the soueraigntie be wholie in one of the states or other.

Yet might one say, that in the estate of the Romans the lesse part of the people chosen out of the richer sort made the lawes, and greatest officers; namely the Consuls▪ the Praetors, the Censors, had both soueraigne power of life and death: and disposed of warre, and that the greater sort of the people made the lesser officers and magistrats, to wit, the Tribuns of the people; the foure and twentie militarie Tribunes; the two Aediles or Sherifes; the Treasourers; the Scout, and mynt masters, and gaue also all benefices vacant, and more then that the greater part of the people iudged of the great criminall processes before Sylla, if it tended not to the naturall or ciuill death of [ B] any. And by this meane it seemeth that that Commonweal was composed of an Aristocracie, and of a popular estate: Whereunto I answere, that it had well some appearance, but yet neuerthelesse was in effect a true popular estate: for albeit that the great estate of the people was diuided into sixe degrees, or companies, according to euery ones abilitie, and that the knights, and the greatest part of the Senators, and of the nobilitie, and richer sort of the people were of the first companie: who agreeing among themselues, the lawes by them made were published, and the great magistrats by them chosen receiued to take their oath: yet neuerthelesse true it is that the fiue companies that remayned, had tenne times as many citizens in them: and in case that all the Centuries of the first companie agreed not vpon the matter, they then came to [ C] the second companie, and so by order even to the sixt and last, which in deede seldom times or neuer happen. Matters being still so agreed vpon, as that they came not alwayes vnto the second companie, but seldom to the third, and most seldom to the fourth, scarcely at all vnto the fift, and neuer vnto the sixt: wherein was all the rabble of the poore and base people, in number farre exceeding all the rest: yet sufficeth it for our purpose, that all the people had thein part, to shew it to haue beene a popular state: albeit that the most noble and richer sort were first called. And yet for all that the meniall people, (that is to say, the greater sort of the people) without the nobilitie, seeing them selues sometime deceiued of their voices (after that the kings were driuen out) and little or no regard to be had of them, began tumultuously to arise: whereof [ D] grew the three departures of the people into the mount Auentine, whither the people in armes had retired them selues for the defence of their libertie and power against the nobilitie: which could not bee appeased vntill it was lawfull for them to chuse vnto them selues their owne sacred magistrats, and that in their owne assemblies, from which the nobilitie was excluded: and then the Commonweal seemed in a maner to haue beene mixt of the nobilitie and the people. But if a man will consider the shortnes of the time, and the turmoyles where with the Commonweal was in the meane time afflicted, he shall confesse that it could scarce haue stood in that state, although most miserable twentie or thirtie yeares: neither yet so long, had it not on euery side beene beset with enemies. For shortly after the people tooke vnto them selues the [ E] power to make lawes, wherein the maiestie of the Commonweal is contained; and so by little and little wrested from the nobilitie (much against their will & long strugling therefore) the other soueraigne rights also: in somuch that the nobilitie scarce made twelue lawes in the space of foure or fiue hundred; And yet at the same time that the people chose the greater magistrats by their greatest assemblies, the vulgar people was there present, and enrolled in the sixt companie, which although it most seldom gaue suffrage or voice, yet might it so do, if the other companies should haue disagreed among them selues: a reason sufficient to showe the state even at that time also to haue [Page 196] beene a popular state. [ F]

Yet for all that a man may say that it followeth not hereof that there are not but three sorts of Commonweals, although they cannot be amongst them selues mixed: for it may be that of threescore thousand citizens in a citie, fortie thousand may haue the soueraigntie, and twentie thousand be excluded: where, for that the greater part beareth the sway, it shal be a popular state: and contrarie wise if but an hundred of that multitude shall haue the soueraigntie, it shall be an Aristocracie; for that the lesse part of the citizens gathered together hath the soueraigne power: what then, if of the same number of citizens fiue and twentie thousand shall hold the chiefe power? Truely, it may be doubted whether such a state be an Aristocracie, although the lesse part of the citizens enioy the soueraigntie, the rest being reiected: for why, it differeth much whether [ G] an hundred citizens, or fiue and twentie thousand beare rule, and much more if of an hundred thousand citizens fiue and fortie thousand haue the soueraigntie: or of so great a multitude thirtie onely should beare the sway, the rest excluded, as among the Lacedemonians: yet I alwaies deeme it to be an Aristocracie, if the lesser part of the [Sidenote 543 - *] citizens beare rule ouer the rest: for otherwise if the diuersitie of the number should make the diuersitie of Commonweals, there should be of them a million, yea an infinite of diuers kinds of Commonweals: for the number of them which should haue part in the state encreasing or diminishing, should make an infinite diuersitie, whereof no knowledge is to be had; suffiseth it the soueraigne power to be with the greater or [Sidenote 544 - *] lesser part of the people, for the making of an Aristocracie or Democracie. The rest [ H] of the difficulties which might be moued concerning the nature of euery Common weal shall hereafter be in due place declared.

Yet one thing remayneth in the question we haue in hand to be discussed, which is that the Roman Commonweal vnder the emperour Augustus, and the other emperours after him, vnto the time of Flauius Vespatianus, was called a principalitie, of which sort of Commonweal, neither Herodotus, neither any of the Greek or Latine writers, except Tranquillus, seemeth to make any mention: for he writeth that the emperour Caligula, seeing diuers kings at his table to enter into the tearmes of honour, and the antiquitie of their houses among themselues; with a loude voice brought forth that verse of Homer which Agamemnon vseth against Achilles, who would [ I] needs make himselfe equall and companion with him.

〈 in non-Latin alphabet 〉].

And much it missed not but that hee had euen than taken vpon him the imperiall crowne, and chaunged the forme of the Roman principalitie into a kingdome; and thus much he. whereby it is to be vnderstood the Roman state vnder Augustus after the battell at Actium, to haue beene neither a Popular state, an Aristocracie, nor a [ K] Monarchie. Now a principalitie is nothing else then an Aristocracie, or a Democratie, [Sidenote 545 - *] in which one chiefe commaunded euery man in particular, and it is but the first in generall: for this word (Prince) to speake properly signifieth no other thing but him that is first. So the Iewes complained Aristobulus the first of the house of the Amoneans, to haue chaunged the principalitie which was Aristocratique, into two kingdomes, at such time as he tooke one crowne to himselfe, and sent an other to his brother. The like wee find, that the auncient cities of Tuscanie made alliance with Tarquinius Priscus king of the Romans; vpon condition that hee should not haue [Page 197] power ouer them of life and death: neither to put garrisons into their townes, nor to [ A] impose vpon them any taxes or tallages; or to chaunge any of their customes or laws, Sed vt ciuitatum principatus penes regem Romanum esset, but that the principalitie of their cities onely should be with the Roman king: for so saith Florus. Now all those cities were of a popular state. Wherefore Tarquinius was but the first and chiefe in the assemblies of those cities, who might gouerne the multitude no otherwise than doth the emperour in the German empire, or the duke in Venice, or Genua, who may most rightly be called princes, as in the same sence in antient time the chief magistrat among the Athenians, was called 〈 in non-Latin alphabet 〉], or prince: yet was that Commonweale of all other most popular.

But if there be two chiefe magistrats of like power, as in Rome; or three, as in many [ B] cities of the Swissers; or foure, as amongst them of Geneua; it cannot there be called a principalitie, for that none is there chiefe or principall. But in the Roman Commonweale, Augustus by a crafty deuise hauing made himselfe but great Generall of the armie (by the name of Imperator) and Tribune of the people for defence of their profit, (from whome for all that he had taken their libertie) and as it seemed almost enforced by the Senat, had taken vpon him the charge of the Commonweale for ten yeares, made that state in show and false semblant but a principalitie, when as before hee had placed in all the prouinces fortie legions, and taken three for the safetie of his person, and put sure garrisons into all the castles and strong fortresses of the empire: so inuading the royal power without a Scepter, without a Diadem, or a Crowne; whose successors [ C] [Sidenote 546 - *] (excepting some few) some more, some lesse, exercised most cruell tyranny. For Tiberius in the beginning of his raigne, rise vpon the Consuls, and meeting them gaue them way, (as sayth Tranquillus) but afterwards oppressed the Commonweale with most filthy seruitude and slauerie. But here is to be considered what was in deed done, and was not made show of: for he that beareth greatest sway in the Commonweale, him men thinke to haue the soueraigntie: but if question be made of the right, then are we to looke not what is indeed done, but what ought to be done. Wherfore it appeareth a principalitie to be nothing els, but an Aristocratie, or a Democratie, hauing some one for chiefe or principall aboue the rest, the soueraigntie yet still remaining with the nobilitie or the people. [ D]

CHAP. II. ¶ Of a Lordly Monarchie, or of the sole gouernment of one.↩

WE haue before said, that a Monarchie is a kind of Commonweale, wherein the absolute soueraigntie lyeth in the power of one onely prince: which definition we are now to explaine. When we say of one, so the word Monarchie of it selfe importeth: For if we shall in the [Sidenote 547 - *] gouernment ioyne two or moe, no one of them shall haue the soueraigntie: for that a soueraigne is hee which commaundeth all others, [ E] and can himselfe by none be commanded. If then there be two princes equall in power, one of them hath not the power to commaund the other, neither can hee suffer the commaund of the other his companion, if it stand not with his owne pleasure, otherwise they should not be equals. Wee may then conclude, that of two princes equall in power in the same Commonweale, and both of them in al things lords of the same people, and of the same countrey indiuisibly, neither the one nor the other hath therein the soueraigntie: but it may well be said them both together to haue the soueraignty of the state comprised vnder the name of an Oligarchie, but is more properly [Page 198] called a Duarchie, a kind of Aristocracie, which may be of continuance and durable, so [ F] long as the two princes shall well agree together. As Romulus and Tatius, one of them king of the Romans, and the other of the Sabines, after certaine conflicts, making peace entred into societie together, vpon condition, that both their people vnited together, should dwell within the same walles, and by the name of Quirites by common soueraigntie be gouerned by both kings. But Romulus, who before by the slaughter of his [Sidenote 548 - *] brother Remus had rid himselfe of his fellow in the kingdome, could not long endure the straunger to raigne with him, but caused him to be slaine, or at leastwise held the murtherer excused, being for the fact apprehended. Long time after the Roman empire was conuerted from a Monarchy into a Binarchie: at such time as Antoninus Pius left M. Aurelius, and Aelius Verus, emperours, and both fellowes in the same empire: [ G] of which two Aelius in short time after died, and not without the suspition of poison. For it is, and alwayes hath bene a thing most hard to maintaine the equall soueraigntie of both together. And that which Lucan writeth,

Is especially to be vnderstood of a Diumuirat, or soueraigne gouernment of two together. [ H] For that the gouernment of three or moe together in the soueraigntie, may bee firme, but of two not so; seeing that by nature one thing is but contrarie to one, and not to many: the third as a meane still ioyning the extreames together. And therefore the Roman emperours, when as they at the same time tooke vpon them the same soueraigntie of gouernment, least by the mutuall concurse of their power, they should violat their faith and friendship, diuided the empire, the one being emperor of the East, and the other of the West; the one residing at Constantinople, and the other at Rome, in manner as if they had bene two Monarches, although sometimes the same edicts and lawes were in both empires by the common consent of both princes published. Yet so soone as they began to quarrell, the two empires were indeed diuided in power [ I] lawes and estate. So might a man say of the Lacedemonian Commonweale well gouerned by one king. But when Aristodemus left the kingdome to be gouerned wholly, and diuided by his two sonnes Froclus and Euristhenes both at once, they quickly fell at oddes, and had their state taken from them, by Lycurgus (beeing himselfe a prince descended of the blood of Hercules) and the soueraigntie by him giuen vnto the people. The like happened vnto Amphareus and Leucippus, kings of the Messians. But the Argiues least they should sal into the same troubles, to auoid the plurality of kings, at such time as Atreus and Thyestes at once seised vpon their fathers kingdome, the people (I say) made choyce of the wiser, or as Lucian saith of the more learned. And the princes of the blood of Meronee and Charlemaigne, diuided the kingdome amongst [ K] them. So the children of Clodoueus, of their fathers one kingdom made foure of equall power. And the three children of Lewes the Debonaire diuided so many kingdomes amongst them. Neither do we read many at once long to haue holden a kingdome together vndiuided: for the indiuisible nature of soueraigntie, and the fellowship of gouernment, is alwayes full of dangers, where no one hath the soueraigntie, except when a straunge prince marrieth a queene, among such as are acquainted with womens gouernment: where commonly the pictures of the man and his wife, their names and armes are ioined together; as if the soueraigntie belonged vnto them both: as it chanced [Page 199] when king Ferdinand married Isabel queene of Castile, Anthonie of Burbon, Ioane [ A] queene of Nauarre, and Philip king of Spaine Marie the daughter of Henrie king of England. Howbeit the English men would not suffer him to haue any part with her in the soueraigntie, or of the fruites or profis thereto belonging, but that the same should remaine wholly vnto her selfe; albeit that they were contented that they should both (for fashion sake) beare the name, and both the one and the other signe charters, and commissions, but yet so, as that the signe of the queene might of it selfe bee sufficient, but that without hers the signe of king Philip should be to no purpose. Which was also agreed vpon with Ferdinand king of Arragon, hauing married Isabel of Castile, [Sidenote 549 - *] where all the commaunds were signed, Yo el Roy, and Yo la Reyna; and by the secretarie [ B] of the state, with sixe doctors: but as for the soueraigntie it was wholly in the queene. Than which no more effectuall reason can be giuen against the Manichies, who crroneously appointed two gods of equall power; one good, & the other euil: for if it were so they being contrarie the one to the other, should either ruinat the one the other, or els being at continuall variance, should without ceasing trouble the sweet harmonie and concord that we see in this great world. And how could the world endure those two lords of equall power, and contrarie in will the one to the other, seeing that the least citie or Commonweale cannot suffer two, albeit that they were brethren, if they should fall neuer so little at variance: much more easily could it endure three such princes than two; for that the third might vnite the two, or els ioyning himselfe with the one, constraine them both to liue in peace. As it happened so long as Pompee, Caesar, [ C] [Sidenote 550 - *] and Crassus liued, whome the people called the monster with three heads: for so long they peaceably gouerned the Roman empire, which then depended of their power. But so soone as Crassus was slaine in Caldea, straight way the other two fell in sunder, and so egerly made warre the one of them vpon the other, as that to reconcile them was impossible, vntill that one of them had quite ouerthrowne the other, and made himselfe maister of all. The like happened after the death of Caesar, in the Triumuirat of Augustus, M. Antoninus, and Lepidus, who hauing of one popular Commonweale, made three Monarchies; and Lepidus vnfit for gouernment, had submitted his authoritie vnto Augustus, although Antoninus had married Augustus his sister, and that they two had equally diuided the empire betwixt them, and liued in countries [ D] farre distant one from another; yet rested they not long, but that the one of them was shaken out of all, by the authoritie and power of the other. Whereafter ensued the sure state of the empire, established vnder one mans gouernment. Wherefore let vs hold it as resolued vpon, that it cannot be called a Monarchie, where the soueraigntie is in two mens power; neither that any gouernment can consist in that state, if they shall fall at variance betwixt themselues.

Now Monarchie is diuided into three formes: for he that hath the soueraigntie, is [Sidenote 551 - *] either lord of all: or else a king, or a tyrant, which maketh no diuersitie of Common weals, but proceedeth of the diuersitie of the gouernour in the Monarchie: For there is great difference betwixt the state, and the gouernment of the state: a rule in pollicie [ E] (to my knowledge) not before touched by any man: for the state may be in a Monarchie, and yet the gouernment neuerthelesse popular; if the king do distribute all places of commaund, magistracie, offices, and preferments indifferently vnto all men, without regard of their nobilitie, wealth, or vertue. But if the prince shall giue all commaund, honours, and offices, vnto the nobilitie onely, or to the rich, or to the valiant, or to the vertuous onely, it shall be a royall Monarchie, and that simple and pure, but yet tempered in maner of an Aristocracie. So also an Aristocratique seigneurie, may gouerne their estate popularly; diuiding the honours and preferments therein vnto all [Page 200] the subiects indifferently: or else Aristocratically, bestowing them vpon the nobilitie or richer sort onely; which varietie of gouernment hath deceiued them which haue made a mixture of Commonweals, and so made more sorts thereof then three, without hauing regard that the state of a Commonweal is different from the administration and gouernment of the same: But this point we will farther touch in place conuenient.

Wherefore a lawfull or royall Monarchie is that where the subiects obey the lawes [Sidenote 552 - *] of a Monarque, and the Monarque the lawes of nature, the subiects inioying their naturall libertie, and proprietie of their goods. The lordly Monarchie is that where the prince is become lord of the goods and persons of his subiects, by law of armes and lawfull warre; gouerning them as the master of a familie doth his slaues. The tyrannicall [ G] Monarchie, is where the prince contemning the lawes of nature and nations, imperiously abuseth the persons of his free borne subiects, and their goods as his owne. The same difference is also found in the Aristocratique and popular estate: for both the one and the other may be lawful, lordly, and tirannicall, in such sort as I haue said: for the greatest tyrannie of all other is of Tully called the rage of the furious and turbulent people.

Now as concerning the lordly Monarchie, it is conuenient for vs first to intreat [Sidenote 553 - *] thereof, as of that which was first amongst men: for they are deciued which following the opinion of Aristotle, suppose that golden kind of men (more famous for the poets fables, then for that there were any such in deed) to haue made first choice of [ H] their heroicall kings: seeing we find, and all men are perswaded that the first Monarchie was established in Assiria, vnder the power of Nemrod, whom the holie scripture calleth the great hunter; which is a common phrase of speach amongst the Hebrewes, by which word they signifie a theefe, or robber. For the auntient writers, viz. Plato, Aristotle, and Xenophon, haue put robberie among the kinds of hunting, as wee haue elswhere noted. For before the time of Nemrod no man is found to haue had power [Sidenote 554 - *] and rule one ouer an other, all men liuing in like libertie; he being the first that tooke vpon him the soueraigntie, and that caused free borne men to serue: whose name seemeth to haue beene giuen him according vnto his qualitie, for asmuch as Nemrod signifieth a terrible lord. Soone after the world was seene full of slaues, Sem one of [ I] the sonnes of Noe yet liuing. And in the whole course of the Bible, the scripture speaking of the subiects of the kings of Assiria and Aegipt, calleth them alwaies slaues: and not the holie scripture onely, but the Greekes also, who alwayes in their writings tearme them selues free, and the Barbarians slaues; meaning by the Barbarians the people of Asia and Aegipt. And therefore the kings of Persia denouncing warre, demaunded the earth and the waters, (as Plutache writeth) to showe that they were absolute Lords of all that was in the land and sea conteined. And that is it for which Xenophon in his Cyropaedia writeth, that it is a thing good and commondable among the Medes, that the prince should be lord and owner of all things: And thereof came the adoration which not onely the subiects, but straungers also, yea and the embassadors [ K] of forren nations vsed towards the kings of Persia, to showe that all was in his power. For when Themistocles, whose name euen then and long before was most famous, would after the manner of the Greeks haue spoken vnto the Persian king, Atabanus captaine of the kings gard, kept him from comming vnto him, neither would suffer him to preferre any request vnto him, vntill such time as he had after the Persian manner adored him: but afterwards when he was gon out of the kings presence, hee courteously spake vnto him, and in these words excused that he had done; It is seemely O Themistocles, to follow the fashion of the countrey wherein a man is: you Grecians [Page 201] make great reckning of your libertie and equalitie of commaund; but we esteeme [ A] it for the best thing in the world to reverence, serue, and honour our king, as the image of the living God. Wherevnto agreeth that which Liuie writeth, Barbaris pro legibus semper dominorum imperia fuerunt. The commaund of their lords haue beene alwaies [Sidenote 555 - *] vnto the Barbarians for lawes. Neither ought this lordly monarchie to be accounted a tyrannie: for it is not inconvenient, that a soueraigne prince hauing in good and lawfull warre vanquished his enemies, should make himselfe lord of their goods and persons by the law of armes, governing them now his subiects, as doth the good housholder his seruants or slaues: as wee see it a thing receiued by the manner and custome of almost all nations. But the prince which shall by vniust warre, or other vnlawfull meanes make of freemen his slaues, and possesse himselfe of their goods, is [ B] not a lordlike Monarche, but a verie tyrant: from which Adrian the emperour was so farre, as that he would not that a slaue a player, should enioy his libertie, which his master at the request of the people of Rome had giuen him in the Theater, but left it to the discretion of his master, to be as he thought good disposed of: As had Tiberius before, and after that Marcus Aurelius Adrian his sonne in like case forbid the same: whatsoeuer consent the master had giuen at the clamour of the people; reputing it rather forced than done of good will: to the end that the full disposition should be in euery mans power, of that which vnto him belonged. And now although at this present there be few princes which haue in their absolute power the bodies and goods of their subiects, although we see many tyrants; yet are there many in Asia and Africa: [ C] but in Europe I know none which take so much vpon them, beside the Princes of the Turkes, and of the Moscouits. True it is that the Moscouits call themselues Chlopes, [Sidenote 556 - *] that is to say, seruants, which wee corruptly call slaues. But the Fmperour of the Turkes styleth himselfe Sultan, that is to say Lord: not so much for the largenes of his possession, (seeing that the king of Spaine hath vnder his dominion and rule, people for their crueltie barbarous, for their multitude innumerable, in places infinite: which his kingdome is bounded with the same countries, wherewith the course of the sunne is bounded, being ten times greater then the Turkes empire) but is therefore called Lord of the Turkes, for that he is lord of their persons and goods; whom for all that he gouerneth much more courteously and freely, then doth a good housholder [ D] his seruants: for those whom wee call the princes slaues, or seruants, the Turkes call them Zamoglans, that is to say tribute children; whom the prince vseth no otherwise to instruct, then if they were his children: and to bestow on them noble preferments, which are of others desirously sought after. As for his Timariot horsmen, they hold all their possessions in fealtie of the Prince, as it were during pleasure, renewing their letters patents from ten yeares to ten yeares: neither when they dye can they leaue their children heires of their possessions, but of their moueables onely; except by the gift of the prince they keepe the possession of their fathers lands, as they doe of his goods. Other princes there are none in Europe which call themselues lords of the bodies and goods of their subiects, and fewer in auncient time then at this present: for [ E]Augustus the emperour himselfe, although he were in effect the greatest monarch in the world, yet so it was that he so abhorred to be called Lord: neither had any that held of him in fealtie and homage.

Now if one say that there is no Monarque in Europe which pretendeth not all the [Sidenote 557 - *] goods and lands of his subiects to belong vnto him in right of direct soueraigntie, neither any man which confesseth not to hold his goods of his soueraigne prince: yet I say that that sufficeth not that any man should therefore of right be called lord of all, or a lordly Monarche: seeing that euery subiect hath the true proprietie of his owne [Page 202] things, and may thereof dispose at his pleasure: although the prince for pompe and [ F] show challenge vnto himselfe the soueraigntie thereof. And yet there are diuers lands which are called Allodial, wherein the prince hath neither proprietie, nor soueraigne [Sidenote 558 - *] right, as not holden of him. The Hunns a Tartar-like nation come from the farthest parts of Scythia, at such times as they with fire and sword destroied almost all Europe, first showed the example vnto the Lombards and Almans, Germaine nations, and to the Frankes, the auncient inhabitants of Fraunce, calling themselues Lords of all, and so accustomed these nations to lord it ouer all: as that no man could hold a turfe of ground but by their leaue. True it is that the Romans hauing vanquished their enemies, most commonly solde them for slaues, or else condemned them to lose the [Sidenote 559 - *] seauenth part of their lands: which lands they straight waies gaue vnto their Colonies [ G] in pure proprietie. But princes and people instructed in ciuilitie, for feare of rebellion, or distrust of their owne power, reiected such lordlike soueraigntie as had the kings of Persia and Asia ouer their subiects: contenting themselues with the shadow of such lordly Monarchie. And albeit that the Persian kings before the time of Artaxerxes, had vsed to cause their great lords and magistrats to be stript starke naked before them and whipped as slaues: yet king Artaxerxes was the first that ordained that they should in deed be stript, but should not haue but their cloathes and garments onely beaten: and wheras their haire was wont in dispite to be pulled off, he commaunded the wooll of their cappes onely to be so pulled. True it is that Francis Aluarez writeth, that he [Sidenote 560 - *] hath seene in Aethiopia the great Chauncelour, and other great lords and gouernours [ H] of prouinces stript starke naked, and cast vpon the ground whipped as slaues before their prince: who held the same as a great honour vnto them; by the discourse of whose hystorie, a man may easilie gather the great Negus of Aethiopia to be a Lordly Monarque. But the people of Europe more couragious, and better souldiers then the people of Africke or Asia, could neuer endure the lordly Monarques, neither had euer vsed them before the incursions of the Hunnes into Europe, as I haue before said. And first of all Odonacre king of the Herules, who almost at the same time invaded Italie, that Attila did Germanie; hauing brought Italie vnder his subiection, tooke the third part of the territorie from the subiects (the punishment of all people by him vanquished,) but left their persons free, and themselues lords of their goods, without any [ I] [Sidenote 561 - *] tenure, or yeelding vnto him of any fealtie or homage. But after that the Almans, Lombards, Frenchmen, Saxons, Burgundians, Gothes, Ostrogothes, Englishmen, and other Northren people had tasted the maners and customes of the Hunnes, they began to make themselues Lords, not of the persons, but of all the lands of them whom they had vanquished: and yet afterward reseruing vnto themselues the most fruitfull part thereof, left the rest vnto the auncient inhabitants, to be by them inioyed, yet as holden of them in fealtie, with paying of some small tribute if they should change the possession thereof: which for this cause are called Seigneuries, or Lordships; to show that the shadow of the auncient lordly Monarchie as yet remayneth, although greatly diminished. For these fees and lordships were in auncient time nothing else but benefits [ K] and rewards giuen to souldiors for terme of their liues, and afterward by fauour continued from the father to the sonne: except dukedomes, marquisats, earledomes, and other like honours and dignities, giuen vnto dukes, marqueses, earles, and such like honorable personages, and not vnto the lands: a custome not yet chaunged in England and Scotland for regard of the dignities, where the dukes and counties being dead, their children and successours haue their lands; but not still the dignities, prerogatiues, and titles of their predecessours: for when fees or lands were giuen to souldiours for terme of their liues, they afterward obtained, that they might either by their [Page 203] wills, or else dying intestate, leaue them vnto their children; and that if there were no [ A] heires males left, they should by law descend vnto the women: excepting in Germany, where the women are excluded from the inheritance of lands in fee▪ which was the strongest argument which Fredericke countie of Vaudemont vsed against Renat of Aniou king of Sicilie at the counsell of Constance, demaunding of the Emperour that he might be invested in the dukedome of Loraine, considering that it was an imperial fee, and by consequent that Isabel wife to Renate was not thereof capable: although she were the duke of Lorains daughter. Howbeit that Renate the king of Sicilie, might by an other reason haue defended himselfe, that is to say, that in question of fees, and seruices, we are to follow the lawes and customes of the land that oweth the seruice, and not of that wherevnto the seruice is due: now by the custome of Loraine the [ B] daughters succeede in fees. But how soeuer it be, most certein it is that the marks of [Sidenote 562 - *] Lordly Monarchies, haue continued in Germanie, and towards the North more than in the other parts of Europe. For albeit that William the Conquerour, hauing conquered the realme of England, by force of armes, called himselfe not onely lord of that realme, but also caused it to be proclaimed, that the soueraigntie and proprietie of al his subiects goods, mouable, and immouable vnto him belonged: yet neuerthelesse so it was, that he contented himselfe with the direct soueraigntie, fealtie and homage: the [Sidenote 563 - *] subiects still enioying their libertie, and full propertie of their goods. But the emperour Charles the fift, after he had subdued the great countrey of Peru, made himselfe Lordly Monarch thereof, causing all things to be holden of him, excepting the slaues, [ C] whome for that they were innumerable he caused to be set at libertie. As for the lands he left them to be enioyed by them that possessed them at his pleasure: and not to descend vnto their children by inheritance. A craftie and subtill deuice, whereby Lagasca the lawyer, the emperours lieutenant in Peru (Gonsulo Pizarra, and the rest of the authors of rebellion vanquished and ouerthrowne) by a perpetuall bond to keepe the inhabitants of that country, within the compasse of their duety, compelled them for euer to aske of the king of Spaine, the possession of their goods, their kinsmen beeing dead: except the parents themselues yet liuing, had before procured the same to be graunted for their children in time to come: which was not to be obtained without a great sum of money to be paid into the kings coffers: they of greater power in the meane time [ D] being thereby kept from raising of any new sturres. For like cause whereof in one [Sidenote 564 - *] chapter of Mahomets, it is forbiden all persons of what degree or qualitie soeuer to call themselues in any sort lords, except the Caliph, or great bishop the successour of Mahomet, who at the first was the onely Lordly Monarch or lord of all, giuing vnto kings and princes their principalities and kingdomes, during his pleasure, vntil that the Othoman princes, the Curdes, and the kings of the higher part of Asia and Afrike, by little and little exempted themselues out of their power (by reason of the diuision betwixt them and the Anticaliphes) and so tooke vnto themselues the kingdomes of those countries.

But yet here might some man doubt whether the lordly Monarchie be not a Tyranny, [ E] [Sidenote 565 - *] considering that it seemeth to be directly against the law of nature, which reserueth vnto euerie man his libertie, and the soueraigntie ouer his owne goods. Wherunto I aunswere, that of auntient time it was indeed against the law of nature to make free men slaues, and to possesse himselfe of other mens goods: but if the consent of all nations will, that that which is gotten by iust warre should bee the conquerours owne, and that the vanquished should be slaues vnto the victorious, as a man cannot well say that a Monarchie so established is tyrannicall: seeing also wee read that Iacob the Patriarch, by his testament leauing vnto his children certaine lands that hee had [Page 204] gotten, said that it was his owne, for that he had got it by force of armes. And that [ F] more is, the rule that willeth that the law of armes should take no place where there be superiours to do iustice (which is put in practise against the greatest princes, and imperiall cities of Germany, who be proscribed by the empire, for not making restitution of that which belonged to others) sheweth right well, that where there is no superiour to commaund, their force is reputed iust. For otherwise, if we will mingle and confound the Lordly Monarchie, with the tyrannicall estate, we must confesse that there is no difference in warres, betwixt the iust enemie and the robber; betwixt a lawfull prince and a theefe; betwixt warres iustly denounced, and vniust and violent force; which the antient Romans called plaine robberie and theft. We also see tyrannicall states and gouernments, soone to fall, and many tyrants in short time slaine: whereas the seigneurelike [ G] states, and namely the Lordly Monarchies haue bene both great and of long continuance, as the auntient Monarchies of the Assyrians, the Medes, Persians, & Aegyptians; [Sidenote 566 - *] and at this present that of Aethiopia (the most auntient Monarch of all Asia and Afrike) whereunto are subiect fiftie kings as slaues, if we may beleeue Pau. Iouius, who all are, and tearme themselues the slaues of the Grand Negus of Aethiopia. And the reason why the Lordly Monarchie is more durable than the royall, is for that it is more maiesticall, and that the subiects hold not their liues, goods, and libertie, but of the soueraigne prince, who hath by iust warre conquered them; which plucketh downe the courage of subiects, so that the slaue acknowledging his condition, becommeth humble, abiect, and hauing as they say a base and seruile hart. Where to the contrarie, men [ H] free borne, and lords of their owne goods in a royall Monarchie, if one would make them slaues, or take from them that theirs is, they would not take it, but easily rebell, bearing noble harts, nourished in libertie, and not abastardised with seruitude. And thus much concerning a Lordly Monarchie: Now let vs speake of the Monarchie Royall.

CHAP. III. Of a Royall Monarchie.↩

A Royal Monarch or king, is he which placed in soueraignty yeeldeth [ I] [Sidenote 567 - *] himselfe as obedient vnto the lawes of nature as he desireth his subiects to be towards himselfe, leauing vnto euery man his naturall libertie, and the proprietie of his owne goods. I haue put to these last words for the difference of a Lordly Monarch, who may be a iust and vertuous prince, and equally gouerne his subiects, being himselfe yet neuerthelesse lord both of their persons [Sidenote 568 - *] and goods. And if it so chaunce the Lordly Monarch hauing iustly conquered his enemies countrey, to set them againe at libertie, with the proprietie of their goods: of a lord he becommeth a king, and chaungeth the Lordly Monarchie, into a Monarchie Royall. And that is it for which Plinie the younger saith vnto Traian the emperour, [ K]Principis sedem obtines, ne sit Domino locus, Thou holdest the seate of a prince, Lord it not. This difference (betwixt a Royall Monarch and a Lordly) was well noted by the auntient Persians, calling Cyrus the elder (which ouerthrew the Monarchie of the Medes) by the name of a king: but tearming Cambyses a lord, and Darius a marchant; for that Cyrus was a gentle and courteous prince towards his subiects, but Cam byses his sonne was haughtie and proud, and Darius too great an exactor and couetous. So it is also reported Alexander the Great to haue bene aduised by Aristotle, to beare himselfe towards the Greekes as a father; but towards the Barbarians as a [Page 205] lord: which his councell Alexander neuerthelesse reiected, willing that the Greekes [ A] should be reckoned of according to their vertue, and the Barbarians according to their vices; saying, that the whole earth was but one citie, and his campe the Castle thereof.

We haue moreouer said in our definition, that the subiects ought to be obedient vnto the Royall Monarch, to show that in him alone lyeth the soueraigne maiestie; & that the king ought to obey the lawes of nature: that is to say, to gouerne his subiects, and to guide his actions atcording vnto naturall iustice, whose luster was brighter than the light of the sunne it selfe. It is then the true marke of a Royall Monarchie, when the [Sidenote 569 - *] prince sheweth himselfe as obedient vnto the lawes of nature, as he wisheth his subiects to be vnto himselfe. Which it is not hard for him looking into the dutie of a good [ B] prince to obtaine; as fearing God aboue all; if he be also pitifull vnto the afflicted, wise in his enterprises, hardie in his exploits, modest in prosperitie, constant in aduersitie, aduised in his speech, wise in his councell, careful of his subiects, comfortable to his friends, terrible to his enemies, courteous to the good, dreadfull towards the euill, and iust towards all. Which royall soueraigntie so set downe, as that the subiects stand obedient vnto the lawes of their prince, and the prince likewise vnto the lawes of nature: the law being on both sides a mistresse, or as saith Pindarus, a queene raigning ouer both, it shall in the same bonds vnite the subiects among themselues, and together with their prince: whereof shall grow a most sweet harmony, which may with wonderfull pleasure and felicitie blesse them both. This is that regall and lawfull Monarchie of one, [ C] which we seeke after, whether the kingdome descend by succession, as it most commonly doth; or by the law, as this of ours, or by election, as in many kingdomes towards the North; or by gift, as the kingdome of Numidia (which by Caesar brought into the forme of a prouince, was by Augustus the emperour giuen to young Iuba, who so of a slaue became a king) or as the kingdome of Naples, and Sicilie, giuen to Charles of Fraunce, and after to Lewes, first duke of Aniou, or left by testament, as in former times the kingdomes of Tunes, Fez, and Marocco, and was also of late put in practise by Henrie the eight king of England, who by his will left that kingdome vnto his son Edward the sixt, to whom hee substituted his sister Marie, and vnto her Elizabeth, who was afterward queene: or that the kingdome bee got by fraud and deceir, so that he [ D] raigne iustly, as Cecrops, Hieron, Gelon, and Pisistratus, who right wisely vsed their power, as saith Plutarch: and in our time Cosmus de Medices: or by chaunce, as the kingdome of Persia, by the neying of an horse fel to Darius Histaspis one of the seuen Persian lords, it being so before agreed, after they had slaine the Mages, who had vsurped the kingdome, that he whose horse first neyed, should haue the kingdome: or be it that the prince by force of armes, by right or wrong conquer his kingdome, prouided that he vprightly gouerne the same so by him conquered; as Titus Liuius saith of king Seruius, Neque enim praeter vim quicquam adius regnt habebat. Neither had he any thing but force vnto the right of the kingdome; and yet he was a good king, as it oftentimes hath bene seene of a robber and a theefe, to haue proued a vertuous prince; and of a [ E] violent tyranny, to haue growne a iust royaltie. Or be it that the king bee chosen for his nobilitie, as was Campson chosen Sultan of Aegypt by the Mamalukes: or for his iustice and deuotion, as Numa in Rome: or for his age, as the antient Arabians made choice of the eldest amongst them for their king, as saith Diodorus, and they of Taprobana, as saith Pliny: or for his strength and force, as Maximinus the Roman emperor, being of such stature and strength, as that he seemed to haue come of the race of Giants: or for his feature and beautie, as was Heliogabalus, therefore chosen emperour of the same Roman empire: or for his height and stature, as in Aethiopia the kingdomes [Page 206] were still giuen to the tallest: or for that he could drinke most, as in Scythia, as Aristotle [ F] saith; who defineth a king to be him, who chosen by the people, raigneth according to the desire of them his subiects: from whose will (as hee in another place saith) [Sidenote 570 - *] if he neuer so little depart, he becommeth a tyrant. Which his description is not only [Sidenote 571 - *] without reason, but also daungerous: for that soucraigne power which he said to bee most proper vnto a king, must so needs fall, if the king could nothing command against the liking and good will of his subiects; but must to the contrarie be constrained to receiue lawes of them In briefe it should be lawfull for the people to do all things; and the most iust and best kings should so be accounted for tyrants: neither were a king to be reputed of any thing else, than as of a meane magistrat, vnto whome power were to bee giuen, and againe taken away at the peoples pleasure. Which are all things [ G] impossible, and no lesse absurd also, than is that which the same Aristotle saith, That they are barbarous people, where their kings come by succession. When as yet his owne king and scholler Alexander the Great, was one of them which descended in right line from the blood of Hercules, and by right of succession came to the kingdom of Macedon. The Lacedemonians should be also barbarous, who from the same stocke of the Heraclides, had had their kings about a thousand yeares. The people of Asia also, the Persians, and Aegyptians, should so all bee barbarous: in whome not onely rested, but from whome all humanitie, courtesie, learning, knowledge, and the whole source and fountaine of good lawes and Commonweales haue sprung: and so at last none but Aristotle with some handfull of Greekes should bee free from barbarisme. [ H] Whereas indeed nothing can be deuised more daungerous vnto the state of [Sidenote 572 - *] a Commonweale, than to commit the election of kings vnto the suffrages of the people; as shall in due place be hereafter declared. Although Aristotle be in that also deceiued, where he saith, That there be three sorts of kings; & yet hauing in his discourse reckoned vp foure, in casting vp of the account he findeth out a fift. The first hee calleth Voluntarie kings, as raigning by the will and good liking of the people, such as were the kings of Heroique times, whome he supposeth to haue bene Captains, Iudges, and Priests. The second he saith, are proper vnto the barbarous nations, where kings come by succession. The third are made by election. The fourth was proper to the Lacedemonians, whome he saith to haue bene perpetuall generals in their [ I] warres; the sonne still succeeding his father. The fift and last kind, is of them which hauing themselues got the Lordly soueraigntie, vse their subiects, as doth the maister of the house his slaues. As for the first sort of kings, we find, that they indeed executed the offices of judges, captaines, and priests, yet none of them are found to haue ruled at the will and pleasure of the people, either to haue receiued their authoritie from the people, before Pitacus king of Corinth, and Timondas king of Nigropont: but to the contrarie* Plutarch writeth, That the first princes had no other honour before their eyes, [Sidenote 573 - *] than to force men, and to keepe them in subiection as slaues: whereof the holy scripture also certifieth vs of the first Lordly Monarch Nemrod; leauing the soueraigntie to their children, in right of succession; as saith Thucidides. Which hath also beene [ K] well confirmed by the succession of a great number of kings of the Asirians, Medes, Persians, Indians, Aegyptians, Hebrewes, Lacedemonians, Macedonians, Sicyonians, Epirots, Athenians: and their lines failing, the people in part proceeded to make choice of their kings by way of election, some others inuaded the state by force, other some maintained themselues in Aristocratike and popular seigneurie; as witnesseth Herodotus, Thucidides, Iosephus, Berosus, Plutarch, Xenophon, and other most auntient historiographers of the Hebrewes, Greeks, and Latines, sufficient to conuince the opinion of Aristotle of vntruth in those things that he hath writ concerning kings. Whereas also [Page 207] he comprehendeth the Lacedemonian generals, vnder the name of kings: he is therein [ A] deceiued, seeing it is before declared, that he cannot be a king, which hath not the rights of soueraigntie. And that the Lacedemonian kings, after the conuersion of that Commonweale, were nothing but Senators, and subiect to the magistrats commaund, wee haue also before shewed. Yea the generals power was not alwaies giuen vnto them, as Aristotle supposeth, who calleth them the perpetuall generals of the warres: for asmuch as that power and authoritie was communicated to their citisens also, as to Lysander, Leonidas, Callicratides, Gilippus, whome the Lacedemonians oppressed with warres preferred before their kings. And albeit that Agesilaus was one of their kings, yet so it was, that he durst not take vpon him the charge of a generall, vntill the Seigneurie had so commanded; as Plutarch in his liues reporteth. And when they were [ B] chiefe captaines and generals, they gaue them yet no royall power, no more than had the generals of the Acheans, which were made by election, considering that they were subiect vnto the slate of the Acheans, who if they so deserued punished them, as they did Democritus their generall, whome they fined at thirtie thousand crownes, as wee read in Pausanias. So the Ephori punished their kings with banishment, imprisonment, and fines, yea and sometime wi•…]h death, as we haue before said. We must not therefore put these in the ranke of kings, no more than him which is a Lordly Monarch, lord of the persons and goods of his subiects, who hath his proper difference seperated from a Monarch Royall.

As for the third sort of kings, which he said was made by election, that can make [ C] no difference of kings, no more than can the second, which he said was by succession, for otherwise he should by the same meanes make also a sixt kind of kings, made by chaunce; as was Darius the first: and so a seuenth by donation, an eight by testament, [Sidenote 574 - *] and a ninth by finnes and deceit, and a tenth by force: which were nought else, but to make an infinit sort of kings, who all neuerthelesse are comprehended vnder one kind. For the difference of Monarches is not to be gathered by the meanes of the comming to the state, but by the meanes of gouerning of the estate. Which as we said is comprised in three kinds or sorts, viz. the Lordly Monarchie, the Royall Monarchie, and the Tirannicall Monarchie. But whereas Aristotle vnder the name of kings comprehendeth them also which were woont for a short time to be chosen, to establish or reforme [ D] the Commonweale, and that done, to giue vp their charge, are quite different from the regall power. Neither hath it any apparance to call them kings, which are nothing els but simple commissioners, such as were the dictators in the Roman Commonweale, whome Dionysius Halicarnasseus writeth, to haue bene in power and office like vnto them whom the Thessalians called Archos, the Lacedemonians Cosmos, the Mitylenians Aesymnetes, hauing like charge that the baily of Florence had at such time as that Commonweale was gouerned by a popular gouernment; that is to wit, the Grand Councell of the people made choyce of eight or ten persons, best seene in their affaires, to reestablish the state, and to put againe in order that which by processe of time was fallen into disorder, either in their lawes, or in their customes, in their reuenewes, [ E] or in creating of their officers: which done they discharged themselues of their offices: like as the Decemuiri, or ten commissioners, which were chosen in Rome, to reforme that was amisse in the state, whome wee should by this meanes, according to the opinion of Aristotle call also kings; which should be a thing verie absurd; for asmuch as the qualitie of a magistrat, and much lesse of a commissioner hath nothing agreeing or common with the soueraigne maiestie of a king. And albeit that Caesar in his Commentaries saith, the inhabitants of Autun to haue euerie yeare chosen them a magistrat with royall power; that is of them but improperly spoken: for why, it is manifest, [Page 208] that he which was a magistrat could be no king. And that more is, the gouernours [ F] of the countries and prouinces conquered by Alexander the Great, although that after his death euerie one of them tooke vpon him the soueraigntie in the country or prouince that he gouerned; yet it was a long time before they durst stile themselues by the name of kings. The first that began was Antigonus, after the victorie by him [Sidenote 575 - *] obtained against Ptolomeus Lagus: after which he set a crowne vpon his head, and vsed in his titles the name of 〈 in non-Latin alphabet 〉], or king. And immediatly after, the Aegyptians called Ptolomee king; as to their imitation did the Assyrians Seleucus, and the Thracians Lysimachus also. And not to go further, the auntient kings of Loraine and Burgundie, after that they had yeelded fealtie and homage vnto the German emperour, lost the name and soueraigntie of kings, and called themselues but dukes: for that now they [ G] were no more kings, according to that fit saying of Martial, Quirex est, regem Maxime non habeat. For why, the name of a king is alwaies maiesticall, and the most honourable that a soueraigne prince can haue: and for that cause the habit, the markes, the signes of kings, haue bene alwaies particular, and proper vnto themselues; as the royal armes, the golden robes, the crowne and scepter, not to be communicated vnto other men. And there was nothing that made the maiestie of the Roman kings so venerable, as the royall ornaments which Tarquinius Priscus brought from the antient kings of Hetruria, as we read in the histories. And the Romans themselues, after they had driuen out the proud Tarquin their king, although they abhorred the verie name of a king, and much more the gouernment, hauing chaunged the royall state into a popular: [ H] yet so it was, that the Roman Senat vsed to send vnto kings, their allies and confederats, the royall marks of kings; namely a diadem or crowne of gold, a cup of gold, the iuorie scepter; and sometime the popular robe embroidered with gold, & a chaire of iuorie, as the histories declare. And in the Commentaries of pope Gregory the seuenth, [Sidenote 576 - *] we read that Demetrius was by the scepter, crowne, and ensigne established king of Croatia and Sclauonia: of which things the bishops of Rome haue oftentimes bene liberall (should I say) or prodigall? aswell as the emperours: yet had they no more so to do, then had the Greeke emperour Anastasius, who sent the Consulatie ornament and titles of Augustus vnto Clodoueus king of Fraunce, who (as Aymon saith) receiued them in the citie of Tours: or than Iustinian, who gaue vnto king Childebert the [ I] title of a Senator: by which things it is certaine, to be derogated from the soueraignty of anothers maiestie, which is it selfe the chiefest, except they bee receiued from them that are in their confederation their superiours. But as for the Frenchmen they had not made any league with the Greeke emperours, but by their valour had thrust the Romans out of the possession of their kingdome. True it is, that betwixt confederats of equall power, ornaments of honour, as girdles, rings, and such like, may both bee giuen and receiued, without any emparement to their maiestie: but to receiue the honor of a Consull, or of a Senator, is as much as to acknowledge the maiestie of a superiour. Frederike the emperour (first of that name) sent vnto Peter prince of Denmarke, a sword and a crowne, with the title of a king, which was a title contrarie to the effect, [ K] considering that he yeelded himselfe vassall vnto the empire, and did fealtie and homage vnto the emperour, for the realme of Denmarke, promising and binding aswell himselfe as his successours, to hold that kingdome of the empire, in this forme, [Sidenote 577 - *]Rex Danorum Magnus se in potestatem Imperatoris tradidit, obsidesdedit, iuramentum fecit, se successoresque suos, non nisi imperatoris & successorum eius permissu regnum adepturos, The great king of the Danes hath deliuered himselfe into the power of the emperour, hath giuen hostages, taken his oath, that he and his successours shall not but by the sufferance of the emperour and his successours, take vpon them that kingdome. Wherein [Page 209] he two wayes offended, first, for that allured with the ornaments sent him by the [ A] emperour, hee diminished his owne maiestie: and then for that he bound vnto perpetuall seruitude, not himselfe onely, but his posteritie also: who perceiuing the errour, reuolted from the empire. for seeing that the kingdome of Denmarke depended of the voices and suffragies of the Senat and the people, hee could not bind, not onely his posteritie, but not so much as himselfe vnto that law. The duke of Austria also was by the same emperour, and almost at the same time, honored with the same ornaments and title, yet with condition that hee should still remaine in the perpetuall obeisance of the German Empire, wherein he then was, and euer had beene: but when he breaking his faith, had reuoulted from the empire, he was within twelue yeares after spoyled both of his royall dignitie and title. By like errour [ B]Henry the first king of England, sonne to William the Conquerour, whilest he yet liued caused Henry his eldest sonne to bee crowned king: for he straight way after, would needs be equall with his father, and take vpon him to mannage the greatest affaires of state; in such sort that great quarrels and contentions arise betwixt the father and the sonne, euen vnto parts taking, which had without doubt ruinated the state, had not the sonne beene before by death prevented. So also in this realme, when the familie of the Capets had vsurped the kingdom, the better to confirme their wealth and power, not as yet well grounded; lest the kingdom after the death of their kings should fall into an Anarchie, they still caused▪ their sonnes (whilest they themselues yet liued) to be crowned and proclaimed kings. So Hugh to assure this succession, caused his sonne [ C]Robert to be crowned king: Robert, Henry: and he afterwards Philip; which manner of crowning of the sonnes, the fathers yet liuing, after their estate and power better confirmed and established, was againe left. And so to doe, vnto mee seemeth a thing [Sidenote 578 - *] verie daungerous, especially if the new crowned king be sicke with the ambitious desire of rule: for that the subiects more willingly behold the sunne rising then setting: except the king haue many kingdomes, with great fluds, most high mountaines, or the deepest seas, one from an other divided, not easily with the wings of aspiring ambition to be passed. So Seleucus king of both Asiaes, graced his sonne Antiochus not onely with the royall dignitie, but also placed him in the gouernment of the kingdome of the higher Asia; which is a thing may well be suffered where kings haue vsed to be created [ D] by the voices of the Senat, and the people▪ as are the kings of Denmarke, Sueuia, Polonia, Tartaria, Bohemia, Hungarie, and Tunes: who commonly cause him whom they desire to raigne, to be before hand elected by the suffragies of the people, and to bind the princes by oath vnto him, So Changuis first of all the Tartar kings, chosen king by his subiects, caused Hoccata his eldest sonne to be crowned king, himselfe yet liuing. And Gostanus king of Sweden hauing vsurped vpon that state against the king of Denmarke, caused his sonne Henry to be also chosen king. And Frederik now king of Denmarke, was chosen king in the yeare 1556, two yeares before the death of his father: who not yet so secured, but doubting least his vncles Iohn and Adolphe after his death should practize a new election, and so raise new stirres, requested the French [ E] king by M. Danzai the French ambassadour, and afterward by an embassadour of his owne, (sent directly for that purpose) to stand his friend, and to receiue him into his protection. So haue done, and yet also doe the kings of Marocco, Fez, and Tunes. And in our memorie Ferdinand of Austria yet liuing, caused Maximilian his sonne to be chosen and crowned king of Hungarie and Bohemia: as shortly after Maximilian did the like for his sonne Ernestus; and so peoples voices by little and little taken away are at length quite buried in obliuion. The like was also attempted for the nominating of his successour by Sigismundus Augustus king of Polonia, but was letted so to [Page 210] doe by the states of that kingdom, although it seemed for the good of that Common [ F] weal, for the auoyding of sedition, which might rise about the election: yet would not the states of that kingdom thereto agree; for feare least the right of their election, should so passe into the force of succession. As we see the Germain Empire to haue taken so deepe roote in the most honorable familie of the house of Austria, as that there is but little hope for the pulling of it out thence againe. And thus much concerning a royall Monarchie: now let vs likewise speake of the third kind, which is a Tyrannicall Monarchie.

CHAP. IIII. ¶ Of a Tirannicall Monarchie.↩

[ G]

A Tirannicall Monarchie is that where one man treading vndet [Sidenote 579 - *] foot the lawes of God and nature, abuseth his free borne subiects as his slaues: and other mens goods as his owne. This word Tyrant deriued from the Grekes was of the proprietie thereof honorable, and in auncient time signified no other thing then a Prince, which without the consent of the people, had by force or fraud possessed himselfe of the state; and of a companion made himselfe their master: whom they called a Tyrant, although he were [Sidenote 580 - *] a right wise and iust prince. So Plato writing to Dionysius the Tyrant of Syracusa by [ H] way of honour giueth him this title; Plato to Dionysius the Tyrant greeting, and the answere was; Dionysius the Tyrant to Plato health. And so the rest aswell philosophers as friends, honestly called them Tyrants which had by force or finenesse got the soueraigntie of their cities and states: in which name the Tyrants themselues also gloried. And to show that the name of a Tyrant was aswell giuen vnto a good and iust prince, as to an euill and wicked, it appeareth euidently in that, that Pittacus and Periander reckened among the seauen Sages of Graece, were called Tyrants, hauing taken vnto themselues the state and gouernment of their countries. But for the mercie of their enemies, were constrained for the safetie of their liues and goods to haue gardes of straungers about their persons, and great garisons in their fortresses and strong holds: and [ I] for the maintenance of their souldiours and retinue were enforced to lay vpon their subiects great impositions and tributes: and seeing their liues not yet so assured, hauing but poore friends, and puisant enemies, put to death, or banished the one, to enrich the other; and hauing taken their goods, rauished also their wiues and children: they with these outragious enormities raised a wonderful hatred of themselues through out the whole world. For we read that Dionysius the elder which had oppressed Syracusa had alwaies about him for the garding of his person and the citie ten thousand footmen, and as many horsemen; beside a fleete of foure hundred gallies still readie furnished with all things necessarie: and yet thought it not a strength sufficient to keepe vnder those fewe citizens that were left, whom he had vtterly disarmed, and in most seruile [ K] manner oppressed: although hee had before taken away not onely their societies and companies; but forbidden also neighbours and friends to eate together, and oft times commaunded them returning home from supper or making merie, to be robbed and spoiled by his garde; to the intent there might bee the lesse friendship amongst them, and so they more hardly conspire against him. And yet for all that Plutarque hath giuen him the praise of a good prince, as one who in iustice and vertue exceeded many, who abusing the most honorable names of Kings, are themselues polluted and defiled with all maner of vices. For we are not much to rest vpon the vaine show of [Page 211] words and glorious titles; when as often times the worst men arrogate vnto them [ A] selues the most commendable names, showes, and recognancies of vertue; against which sort of Princes, the subiects for all that vse to cast forth most reproachfull taunts: as the three Ptolemeis kings of Aegypt; of whom the one had put to death his brother; the other his mother; and the third his father: the subiects in derision called them [Sidenote 581 - *]Philadelphe, [Sidenote 582 - *]Philometor, and [Sidenote 583 - *]Philopator. Also the most reuerend and holy names haue become abhominable, for the wickednesse of them that haue most filthyly abused the same. The name truely of a king is holy, yet was it for the pride of Tarquinius, and the rauishment of Lucretia by his sonne, made hatefull vnto the Romans. And the crueltie of Scylla in his Dictatorship made the Dictators odious. So the immoderat ambition of Francis Valori made the Confalonniers of Florence hatefull vnto [ B] the Florentines. And so also it is euident, the name of Tyrant to haue bene hateful to all nations for oppressing of the people.

But it may be, that one and the same prince, whose dominion is large and wide, may beare himselfe as a king vnto his naturall subiects: and as a lordly monarch towards them, whome he hath by iust warre subdued, and as a tyrant toward the rest: or that in the same citie he may tyrannise ouer the rich and better sort of the citisens; and yet show himselfe courteous and gentle vnto the poore and baser sort. And amongst tyrants there are diuers sorts and degrees of more or lesse: and as there is not so good a prince, which hath not some notable vice; so wee see that there is none so cruell a tyrant, which is not endued with some good vertue, or hath not in him some thing to [ C] be commended. Wherefore it is a thing of most euill example, and thereto daungerous [Sidenote 584 - *] withall, rashly and foolishly to censure a prince, whose actions and comportments we throughly know not; whereas we ought first wisely to weigh his vertues and vices, his heroicall or base and euill disposition: after the manner of the Persians, who condemned no man to death (although conuicted of the crime whereof he was accused) except it first appeared by his former life, whether his vices exceeded his vertues or not. For so Liuie did well, who hauing diligently reckoned vp Hannibal his vertues, and comming afterward vnto his vices, saith, Has tot ac tantas virtutes ingentia vitia aequabant, These his so many and great vertues, were counteruailed with great vices. Wherefore least the good should be confused and so confounded with the bad; o•…] [ D] that we should vnder the name of a tyrant comprehend them also which were right worthy and famous men: let vs compare the worst tyrant with the best king; that by such comparison of the two extreames, those may bee the better perceiued which are in the middest betwixt both. Now when I say the best king, my meaning is after the [Sidenote 585 - *] common manner: neither doe I seeke after such an one as is accomplished with all heroicall vertues; or the rare paragon of iustice, wisedome, and religion, a man without all imputation: which in the fables of auntient worthies, were propounded with more magnificence than truth, for princes to looke vpon and to imitat; such as neuer was, nor euer shall be: but rather such an example of a good and iust king, as is indeed in the ranke of princes to be found; and such an one as is alwayes readie to bestow his goods, [ E] his blood, and life, for the good of his people: What manner of prince is of Homer in two words called 〈 in non-Latin alphabet 〉], whose whole endeuour is to bee indeed such an one as Codrus and Decius are reported to haue bene, who aduertised by the Oracle, that the victorie ouer their enemies depended of their death, without farther delay sodenly sacrificed their liues: and Moyses aboue all, whome Philo calleth the most wise law giuer; a most iust prince, who besought God, That he might rather die the euerlasting death of the wicked, and haue his name blotted out of the booke of life, than that the people committed to his charge, should endure so great and grieuous punishment as it [Page 212] had deserued: by which prayers hee appeased the wrath of God, like a most good [ F] king, & true father of his people: than which name Augustus the great emperor is reported neuer to haue heard any title or addition, vnto him more pleasing, at such time as M. Valerius Messala, was by a decree of the Senat, and of the people of Rome, called Father of his countrey. For why, the best prince nothing differeth from the best father, as Xenophon was woont most excellently to say.

Now the greatest difference betwixt a king and a tyrant is, for that a king conformeth [Sidenote 586 - *] himselfe vnto the lawes of nature, which the tyrant at his pleasure treadeth vnder foot: the one of them respecteth religion, iustice, and faith; whereas the other regardeth neither God, faith, nor law: the one of them referreth all his actions to the good of the Commonweale, and safetie of his subiects; whereas the other respecteth [ G] nothing more than his owne particular profit, reuenge, or pleasure: the one doth all his endeuour for the enriching of his subiects; whereas the other seeketh after nothing more, than by the impouerishment of them, to encrease his owne wealth: the one of them accounteth his owne goods to be the goods of his people; the other reckoneth not onely the goods, but euen the bodies of his subiects also to be his owne: the one of them seuerely reuengeth the publique iniuries done against the state, and easily pardoneth the wrongs done vnto himselfe; the other most cruelly reuengeth his owne, and pardoneth that which is done against others: the one easily forgiueth the offences of other men, but is of his owne misdeeds a seuere judge; whereas the other most sharply reuengeth euen the least offences of others, but is vnto himselfe most fauourable: [ H] the one of them fauoureth the honour of modest matrons, and other mens wiues; the other triumpheth in their shame and dishonour: the one refuseth not to bee freely and discreetly reproued for that he hath done amisse; the other hateth nothing more than the graue free spoken man: the one enforceth himselfe to maintaine and keepe his subiects in peace and vnitie; whereas the other seeketh still to set them at ods, so to ruinat them one by another; and with the confiscation of their lands and goods to enrich himselfe: the one taketh pleasure to see his subiects, and to be of them oftentimes seene and heard; whereas the other feareth their presence, and hideth himselfe from them, as from his enemies: the one reposeth his estate and fealtie in their loue towards him; the other in their feare: the one taketh no care but for his subiects; the other feareth [ I] nothing more than them: the one chargeth his subiects as little as he can, neither exacteth any thing of them, but when the publike necessitie so requireth; whereas the other drinketh his subiects blood, gnaweth their bones, and out of them also sucketh euen the marrow, so by all meanes seeking to weaken them: the one aduanceth vnto the highest degrees of honour the best and most vertuous men; whereas the other stil promoteth the greatest theeues and villaines, whome he may vse as spunges, to sucke vp the wealth of his subiects: the one frankly bestoweth the greatest and most gainful offices of the state vpon men of best deserts, who free from briberie & corruption, may defend the people from all iniurie and oppression; whereas the other setteth the same to sale to such as will giue most for them, so by their robberies and vnreasonable exactions, [ K] to keepe the people vnder, and then afterward when they are well fatted, to cut such caterpillers throates also, so to be accounted great iusticiars: the one measureth his manners, according vnto his lawes; the other measureth his lawes, according to his owne disposition and pleasure: the one is readie to expose his life for the good of his countrey and people; the other wisheth it and them all to perish for himselfe: the one is beloued and honoured of his subiects; the other hateth them all, and is likewise of them hated: the one in time of warre hath no recourse but vnto his owne subiects; whereas the other hath no greater warre than against them: the one hath neither [Page 213] guard, nor garrison, but of his owne people; whereas the other for the defence of his [ A] person, and keeping of his subiects in awe, hath alwayes a garrison of armed straungers to go before him: the one liueth secure in all quiet and tranquilitie of mind; the other troubled with carefull and contrarie thoughts, stil languishing in perpetuall feare: the one expecteth a most blessed and eternall life in heauen; the other still fearing euerlasting paines of hell: the one hath the immortall good author of all his actions; the other followeth the aduise of wicked men and damned spirits: in briefe the one is praised and honoured of all men whilest he liueth, and much missed after his death; whereas the other is defamed yet liuing, and most shamefully reuiled both by word and writing when he is dead. And albeit that a tyrant abound in wealth, haue honour, soueraigntie, health, and surpassing Champion like strength of bodie, with the deepe and [ B] profound knowledge of many and great matters, and flowing eloquence most of tyrants to be in others feared; yet shal he therefore be neuer the better, but wel the worse; abusing his wealth to fulfill his lust; his soueraigntie, to the oppressing of other mens libertie; his strength for the performing of his villanie; and his knowledge for the circumuenting of the plaine and simple, and shamefull confusion of all things. Which so many and notable gifts, if they chaunce by the grace and goodnesse of God to bee giuen to any good prince: we then esteeme of him, as of a God, sent euen down from heauen into the earth here amongst vs.

But what need we to vse many examples to proue this to be true, being of it selfe so [Sidenote 587 - *] manifest in euerie mans eye. And seeing that we find in histories tyrannie to haue bene [ C] of all men so much feared, hated and detested, that euen schollers and weake women haue not doubted to aduenture with daunger of their liues, to gaine vnto themselues the honour of the killing of tyrants. As did Aristotle (not hee of Stagira, but hee that was surnamed the Logitian) who slew a tyrant of Sicione. And Thebe, who slew her [Sidenote 588 - *] husband Alexander, tyrant of the Pheraeans. And to thinke that tyrants might by force warrant themselues, is but meere and vaine errour. For who were of greater force than were the Roman emperors, who ordinarily had fortie legions at their command in their prouinces, and three moe in Italie, beside their Praetorian bands, for the defence of their persons: and yet in no place in the world were there so many princes slaine; yea sometimes the captaines of their guards slew them euen in their pallaces, [ D] whome they guarded. As Cherea the tyrant, and the Mamalukes eight Sultans of Aegypt.

But he that would see the miserable ends of tyrants, let him but read the liues of [Sidenote 589 - *]Timoleon, and of Aratus, where hee shall see the tyrants drawne out of the nest of their tyranny, stripped starke naked, theeues beaten to death with clubbes in the presence of Children, and the rest of the common people: and after that their wines and children, their kinsfolkes and familiar friendes most cruelly murthered and slaine: and that more is the verie image & statues of them that were dead in their tyranny, accused, and publikely condemned, deliuered vnto the common hangman to bee as it were executed; their bones also taken out of their graues, and cast into most lothsom [ E] iakesses, and the raking officers of these tyrants dismembred, and most miserably tormented with al the cruelty that a people enraged could deuise: their edicts & laws torn, their castles and proud houses rased and laid euen with the ground, and the verie memorie of their name, by publike iudgements and written bookes, condemned to perpetuall infamie, as an example to all future princes, to the end they might haue in detestation such plagues, so pernitious and dangerous vnto mankind.

And albeit that tyrants whilest they liued, haue not wanted their flattering clawbacks, [Sidenote 590 - *] whome they with rewards enduced to write their vnworthie prayses; yet wee [Page 214] read, that after their death, such their histories, and panegiricall orations, before written [ F] in their prayses, were burnt, torne and suppressed, and the truth (yea sometime with more too) brought to light, & in stead of them other most reprochfull and contumelious writings published, in such sort, as that not so much as one small fragment of any booke written in the prayse of any tyrant, were he neuer so great, is now extant or to be found. Which thing maketh tyrants, whilest they yet liue to fret and fume as if they were mad: for that they see they must in time become a laughing stocke vnto the people and their verie enemies. And albeit that they euill perswaded of the immortalitie of the soule, thinke the same to perish together with the bodie, or haply before the body, which embaulmed with sweet odours may be long preserued, yet so long as they [Sidenote 591 - *] liue they still feele the torment of the infamie to come, which they yet liuing see shall [ G] befall them after their death. Whereof Tiberius the emperour grieuously complained, but Nero much more, who wished that when he died, yea that whilest hee yet breathed, all the world might with fire be consumed. And for this cause Demetrius, surnamed Poliorcetes, to gratifie the Athenians vndertooke the warre for the defence of their rights and libertie, to the intent to be honoured by their learned writings; knowing well that the citie of Athens was as it were the watch of the whole world, which might in like sort make the glorie of his noble acts to shine throughout the world, as doth a beacon set on fire vpon the top of an high tower: neither was he therein deceiued: but so soone as he gaue himselfe ouer vnto vices and villanies, there was neuer tyrant better (than he was by them) washed; hauing his name most shamefully by them [ H] defamed, by whome he had bene before commended. And albeit that some may think tyrants, for that they haue no taste of true praise, to care the lesse what posteritie either thinke or say of them, yet in truth liue they most miserably, if their life be so to be called, which liue in continuall feare, still feele the most sharpe sting of greefe; seeing themselues, their lawes, their wiues and children, their kinsfolks and friends, euer in daunger. For it is impossible for him that hateth and feareth his subiects; and is againe of them all himselfe also hated and feared, to be able long to continue or stand. Whereby it commeth to passe, that in stead of being assailed by his enemies, hee is oft times vppon the sodaine assailed by his owne subiects. Neither may hee repose any trust or confidence in his friends, vnto whom he is himselfe oftentimes a traytour and disloyall, causing [ I] them for the least suspition to be slaine: as we read it reported of Nero, Commodus, Caracalla, and such other tyrants. And sometime the whole people with one rage and surie runneth headlong vpon the tyrant, as it did vpon Phalaris, Heliogabalus, Alcetes tyrant of the Epirots, and vpon Andronicus emperour of Constantinople, whom stript and set vpon a bare asses backe, the people of Constantinople caused to endure all the indignities and reproaches that were possible, before they would giue him leaue to die. Yea and sometimes it chanceth, that euen they themselues are the occasion of the hastening [Sidenote 592 - *] of their owne death, as it is reported of Caracalla the emperour, who would needs know of Iultus, his mothers Mathematician, whom he thought should succeed him in the empire (for that is a common course amongst tyrants in their affairs and doings, [ K] to aske the councell and aduise of wisards and diuels) vnto whome the Astronomer by his letters aunswered, That Macrinus was the man that should succeed him; which letters by chaunce falling into the hands of Macrinus: he thereupon forthwith caused Caracalla to be slaine, for feare of the danger prepared for him by Caracalla. So Commodus also, hauing hardly escaped the stabbe which a murtherous villaine was about with a dagger to haue giuen him, (who in giuing of the blow said, That the Senat had sent him that) straight waies after made a roll of al them whom he purposed to put to death: which roll by good hap comming into the hands of Martia his concubine▪ [Page 215] and she therein finding her owne name enrolled amongst the rest, to auoid the [ A] daunger prepared for her and the rest, caused the tyrant to be forthwith slaine. Of like examples all the auntient histories are full, which show plainly the liues of tyrants to bee alwayes beset with a thousand ineuitable mischiefs, death still hanging ouer their heads.

Now the state of a royall Monarchie is quite contrarie vnto a tyrannie: for the king [Sidenote 593 - *] is so vnited with his subiects, that they are still willing to spend their goods, their blood, and liues, for the defence of his estate, honour, and life; and cease not after his death to write, sing, and publish his prayses, amplifying them also in what they can. As we see in Xenophon the liuely purtract of a great and vertuous prince, drawne vnder the person of Cyrus, whose praises he hath with wonderfull eloquence set forth, to giue eaxmple [ B] to other princes for to imitat and conforme themselues vnto; as did Scipio Africanus, [Sidenote 594 - *] who hauing alwaies before his eyes and in his hands Xenophon his Cyropoediae, and framing himselfe to the imitation thereof, profited so much, as that he in vertue, honor, and prowesse, surmounted all the kings and princes, not of his owne age onely, but of former times also; in such sort, that certaine pirats enflamed with the report of his fame, and knowing that he was in his house in the countrey farre from any towne, came and beset the same: against whom as he was about to put himselfe with his people in readinesse, and so to haue stood vpon his guard: they perceiuing the same, forthwith threw downe their armes, assuring him that they were not come thither, but onely to see him, and to do him honour, which they most humbly requested, that they [ C] might be admitted to do him. Now if the lustre and brightnesse of vertue in such a prince, hath drawne euen theeues and pirats into the admiration thereof; than of how much greater force ought it to be in good and loyall subiects? And what prince is there so foolish or void of sence, which would not wonderfully reioyce to heare it reported, how that Menander king of the Bactrians, was for his vertue & iustice so well beloued of his subiects, as that after his death the cities were at great strife & debate amongst themselues, which of them shuld haue the honor of his sepulchre: neither could the matter be appeased, vntill that at length it was agreed, that euerie one of them should in the honour and memoriall of him build a seuerall tombe or sepulchre. What tyrants malice also or dissimulation is so great, whome Plinie his Panegyricall [ D] oration would not driue into a phrensie? who when he had therein with all worthie prayses so adorned Traian the emperour, as that it seemed nothing more could thereunto be added: he so concludeth the period, That nothing greater or better could bee wished for vnto the Commonweale, but that the immortall gods would imitat the life of Traian. Which excessiue amplification, although it sauour of impietie, yet who doubteth but that it proceeded from the zeale of a most famous man, towards his most excellent prince? for whose daunger at his going out, and welfare at his comming home, all the temples were filled; and who himselfe in his solemne prayers, was thus woont to couenant with the gods, That they should keep and preserue him, if they saw it to be for the good of the Commonweale. What tyrant is so cruell, what show soeuer [ E] he make, which most hartily wisheth not for the honour which king Agesilaus receiued, at such time as he was fined by the Ephori, for hauing alone robbed the hearts and gained the loue of all the citisens vnto him? What king is there, which wisheth not to haue the surname of Aristides the Iust? a title more diuine and royall than euer prince yet knew how to get: albeit that in stead thereof many haue caused themselues to be called Conquerors, Besiegers, Lightnings. Now on the contrarie part, when as we read of the most horrible cruelties of Phalaris, Busiris, Nero, and Caligula, who is he which is not moued to a iust indignation against them? or hearing of their miserable [Page 216] and wretched ends, can containe himselfe from reioycing thereat?

Thus haue we seene the most remarquable differences betwixt a king and a Tyrant, which are not hard to be perceiued betwixt the two extremes of a most good king, and a most detestable Tyrant: but is not so easilie to be deemed, when the prince taketh part of a good king, and some other part of a tyrant: so as it were tempering the good with the bad. For so things oft times fall out, that for the varietie of times, places, persons, [Sidenote 595 - *] and other occasions presenting themselues, princes are constrained to doe such things, as may seeme vnto them tyrannicall, and vnto others commendable. Wherefore let no man measure Tyrannie by Seueritie, which is oft times in a prince most necessarie: neither for his castles, gardes, and garisons: neither by the soueraigntie of his commaunds, which are in deed more to be wished for, then the sweet requests of tyrants: which draw after them an ineuitable violence. And that is it for which in law, he which hath bound himselfe at the request of a Tirant, is alwaies againe to be restored into his former estate, wherein he was: whereas if he that shall so doe at the commaundement of a good prince shall not by the law be relieued: neither are those murthers, proscriptions, banishments, incests, rauishments, and other such villanies which happen in ciuill warres, in the chaunging or destruction of the states of Common weales, or the establishment of the same, to be called tyranies: for that in such violent conuersion and chaunge of state, it cannot otherwise be. As it fell out in the Roman Triumuirat, in the election of diuers Emperours, and in our time Cosmus de Medices, first taking vpon him the dukedome of Florence. For he after the death of his kinsman [ H]Alexander Medices, slaine by the conspiracie of his enemies, tooke vnto himselfe a strong garde of straungers for the defence and safetie of his owne person: built castles and strong holds: fortified the citie with strong garrisons: imposed new tributes and customes vpon the subiects; which vnto the common people, and men abusing the popular libertie, seemed violent oppressions and tiranies: but vnto the wise men necessarie and wholsome remedies: especially in such a sicke citie and Commonweal, as with most desperate diseases and incurable vlcers was like otherwise to haue perished: as also against such vnruly citizens, and inured to all licentious libertie; who had a thousand times conspired against this new Duke, reputed for one of the most wise and vertuous princes of his time: but of them accounted a tyrant. [ I]

Now to the contrarie it hapneth often that the state of a citie or Commonweal ruinated [Sidenote 596 - *] by the too much lenitie and facilitie of one prince, is againe relieued and vpholden by the austeare seueritie of an other. It is sufficiently knowne how terrible the tyranie of Domitian was vnto the Senat, the nobilitie, and other the great lords and gouernours of the Roman Empire; in somuch that all his lawes and edicts were by their procurement after his death repealed: and yet for all that was he euen after his death also most highly by the generall consent of all the prouinces commended: for that the Proconsuls with the other magistrats and officers of the Commonweal, were neuer before more vpright or freer from corruption then they were in his time, for feare they had of his seueritie, & him. But when Nerua who succeeeded him in the Empire, abhorring [ K] seuerity, enclined altogether to lenitie, & things began to fall into a most miserable estate; the lawes being prostituted, iustice peruerted, and the poore by the mightie oppressed: then Fronto the Consul with many moe with most earnest desire, wished for that crueltie and tyranie which they before had condemned in Domitian. Also when a prince with most sharpe seueritie as with a bridle, keepeth in the mindes and licentious desires of a furious and headstrong people, as if it were an vntamed beast: such wholsom seueritie ought in no wise to be accounted or called tiranie; but to the contrarie Cicero calleth such licentious libertie of the vnrulie people meere tiranie.

It may be also that a prince may exercise tiranie against the great ones in the state, as [Page 217] it alwaies hapneth in the violent chaunge of an Aristocratie into a Monarchie, when [ A] [Sidenote 597 - *] as the new prince being in necessitie and poore, and not knowing where to haue money, oft times falleth vpon the rich, without regard of right or wrong: or else infranchiseth the common people from the seruitude of the nobilitie, and the rich by that one and selfe same act to gaine the goods and wealth of the rich, and the fauour of the poore. But of all tirants there is none lesse to be detested than he which preieth vpon the rich to ease the necessitie of the poore. Now they that praise the goodnes, bountie, and courtesie of a prince, without wisedom; are themselues vnwise and ignorant in matters of state, abusing therein both their praises and leasure: for asmuch as such simplicitie without wisedome is most dangerous and pernitious vnto a king, and much more to be feared than is the great seueritie of a cruell, couetous, and inaccessible [ B] prince. So that it seemeth our auntient fathers not without cause to haue vsed this Prouerbe, That of a craftie and subtill man is made a good king: which saying vnto the delicate [Sidenote 598 - *] eares of such as measure all things by false opinions rather than by sound reasons, may seeme right strange: for by the too much sufferance and simplicitie of too good a king, it commeth to passe that flatterers, extorcioners, and men of most wicked disposition, without respect, inioy the principall honors, offices, charges, benefits, and preferments of the Commonwealth, spoyling the reuenues of the state: wherby the poore people are gnawne vnto the verie bones, and cruelly made slaues vnto the great: in somuch as that in stead of one tirant, there is ten thousand. Out of which corruption also of the magistrats, and too much curtesie of the king, proceed many [ C] mischiefes and euils; as impunitie of offenders, of murderers, and oppressours: for that the king so good and so gratious cannot refuse to graunt them pardon. In briefe, vnder such a prince the publique good is turned into particuler, and all the charge falleth vpon the poore people: as wee see in cathares and fluxes in sicke and rheumatique bodies, the maladie still falleth vnto the weakest parts; which to be so, we might proue by many examples aswell of the Grekes as of the Latins: but we will go no farther than to this our owne * realme, which was in the most miserable case that euer it was, vnder the raigne of Charles surnamed the simple, and of some called Charles do nothing. It [Sidenote 599 - *] was seene also, great, rich, and florishing, in armes, lawes, and learning of all sorts in the time of Francis the first: but especially some few yeares before his death, when as he [ D] waxing old, became so wayward and inaccessible, as that no man durst come vnto him to craue any thing of him; hauing driuen the courtly doggs, and shameles persons far from him, bestowing rewards, offices, honours, and benefits vpon none but such as were vertuous, and had well deserued of the Commonweal: and withall so gouerning his bountie, as that at the time of his death were found in the common treasurie almost a thousand Sestertioes, that is to say, seauentie hundred thousand french crownes, besides three moneths tribute which was now due: neither was the Commonweale vnto any then indebted, more than vnto the Swissers, and the Banque of Lyons, whom he would not pay, so to keepe them in awe: at which time he had firme amitie and peace also with all princes and people: and the bounds of his kingdom extended euen vnto [ E] the gates of Millan: his realme full of great captaines, and of the wisest men of the world.

But within twelue yeares after that Henry the second his sonne raigned (whose bountie [Sidenote 600 - *] was so great, as that the like was neuer in any prince of his time,) we saw the state almost quite chaunged: for as he was sweet, gratious, and courteous, so could he not denie any thing to any person; so that his fathers treasures were in few moneths scattered, the great offices and places of commaund were set to sale more than euer, the greatest spirituall preferments without respect bestowed vpon vnworthy men, magistracies [Page 218] sold to them that would giue most, and so consequently to the most vnworthie [ F] greater customes and payments exacted than euer were before: and yet when he•…] died, the estate of the receipt of Fraunce was found charged with two and fortie millions, after it had lost Piemont, Sauoy, the isle of Corsica, and the frontiers of the Low countrey: Howbeit that all these losses were but little, in comparison of the losse of his reputation and honour. Whereas had the facilitie of this great king bene tempered with seueritie, his lenitie with some rigour: his bountie, with a certaine sparing, and that for a weake and soft spirit, he had borne a stout and couragious mind: we had no doubt liued both well and happily, neither had the Commonweale fallen into such miserable calamities as now we haue endured.

But to hold this golden meane (some man will say) as it is hard for euerie man to do: [ G] so for princes whom diuers strong perturbations call out of the middle course vnto the one or other of the the extreames, it is of all others most hard. True it is, that vertue consisting in the meane, is enuironed with many vices, much like vnto a straight line, which is hard to be found among a million of crooked: which graunted, yet so it is neuerthelesse, that it is better and more expedient for the people and the preseruation of an estate to haue a rigorous and seuere prince, than too gentle and courteous. The bountie of the emperour Pertinax, and the enraged youthfulnesse of Heliogabalus had brought the Roman empire euen vnto the verie point of vtter ruine: when as the emperours Seuerus of Afrike, and Alexander Seuerus of Syria, by a rude kind of seueritie and imperiall austeritie reestablished the same, in the former brightnes and maiestie, [ H] to the great and wonderfull contentment of all good men. Thus therefore is the prouerbe that we receiued from our auncestors (That of an euill and subtill man is made [Sidenote 601 - *]a good king) to be vnderstood: for otherwise the word euill, of the proprietie of it selfe signifieth not so much seueritie, as the vttermost point, or the extremitie of impietie, which our auncestors called euill: so Charles king of Nauarre was called an euil king, than whom none was more wicked of his time. Wee must not therefore iudge a prince to be a tyrant for his seueritie and rigour, so that he do nothing contrarie to the lawes of God and nature. But forasmuch as this discourse hath brought vs on so far, let vs see also whether it be lawfull for a good man to lay violent hand vpon the person of a tyrant. [ I]

CHAP. V. ¶ Whether it be lawfull to lay violent hand vpon a tyrant; and after his death to dis•…]null all his acts, decrees, and lawes.↩

THe proprietie of the word Tyrant, being not well knowne, hath deceiued [Sidenote 602 - *] many, and armed the subiects vnto the destruction of their princes. We haue before said him properly to be called a Tyrant, who of his owne authoritie taketh vpon him the soueraigntie, against [ K] the will of the people, without election, or right of succession, neither by lot, by will, nor iust warre, nor speciall calling of God: and this is he, whome poth the lawes and the writings of auntient fathers commaund to bee slaine; propounding also most ample rewards vnto such as should kill him: viz. the honourable titles of nobilitie and prowesse, armes, statues, crownes, and in briefe the goods of the Tyrant also; as vnto the true deliuerer of his countrey, or as the Cretensians vse to say of his mother. Neither in this case make they any difference betwixt a good and a vertuous prince; or a wicked man and a villaine. For it is not lawfull for any man liuing, of himselfe to inuade the soueraigntie, and to make himselfe maister [Page 219] of his fellowes, what colour of vertue or iustice soeuer they pretend: and that more is, [ A] in law he is guiltie of death, that wrongfully taketh vppon him any the markes proper vnto soueraigne maiestie. If then the subiect will inuade or take vppon him the state of his king by any meanes whatsoeuer; or in a popular or Aristocraticall state, doth of a companion make himselfe a soueraigne, hee deserueth death: So that our question in this respect hath in it no difficultie, but that such aspirers may of all the people, or any of them, be lawfully slaine. Yet true it is, that the Greekes haue in this point differed from the Latins; as whether a man in this case ought by way of fact to preuent [Sidenote 603 - *] the course of iustice? For why, the law Valeria published at the request of Pub. Valerius Publicola giueth leaue to euery man to kill a Tyrant, and afterward to trie the cause of him so slaine. Which law seemeth also not to want good ground of reason: for [ B] that to proceed by way of iustice, the Commonweale should bee consumed with the firebrands of tyranny, before the fire once kindled could bee quenched: Besides that, who should cal into question of iustice the Tyrant, armed with his guard and garrisons? who should take him being possessed of the castles and strong holds? were it not better by times to oppresse him by force, than by too religious standing vpon the proceeding of the law, to loose the law together with the state? Howbeit the law of Solon is quite contrarie vnto this, expresly forbidding to proceed by way of fact, or to kil him that seeketh to possesse himselfe of the soueraigntie, but first to bring him vnto his triall; which seemeth more reasonable than the law Valeria: For that otherwise good & innocent men might oftentimes be taken out of the way and slaine by their enemies, [ C] vnder the color of aspiring, before the truth could be tried: who so once dead, are in that regard alwayes accounted as men iustly slaine. But these two lawes so repugnant and contrarie, may in mine opinion thus be well reconciled; if the meaning of Solons law be referred vnto him, who suspected of aspiring, hath not as yet possessed the castles or strong places, seduced the people, nor armed himselfe with strong garrison: and the law Valeria vnto him who hath openly declared himselfe a Tyrant, seised vppon the castles and citadels, and strengthned himselfe with garrisons. In the first case wee find that Furius Camillus the dictator, by way of iustice proceeded against Marcus Manlius Torquatus: and in the second case Brutus and Cassius euen in the Senat and most open assembly of the people, slew Caesar, thinking of nothing lesse. But Solon, when as [ D] he too religiously (should I say) or superstitiously, had ordained that Tyrants should be lawfully tryed before they were put to death, whilest he yet liued saw Pisistratus of a subiect to aspire vnto the soueraigntie of the Athenian state, against whome for all that they which slew the Tyrants at Athens proceeded not by way of iustice; whose children neuerthelesse Harmodius and Aristogiton slew, contrarie vnto the law, by the priuat authoritie of Solon onely.

But here might many questions be made, as, Whether a Tyrant who by force or [Sidenote 604 - *] fraud hauing oppressed the libertie of the people, and so aspired vnto the soueraigntie, may be iustly slaine; hauing after his aspiring caused himselfe to be so chosen or confirmed by the voyces of the people in generall? For why, it seemeth that such a solemn [ E] act of election, is a true ratification of him in his tyrannie, the people consenting thereunto. Yet am I neuerthelesse of opinion, that he may lawfully be slaine, and that without any lawfull processe or triall, except he shall first renounce his authoritie, quit his forces, and so put himselfe into the power of the people: for why, that cannot bee thought to be done by the free consent of the people, which they do by constraint, being by the Tyrants dispoyled of their authoritie and power. As when Sylla caused himselfe to be confirmed dictator for fourescore yeares, by the law Valeria, which hee caused to be published, hauing at the same time a strong and puissant armie of his own [Page 220] within the citie: [Sidenote 605 - *]Cicero said, That it was no law at all. And in like case Caesar, who [ F] about thirtie sixe yeares after, caused himselfe by the law Seruia, to bee made dictatour perpetuall. And also Cosmus Medices, who after the death of his kinsman Alexander hauing an armie in the citie of Florens, caused the Senators to chuse him duke of that citie for euer: about which election whilest they made some doubt, hee so thundered with his artillerie before the pallace, as that the Senat doubting otherwise of the safetie of themselues, and of the rest of the citisens, hasted the rather to make choyce of him. Howbeit if the children or posteritie of a tyrant, shall for long time, as by the space of an hundrd yeares, in continual possession hold the soueraigntie, possessed by their great grandfathers or auncestours, and so by their iust commaunds, gouern the Commonweale; such a gouernment ought not now to be called a tyrannie, for that in this case, [ G] [Sidenote 606 - *] as in all other things, a prescription of so many yeares serueth in stead of a iust title. And whereas it is said, that the rights of soueraigntie cannot be prescribed: that is to say, in lesse then an hundred yeares, and concerneth priuat men, who the Commonweale yet standing vpright, seeke to vsurpe the soueraigntie, but concerneth not the generall conuersion or chaunge of the whole state of a Commonweale. Wee said that the possession of the posteritie of a tyrant ought to be of long continued without interuption or interpellation: that is to say, that the subiects haue not with any conspiracie rebellion, or intercession, troubled the gouernment of the tyrant, or of his posteritie: for thereby it is in a sort euident, and to bee gathered, the subiects of their owne accord to haue yeelded vnto his commaunds, and to haue taken him for their iust prince. But [ H] interpellation or gain▪ saying, and resistance, may aswell be showed & declared by deeds as by words: of which sort was that which Aquila the Tribune of the people did, who in sight of all the people tooke off the crowne that was set vpon the head of Caesars statue, Caesar himselfe in vaine fretting thereat; who afterwards vnto such grants of honours and preferments as he gaue vnto his friends, would still adde that, If by Aquil•…] his leaue we may do it. And thus much concerning a Tyrant, whether hee bee a good man or an euill, who without all right hath aspired vnto the soueraigntie of the Commonweale wherein he liueth.

But the chiefe question of this our discourse, is to know, whether a soueraigne prince [Sidenote 607 - *] come vnto that high estate by election, or by lot, by rightfull succession, or by iust warre, or by the especiall vocation of all-mightie God; forgetting his dutie, and become without measure cruell, couetous, and wicked, so peruerting the lawes of God and man, and such an one as we commonly call a Tirant, may be lawfully slaine or not. And true it is that many interpretours, both of Gods and mans lawes, haue said it to be lawfull: many of them without distinction ioyning these two incompatible words together, a King a Tyrant: which so daungerous a doctrine hath bene the cause of the vtter ruine and ouerthrow of many most mightie empires, and kingdomes. But to discide this question wel, it behoueth vs to distinguish an absolute soueraigne prince, from him which is not so: and also subiects from straungers, according as wee haue before declared. For it is great difference to say that a Tirant may lawfully be slaine by a prince a straunger; or by his owne subiect. For as of all noble acts, none is more [Sidenote 608 - *] honorable or glorious then by way of fact, to defend the honour, goods, and liues of such as are vniustly oppressed by the power of the more mightie, especially the gate of iustice being shut against them: as did Moyses seeing his brother the Israelite beaten and wronged by the Aegyptian, and no meanes to haue redresse of his wronges; so is it a most faire and magnificall thing for a prince to take vp armes to relieue a whole nation and people, vniustly oppressed by the crueltie of a tirant: As did the great Hercules, who traueling ouer a great part of the world with wonderfull prowes and valour [Page 221] destroyed many most horrible monsters, that is to say Tirants: and so deliuered people [ A] without number among the gods: his posteritie for many worlds of yeares after, holding most great kingdomes, and other the imitatours of his vertues: as Dio, Timoleon, Aratus, Harmodius, Aristogiton, with other such like honorable princes bearing the titles of chastisers and correctors of Tyrants. And for that onely cause Temir-Cutlu, whom our writers commonly call Tamerlan emperour of the Tartars, denounced warre vnto Baiazet king of the Turkes, who then besieged Constantinople; saying that he was come to chastice his tiranie, and to deliuer the aflicted people; whom indeed he in a set battell vanquished in the plaines neare vnto Mount Stella: and hauing slaine and put to •…]light three hundred thousand Turkes, kept the tirant (taken prisoner) in chaines in an yron Cage vntill he dyed. Neither in this case is it materiall whether [ B] such a vertuous prince being a straunger proceed against a Tirant by open force, or finenes, or else by way of iustice. True it is that a valiant and worthy prince hauing the tirant in his power, shall gaine more honour by bringing him vnto his triall, to chastice him as a murtherer, a manqueller, and a robber: rather then to vse the law of armes against him. Wherefore let vs resolue vpon that, that it is lawfull for any straunger to kill a Tirant; that is to say a man of all men infamed, and notorious for the oppression, murder, and slaughter of his subiects and people. But as for subiects to do the same, it is to be knowne whether the prince that beareth rule be an absolute soueraigne; or not: for if he be no absolute soueraigne, then must the Soueraigntie of necessitie be either in the people, or in the nobilitie: in which case there is no doubt, but [ C] that it is lawfull to proceed against a Tirant by way of iustice, if so men may preuaile against him: or else by way of fact, and open force, if they may not otherwise haue reason. As the Senat did in the first case against Nero: and in the other against Maximinus: for that the Roman Emperours were at the first nothing else but princes of the Common weal, that is to say the chiefe and principall men, the soueraigntie neuerthelesse still resting in the People and the Senat: as I haue before showed, that this Commonweal was then to haue bene called a principalitie: although that Seneca speaking in the person of Nero his scholler sayeth: I am the onely man amongst liuing men, elect and chosen to be the Lieutenant of God on earth: I am the Arbitratour of lyfe and death: I am able at my pleasure to dispose of the state and qualitie of euery man. True it [ D] is that he tooke vpon him this soueraigne authoritie by force wrested from the Senat and people of Rome: but in right he had it not, the state being but a verie principalitie, wherein the people had the soueraigntie. As is also that of the Venetians, who condemned to death their Duke Falier, and also executed many others, without forme or fashion of any lawfull processe: forasmuch as Venice is an Aristocraticall principalitie, wherein the Duke is but the first or chiefe man, soueraigntie still remayning in the state of the Venetian Gentlemen. As is likewise the Germain Empire, which is also nothing else but an Aristocraticall principalitie, wherein the the Emperour is head and chiefe, the power and majestie of the Empire belonging vnto the States thereof: who thrust out of the gouernment Adolphus the emperour in the yeare 1296: and [ E] also after him Wenceslaus in the yeare 1400, and that by way of justice, as hauing iurisdiction and power ouer them. So also might we say of the state of the Lacedemonians, which was a pure Aristocratie, wherein were two kings, without any soueraigntie at all, being indeed nothing but Captaines and Generals for the managing of their warres: and for that cause were by the other magistrats of the state, sometime for their faults condemned to pay their fine; as was king Agesilaus: and sometime to death also as were Agis and Pausanias. Which hath also in our time hapned vnto the kings of Denmarke and Sweden, whereof some haue beene banished, and the others died in [Page 222] prison: for that the nobilitie pretendeth them to be nothing but princes, and not Soueraignes, [ F] as we haue before showed: so also are they subiects vnto those states which haue the right of their election. And such were in auntient times the kings of the cities of the Gauls, whom Caesar for this cause oftentimes calleth Regulos, that is to say little kings: being themselues subiects, and iusticiable vnto the Nobilitie, who had all the soueraigntie: causing them euen to be put to death, if they had so deserued. And that is it for which Amphiorix the captaine generall, whom they called the king of the Liegeois said; Our commaundes (saith he) are such, as that the people hath no lesse power ouer vs, then we ouer the people: wherein he showed euidently that he was no soueraigne prince: howbeit that it was not possible for him to haue equall power with the people, as we haue before showed. Wherefore these sorts of princes, hauing no soueraigntie, [ G] if they polluted with wickednes and villanie, cannot be chastised by the authoritie and seueritie of the magistrat, but shall abuse their wealth and power vnto the hurt and destruction of good men; it alwayes hath and shall be lawfull not for strangers onely, but euen for the subiects themselues also, to take them out of the way.

But if the prince be an absolute Soueraigne, as are the true Monarques of Fraunce, [Sidenote 609 - *] of Spain, of England; Scotland, Turkie, Moschouie, Tartarie, Persia, Aethiopia, India, and of almost all the kingdomes of Affricke, and Asia, where the kings themselues haue the soueraigntie without all doubt or question; not diuided with their subiects: in this case it is not lawfull for any one of the subiects in particular, or all of them in generall, to attempt any thing either by way of fact, or of iustice against the honour, life, or dignitie [ H] of the soueraigne: albeit that he had committed all the wickednes, impietie, and crueltie that could be spoken; For as to proceed against him by way of justice, the subiect hath no such iurisdiction ouer his Soueraigne prince: of whom dependeth all power and authoritie to commaund: and who may not onely reuoke all the power of his Magistrats; but euen in whose presence the power of all Magistrats, Corporations, Colleges, Estates, and Communities cease, as we haue said, and shall yet more fully in due place say. Now if it be not lawfull for the subiect by way of justice to proceed against his prince; the vassall against his lord; nor the slaue against his master; and in briefe, if it be not lawfull, by way and course of iustice to proceed against a king, how should it then be lawfull to proceed against him by way of fact, or force. For question [ I] is not here, what men are able to doe by strength and force, but what they ought of right to do: as not whether the subiects haue power and strength, but whether they haue lawfull power to condemne their soueraigne prince. Now the subiect is not only guiltie of treason in the highest degree, who hath slaine his soueraigne prince, but euen he also which hath attempted the same; who hath giuen councell or consent thereunto; yea if he haue conccaled the same, or but so much as thought it: which fact the lawes haue in such detestation, as that when a man guiltie of any offence or crime, dieth before he be thereof condemned, he is deemed to haue died in whole and perfect state, except he haue conspired against the life and dignitie of his soueraigne prince: this onely thing they haue thought to bee such, as that for which hee may worthily [ K] seeme to haue bene now alreadie iudged and condemned; yea euen before he was therof accused. And albeit that the lawes inflict no punishment vpon the euill thoughts of men; but on those onely which by word or deed breake out into some enormitie: yet if any man shall so much as conceit a thought for the violating of the person of his soueraigne prince, although he haue attempted nothing, they haue yet iudged this same thought worthie of death, notwithstanding what repentance soeuer he haue had [Sidenote 610 - *] thereof. As in proofe it fell out with a gentleman of Normandie, who confessed himselfe vnto a Franciscan Frier, to haue had a purpose in himself to haue slaine Francis the [Page 223] first, the French king: of which euill purpose and intent he repenting himselfe, receiued [ A] of the frier absolution, who yet afterward told the king thereof; who sending for the gentleman, and he confessing the fact, turned him ouer to the parliament of Paris for his triall, where he was by the decree of that high court condemned to death, and so afterwards executed. Which wee cannot say, that the judges did for feare, seeing that they had oftentimes refused to ratifie the edicts and letters patents by that gratious king granted, notwithstanding whatsoeuer commaundement hee did giue for them to confirme the same. And so in Paris, although a foolish man and altogether out of his wit, called Caboche, drew his sword vpon Henrie the second, Francis his son, as with a purpose to haue slaine him; but without effect or hurt done, yet was he neuerthelesse condemned, and so put to death, without any regard had vnto his lunesie or frensie; although [ B] the lawes euerie where excuse the madde and lunitike man, from all punishment, what murther or villanie soeuer he doe; seeing that hee is more than enough [Sidenote 611 - *] tormented with the frantike furious passion it selfe. And least any man should thinke themselues to haue bene the authors of these lawes and decrees, so the more straitly to prouide for their owne safetie and honour, let vs see the lawes and examples of holy Scripture. Nabugodonozor king of Assyria, with fire and sword destroyed all the countrey of Palestine, besieged the citie of Hierusalem, tooke it, robbed and rased it downe to the ground, burnt the temple, and defiled the sauctuarie of God, slew the king, with the greatest part of the people, carrying away the rest that remained into captiuitie into Babilon; and yet not so contented, caused * the image of himselfe made in gold, to be [ C] [Sidenote 612 - *] set vp in publike place, commaunding all men without exception to adore and worship the same, vpon paine of being burnt aliue: and caused them that refused so to doe, to be cast into a burning furnace: and yet for all that the holy * Prophets directing their [Sidenote 613 - *] letters vnto their brethren the Iewes, then in captiuitie at Babilon, will them to pray vnto God, for the good and happie life of Nabuchodonosor and his children, and that they might so long rule and raigne ouer them as the heauens should endure. Yea euen God himselfe doubted not to call Nabuchodonosor his seruant; saying, That he would [Sidenote 614 - *] make him the most mightie prince of the world. And yet was there euer a more detestable tyrant than he? who not contented to be himselfe worshipped, but caused his image to be also adored, and that vpon paine of being burnt quick. And yet for all [ D] that we see the prophet Ezechiel, enspired with the spirit of God, angrie with Sedechia king of Hierusalem, greatly to detest his perfidious dealing, disloyaltie, and rebellion against king Nabuchodonosor, whose vas•…]all hee was, and as it were reioyceth him to haue bene most iustly slaine. We haue also another more rare example of Saul, who possessed with an euill spirit, caused the priests of the lord to be without iust cause slain, for that one of them had receiued Dauid flying from him, and did ofttimes what in his power was, to kill, or cause to haue bene killed the same Dauid, a most innocent prince, by whome he had got so manie victories ouer his enemies: at which time he fell twice himselfe into Dauid his hands; who blamed of his most valiant souldiers (ouer whom he then commaunded) for that he would not suffer his so mortal an enemie then in his [ E] power, to be slaine, being in most assured hope to haue enioyed the kingdome after his death, he detested their counsel, saying, God forbid that I should suffer the person of a king, the Lords annointed to be violated. Yea moreouer hee himselfe defended the same king persecuting of him, when as hee commaunded the souldiers of his guard ouercome by wine and sleepe to be wakened. And at such time as Saul was slaine, and that a souldiour thinking to do Dauid a pleasure, presented him with Saul his head: Dauid forthwith caused the same souldier to be slain, which had brought him the head, saiing, Go thou wicked, how durst thou lay thine impure hands vpon the Lords annointed? [Page 224] thou shalt surely die therefore: and afterwards without all dissimulation mourned [ F] himselfe for the dead king. All which is worth our good consideration. For Dauid was by Saul persecuted to death, and yet wanted not power to haue reuenged himselfe, being become stronger than the king by the aid of his enemies, vnto whome hee fled euen against his will: besides that he was the chosen of God, and annointed by the hands of Samuel, to be king of the people, and had also married the kings daughter: and yet for all that he abhorred to take vpon him the title of a king, and much more to attempt any thing against the life or honour of Saul, or to rebell against him, but chose rather to banish himselfe out of the realme, than in any sort to seeke the kings destruction. So we also read, that the most holy and best learned men that euer were amongst the Iewes▪ whome they called the Essei (that is to say, the true executors of the law of [ G] God) held, that soueraigne princes whatsoeuer they were, ought to bee vnto their subiects inuiolable, as persons sacred, and sent vnto them from God. And wee doubt not, but that Dauid a king and prophet, led by the spirit of God, had alwaies before his eies the law of God, which saith, Thou shalt not speake euill of thy prince, nor detract the Magistrat. [Sidenote 615 - *] Neither is there any thing more common in all the holy Scripture, than the forbidding not onely to kill or attempt the life or honour of a prince, but euen for the verie magistrats also, although (saith the Scripture) they be wicked and naught. If therfore he be guiltie of treason against God and man, which doth but detract the magistracie; what punishment then can be sufficient for him that shall attempt his life? For the law of God is in this case yet more precise than are the lawes of men: For the law [ H]Iulia holdeth but him guiltie of treason, which shall giue councell to kill the magistrat, whereas the law of God expresly forbiddeth in any sort to speake of the magistrat euil, or in any wise to detract him. Wherefore to aunswere vnto the vaine and friuolous obiections & arguments of them which maintain the contrarie, were but idly to abuse both our time and learning. But as he which doubteth whether there bee a God or nor, is not with arguments to be refuted, but with seuere punishments to bee chastifed: so are they also which call into question a thing so cleere, and that by bookes publikely imprinted; that the subiects may take vp armes against their prince beeing a Tyrant, and take him out of the way howsoeuer: howbeit that the most learned diuines, and of best vnderstanding, are cleere of opinion, that it is not lawfull for a man not only to [ I] kill his soueraigne prince, but euen to rebell against him, without an especiall and vndoubtfull commaundement from God; as we read of Iehu, who was chosen of God, and by the prophet annointed king of Israel, with expresse commandement vtterly to root out all the house of king Achab. He before as a subiect had right patiently borne all his wickednesse and outrages. Yea the most cruell murthers and torturing of the most holy prophets, and religious men, the vnworthy murthers, banishments, and proscriptions of the subiects; as also the most detestable witchcraft of queene Iesabel: yet for all that durst he attempt nothing against his soueraigne prince, vntill he had expresse commaundement from God, by the mouth of his prophet, whome God indeed so assisted, [ K] as that with a small power he slew two kings, caused seuentie of king Achab his children to be put to death, with many other princes of the kings of Israel and of Iuda, and all the idolatrous priests of Bahal, that is to say of the Sunne, after thas hee had caused Iesabel the queene, to be cast headlong downe from an high tower, and left her bodie to be torne in peeces and eaten vp of dogges. But we are not to apply this especiall commaundement of God, vnto the conspiracies and rebellions of mutinous subiects against their soueraigne princes. And as for that which Caluin saith, if there were at this time magistrats appointed for the defence of the people, and to restraine the insolencie of kings, as were the Ephori in Lacedemonia, the Tribunes in Rome, and [Page 225] the Demarches in Athens, that they ought to resist and impeach their licentiousnesse [ A] and crueltie: he sheweth sufficiently, that it was neuer lawfull in a right Monarchie, to assault the prince, neither to attempt the life or honour of their soueraigne king: for he speaketh not but of the popular and Aristocratique states of Commonweales. And we haue before shewed, that the kings of Lacedemonia were no more but plaine Senators and captaines: and when he speaketh of states, he saith, Possibly, not daring to [Sidenote 616 - *] assure any thing. Howbeit that there is a notable difference betwixt the attempting of the honour of his prince, and the withstanding of his tyranny; betwizt killing his king, and the opposing of ones selfe against his crueltie. We read also, that the Protestant princes of Germanie, before they entred into armes against Charles the emperor, demaunded of Martin Luther if it were lawfull for them so to doe or not; who frankly [ B] told them, That it was not lawfull, whatsoeuer tyrannie or impietie were pretended; yet was he not therein of them beleeued: so thereof ensued a deadly and most lamentable warre, the end whereof was most miserable, drawing with it the ruine and destruction of many great and noble houses of Germanie, with exceeding slaughter of the subiects: whereas No cause (as saith Cicero) can be thought iust or sufficient for vs to take vp armes against our countrey. And yet it is most certaine, that the soueraigntie of the empire resteth not in the person of the emperour, (as we will in due place declare) but being chiefe of the state, they could not lawfully take vp armes against him, but by a generall consent of the state, or of the greater part of them, which was not done: then much lesse is it lawfull to take vp atmes against a soueraigne prince. I cannot vse a better [ C] example, than of the dutie of a sonne towards his father: the law of God saith, That he which speaketh euill of his father or mother, shall be put to death. Now if the father shall be a theefe, a murtherer, a traytor to his countrey, as an incestuous person, a manqueller, a blasphemer, an atheist, or what so you will else; I confesse that all the punishments that can bee deuised are not sufficient to punish him: yet I say, it is not for the sonne to put his hand thereunto, Quia nulla tanta impiet as, nullum tantum scelus est, quod sit parricidio vindicandum. For that (as saith an auntient Orator) no impietie can be so great, no offence so hainous, as to be reuenged with the killing of ones father. And yet Cicero reasoning vpon the same question, saith, our country to bee deerer vnto vs than our parents. Wherefore the prince whom you may iustly call the father of the [ D] country ought to be vnto euery man dearer & more reuerend than any father, as one ordained & sent vnto vs by God. I say therfore that the subiect is neuer to be suffered to attempt any thing against his soueraign prince, how naughty & cruel soeuer he be lawful it is, not to obey him in things contrarie vnto the laws of God & nature: to flie and hide our selues from him; but yet to suffer stripes, yea and death also rather than to attempt any thing against his life or honour. O how many Tirants should there be; if [Sidenote 617 - *] it should be lawfull for subiects to kill Tirants? how many good and innocent princes should as Tirants perish, by the conspiracie of their subiects against them? He that should of his subiects exact subsidies, should be then (as the vulgar people accompt him) a Tirant: he that should rule and commaund contrarie to the good liking of the [ E] people, should be a Tirant: (as Aristotle in his Politiques sayeth him to be) he that should keepe strong gardes and garrisons for the safetie of his person, should be a Tirant: he that should put to death traitors and conspirators against his state should be also counted a Tirant. And in deed how should good princes be assured of their liues, if vnder the colour of tirannie they might bee slaine of their subiects, by whom they ought to be defended? Not for that I would say it not to be lawfull for other Princes by force of armes to prosecute tiranie (as I haue before said) but for that it is not lawful for subiects so to doe. Howbeit that I am rather of Diogenes the Cinique his opinion, [Page 226] who one day meeting with Dionysius the yonger, then liuing in exile at Corinth, and [ F] seeing him merily sporting himselfe in the streats with iesters and minstrels; verie soberlie said vnto him, Truely thou art now in an estate vnworthie of thee. I hartilie thank thee (said Dionysius) for hauing compassion on me. And thinkest thou said Diogenes that I thus say for any compassion I haue of thee? mistake me not, for I speake it rather in dispite of the life thou now leadest, to see such a vile slaue as thee, worthy to grow old, and die in the accursed state of tirannie, as did thy father, thus to sport thy selfe in securitie, and quietly to passe thy time among vs. For can any hangman more cruelly torment a man condemned to torture, than feare? Feare I say of death, of infamie, [Sidenote 618 - *] and of torture: these bee the reuenging furies which continually vex Tirants, and with eternall terrours torment them both night and day: Then enuie, suspition, [ G] feare, desire of reuenge, with a thousand contrarie passions at variance among themselues, do so disquiet their minds, and more cruelly tiranize ouer them, than they themselues can ouer their slaues, with all the torments they can deuise. And what greater wretchednesse can happen vnto a man, than that which presseth and forceth the tirant? to haue a desire to make his subiects beasts and fooles, by cutting from them all the waies to vertue and learning? To bee a slaue and subiect vnto a thousand spyes and pryers into other mens liues? to heare, see, and vnderstand, what is done, saied, o•…] thought of all and euery man? and in stead of ioyning and vniting of his subiects in loue and amitie together; to sow amongst them a thousand quarrels and dissentions: to the end they should alwaies be at defiance among themselues, and in distrust one of [ H] an other? And who can doubt but that a Tirant still languishing in such torment, is of all men most miserable, and more afflicted and tormented, than if he should die a thousand deaths? Death (as sayeth Theophrastus) is the end of all miseries; and the repose of the vnfortunate, as sayeth Caesar: neither the one nor the other being in that point superstitious, as not persuaded of the immortalitie of the soule, or that it longer liued than the bodie, or that there remayned any farther paines for the wicked after this life: so that to wish a Tirant slaine as a punishment for his deserts, is but to wish his good and rest.

But most Tirants haue ordinarilie neare vnto their owne persons certeine Mynnions, [Sidenote 619 - *] of whom they make great account and reckning: whom they vse as spunges to [ I] suck vp their subiects blood, vpon whom when occasion serueth, they discharge themselues; to the end that the people entering into furie, should seise vpon them, and spare themselues: So had Tiberius, Seian; Nero, Tigillin; Dionyse the younger, Phyliste; and of late Henry king of Sweden, George Preschon, whom we read to haue beene giuen as a prey vnto the furious people, and by them to haue beene rent and torne in peeces. So the Emperour Anthonius Caracalla to please the people, put to death all the flatterers who had before induced him to kill his brother. Neither did Caligula in better sort intreat his claw-backs. And by these sleights haue Tyrants oftentimes wel escaped the rage and furie of the people. But if the conspiratours began their furie at [ K] the person of the Tyrant himselfe, then were not onely his friends and fauourites, but euen his wiues, children, and neerest kinsmen, most cruelly slaine. Which they did not onely all Greece ouer, but in Sicilie also: as after the death of Hiero the Tyrant, ensued the slaughter of all his friends and kinsfolks, the rage of the people with vnspeakable crueltie bursting out, euen to the dismembring of his sisters and cosens: his statues were cast downe, all his edicts reuoked, not only those which were vniust and vnreasonable, but euen those also which were right commendable and necessarie; to the intent that no memoriall of Tyrants might remaine: yet true it is, that oftentimes their good decrees were still kept. And that is it for which Cicero said, That there was nothing [Page 227] more common, than to approue the acts of a Tyrant, and yet to place in heauen [ A] them that had slaine them. And yet he in another saith it be a doubt, not yet resolued vpon, viz. Whether a good man ought to come vnto the counsell of a Tyrant consulting euen of good and profitable matters? And yet this question dependeth of the other: for if a man make conscience to be assistant vnto a Tyrant, consulting of good things, for feare least in so doing he should seeme to approue his tyrannie: wherefore should he then approue the good lawes and decrees by him made? for that is also no lesse to ratifie his tyranny, and to giue example to others, aswell as to giue councell vnto a Tyrant, in good and commendable things. Except one should say, that tyrannie which yet is in the force and strength of it selfe, is shored and countenanced by the [Sidenote 620 - *] councell of good and honest men, vnder the couert of some one or other good and [ B] commendable act, which would otherwise of it selfe fall, by the onely euill opinion conceiued of tyrannie; whereas he which is alreadie dead, cannot be againe reuiued to ratifie his other euill acts. Yea it oftentimes falleth out, that not onely the good & profitable acts of Tyrants, but euen their euill and vniust acts and orders are of necessitie to be retained also, if we will haue the Commonwealth in safetie to stand. Wherefore Thrasibulus after he had put to flight the thirtie Tyrants of Athens: and Aratus hauing slaine Nicholas the Tyrant of Sicyone: and to the imitation of them Cicero after the death of Caesar the dictator, perswaded the publication of the lawes of forgetfulnesse, to extinguish the desire of reuenge: yet for the most part ratifying the acts of those Tyrants, which they could not vtterly disanull, without the ruine of the whole Commonweale. [ C] As for that we read the acts of Nero and Demetrian, to haue beene reuoked, and disanulled by the Senat, that concerneth certaine perpetuall edicts of theirs, which for that they had a perpetuall inconuenience annexed vnto them, would if they had not bene abrogated, haue in time vtterly ruinated all that was now againe set in order: as for their good & cōmendable lawes, they were not at all altred. For what time was more glorious than Nero his first fiue yeares raigne? what more fit or better for the well ordering of a Commonweale? Insomuch that Traian himselfe a most excellent prince, deemed no man to haue bene like vnto Nero, for the well gouerning of a Commonweale. Vnto this the opinions of the lawyers agree, who hold the successours [Sidenote 621 - *] of Tyrants to be bound vnto all such things as the Tyrants their predecessours [ D] haue iustly promised or done, but not vnto the rest. So the emperour Constantine the Great, by a law abrogated such things, as Licinius the Tyrant had before vniustly decreed, but confirmed the rest. The like we read to haue bene done by Theodosius the younger, and Arcadius the emperours, after the death of the Tyrant Maximus, by this law, Quae Tyrannus contra ius rescripsit non valere praecipimus: legitimis eius rescriptis non impugnandis, What the Tyrant hath against right decreed, we commaund to be of none effect; not impugning his lawfull decrees. And albeit that these two yong emperours, to be reuenged of the Tyrant Maximus, had by a generall edict reuoked all the prodigall gifts and preferments, which he lauishly had bestowed vppon wicked men, and of no desert in the Commonweale: and also disanulled his iudgements and [ E] decrees: yet would they not repeale any thing that had bene by him decreed or graunted, without fraud and deceit, and the hurt of the Commonweale. Those last wordes without fraud and deceit, which we read in Theodosius, his law, are added against Tyrants Agents, & Brokers, who are especially to be laid hold vpon, to the end that others take not example by them, to build their houses, or enrich themselues by the ruine or hurt of others, during the time that tyranie beareth sway; or that the Commonwealth is with ciuill warres diuided. As it happened in the state of Milan, rent in sunder by the Venetians, the French, the Swissers, and the Spaniards, euerie one of them taking [Page 226] vnto themselues so much thereof, as they could by force and strength, as if it had bene [ F] by good right, and the Sforces the rest: where amongst others it fortuned Iason the famous lawyer, a fauourit of the Spaniards, by fraudulent meanes to obtaine the goods of Triuultius, a worthie captaine of the French part: but the Spaniards afterwards driuen out, and the French returned, Iason was right well beaten with his owne lawes and decisions, being by the captaine Triuultius againe thrust out of his vniust possession, and that by his owne doctrine. In which case yet the force of lawes and decrees ought [Sidenote 622 - *] not to be of so great force and power, as naturall and vpright equitie it selfe, which cannot be fully comprised in any lawes, but is to be left vnto the religious arbitrement of them who know how to mannage the affaires of state, and wisely to ballance the particular profit, with the counterpoise of the publique, according to the infinit varietie of [ G] times, places, and persons; alwaies remembring the profit of euerie man in particular, and of all together in generall, not to be one and the same: and that the publike is alwaies to be preferred before the priuat, except the priuat be grounded vpon the greatest equitie and reason. As if the Receiuers in the heat of the ciuill warres, or in the raigne of a Tyrant, or in such time as lawfull enemies make inuasion, shall be enforced to pay the publike money: it is good reason it should be allowed them, as paid vnto the Commonwealth. For so it was iudged by decree of the parliament of Naples, for them that had paid vnto the receiuers of Charles the eight, when as after the returne of the Spaniards, they would haue enforced the receiuers to haue paid the money twice, naturall reason (in this case) preferring the priuat profit before the publike. For the receiuers [ H] could not otherwise doe, the Frenchmen then fully possessed of the kingdom of Naples. But if the Receiuers or debtors of the Commonweale, shall without any summons or constraint, or for some colourable suit, pay vnto the enemie, or a Tyrant, part of that which is due, to accept in stead of the whole, they shall yet still remaine not onely debtors for the whole, but be in daunger also of treason. Wherefore to conclude this question, It is not meet that the good decrees or laws of a slaine tyrant should be repealed or disanulled.

And in this, the princes much deceiue themselues, which ouerthrow and make void [Sidenote 623 - *] all the acts of Tyrants, their predecessours; and namely they which giue reward to them that haue slaine Tyrants, to make them a way vnto the soueraigntie. For they [ I] shall neuer assure themselues of their owne liues, if they seuerely punish not the conspiratours against their owne prince and murtherers of him, although hee were neuer so great a Tyrant. As most wisely did Seuerus the emperour, who put to death all them which had any part in the murther of the emperour Pertinax: which was the cause (as saith Herodian) that there was no man which durst attempt his life. So also Vitelliu•…] the emperour put to death all the murtherers and conspirators against Galba, who had presented requests signed with their owne hands vnto the emperour Otho, to haue had of him reward for their distoialtie. And Theophilus emperour of Constantinople caused them all to be called together, who had made his father emperour, after they had [ K] slaine Leo the Armenian, as if he would haue well recompensed them for so great a good turne: who being come together with many other, who though not partakers of the murther, were yet desirous to be partakers of the reward; hee caused them altogether to be slaine. And that more is, the emperour Domitian put to death Epaphroditus, Nero his manumised seruant, and secretarie to the state, for hauing holpen Nero to kill himselfe, who most instantly requested him so to doe, being thereby deliuered from the executioners hands, and crueil exemplarie death. And these things wee read not onely Tyrants, but euen good kings also to haue done, not so much in regard of their owne safetie, as of the dignitie of them that were slaine. As Dauid did vnto him [Page 229] who in hope of reward brought him his father in lawes head cut off, but slaine by his [ A] enemies. And Alexander the Great caused cruelly to bee put to death him that had murthered king Darius, abhorring the subiect which durst to lay hand vpon his king: although Alexander himselfe by lawfull warre sought after his life and state, as beeing his lawfull enemie. And yet in mine opinion the thing that hath most preserued the kings of Fraunce and their persons inuiolated, is for that they haue not vsed crueltie towards [Sidenote 624 - *] them which were neere vnto them in blood, albeit that they were attainted; conuicted, yea and condemned as enemies to their prince, and guiltie of treason. As Iohn the second, duke of Alencon, although he was twice for the same cause condemned, as for that he had with the enemies conspired against king Charles the seuenth and the Commonweale, and the sentence of death pronounced against him by the Chancelour, [ B] yet for all that would not the king, that he should bee executed. Many haue blamed this the kings too much clemeneie, as daungerous: but they see not, that kings in so doing, do not so much deliuer their kinsmen from punishment, as themselues; neither so much to prouide for other mens safetie, as for their own; nor that in forbidding the blood of their kinsmen to be shed, they spare their owne; nor that hee which putteth a prince of his owne blood into the executioners hands, or causeth him to be murthered, forgeth a knife to cut his owne throat. For wee haue seene the emperours of Constantinople both of auntient and latter time, and many kings of Spaine and England, who fouling their hands in the blood of their princes, suffered themselues afterward in their persons that which they had done to others. For not to speake of those [ C] things which are reported to haue of late bene done in the house of Castile: one king in that nation cruelly murthered six of his brethren: and in lesse than thirtie six yeares fourescore princes of royall blood, were (as Philip Comines in his Commentaries reporteth) in England either slaine or executed by the bloudie executioners hands. Now the greatest safetie of a soueraigne prince, is to haue their subiects persuaded, that they ought to be holy and inuiolat; although it much concerne the Commonweale also, the kings stocke to be most sacred, least the princes of the blood being taken out of the way, the Commonweale fall also; or else troubled with endlesse sedition, bee rent in peeces, as we shall in due place declare. I know well that some haue blamed Seleucus, for not hauing put to death Demetrius, surnamed the Besieger, one of the most valiant [ D] princes that euer was; but hauing onely kept him in prison: And Hugh Capet, for hauing kept in prison in the castle at Orleans, Charles the last of the blood of king Charlemaigne: And Henrie the first, king of England, for hauing kept in prison vntill his death, his elder brother Robert, hauing before caused his eyes to bee put out: As also Christiern father to Frederike king of Denmarke, for hauing kept his cosen the king of Denmarke thrust out of his kingdome, fiue and twentie yeares prisoner, who as a priuat man there died in prison, in the castle of Calembourg, being 77 yeares old: And Iohn king of Sweden, who keepeth his elder brother Henrie (reiected by the people) prisoner euer since the yeare 1567, least he should trouble both him and the Commonweale. But they haue bene, and yet are by this meanes more reuerenced and honoured [ E] of their subiects, than if they had put these their so honourable prisoners to death.

But here some men wil obiect, The keeping of such princes prisones, to be a thing [Sidenote 625 - *] full of perill and daunger: which I confesse, and was the onely reason that moued the pope to counsell Charles of Fraunce, to put to death Conradin his prisoner, the sonne of Manfroy king of Naples. As with like crueltie had Ptolomie, last king of Aegypt caused Pompey the Great, after his flight vnto him from the battaile of Pharsalia, to be slaine; his councellors saying vnto him, That dead men bit not. And yet neuerthelesse [Page 230] neither could this Ptolomee escape destruction: neither wanted there heires enow of [ F] the house of Aragon, who ceased not to driue out them of the house of Aniou, and to recouer againe the kingdome: and albeit that he which put him to death, beeing himselfe afterward also condemned to die, escaped: yet so it was, that the infamie of so detestable a murther, without cause committed vppon the person of a young innocent prince, hath yet tested vpon them which did the execution to their owne destruction. And truely our auncestours seeing Iohn duke of Burgundie, rashly in the verie time of iudgement, confessing the murther of Lewes his kinsman, duke of Orleans; and yet to haue easily escaped the daunger, said, That surely from thence foreward a man might haue the blood of princes good cheape, and in so saying said well. For the same Iohn comming afterward vnder safe conduct, was himself likewise serued, and in cold blood [ G] slaine, they that were the authors of his death escaping vnpunished.

CHAP. VI. ¶ Of an Aristocratie.↩

AN Aristocratie is a forme of Commonweale, wherein the lesse [Sidenote 626 - *] part of the citisens with soueraigne power commaundeth ouer all the rest; and euerie citisen in particular. And in that it is contrarie vnto the estate Popular, for that in the Aristocraticall state the lesser part of the citisens command, and in the Popular state [ H] the greater: and yet in that they both agree, that they which haue the soueraignty, haue power to commaund ouer euery one in particular, but not ouer all in generall. Wherefore a Monarchie is in that better and more honourable than the other two; for that in it the power of one extendeth it selfe ouer all in generall, and in particular also: a thing in mine opinion well worthy the noting. And like as a Monarchie is either Royall, Lordlike, or Tyrannicall: so also an [Sidenote 627 - *] Aristocratie may be Lordly, lawfull, or factious; which in auntient time the called an Oligarchie; that is to say, a Seignorie of a verie small number of Lords. As were the thirtie lords of Athens, ouerthrowne by Thrasibulus, whom they called the thirtie Tyrants. Or the ten commissioners, commonly called the Decemuiri, appointed to reforme [ I] the lawes and customes of Rome: and long after the Triumuiri, who by force oppressing the libertie of the people, inuaded the soueraigntie. And that is it for which the auntients haue alwaies taken this word Oligarchie, in the euill part, and Aristocratie [Sidenote 628 - *] in the good; defining it to be A gouernment of good men. But we haue before declared, that in matters of state (to vnderstand of what forme euerie Commonweale is) we must not haue regard whether the gouernours thereof bee vertuous, or otherwise; but to the gouernment thereof. It is also a difficult matter, and almost impossible, to establish an Aristocratie composed onely of good men; for that cannot bee done by lot, neither by election, the two vsuall meanes: whereunto we may ioyne the third, by lot [ K] and election together, as impossible as the other; vertue with fortune hauing no agreement. Neither is lot and fortune to be admitted vnto the consultations of honest causes: and if the same should be committed vnto the choyce of the promiscuous and vulgar people, they would not make choyce of men altogether vnlike themselus; that is of fools, of wicked and most impudent men, good and wise men (if there be any) euerie where being the least part of the people: and what more shamefull thing could there be, than the honour and reputation of wise men, to depend of the iudgement (should I say, or of the rashnesse) of the head strong people. Yet let vs grant some few good and wise men to bee in the citie, truely they will shun euen the verie sight of the [Page 233] wicked and of the bedlem multitude: neither if they come vnto their common assemblies, [ A] be so shamelesse and impudent, as to name and make their choice of themselues as of wise men. For so Lactantius Firmianus meerely iesteth at the seuen Sages of Greece: If they were but wise (saith he) in their owne iudgements, then were they not wise: but in the iudgement of others, much lesse, who were not wise in iudging no mo wise but seuen, and all the rest fooles.

But some may say it should do well herein to imitate the auncient Romans, and other Latins, in the choice that they by solemne oath made of the most valiant and warlike man of all other for their Generall: who so chosen, should make choice of a second for his Lieutenant most like himselfe: and he likewise of the third: and the third of the fourth; and so in order one valiant man of an other, vntill the number of their [ B] Legions were filled. This truely might seeme a good way for the forming of a Commonweal of good and worthie men, at the first beginning thereof: But who should prefine the measure and number of those good men? and who should be suertie vnto the Commonweal, that euery one of those good men, should still make choice of an other good man like himselfe; rather then of his sonne, his brother, his kinsman, or his friend? and admit it were so done, sith euery where there are so few good men, who should defend them from the multitude, and violence of them that were left, as fools and wicked men? But admit that a Commonweal may at the first be made of such a select number of good men; how long shall we think it can so stand? And that is it for which there neither is, nor euer was any pure Aristocratie; wherein the most vertuous [ C] onely had the soueraigntie. For albeit that the Pythagorians hauing drawne vnto their line the most noble and honorable princes of Italie: in the time of king Seruius Tullius had chaunged certeine Tyrants, into iust Regalities, and were in hope also by little and little to haue brought the Oligarchies, and Democraties, into Aristocraties, as in some places they had alreadie done: yet neuerthelesse it so fell out, that the popular men, and ringleaders of the people, seeing all power and authoritie, vnder the coulour of vertue, to be taken out of their hands, entered into great conspiracies, and so arming the people against the Pythagoreans, and the desperate rout, against the better sort: (as easie it was for the stronger to oppresse the weaker) burnt them in their diet, and massacred almost all the rest that escaped from the daunger of the fire: which [ D] shamefull murther of the Pythagorians raised great sturres in Italie. [Sidenote 629 - *]

Wherefore whether they be of the better sort, or of the worse; of the richer sort, or of the poorer; of the nobler, or of the baser; of the more warlike, or otherwise which hold the soueraigntie, so that it be the lesser part of the citizens or people, we call it by the name of an Aristocratie. This lesser part of citizens or people we need not to define by any certein number: for that the varietie of numbers is infinite, and can by no man be comprehended. As admit there be ten thousand citizens, of whom an hundred haue the soueraigntie; if in their common assemblie three score of them shall be of one [Sidenote 630 - *] opinion for the making of a law: that law shall in generall bind the other fortie which haue part also in the soueraigntie, but are the fewer in number, together with the other [ E] nine thousand nine hundred excluded from the gouernment, and the same three score being of one mind together, shall rule the whole ten thousand in particular: Neither yet for all that is the soueraigne right drawne vnto those three score; But as in euery lawfull Colledge and Corporation, the greater part is euery where the better: so it followeth that three score being of one accord, shall ouer rule the other fortie both altogether and a part: except by law concerning soueraigntie it be prouided, that two thirds of the citizens agreeing among themselues, should preuaile against the rest; as we see it set downe in almost all the lawes and statutes of Colledges: by which [Page 232] meanes threescore foure citizens, shall in the aforesaid number of an hundred, be superiou [ F] vnto the other thirtie six. Wherefore in an Aristocratie we are not to haue regard how little, or how great the number of the citizens is; prouided that they which haue the soueraigntie ouer the rest, be fewer in number than the one half of the whole. For admit there be an hundred thousand citizens in a Commonweale, of whom ten thousand haue the soueraigntie ouer the rest, it shall as well be called an Aristocratie; as if of ten thousand citizens, one thousand onely should hold the estate: considering that both in the one and other Commonweal, the tenth part hath the soueraigntie: so we may say where the hundred, or the thousand part of the citizens beare the sway; and the fewer that they be, the more assured and durable is the state; so that they be not at variance amongst themselues. As the estate of the Pharsalians was the most durable of [ G] [Sidenote 631 - *] Graece, and yet it had but twentie Gouernours. And the Lacedemonian Commonweal, which caried away the prize of honour from all the others of the East: albeit that it was most populous, yet for all that it had in it but thirtie Gouernours, chosen out of [Sidenote 632 - *] the better sort, to continue in the gouernment so long as they liued. The Epidaurians saith Plutarche had but an hundred and foure score of the noblest and welthiest of the citizens which had part in the soueraigntie: out of which number they chose the counsellours of the state. The auntient Commonweale of Marseilles in Prouence (which [Sidenote 633 - *] in the iudgement of Cicero was the best ordered Commonweal that euer was in the world) had in it six hundred citizens which held the soueraigntie: out of which number of six hundred were taken the Senators, and fifteene magistrats, and of these fifteene [ H] magistrats were three Presidents set ouer them in maner of the Roman Praetors. The like we may deeme of the Rhodians and Theban Common-weales, after that their popular estates were chaunged into Aristocraties, the richer sort possessing themselues of the soueraigntie: than which nothing can bee more commodious for the Commonweal, especially if good citizens cannot be had. For which cause Titus Flaminius the Consul established the townes and cities of the Thessalians in forme of an Aristocratie, making Senatours and Iudges of the richer sort, and giuing to them the soueraigne power, whom it concerned most, that their Commonweal should continue in rest and peace. Which order Andrew Doria seemeth to haue followed in [Sidenote 634 - *] reforming the Commonweal of Genua, by him drawne from the obeysance of the [ I] French, in the yeare 1528, at which time he by the consent of the citizens there established an Aristocratie of eight and twentie families, chosen as well out of the base commonaltie, as out of the nobilitie, so that they had six houses within Genua, all whom by a law he made noble, & partakers of the soueraigntie of the state: leauing vnto their discretion, euery yere to chuse vnto them ten other citizens, such as they should think fittest for their vertue, for their nobilitie or riches. Out of these eight and twentie families, he established a Counsell of fower hundred men, euery yeare to be chosen for the gouernment of the state: who also made choice of the Duke, and eight gouernours for two yeares to continue, whom together they call the Seignorie; for that [ K] vnto them it belongeth to manage the waightie affaires of the Common wealth: except some such great matter happen, as may require the aduise of the Senate, which consisting of an hundred persons, is vsually euery yeare chosen by the nobilitie, by secret voices, by lot giuen, as they do in Venice. And euery one of these eight Gouernours after his office expired, continueth for two yeares Procurour of the Common wealth: and from that time forward, remayneth one of the priuie councell, together with them which are and haue beene Dukes, who are Procurours of the Common weal so long as they liue. Besides that there are fortie Captaines euery yeare chosen, and an hundred men deputed to euery one of those captaines, which is a legion of [Page 233] foure thousand men, appointed for the strength and defence of the citie: Ouer which [ A] legion there is one Colonell, or chiefe Captaine, whom they call the Generall; who are all chosen by the voices of the nobilitie: As for their iurisdiction or administration of justice, they vse strangers, viz. a Praetor, who is alwaies a stranger; with two Lieutenants his assistants, the one for the receit, the other for criminall causes: and fiue other Ciuilians, judges for all priuat causes for two yeares, all strangers also; whom, they call the Rota. Yet besides them, there are seauen extraordinarie Iudges chosen out of the Citizens, for the extraordinarie deciding of causes. Besides whom were also fiue Syndicques to receiue informations against the Duke, and the eight Gouernours, after that their charge was expired, causing proclamation to be openly made, That if any man had any complaint against them, for any wrong or iniurie receiued from them, he [ B] should come in and be heard: at which time if none complained, they had letters testimoniall giuen them, in witnesse of their vpright dealing in their office. The same yeare [Sidenote 635 - *] that Doria established an Aristocratie at Genua, they of Geneua also changed their Pontificall monarchie into a Popular state, gouerned in maner of an Aristocratie. And albeit that the Towne long time before pretended, it selfe not to bee subiect vnto the laws either of the Duke of Sauoy or of the Pope, but to be free from them both; yet the citizens thought it not best for them to attempt any thing, vntill that discord about the Soueraigntie was risen not only betwixt the Duke & the bishop, but euen betwixt the bishop and the people also: at which time they tooke hold vpon the occasion then presented vnto their desires for the changing both of their Religion & state. Wherefore [ C] their Commonweale now set at libertie, they established a Counsell of two hundred citizens, with soueraigne and perpetuall power; but that the people still reserued vnto themselues the confirmation of lawes, the election of their Syndicques and other the great magistrats, and the treaties of peace and warre; all which belong vnto the right of Soueraigntie, as we haue before declared. Now out of this great Counsell of two hundred, they made choice of a perpetuall Senat of threescore persons: and out of that Senat, they take fiue and twentie to be of the priuie Counsell for euer, chosen all by the great Counsell, and the foure Syndicques chosen euery yeare for soueraigne Magistrats, beside the other Iudges and magistrats ordinarie. But the difference betwixt this Commonweal and that of Genua is notable, but especially in this, [ D] that the Genowaies vse euery yeare to change their great Counsell of fower hundred, and Senat of three score, with other their Magistrats, except some few which continue for two yeares. Whereas the great Counsell of Geneua, the Senat, and priuie counsell are once chosen for euer: yet so, as that the censuring of euery one of them euery yere is still reserued vnto the Citizens: which is most straitly looked vnto; whereby it commeth to passe, that the Commonweal of Geneua is more firme, and lesse subiect vnto alteration or seditious innouation than is that of Genua. Moreouer the choice of the great Counsell, the Senat, and of the priuie Counsell at Geneua is not made all at once, as at Genes and Venice; but a roome being become void by the death or attainder of a councelour of the priuie Counsell of fiue and twentie, they proceed to the choice of an [ E] other out of the great counsell, to put in his place into the priuie Councell: and after that of a citizen, or at least wise of a Burgeois, to put into the great counsell, a man not any way sported or defamed: not hauing any regard in the choice of them, vnto their wealth, or nobilitie, but in what they may vnto their vertue and integritie only: a thing (as we read) vsed amongst the Lacedemonians, who after the death of their Senators, made choice of others in respect of their honour and vertue onely.

The Swissers except the Grisons, and the other fiue little cantons, haue almost the [Sidenote 636 - *] same forme of a Commonweale; as we see at Zurich the great Councell of two hundred, [Page 234] the Senat, and the priuie Councell established after the maner of Geneua: or to [ F] say better, that of Geneua after the forme of Zurich; which is almost like vnto that of Berne. Which neuerthelesse differ in this, that with these the great Councel & the Senat chaunge euerie yeare: which they do not at Geneua: for with these the fraternities, which they call Zunfft, euerie one of them composed of one, two or three occupations: which are eleuen at Schaffouse, twelue at Zurich, fifteene at Basil; and in other places more or lesse, chuse twelue persons of euerie fraternitie, for the great Councell: and for the Senat they chuse two, as at Zurich; or three, as at Basil; of whome one is the chiefe of the fraternitie. So that the great Councell at Zurich, consisteth of two hundreth, of 244 at Basil, of 86 at Schaffuse. And of Senators at Zurich the number is fiftie, at Schaffuse twentie sixe, and at Basil sixtie three. But they which are so chosen [ G] by the voyces of the fraternitie, are confirmed also by the great Councell, and by the Senators or magistrat, or by the old Senat, as at Basil. For the one halfe of the Senat is that which was before, which had the charge alreadie sixe monethes. And the other-moytie of the Senat, is of those which are but newly chosen, to the intent that the Senat should not be wholy chaunged all at once. True it is, that the auntient Senat of Basil, chose alwaies the Senat for the yeare following: and the Burgamasters who had for their companions three Tribunes at Zurich, and two at Basil, who with the Bourgamasters being foure, haue nine other persons, as assistants ioyned vnto them, and so together make the colledge of the thirteene men (as they call it) vnto whome all the mannaging of the secret affaires of the Commonwealth are committed: and without [ H] whose authoritie nothing vsually is propounded vnto the Senat or great Councell to resolue of. There are also at Zurich eight men, which haue charge of the common receit, ouer whome one Bourgomaster is gouernour. And at Zurich and Shaffuse the new Senators determine all causes criminall: whereas in all the other townes the Prouost of the empire, with three Senators in the name of the whole Senat decide the same: which prouost is also chosen of the Senat, and generally none may bee chosen into the Senat which is defamed or base borne. By all which it is manifest, that their estate is gouerned Aristocratically; and yet more at Berne, Lucerne, Friburg, and Sole•…]re, where the fraternities and companies haue no voyces in the state, neither power o•…] authoritie to meet together, more then for matters concerning their occupations and [ I] trades: but euerie yeare foure captaines or chiefe men of euerie citie, chose out sixteen other citisens, men of greatest integritie, and without all imputation: who three daies before Easter make choice of the great Councell, consisting of an hundred of the better sort of the citisens at Lucerne, and of more than two hundred at Berne: which great Councell afterwards chuseth the Auoyer, which they call Schuldthessen, and the other magistrats. And particularly the Auoyer, with the aforesaid sixteene, and the foure captaines chose the Senat, which is of xxvj at Berne, and xviij at Lucerne: who haue the power of the state at Berne for a yeare. The foure captaines are also annuall chosen by the great Councell; by which captaines and the treasurors, all the judges are •…]lected [ K] and confirmed by the Senat: which Senat hath also the deciding of the first appeales. The second appeales are decided by the same Senat of xxvj, and xxvj others whome the Senat shall make choice of. But the last appeale of all is vnto the great Councell, the chiefe whereof is the Auoyer: where if question be of the life, fame, or fortune of any the citisens: it is by the decree there made decided, without further appeale. The same order almost is vsed in the state of Friburg, in making choyce of the great Councell, consisting of two hundred of the better sort of the citisens: by whome afterward is chosen the Senat of twentie foure persons, and the Auoyer with the foure captaines.

[Page 235] Whereby it is well to be vnderstood those estates of the Swissers to bee Aristocratique, [ A] [Sidenote 637 - *] yet popularly tempered: for that the way is open for all the citisens of what de gree soeuer vnto all the officers and places of commaund, benefits and charge in the Commonweale, if they be not men infamed, distracted of their wits, or otherwise vtterly ignorant of gouernment. That is also belonging vnto popularitie, that almost all their magistrats are annuall: which temperature of the better or richer sort with the meaner or poorer, in being capable of the honours of the Commonweale, maketh the same much more firme and stable, than if the honours and preferments were communicated but vnto the Senators or richer sort onely; with whome the vulgar people is most commonly at oddes: and that so much the more amongst the Swissers, where the nobilitie (except some few) long sithence destroyed and almost rooted ou•…], the people [ B] tooke vpon them the soueraigntie: which by little and little falling againe vnto the nobil•…]itie (excepting in the fiue mountaine cities) haue with a popular moderation tempered their states with better lawes and orders than the rest. For commonly the Aristocraticall state admitteth none but the Senators, the nobilitie, or richer sort, vnto the honours and offices of the state, the rest being quite excluded. Howbeit there haue bene moe Aristocraties, consisting of the more auntient and noble families, than of the richer or more vertuous. As the Commonweales of the Samians, the Corcyreans, the Rhodians, and Cnidians, and almost all the Commonweales of Greece, after the victorie of Lysander, were by him chaunged into Aristocraties of the most auntient families, in chusing out ten or twentie, or at the most thirtie, vnto whome hee committed [ C] the soueraigntie for the gouernment of their estates. Wee see also the state of Venice, to be as we haue before shewed meere Aristocratike: And them also of Rhaguse, of Luca, of Ausbourg, of Nuremberg, to be composed in forme of Aristocraties, of the most auntient families, although they be but few in number. For as for the Rhagusians [Sidenote 638 - *] (in auntient time called Epidaurians) hauing new built the citie of Rhaguse, neere vnto the auntient citie of Epidaurus, vtterly rased by the furie of the Gothes, and exempting themselus from the gouernment of the Alhanois, established among themselues an Aristocratike forme of a Commonwealth, gouerned by the most noble and auntient families; following therein almost the example of the Venetians: yet still much more respectiue and carefull of their nobilitie, than are the Venetians. For a Venetian [ D] gentleman may marrie a base woman, or a common citisens daughter: whereas the Rhagusian gentleman may not marrie a common citisen, neither a straunger, how noble soeuer, if she be not a gentlewoman of Zarafi, or Catharo, and bee farther worth at the least a thousand ducats. There are also but twentie foure houses, which haue part in the state: out of whom are drawne diuers families, out of which the great Councell of about three hundred gentlemen is drawne; prouided alwaies that they bee twentie yeares old, when they are so chosen. These make choyce of threescore gentlemen Senators, for the mannaging of the affaires of the state, and in cases of appeale, so that they be aboue the value of three hundred ducats: who haue also the hearing of criminall causes of importance, as if question be of the life, honour, or state of any gentleman. [ E] Beside this Senat there is a priuie councell of twelue persons, with a yearely prince or gouernour of the citie; and fiue masters of requests (whome they call Prouisors) men appointed to receiue the requests of the people presented vnto them in what court soeuer. There are also six Consuls to decide ciuill causes, and fiue other judges for criminall matters, and thirtie others for the deciding of such suits and controuersies as exceed not the summe of three hundred ducats. Many other meaner officers they haue also, of whome we will in due place speake. Truely this Commonweale of Rhaguse hath of all others that we haue heard, the purest Aristocratie, and farthest from all [Page 236] popular mixture. The citie of Luca also gouerned after the same fashion, admitteth [ F] [Sidenote 639 - *] onely the auntient families to bee partakers of the soueraigntie of their gouernment, who are but few, albeit that about the yeare 1555 there were numbred two and fiftie thousand citisens, besides women. Out of the nobilitie are created an hundred & twentie yearely Senators: out of whome are chosen the ten Councellors of the priuie Councell, with the prince whome they call the Gonfalonnier. And in these consisteth the soueraigne state of this Commonweale. Other officers there be also, as Censors, Pretors, and Receiuers, of whome we will in due place speake. Suffiseth it now for the present to haue shewed diuers Aristocraticall estates, in respect of soueraigntie, to the end by diuers examples both of the auntient and new Commonweales, we may the better vnderstand the true nature of an Aristocratie. [ G]

And forasmuch as diuers men beleeue, and some of them of greatest knowledge of [Sidenote 640 - *] the Germans haue by writing also published, the German empire to be a true Monarchie: we will also speake of that estate, whereof although we haue in briefe somewhat spoken before, yet here we will more at large thereof discourse, and show the same to be an Aristocraticall estate. True it is, that from the time of Charlemaigne vnto the raigne of Henrie surnamed the Falconer, it was a pure Monarchie by right of succession, continued in the royall blood of the said Charlemaigne. But the descent of Charlemaigne, taking end in this Henrie the Falconer, the Monarchie by the voyces of the princes being translated from this Henrie, hath of long time continued by the right of election: insomuch that the seuen princes Electours, hauing by little and lirtle withdrawne [ H] the soueraigntie, haue left nothing vnto the emperour, but the ba•…]e marks therof in show; the soueraigntie it selfe in effect remaining vnto the state of the seuen electors, of three hundred German princes or thereabouts, and the ambassadours deputed for the imperial cities. Which when it first happened, I see no man to haue yet written▪ For that such things as by little and little and little creepe into a Commonweale, are scarcely at all perceiued, neither well felt, vntill the change bee quite made. Now wee haue before shewed that it is an Aristocratike state, wheresoeuer the lesser part of the citisens or people commaund ouer the rest together, and ouer euerie one in particular. And so it is, that the estates of the empire, composed of three or foure hundred men (a•…] [Sidenote 641 - *] I haue said) haue the soueraigne power priuatly ouer the emperour himselfe, and ouer [ I] all the other princes, and townes of the empire in particular: as also to giue lawes to all the subiects of the empire, to determine of peace and warre, to lay taxes and impositions vpon the people, to appoint judges both ordinarie and extraordinarie, to iudge of the goods, honour, and liues of the emperour, the princes and imperiall townes: which all are the true markes of soueraigntie. Which if it be so, as most certaine it is, who can denie but that the state of the German empire is a true Aristocratie? And that to bee true which I haue said, is most euident; sith it is so, that the power of soueraigne commaund dependeth of the acts and decrees of the estates. But the decrees are made by the seuen princes electors, accounted for one third part of the voyces: [ K] and by the other princes of the empire, in number not aboue three hundred, who haue also another third part of the voyces: and by the deputies of the free cities or imperiall townes, in number seuentie, or thereabouts, which haue the other third part of the deliberatiue voyces: by whome all the lawes and decrees of the empire, or whatsoeuer els is propounded, haue vsed to be made, established, disanulled, or confirmed. And hath nothing particular in respect of the state, different from other Aristocraties, but that the seuen princes electors haue (as we said) one third part of the voyces; the princes another, and the imperiall townes the rest: in such sort, as that if the seuen electors and the deputies, or the deputies and the princes, or the electors and the other princes, [Page 237] be of accord and agree in one, the decree whatsoeuer passeth. And for that the ecclesiastical [ A] princes are the greater number, they oftentimes carrie away the matter against the lay princes: which was the cause that the same lay princes, who had before renounced the Romish religion, tooke in euill part the diet which Charles the fift held at Ratisbon; neither being thither sent for, would come. And like as the gentlemen of Venice, Luca, and Rhaguse, vntil they be twentie yeares old enter not into the great councell, neither haue any part in the soueraigntie: euen so likewise the children or neere kinsmen of the German princes, be they young, or be they old, haue no voyces in the diet, if they be not qualified princes of the empire: which are a certaine number of Dukes, Marquesses, Counties, Lantgraues, Burgraues, Margraues, Barons, Archbishops, Bishops, and Abbats. And albeit that the duke of Loraine be a prince of the empire, [ B] and hath a voyce with the rest of the princes, yet so it is, that his vncle the countie Vaudemont, of the same stocke and house with him, as other like princes of the same ranke and order, haue neither voyces nor places in the assembly of the states and princes of the empire, but are reckoned amongst the children of those princes. Howbeit yet many are of opinion, the princes and imperial cities to haue their soueraigne states apart, neither to be bound vnto any other mens commaunds or lawes, otherwise than as friends and confederats; in such sort and manner, as the Swissers haue their cities and iurisdictions among themselues, one diuided from another. But the difference is to him that looketh neerer thereinto, right great, euerie Canton being soueraigne in it self, and not subiect vnto the lawes and commaundements of others; neither otherwise [ C] bound among themseues, than in aliance offensiue or defensiue, as we haue in due place declared: whereas the German empire is vnited by the estates generall in soueraigntie, who not onely haue power to bridle the princes and cities, with fines, exile, proscription, and other seuere punishments, but also to depose and thrust out of the empire euen the emperours themselues, as they did the emperours Adolphus and Venes•…]aus, with many others. Beside that, the estates make ordinatie decrees and lawes, which bind all the subiects of the empire, as well in generall, as in particular. And that more is, the ten circles or circuits of the empire, hold their particular estates, and yet bring their requests, complaints, and grieuances, vnto the estates generall, to receiue their commandements and resolutions, as lawes. Moreouer the princes electours, the day after the [ D] [Sidenote 642 - *] coronation of the emperour, protest themselues to hold their states of the empire, and not of the emperour, albeit that they doe their homage betwixt the emperours hands. In briefe, all iurisdiction and soueraigntie of all appeales in ciuill causes, aboue twentie crownes by the auntient lawes, and fortie by the new, appertaine vnto the imperiall chamber, as to all the appeales of the subiects of the empire: which chamber is composed of twentie foure judges, and one prince of the empire, chosen euerie yeare, according to the order of the ten prouinces or circuits. And if so be that any controuersie arise betwixt any of the princes, or the imperiall cities themselues; whether it bee for their bounds, their liues, their honour or states, the deciding thereof belongeth vnto the judges of the imperial court: except it please the whole states of the empire to take vnto [ E] themselues the hearing and determining of the matter, in such their generall assemblies as we haue before spoken of. As in the yeare 1555, it is set downe in a decree of the empire, That if from that time forward any prouince, prince, towne, or subiect of the empire should beare armes against the German nation, hee should bee iudged by the states of the empire; who to that end were appointed to hold a diet at Wormes. And in the same diet holden at Ausburg, it was forbidden all the princes of the empire, to raise any armie, or to take vp armes in the aid of any straunge prince, and that vppon a great penaltie. And that more is, it is expresly and most straitly forbidden by the laws [Page 236] [Sidenote 643 - *] of the empire, any prince, towne, or corporation, to be so hardie, as to prohibit or let [ F] the appeales of the subiects vnto the imperiall chamber, and that vpon great paine also. And in fine, the emperour himselfe, as head of the assemblie of the states, more straitly bindeth them as it were into one bodie and Commonweale, than if they were but of [Sidenote 644 - *] themselues onely: and yet in him resteth not the maiestie of the empire, but in the whole assemblie of the states. For other which hold the soueraigne power in Commonweales, doe themselues creat princes, dukes, and earles, whereas the emperour is himselfe by the other dukes and princes of the empire created. How therefore can hee being the selfe same man be both the soueraigne and subiect of the empire, lord, and vassall, maister, and yet constrained to be obedient vnto the estates? And not vnto the estates onely, but euen vnto the deputies and lieutenants of the empire? Which vnto [ G] some may seeme right straunge, and yet is indeed most true. I truely my selfe haue read the letters of a great lord, pentionarie vnto the king, directed vnto Mommorancie the Connestable, bearing date the twelft of May, in the yeare 1552: whereby hee aduertiseth, that Henrie the second (then the French king) had iust cause to complaine vnto the duke of Saxonie, and the countie Palatine, lieutenant for the empire, to haue iustice against the emperour Charles the fift and his brother Ferdinand king of the Romans, according to the golden bull, and decrees of the states: for that they contrarie vnto the lawes of the empire and customes of their auncestors, hauing intercepted the kings letters directed vnto the estates of the empire, had not suffered the same to bee vnto them deliuered, but also forbidden the archbishop of Mets, chauncelour of the empire [ H] to receiue or present the same vnto the states, as his office was. And by the assemblie of the imperiall diet holden at Heidelberg, in the yere 1553, it was decreed, that none of the emperours court should mannage any the affaires of the empire; as I haue seene by letters from the French ambassadour. And as for monies extraordinarily raysed by the decree of the estates, for the affaires of the empire, they are not brought into the emperours coffers, but are laid safely vp in store in certaine cities therefore appointed: viz. Strausbourg, Lubec, and Ausbourg: Neither is it lawfull for the emperour to take so much as one peny out of the common treasure, without the consent of the state. Al which most plainly show them to be in an errour, and much deceiued, which call the German emperour a Monarch; or which deeme that Aristocraticall estate to bee a [ I] right Monarchie. Whereas all to the contrarie the emperour Maximilian the first, great grandfather to him which now raigneth (albeit that hee was ambitious enough) yet in a discourse which hee had with the states of the empire concerning such matter, told them, That hee thought it not needfull to take the imperiall crowne at the hands of the Bishop of Rome, neither to stand vpon such ceremonies, seeing that the soueraigne power, as they knew, rested in the states themselues. Neither is it lawfull for the emperour of himselfe, or at his pleasure to call together a diet of the empire, without some especiall and extraordinarie vrgent cause, neither to dissolue the same: but at the breaking vp of euerie diet, order is there taken for the diet to bee holden the [ K] yeare next following. So that it is not lawfull for the emperour to rall an assemblie of the states, which it was lawfull for the Roman magistrats to do, as also for other magistrats in euerie popular and Aristocraticall Commonweale, so that it were done by commaunding of euerie one, as in particular, but not of altogether, as in common: After the auntient manner of the Romans, whereby the Consull might by his edict call together all the Senators, one by one into the Senat, vpon paine of proceeding against them, by seising vpō their bodies or goods, by way of imprisonment, taking of pledges or rasing of their houses. And yet for all that the German princes are not bound to come vnto the diet of the empire, if they be by none commaunded, but by the emperour, [Page 239] as they gaue Charles the fift the emperour well to vnderstand, in the yeare 1554: [ A] and also Maximilian the second, refusing in the yeare 1566, to haue any diet then according to his request holden. And if it fortune the emperour, or king of the Romans, to come vnto the frontiers of their territories, the princes euerie one of them in their degree goe to meet them, but yet in such sort, as if it were but to meet a straunge prince.

Now if one should say that the Emperour beareth himselfe as a Iudge, and determiner [Sidenote 645 - *] of all quarrels and controuersies betwixt the Princes, or the imperiall Townes; True it is at the first motion, and when the parties are content to accept thereof, and that also but as Lieutenant for the Empire: as in like case the Duke of Saxonie, and the Countie Palantine might also iudge as the Imperiall Lieutenants: and yet for all this, [ B] appeal made vnto the Estates of the Empire suspendeth the power of the Emperour, aswell as of the imperiall Lieutenants. Yet might some say, that the Princes of the Empire by their letters, and in the assemblies of the States, vse these magnificall titles towards the Emperour, Your sacred Maiestie, and such like, which cannot be applied but vnto him which is himselfe a Soueraigne: such as slaues would scarce vse towards [Sidenote 646 - *] the greatest kings on earth: titles for fashion sake, foolishly or wickedly (should I say) giuen by flatterers vnto men, which are onely fitting the most mightie and immortall God. And yet do in deed no more increase the power of the Germaine Emperour, then of the King of the Romains: whom by such like prodigall pompe and words, a man might also think to haue the power of soueraigne Maiestie; so that in that Empire [ C] there should be two Soueraignes: and yet for all that one of them subiect vnto the other. For so George Helfustein Baron of Gondelphfingen, pronouncing the speach of Ferdinand king of the Romans in the generall assemblie of the States of the Empire in the yeare 1556, calleth him their Soueraigne Lord.

But the greatest argument of Soueraigntie is, that the Emperour giueth the fees of [Sidenote 647 - *] the Empire being void, vnto whom he pleaseth, and inuesteth in them whom he seeth good: and that without the consent of the States. Whereunto I againe answere, that the expresse consent of the Estates is not necessarie, and yet is it not altogether done without their good liking, who neuerthelesse permit the same; when as they might aswell cut of this point, as they haue done the other marks of Soueraigntie. And howbeit [ D] that the embasadour Marillac was of opinion, that the Emperour had not this power: and therefore aduertised king Henry, how that the Emperour Charles the fift had at Bruxels in the yeare 1551, inuested Philip of Spaine in the Duchie of Millan without the consent of the States of the empire: yet can he not find so much as any one inuestiture of any Imperiall fee, in the conferring whereof the expresse consent of the Estates was had. But certein it is, that the Emperour bestoweth not these fees or inuestitures, but as in qualitie of the Lieutenant of the empire: in such sort as he receiueth the fealtie and homage of the princes, for, and in the name of the empire. As in like case Ferdinand the emperour without the consent of the estates of the empire, receiued Granuellan sent vnto him with speciall charge and deputation from Philip king [ E] of Spayne in the yeare 1565, to do for him the fealtie and homage due vnto the Empire, for the Duchie of Millan, and the perpetuall Lieutenancie of the principalitie of Sienna: granting vnto him as a vassall of the Empire charters of his fealtie done: and for the confirmation of his possession therein. The same is to be thought concerning the confirmations of benefices, and other royall rights, which giuen by the princes or cities of the empire, or by the Chapters and Colleges of priests themselues, are yet neuerthelesse to be confirmed by the Imperial authoritie: according to the agreement made betwixt the Bishop of Rome, and the estates of the Empire. As for letters of [Page 240] safe conduct which he giueth vnto embassadors, heralts at armes, and other strangers, [ F] [Sidenote 648 - *] whereunto the ordinarie clause is adioyned in these words, Forasmuch as wee for our Imperiall power may do all things: they show right well that the Emperour was in auncient time a soueraigne Monarchie; which he now is not: For why then should the Electors and other princes of the Empire refuse to grant vnto the emperour, the diet which he requested of them in the yeare 1566? or why then should both hee and his officers be by them forbidden so much as to touch the monies by them raised for the maintenance of the warres. And to cut it short, we need not but to look into the articles of the oath made by the Emperours (by vs before declared) to know yet more euidently, that the soueraigntie of the Empire is not any wise in the emperour, albeit that he carrie the crowne, the scepter, and weare the other most precious and imperial [ G] habits, and in all solemnities and ceremonies hath the precedence before other the Christian kings, yea and that men attribute vnto him the title of Most sacred Maiestie, all in deed hauing the show of soueraigne and royall maiestie, but yet not the thing it selfe. And yet to say the trueth, a man knoweth not how to do him so great honour as the maiestie of the sacred empire, whereof he is the head, deserueth. But the maner [Sidenote 649 - *] of well gouerned Aristocratike states, is to graunt vnto him the least power to whom they giue the greatest honour: and sometimes also least honour vnto them that be of most power: as of all others the Venetians in the ordering and gouernment of their Commonweal best know how to vse that matter. Seeing therefore wee haue thus showed the Empire to bee but an Aristocraticall estate, we may well conclude, That [ H] there is neither prince nor imperiall citie which hath therein the soueraigntie, being nothing else but members of the empire, euery one of them gouerning their estate vnder the power, and without any thing derogating from the lawes and ordinances of the empire. Wherein many are deceiued, which make so many Commonweals as there are princes and imperiall townes; the contrarie wherof we haue before showed. But as in this realme euery citie and feigniorie haue their Iudges, Consuls, Sheriffes, and other their particular officers which gouerne their estate; so is it in the Imperiall townes and cities: but that here are moe roiall judges; whereas in the empire there is none but the Imperiall chamber onely which receiueth the Appeales from the other judges and lieutenants of the empire. And yet neuerthelesse when it chanceth the [ I] empire to be diuided into factions, and part takings; or that the princes bandie them selues one of them against an other (which hath beene too often seene) then euery towne and prince for the most part beare them selues as diuers Aristocraticall estates, and particular Monarchies; making of euery member a particular bodie of a soueraigne Commonweale.

Now as the state of the Empire it selfe is entirely Aristocratique, so also the great imperiall townes and cities hold their estates in Aristocraticall forme: as Ausburg, Nuremberg, Wormes, and others, which are almost all Aristocraties; albeit that in trueth some of them are more popular than others, as is the citie of Strasbourg. But [ K] for breuitie sake I will for example onely set downe the state of the citie of Nuremberg, [Sidenote 650 - *] the greatest, most famous, and best ordered of all the imperial cities, established in forme of an Aristocratie; wherein of an infinite number of citisens there are but xxviij. auntient families which haue power ouer all the rest of the subiects, which are within the iurisdiction of Nuremberg. Out of these xxviij. families, they euery yeare first make choice of two Censors, men without any imputation; which done, all the rest of the magistrats are euery one of them displaced: then these Censors according to their owne discretion make choice of xxvj. Senators: who out of themselues chuse xiij. persons, for the managing of the secret affaires of that Commonweal: and out of [Page 241] the same Senat also make choice of other xiij. Sheriffes also: beside the vij. Bourgmasters, [ A] which are an other particular counsell, whose authoritie aud power is much like vnto that of the Decemuiri in Venice. And these Magistrats which we haue spoke of, are they which mannage all the greatest affaires of that Commonwealth. I speak not of the fiue criminall judges: nor of the twelue appointed for the deciding of ciuill causes; neither of the Prouiditor for victuals, the two treasurers: nor of the three maisters of the wards: almost of like authoritie with the procurators of Saint Marke at Venice, to the imitation of whome they of Nuremberg seeme in some sort to haue bene desirous to fashion their Commonweale. And albeit that of the imperiall townes some of them be freer than other; as are those which be neither in subiection nor protection of other princes, namely Nuremberg, Strasbourg, Lubec, Hambourg, Breme, [ B] Wormes, and Spires. Yet so it is, that they all as subiects haue a reuerent regard vnto the maiestie of the German empire. True it is, that there are many which haue exempted themselues from the power of their princes, to maintaine themselues in libertie: and now of late to hold of the empire, as the towne of Brunswich, which hath withdrawne it selfe from the obeysance of the princes of Brunswich, Wormes and others, which [Sidenote 651 - *] haue exempted themselues from the power of their auntient lords. As in like case the Swissers and Grisons, now diuided Commonweals, but sometimes subiects of the empire. And namely, the lords of the Canton of Fribourg, in the treatie of Combourgeoisie, betwixt them and the lords of Berne, call the towne of Fribourg a member of the empire, albeit that they haue their state therefrom diuided vnto themselues in full [ C] soueraigntie. Some others acknowledge and confesse themselues to hold their liberties and priuileges, for the gouernment of their estate from the emperour; as they of Vri, vnderuald, and Schwits, hauing their letters patents therefore from Lewes of Bauaria the emperour, bearing date the yeare 1316. They also of Tietmarsh for the confidence they had reposed in the strength and situation of their countrey, (placed in the frontiers of the kingdome of Denmarke) withdrew themselues from the German empire, and established their Commonweale in forme of an Aristocrati•…], of eight and fortie of the better sort of them, who so long as they liue haue the soueraigntie, and when one of them is dead, still chusing another in his place. True it is, that in the yeare 1559, Adolph duke of Holst did what he could to haue subdued them, pretending that [ D]Christiern his great grandfather had of the emperour Frederike the third obtained the soueraigntie ouer them of Tietmarsh, for hauing dismembred themselues from the empire; as I haue seene by the letters of Maister Danzai, ambassadour for the king into Denmarke.

Wherefore it is manifest not onely the whole estate of the Germaine empire, but euen the imperiall citties, themselues also to be gouerned in manner and forme of pure Aristocraties. But heere we must haue regarde in considering of the Aristocratique estate that wee confound not the princes and chiefe magistrates of a Commonweale with kings: nor a counsell of the nobilitie with a Senate: wherein Historiographers often times erre and goe astray, and that specially when as in a Commonweale there [ E] are so few of the nobilitie or better sort to mannage the state, as that they are both Senatours and magistr ats: which gouernment of few, the Greekes call an Oligarchie. So the Pharsalian estate was gouerned by twentie of the nobilitie: the Lacdemonians by thirtie, neither were there moe in all the cities of the Greeks after the victorie of Lysander. They of Thetmarsh were gouerned by eight and fortie; and had no other Senatours then the Seignorie it selfe: the Cnidians by threestore (whome of their integritie of life they called Amymones) but these were but annuall magistrates: whereas the other were perpetuall. And all be it that the Cnidians neuer gaue any account [Page 242] of that they had done in time of their gouernment, yet were they not therefore soueraigne [ F] lords, but soueraigne magistrats; who their magistracie once expired, were again to restore vnto the nobilitie, the soueraigne gouernments by them committed to their charge. In like case they of Zurich chose euerie yeare thirtie six magistrats, of whom twelue by course gouerned foure moneths: which forme of gouernment continued vnto the yeare 1330, that the common people enraged and rising vp in mutinie cast them out, creating in their stead a Senat of two hundred of the nobility, with a Consull chiefe amongst them: and all those estates had the counsell of their nobilitie and Senat all one. Yet doe they better and much more surely, which in an Aristocratie (how little soeuer) be it deuide the counsell of the nobilitie from the Senat: as amongst the Rhagusians, where although the number be but small of them that gouerne that [ G] Commonweale, being it selfe shut vp into a small roome: yet of them is made a Senat of threescore men, out of whom are selected twelue to mannage the secret affaires of their state. Heretofore also the Commonweale of Chio established in forme of an Aristocratie by certaine Genua gentlemen of the house Austinian, hauing won it from the emperours of Constantinople; euery yeare made choice of twelue counsellors of estate for the Senat: out of whome they chose foure, who with one soueraigne prince or magistrat gouerned all the affaires of state: the authoritie of which foure for all that, was but for six months, the soueraign magistrat yet stil holding his place for two yeres: in which manner of gouernment they honorably maintained their estate, vntill that of late yeares it was by the Grand Signior taken from the Genowayes, and so vnited vnto [ H] the Turkish empire.

And thus much concerning the definition of an Aristocratie. Now as concerning the profits and dangers incident vnto an Aristocratique estate: & the manner of the gouernment thereof, we will in due place declare. It resteth now to answere vnto that [Sidenote 652 - *] which Aristotle saith concerning an Aristocratie, being altogether contrarie vnto that which is by vs before set downe. There are ( [Sidenote 653 - *] saith hee) foure sorts of Aristocraties: The first, where none but the richer sort, and that to a certaine reuenue, haue pan in the gouernment of the Seignorie: The second, where the estates and offices are giuen by lot vnto them which hold most wealth: The third, where the children succeed their fathers, in the gouernment of the Seignory: And the fourth, when they which take vpon them the state, vse a lordlike power and commaund without lawe. And yet neuertheles in the same booke, and a little after, hee maketh fiue sorts of Commonweales, viz. the Regall, the Popular, the gouerment of a few, the gouernment of the nobilitie▪ and after these a fift kind, composed of the other foure: which (as hee saith [Sidenote 654 - *] afterwards) is no where to be found. But such a medley of Commonweales wee haue before not onely by probable but euen by necessarie reasons also, prooued to bee impossible, and by nature altogether imcompatible: wherefore letting that passe, let vs now also show the diuers formes of Aristocraties by Aristotle set downe, to bee no way considerable. First hee no where defineth what an Aristocratie is: the verie cause of his errour. For what can bee more vaine, than to say it to be an Aristocratie where the ritcher or the better sort haue onely part in the gouernment? [Sidenote 655 - *] For it may bee that of ten thousand citisens, six thousand of them hauing two hundred crownes of yerely reuenue, haue all part in the Seignorie; and yet neuerthelesse the state shall be a popular state, considering that the greater part of the citisens haue the soueraignitie: for otherwise there shall be no popular Commonweale at all. The like might be said for the gouernment of the better sort also, who might chaunce to be the greater number of the citisens, which should haue part in the Seignorie: and yet according to the opinion of Aristotle, it should also be an Aristocraticall estate, albe•…] [Page 243] it that the greater part of the people beare therein the sway. As for the gouernment [ A] of good men, if we shall measure them according to the highest degree and perfection of vertue, we shall not finde one such: but if after the common manner, and opinion of the people, so euerie man will call himselfe a good man. But to iudge of an other [Sidenote 656 - *] mans integritie and vertue, as it is an hard matter for any man to do, so hath it it also vnto wisemen alwaies seemed a thing most dangerous: Insomuch that the wise and graue Cato being chosen out for the purpose, durst not giue sentence whether Q. Luctacius was a good man or not. But admit that in euerie Commonweale the good are in number fewer than the bad; & yet haue the gouernment of the common state: why for the same reason hath not Aristotle made one sort of Aristocraty, wherin the nobilitie hold the soueraignitie? seeing that they are euer fewer in nūber then the base & vulgar [ B] sort: why also maketh he not an other sort of Aristocratie, wherein the most antitient families although but of base degree bore rule? As it chanced in Florence after that the nobilitie were driuen out. For it is right certain that there are many base families, who although they be not famous or much spoken of for any great thing by them or their auncestours done, are yet more auncient and honest then a number of vpstart gentlemen, who happily scarce knowe their owne fathers. He might also make an other sort of Aristocratie, wherein the tallest and greatest should haue the soueraignitie as he himselfe [Sidenote 657 - *] saith they do in Ethiopia: and so consequently also an Aristocratie of the fairest, of the strongest, of the valiantest, of the wisest, of the learnedst, and of others with such like qualities of the bodie, or of the minde: as wee see to bee incident [ C] but into the fewer sort: whereof should ensue an infinite multitude and varietie of Aristocratique Commonweales. But that seemeth also vnto mee most strange that hee should say the second sort of an Aristocraty, to be where the richer sort by lot haue the gouernment and mannaging of the state, whereas alwaies, elsewhere, hee had said lots properly to appertaine vnto the popular state. Thus the Athenian Commonweale was of all other most popular, he with Xenophon agreeth: and yet for all that the greatest honours, offices, and preferments were not their giuen, but vnto the richest before the time of Pericles. And in Rome which was also a popular state, before the law Canuleia the greatest honours, priesthood, and preferments, were not bestowed vpon any of the common vulgar sort of people, but vpon the most auntient gentlemen [ D] whome they called Patricii: a most certain argument that the Commweale may be•…] in state popular, and yet gouerned Aristocratically: and that there is a notable difference betwixt the state of a Commweale; and the gouernment of the same, as we haue before said. As for the fourth sort of Aristocraties, wherin (as Aristotle saith) some few which take vpon them the mannaging of the state, vse a Lordlike power and commaund ouer all without law, in manner of a tiranie: we haue before showed the difference betwixt a Monarchie royall, Lordlike, and tirannical: the like difference whereof is also in the Aristocraticall gouernment: wherein the Lords may gouerne their subiects as slaues, and dispose of their goods, as may the Lordly Monarke, without law and yet without tiranising also: not vnlike the good maister of the familie, who is alwaies [ E] more carful of his slaues, than of his hired Seruants: and so also loueth them better. For why it is not the law which maketh the iust and rightfull gouernment, but the true administration of iustice, and equall distribution thereof. And the fairest thing in the world that can be desired in matter of state, (in the iudgement of Aristotle himselfe) [Sidenote 658 - *] is to haue a wise and vertuous king, knowing how to gouerne his people without lawe: considering that the lawe oftentimes serueth many but as a snare to deceiue and snarle men in: and is also of it selfe dumb and inexorable: as the nobilitie of Rome complained at such time as the people would needes haue lawes, and be gouerned by [Page 244] them, after that the kings were driuen out, who gouerned without law & gaue iudgement [ F] according to the diuersitie of the facts or causes presented before them: which manner of iustice the consulls and nobilitie, who in some measure held the Commonweale in an Aristocratique state continued, vntil that the people desirous to bring it vnto a popularitie, requested to bee gouerned by the equalitie of lawes, and not to haue their liues, fame, and fortune, to depend of the iudgement of the nobilitie & choice magistrats only: which their request after that it had bin, with much a do 6 yeres debaited, against the Lordlike Aristocraticall gouernment of the nobilitie: they at length at the instance of their Tribune Terentius Arsa caused it to passe in force of a law, that from that time forward the nobilitie, consulls, and magistrates, should themselues as well as the people, be bound to all such lawes, as the Decemviri to that purpose appointed by [ G] the people should set downe and make. It is not therfore the law which maketh good Princes, or magistrats in a Commonweale, be it a Monarchie or Aristocratie; but vpright reason and iustice, engrauen in the mindes and soules of iust princes and Magistrats; and that much better then in tables of stone. Neither euer were there more cruell tirants then were they, which bound their subiects with greatest multitude of edicts [Sidenote 659 - *] and lawes, which •…]he tyrant Caligula of purpose, and to no purpose, caused to bee set downe in so small letter, as that they could hardly be of any man red, but with Linceus eyes, to the intent thereby to entangle the moe through ignorance transgressing the same: whose successour and vncle Claudius in one day made twentie edicts: and yet for all that there was neuer greater tiranie then then: neither worse or more vilanous [ H] men. But as an Aristocratie well ordered is of it selfe a maruelous faire and goodly state: so can there be none worse if it be once corrupted: when as for one tirant there [Sidenote 660 - *] shal be many: and that especially when the nobilitie shal bandie it selfe against the people: as it often times chaunceth; and as we reade it to haue in auncient time fallen out, when as in many Aristocratique estates none was by the nobilitie admitted into their number for the gouernment of the state; but that they must first sweare, to be for euer enemies vnto the people, and all popular men: a course not so much tending to the destruction of the cominaltie and people, as of the nobilitie and mightie men themselues: and so to the vtter subuersion of all Aristocraties, as we shall in due place declare And thus concerning the Aristocraticall estate: now let vs likewise see what a popular [ I] estate is.

CHAP. VII. ¶ Of a Popular Estate.↩

A Popular estate is a forme of Commonweale, wherin all or most [Sidenote 661 - *] part of the people togeather commaundeth in soueraignetie ouer the rest altogether, and ouer euerie one in particular. The [ K] principall point of a popular estate is seene in this, that the greater part of the people hath the Soueraigne commaund and power not onely ouer euerie one in particular, but also ouer the lesser parte of all the people together. As for example in Rome, where there were but fiue and thirtie tribes or companies of the people: eighteene of these companies together, had soueraigne power ouer the other seauenteene: and authoritie to establish lawes, whereunto both they and euerie one of the Citise•…]s in particular were subiect and bound, wherfore Tiberius Gracchus the factious Tribune of the people requested Marcus Octauius his companion and fellow of himself to giue [Page 245] vp his office, before that the eighteene tribes had giuen their voices for the deposing [ A] of him: for withstanding of Tiberius propounding and vrging the lawes for the diuision of lands: and for opposing himselfe against the profit of the people. Also at such time as Lucius Rullus, the busie Tribune by request which hee presented vnto the people, concerning the diuision of lands, desired that the commissioners which had that charge, might bee chosen by the greater part of the seauenteene tribes of the people onely: Cicero, then Consull tooke thereupon occasion amongst the other things to crosse the entertainement of his request, and publication of the law, saying: that the Tribune in so doing went about to deceiue the other eightteene Tribes, that is to say the greater part of the people of their voices, which the Consuls obiection was the lesse to haue bene regarded, and the more easily to haue by the Tribune bene answered, [ B] for that his request was, but if it pleased the people (that is to say: the greater part of the 35 Tribes) that the lesse part of the people (that is to say the seauenteene tribes) might appoint the commissioners▪ so that the maiestie of the people notwithstanding his request remained still whole and vntouched: considering that the lesser part of the people was thereunto to be deputed, but at the will and pleasure of the greater part: to the end that the greater part of the people should not still for euerie trifling matter be called together. So by the law Domitia it was prouided that if by the death of any of the Augures, Preests or Bishops any benefice fell voide, they should assemble but 17 tribes of the people for the nominating of him, whom they would haue chosen Bishop: so that he which was by nine of the tribes of the people nominated and allowed, [ C] was by the chapiter or Colledge of Augures or Bishopps to be admitted and receiued.

When I say the greater part of the people to haue the soueraignitie in the popular [Sidenote 662 - *] estate; that is so to be vnderstood, when the voices are to bee taken by Pole as in Venice, in Rhaguse, in Genua, in Luca, and almost al Aristocratique Commonweales: but if the voices be taken by tribes, parrishes, or companies sufficeth it, of them to haue the greater part, also albeit that there be in them far the lesser part of citisens, as it hath commonly chanced in auncient popular Commonweales. In Athens the people was diuided into ten principall tribes, whereunto in fauour of Demetrius, and Antigonus they ioyned two others, of them called Antigonia and Demetria: and againe the people was diuided into thirtie sixe classes or companies. But such diuisions according to [ D] the diuers encreasings of the people, and more easie and commodious giuing of voices are often time changed. So Romulus at first deuided all the people in Rome [Sidenote 663 - *] which then was about 3000 into three tribes or parts: and after that euerie part into ten companies, appointing ouer euerie one of them an head: how be it the voices (as Liuy saith) were then al giuen by poll. But by the ordinance of king Seruius the people was againe diuided into sixe companies, according vnto euery mans wealth and reuenue: in such sort: as that the first companie wherein the richest were enrolled, had asmuch power as all the rest: if the centuries of this first companie were al of one accord and mind in giuing of their voices, that is to say fourescore centuries, which were but eight thousand persons; for in that case the voices of the other fiue companies were neuer [ E] asked. But if two or three centuries of the first companie were not of the same opinion with the rest: so many centuries of the second company were drawne out as might supply that defect, and that so often in euerie companie, vntill the number of fourescore companies were filled vp. So that in taking voices they seldom came vnto the third & fourth company: but most seldom vnto the first, and vnto the sixt neuer: in which sixt companie was the refuse of the people, and poorest citisens, which according to the view then taken, were in number aboue threescore thousand: beside the bourgesses and citisens of the fiue first companies in number sixteene thousand▪ [Page 246] And had this ordinance of king Seruius still remained in force after kings were driuen [ F] [Sidenote 664 - *] out, it had not bene a popular state but an Aristocraticall, for that the lesser part of the people had then therein the soueraignetie. But shortly after the expulsion of the kings the common people seeing themselues oppressed by the wealth & power of the greater, reuolted thrice from the nobilitie, and held their state apart: to the intent they might euery one of them, as wel the poore as the rich, the base as the noble, haue their voices alike; neither could they be before quieted, vntill they had obtained power out of the bodie of themselues to chuse their Tribunes, the maintainers of their liberties: wherof their Tribunitial assemblies began first to be holden. But for asmuch as the nobility & richer sort dispersed among the tribes, caused the poorer & meaner sort (for the most part their followers▪) to giue their voices at their appointment & pleasure; [ G] there was a decree made, That from thenceforth the nobilitie should no more be present at the assemblies of the common people: which was then diuided into eighteene tribes, which by little and little in continuance of time tooke such increase, that they grew to the number of fiue and thirtie tribes: who at length by meanes of their factious Tribunes got vnto themselues the soueraigntie of the Commonweal, with power to make all the lawes, and chuse all the magistrates, except the Consuls, the Praetor, and Censors, which for that they were the greatest magistrates, they were still chosen by the greatest assemblies, that is to say of the nobilitie and people together, the whole bodie of the people beeing (as wee said before) diuided into tribes or companies. But forasmuch as the enfranchised men, and such as by desert [ H] had obtained the libertie of the cittie, mingled through all the tribes of the people of Rome, in number far exceeded the naturall and antient citisens, and so by multitude of voices, carried all things away from them: which (as we haue before said) was by Appius the Censor done, thereby to gratifie the vulgar people, and by that meanes to obtaine [Sidenote 665 - *] of them what so he would: Fabius Maximus the Censor by great wisdom ouerthrew all the grace that Appius had by cunning got, by thrusting all the enfranchised men, and such as were of them discended, into foure tribes by themselues: so to preserue the antient and freeborn citisens in the right of their voices. For which onely fact by him brought to passe without tumult or sedition, hee obtained the name of Maximus, or as we say, the Greatest. Which his order still continued, vntill that about 300 [ I] yeares after, Seruius Sulpitius Tribune of the people, would needes haue the enfranchised men againe enrolled into the Tribes of their maisters by whome they were before manumised or set at libertie: but before this his motion was brought to effect, he was himselfe slaine: which for all that in the time of the ciuill warres betwixt Marius [Sidenote 666 - *] and Silla, was by Marius (hauing ceised vpon the citie) effected: so to make the estate of the Commonweale more popular, and to weaken the authoritie of the nobilitie and richer sort. Demosthenes after the victorie of Philip king of Macedon at Chaeronea attempted the like at Athens; by presenting a request vnto the people, That the enfranchised, and other the inhabitants of Athens, might be enrolled in the number of [ K] citisens: which his request was then euen openly reiected, albeit that there then were not aboue 20000 citisens: which was seuen thousand moe than was in the time of Pericles, when as were found but thirteene thousand citisens enroled, out of whom [Sidenote 667 - *] also 5000 strangers, who had s•…]yly crept in for citisens, were sold for slaues: and yet the multitude of the slaues was than ten times more than the number of the citisens.

This which I haue said, may well serue to aunswere that which might bee alleaged, That there is not, neither haply euer was any so popular a Commonweale, as wherein the subiects had all voyces alike; or if they had, that they could all meet together to make lawes, create magistrats, and vse the other markes of soueraigntie: a good part of [Page 247] them to the contrarie being ordinarily still absent, and so the lesse part making the law▪ [ A] But it sufficeth, that the greater part of the tribes carried away the matter, albeit that haply in some one tribe a thousand citisens were in voyces equall vnto another, wherein there were ten thousand; considering that the prerogatiue of euerie mans voyce was in this tribe re•…]etued vnto him. Yet hereby it came to passe, that the more ambitious fort of men oftentimes by bribes or fauour corrupted the chiefe men, and as it were the ringleaders of the tribes, especially at such time as the lesser part of the people was present at the assemblies: Which to meet withall, it was therefore oftentimes prouided, that when any law of importance was made, it should in no wise bee againe repealed, except there were six thousand citisens at the least present at the assemblie, who gaue their consent to the reuoking thereof; as is oftentimes to bee seene in [ B]Demosthenes. And the Ostracisme (as Plutarch writeth) tooke no place vpon any man, except six thousand citisens at the least agreed in one therein: which yet was the lesser part of the people. T•…]e like whereof is also obserued in the lawes of the Venetians, being of any great weight or importance; and namely in laws concerning the execution of iustice, whereunto this clause is adioyned, That the great Councel shal not in any thing derogat from the law established, except there be at the least a thousand Venetian gentlemen there present; and that of them, eight hundred all agree in one and the same opinion, for the repealing of the law. Whereunto the Roman lawes, concerning corporations and colleges, seeme also to haue had regard; where two third parts of the Collegiats, and of them also the most voyces must agree, to giue any law [ C] or order vnto the rest. And in all the assemblies of the Venetians, which haue bene called together for the gouernment of the seignorie in our daies, there haue scarcely at once met together fifteene hundred gentlemen: so that when the law willeth a thousand of them at the least to be present, the meaning of the law is, that there should two third parts of those which haue voyces in the state be still present, and of them eight hundred to be all of one opinion for the passing of any matter: which I thinke to bee therefore done, for that eight hundred of them make the greater part of fiftene hundred: a thing requisit, where voices are taken by the Poll, as in Venice, and not by tribes or companies, as they did in Rome and other popular estates, by reason of the infinit multitude of them which had part in the seignorie. And in Rome, vntill the law Fusia, [ D] (made 693 yeares after the building of the citie) they confounded the voices of the tribes, to the intent it might lesse be vnderstood which way euery tribe had gone, so to auoid the displeasure of the citisens among themselues, about the giuing of their voices. So at Strasbourg the most popular of the German cities, and at Mets, although it came into the power of the French, yet they giue their voices by tribes; as the three popular Commonweals also of the Grisons, call the tribes and companies vnto their assemblies, for the creating of their magistrats, and making of lawes: yet so, as that the greater tribes haue the greeter part of the suffrages or voyces. True it is, that the cantons of Vri, Schwits, Vnderuald, Zug, Glaris, and Apenzel, which are true Democraties, and hold the more popular libertie, for that they are mountainers, make their assemblies for [ E] most part in open places, and there euerie one of them (being fourteene yeares old) giue their voices for the chusing of the Senat, the Aman, and their other magistrats, which they doe by lifting vp their hand, after the auntient forme of the Athenian 〈 in non-Latin alphabet 〉] and manner of other such popular Commonweales, sometimes constraining their neighbours with drie blowes to hold vp their hand, as they did of old. In like manner the tribes of the Grisons, which are of others most popular, and most popularly gouerned of any Commonweale that is, make their common assemblies for the choice of their Aman: (which is the soueraigne magistrat in euerie one of their little cantons:) [Page 248] where he which hath bene Aman the three yeares before, standing vpright, and excusing [ F] himselfe vnto the people, craueth of them pardon for whatsoeuer hee hath done amisse in his office before: then after that hee appointeth out three citisens, out of whome the people chose one for their Aman or chiefe magistrat for the yeare following: after whome they chose also his lieutenant, who is as it were the chauncellour, and thirteene other councellors, of whom foure are of the councell for the more secret affaires of the state, and after them the Camarlign, or Chamberlaine treasurer for the common treasurie. But in this there is a notable difference, betwixt the gouernment [Sidenote 668 - *] of the Grisons, and of the other Cantons of the Swissers: for that hee which can giue vnto his side, two or three of the principal officers, of any one canton of the Swissers, who are ruled by certaine great men bearing sway amongst them, may assure himselfe [ G] to haue gained the whole canton: whereas the people of the Grisons hold themselues in nothing subiect or pliant vnto their officers, if the good liking of the whole commons be not gained; as I haue seene by the letters of the bishop of Bayonne, ambassadour for the French king: and afterward by Maister Bellieure ambassadour also, and a man of good vnderstanding in matters of state, hauing the same charge, gaue the king to vnderstand, in the moneth of May 1555, how that the ambassadour of Spaine had almost caused all the companies of the Grisons to reuolt, insomuch that in assemblie of the Cade, there were moe voyces for Spaine, than for Fraunce. And after that how that they of the Comminaltie of Linguedine, hauing not receiued the money promised them by the Spaniards, laid hand vppon the Spanish pentioners amongst [ H] them, and putting them to torture, afterward condemned them in a fine of ten thousand crownes to be by them paid into the common treasure. Wherein the French ambassadour so well bare himselfe, that notwithstanding the Spanish practise, they within two moneths after, together with the rest of the cantons of the Swissers sent 27 ambassadours into Fraunce, to renue and confirme their former alliances.

These examples of popular cities we haue set downe, that thereby the force and nature of popular states and Commonweales might the better be vnderstood: Wherefore let vs then conclude; That to be a popular State or Commonweale wherein the greater part of the people haue the soueraigntie; whether their voices be giuen by [Sidenote 669 - *] poll, by tribes, companies, parishes, or communities. And yet Aristotle writeth vnto [ I] the contrarie: We must not saith he, according to the common opinion iudge the estate popular, where the greater part of the people haue the soueraigntie: And afterward for example bringeth forth xiij. hundred citisens in a citie, of whom a thousand of the better & richer sort haue the soueraigntie, excluding the rest: we ought not saith he to deeme this a popular state; no more than that to be an Aristocratie, wherin the lesser part of the citisens haue the soueraigntie, being men of the poorer sort. And after that he concludeth thus: The popular estate is wherein the poorer sort of the citisens haue the soueraigntie; and an Aristocratie where the richer sort beare the rule, whether they be moe or fewer in the one or in the other much concerneth not. And by [ K] this meanes Aristotle to establish his owne, reiecteth the common opinion of all people: yea euen of the Philosophers and law-giuers themselues: which common receiued opinion hath alwaies beene, is, and shall be mistris in matters of state. And yet he had neither true nor probable reason to depart from the common opinion: whereas thereof ensueth a thousand intollerable and ineuitable absurdities. For so we might say that the faction of the Decemuiri or ten commissioners, appointed for the correcting and amending of the euill lawes and customes of Rome, taking vpon them the soueraigntie, was a popular estate; albeit that all histories call it an Oligarchie, although they in that barenes of the Commonwealth were not chosen for their wealth, but for [Page 249] their wisedome onely. And to the contrarie, when the people for the maintenance [ A] of their popular estate had driuen them out, a man might say that the state was then chaunged into an Aristocratie. So should we also say, if twelue thousand of the richer sort had the soueraigntie, and but fiue hundred of the poorer sort were excluded, that that state were an Aristocratie. And againe to the contrarie, if there were but fiue hundred poore gentlemen, which had the gouernment ouer the rest of the richer sort, one should call such a Commonweal a popular state. For so saith Aristotle, calling the Commonweales of Appollonia, Thera, and Colophon popular states, wherein a few auntient verie poore families had the soueraigntie ouer the rich. Yea he passeth on further and saith, that if the greater part of the people hauing the soueraigntie, giue [Sidenote 670 - *] the great offices and honours of their state vnto the fairest or tallest of their citisens, it [ B] shall no more be a popular, but an Aristocratique estate: which is an other foule errour in matter of state, considering that to iudge of an estate, the question is not to know who haue the magistracies or offices: but onely who they bee which haue the soueraigntie and power to place and displace the magistrats and officers, and to giue lawes vnto euery man.

And these absurdities, and others also much greater then they, ensue hereof, in that [Sidenote 671 - *]Aristotle hath mistaken the manner and forme of the gouernment of a Commonweale, for the soueraigne state thereof. For as we haue before said, the state may be a pure royall Monarchie, and yet the gouernment there of popular: as namely if the prince giue honours, offices, and preferments therein to the poore, aswell as to the [ C] rich: to the base aswell as to the noble, and so indifferently to all without respect or accepting of person. As also it may be that the state be royall, and yet the gouernment aristocraticall: as if the prince giue the honours and offices to a few of the nobilitie, or to a few of the richer sort onelie, or some few of his fauorits. And to the contrarie, if the people hauing the soueraigntie, giue the most honorable offices, rewards, and preferments vnto the nobilitie onely, as they did in Rome, vntill the law Canuleia, the estate should be in deed popular, and yet the gouerment Aristocratique. So if the nobilitie, or a few of the better sort should haue the soueraigntie, and yet bestow the most honorable charges and preferments vpon the poorer and baser sort, aswell as vpon the rich, without fauour or respect of persons: the state should be Aristocratique, and yet [ D] popularly gouerned. But if all or the greatest part of the people hauing the soueraigntie, shall giue the honorable offices and preferments indifferently to all, without respect of person, or by lot bestow the same vpon all the citisens: a man might wel iudge that estate not onely popular, but also to be most popularly gouerned. As was done at Athens at the request and motion of Aristides the just, whereby all the citisens were receiued into all the offices of the Commonweale, without respect of their wealth, contrarie to the law of Solon, whereby it was prouided, that in bestowing of honours and places of authoritie and commaund, regard also bee had vnto mens abilitie and wealth. So likewise if the nobilitie onely, or some few of the richer sort should haue the soueraigntie in the state, and so exclude all the rest of the people from the honorable [ E] places and preferments in the Commonweal, so to keepe them to themselues alone: one might say that estate not to be aristocratike only, but also aristocratically gouerned; as wee may see in the state of Venice. But here happily some man will say, that none but my selfe is of this opinion, and that not one of the auntient, and much lesse of the moderne writers which intreat of matters of state or Commonweales, haue once touched this point. True it is that I cannot denie the same; yet this distinction neuerthelesse seemeth vnto me more then necessarie, for the good vnderstanding of the state of euery commonweal; if a man will not cast himselfe head long into an infinite [Page 250] labyrinth of errours, where into we see Aristotle himselfe to haue fallen: mistaking [ F] the popular Commonweal for the Aristocratique: and so contrarie wise, contrarie to the common receiued opinion, yea and contrarie to common sence also: For these principles euill grounded, nothing that is firme and sure can possiblie be thereon built. From this errour likewise is sprung the opinion of them which haue forged a forme of a Commonweale mingled of all three, which we haue for good reasons before reiected.

Wherefore let vs firmely set downe and resolue that there are but three formes of [Sidenote 672 - *] Commonweales, and no moe, and those simple also, and without any confused mixture one of them with an other; albeit that the gouernment be sometimes contrarie to [ G] the state: As a Monarchie is contrarie to a Democratie or popular estate; and yet neuerthelesse the soueraigntie may be in one onely prince, who may popularly gouerne his estate, as I haue before said: and yet it shall not be for that a confusion of the popular estate with a Monarchie, which are states of themselues incompatible, but is well (as it were) a combyning of a Monarchie with a popular gouernment, the most assured Monarchie that is. The like we may deeme of the Aristocratique estate, and of the popular gouernment: which is by farre more firme and sure, then if the estate and gouernment were both Aristocratique: the state standing almost inuiolable, when as the subiects by such a moderat kind of gouerment are amongst themselues combyned, as also vnto the Commonweale. And albeit that the gouernment of a Commonweale [ H] may be more or lesse popular, aristocratique, or royall, (as of tyrannies, some may be more cruell than others,) yet so it is that the state in it selfe receiueth no comparison of more or lesse. For the soueraigntie is alwaies indiuisible and incommunicable in one [Sidenote 673 - *] alone, or in the lesse part of all the people, or in the greater part thereof; which are the three sorts of Commonweales by vs set downe. And as for that which we haue said, that the gouernment may be more or lesse popular, may be deemed so to be, by the Commonweales of the Swissers, where the mountaine Cantons of Vri, Schwits, Vnderuald, Zug, Glaris, and Apensel are so popular, as that the soueraigntie of the Commonweal [Sidenote 674 - *] resteth onely in them all, so that they be fourteene yeares old, in somuch that their chiefe magistracies & places of greatest commaund are sometime giuen euen to verie Sadlers, and such other mechanicall men: neither of the aforesaid Cantons is [ I] any one of them walled except Zug. The other new Cantons and Geneua, are lesse popular, gouerning thrmselues by certein lords, which they call the Councell, as I haue learned by Master Basse-fountaine Bishop of Limoges, who long and discreetly without blame, as any one embassadour, hath to his great honour mannaged this charge. And albeit that the Bernoies and they of Zurich compose their Senat of diuers handy crafts men, yet they vse commonly to creat their Auoyers (or chiefe magistrats) of their most noble and auntient families: whereby they are lesse subiect vnto seditions and tumults: whereas the lords of the three Cantons of the Grisons being more popular, are also more subiect vnto seditions and sturres, the people in their [ K] assemblies being hard to be gouerned; and once moued, hard to be pleased; as the ambassadours of princes haue alwaies by experience found. For the true nature of the [Sidenote 675 - *] people is, to desire libertie without restraint of bit or bridle whatsoeuer: and to haue all men equall in wealth, in honour, in paines, and rewards; without regard of nobilitie, wisedome, or vertue: and as Plutarch saith wisely to haue all cast into lot, and euen ballance, without respect or fauour of any man, then if any valiant or honourable minded of the nobilitie or richer sort shall by any meanes attempt to restraine the people so intemperatly abusing their libertie; them straight waies they do what they can to kill or to banish, and confiscating their goods, diuided the same among the poorer sort, and [Page 251] that the rather, if they be rich, or seeme to aspire: Yea oft times it happeneth, that the [ A] common people puft vp with the punishment or slaughter of some one mightie man, violently breaketh out vpon the rest, and that especially if it be once come to armes, [Sidenote 676 - *] and that the nobilitie be by the force of the people ouerthrowne. As it happened at the establishing of the popular estate of the Swissars, after the battell of Sempach, where almost all the nobilitie was slaine, and the rest which were left constrained to renounce their nobilitie; and yet neuerthelesse were excluded from all honours and offices of charge in the Commonweale, except at Zurich and Berne (which is in them the lesse to be maruelled at, for that the nobilitie there, with great safetie and without force of armes, made their peace with the victorious common people, now before quite spent [Sidenote 677 - *] with ciuill warres.) Yet for all this insolencie, did the Swissers more moderatly vse [ B] their popular libertie, than did in antient time the Grecians or Italians, who oftentimes would needs haue all bonds and obligations burnt or canceled: yea sometime the common people set on by such as were farre endebted, ranne vppon the creditours and rich men, robbed their houses, and enforced them to make an equall diuision of their possessions and lands, forbidding them the hauing or possessing of cattell or lands, aboue a certaine number or rate by them set downe: from which kind of dealing the Swissers haue alwaies abhorred. And albeit that the publike pensions of princes, and gifts of straungers, in some of the Swissers cities, are not laid vp in the common treasure, but diuided among the people in particular; in the diuision whereof hee that hath most male children hath also a greater part than the rest: yet for all that, when as they [ C] of the canton of Glaris requested of Morlet, the French kings ambassadour, in the yere 1550, That the priuat and extraordinarie pensions, which the greater men yearely receiued of the king, might together with the publike pension bee equally diuided amongst them all: King Henrie denied so to doe, and said, He would rather restraine his bountie, than suffer his priuat liberalitie to be so at their pleasure confounded with the common. Yea that worse is, the insolent libertie of the auntient Greeke popular Commonweales, proceeded to that libertie (should I say) or rather lewd madnesse, as to banish them that were more wise and discreet than the rest for the mannaging of their affaires, as they did Damon, maister to Pericles: and not onely wise and discreet, but euen the most iust and vertuous also; as was Aristides in Athens, & Hermodorus at [ D] Ephesus: which what thing is it else, than to go about to pluck vp vertue it selfe by the root? But they were afraid least so great brightnesse of vertue in one great citisen or [Sidenote 678 - *] subiect▪ should so dazle the eyes and minds of the rest of the common people, that forgetting their libertie, they should chuse rather to liue in subiection vnto so wise and vertuous a man, than to rule thēselues. Which thing they the more feared, if vnto his vertues and good parts were ioyned nobilitie, or power, or experience in great matters; who with force ioyned thereunto, might from the citisens either with their will, or against their will, extort their libertie. Whereas the nobilitie and better sort, to the contrarie make no account or reckoning of the popular state: but thinke it good reason, that he which hath the most nobilitie, wealth, vertue, or knowledge, should be also [ E] the more esteemed, respected and honoured; and that the honourable charges in the Commonweale, should of right be due vnto such men: and therefore alwaies desire and seeke to haue themselues alwaies diuided and seperated from the dregges and rascal [Sidenote 679 - *] sort of the common people. Sith therefore the princes and nobilitie so much differ from the common and base people, it is a thing impossible by any meanes to make them together equall: or being made in honors and commaund, euen to reconcile thē among themselues, together with the Commonweale: and so (as they say) with one and the same brewing to moderat two so contrarie humors. Albeit that Solon vaunted, [Page 252] that if he had power to make lawes, he would make them such as should be most indifferent, [ F] both for the rich and the poore, the nobilitie and the base: which the nobilitie thought Solon to meane of the equalitie in Geometricall proportion; and the people of the proportion Arithmeticall: whereby it came to passe, that both the states yeelding vnto him, gaue him power for the making of them lawes, and establishing of their Commonweale. But these things, as also what commodities or inconueniences attempted vpon euerie Commonweale, shall in their due places bee more at large declared: sufficeth it now with what breuitie well might be, to haue set downe the descriptions and kinds of all Commonweales, as also what is to euerie one of them proper, straunge, or common with others: and also who in euerie Commonweale hath the power of Soueraigne maiestie. Now let vs prosecute euerie part and limme, [ G] as it were, of a Commonweale, which are tied vnto the soueraigntie of the state, as members vnto the head; viz. the Senat, the magistrats, the officers, colleges, and corporation▪ and that in such order as wee haue here rehearsed them.

CHAP. I. ¶ Of a Senat, or Councell of Estate, and the power thereof.↩

A Senat is a lawfull assemblie of Councellors of Estate, to [Sidenote 680 - *] giue aduise to them which haue the soueraigntie in euerie [ C] Commonweale. For so order requireth, that hauing before spoken of them which haue the power of soueraigne maiestie, and of the markes thereof, and also touched the diuersitie of Commonweales: We should now also speake of the Senat, as of the chiefe and principal part of a Commonweal, next vnto the prince. Not for that a Commonweale cannot altogether be without a Senat or Councell: for a prince may be so wise and discreet, as that he cannot find better councell than his owne: or els hauing not whome to trust, taketh aduice neither of his owne people nor of strangers; [Sidenote 681 - *] but of himselfe alone, as we read of Antigonus king of Asia, and of Lewes the eleuenth [ D] the French king; whome the emperour Charles the fift doubted not in that to imitat: as also of Caius Iulius Caesar among the Romans; who neuer spoke any thing vnto others, of the enterprises he had in hand: nor of his iourneies, no not so much as of the day of battell; and yet performed great matters, albeit that he were beset with many great and right puissant enemies: and was therefore the more redoubted, for that his designes were so close and couert, as that they were still executed before they enemy could perceiue them: who still was by that meane ouertaken, and ere hee were aware surprised. Besides that, the captaines and souldiors reposing themselues in the wisedome of such a prince or generall, were alwaies in expectation, prest, and readie euen in a moment, to performe whatsoeuer he should command, but with the holding vp of [ E] his hand. No otherwise than the members of a bodie well composed are alwaies readie to receiue & put into execution whatsoeuer reason shal commaund them, although they be no whit partakers of the concell thereof.

Now many haue (and that in mine opinion) without cause doubted, Whether it were better for the Commonweale to haue a most wise and vertuous prince to gouern the same without councell; or a dull and vnfit man of himselfe for gouernment, but well prouided of a graue and wise councell? And truely vnto the wise neither the one nor the other seemeth any thing worth. But if the prince be so wise as they suppose, as [Page 254] that he greatly needeth not of councell: yet the greatest point for his aduantage •…]n [ F] matters of any consequence is, to keep his designes and resolutions secret, which once [Sidenote 682 - *] laid open and so made knowne, serue no more but as mines discouered; causing ofttimes the ruine and decay of most famous cities and states. And therefore the wisest princes haue still vsed to speake and talke most of such things as they meant least. And as for an heauie headed and foolish prince, how should he be well prouided of a graue and wise councell, sith that the choice thereof dependeth of his owne will? and that in a prince there is no greater signe of wisdome, than to know well how to make choice of wise men, whose councell he may vse and follow.

But forasmuch as the brightnesse and beautie of wisedome is so rare amongst men, [Sidenote 683 - *] and that we must with all obedience reuerence such princes as it shall please God to [ G] send vs; the fairest wish that they can make is, That they may haue a graue and wise councell. For it is not by much so dangerous to haue an euill prince and a good councell, as it is to haue a good prince misseled by euill councellours; as said the emperor Alexander. Wherefore we say, that a prince ought to follow the good aduise and councell of his graue and wise councellors, not onely in his more great and weightie affaires, but euen in his meane and least matters also (albeit that in truth nothing can be meane or little, which concerneth the Commonweale) For there is nothing that [Sidenote 684 - *] giueth greater credit and authoritie vnto the lawes and commandements of a prince, a people, or state, or in any manner of Commonweale, than to cause them to passe by the aduise of a graue and wise Senat or Councell: and the rather, if it be doubtfull whether [ H] it be profitable or no, which the prince or state would haue done. And that of all others, Charles the fift the French king, was woont best to doe: For hauing a purpose to driue out of his kingdome the Englishmen, who in fealtie held all the castles and townes in Aquitaine; and now prouided of all things, which he thought needfull for the doing thereof, he receiued the complaints of the Frenchmen of Aquitaine (the king of England his subiects) against the English gouernours, directly contrarie vnto the treatie of Bretignie: who for such appeales and complaints vnto the king, had vsed them euill. Vpon which occasion, whether of purpose sought for, or by chaunce offered, the king tooke hold: but yet would not vndertake the warre, without the councel [ I] and good liking of the nobilitie and people, whose helpe he was to vse therin. Wherfore he commanded them all to be assembled vnto the parliament of Paris, pretending that he had sent for them to haue their aduise, and by their wisedome to amend what had by himselfe not altogether so wisely bene done or considered of. Which warre by that councell decreed, prospered in his hand, and tooke good successe. But when the subiects see things done either without councell, or contrarie to the will and decrees of the Senat or councell, then they contemne them and set them at naught; or els fearfully and negligently do the commaunds of their princes and magistrats: of which contempt of lawes and magistrats, ensue the seditious and slaunderous speeches of the people; and so at length most daungerous rebellion, or els open conspiracie against [ K] the prince, drawing after it the vtter subuersion of all estates. And so Hiero king of Sicilie was together with all his kindred and friends most cruelly slaine, for that hee so proudly and insolently contemned the Senat, nor in any thing asked the aduise therof; by the aduise whereof (his grandfather hauing inuaded the soueraigntie) had before gouerned the state fiftie yeares and more. The same errour committed Caesar, not only in the time that he was Consull, but in his dictatorship also, neuer vsing the aduise or councell of the Senat: The principall occasion that was taken for the killing of him, being for that he vouchsafed not to rise vnto the whole bodie of the Senat (consisting of about a thousand Senators) comming at once vnto him; too arrogantly and [Page 255] indeede too foolishly done; not that Caesar was by nature or disposition so prowd, but [ A] for that when he would haue risen vp vnto the Senate, he was by Cornelius Balbus (his flattering claw-backe, and a man of all other most inward with him) persuaded not so to doe. For which selfesame cause, also the Romans had long before slaine their first king and founder of their cittie, and driuen out their last king the prowd Tarquin: for that both of them contemning the Senate, did all things on their owne heads and the latter of them seeking also quite to suppresse the Senate, by putting of the Senatours to death: which thing was not dangerous onely vnto those princes which wee haue now spoken of, but also vnto Lewes the eleuenth the French king, who in nothing asked the aduice of his Counsell, but had thereby (as hee afterward confessed) brought himselfe within an inch of his vtter ruine: for which cause, hee would not that his [ B] sonne Charles the eight, should vnderstand any more but three words of Latine (and those, such as are razed out of the historie of Philip Comines,) to the end that mistrusting of his owne wisedome, he should rest himselfe vpon the graue counsell of others, and so by their aduice to mannage his affaires rather than by his owne. For it is right [Sidenote 685 - *] certaine, that great learning in princes is often times a thing no lesse dangerous than a knife in a mad-mans hand, except he be by nature well giuen, and more vertuously instructed and brought vp. Neither is there any thing more to be feared, than great learning accompanied with iniustice, and armed with power. There was neuer yet prince lesse learned (except in deedes of armes) than Traian, neither any of greater knowledge than Nero; and yet for all that, this man had neuer his peere for crueltie, nor the other [ C] for bountie: the one of them deadly hating the Senat, and the other in all things following the aduice thereof. Seeing therefore that a Senat is a thing so profitable in a Monarchy, and so necessarie in all Popular and Aristocraticall estates, as is in man wit and reason, without which his body cannot long gouerne it selfe, or haue at all any being: let vs first speake of the qualities requisite in Senatours or Counsellors; then what number they ought to be, and whether there ought in a Commonweale to bee moe Counsells than one, and of what things they are to counsell of: and last of all, what power is to be giuen vnto the Senat or Counsell in a Commonweale.

First we said the Senat to be a lawfull assemblie: which is to be vnderstood of the [Sidenote 686 - *] power which is giuen them by the prince, or soueraigntie in other states, to assemble [ D] themselues in time and place to them appointed. As for the time and place when and where they are to meet, it is not much materiall, sith that the diuers occasions and opportunities of occurrents doe oft times of themselues require, and as it were point out the same. Yet is the decree of Lycurgus in the mean time to be commended, forbidding any pourtraitures or pictures to be in the place where the Senat shuld consult, for that the obiect of such things as wee behold, often times distract the phantasie, and transport reason else where, which ought wholy to be intentiue vnto that which then is to be consulted of. We said moreouer in the definition of a Senat, That they should be Counsellors for the estate: to put a difference betwixt them and other counsellours and magistrats of the Commonweale, who are oftentimes called to giue their aduise [ E] vnto the counsellours of estate, yea and vnto the prince himselfe, euery one according to his qualitie and vocation; and yet are not for all that counsellours for the estate, but onely vpon occasion men extraordinarilie called. And as for the name and title of Senatour, it signifieth a man well strucken in yeares: as also the Greeks call the Senat [Sidenote 687 - *]〈 in non-Latin alphabet 〉], which showeth well that the Greeks and Latins composed their Senats of seniors or aged men, whom our countrie men call Seigneurs, for the authoritie, reuerence, and dignitie, which hath alwaies beene giuen vnto the auntients, as vnto the wiser sort, and men of greatest experience: vpon that hope and opinion that they [Page 256] which were elder than the rest, should also in wisedome exceed the rest. For so it is [ F] prouided for, in the lawes of Charles the great; Nulli per sacramentum fidelitas permittatur, nisi nobis & vnicui{que} proprio seniori: Let credit be giuen to no man vpon his oath, but vnto vs and euery proper elder: whereby he meant the manumised mens patrons, rather than the Senators; as if honour and reuerence were due rather vnto the elder, than the yonger. Also by the custome of the Athenians, when the people were assembled to giue their aduice, the huisher with a loud voice called all them that were fiftie yeares old together, to consult of that which should be good and profitable for the Commonweale. And not only the Greeks and Latins haue giuen this prerogatiue vnto the aged, to giue counsell vnto the Commonweale, but also the Aegiptians, [ G] Persians, and Haebrewes, who taught other people well and wisely to gouerne their estates. And what more diuine order would we haue than that of God? who when he would establish a counsell vnto the Israelits his people▪ [Sidenote 688 - *]Assemble vnto me (saith he) seauentie of the most auntient of the people, wise men, and fearing God. For albeit that a man might find a number of discreet, wise, and vertuous yong men, experimented also in the affaires of the Commonweale (a thing for all that right difficult,) yet so it is that it should yet be a thing right perilous to compose of them a Senat (which were rather to be called an assemblie of yong men) for that their counsell should not be receiued, either of the yong or of the old: for that they of like age would esteeme themselues as wise as they, and the other themselues much wiser than such yong counsellours. And in matters of state (if in any thing in the world) opinion hath no lesse, [ H] yea and oftentimes more force than the trueth it selfe. The common people thinketh, and that right well, yong men neuer, or else right seldome to excell in wisedome: but they which are such, can neither gouerne the people, nor chastice the offendours, or in the open assemblies of the people persuade them vnto that which is good and profitable. Neither is there any thing in a Commonweale more dangerous, than the subiects to haue an euill opinion of the Counsell or magistrats which commaund ouer them: for then how shall they obey them? and if they obey them not, what issue is [Sidenote 689 - *] thereof to be expected. And therefore Solon forbad any yong man to be admitted into the Senat seemed he neuer so wise; which the Graecians in their owne language haue better set downe than the Latins▪ 〈 in non-Latin alphabet 〉]. And Licurgus before [ I] him, had composed his Senat of the elder sort. And not without cause haue the lawes giuen the prerogatiue of honour, priuileges, and dignities vnto the Elders; for the presumption we ought to haue that they are wiser, of better vnderstanding, of more experience, and fitter to giue counsell than the yonger sort. Yet for all that, is not that graunted to all old men: no not to them which hauing before excelled in vertue and wisedome, are now growne so old and decrepit, as that their naturall forces faile them, and their braines weakned, can no longer do their dutie, but are now as men destitute of wit and iudgement, vnable longer to vse the instruments by nature giuen them to reason with, so that in them their verie mind seemeth to be with age both weak and [ K] sicke; whom Plato himselfe, who appointed the Elders to be keepers of his Commonweal, hath excused from any longer bearing of charges in the Commonweal, or for any more giuing of counsell. It is also said in the holie Scripture, That God hauing chosen seauentie Elders, powred vpon them aboundance of wisedome: for which cause the Hebrewes call their Senators, the Sages, or wise men. And Cicero elegantly (as he doth all things) calleth the Senat the soule, the reason, and vnderstanding, of a [Sidenote 690 - *] Commonweale; meaning thereby to conclude, that a Commonweale can no more maintaine it selfe without a Senat, than the bodie can it selfe without a soule, or a man himselfe without reason: and that Senators should by long experience and practise be [Page 257] able and readie, to heare, consider, and resolue of the greatest affaires of the Common [ A] weale. For whatsoeuer things are notably done in warre, or peace, in making of lawes, in appointing the orders and degrees of the subiects, in reforming the manners and conditions of the people; and in briefe in the whole disposing of the Common weal, are all nothing else but the execution of such things as are by a wise counsell deuised and resolued vpon: which the Greeks for that cause called 〈 in non-Latin alphabet 〉], [Sidenote 691 - *] as if nothing could be more sacred than good counsell, and the Hebrewes 〈 in non-Latin alphabet 〉], as who should say, the most sure foundation of all things, whereupon all faire and commenda ble actions are built, and without which all things fall, and are turned vpside downe. When I say a wise counsell, my meaning is that politique wisdome should bee euer ioyned with faith and justice: for it is no lesse, and I know not whether more dangerous, [ B] to haue a Senat or Counsell consisting of euill and wicked men, how wise and expert soeuer they be; than of the ignorant and foolish: for that these as they cannot much profit, so can they not much hurt the Commonweal; whereas the other by their mischieuous counsell to reuenge themselues, make no question or doubt to endanger or ouerthrow the whole state of the Commonweal, so that they onely may stand safe in the middest of the ruines thereof, yea and many times contrarie to their own conscience, stick not most earnestly to crosse their aduersaries opinions▪ although most profitable to the Commonweal, turning their priuat hatred vnto the common destruction? albeit that they reap no other profit thereby, then the triumph which they account themselues to haue gotten of the shame of them, whom they haue in [ C] counsell vanquished, drawing them of their owne faction as it were in a string after them.

An other sort of Senators there are also which are led neither with enuie, hatred, [Sidenote 692 - *] nor loue of any man, but with an obstinate conceit and loue of their owne opinions, from which they will not by any reason or perswasion suffer themselues to be remoued, and therefore come into the Senat armed with such a force and multitude of arguments, as if they were euen there to combat with their enemies; least that they should seeme to haue erred in their discourses, or lightly to haue changed their opinions. And that worse is, such strong conceited men, account it a great shame to them, [ D] to agree with any other man in opinion; but thinke themselues to haue most brauely acquited themselues, if as when men driue but one naile with another, they also shall obtrude one opinion to another: than which I cannot tell whether any thing can bee worse, being a thing no lesse to be shunned, than a rocke in the deepe sea But as a wise maister in a wrought sea, if he cannot by reason of the tempest in safetie put his ship into the desired port, yeeldeth then vnto the wind, and taketh in all his sailes, lest otherwise carried away by force of tempest he suffer shipwracke: and so trieth it out, vntill the sea be againe calmed, and more fauourable winds arise: Euen so the irremouable resolution of a Councellor, in consultations of matters of state, was neuer of wise men commended; but alwaies deemed as a thing ioyned not onely with a certaine obstinacie, but also arrogancie of mind: Whereas to the contrarie, sometimes to change [ E] a mans opinion, is not onely commendable, but also wholsome and profitable vnto the Commonweale: and according to the new occurrents of time, to apply also the deuises of new councels: sometime with the agreeing voices, approuing the opinion euen of the more ignorant and simple sort. And therefore Sir Thomas Moore in the Vtopian Commonweale by him deuised, wisely set downe, That nothing should bee disputed or reasoned vpon, the same day it was propounded, but to be still reserued vnto the next assembly of the Senat▪ to the end, that he which had rashly and vnaduisedly deliuered his opinion, should not afterward enforce himselfe to maintaine the same, rather [Page 258] than to yeeld to reason. [ F]

Wherefore it beseemeth a wise Senator, euen in the entrance of the Senat, to lay [Sidenote 693 - *] downe all fauour towards his friends, all hatred towards his enemies, and all high conceite of himselfe; ayming at no other end, but to the aduancement of the glorie of God, and the welfare of the Commonweale. Wherein the manner of the Lacedemonians was to be commended, who were so readie to defend whatsoeuer was once decreed for the good of the Commonweale, as that they which had before impugned the same, would now so conforme themselues for the establishing thereof, as that they would themselues refell what they had before to the contrarie commended: and all because it was not lawfull for them to dispute of the lawes once established by the Senat: which manner of custome the Achaeans and Florentine Commonweales, afterwards [ G] borrowed from the Lacedemonians. And albeit that learning be alwaies necessarie [Sidenote 694 - *] for a Senat or Councellor, especially the knowledge of antiquitie, and of the estates of Commonweals: as also to be seene in the lawes of his owne country, which he ought not to be altogether ignorant of, yet is a sound iudgement ioyned with faith iustice, and integritie more necessarie: by meanes whereof he may easily persuade any thing without much eloquence. But aboue all things a Senator must beware that hee [Sidenote 695 - *] suffer not himselfe to be corrupted with the bountie of forren princes: neither bee beholden to any forren lord or prince, for any thing that he holdeth of him, whether it be by fealtie and homage, by mutuall obligation, or by pention, which hee receiueth: which although it be a thing most daungerous in a Commonweale, and ought therefore [ H] to be capitall: yet for all that there is nothing than that more common in the Councell of princes. Except in the citie of Venice, which hath a Senat so free from this kind of base corruption, as that euen for that cause their priests (bee they neuer so free or nobly borne) out from comming into the Councell of state; for that they are thought to be sworne to doe nothing against the commoditie or profit of the bishop of Rome. Whereupon it is, that commonly the citisens before the giuing of their voyces, crie out alowd [Sidenote 696 - *]For a i Preti. And namely they banished Hermolaus Barbarus their ambassadour vnto the pope; as they did not long ago cardinall Mule, their ambassadour vnto him also, for that they had of him receiued the cardinals hat, without leaue from the Seigneurie. But I find, that in this realme there haue bene thirtie [ I] fiue chauncellors, which haue bene cardinals or bishop at least: and so in England the like. And in Polonia, where the archbishop of Gnesne is by inheritance alwaies chancellour of the realme: the kings of that country haue bene glad to make a lay man their vicechauncellor, by no oath bound vnto the bishop of Rome. As for pentions giuen by straungers vnto the minions or ambassadors of other princes, it is a thing so ordinarie, as that it is growne into a verie custome. Yea Mounsier Cotignac the French ambassadour into Turkie, was so bold as to presume to marrie a Greeke gentlewoman, without making of the king at all acquainted therewith. And not long after, another also at the instigation of Mhemet Bassa, and the duke of Naxo, would likewise haue [ K] married the prince of Valachia his sister: which poore prince for refusing to giue his consent thereunto, which he for feare had before graunted, was by the Bassa thrust out of his estate, and Stephen Bathor (who now gouerneth the kingdome of Polonia) placed in his stead. All which, with other such like enterprises, are dangerous in an estate, and therefore in a well ordered Commonweale, in no wise to be suffered. And these vnto me seeme to be the chiefe qualities and ornaments of a good Councellour of Estate.

But beside these, in many Commonweales nobilitie of birth is alwaies in a Senator required; as at Venice, Rhaguse, and Nuremberg: and amongst the Polonians it was [Page 259] by Sigismundus Augustus, in the yeare 1550 by law prouided, That no man should [ A] [Sidenote 697 - *] be chosen a Senator, except he were nobly descended, by the fathers side at least, & had also borne armes. In other places choyce was made of them by their wealth, as at Genes, and in auntient time in Atheus by the lawes of Solon: and so almost in all other auntient Commonweales. And namely Augustus the emperour, would not that a Roman Senator of his time should be lesse worth than thirtie thousand crownes, supplying of his owne bountie what the wise Senators being poorer wanted: not that it was so necessarie vnto their Councell, but that so they might haue wherewith to maintaine their estate, aunswerable vnto their calling: as also least the rest proud of their wealth, should contemne the other which were poorer, as commonly it falleth out in the Aristocratique estate, where the Senator is chosen by his wealth. And by the auntient [ B] order of the Romans also, no man could be made a Senator, except he had before borne some honourable place or charge in the Commonweale. And therefore the Censors from fiue yeares to fiue yeares, registred in the roll of the Senat, all them which had borne any great or honourable office or place in the Commonweale; viz. such as had bene Consuls, Praetors, Aediles, or at least Quaestors. And for that in the ouerthrow of Marius 90 Senators were slaine; Sylla created Dictator, to supply the order of the Senators, which he fauoured, created twentie Quaestors, and Caesar fortie, who at the same time should be made Senators, with power also to giue voyces, which before was not lawfull, vntill they had by the Censors bene nominated and registred. Which indeed is a laudable custome, and in many well ordered Commonweals [ C] at this present obserued. As in Polonia none is receiued to be a Senator, which is not a Palatine, a Bishop, a Castellan, or Captaine; or else before hath beene imployed in some honourable ambassage, or bene generall of an armie. Neither hath any man place in the Great Turkes Diuano or Councell, but the foure Visier Bassaes, the two Cadilisquiers or Chauncellors, and the twelue Beglerbegs, gouernours of great prouinces.

But whereas we haue before said, that Senators are to be chosen out of such as haue before borne some honourable place or office in the Commonweale: that concerneth not them which shamefully buy their offices, neither the Commonweale wherein honours and offices are bought for money: for those vertues which we said to bee required [ D] in a Senator; namely iustice, faith, integritie, wisedome, experience, and knowledge in the lawes both of God and man, are things so sacred and diuine, as that they cannot for any reward or money be bought. Now that a Senator should by the Senat be examined or tried, is a new and vnwonted thing: as men whome either the Censors, or the other offices and honours by them before obtained, had sufficiently alreadie tried. Yet in the time of the Gothes, the Commonweale being by them chaunged, we read it to haue bene done: For so •…]aith Theodoricus, with Cassiodore, Admittendos in Senatum examinare cogit solicitus honor Senatus, The carefull care we haue of the honour of the Senat, causeth vs to examine such as are to be admitted into the Senat.

As for the number of Senators it cannot be great, considering the perfection requisit [ E] [Sidenote 698 - *] in a Counselour of estate. True it is, that in popular and aristocratique Commonweales, to auoid seditions, and to feede the enraged famine of the ambitious, which haue part in the soueraignetie: they are oft times enforced to augment the number of the Senatours; as in Athens by Solons law, they by lot euery yeare made choice of foure hundred Senatours; whereunto it pleased them afterwardes to adde another hundred, that so fifty might by lot yearely bee drawne out of euery one of the ten tribes: vnto whom they ioyned also another hundred, to make vp the full number of 600. After that they had vnto the ten tribes ioyned two others, namely the tribes of [Page 260] Antigonus and Demetrius, albeit that in the time of Pericles, there were not in the citie [ F] aboue 13 thousand citisens, and 20 thousand in the time of Demonsthenes. For which cause (as I haue said) Plato in his popular Commonweale: by him set downe, appointeth the Senate to consist of an hundred threescore and eight of the better and wiser sort, which was the thirtith part of 5040 citisens the full number of them, of whom he would haue his Commonweale to stand. And in like case, Romulus tooke the thirtith part of his subiects to make the first Roman Senate of, choosing out of 3000, (the whole number that then was of the citisens) an hundred, and them also by him chosen not by lot, but by discretion, euen of the nobler sort of his people: viz. such as whose auncestours had neuer serued as slaues. But afterward, the Sabins being according to the league receiued into the citie, hee added vnto the former number another hundred; [ G] vnto whom, after the kings driuen out, Brutus also put to an hundred moe, which number of three hundred Senatours, so continued by the space of almost foure hundred yeares, without increasing or diminishing. But in the time of Cicero, it is manifest that there were about fiue hundred, by that he writeth foure hundred and fifteene Senatours, to haue giuen voices when Pub. Claudius, who was afterwards tribune, was brought in question for hauing polluted the sacrifices of Bona Dea, by committing of adultery with Pompeia: at which time, when the Senatours were not constrained to be present in the Senate, no man can doubt, but that many of them then dispersed into all the prouinces of the Roman empire, or otherwise busied with their owne affaires, or letted with age and sicknesse, were then also absent. And after that, Caesar to haue [ H] moe beholden vnto him, and for the better establishing of his owne gouernement, augmented the number of the Senatours vnto a thousand, chusing into that honourable order, not onely citisens of all sorts, but euen Frenchmen and other strangers also, namely Lu. Licinius the Barber, as saieth Acron. But Augustus (after the Commonweale againe pacified) seeing the danger of so great a number of Senatours, brought them to the number of sixe hundred, with purpose to haue brought them also to the antient number of three hundred, which was not much more then the ten thousand part of the whole number of the citisens, being then almost infinite.

Wherefore the number of Senatours is not to bee appointed, according to the [ I] [Sidenote 699 - *] multitude of the people, neither to serue the ambitious desire of the ignorant; and much lesse for the drawing of money from them, but onely for the respect of the vertue and wisedome of them which haue deserued the place; or if it be not possible otherwise to satisfie the ambition of them, which haue part and interest in the estate of popular and aristocratique Commonweales, but that of necessitie the gate of the Senate must bee opened vnto the multitude, that it be yet so ordered, that none should therein haue deliberatiue voices, but such as had borne the greatest offices▪ and charges in the state: as in the Cretensian popular Commonweale, all the citisens had free accesse and enterance into the Senate, and there might franke and freely deliuer their opinions, but not with authoritie to determine any thing, that power being still reserued vnto them [ K] onely which then were, or had before beene the great magistrates. And in the Senate of the Achaeans, none but the generall and the ten Dimiurgi, had power to determine of such things as were in counsell propounded. Howbeit a wise lawegiuer will neuer [Sidenote 700 - *] goe so farre, if hee may otherwise auoid the popular sedition: for beside the manifest daunger, which is for reuealing of counsell communicated to so many persons: it giueth also occasion vnto the factious for troubling of the state, if they which haue the power to determine and resolue vpon matters, shall in opinion differ from them which haue but voices consultatiue; which indeede are accounted as nothing: for preuenting of which dangers, both the one and the other, the antient Greekes in their Commonweales [Page 261] still created a counsell apart, of the grauest and wisest of their Senators (whom [ A] they called 〈 in non-Latin alphabet 〉] and 〈 in non-Latin alphabet 〉]) to consult of the more secret and vrgent matters of state; as also by themselues to dispose of the greatest affaires of the Commonweale, and to consider what thing were to be consulted of in the open Senat, or publikely to be propounded vnto the people. Besides that, what an hard matter it was of such a multitude of Senatours, to assemble so many as were requisite, and to make them to agree when they were assembled; the estate in the meane time standing in danger & the oportunitie for the well mannaging of matters passing. The Senators office amongst the Romans was most glorious and full of honour; and yet could Augustus the emperour neuer bring to passe, that the Senators should be present at the ordinarie Senat, which was holden the calends or ides of euerie moneth at the farthest; albeit [ B] that he set great fines vpon them that were absent, and gaue not their assistance: which grew so heauie vpon the offendors, as that he was glad to take of them so offending euerie fift man by lot. And Ruscius Caepio the rather to inuite them to that their dutie, by his last will and testament left a certaine summe of money to them that came into the Senat. For it was requisit that there should be fiftie Senators at the least for the making of any decree, and oftentimes an hundred, or two hundred, yea and sometimes foure hundred, which was two third parts of six Senators; as in corporations and colledges the manner is. Howbeit Augustus the emperour at length taking away the necessitie of so great a number, appointed two hundred to be sufficient, beeing two thirds of three hundred; which was the lawfull number of the Senators appointed by [ C]Brutus. Moreouer the Senat was not ordinarily assembled but three times a moneth; and if it pleased not the Consull (without whose commandement the Senat might not assemble it selfe) or the greatest magistrat in the absence of the Consull, sometime an whole yeare passed without calling together of the Senat: as Caesar did in his first Consulship, hauing the Senat bent against him; and yet in the meane time by prodigall bountie caused euen what he would to be decreed by the people. Whereas Solon had much better prouided for the matter among the Athenians, hauing beside the ordinarie Senat of 400, euerie yeare to be changed, appointed also a priuie and perpetuall [Sidenote 701 - *] Councell of the Areopagi, consisting of threescore of the wisest and grauest sort of the citisens, men without reproach, who by all the degrees of honour were risen to haue [ D] the mannaging of all the most secret affaires of the state, and to foresee that in time of daunger the Commonwealth should take no harme. Of which councell how great the need was, was then well vnderstood, when as Pericles to gaine the fauour of the common sort, had taken away the authoritie from the Areopagits, and translated the same vnto the people: for shortly after, the state of that Commonweale sore shaken both with forren and domesticall warres, began forthwith to decline and decay. Wee find also, that the Aetolians, beside their great Councell, which they called Panaetolium, had also their priuie Councell chosen of the grauest and wisest men amongst them; of whome Liuie speaking, saith, Sanctius est apud Aetolos consilium eorum quos apocloets appellant, There is among the Aetolians a more sacred (or priuie) Councel, of them whom [ E] they call apocletos: and immediatly after, Arcanum hoc gentis Consilium, This is the secret [Sidenote 702 - *] Councell of the nation: Whereas before he had said, Legibus Aetolorum cauebatur, ne de pace belloue, nisi in Panaetolio & Pilaico Consilio ageretur, It was prouided by the lawes of the Aetolians, that nothing should be entreated of concerning peace or warre, but in their Panaetolio, or Pilaican Councell. Wee read also, that the popular Commonweale of the Carthaginensians, beside their Senat of foure hundred Senators, had also a particular or priuie Councell of thirtie Senators, men of greatest experience [Sidenote 703 - *] in their publike affaires and matters of state: Of whome Liuie thus saith, [Page 262] Carthaginenses xxx legatos seniorum principes adpacem petendam mittunt: id erat sanctius [ F]apudeos Consilium, maximaque ad Senatum regendum vis, The Carthaginensians (saith he) send thirtie ambassadors, the princes of their elders to sue for peace: and that was the more sacred Councell with them, and the greater power for the ruling of the Senat: which manner of Councell the Romans wanted. And therefore Liuie wondereth (as at a right strange thing) that the ambassadors of Greece and Asia, which came to Rome, could of so great a number of Senators vnderstand nothing of that which king Eumenes then plotted in the full Senat, against Perseus king of Macedon, Eo silentio curia clausa erat, The court (saith he) was with such silence shut vp: Whereby he sufficiently sheweth, that in his time, as also long before that, nothing was done or [ G] agreed vpon in the Senat, which still was not by one or other of so great a number reuealed. For which cause the Senators themselues sometimes were constrained to become clarkes and secretaries in the secret affaires of the state, and to take of euerie man an oath, not to reueale any such thing as was in the Senat decreed, vntill such time as it was put in execution: For as yet no capitall punishment was appointed for such as shuld reueale or bewray the secret councel of princes. And indeed how could any thing there be kept secret, where fiue or 600 Senators were priuie to all that was done in the Senat, beside the clarks and secretaries for the state? When as also the yong Senators children, before the time of Papyrius Praetextatus might come into the Senat, & carrie the news of such things as were there done, vnto their mothers. Augustus was the first, [ H] who out of the Senat made choice of some few of the wiser sort to be of his priuy coūcel, without giuing the rest of the senat to vnderstand, that he would with them resolue [Sidenote 704 - *] of the most important and secret affaires of state, but onely to haue their aduise concerning such things as were to be afterward propounded in the open assemblie of the Senat. Immediatly after whose death, Tiberius the emperour requested of the Senat, to haue twentie Senators appointed him, with whome he might (as he would haue them to beleeue) consult of such things as the Senat was further to bee moued of. Whose example the wiser sort of the emperours afterwards followed; namely Galba, Traian, Adrian, Marcus Aurelius, and Alexander Seuerus: of whome Lampridius speaking, He neuer (saith he) made decree without the aduise of twentie lawyers, and diuers other of the Senators, (men of great euidently and vnderstanding in matters of state) euen to [ I] the number of fiftie, to the end there might be no fewer than were necessarie for the making of a decree of the Senat. Whereby it euidently appeareth, that in that priuat Councell of fiftie Senators, with the prince, were the greatest matters dispatched; and that it was not onely to consult of that which was to be in the Senat propounded, but euen to resolue and determine of the most secret and important affaires of the state, and so by little and little to draw them from the Senat, vnto the more priuat councel of the prince. By which meanes was also prouided for another difficultie (otherwise in a Monarchie ineuitable) which is the multitude of Senators, which could not still follow the prince; vnto whome for all that his councell ought to bee alwaies assistant, [ K] especially in a Monarchie, where the prince is to visit diuers his prouinces: or is himselfe in person busied in his warres. For which cause and no other, the auntient diuines and poets, haue faigned Pallas alwaies to sit on the right hand of Iupiter, but not Iupiter on the right hand of Pallas: to giue vs thereby to vnderstand, That the Councell ought alwaies to be present with the prince, but not the prince to bee tied to the place where the Councell is resident: which were a thing not onely not agreeable with the maiestie of a soueraigne prince, but also impossible. And albeit that there bee many things in euerie Commonweale dispatched by the priuie Councell, wherewith it is not needfull either the people or the rest of the nobilitie to be made acquainted: yet so [Page 263] it is, that in a Monarchie it is expedient and requisit that the prince should himselfe vnderstand [ A] them: or at leastwise that euerie man should thinke that he so doth, so to giue the greater authoritie and credit vnto such things as are by the Councell decreed, and that the subiects should not complaine and say, The king vnderstandeth not hereof. And for this cause the Grand Signior of the Turkes hath alwaies a lattise or grate, opening into the Diuano, or chamber wherein his Councell sitteth, to the intent to keepe his Bassaes and them of his councell in awe; whilest they thinke him their prince alwaies to see them, and to obserue their proceedings and doings.

But it may be (may some man say) that a Commonweale may be so little, and men [Sidenote 705 - *] of experience in it so few in number, as that not a Senat, but euen such a priuie Councell as we spake of, cannot therein be made. In which case of so strait a Commonweale, it [ B] is not needfull to diuide the Senat apart from the priuie Councell. As in the Commonweale of the Pharsalians (which was within most narrow bounds shut vp) there were but twentie persons which had the soueraigntie, who in that state serued for the nobilitie, the Senat, and priuie Councell. And yet neuerthelesse in the Lacedemonian Commonweale alwaies both before and after the conquest of Greece, there were but thirtie lords, both for the state and the Senat: and yet out of this number of thirtie, they made choice but of twelue for the mannaging of the secret affaires of their state, as we read in Xenophon: establishing the same forme of gouernment in Athens also, where they deputed thirtie lords for the gouernment of that state, as they did in all the rest of the cities of Greece, except some little ones, ouer whome Lysander placed ten [ C] chiefe men, without any other Senat or priuie Councell. And the reason was, for that they had resolued to chaunge all the popular states of Greece, into Aristocraties; which they could not haue done in the lesser townes, if they should in them haue erected a seignorie, a Senat, and a priuie Councell. But for the present there is almost no Commonweale, be it Popular or Aristocratique, which hath not a Senat and particular or priuat Councell: yea and oftentimes beside both them, a Triumuirat of some few, for the mannaging of the more secret affaires of state, and that especially in a Monarchy. For so Augustus the emperour (albeit that he surpassed all the rest that came after him, both in wisdome, and happinesse) beside the Senat, which he had filled with 600 Senators, [ D] [Sidenote 706 - *] and the priuat councell of twentie select men, had also another neerer and more inward councell of Maecenas and Agrippa, with whome he resolued of his highest affaires, calling vnto him none but them two after the victorie of Actium▪ to resoluè with, Whether he should still hold, or discharge himself of the empire. So Iulius Caesar, had none but Q. Pedius, and Cornelius Balbus of his most inward councell, vnto whom also he gaue his manner of writing in secret caracter, for them the better to vnderstand his secrets thereby. So Cassiodorus speaking of the secrets of princes, saith, Arduum nimis est principis meruisse secretum, Too high a thing it is (saith he) to haue deserued to be of the princes priuitie. We see in like case, that the court of the parliament of Paris, [Sidenote 707 - *] was the auntient Senat of the realme of Fraunce: but when it tooke pleasure in deciding of ciuill controuersies, nor could not well bee remoued from the citie; the [ E] kings appointed another councell, which for that it handled matters of greatest importance, in the time of Charles the seuenth, was called the Great Councell: which when it was also entangled with deciding of extraordinarie suits and controuersies, by the lawes of Charles the eight, and much more by the lawes of king Lewes the xij, who appointed a court of twentie judges; king Francis the elder remoued that Great Councell from medling with the secret affaires of state, hauing got vnto himselfe another councell of certaine select princes his friends: which of the Latines is called; The Familiar Councell, and of our countrey men, The princes priuat Councell. But Francis [Page 264] being dead, Henrie his sonne got another councell also: which for that it consisted [ F] of few, was called the narrow or strait Councell. But at last, when that Familiar or priuat Councell, was thought to exceed also with the multitude of Councellors, Henrie the third, the sonne of Henrie ordained another Councell, which for that it was only to consult of matters concerning the state of the Commonweale, and not of suits and controuersies, was called the Councell for the State. Beside these, it was thought meet that there should also be a more secret or chamber Councell, wherein the king rising from his bed, should confirme or reiect such things as were by the Councell decreed: there are princes letters opened, ambassadors reported, and messages deliuered. There is also apart another Councell of the Finances instituted by Henrie the second, [ G] and by little and little taken from the auditors, wherein are assistant the intendants and secretaries of estate of the Finances, and the treasuror for the common treasure. Beside all which princes haue alwaies had a more strait Councel, of two or three of their most inward and faithfull friends; who so highly stand in the princes fauour, not so much for their youth or person, as for their wisedome and vertue. As for the chamber Councell whereof we spoke, it consisteth but of a few, and albeit that by the decree of Charles the ninth, made in Nouember, in the yere 1563, it is in the first article expressed, that so soone as the king was vp, all the princes and the councell might come into the chamber, yet was not that his decree therein obserued or kept.

Which pluralitie and diuersitie of Councels in the kingdome of Fraunce, ought [ H] [Sidenote 708 - *] not to seeme straunge, seeing that in Spaine there be seuen, beside the strict and inward Councell, which are alwaies in diuers chambers neere vnto the king, and yet within the compasse of the same house or lodging; to the intent, that the king going from one of them to the other, may the better be enformed of his affaires: as namely the councell of Spaine, the councell of the Indies, the councell of Italie, and the councell of the Low countries, the councell for the warres, the councell for the order of Saint Iohn, and the Inquisition. Now if any man there be, that thinke the greatnesse of that kingdome (than which neuer yet was any greater) to require so many councels: I denie it not, but yet so he may see also in Venice, which hath no verie great territory, foure councels, beside the Senat and Great Councell: viz. the councell of the Sages for matters at sea, the councell of the Sages for matters at land, the councel of the Decemuiri, or ten men, [ I] [Sidenote 709 - *] and the councell of the Septemuiri, or seuen men; where the duke maketh the seuenth man, which they cal the Seignorie, when it is ioyned with the councell of the ten men, and the three presidents of the fortie, beside the Senat of sixtie; which with the magistrats may come to the number of six score. And what then should let, but that where there be but few men worthy to be of councell for the state, but that the Senat may be made right little, and the priuie councell lesse, and yet diuided from the Senat also. The state of the Rhagusians is but strait, & comprised almost within the same bounds, wherewith the wals of the citie are enclosed, and yet the Senat consisteth of threescore. In the citie of Nuremberg is a Senat of twentie six Senators, and a priuie councell of [ K] thirteene, beside another councell of the seuen Bourgomasters. The Canton of [Sidenote 710 - *] Schwits is the least of all the Cantons, and yet for all that beside the Senat of fortie fiue persons, it hath a priuie councell of seuen, of whome the Aman is chiefe. Which selfe same forme of councell is also kept in the canton of Vti. As for the cantons of Zurich, Berne, Schafluse. Basill, Soleurre, Friburg, and Lucerne, they haue alwaies beside the Great Councell, a little councell also. The Great Councell of Berne consisteth of two hundred Senators; and the little of twentie six: At Lucerne of an hundred, and the little of twentie eight: At Saint Gal also the Great Councell is of sixtie six, and the little of twentie foure: At Coire the Senat is of thirtie, and the priuie [Page 265] councell of fifteene. And without going so farre, it is well knowne, that the state of [ A] [Sidenote 711 - *] Geneua is enclosed within the compasse and circuit of a mile, yet for all that beside the councell of two hundred, it hath a Senat of sixtie; and after that a priuie councell of twentie fiue. Neither is there any canton so little, (except the three cantons of the Grisons, gouerned by the common popularitie) which hath not a priuie councell beside the Senat, wherein some haue three, and some haue foure. As in the canton of Bafill, where the secret affaires of state are mannaged by two Bourgomasters, and two other chiefe men of their colleges, whom they call Zunfft maisters. And in like case at Berne the two Auoyers, and foure ensigne bearers, haue the ordering of all the secret businesse of their state; as hath the priuie councell in a Monarchie. And namely in the diets and assemblies of the thirteene cantons, there is none but the priuie councell of [ B] the ambassadours, which make their decrees, and direct their commissions, concerning their common affaires: I say then that it is a thing most profitable in euerie Common [Sidenote 712 - *] weale, to haue at the least one priuie councell beside the Senat, sith that the auntient rulers of both the Greekes and Latines haue so taught vs, reason so shewed vs, and experience therein confirmed vs.

But there is a notable difference betwixt the Senat of a popular or Aristocratique [Sidenote 713 - *] Commonweal, and the Senat of a Monarchie: for in them the diuises and consultations are had in the secret or priuie counsell; but the resolutions and decrees are all made in the great Counsell, or in the assemblie of the States, or of the people, if the matter be such as is to be vnto them published: whereas in a Monarchie the manner [ C] of proceeding is quite contrarie, wherein nothing is communicated or imparted to the people, or the nobilitie, but such things as seeme vnto the Senat doubtfull, or being of greater importance, are still referred vnto the priuie Counsell; and if the matter concerne the soueraigntie, it is reserued vnto the iudgement of the soueraigne prince onely. And albeit that the Senat or Counsell in a Monarchie seeme to do all the rest of it selfe, yet still we see all to depend of the princes commaund. And this which we haue said concerning the manner of consultation, is almost no where better put in practise then [Sidenote 714 - *] in Venice: where if any difficultie arise in the counsell of the sages, it is commonly discided by ioining of the Decemuiri vnto them, (and therefore vnto such decrees as are by them made are ioined Con la Giunta) and if they cannot so agree, but still rest [ D] among themselues in opinion diuided, they call vnto them the Septemuiri or counsell of seauen: but if so nothing can be decreed for the diuersitie of opinions, the matter is then propounded in open Senat: And sometimes also (although but seldome) if the matter be of such consequence, or so much concerne the maiestie of the State, as that the authoritie of the Senat seemeth not to be thereunto sufficient, or that the Senat be thereupon diuided, it is propounded in the great counsell of all the gentlement of Venice, where it taketh the last and finall resolution; which as Aristotle writeth, was also the auncient custome of the Carthaginensians, where if the Senat could not agree, the difference was disputed, debated, and discided by the people.

Now all this differing of resoluing and determining, proceedeth from the diuersitie [ E] of the soueraigntie, and of them which haue the mannaging of the gouernment: for what the Senat decreeth in an Aristocratique, or popular Commonweal, that the nobilitie, or people ratifieth and commaundeth if the matter so require: contrarie to that we see to be done in a Monarchie, where the wiser the prince thinketh himselfe, the lesse he vseth the counsell of the Senat: (albeit that he oft times aske the aduise thereof, to make his doings the more acceptable, or for the easing of himselfe, committeth vnto them commissions for extraordinarie justice, or the iudgement of inextricable matters and causes of appeales) especially if the Senat be so great as that the prince by publishing [Page 266] of his secrets to so many persons, shall not come to the point of his designes. By [ F] [Sidenote 715 - *] this meane Tiberius the Emperour sought to kepe the Senat busied in disciding of great and extraordinarie causes, to make it by little and little to forget the vnderstanding of matters of state. And after him Nero likewise ordeyned that the Senat should haue the hearing of Appeales which before were made vnto himselfe, and that the fine for the offence set downe by the Senat should be as great, as if he had heard the cause himselfe; By this meane making of a Senat an ordinarie court and iurisdiction of Iudges: who in the time of freedome of that popular Commonweal neuer vsed to judge, except ordinarilie in conspiracies, and other such like great offences against the state: or that the people which had the hearing of many causes, had committed the vnderstanding thereof vnto the Senat. For which cause Cicero accusing Verres saith in this [ G] sort, Quo confugient socij? quem implorabunt? ad Senatum deuenient, qui de Verre supplicium sumat? non est vsitatum, non est Senatorium: Whither shall our friends and allies flie? whom shall they aske help of? shall they come vnto the Senat, to take punishment of Verres? it is no thing in vse, it appertaineth not vnto the Senat. Wherein many deceiue themselues, which think that the Senat judged, when they saw that the Senatours were drawne by lot to judge of publike and criminall causes, sometimes by themselues, sometime with the knights, by the law Liuia, and afterwards with the knights and the Treasurours, by the law Aurelia: for there is great difference betwixt the bodie of the Senat, and the Senatours taken in the qualitie of judges, and betwixt the priuie Counsell, and the counsellours thereof comming into the soueraigne courts [ H] to judge. For before Nero the Senat neuer had so much as ordinarie iurisdiction or [Sidenote 716 - *] power to judge of any matter; And namely Augustus would not that the Senat should trouble it selfe, with the judging of the honour, or of the life of Senatours, albeit that he were thereunto importuned by his friend Moecenas. And albeit that Tyberius the emperour often times sent vnto them such causes, yet was it but extraordinarie and by way of commission; which Adrian the emperour afterward caused to passe into the forme of an ordinarie iurisdiction. We see in like case that Philip the faire, or as some others say Philip the long, to discharge himselfe of the Court of parlament, and easilie to take from it the dealing with the affaires of state, made it an ordinarie Court, giuing it iurisdiction, and a fitting place in Paris: which Court was in auntient time the Senate [ I] of Fraunce, and yet at this day calleth it selfe the Court of Peeres, erected by Lewes the yong, (according to the truer opinion) to giue counsell vnto the king; as we may see by the creation of Countie D' Mascon for a Peer, by king Charles the fi•…]t, in the yeare 1359, where it is said that the king of Fraunce ordained the twelue Peers, to giue them their counsell and aide, and tearmed it selfe, as yet it doth at this present, (by way of prerogatiue of honour) the Court of parlament (without any other addition) [Sidenote 717 - *] as it is to be seene in the letters which it wrote vnto the king: whereas the other Courts of later time established, vse their particular additions; As, The Parlament of Tholouse, of Roan, of Burdeaux, of Dion, of Gratianople, and Aquasexia. But in the [ K] raigne of Charles the ix, at such time time as the Court of Paris liked not of the decree of the Senat, whereby the king in the Court of Roan was by the voices of the princes declared sufficient for the gouernment of the kingdome without a Regent, according to the law of king Charles the first: the king yet vnder age, aduised the court, to meddle only with the desciding of controuersies, and the equall administration of justice: for that the king his predecessours had for that onely purpose appointed that Court, and there placed them, and not to become his tutors, or protectors of the realme, or keepers of his towne of Paris: and therefore commaunded such lawes and edicts as hee had appointed to be proclaimed in the court of Paris, to be published: wherein if any [Page 267] thing should be contained that seemed not to stand with right and reason, he could [ A] (as he said) be content to be thereof tould; but yet so as that after he had vnderstood the matter, if it were his pleasure to haue the law proclaimed, they should forthwith without farther reply do that they were commaunded: with which the kings edict the court was wonderfully troubled; and for that the judges were equally diuided into two opinions: the one being willing to haue the kings edict published, and the other denying the same. The Court thought good againe to aduise the king, that the court might not be enforced to allow or publish such things as should thereunto seeme vnreasonable or vniust. Wherewith the king displeased, caused his priuie Counsell to be called, and by the authoritie thereof a decree to bee made the xxiiij. of September, whereby the parlament of Paris was forbidden once to call in question the lawes or [ B] decrees proceeding from the king concerning matters of state: which was also before by king Francis decreed in the yeare 1528. In like case the great Counsell which was not almost employed but in affaires of state, in the raigne of Charles the seauenth, and Charles the eight, was by little and little so filled with sutes, that Charles the viij. made it an ordinarie court of seauenteene counsellours; whom Lewes the xij. made vp xx. beside the Chauncelour, who was President thereof, (in such sort, that vnder king Francis there was but a President in steed of a Chauncelour) who were not imploied but in hearing of extraordinarie causes by way of commission, or remitting of the priuie [Sidenote 718 - *] counsell, and ordinarily the appeales of the Prouost of the houshold. We se also the priuie Counsell it selfe to be as it were brought into the forme of an ordinary court, [ C] by heating the differences betwixt the Townes and the Parlaments, and oft times betwixt particular men, euen for small matters: to the end that such a great companie of the nobilitie, and men of marke, should be busied with some thing, hauing as it were lost the vnderstanding of the affaires of state, which can neuer sort to good end, if they be communicated to so many persons: where the wiser sort are commonly ouer ruled by the greater part, ioining hereunto also, that it is impossible, to keepe the counsell [Sidenote 719 - *] of the state secret: or to know in such a multitude who it is that discouereth the same, nor to cast them out who are holden for suspect: Except by vsing the custome of the auntient Athenians, by vertue whereof the Senatours by a secret iudgement which [ D] they called 〈 in non-Latin alphabet 〉] might with all libertie, and without displeasure condemne the blabbing Senator, or him that had defiled the honour of his estate. As in like case the Roman Censors without forme or fashion of processe, had accustomed to remoue the vnworthie Senators, and by that meanes to exclude them out of the Senat; except they would put themselues vpon their triall before the judges which were aboue the Censors, or that the people had giuen some new office, or honorable charge to him that was so remoued by the Censors, or condemned by the judges. But the Romans were much to blame, both for too easie receiuing and remouing of the Senatours, and that in too great number: For Fabius Buteo made Dictator to supply the defect of the Senat, at one time receiued in an 177 Senatours. Whereas Lentulus and Gellius Censors at one dash remoued 64. Howbeit, it were more seemly and agreeing [ E] with the dignitie and honour of a Senat to receiue into it few, and them also chosen and culled out as pearles; than to exalt vnto so high degree of honour men worthie [Sidenote 720 - *] and vnworthie, and afterwards to cast them downe againe with eternall infamie and dishonour, vnto whom they had before giuen their helping hands: Besides that it cannot alwaies be done without danger and sedition, or the dishonour of him that ruleth. It is foure hundred yeare since that the Priuie Counsell of England, at the instance and •…]ute of the Archbishop of Canterburie (then Chauncelour) established, there were there into but fifteene persons then chosen; neither hath it euer since passed the number [Page 268] of twentie; and yet by meanes of that little Counsell they haue retained their state [ F] most faire and florishing in times both of peace and warre, as is by their histories to be seene; and by the treatie of peace made betwixt Lewes the ix, and Henry the first, king of England; which for the more assurance thereof was sworne by the Prince and the xvij priuie Counsellors: viz. one Archbishop, one Chauncelor, one Bishop, six Earls, and six other Lords, with the great Treasurour, and a magistrat whom they call chiefe Iustice of England. Now I doubt not but that in euery Commonweale, many by vaine ambition, fauour, impudency, or corrupt briberie, in sort euen against the Prince and peoples will find meanes to enter into the sacred Senat; against which inconuenience remedie might be well prouided, if we would but vse Solons law. For he would haue none to bee admitted into the Senat of the Areopagits, but such as had [ G] without touch, by all the degrees of honour ascended vnto the highest places and preferments of the Commonweale: for so he deemed him to be well able to hold a place in the Senat without staggering or falling, that could hold himselfe vpright in such dangerous and slipperie wayes. And that is it for which all the auntients both Greeks and Latins, haue so highly commended the Senat of the Areopagits, composed of sixtie persons, as we read in Athens. The same manner is yet vsed among the fiue lesser cantons of the mountaine Swissers, that they which haue passed through all the honourabre estates should continue Senators for euer: but this is not the way to haue good resolution, and yet lesse to keepe the affaires of state in secret, in that the Senators of the little cantons, which are fortie fiue in Zug, and an hundred sixtie foure in [ H] Appenzel, and more or lesse in the others, when question is of matters of importance, may euerie one of them bring with him into the councell two or three of the citisens, such as he liketh best of. Whereby it commeth to passe, that sometime there are foure or fiue hundred, part Senators, part others, assembled together into the Senat, and yet all haue deliberatiue voices therein. Whereas multitude is euer an enemie, vnto wise resolutions.

And thus much concerning the number of Councellors of estate: let vs now also breefly speake of them that are to propound matters in the Senat; and then of such [Sidenote 721 - *] things as are there also to bee propounded. As touching the first, men of auntient time haue alwaies had great regard vnto the qualitie of them which were to propound [ I] any thing in the Senat. For we see that to haue bene the proper charge of the greatest magistrats in Rome, whome for that cause they called Consuls: or in their absence the greatest magistrat that was in Rome (to wit, the Praetor of the citie) supplied the place of the Consull: receiuing the particular requests both of the citisens and straungers, of ambassadours from forren princes, and allies letters from the gouernours of their prouinces: which letters he read in the Senat, asked euerie mans opinion, commaunded the decrees of the Senat to be written, & also dismissed the Senat. Amongst the Grecians the greatest Praetor executed the same office▪ who among the Athenians was called 〈 in non-Latin alphabet 〉]; & the rest as they were created in some places 〈 in non-Latin alphabet 〉] [ K]〈 in non-Latin alphabet 〉], who bare almost the same office that do the prouiditors in the cōmonwealth of Rhaguse, & the sages in the state of Venice: howbeit that there the three Auogadors ordinarily propounded vnto the senat, that wherof it is to consult. In the councel of the Greeks the president caused to be cried aloud by a sergeant, That if there were any person that had any thing to say concerning the good of the state, he should speake: which Titus Liuius speaking of the Achaeans affirmeth generally of all the Greeks. But as for [Sidenote 722 - *] the Aetolians, their custome was most notable, worthy to be of all men regarded, being highly commended and approued by Philipemen generall of the Achaean league; which was, that the presiden•…], or hee which in full councell propounded any thing [Page 269] which seemed vnto himselfe good, should therein haue no voice himselfe. A great [ A] meanes to take away the practises and couert traines, which are commonly made in Popular and Aristocratique estates, where the busiest heads easily draw others to their opinions. Howbeit I cannot commend the fashion and custome of them of Genes, [Sidenote 723 - *] where none but the duke alone hath power to propound in the Senat that which pleaseth himselfe. For beside the difficultie of speaking with the duke on euerie side beset, and troubled with infinit affaires, and to lay before his eyes a thousand diuers reasons for the debating of the matter in the councell: it is also daungerous to giue so great authoritie to one person, that he may open or keepe secret to or from the Senat, whatsoeuer himselfe pleaseth; it being not lawfull for any man to propound any matter but himselfe. It is also much perilous one citisen, who first deliuereth his opinion to be of [ B] such authoritie and power, as that the rest which are to speake after him, dare not freely say what indeed they thinke. And that is it for which it is wisely prouided in the realm [Sidenote 724 - *] of Fraunce, that it is permitted to all them which haue accesse into the councell (although they therin haue neither deliberatiue voice nor place) euerie man to propound his owne requests, & to aduertise the councell of that which is profitable for the Commonweale; to the end it may be the better prouided for. And oftentimes their opinion is also thereof demanded, and then afterward the aduise of the councellors of the estate, which in councell haue place and deliberatiue voice, in such sort and order, as that the great lords deliuer their opinions last; to the end, that the libertie of the lesser should not be impaired by the authoritie of the greater princes or magistrats, and especially [ C] by the power of ambitious and factious men, who cannot in any case abide to be contradicted. In which course they which haue onely voyces consultatiue, make way for them which haue voyces deliberatiue: and oftentimes broach vnto the councell good and liuely reasons: and where they in any thing erre, they are without ie lousie againe by the others brought into the right. Which is a custome much more commendable than that of the Romans, where the Consull first demaunded the opinion of the chiefe man in the Senat, or els of him that was appointed Consull for the yeare following. And yet neuerthelesse the contrarie was vsed before the people: for first the particular men deliuered their opinions, and after them the lesser magistrats, and [ D] last of all the greatest, to the intent that the libertie of the lesser should not be preuented by the authoritie of the greater. Ioyne hereunto also, that the ambition to speake first doth oftentimes draw after it the enuie of some, and the ielousie of others. So wee see the cruell emperours to discharge vpon the Senat, the discontentment that the people had of their cruelties, caused such things as they would haue done to bee propounded or red in the Senat: which to gainesay or seeme to dislike of was death. Which was not to demaund the aduise of the Senat, but indeed most imperiously to command the same. Where of an auntient Senator complaining saith, Vidimus curtam elinguem, in [Sidenote 725 - *]qua dicere quod velles periculosum: quod nolles miserum esset, We haue seene (saith hee) the court dombe, wherin to speake that thou wouldest was daungerous; and to say that thou wouldest not, was a thing right miserable: For that the emperor Dometian, (vnus [ E]solus censebat quod omnes sequerentur) alone decreed what all men should follow: and commendeth Traian (quod eo rogante, sententias libere dicere liceret, vinceretque sententia non prima, sed melior) for that he propounding of matters, euerie man might freely speake his mind: and that opinion preuailed not which was first, but best. By the custome of the auntient Hebrewes, the king refrained from comming into the Senat, least any should bee contrarie vnto him, or hee to any; for so they writ in their Commentaries.

It were also to be wished, that the Councell should sit in the morning yet fasting, [Page 270] for that is not to be holden for a councell well disgested, which is done after dinner, as [ F] [Sidenote 726 - *] saith Philip de Commines, and especially in countries where the people are subiect vnto wine. Salomon detesteth those princes, who when they ought in the morning to feed their mind with religious contemplation of high and diuine matters, doe with full feeding pamper the inordinat desire of their languishing & broken lust, & with new nourishment kindle the fire of new desires: Which he in three words declareth, Wo (saith he) vnto princes which cate early. Which is a thing so much the more to be detested, by how much many thinke it to be the greatest brauerie, to bee well whitled with wine. For what can be more beastly than was the old maner of the Germans, who neuer vsed to consult of their greatest affaires but in middest of their cups persuaded so that euery one of them warme with wine, should discouer the verie secret of his hart, and to be the [ G] more eloquent to persuade what they thought to bee most expedient. Which custome they haue now well changed, insomuch that euen their priuat and domesticall contracts made when they are in drink, are to none effect or purpose, it being alone a [Sidenote 727 - *] sufficient cause for the iudge to reuoke them being so made. Now as concerning such things as are to be consulted of in the Senat, they depend of such occasions & affairs, as in course of time present themselues. The antient Romans first consulted of matters concerning their religion, as the marke and end wherat all humane actions ought both to begin and end. There was neuer also, saith Polybius (he himselfe being an Atheist) a people more deuout than this: adioining therunto moreouer, That by meanes of religion they had established vnto themselues the greatest monarchy in the world. Then [ H] after matters of religion, and worship of the immortall gods, are to be entreated of the greatest and most vrgent affaires of state, and most concerning the Commonweale, as the making of peace or war: in both which, long delay is no lesse dangerous, than is too [Sidenote 728 - *] hastie resolution. In which case, as in all things doubtful, the antients had a rule which suffered no great exception, which was, That we ought not to do, neither to councell any thing to be done, wherof we doubt whether it be iust or iniust, profitable or hurtfull; or if the harme that may ensue bee greater than the profit that may come of the enterprise that is to be taken in hand: but if the harme be euident, & the profit doubtful, or contrariwise, there is then no deliberation to be had or doubt made which to chuse. [ I] But the doubt is greater, when as that which we are to consult of, hath in show moe & greater profits, if we can bring it to good effect, than it hath hurt if wee faile therein. Howbeit the more wholsome opinion of the antients is to bee preferred, viz. That when question is of matters of estate, things doubtfull, or subiect to the change of fortune, [Sidenote 729 - *] are not at al to be embraced. And therfore the subtiller sort, cause thē that be more simple, to propound and persuade in councell such things as seeme vnto themselues doubtfull; to the intent that so the blame may rest vpon them, if things fall out euill: & yet the honor redound vnto themselues if it fall out wel. Howbeit nothing ought to be [Sidenote 730 - *] thought commendable and well done, which dependeth of the euent. For it behoueth vs by most certaine arguments and reasons to show wherfore this or that is to be done, [ K] and not by the euent: yea it behoueth a wise man rather to feare vnfortunat euents, than to presume of happie successe. And therfore a wise councellor neuer resteth himselfe vpon the chances of fawning fortune, or vpon aduentures, but still forceth himselfe by good and wise discourse to gather the true effects of precedent causes: albeit that hee oft times see, the most aduenturous and rash, to be the most happie & fortunat in their attempts. And therefore the antient diuines (who couered wisedome in fables) doubted not to exclude that goddesse whom they called Fortune, out of the coūcell of the gods; least that which should be sought for by wisedome, should seeme to haue bene obtained by the rashnesse of fickle fortune. And yet for all that wee see nothing [Page 271] to be more cōmended or blamed, than the good or euil end of mens actions: and [ A] so wisdome measured by the foot of fortune. But if the law condemne the souldior that •…]ighteth with the enemie without the commaundement of his captaine, although hee carrie away the victorie; how much more dangerous ought it to be, to put the hope of councels, & state of the Commonweal in the vncertaine hope of fortune? Besides that, such continuall aduentures do oftentimes draw after them the ruine of aduenturous princes. And therefore to auoid that nothing should be rashly or vnaduisedly decreed in the councel, I like well the aduise of sir Thomas Moore, To propound the day before what was in the Senat to be resolued on the day following; to the end that such deliberations might the better be disgested: prouided for al that, That question be not of the particular interest of any of them which haue voice in the councell: for in that case it is [ B] much better to resolue vpon the matter the same day, & without delay, than to attend vntil the sound iudgement of some be preuented by the subtilties of others, & that men come prepared with long traines of reasons, to reuerse that which ought of right to be concluded. For as the truth, the more naked and simple it is produced, the fairer it is; so is it most certaine, that they which disguise it by figures or colours of Rethorique, take from it the lustre and naturall beautie thereof: a thing which a man ought aboue all things in matters of councell to shun. True it is, that to vse oloquence, in the assemblies of the people, and with the sweetnes of speech to delight the ears of the ignorant multitude, or with faire words to blind their eies, or with pleasing reasons to turne their minds from rage and furie to peace and quietnes, is a thing not onely commendable, [ C] but necessary also. But al these things are far to be remoued from a Senat or councell, if aduise be to be sought for or required of such Senators as we haue spoken of, that is to say of wise men. And the Lacedemonian breuitie full of good reasons, is to be vsed, that they all may haue time to speake: & that no orator hauing got the possession of speaking, shold with long discourse or speech exclude the best & wisest of the senators. And therefore by an old decree of the Areopagits, it was not lawfull in that graue councell, to vse either any induction or after-speech. As for the deliuering of their opinions by secret suffrages, as amongst the Venetians; or by changing of places, as amongst the Romans, I cannot greatly commend of either, but especially if the matter in consultation [ D] consist of many points, of which some are to be liked of, and othersome to be reiected: so that it is necessarie to propound euerie article or point apart, which the Latins terme diuidere sententiam, and so to cause the Senators to passe & repasse from one side to another. Into which difficulties the Venetians falling, are oftentimes constrained to leaue their secret voices giuen by lots, and to giue the same by word of mouth; which they vse to do, when question is of the life, fame, or fortune of any man, according to the maner of the antient Greeks & Romans; a thing which cannot by secret voices, by lot, without iniustice be done, for the infinit varietie of cases which may present themselues to be iudged vpon. Now as the Senat of a Commonweale is not bound to the certaine [Sidenote 731 - *] hearing and deciding of causes, so ought it not to trouble it selfe with intermedling with the iurisdiction of the magistrats, except it be in the controuersies of the greatest [ E] magistrats, or soueraigne courts among themselues. And for this cause Tiberius the emperour, in the beginning of his raigne protested in the Senat, That he would not alter any thing in the course of iustice, neither haue to do with the iurisdiction of the ordinarie magistrats. And they which make a confusion of a Senat & priuie councel, do greatly diminish the dignitie & honor therof, for that it ought to be regarded as to confirme the princes actions, & wholly to attend the publike affairs: worke enough to busie a senat, except it be when question is of the life or honour of the greatest lords and princes, or of the punishment of cities, or other such causes of like consequence and importance, [Page 272] as may well deserue the assemblie of the Senat; as in auntient time the Roman [ F] Senat, by commission from the people, had the hearing of the treasons and conspiracies of their allies, against the state, as we see in [Sidenote 732 - *]Liuie.

Yet resteth the last point of our definition, that is to say, that the Senat is established [Sidenote 733 - *] to giue aduise and councell to them which haue the soueraigntie in euerie Commonweale. To giue aduise (I say) and councell; for that the Senat in a well ordered Commonweale, ought not to haue power to commaund, nor to direct out their mandats, neither to put into execution their aduises and consultations, but onely to make report thereof vnto them which haue the soueraigntie. Now if a man should aske, Whether there be any Commonweale wherein the Senat hath such power? It is a question but of fact: but if demaund were made, whether of right it ought so to haue or not? our [ G] opinion is, that in a well ordered Commonweale it is in no wise to be suffered: for that it cannot be without impeaching of the soueraigntie, and that much lesse in a Monarchie, than in an Aristocratie, or a Popular estate. And in that the maiestie of a soueraigne prince is knowne, in that he can, and his wisedome, in that he knoweth to weigh and iudge the aduise of his councell, and so conclude according to the resolution of the wiser part, and not of the greater.

Now if any man thinke it straunge or inconuenient for all other magistrats and soueraigne [Sidenote 734 - *] courts, to haue power to commaund, in their owne names to direct out their commissions, and the Senat that iudgeth of their authoritie and controuersies, to be depriued of this power: let him consider that vnto such magistrats and courts, power is [ H] giuen them euen by their institution, election, and creation, and by the charters and grants vnto them made for the limiting of their charge and power, without which neither martiall nor ciuill or domesticall affaires can well be gouerned: whereas there was neuer Senat in any auntient well ordered Commonweale, which had any power to commaund by vertue of the institution thereof. So we see, that in the kingdoms of Fraunce, Spaine, and England, the priuie councell is not erected or instituted in forme of a bodie politique or colledge; neither to haue power by the election or ordaining thereof, to order or commaund any thing, so as is necessarie for all magistrats, as we shall hereafter declare. And as for that that some will say, That the priuie councell [ I] may disanull and reuerse the iudgements and decrees of the magistrats and soueraigne courts: and so conclude, that it is not without great authoritie and power: mine answere is, that the decrees of the councell depend not in any thing of the councell it selfe; but of the royall power, and by commission onely, in qualitie of extraordinarie iudges for the execution of iustice, besides that the commission and authoritie of the priuie councell is alwayes ioyned with the person of the king. And therefore we see in a Monarchie all the decrees of the priuie councell to carrie these words with them, By the king in his priuie councell: which can do nothing if the king bee not present or at leastwise confirme the acts of his councell. But wee haue before shewed the power of all magistrats and corporations to cease, and bee suspended in the presence of the [ K] prince. Now if the power of the Senat be nothing in the absence of the prince, and much lesse in his presence, where then is the Senats power? And if the Senat cannot of it selfe decide and determine a controuersie; how can it then dispose of such things as belong vnto the state of the Commonweale? and that is it wherfore we see such things as are decreed vpon by the Senat, to be still referred vnto the prince: or if they bee of lesse importance, yet to be still confirmed with the princes authoritie, hand, and seale. Which is no new matter, but of auntient time done. For we see an old charter making mention of one Endobalde, countie of the Pallace of king Clotoire, who sitting in councell with the Senat, was to report the decrees thereof vnto the king, to the end to [Page 273] haue them by him either approued or reiected. [ A]

But the doubt is greater, whether the Senat in a Popular or Aristocratique estate [Sidenote 735 - *] ought to haue more power than in a Monarthie, or not? considering the great difference there is betwixt one lord and many, or betwixt one prince the soueraigne commaunder of his people; and an infinit number of men; as in a Popular estate. Besides that, we read also, that in the Roman Commonweale (which is holden to haue beene one of the most flourishing and best ordered that euer was) the Senat had power to dispose of the common treasure, and publike reuenue (one of the greatest points of soueraigntie) to appoint lieutenants and gouernours of princes, to grant triumphs, and to dispose of religion. And for this cause Tertullian saith, That neuer any God was receiued in Rome, without the decree of the Senat. And as for ambassadours of kings and [ B] people, none but the Senat receiued and dismissed them. And that which more is, it was forbidden vpon paine of treason, to present any request vnto the people, without the aduise of the Senat before had, as we haue before declared. Which was not onely in Rome obserued, but also in all the Graecian Commonweales. For offending wherin Thrasibulus was in Athens accused of treason, as was afterwards also Androtian by [Sidenote 736 - *]Demosthenes. Which order is euen at this time better obserued and kept at Venice, than euer it was in Rome or Greece. And yet notwithstanding all this I say, that the Senat of the Popular or Aristocratique estates ought not to haue but the aduise and consultation of matters of state onely, the power still depending of them, which had the soueraigntie. And as for that which is said of the power of the Roman Senat, that [ C] which it had, was nothing else but dignitie, authoritie, councel, and not power: for that [Sidenote 737 - *] the people of Rome might when it saw good confirme o•…] repeale the decrees of the Senat, which had no power to commaund, and much lesse to execute the decrees therof; Dionysius Halycarnassaeus hath well noted, and Liuie himselfe oft times vsing this forme of speech, Senatus decreuit, populus iussit, The Senat decreed, and the people commanded. Wherein Festus Pompeius is deceiued, interpreting the word iussit, commaunded, for decreuit, or decreed. So that it belonged to the Senat to decree, and to the people to commaund. As when Liuie speaking of the authoritie of Scipio Africanus, saith, Nutus eius pro decretis patrum, pro populi iussis esse, His beck was in stead of the Senators decrees, and the peoples commaunds. And that the least Tribune of the people, [ D] opposing himselfe against the Senat, might stay all the decrees thereof. I haue here before noted certaine places out of Titus Liuius: whereby it euidently appeareth, that the Senat could in nothing commaund: and especiall by the decree where it is said, That the Consull if he should thinke it so good, should present the request vnto the people, for the making of a dictator: and if it pleased not the Consull, then the Praetor of the citie should take that charge vpon him: who if he would therin do nothing, that then one of the Tribunes should do it. The Consuls (saith Liuie) would therein doe nothing, and forbad the Praetor also to obey the Senat: Now had the Senat had so much power to commaund, as had the Consull, or one of the Tribunes of the people, it would neuer haue vsed such kind of speech; neither would the Consul haue forbidden [ E] the Praetor to obey the Senat. For indeed the Senat could not commaund the Praetors, but vsed these or like words, If it should so seeme vnto them good; or if so it were their pleasure. So the same man in another place saith, Decreuerunt patres vt Marcus Iunius Praetor vrbanus si ei videretur, Decemuiros agro Samniti, Appuloque, quoad eius publicum erat metiendo, deuidendoque crearet, The Senators decreed, that Marcus Iunius, Praetor of the citie, if he should thinke it so good, should appoint ten men for the measuring and diuiding of so much of the Samnite and Appulian land, as belonged to the Commonweale.

[Page 274] Now if any man should say that these words, Si ei videretur (if it should so seeme [ F] vnto him good) imported a commaund: the contrarie is proued in that, that Liuie speaking of the punishment of the Campanians, saith, That the Consull Fuluius hauing red the decree of the Senat which caried these words: Integram rem ad Senatum reijceret si ei videretur: interpretatum esse, quid magis è Republica duceret, aestimationem sibi permissam: That he should, if he thought it so good, referre the whole matter vnto the Senat: to haue so interpreted the decree, as if the matter had beene committed to his discretion, to deeme what he should think best and most expedient therein to doe for the Commonweale: at which time question was of the liues and goods of all the Campanians, part of whom the Consull of himselfe without farther authoritie from the Senat caused to be put to death, and the rest to be sold by the drume. But that [ G] the dignitie of the Magistrats was in the Roman Commonweale greater than the Senats, it appeareth by that, that such as writ letters vnto the Senat and people of Rome, [Sidenote 738 - *] if they therein comprehended the Magistrats also, they still placed them in order before the Senat; as is manifest by the inscription of their letters, in this sort; Cn. Plancus Imp. Cos. desig. S. P. D. Coss. Pret. Tribb. pleb. Senatui, Populo, plebiquè Romano: Cn. Plancus Generall, Consull elect, vnto the Consuls, Pretors, Tribunes of the people, the Senat, People, and Comminaltie of Rome sendeth greeting. Wherefore Cicero doth but orator like taunt Vatinius, when he saith, Art not thou a most certein murtherer of thy countrey? thou leftest not vnto the Senat, that which neuer man tooke from it; that Legates should be appointed by the authoritie of that order. And he in * Liuie [ H] [Sidenote 739 - *] when as he speaketh of Triumphes, saying, It was neuer before by the people determined of triumphes, the estimation and bestowing of that honour hauing alwayes beene with the Senat: no not the kings themselues to haue impaired the maiestie of that order: he speaketh (I say) but like an orator: for that there was nothing which might not be taken from the Senat, the magistrat propounding a request to the contratie vnto the people: as we haue by examples before declared. But how soeuer the Senat for the maintenance of the authoritie thereof made decrees, yet could it not commaund or put in execution any of those things that were by it decreed: neither had it so much as any Lictors or Sergeants, the true markes of them which haue power to [ I] commaund. But the Magistrats hauing the decrees of the Senat in their hand, directed their owne mandats and commissions for the execution thereof, if they thought it so good: assuring themselues to be out of blame in doing that the Senat had before decreed, it being alwaies readie to maintaine them in so doing: So the Senat being no way able to restraine Caesar, tooke their refuge to that auntient decree of the Senat, which was commonly made but in the dangerous times of the Commonweale, viz. Videant Consules ac caeteri Magistratus ne quid detrimenti capiat Respublica: Let the Consuls and other magistrats foresee that the Commonweale take no harme: with which decree of the Senat (saith Caesar) the Consuls armed, sodenly raised their power and took vp armes against Caesar: by which words it appeareth, authoritie to haue [ K] beene in the Senat, but the chiefe commaund in the Magistrats. But if any Tribune [Sidenote 740 - *] of the people once opposed himselfe against the decree of the Senat, not onely the authoritie of the Senat, but of the Consuls and other magistrats also ceased. And for that cause there were ordinarily some of the Tribunes at the gate of the Senat, (before that the law Atinia gaue them entrance into the Senat house) vnto whom the decrees of the Senat were brought and showed, for them to confirme by writing ouer them this letter T, or reiect by putting thereunto this word Veto, that is to say, I forbid it. So that the Senat did nothing but by sufferance of the people, or of the Tribunes, who were as it were espials of the Senat, and keepers of the libertie of the people, hauing [Page 275] alwaies free power to take exception to whatsoeuer was decreed, if the people by expresse [ A] law tooke it not from them, permitting the whole disciding of the matter propounded, vnto the Senat, without the interruption of the Tribunes. As it did at the request of Tiberius Graccus Tribune of the people, giuing leaue vnto the Senat for that yeare to dispose of the Consularie prouinces, with expresse prohibition vnto the Tribunes for the opposing of themselues, for that time onely. For after that time the people oft times gaue the prouinces and gouernments, without the aduise or authoritie of the Senat. Now to say that the Senat had the disposing of the common treasure, true it is, but that was but vpon sufferance, and so long as it pleased the people; as we may see by the law Sempronia, whereby the people decreed that the souldiours should be apparelled of the charge of the common treasure. And he that hath no power but by [ B] sufferance, and by way of intreatie hath no power at all, as we haue before said. So in like case we see the Auogadours or Triumuiri in the Venetian state often times to oppose themselues, not onely against the proceedings of the Sages and Decemuiri, but euen of the Senat also, and so cause the matter to be brought vnto the hearing of the graund Counsell.

But here againe a man may say, that if the Senat in bodie or lawfull assemblie had [Sidenote 741 - *] no power to command, there was then no difference betwixt the decrees of the Senat, and that which they call The authoritie: for so it was that if there were lesse then foure hundred Senatours, by the decree of Augustus, (who were afterward brought to the number of fiftie) that they agreed vpon, was called an Authoritie, but not a Decree [ C] of the Senat. As also we may see by the law Cornelia, published at the request of a Tribune of the people: whereby it was forbidden the Senat any more to graunt priuileges or dispensations, except there were two hundred Senatours at the least present. Whereby it is to be gathered, that the Senat in such number had power to commaund: whereunto I say that a decree in the nature of it selfe carrieth with it no commaund, no more then the sentence of the judge, if the commission be not on foor. Now the Senat neuer iudged or determined, neither could giue out any commission or mandate; and therefore neuer had the power to commaund their decrees to be put in execution, without the power and authoritie of the magistrats still being of none effect. And yet whatsoeuer decree the Senat had made, and were it neuer so well by [ D] the power of the magistrat confirmed; was but annuall as Dionysius Halicarnasseus hath well written; and not perpetuall as Conan supposeth.

But how then (might some man say) did the Senat cause three hundred souldiours citisens of Rome, which remayned of the Legion that had sacked Rhegium in Sicilie where they were left in garrison, to be led away, and being stript and beaten, to be all afterward beheaded before the people, without any regard had vnto the opposition of the Tribunes, or appeales of the condemned, most miserably crying out, the sacred lawes to be therein broken and troden vnder foot. But herein question was of militarie discipline, which in that respect hath nothing common with domesticall lawes and [Sidenote 742 - *] customes. Beside that it was done but by the aduise of the Senat, the execution thereof [ E] being performed by the magistrats, who were not bound to obey the Senat, if they had not beene thereunto willing. Yea moreouer such was the crueltie and horriblenes of the villanie by the garrison souldiours committed at Rhegium, who themselues most cruelly rifled the citie, which they ought with their blood to haue defended against the assaults of the enemie: as that it caused all the ordinarie power of the lawes to cease: no punishment being thought sufficient to reuenge the same. Which cases when they chaunced, the tittles and querks of lawes were little at all regarded, especially in the midest of such a noise of weapons. But as oft as the Senat or Consuls [Page 276] attempted to infringe the soueraigntie of the people, or to breake the laws, as oft times [ F] they did the Tribunes, were straight waies readie to oppose themselues against them. For in that Caius Cornelius Tribune of the people, made a request vnto the people, that the Senat from that time forward, should not decree any thing against the libertie of the people, and the maiestie thereof: it sufficiently declareth the Senat oft times before contrarie vnto the law, to haue vsurped the rights of soueraigntie: howbeit therein is not to be respected what was done, but what of right ought to haue bene done. Howbeit it is manifest, that the Senat in the latter times thereof had power to make lawes: but then it had left off to be a Senat, and was then become rather an ordinarie court of judges. And yet the magistrats themselues, as the Praetors, the Aediles, yea and the famous lawyers also made a great part of the Roman law, albeit that they had no power [ G] to commaund at all: but all this dependeth fo the good liking of the prince or people, without whose authoritie and commaund, the force of the law, edict, or decree made, was nothing. Seeing then that the Senat in a Popular estate hath no ordinarie power to commaund, nor to do any thing but by sufferance; much lesse power shall it haue in an Aristocratique estate, or in a Monarchie: and so much the lesse in a Monarchie by how much kings are more ielouse of their estates, than are the people, and better know than they, how to defend their owne soueraigntie.

But whereas we said, It was not lawfull without the priuitie of the Senat, to propound any request vnto people, that indeed was so prouided by the law Popilia and Hortensia: yet was it lawfull alwaies without the priuitie of the Senat, to propound [ H] requests vnto the Comminaltie: and although that by the Consularie law Cornelia, it was also forbidden without the priuitie of the Senat, to propunnd any request vnto the Comminaltie, yet was that law shortly after againe by the law Pompeia repealed and abrogated. Wherein many with great libertie abuse the words Populi ac Plebis Romanae, (the People and Comminaltie of Rome) and especially the Greekes, and such as ignorant of the Roman antiquitie, interpret the Greeke writers.

That is also worth the noting, that albeit that the request which the magistrats were about to propound vnto the people, were disliked of the Senat, yet might they neuerthelesse lawfully moue the same vnto the people, after they had once made the Senat acquainted therewith. The same may serue also for an aunswere to that which Iosephus [ I] the historiographer saith, That Moyses forbad the king to denie any thing concerning the publike, without the aduise of the Senat, and the high priest (howbeit that this article is not to be found in all the law) yet thereof it followeth not, that the king was thereby of necessitie bound to follow their aduise. For albeit that the Roman emperours terme themselues the principall Senators, or chiefe of their councell; yet [Sidenote 743 - *] such additions in nothing diminished their maiestie. Yea albeit that they called the Senators their companions, or good lords and maisters; as did Tiberius, who in the beginning of his raigne called the Senators, Indulgentissimos dominos, His most louing Lords, as we read in Tacitus. But how much princes gaue vnto the Senat, and the Senat [ K] vnto princes, Plinie the younger doth in two words (as it were) declare; where hee thus speaketh of a certaine decree of the Senat, Voluntati tamen principis sui, cui in nulla re fas putaret repugnare, in hac quoque re obsequi, but to obey the will of their prince, whereunto they thought it not lawfull in any thing to resist, euen so in this this thing also to show themselues obedient.

And further also, the Senators or Councellors of the estate, to speake properly are no where accounted either as officers or commissioners: neither in [Sidenote 744 - *] this realme are they by any law, or edict, or charter of the kings made councellors, but only by a short briefe without any seale, signed with the kings hand, expressing in few words, that the [Page 277] king during his pleasure giueth them place and deliberatiue voice in his councell. But [ A] the king being dead, they must haue another such briefe for the holding of their places, except such as for their calling, or the charge they haue in the Commonweale, haue accesse and entrance into the councell.

Now if any man aske, Why a Senat in a well ordered Commonweale, should not [Sidenote 745 - *] haue also power to commaund? The principall reason is, for that if it should haue power to commaund also what it had in councell decreed, the soueraigntie should rest only in the councell: and so the councellors of the estate, in stead of councellors should ther of become maisters, hauing the mannaging of the affaires, and power to dispose of all at their pleasure; a thing impossible to be done, without the impairing, or to say better the vtter subuersion of all soueraigntie and maiestie: which is so high and so sacred, as [ B] that it belongeth not vnto subiects, of what estate or condition soeuer, once to touch it either nie, or a farre off. Whereby it is to be vnderstood, them that giue commaund vnto a Senat, to go about the destruction of the Commonweale, and vtter ruine of the state. And for this cause the Great Councell of Venice (wherein the maiestie of their state consisteth) seeing the Decemuiri to take vpon them aboue that which was committed to their charge, forbad them vpon pain of high treason to commaund or determine of any thing concerning the state, nor so much as to write their definitiue letters; but to haue therein recourse vnto the Seignorie, vntill the Grand Councel were assembled. For which selfe same reason, and that moe of the citisens also might be partakers of that honour, hey haue decred, That the six councellors of estate, assistants vnto the [ C] duke, shall not be but two moneths in that so honourable a charge: to the end that the custome to commaund should not breed in them a desire still to continue the same, [Sidenote 746 - *] as also to aspire higher. Howbeit I am not of opinion so to haue the councellours of estate changed and rechanged; but rather to haue them perpetuall, as they were of antient time at Rome, Lacedemonia and Pharsalia, and yet are in Polonia and Geneua. For the yearely chaunging which they made in Athens, and yet make in Venice, Rhagusium, Luques, Genes, Nuremberg, and diuers other townes of Germanie, doth not onely greatly obscure the glorie of the Senat, which ought to shine as the sunne, but also draweth after it the ineuitable daunger of disclosing and publishing of the secrets of [ D] the estate: ioining hereunto also, That the Senat, all new, cannot bee enformed of affaires passed, neither yet well continue the entertainment of the affaires present. Which for that it seemed vnto the Florentines a thing verie daungerous, they at the request of Peter Soderin their Gonfalonier (and a chiefe man in the reforming of their estate) decreed, That all the Senat of fourescore, should from six moneths to six moneths bee remoued; excepting such as had before bene Gonfaloniers or chiefe officers in the Commonweale, whome they appointed perpetuall Senators, of purpose to instruct the other new Senators in the affaires of state. The same order they of Genes are faine also to take in their mutable common Senat, wherein such as haue bene dukes and Syndics are perpetuall Senators. Wherein the Rhagusians are better prouided of their Senat than are the Venetians, whose example they seeme to haue followed in the [ E] forming of their Commonweale: For in Venice the Senat changeth euery yeare all at once: but in Rhaguse the Senators which are also but one yeare in charge, change still one after another, and not all in one yeare. But if the desire of honour bee so great, as that the citisens cannot otherwise be satisfied, except they all by turnes may haue place in the Senat, we must then imitat that which Solon did; who in the Popular estate of the Athenians by him framed, appointed a mutable▪ Senat of foure hundred citisens euery yeare to be changed: but withall hee made a perpetuall priuie Councell of the Areopagits, to the intent, that that mutable Senat, and yearely change of all the other [Page 278] magistrats might thereupon rest, as vpon a most firme and sure stay. And thus hauing [ F] spoken of a Senat, order requireth that we should also speake of the Officers and Commissioners in a Commonweale.

CHAP. II. ¶ Of the Officers and Commissioners in a Commonweale.↩

AS in the whole bodie of the law concerning Commonweales, are contained many things right fruitfull and commodious: so also amongst the rest, the reasoning and discourse concerning publike persons, hath alwayes bene thought most profitable: and albeit [ G] that many things concerning magistrats are thought common and vsuall, yet lie the same for most part almost wrapped vp in obscuritie: For that they which haue thereof reasoned, do therein define nothing plainely. Wherefore I haue thought it best to begin this our discourse of their definitions. An Officer therefore is a publike person, who hath an ordinarie [Sidenote 747 - *] charge by law limitted vnto him. A Commissioner is a publike person, but with an extraordinarie charge limited vnto him, without law, by vertue of commissionely. Which definitions so by vs set downe that they may become more plaine, it shall not be amisse to make a diuision of publike persons, euen from the first beginning of them. And first I call them publike persons, who are to attend vpon the publike affaires: [ H] [Sidenote 748 - *] of whome there are two sorts, one which hath power to commaund, whome they call Magistrats: and another sort which hath no such commaunding power, but is onely to vnderstand or to put in execution the commaundements of the others; and are yet all publike persons also. Howbeit for all that, all publike persons are not Officers, or Commissioners; as Archbishops, Bishops, and Ministers, are publike persons, and beneficed men rather than Officers: which we must not mingle together, considering that the one sort is established for matters diuine, and the other for worldly affaires, which ought not to be confounded. Ioyning hereunto also, that the establishing of them which are employed in diuine matters, dependeth not of the politique edicts or lawes, as the Officers do. Let vs then see the definitions by vs set downe, whether [ I] they be good or no, before we enter into the deuision of Officers, for that no man, either lawyer, or of them which haue before entreated of the state of Commonweales, hath truely told what an Officer, a Commissioner, or a Magistrat is: which for all that is a thing most necessarie to be vnderstood, seeing that the Officer is one of the most principall parts of a Commonweale, which cannot stand without Officers and Commissioners. But forasmuch as Commonweales were first serued by Commissioners, before they were serued by Magistrats or Officers (as wee will hereafter show) it is fit that we should first speake of Commissioners, and of the difference betwixt them and the Magistrats or Officers. [ K]

Aristotle saith, That a Magistrat is he that hath a deliberatiue voice in the Senat, [Sidenote 749 - *] and in iudgement, with power also to commaund. He also calleth the magistrat 〈 in non-Latin alphabet 〉] which is not proper but to them which are of power to commaund, and agreeth not vnto officers that serue, as Vshers, Sergeants, Trumpetors, Scribes and Notaries, whom he putteth into the ranke of Magistrats, and yet haue no power to commaund: so that this definition is in that respect too short. Besides that, it is a thing more absurd, that he should not be a Magistrat, which hath no entrance into the priuie councell, neither yet deliberatiue voyce, nor power to iudge: for if it were so, there should be but few magistrats in all Commonweales, considering that there are so few conncellors of the priuie [Page 279] councell in well ordered Commonweales, and among them not one which hath [ A] deliberatiue voice, but by commission: and albeit that they had such voice, yet had they no commaund, as we haue before declared.

And as for the lawyers, there be but few of them which haue touched this string: [Sidenote 750 - *] and namely doctor Iouean confesseth, That it alwaies seemed vnto him an hard thing, rightly to define a Magistrat. And indeed in the definition of a Magistrat by him made he is deceiued: For he saith, That a Magistrat is he to whome the prince hath giuen any charge▪ in which sence and sort all Commissioners should be magistrats. But D. Cuiacius▪ beside the definition of Aristotle, promiseth to bring three others: A Magistrat (saith he) is a publike person, who hath preheminence in doing of iustice; or hee which sitteth in seate of iustice; or else he which hath iurisdiction and publike iudgement: [ B] so that by his account he appointeth foure definitions, with that of Aristotle. Which is directly against the Maximes of all Philosophie, and contrarie to the principles of Logike, that one should giue more than one definition to one thing: and is also impossible by nature. But if any say, That many descriptious may be giuen of one and the same thing, for that the accidents are manie which are in one thing: true it is, but an hundred descriptions cannot declare and make manifest the substance or nature of a thing: Which in the Art of reasoning is a great fault: but in the knowledge of the law much greater, and especially in the matter of Magistrats and officers, which is the entrance of the law, where the lawyers begin. For the principall marke [Sidenote 751 - *] whereby a Magistrat is knowne, which is, To haue power to commaund; is in these [ C] three definitions wanting: and the magistrats lieutenants haue the hearing of causes, are presidents in iudgement, and sit in the seat of iustice, and yet for all that are no magistrats at all. The bishops also sit in publike iudgement, and seat of iustice, and haue the hearing of causes: For when Lentulus the Great Bishop, made relation vnto the Senat, of the decrees of the colledge of Bishops, and the law Clodia, concerning the consecration [Sidenote 752 - *] of Ciceroes house, thus he began his speech, Pontifices religionis sunt iudices, legis Senatus, The Bishops (said he) are judges of religion, and the Senat of law. So doe the Cadies, or Mahometane Bishops in the East; and yet for all that they are no magistrats, considering that they had or haue no power to commaund, nor to call men before them, to imprison them, or to put their owne iudgements in execution: neither [ D] haue they any sergeant or officer whome they can commaund, no more than haue the Cadies, or Paracadies in Turkie, or the auntient bishops of Rome; which is a thing worth the marking. And sometimes cleane contrarie, some haue authoritie and power to commaund, which haue no iurisdiction or hearing of the cause at all, as wee will hereafter shortly show. And that more is, the Commissioners of publike extraordinarie causes, in antient time deputed by the people of Rome, whom the law calleth quaestores parricidij, had (as at this present Commissioners appointed by the prince haue) power to heare the cause, to sit in iustice, to iudge, to commaund, to compell, and yet for all that were no magistrats. Which being so, none of the aforesaid definitions can bee good. Besides that there is another fault in them, for not hauing distinguished the magistrats [ E] from the other officers, nor made any difference betwixt an officer, & a commissioner; whereof a great confusion and medley of commissioners and officers must needs ensue. Carolus Sigonius, who seemeth more curiously to haue searched into the definition of a Magistrat, is yet therein many waies also deceiued: For he calleth all them magistrats which haue any publike charge of worldly affaires, without making of any difference betweene officers and commissioners, or betwixt the magistrats and other officers, which haue also publike charge; besides that he giueth power to al magistrats, to iudge, to commaund, and to put in execution, euen vnto the Aruspises. Howbeit as a definition [Page 280] ought not to extend farther, or lesse way, than doth the thing that is defined: so [ F] ought also the description of a magistrat in this our treatise of a Commonweale, to agree to all magistrats of all Commonweales indifferently.

Now in the definition by our selues proposed, we first said, all officers (whither they [Sidenote 753 - *] were magistrats, or magistrats seruants) to be publique persons: who in that differ from priuat men: for that priuat men haue nothing to doe with the affaires of the Common weale. We said also the Magistrats to haue an ordinarie charge, whereby to differ from Commissioners, who haue also publique charge, but yet extraordinarie, according to the occasions in the occurents of time presented: such as were in auntient time the Dictators, criminall Quaestors, and other judges extraordinarily by the people of Rome appointed, at the motion and request of the Magistrats. And last of all we [ G] [Sidenote 754 - *] said, their ordinarie charge to be to them by law limitted and bounded: for the erection of their publique ordinarie charges, erected by the name of offices, which otherwise should be no offices, if there were not for them an expresse edict or law. A thing alwaies obserued in the auntient Commonweales both of the Greeks and Latins; and now also better than euer: and to this end Princes cause their edicts to be published, in their soueraigne and inferiour courts: and in this realme of Fraunce, the charters of offices newly erected are sealed with greene wax, with labels of greene and red silke, and this style, viz. To all men present and to come, with a continuance perpetuall: whereas the letters pattents of commissions, are sealed with yellow wax, with a labell of plaine parchment, without any perpetuitie. And albeit that all Corporations and Colleges [ H] be graunted by the prince with a charge by law limitted for euer, as I haue said; yet so it is, that if the king will augment or increase the number of the corporation or colleges of judges, or other magistrats, yea or of the most base or vile officers: as of Sergeants, criers, trumpetours, land measurers, broakers, and such like, it must be done by publique edict, verified and inrolled: of examples whereof all the records of the courts of justice are full. But whereas we said the lawes concerning officers to be perpetuall, [Sidenote 755 - *] that is to be vnderstood of the perpetuitie of the offices, which continue for euer after they be once by edict erected, (what time soeuer it be that is prescribed vnto the officers themselues,) vntill that by contrarie edicts or lawes the same offices be againe put [ I] downe. Although the officer hold his place but for the space of eighteene moneths, as did of long the Censors their censorship, (which for al•…] that was at length prorogued for fiue yeares, for that so great an office could not in lesse time well be discharged,) or for a yeare: as did all the other offices in Rome, by the law Villia: or for six moneths, as did the Senators of Florence, after it was a popular estate: or for two moneths, as did the six Counsellours of the seignorie which are assistant vnto the duke of Venice: or for one day onely, as the Captaines of the two fortresses of the castle of Rhaguse, [Sidenote 756 - *] whose office is perpetuall, albeit that their commaund last but for one day. But howsoeuer it be that offices be erected with ordinarie and publique charge, it must still be [ K] done by law: not for that it is needfull to haue parchment to write it in, or greene waxe to seale it with, or yet magistrats to publish the edicts concerning the erection of such offices: for the writing, the seale, the verification, albeit that they giue credit vnto the lawes which are made, yet make they no lawes; no more than they doe other acts and contracts. But to the contrarie there were neuer lawes more strong or better kept, than those of the Lacedemonians, which Lycurgus forbad to be written, and were for that cause called Rhetes: for so he was persuaded that they should the rather remaine inuiolat and of long continuance, if they were once writ in the hearts of his citisens, and not in tables, in their mindes, and not in bookes. The Athenians in like case had a certeine forme of presenting their requests vnto the people, which if the people receiued, [Page 281] it then passed into the force of a law: which they vsed to ingraue in brasse, and [ A] to fasten it vnto a pillar, lest any man should vnder the colour of ignorance excuse him selfe in transgressing the same. So when question was for the erecting of an hundred new Senators in Athens out of the two new Tribes of Antigonus and Demetrius, the law for the erection of them was published vnto the people: which was also done in the erection of all other offices as is to be seene in Thucydides, Plutarch, and Demosthenes. [Sidenote 757 - *] The like is to be said of the Roman magistrats: for the Consuls were created by the law Iunia: and the Tribunes of the people by the law Duillia: and when question was for the creating of one of the Consuls out of the people, it was done by the law Licinia. And afterward the Praetor for the administration of justice in the citie was made by the law Sextia. And the foure Praetors for publique criminall causes, (beside [ B] the other before erected) by the lawes Cornelia and Baebia. So may we also see of all the other Magistrats erected by the Emperours: that it was alwaies done by expresse Edict, wherein the time, the place, and their ordinarie charge are limitted. As in all the first & twelft bookes of the Code, and in the Edicts of Iustinian it appeareth where euery magistrat hath his particular Edict.

We haue put also into our definition of an Officer, that he must haue an ordinarie [Sidenote 758 - *] charge, for that the commaunds of the people of Rome granted by commissions and extraordinarie charges were aswell called by the name of Lawes, as were those that were made for ordinarie offices: the charge, the time, and place being still limitted by commission: as a man may see by the commissions granted vnto the Dictators, [ C] which were sometime made by the decree of the people, as I haue before shewed. And also by the commission granted to Pompee for fiue yeares, therein to end the Pirats warre: with commaund ouer all the coasts and hauen townes of the Mediterranean Sea, all granted vnto him by the law Gabinia. As also by commission giuen him for the warre against king Mithridates, granted by the law Manilia. But forasmuch as these were not but extraordinarie charges, a man could not call them offices, which are still ordinarie and perpetuall. And for because those warres were in short time to be ended, it was not meete therfore to create a new magistrat, whose office and charge should be perpetuall, but onely extraordinarily to commit the care of that warre vnto [ D] a most sufficient Captaine and Generall: vnto whom fiue yeares time was limitted at the request of Catulus: to the intent that Pompee in that time might end the warre, and not longer to protract it to be so alwaies in imployment: Or if the warre were sooner ended, that then his commission should end also. And all such extraordinary charges we call by the name of Commission. The Dictatorship was also a charge giuen by commission, and not an ordinarie power: for why, the Dictator was not but extraordinarily and without law nominated by the Interrex or Consul, some great matter so requiring: and for that all offices ceased the Dictator being created, his commission was limitted but vnto six moneths at the most, and if he had soner dispatched the businesse for which he was appointed Dictator, his commission then also expired, and his authoritie ceased; as we haue by many examples before declared. And as a man [ E] may see by [Sidenote 759 - *]Aemilius Mamercus, who chosen Dictator, and the same day hauing dispatched the businesse for which he was chosen, the verie next day following gaue vp his charge: showing therein how little he liked of long rule or authoritie. Howbeit such is the nature and power of all Commissions, as that according to the pleasure of [Sidenote 760 - *] him that hath the soueraigntie, they may be either reuoked or proroged. And albeit that commissions in Popular and Aristocratique Commonweales are almost still li mitted vnto a certaine time: yet in a Monarchie that extraordinarie and permissiue charge is tyed to no time at all: for why, in Popular and Aristocratique estates and [Page 282] gouernments, the greater the charge is giuen by commission, the more need it is to [ F] haue it in short time expired; least longer power might giue occasion to ambitious [Sidenote 761 - *] minds to take vnto themselues the gouernment, and so to oppresse the libertie of the state. And therefore the dictatorship was but for six moneths, neither was that power euer longer proroged to any man in that free Commonweale, except to Furius Camillus. For at such time as the people of Rome had extraordinarily created the Decemuiri with a yearely and soueraigne power, for the reforming of their old lawes and customes, and the making of new and more commodious for the state: their commission [Sidenote 762 - *] which should not haue passed, a yeare being expired, was againe by the people for another yere proroged, with absolute and soueraigne power: and all other magistrats suspended during the time of their commission; vntil that out of the best lawes of other [ G] cities they had gathered the lawes of the twelue tables. Vpon which continuance of bearing rule, these Decemuiri tooke occasion to oppresse the libertie of the state, and to take vpon themselues the soueraigntie, had it not by force againe bene wrong out of their hands, and that no without the great trouble and turmoile of the citie. For which cause the people from thenceforth erected the offices of the Tribunes of the people, as defendors and keepers of their libertie; who alone of all the magistrats held their places after the creation of the dictator, all other magistrats and officers being for that time suspended. The Florentines did otherwise, who almost euerie sixt yeare extraordinarily created eight or ten Commissioners, with soueraigne power, and without limitation of time, for the ordering of their Commonweale, and the reforming of the [ H] abuses therein: who being once created, all other their magistrats ceased. By which meane these ambitious in effect tooke vpon themselues the gouernment, albeit that in outward appearance they made faire show of the giuing vp of their charge. For the suspending of all magistrats in generall, is a thing right dangerous, not onely in Popular and Aristocratike estates, but euen in a Monarchie also: which yet I neuer knew to haue happened in this kingdome of Fraunce, but at such time as king Iohn was taken prisoner by the Englishmen: For then Charles the fift hauing gotten of his father the gouernment of the kingdome, appointed fiftie commissioners for the reforming of the Commonweale, with power to examine the doings and abuses of all the other magistrats, from whome as then all power was taken. At which time the Commonweale [ I] destitute of gouernours, was by the seditious wonderfully disturbed: but more of these things in their place.

But the better and the more easily to vnderstand the difference betwixt an office and [Sidenote 763 - *] a commission, a man may in some sort say, that an office is a thing borrowed, which the owner cannot demaund againe before the time it was lent for bee expired: but a commission is a thing which one hath but by sufference, end as it were by leaue, which the owner may againe demaund when he seeth good. And that is it for which Tacitus merily speaking of the raigne of Galba, which continued but three moneths, saith, Praecarium seni imperium, & breui transiturum, The old mans empire was but by sufference [ K] and in short time to passe away: not for that he had indeed his empire by sufferance, but for that he was now growne extreame old, and being vnfit for the gouernment of the empire, foresaw that in short time it must againe by naturall death bee taken from him, although he had not (as indeed he was) bene before slaine. Howbeit a Commission is of such nature, as that it expireth so soone as the charge thereof is executed, although it be not reuoked, or that the time was graunted longer for the execution therof, and yet neuerthelesse may be alwaies reuoked, whensoeuer it shall please him that graunted it, whether the matter for which it was graunted be yet entire or not, as wee haue before showed by the example of the Dictators. And to this purpose there is an [Page 283] old deeree of parliament yet extant in the records of the court of Paris, against the purseuants [ A] sent to Troy with the judges for the publike extraordinary causes, being indeed none of the bodie of the court, who (the commission expired) neuerthelesse yet bearing themselues as purseuants, were by the court commaunded to resigne vp their office, and a decree made them to be no officers at all.

I stand longer vpon this point, which although it may seeme easie vnto men of experience, yet vnto others it may seeme strange: yea two of the greatest orators of their time, namely Demosthenes and Aeschines grounded the state of their orations and pleas vpon this point. For when Ctesiphon had presented a request vnto the people, That it would please them, that Demosthenes for his good deserts towards the Commonweale (and namely for hauing most strongly fortified the walles and castles of the citie of [ B] Athens) might in the open theater be rewarded with a crowne of gold. Aeschines Demosthenes his greatest enemie, opposed himselfe against the entertainment of the request, alleaging for the cause thereof, That by the law no man was to be rewarded, except he had first giuen an account vnto the people of his office well discharged, as all magistrats were bound to do. Demosthenes for that it concerned his owne honour and reputation, taking the matter in hand, made of all others a most excellent oration for Ctesiphon, or more truely to say, for the crowne he would haue had, alleaging, That the law spake not but of Magistrats; and that charge of repairing and fortifying of the wals and other fortresses, was no magistracie or office, but onely a simple commission; and therefore in his vulgar tongue saith, 〈 in non-Latin alphabet 〉]. [ C] [Sidenote 764 - *] Which the Latines properly called Curatio, which is to say a Commission. Wherby it appeareth, that publike charge, for repairing of the walles, not to haue bene an ordinarie matter, but extraordinarie, for that there is not still need for to repaire them. Neither ought it to seeme strange, if Demosthenes well knew to distinguish and put a difference betwixt a commission and an office (as hauing bene of long time exercised in the publike affaires, and as it were in the middest of the Commonweale) both which Aristotle altogether confounded. The one of them also hauing alwaies mannaged the affaires of state; and the other as saith Laertius, neuer intermedling therein. And that is it for which Nicholaus Grouchius, and Carolus Sigonius, for not hauing vnderstood the difference betwixt an office and a commission, haue so much troubled [ D] themselues with replies and reioynders, without any resolution at all, as men ignorant in the knowledge of matters of law and of state. All which shall I hope be well manifested, by that which shall be set downe in this booke.

In the laws of Charlemaigne Commissioners were called missi, a mittendo; which signifieth sent; which the Germans call by an old word Skaken: whereof they called the court of judges, which were extraordinarily sent into the prouinces (& were indeed nothing else but Commissioners) Scacarium. But here perhaps may some man say, That the Commissioners of the castle of Paris, and judges of the court of Requests of the Pallace, are also officers: which being so, how could it then be, that an office and a commission should not be also all one? Whereunto I answere, That of antient time [ E] [Sidenote 765 - *] those judges were but simple commissioners, with authoritie and power during pleawho yet afterwards for the common good and profit were made perpetuall officers, with an ordinarie and perpetuall charge and power committed vnto them them: their old and former name of commissioners, yet by abuse or for the honor of that court still remaining: whereby those judges of the court of Requests, are yet called the Commissioners of the Parliament; as judges appointed, and againe to be reuoked at the pleasure of the prince. Which judges of the court of Requests (for all that) cannot now be reuoked by the king himselfe, except they first bee by capitall iudgement [Page 284] condemned, or willingly of themselues resigne their places: for so it was by the law [ F] of Lewes the eleuenth prouided. Not for that commission is incompatible with an office, most part of compassions being not directed but vnto magistrats or officers: but for that an officer in the qualitie of an officer, cannot be also a commissioner, for the self same charge limited vnto him by his office. For such commissions as they call Excitatiues, extraordinarily directed vnto officers for matters concerning the reuiuing the iurisdiction, or authoritie of their offices, are not properly commissions, if the time or the place be not by the commission altred; as to iudge according to the latter proceedings, and to leaue the former: for after that the time and order appointed by the law, is altered by the authoritie of the prince or magistrat, it is to be now determined by commission. Now the difference herein which the lawyers hold, is nota•…]le, as▪ That if any officer [ G] haue iudged of a fact contained in his commission, in the qualitie of an officer, that his iudgement is naught: but yet that is to be vnderstood in a thing which concerneth not his office: For if there bee a concurrence of the commission Excitatiue, with the charge contained in the erection of his office, the ordinarie hearing of the cause is to be preferred before the commission, euen as the qualitie of the officer is to be preferred before the qualitie of the Commissioner; and the acts of the officers more assured than the acts of the Commissioners. And so in such concurrence of authoritie, if the officer commissionat also in a matter belonging to his owne charge, haue not declared in what qualitie he had the hearing of the cause: the act by him done shall be taken, as the act of an officer, to the intent it may be the more firme and sure. It is also [ H] [Sidenote 766 - *] manifest, extraordinarie commissions extenuating the power and authoritie of magistrats or officers to be odious, or at leastwise lesse gratious, if they bee not for the reforming and amending of the abuses and corruption of the officers. As they do in Venice, from fiue yeares to fiue yeares: And euerie yeare in Genes, where the Sindies are afterwards Commissioners, to heare the abuses committed by the magistrats & officers (which in auntient time in Athens was giuen to certaine ordinarie magistrats) as also at Rome by the law Bebia▪ when as before Quaestors or judges were by commission appointed by the people. That extraordinarie hearing of causes of the judges by commission, was also gratious; which Vespasian the emperour appointed for the hearing [ I] and determining of suits and controuersies, which in the time of the ciuill warres were growne infinitly, and for the deciding whereof the whole liues of all the magistrats would haue scarce sufficed. Commissions may also bee graunted for things concerning the greater part of officers, or a whole corporation or colledge, in which and like cases commissions are necessarie. And I remember that king Charles the ninth, hauing directed his letters patents, in the yeare 1570, for the generall reformation of the waters and forrests of Normandie, which drew after it question of the fairest of his demaine; from the hearing whereof the precedent and councellors of the parliament of Roan were forbidden: Which interiection although they left nothing vnattempted to haue letted, yet so it was, that in fine they agreed thereunto, after that I had againe [ K] and againe presented vnto them the kings commaunds, to that effect and purpose, and commenced suit not onely against the principall men of that prouinciall court, about matters concerning my commission, but also against the whole bodie and corporation of the citie of Roan, for the rights which they pretended against the king; and that, that was the cause for which I had obtained the interdiction.

But briefly, and yet more plainely and plentifully to make plaine all sorts of Commissioners, whether they be for the gouernment of prouinces, or for the warres; or [Sidenote 767 - *] for the administration of iustice, or for the kings receits and treasure, or other things concerning the state. We say, that the commissions come still from the soueraigne [Page 285] prince, or from the magistrats, or from commissioners deputed by the soueraigne [ A] prince; for a fourth there is not. Againe Commissioners deputed, are either taken out of the number of magistrats and officers, or out of other priuat men. And if the commission be directed vnto the magistrats or officers, it is either for matter belonging vnto them by their office, or otherwise not belonging vnto them. And in what sort soeuer it be that commission be directed, whether it be to an officer, or a particular person, it is directed with power and authoritie to heare and proceed in the cause; either without appeale, or else with appeale reserued vnto the soueraigne prince, (if the commission came from him) or vnto the magistrats named in the commission; or els a commissioner is appointed by him whome the soueraigne hath deputed: as sometime commission is giuen out for the instruction of the affaires, or proceedings vnto the definitiue [ B] sentence exclusiuely ro inclusiuely, sauing the execution thereof, if appeale bee made. Sometime also Commissioners are appointed by the magistrars to examine a fact, or the right of a matter, or both the one and the other together; sometimes without any power or commaund, and sometime with both.

This diuision extendeth to all Commissioners, in what forme of Commonweale soeuer it be. As is to be seene in the state of the Romans, where the mannaging of the warres, and gouernment of the countries and prouinces newly conquered, at the first belonged vnto the ordinarie magistrats and officers, viz. the Consuls, Praetors, and Quaestors, yea euen a good way from the citie, whilest that the Roman empire was yet [Sidenote 768 - *] contained within the bounds of Italie: But after that the bounds thereof were extended [ C] further, they then began to appoint Commissioners to gouerne their prouinces, in stead of their ordinarie magistrats, who although they were all by one name called Potestates, yet for all that they gouerned the prouinces in stead of Consuls, Praetors, and Quaestors: they were also called Proconsuls, Propraetors, Proquaestors, that is to say, Commissioners, or Lieutenant sent in stead of Consuls, Praetors, or Quaestors: As is in Liuie to be seene, who speaking of Philo the first Proconsull saith, Actum cum Tribunis Plebis est, ad populum ferrent vt cum Philo Consulatu abijsset, pro consule rem gereret, The tribunes of the people were dealt with, that they would moue it vnto the people, that when Philo was out of his consulship he might rule as proconsul. But after that [ D] the empire was growne great, and also extended farre, such commissions were by the sufferance of the people graunted by the Senat, to such as were lately gone out of their offices in the citie, who agreed among themselues for the gouernment of the prouinces; or if they could not so fall to agreement, cast lots for them, which they called C•…]mparare inter se, & sortiri: Except the charge and commission were of such consequence and importance (by reason of some great warre alreadie risen, or like to arise in the prouince) as deserued to haue some valiant and great captaine without lot therevnto by the Senat appointed: Where if any partaking or factions chanced to arise about the matter, the people at the request of the Tribunes appointed one thereunto by commission. As it did Scipio Africanus, to whome the people gaue commission for the mannaging of the warres in Spaine and Affrike, and by that meanes drew Hannibal [ E] out of Italy, and discharged that country of a long and most dangerous war. The like commission was without lot extraordinarilie by the people also granted to Paulus Aemylius, to make warre against Perseus king of Macedon. And so also to the great captaine Pompey against the pirats, by the law Gabinia, and against king Mithridates, by the law Manilia: all they which the yeare before had borne office, beeing reiected, the people naming whome they pleased and best liked. Howbeit that this was no vsuall matter, but right seldome times done: For ordinarily the Consuls, Praetors, and Quaestors discharged, and so going our of their offices in the cities, cast lots for the [Page 286] prouinces, if they could not otherwise agree for the gouernment of them among themselues: [ F] [Sidenote 769 - *] and for that the charge of the warre against Mithridates by lot fell vnto Cor. Sylla, Marius by the working of Pub. Sulpitius, one of the Tribunes by him suborned, caused it to be by the people taken from him; and by extraordinarie commission giuen vnto himselfe: which was the cause of the most cruell and bloodie ciuill warre that euer was in Rome. So also was the prouince extraordinarily appointed vnto Cato Vticensis, against Ptolomee king of Cyprus; which by him vndertaken, Clodius boasted, That he had pluckt out Catoes tongue, which had alwaies before beene at libertie to speake against extraordinarie powers and commissions. Sometime also if the horriblenesse of some enormious fact required a more seuere triall, the matter was propounded vnto the people, who put it ouer by commission vnto the Senat; which out of the [ G] bodie of it selfe appointed some one or moe, not onely for instructions, but euen to heare and end the matter. As when Lucius Tubullus the Pretor, had with grieuous extortion most filthily polluted the Tribunall seat, and peruerted iustice; so that the people leauing the ordinarie course, and the magistrats to whom the hearing of the matter belonged, referred it wholly vnto the Senat by extraordinarie commission: the Senat forthwith deputed Cn. Scipio to iudge and end the cause. So also when Tiberius the emperor by cōmission appointed the Senat to enquire of the murthers committed betwixt the Nucerians & Neapolitans: the Senat deputed the Consuls to enquire therof. Yea sometime the senat without commission from the people, but as it were by meere soueraignty appointed commissioners, if the case in question were committed in Italy, [ H] out of the territorie of the citie of Rome, as a thing belonging to the Senat, apart from all others; as saith Polybius: as it happened in a straunge robberie and murther, wherof Cicero speaketh in his booke De Claris Oratoribus; to the hearing whereof (hee saith) the Senat deputed the Consuls. By which examples here before produced, it appeareth [Sidenote 770 - *] that Commissioners appointed by the prince, or people hauing the soueraigntie, whether they be magistrats or priuat men, may appoint their deputies, and so commit the matter to others, if it be not expresly forbidden them by their commission so to doe; or that question be of the estate it selfe in the commission: as the ambassadours or Commissioners which are to entreat of peace, or alliance, or other such like things cannot commit the same to others. As is also to be said if question be of the life, •…]ame, or [ I] state of any man: wherein the manner and examination for better instructions may be deputed to others, but not the iudgement it selfe, except the judge before appointed by commission excuse his absence by sicknesse or some other lawfull cause. But Iustinian the emperour afterwards ordained better by forme of a perpetuall edict, That Commissioners appointed by the prince, should depute nothing of their commission to others more than the instructions of the suit: neither thought he that sufficient, but decreed also, that the Commissioners appointed by the prince should themselues heare the appeale, and instructions of the suit. But to meet with all that is to be met with, the most sure rule is to haue al that is commited, particularly in the commission, expressed, [ K] and so the commissioners to be ruled by the commission, as is the manner in all well established Commonweals.

And albeit that a man might make many questions concerning commissions graunted, as well by the soueraigne prince, as by the magistrates, in time both of peace and warre: yet will I thereof touch but two or three, and those most necessarie to bee vnderstood of them which haue the managing of the affaires of state, whether it be in peace or warre. Wherefore leauing the rest, and to bee briefe: wee say that the [Sidenote 771 - *] commission ceaseth by the death of him that graunted the same, or by his reuoking of the commission: or in case that the commissioner during the time of the commission, [Page 287] obtaine some office or preferment equall to him that graunted the commission: [ A] for then one of them cannot commaund the other. But as for the expresse reuocation [Sidenote 772 - *] declared by the princes letters or edicts, concerneth as well them which are ignorant of such reuocation of their authoritie and commission, as them which know it. And albeit that the acts of a commissioner so reuoked, done after the reuocation of the commission, and yet before the knowledge of such a reuocation to him giuen, hold for good but in regard of particular men, towards whom the commissioner hath executed his commission; and especially, if they haue voluntarily yeelded vnto the commissioner, knowing the commission to be alreadie reuoked: and that towards others the acts of the commission after the reuocation of the commission, are of none effect by the rigour of the law, yet equitie and reason bindeth them thereunto, vntill that the [ B] commissioners or appointed iudges doe know that their commission is reuoked. For as a commissioner hath no power vntill he haue receiued his commission: so likewise the commission dureth, vntill the reuocation thereof be signified; or at leastwise vntill the commissioner know that it is reuoked. And therefore Celsus sayth, that the acts of the gouernour of a prouince are good and auaileable, if the commissioner know not that his commission is called in. And although Pope Innocent were of opinion, that it was otherwise to be iudged, if question were of life or honour, and was therein of many followed, yet he continued not in that opinion. And albeit that he was a pope [Sidenote 773 - *] & soueraigne prince, and a man most skilfull in both the lawes, yet willed he no greater authoritie to be giuen vnto his writings than to other mens, neither to rest thereon [ C] further than there were good and strong reason therefore. But to take away these antient difficulties, the secretaries to the state haue vsed to ioyne vnto commissions, and almost to all mandats and letters pattents this clause, A die qua rescriptum Significabitur, From the day that the rescript shall be notified: which clause if it be omitted, yet is it alwayes necessarily to be vnderstood. And thus much concerning the expresse reuocation of a commission.

So also a Commission taketh end by the death of him that graunted it, bee hee [Sidenote 774 - *] prince or magistrat; prouided alwaies, that the thing committed bee yet whole and entire: for otherwise the commissioner may continue that which hee hath begun, so that it be done without fraud. But it is fraud in law, when a Commissioner not aduertised [ D] by a purseuant or expresse rescript (but by some other certaine meanes) of the death of the prince, the matter being yet whole, neuerthelesse proceedeth therein. Now the matter is not whole and entire, which cannot by the Commissioner bee left off without proiudice to the publike state, or to the right of priuat men: as in matter of iustice, if the parties haue contested, the thing is no more entire, but the Commissioners may and ought to go through with that they haue begun, whether it bee the prince or the magistrat that hath giuen them commission. And so in warre the matter is said not to be entire, if the battell stand ranged before the enemie, and that the retreat cannot without euident perill be made: in which case the generall is not to forbeare the giuing of battaile, although he be certainly enformed of the death of the prince; or that it [ E] be forbid him to ioyne battaile. So if rebellion arise, which cannot otherwise be appeased but by the execution of the authors thereof; that is first to bee done, and afterward knowledge thereof to be giuen, (as saith the lawyer) although the death or countermaund of the prince happen or come in the meane time. Yet the commissions comming from the prince, or letters mandatorie, are in that different from the other letters royall, which they call letters of iustice: for that these coutinue in their force and vertue, whereas the letters of commaund expire after the death of the prince. Yet neuerthelesse the new prince oftentimes ratifieth that which was done by the commaundement [Page 288] of his predecessour, although he died, the matter yet whole and entire, and the [ F] rather if it be well and for his profit done; which the magistrats cannot do to the commissioners by them appointed, for that their ratifications in tearmes of iustice are neuer to be receiued. And thus much concerning all the sorts of Commissioners.

Now, that we haue alreadie said of Commissioners, hath no place in officers, for [Sidenote 775 - *] that their power endeth not together with the death of the prince, although it bee in some sort holden in sufferance, and as it were suspended vntill they haue letters from the new prince, or confirmation from him for the continuance of their offices. And for this cause the parliament of Paris after the death of king Lewes the eleuenth, decreed that the officers should continue in their charge, as they had before done, vntil that they receiued commaund to the contrarie from the new king; following therein an auntient [ G] decree giuen in like case in the moneth of October, in the yeare 1380. Howbeit the court of Toulouse after the death of Charles the seuenth, otherwise decreed than had the parliament of Paris, viz. That all their iurisdiction should cease, vntill they had receiued new commaundement from the new king; and yet that if any occurrents should chance wherein the authoritie of the court should bee requisit, that then the court should proceed by letters and commissions, intituled The people holding the Parliament royall of Toulouse, firmed with the seale of the court, without any mention making of the king. But forasmuch as the king comming vnto his kingdome by right of succession, vseth his maiestie before he be consecrated; as it was iudged by a decree of the parliament of Paris, the nineteenth of Aprill, in the yeare 1398 (contrarie to the [ H] opinion of many) it belongeth not vnto any officers, parliament, or Senat, to doubt of the power or maiestie of the prince: which if it were not, neither were they to haue any authoritie or power: neither are in any other sort to proceed, but as officers vnto the king, and vnder his obeysance. But if it were lawfull for the people to make choice of their king, as it is in Polonia, Denmarke, and Hungarie; (where the kings beeing dead, the maiestie of the kingdome is to returne vnto the people) another thing were to bee said: For then the magistrats vse not the princes name in the vacancie of the kingdom (for that then there is no king) but euery one of them do their lawfull acts and duties, as if they had such power from the Senat and the people) by force of the law, and power [ I] proper vnto the magistrats: whereas Commissioners and judges extraordinarily appointed, can by no meanes (the prince being dead) hold their authoritie and power; for that they do nothing by the vertue of the law or of ordinarie power: and not for that commissions be odious, and offices gratious (as some haue thought) for oftentimes a commission is more gratious, yea and more profitable also vnto the Commonweal, than any officers ordinarie power. And as for the decree of the parliament of Paris (bearing date the sixteenth of October 1381) whereby it was ordained, that the kings edicts and commands should haue like power the king being dead, that they had whilest he yet liued; that is so to be vnderstood, if the charge committed bee then begun to be put in execution. And therefore if the power of the magistrats be annuall, and the [ K] king die before the magistrats yeare be expired, yet may the magistrat neuerthelesse hold his office for his yeare: or if it be perpetuall, continue the same in such sort and so long as the law giueth him leaue, for that his office dependeth not of a simple commaund [Sidenote 776 - *] which may still be reuoked, or of a charge which cannot be recommaunded, but is grounded vpon a law, receiued, published, verified, and registred: in such sort as that his office cannot be suppressed but by a contrarie edict or law. As when question was for the suppressing of the militarie Tribunes, (for the discord betwixt the Senat and the people, before created with the power of the Consuls) and in their steady to restore again the Consuls, it could not be done vntill that by the law Licinia, that power [Page 289] of the Tribunes was againe taken away. And in our time when as the fift and sixt president [ A] of the parliament of Paris were to be suppressed, they were not yet therefore displaced (for that against their wils they could not, except that for some capital crime they had bene before condemned) but an expresse edict was made, that after their death none should be more placed in their roomes, but so their offices to bee suppressed. So by a generall edict made by Charles the ninth, at the request of the estates of Orleans, in the yeare 1560, all offices erected after the death of king Francis his grandfather, were againe suppressed. And oft times it happeneth, that one officer is by one law made; but more often, that many are made at once: as when threescore sergeants were at once created by one edict of king Francis the first; and the criminall judges at once erected throughout the realme by an edict in the yeare 1527▪ when as before the [ B] same man was judge both of criminall and ciuill causes. Which course was so straitly obserued and kept in the kingdome of Fraunce, as that the verie clarkes of the clarke of the parliament, were by expresse edict made an office, though afterwards by another edict againe suppressed, at the instance of the chiefe clarke, in the yeare 1544: as were other small charges, which the Roman Commonweale were by the magistrats themselues commonly giuen vnto their seruants, without any law at all. Neither is it sufficient for the magistrats and other officers to be by the law created, but that their successours also haue a particular declaration, to testifie that they haue obtained their offices, and yet no need of any new edict or law. And for this cause the princes commissions directed vnto the officers in the quality of officers, continue in force to their successors: [ C] for that the prince therein maketh choice of the magistrat or officer, and not of the person: but if choice be made of any mans person, whose name is expressed in the commission, he being dead, his successour in the same office cannot execute the commission, for that the prince made choyce not of the magistrat but of the person.

Yet there are other differences also betwixt an officer and a commissioner: for that [Sidenote 777 - *] the power of an officer besides that it is ordinarie, it is also better authorised, and larger than is a commissioners, & that is it for which the Edicts and lawes leaue many things to the consciences and discretions of the Magistrats: who indifferently applie and interpret the lawes according to the occurrents & exigence of the causes presented: Whereas [ D] Commissioners are otherwise bound, and as it were tyed vnto the verie words of their commission, and especially where question is of the affaires of state: as in the charges and commissions of Embassadours or Commissioners deputed to negotiate betwixt princes, where the Commissioners may not without danger of their liues passe one point beyond the lesson they haue in writing, if this clause (which is oft times put vnto the charges and instructions of Embassadours and Commissioners to treat with princes) be not thereunto annexed, viz. That if any thing else be to be done, the Embassadour shall at his wisedome and discretion, according to the chaunge of places, times, and persons, haue care thereof: much like vnto that clause whereof Aeschines the Orator speaketh in the oration which hee made for the defence of his legation; where he saith, that this clause put into the the commission of Embassadours, viz. [ E] That they should do whatsoeuer they saw to be for the common good; extended not vnto that they had in their expresse and particular charge: so that the aforesaid clause extendeth not vnto the principall obligations and resolutions of treaties, as to the making or breaking of peace, but onely vnto the accessories and matters of lesse importance. As if question be of any thing to be graunted vnto the enemies or friends, for the inlarging of their power to the hurt of the Commonweale, it is not lawfull for the Embassadours without speciall commaund to intreat thereof: For seeing that in the lesse affaires of priuat men, an Attourney or Proctor hauing a generall authoritie with [Page 290] full and entier power, may not yet for all that giue, acquite, or alienate any thing, or [ F] giue or take an oath of any person without a speciall charge; much lesse ought he so to doe in things touching the publique, and namely in things concerning the state: well may things done without commission, be confirmed, yet could they not of right without commission be so done. For albeit that in priuat matters he may say him [Sidenote 778 - *] selfe to haue well and duely executed his charge, which hath done it better than was to him inioyned, yet in publique affaires of the estate it is not alwaies so: for the Souldiour which hath assailed the enemie, or the Captaine which hath giuen battell contrarie to the Generals commaund, are both worthie of death, although they obtaine the victorie. For what could euer haue more honorablie beene done, or more worthie eternall praise, than was that which was done by Fabius, collonell of the horsemen [ G] vnder Papyrius Cursor the Dictator? who with the losse but of an hundred men onely, slew twentie thousand of the enemies; and yet for that he contrarie to the Dictators commaund had ioyned battell with the enemie, he was brought in question of his head, neither had so escaped, had not the Dictator (ouercome by the earnest intreating of the people) so rested contented. And therefore Caesar in like case speaking of one of his captaines called Syllanus, said him to haue done well and wisely in not giuing of battell, although he were sure to haue caried away the victorie: for that said he it is not the dutie of a captaine, to do any thing that is by his Generall forbidden him. Yea so much it concerneth not to doe any thing that is forbidden in matters of warre, as that the Lieutenant generall to an other man, ought not to giue the enemie battell, except [ H] it be so expresly giuen him in charge: which was the cause that the Countie of Aiguemond was shrewdly shent of the Spaniards, for giuing battell vnto the Mareshall de Termes (although he therein tooke him prisoner and discomfited the French armie) for that he had hasarded the whole state of the low Countries, if he had lost the bartell. But this latter point is to be vnderstood of such as be Lieutenants, or subiect to the commaund of others, who by vertue, of their office haue not power to command. For an officer, as the Consull, or in his absence his Lieutenant; or with vs the Constable, the Marshall, or other Generall of the armie, placed as in title of office, to haue full and absolute commaund ouer the armie, and to mannage the warre, may by vertue of his office, and without attending any other speciall commaund, make warre vpon the [ I] denounced enemies, pursue them and giue them battell, besiege them, and take their fortresses and strong holdes, and dispose of the armie according to his discretion, if he haue not expresse commaundement to the contrarie from his soueraigne, and so his power suspended: yet hauing taken any strong places, or the enemies Generall, he may not without speciall commaund deliuer them, or yet make peace with the enemie. True it is, that in popular estates these points are not, neither can bee so straitly [Sidenote 779 - *] kept, the generals thereof themselues doing almost all; which in a Monarchie depend of the will and pleasure of one onely prince: For why it is more easie to know the pleasure of the prince, than of the people; of one man, than of many thousands. As [ K] we may still see in Liuie large commissions by the people giuen vnto the generals of their warres▪ as in the warres against the Hetrusceans, all power was giuen vnto Fabius, Omnium rerum arbitrium & a Senatu, & a populo, & a collega, Fabio Consuli Commissum, The disposing of all things (saith he) was both of the Senat, and the people, and his fellow in office committed to Fabius. And in another place, Initio liberum pacis at belli arbitrium permissum▪ At the beginning the free disposing of peace and warre was committed vnto him. And yet neuerthelesse they kept this difference betwixt them which had the mannaging of their warres by vertue of their office, and them which did the same by commission; as that the Consuls, Praetors, and others, hauing power [Page 291] to make warre by vertue of their office, might auow and iustifie their owne actions, [ A] without any other ratification, except they had taken vpon them some thing that concerned the soueraigntie of the people; whereas the Commissioners, if they therein passed their cōmission, must of necessitie haue their actions by the Senat or by the people ratified. As Pompey hauing had commission for the mannaging of the warre against king Mithridate, passing farther made warre also against diuers other nations and people, at his pleasure bestowing the kingdomes, estates, and towns by him conquered and wonne: and albeit that the people would infringe or reuoke nothing of that hee had done, yet neuerthelesse after his triumph, he oftentimes requested the Senat, that those his doings might by it be ratified: and finding the Senat to make thereof difficultie, and to vse therein long delayes; he to strengthen and backe himselfe against his enemies, [ B] and such as were about to looke into his doings, ioined himselfe in friendship and alliance with Caesar, so to make themselues both of them the stronger. For albeit that hee had a generall commission, and that in that case all was at his discretion: and therefore (as some thinke) needed no ratification: yet is it not so, the generall clauses of commissions being alwaies to be interpreted and ruled to the best good and profit of the Commonweale▪ not in any thing giuing power to doe that is hurtfull vnto the publike state; which is not a thing lawful or permitted euen vnto a priuat man to do, hauing a charge in generall tearmes committed vnto him. Wherefore these words expressed in commissions, be they Gouernors, Captaines, Iudges, or ambassadors (for things to be done) [Sidenote 780 - *]At their discretion according to their wisedome; or at their will and pleasure: and others [ C] such like, are still to be so interpreted and vuderstood, as euerie good and wise man would interpret and vnderstand them, still respecting the good and profit of the Commonweale: wherein if any fault be committed, account thereof is to be giuen; the least fault that can be, being still in matters of state, and publike interest to be enquired after: no excuse of errour, or ignorance, being therein to be admitted or accepted. And much the lesse, if he which hath taken vppon him such publike charge had it not laid vpon him, but was by him sought for: neither offered vnto him, but by force by him extorted. For if priuat mens faults, when they haue taken vpon them the charge to do any thing one of them for another (although it bee of their owne accord) be not excusable; how should they then be excused in matters concerning the state and Commonweale. [ D]

But to the intent that the force of Commissions and offices may the better bee vnderstood, it shall not be amisse to produce the examples of the auntient Romans, and to compare their manner of speech in the making of them, with that of ours. As in [Sidenote 781 - *] that which Festus Pompeius saith, Cum imperio esse dicebatur apud antiquos, cui nomina▪ tim a populo dabatur imperium, He was said of the auntients to haue power, to whome by name power was by the people giuen: which is asmuch as to say, by expresse commission, without appeale vnto any other magistrat, vnto whome so authorised the law gaue power to command: For that a magistracie or office cannot be wishout power to commaund. So we see in Liuie, at such time as Hannibal besieged Rome, Placuit▪ [ E]omnes qui Dictatores, Consules, Censoresue fuissent cum imperio esse, donec recessisset hostis a muris, that is to say, A decree was made (or commission giuen) that all such as had bene Dictators, Consuls, or Censors, should haue power and authoritie to command, vntill the enemie were departed from the walles. So Cicero speaking of Augustus Caesar saith, Demus imperium Caesari, sine quo res militar is geri nō potest, Let vs giue (saith he) power and authoritie vnto Caesar, without which militarie affaires cannot be mannaged. For why, Octauianus yet but yong, could by the law neither beare office, nor lead the armie, much lesse without power and authoritie take vpon him a generals [Page 292] charge: and therefore Cicero persuaded, That the charge for the mannaging of the [ F] warre should with power by commission be giuen vnto him: which place of Cicero hath much troubled both Sigonius and Gruchius. For had Octauianus bene either Consul or Praetor, Cicero would not haue vsed these words, for that he should then by law haue had the power and commaund of a magistrat.

Beside this, there was also a notable difference betwixt the manner of propounding [Sidenote 782 - *] the request for the creating of a magistrat, and of a Commissioner: For the magistrat was vsually created by vertue of the lawes before made; the magistrat thus asking the people, Quos vellent Consules fieri, Whome they would to be made Consuls? and so of the other magistracies and offices being vacant. But for commissions of command, they vsed these words, Vellent iuberent vt huic vel illi imperium esset in hac vel illa prouincia, [ G] If they willed and commaunded that this or that man should haue the gouernment in this or that prouince. As is reported of Scipio Africanus, who had commission with power to commaund, although he were not yet of age to beare office, or to be a magistrat. And Cicero speaking of all sorts of commissions saith, Omnes Potestates, Imperia, curationes, ab vniuerso populo proficisci conuenit, It beseemeth al potestats, commaunds, and commissions, to come from the bodie of the whole people. Where by the word Potestates, he vnderstandeth the gouernours of princes, who were properly so called. And by the word Imperia, Captains, who had particular commission to mannage the warres (howbeit that the word Imperia, is vnderstood also of the ciuill magistrats) with power to commaund. By the word Curationes, is meant all other charges, [ H] without power to commaund. The word Imperator, signifieth properly a generall or chiefe captaine, as Plinie speaking of Pompey, Toties Imperator antequam miles, So often a generall before he was a souldior. But generally the word Curatio, importeth all sorts of commissions; as is easily to be gathered by this place of Cicero, Idem transfero in magistratus, Curationes, Sacerdotia: The same I transferre into magistracies, Commissions, and Priesthoods; which are the three sorts of publike charges. Vlpian the lawyer allo well distinguisheth a magistrat from him whome he calleth Curator republicae, of whome he hath made an expresse booke: whome the law calleth by a Greeke word 〈 in non-Latin alphabet 〉]; who had no power to condemne, nor to appoint any fine, which was lawfull [ I] for all magistrats to do, as we haue before showed.

But it is to be noted, that al commissions passe into the nature of offices, as oft as that [Sidenote 783 - *] is by law made an ordinarie charge, which was before done by commission, as we haue by the examples of our owne Commonweale before declared. And that which was before giuen at the pleasure of the magistrats, becommeth also an office, if he that hath the soueraigntie doth by law establish the same. As in auntient time the Consuls, as it were by commission made choice of the six Colonels, whome they called Tribunos militum, vntill that about 642 yeares after the foundation of the citie of Rome, it was by an expresse law (made at the request of the Tribunes of the people) set downe and decreed, That from that time forward it should bee an ordinarie office, and the people [ K] to haue the choice of them: which was euer after obserued, except some such great warre were in hand, as that it was thought needfull, that extraordinarie choice should be made of those Colonels by commission: As in the Macedonian warre against king Perseus, Licinius and Cassius the Consuls, made a motion vnto the people, That the Tribunes, or Collonels of the souldiors, might for that yeare bee chosen by the Consuls, as indeed they were. So likewise in auntient time also, the Consuls, Praetors, and other great magistrats made choice of their slaues and seruants for their vshers, secretaries, sargeants, Trumpetors, and such like; as they did also in this realme, vntill the time of Philip the Faire, who was the first that tooke this power from the bailiefs and seneschals, [Page 293] and yet leauing vnto the lords justices, power to establish sergeants and notaries [ A] in the prouinces of their iurisdiction and territorie. And in like case the kings atturney generall, in the time of our fathers, made choice of such aduocats as hee thought best for the pleading of the kings causes; who are now as ordinarie officers created by the prince himselfe, the particular commission before giuen vnto the atturney generall, being conuerted into the forme of a most honourable office. And thus much in generall concerning Commissioners and officers: it followeth now that wee should also speake of Magistrats, and of such other things as are vnto euerie one of them properly belonging.

CHAP. III. [ B] ¶ Of Magistrats.↩

A Magistrat is a publike officer, which hath power to commaund [Sidenote 784 - *] in a Commonweale. And an Officer we said to bee a kind of publike person, who hath an ordinarie charge by law appointed vnto him. But a Commissioner wee said to bee a publike person also, with a publike, but an extraordinary charge, at the pleasure of the prince. Now orderly proceeding required that wee should before speake of Commissioners, then of officers; for that they were before any lawyers or Officers established. For right certaine it is, the [ C] [Sidenote 785 - *] first Commonweales were by soueraigne power gouerned without law, the princes word, becke, and will, seruing in stead of all lawes, who both in time of peace and war, by commissions gaue out charge to whome they pleased; and againe at their pleasure reuoked the same, all depending of their full and absolute power, being themselues not bound to any lawes or customes at all. And that is it for which Pomponius writeth, the Roman Commonweale to haue bene at the first gouerned by regall power, without vse of any law. And Iosephus the historiographer, in his second booke against Appian, desirous to show the most honourable antiquitie of the Hebrewes, and of their lawes, saith, That Moyses of all others was the first that euer writ lawes. And that in [ D] [Sidenote 786 - *] fiue hundred yeares after, the word Law was neuer heard of. Alleaging in proofe therof, That Homer in so many books as were by him written, neuer vseth this word 〈 in non-Latin alphabet 〉], or Law: a good argument that the first Commonweals vsed not but Commissioners, considering that an officer cannot be established without an expresse law (as we haue said) to giue him his ordinarie charge, and limited to a certaine time: a thing seeming to diminish from the power of soueraigntie. For which cause kings and princes (ielous of their state and greatnesse) haue vsually annexed vnto all their letters pattents of office, an auntient clause retaining the marke of lordly Monarchy, viz. That the officer should enioy his office so long as it stood with the princes pleasure. Whereby it appeareth the officers power to depend of the princes power▪ rather than of order. And albeit that this clause be to no purpose in the kingdome of Fraunce, for that by a law [ E] by Lewes the eleuenth established, ordinary offices and charges, by the prince once lawfully bestowed, cannot from them on whom they are so bestowed be againe taken, except they haue committed some criminall cause worthy of death; and that in Spayne, England, Denmarke, Sweden, Germanie, Polonia, and all Italie the like order be obserued: yet for all that, the Secretaries of estate neuer forget the same: a great argument that all charges and offices were of auntient time in the nature of commissions; which whither it bee profitable vnto Commonweales or not, shall in due plaec be hereafter declared. But let vs before speake of the Magistrat which whaue before defined [Page 294] to be a common or publique officer with power to commaund. [ F]

Now there is no lesse difference amongst writers betwixt the officer and magistrate, [Sidenote 787 - *] then there is betwixt the officer and commissioner. For albeit that euery Magistrat be an officer, yet euery officer is not a magistrat; but onely they bee Magistrats which haue power to commaund, which their greeke names 〈 in non-Latin alphabet 〉], and 〈 in non-Latin alphabet 〉] well declare; [Sidenote 788 - *] as who should say Commaunders, and the latine word Magistratus, which is asmuch as to say masters and commaunders. And for that the Dictator was he which had the greatest power to commaund, the auntient writers called him Magister populi, the word Dictator signifying a Commaunder; as who should say, saying the word, and it was done: for that edicere is as much as to commaund, which is prope•…] vnto Magistrats: for that edicts are the Magistrats commaunds. Howbeit that many [ G] herein deceiue themselues, who supposing the bookes written in latin in the name of Mar. Varro to be his, say that the Dictator is so called, quasi dictus ab interrege, as so called of the Interrex: But by the same reason the Collonell of the horsemen might be also called a Dictator; for that he was then also so appointed by the Dictator, as is to be seene through all the historie of Liuie, and should rather be called Dictatus, as a man appointed; in the signification passiue, than Dictator in the actiue. Wherefore Dionysius Halycarnasseus Varro his domesticall friend better saith, the Dictator to haue beene so called as an Edictator, that is to say, a soueraigne commaunder, and was therefore called Populi magister, or the Master of the people.

Now we haue before declared the definition of a Magistrat by the yonger lawiers, [ H] and by Aristotle himselfe set downe, to be in no wise to be allowed or maintained: [Sidenote 789 - *] who call none but him a Magistrat which hath a deliberatiue voice in iudgement, and in the priuie counsell, with power to commaund; and principally saith hee to commaund: for in his sixt booke de Republica, seeing the number of officers to be infinite, whom he calleth all 〈 in non-Latin alphabet 〉], a name proper vnto Magistrats hauing commaund in the Common weale: he findeth himselfe therein much entangled, for that he seeth others also besides them necessarie for the ornament and glorie of the Commonweale: and then after them all the Magistrats ministers, as Sargeants, Vshers, Secretaries, Notaries, all whom he calleth by the common name of Magistrats: euen as he doth them which haue power to commaund: and so passing on further, saith, such ministers to [ I] haue also power to commaund, 〈 in non-Latin alphabet 〉]. And yet for all that in an other place [Sidenote 790 - *] he maketh question, whether that the Iudges and Orators are to be called Magistrats: whereunto he aunswereth, that a man may say them to be no magistrats, hauing no part of the commaund of the Commonweale; And therefore Cato Vticensis chastising the Registers, Comptrollers, and Receiuers, you ought (saith he) to remember your vocation, and that you are but ministers, and not Magistrats, as Plutarke reporteth. As for Preachers and Orators whom he calleth 〈 in non-Latin alphabet 〉], if so it be that they haue no commaund or ordinarie power, it is right certein that they are no magistrats at all: but yet often times they are also Magistrats, I meane such as in Popular [ K] and Aristocratique estates and Commonweales haue power to perswade or disswade the people, to or from such things as they thought to be for them vnprofitable or disprofitable, whom they called Rhetoras. Howbeit that in Athens euery particular man, (so that he were fiftie yeres old) had of himselfe power to speake; and the rest by the magistrats leaue: whereas in Rome it was not lawfull for any man to deliuer any speech vnto the people, but by the leaue of the chiefe Magistrat in the assemblie. And as for the doubt that he maketh of Iudges, as whether they be Magistrats or not, the resolution is easie, if we will graunt the diuision of judges set downe by Iustinian the emperour to be good: which is, that some of them be Magistrats, and some of them [Page 295] be not. We must therefore now confesse, that amongst them which haue publique [ A] and ordinarie charge; that is to say, of Officers, some of them are Magistrats, (viz. such as haue power to commaund) and some of them not, (as hauing no such commaunding [Sidenote 791 - *] power) but seruing onely as the magistrats ministers: which diuision seemeth vnto vs necessarie for the auoyding of such businesse as might arise of a diuision of it selfe imperfect. Wherefore we haue said that such publique persons as haue an ordinarie charge limitted vnto them by lawes, or by edicts, without any commaund at all, to be simple officers, whom the Emperours of latter times often times in their lawes call officiales, being indeed but ministers vnto the magistrats. The auntient Doctors of the law haue for most part followed the opinion of Accursius, who set downe neither any definition nor distinction of Officers; nor of Commissioners, nor of Magistrats; [ B] but simply saith, That there are foure sorts of Magistrats, viz. them whom they called Illustres, the Spectabiles, the Clarissimos, and the Perfestissimos, to whom he giueth all commaund. All which are rather honorable qualities and titles attributed vnto the magistrats and Officers, according to the conditions of their persons. Howbeit that in this diuision of them also according to their titles and qualities, he hath left out the Patricij, who were of greater reputation and dignitie than the rest: as also the Augustales, who were superiours vnto the Clarissimos: for why Iustinian the emperour appointeth these degrees of honour, the Patricij, Illustres, Spectabiles, Clarissimi, [Sidenote 792 - *]siue Speciosi, and the Perfectissimi, all which honors and titles were giuen aswell vnto priuate men as vnto magistrats. But as for that which Bartholus saith, That there are [ C] some which haue honour without charge; as Counties and Marquises, vnto whom for all that he attributeth power to commaund, and the administration of justice, it deserueth not aunswer; for that he therein is most manifestly contrarie vnto himselfe. So also is there small probabilitie in that he saith, Scholmasters as magistrats to haue iurisdiction ouer their schollers, and power to establish lawes and ordinances: for so domesticall power and the discipline of families should be also altogether confounded with the publique iurisdiction, which we haue before shewed to be a thing impossible. Alexander Imolensis the greatest lawier of his time, hath touched much neerer the true definition of a Magistrate: in that he saith, None to be Magistrats but they which are ordinarie judges; And yet is not this enough: for why they are such magistrats [ D] as haue power to commaund, and yet haue not any ordinarie iurisdiction: as the Censors, and the Tribunes of the people. And so to the contrarie some there be (which being no magistrats) haue an ordinarie iurisdiction, but without any commaunding power, without Pursiuant or Sargeant, as had in auncient time, and now also in euery place the Bishops, who haue the hearing and determining of all sacred and religious things, and yet were neuerthelesse no magistrats. The Bishops saith Lentulus are judges of Religion, and the Senat are judges of the law. So one may see neither the auntient nor late writers to haue handled this point, or yet so much as touched the difficulties or differences of Officers, Magistrats, and Commissioners, as the matter well deserued. And albeit that the true definitions of Magistrats, officers, and commissioners [ E] be not to be found in the papers and writings of Lawyers, yet are the same to be gathered from them, and from the discourse of good histories. For Vlpian writeth it to be lawfull for all magistrats, excepting the Duumuiri, by inflicting of iudiciall pains to defend their iurisdiction: which extendeth not onely vnto the imposing of fines vpon the offendors, but euen to the attaching of their goods and bodies, and casting of them into prison. And yet it appeareth (may some say) that Vlpian hauing excepted these Duumuiri (who were in like power that the Sherifes were in townes without any iurisdiction at all) yet neuerthelesse accounteth them in the number of Magistrats▪ [Page 296] and seemeth also to say, these Duumuiri to haue also had iurisdiction: For otherwise [ F] in vaine were they excepted, if they had not such authoritie and power. And yet the same lawyer in another place saith, these Duumuiri to haue had no iurisdiction nor the hearing of any causes whatsoeuer, but were onely to receiue needfull cautions, and to deliuer possession: which sauoured more (as saith he) of power than of iurisdiction. And yet in this case (saith he) they were but simply the Praetors deputies, who in their absence gaue them this commission, for preuenting gf the daunger which might in the meane time happen, if men of necessitie must be driuen to runne still vnto the Praetors: who in like case also afterwards gaue them power to appoint tutors vnto the poorer sort of orphanes for the preseruation of their goods. Whereby it is euident them to haue had no iurisdiction or power by vertue of their owne magistracie, but onely part [ G] of the Praetors iurisdiction, and that also by leaue and sufferance. But they which haue nothing but such deputed or precarie iurisdiction, can of right call nothing thereof their owne: Wherefore whether the power of the Duumuiri consisted onely in hauing power to commaund, or in iurisdiction, it was vndoubtedly but by leaue and sufferance: whereby it is to be vnderstood, these Duumuiri not properly to haue bene at all magistrats. But they which haue power to commaund, together with iurisdiction, may call men before them, attache them, and with penall iudgement defend their iurisdiction, & also put their iudgements in execution: wheras they which haue power only to command without any iurisdiction, may well cause a man to be apprehended, but not proceed further. And in that some are deceiued, who for that by the old law Alteria [ H] Tarpeia power was giuen to all magistrats, to impose fines vnto the summe of threescore six shillings, therefore suppose all magistrats to haue had iudiciall power also. For if the fine were by the magistrat imposed for publike iudgement sake (as by a Tribune of the people,) it was lawfull for the partie that was so fined either to pay the fine, without further examination of the matter, or to appeale vnto the people, and so to trie the cause of his fine, as is in Liuie oft times to bee seene: which was done by the law Icilia. For why the fine of it selfe inflicted not any infamie vpon the partie so fined, but for the publike crimes sake: as the punishment of beating with staues impaired not any mans reputation, but the cause wherefore he was so beaten. But if a fine [ I] were set vpon him that had not obeyed the magistrat sending for him, or for not aunswering being asked, or for any other cause, not impairing his credit; it was lawfull for the magistrat by taking of distresse to exact the fine, without appeale: For that by the law Tarpeia, there was a certaine stint and measure for fines appointed and set downe vnto the magistrat, that so the disobedient citisens might without any trouble of the state be kept in order, and their insolencie restrained.

Now the least fine vpon any man to be imposed, was one sheepe; and the greatest [Sidenote 793 - *] two oxen, or thirtie sheepe: which for that according to the diuersitie of the cattell it made the penaltie either lighter or heauier, and for that they could hardly be brought [ K] and looked vnto in the citie, a sheepe was valued at ten asses, and an oxe at an hundred, that is to say, at so many pound of brasse. But afterward the riches and territorie of the Romans encreasing, extraordinarie and greater fines were imposed, if greater cause so required. As Liuie writeth of Fuluius, who for that hee being Praetor and generall against the enemie, the Roman armie was put to flight, and he the Praetor reported to be the first that fled; the Tribunes of the people fined him at thirtie thousand peeces of brasse, when as before the greatest fine was but two oxen, or thirtie sheepe: howbeit that the fine was oftentimes forgiuen, for that the sentence of the people condemning a man vnto a fine, carried alwaies with it the note of infamie.

And for that we are by way of discourse drawne thus farre, wee will here amend an [Page 297] errour in Aulus Gellius (about this matter) not as yet corrected. For hee in his Noctes [ A] [Sidenote 794 - *]Atticae, speaking hereof, writeth, The greatest fine to haue bene of thirtie oxen, or two sheepe; in stead of thirtie sheepe, or two oxen: and thereof gathereth, that as then there were moe oxen than sheepe in Italie, and that it was thereof called Italie: the word 〈 in non-Latin alphabet 〉] with the Greekes, and with Varro signifying an oxe. But Dionysius Halicarnasseus, Varro his domesticall friend, writeth, That by the law Tarpeia, it was permitted to all magistrats, to impose fines: and yet a measure thereof to haue bene by the law appointed, viz. That the fine should not exceed two oxen, or thirtie sheepe at the most. In like errour offendeth Festus Pompeius, and in the same words with A. Gellius; so that the one of them seemeth to haue bene deceiued by the leading and authoritie of the other. Both of them also writ, a sheepe in auntient time to haue bene called Ouis, in [ B] the masculine gender, which yet you shall no where find; although wee see Boues for oxen, to be oft times vsed in the feminine gender: But it may bee that they mistooke Duos O•…]es, that is, Two Sheepe, for Duos Boues, which is, Two Oxen. And least any man should thinke me to attribute more to Dionysius Halycarnasseus a Grecian, than to Au. Gellius, or to Festus, both citisens of Rome, they themselues are of themselues refuted: For both of them confesse, the least fine to be imposed, to haue bene a fine of one sheepe; and the greatest, of thirtie oxen, or two sheepe: whereas (if they would haue agreed with themselues) they should haue said, the least fine to haue beene of one oxe. Neither do we as yet see whome we may preferre in the searching out of the Roman antiquities, before this Dionysius Halicarnasseus, excepting Varro, whose domestical [ C] and familiar friend this man was, out of whome he had many good things: For as for the books which are in his name carried about in the Latine tongue, as wel the foolishnesse thereof declare them to be none of Varroes, as for that in them it is read, many things to be in them spoken by contraries. But Au. Gellius writeth, Varro in his one & twentieth booke Rerum Humanarum, to call Mulctam a Sabine word: but the latter Grammarians to take it to be so called by the contrarie: whereby it is cleere those bookes not to haue bene Varroes. Yet these things which we haue written concerning the estimation of the cartell exacted for a fine, are confirmed by the authoritie of Demetrius Phalerius: For he writeth, a dramme of siluer to haue bene appointed by Solons [ D] laws, for a reward to him that had killed a shee wolfe; but fiue drammes vnto him that had killed an hee wolfe: for that a shee wolfe easily killeth a sheepe; but that the he wolfe being stronger, killeth an oxe. Whereby it is manifest, oxen to haue beene thrice as cheape in the countrey about Athens, as in Italie. For ten Asses, or the Roman Denarius ouer-weigheth the Greeke dramme. And in the same place in Au▪ Gellius there is another more notable fault, where he saith, Mulctam, quae suprema dicitur, in singulos dies institutam fuisse, The fine which is called the greatest, to haue bene imposed euerie day: where the word dies, or daies, is to bee put out; for the meaning of the law was, that the greater fine might be exactect of euerie citisen in particular, if so be that many of them had in the same fault offended: for otherwise it had not bene lawfull for the magistrat the same day to impose diuers fines, if many had offended: [ E] whereof the impunitie of offences, and contempt of the magistrat should ensue. For proofe hereof let that example of Au. Gellius serue, Marco Terentio quando neque citatus respondit, ne{que} excusatus est, ego ei ouem mulctam dico, Forasmuch as Mar. Terentius, being summoned, aunswered not, neither made his excuse, I set the fine of a sheepe vpon him. Another errour also there is in Festus, where he writeth T. Menenius Lanatus, & Sestius Capitolinus the Consuls, to haue made the law concerning fines: for it is a thing not heard of, lawes to haue bene made by the Consuls: and as for that law it was made in the yeare 297, after the building of the citie: in which yeare Sp. Tarpeius▪ [Page 290] and Au. Aterius were chosen Consuls: but true it is, that about six yeares after [ F] [Sidenote 795 - *]T: Menenius, and Pub. Sestius Capitolinus, being Consuls, made a request vnto the people, That the fine before imposed in cartell, might be conuerted into money, valuing euerie sheepe at ten Asses, and euerie oxe at an hundred. But whereas Dioxysius writeth it to haue bene lawfull onely for the Consuls to impose a fine, ought not to seeme strange; for that at such time as the law was made, there was neither Praetor nor Aedile in Rome, the first Praetor being there made 386 yeares after the foundation of the citie. And Cicero hauing as he thought best, made lawes for his Commonweale, which he to the imitation of Plato had conceited, amongst the rest made one, whereby he giueth vnto all magistrats iurisdiction and diuination. But they which thinke the same to haue bene the verie Roman lawes which we see in Cicero, are much deceiued; as we [ G] will hereafter show, all magistrats not to haue had also iurisdiction, which yet seemed vnto Cicero both good and profitable. And yet the magistrat that hath iurisdiction (to speake properly) whether it be that he haue it in his owne right, or from others, hath [Sidenote 796 - *] also (saith a certaine lawyer) all such things as without which he cannot exercise that his iurisdiction; that is to say, power to commaund: which is still said to be annexed vnto iurisdiction, and without which iurisdiction is but vaine and to no purpose. Whereof it followeth, that the iurisdiction of the auntient bishops, and of our bishops also, without power to commaund, was not properly a iurisdiction, but onely a simple hearing and vnderstanding of matters. For that which Lucullus the bishop said in the Senat, The bishops to haue bene the judges of religion, and the Senat of the law, tendeth to [ H] that end, and is so to be vnderstood, as that when question is of religion, credit is to bee giuen vnto them, as is vnto other men skilfull in their professions and trades; or as vnto iudges appointed either for the bare examination of the fact, who are properly called Recuperatores (or as we terme them Delegates:) or for the vnderstanding of that is iust and right, who more truely are arbitrators by law appointed, and not by the agreement of the parties, and yet are often called judges. And therefore wee see the Vestall Virgins (in Liuie) which had polluted their vi•…]ginitie, to haue beene alwaies chastised and punished by the Praetors of the citie, but neuer by the bishops. And so when Publius Clodius was about to haue committed adulterie with Pompeia Caesars wife, in the temple of the goddesse Bona Dea, the full Senat had the determining of the matter, concerning [ I] the religion and sacrifices by him polluted. So in the beginning of the Christian religion, the Christian bishops (as Augustine, Nicephorus, and Iustinian do witnes) had not so much as the least iurisdiction of any matter, or the examination of the priestes themselues: howbeit that Iustinian graunted to them the examination of them that were of their owne order and calling. Neither would our auncestors haue any part of commaunding power to be giuen vnto bishops, and that the court of the parliament of Paris, hath oftentimes by the decrees and ordinances thereof witnessed. But why then (might some man say) do we see consistories, prisons, examinations, and fines to be permitted vnto bishops? What other thing else do all these things declare, but [ K] a meere commaunding power? Yea Philip the Faire, and king Lewes his sonne, granted vnto the bishop of Paris power to apprehend and arrest men offending in his Diocesse. Howbeit I suppose those former things to belong rather to their vocation, than to their power to commaund: for that the execution thereof belongeth vnto magistrats: and yet such power of staying and apprehending graunted to the bishop of Paris was by a decree of the Senat forthwith againe from him taken. And although that not long since Henrie the second had graunted vnto all bishops the power to stay and apprehend men for heresie and impietie: yet neuerthelesse was that law shortly after againe abrogated. Yea the bishops themselues do in their owne decrees professe [Page 299] themselues to haue no power for the execution of any thing: yet is it with vs permitted [ A] vnto them, to stay and apprehend offendours, within the boundes of their consistories and courts; so that they go no farther.

And when as fines contrarie vnto the lawes were by the Bishops vpon men imposed, the Parliament of Paris receiued euery mans free appeal from them: yea and afterwards power was taken from them also, for calling of men before them; which they call, A liuely summoning or Citation. For there is an old decree yet extant, whereby the Bishop of Paris was grieuously fined, for that he had vsed such calling of men before [Sidenote 797 - *] him. But when as the Bishops vnder the colour of ministring of oathes, and of the contempt of Religion, had with vs drawne vnto themselues the hearing almost of all matters, (for Alexander Immolensis was of opinion, the power of administring an oath [ B] to be sufficient to giue vnto the Bishops iurisdiction also) the greater Courts forbad them vnder the colour of ministring an oath, to take vnto them the hearing of any matter. And at length it was forbid them also to haue the hearing of the causes concerning the possession of benefices: and so after much, long, and hard sute, prouided for by the decree of Martin the fist Bishop of Rome; which decree is yet extant in the publique records. Yea the Spaniards truely, the most earnest defendours of the See of Rome, would not that their Bishops should haue to doe with any publique or priuat iudgements: except it were for Religion and Church matters, of which opinion I see Felinus (a man skilfull in both the lawes, and a most subtill interpretor of the Popes decrees) to haue beene. And albeit that certain ambitious decrees do giue vnto the Bishop [ C] of Rome more authoritie and power than to all other princes and people: yet pope Innocentius the fourth, and euery other good expounder of the law, haue long since reiected these decrees: with all such others as haue preferred the bishop of Rome before the Councell of other Bishops and Princes. And Bartholus himselfe when he had fearfully written, The subiects not to be guilty of treason, which for the honor and wellfare of the Bishop of Rome had taken vp armes against their prince; craued pardon for that his errour. Trulie in mine opinion it were better and more profitable also for the Commonweal, commaunding power to be giuen vnto Bishops together with so great iurisdiction as they haue: or else that their iurisdiction, to be restrained vnto the hearing of matters of religion onely; as we see the auntient Romans, the Swissers, [ D] them of Geneua, and the Germans to haue done. And yet the censuring of manners is of necessitie to be giuen vnto the Bishops: which beeing once taken away, I see not what course would be taken for the punishment of secret wickednes & villanie, whereof we will in place conuenient hereafter speake. Howbeit for all that, the imposing of fines is not to be permitted vnto bishops, or yet commaunding power to bee giuen them: For why should the magistrat be enforced to put into execution the vniust sentence of the bishop? for it is vtterly forbidden magistrats to enter into examination of the bishops proceedings: except appeale be made as from the bishop abusing his power, vnto the more higher courts; which with vs is seldome done, for the heauines of the penaltie, if it shall be found the appeal to haue bene made without iust cause: for so [ E] the interpretors of both the lawes determine the acts of magistrats which haue taken vpon them the determining of things belonging vnto the bishops, to be of none effect: as also if such things chaunce to be discided in the bishops consistorie as belong vnto the magistrat, they confesse them to be to no purpose. So that if a Priest be conuicted of incest, or of forgerie, before the magistrat, and confesse the same, in the bishops consistorie no regard is had of such his confession made: for so it is in the Popes decree expressed. But when this case had happened, wherein the Popes Legat called before himselfe the acts and things done before the magistrat, & disannulled the same: appeal [Page 300] was made vnto the parliament of Paris, where I remember it was long time doubted, [ F] whether the euident proofes wherupon the priest was before the magistrat conuicted, ought to be void or not; for of the rest of the acts it was lesse doubted: wherein the court at last iudged, That it was in the Councell to be discided. And againe when the like case was in question before the criminall iudges, I my selfe being present, the same court delayed againe the cause, and referred it vnto the Councell: least it should haue seemed either to abrogate the ambitious decrees of the Pope, or to giue vnto the wicked licence to offend. For what could be more absurd, than to suffer a priest by the law Cornelia conuicted of forgerie, and by witnesses published, by retracting the cause, to reiect the witnesses; and so when as no moe could iustifie the matter, freely and without punishment to commit villanie euen in the middest of the Commonweale? [ G] Our auncestours neuer handled the publique iudgements of priests, with diuided examinations: But the Court of Paris, although it often times by iust decrees either quite abrogated, or with equitie tempered the Popes decrees and ordinances, yet neuer more iustly than in this case: which when it had often times beene delayed, at length by a law made at Molines, that decree of the Popes law was with vs taken away. So by little and little are the Popse lawes to be cut short and abolished. For at first in the beginning of the Christian Church, the authoritie of Bishops was shut vp within verie strait bounds, which Iustinian would haue to extend farther by this law by him made. Si quis aduersus Clericos, Monachos, Diaconos, Asceterias, actionem habeat Episcopus iudex esto: sententiam vero episcoporum magistratus exequitor: If any [ H] man haue any sure against Clarkes, Monkes, Deacons, or other the religious persons, let the Bishop be the judge, but let the Magistrats haue the execution of the bishops sentence: but the words of the law following▪ do giue leaue vnto the magistrat to examine the bishops sentence, except there bee an other judge by the prince appointed. Which words haue troubled many, doubting whether they ought to put in execution [Sidenote 798 - *] the bishops commaund or not, before they haue vnderstood of the equitie of the sentence. Now if no appeal be made from the sentence, most are of opinion, That it is without farther examination of the magistrat, to bee put in execution: but if appeal be made, that then enquirie is to be made of the equitie of the appeal, which yet some [ I] denie to be lawfull. Yet in mine opinion, if question be of the thing it selfe, or of the matter of the iudgement, and that the iudgement be not giuen contrarie to the Popes decrees, that then the magistrat ought not farther to enquire of the cause. But if the bishop shall by his sentence go about manifestly to infringe the popes lawes, whether the errour be in the matter it selfe, or in the forme of the iudgement; that then the magistrat may farther enquire of the sentence; that is, in case he abuse the popes authoritie and decrees. The magistrat may also farther examine the sentence, if the bishop shall in iudgement giue sentence contrarie to the lawes of the kingdome, although he seeme to haue grounded the same vpon the popes decrees: as indeed many of their decrees are quite contrarie vnto the positiue lawes of Commonweales: in which case, the [ K] magistrat shall not suffer the lawes of the kingdome to be infringed by the Popes authoritie. In all other cases it is ment that the magistrat should faithfully put the bishops sentence in execution: and so with vs we vse. The same law, and like maner of proceeding the Easterne people vse also: with whom their Bishops haue the bare hearing [Sidenote 799 - *] of matters, and the magistrats the execution: for which cause the bishops haue neither sargeants nor pursiuants, the chiefe tokens and marks of authoritie and magistracie.

But yet question might be made whether all magistrates haue iurisdiction and power to commaund or not? for that M. Messala the lawier, and M. Varro haue left in writing, That some magistrats had power to call men before them, and also to lay [Page 301] hands vpon them: othersome had power also onely to lay hands vpon men: and [ A] other which had power to doe neither the one nor the other: and that they which had power onely to lay hands vpon men, had also onely a Sargeant and nothing else: and that they which had power to doe both, had both Sargeants and mase-bearers: whereas they which had neither power to call men before them, neither to lay hands vpon them, had neither sargeants nor mase bearers. When I say power to lay hands vpon men, my meaning is to haue power to seise vpon the bodie or goods of men; for by our customes many hauing praediall iurisdiction, (or as we tearme them mannours) may lay hand vpon mens lands, but not vpon their bodies: which was not by the auntient Roman lawes permitted; of whom it is needfull here to speake, and in briefe to declare their power, the more manifestly to show the power of all sorts of Magistrats, [ B] in euery kind of Commonweale. For the great magistrats, that is to say, the Consuls, [Sidenote 800 - *] Praetors, and Censors; and amongst the commissioners, the Dictator, and he whom they called the Interrex; then also the Proconsuls, the Propraetors, and in generall all the Lieutenants & Gouernours of countries, had power to call before them not onely the priuat citisens particularly, but euen the lesser magistrats also: excepting the Tribunes of the people, whose bodies (for that they were most sacred) it was not lawfull to violate. Neither might these aforesaid magistrats onely summon and apprehend men, but it was lawfull for them also to punish and imprison them, and in briefe to pluck downe and raze their houses and pallaces, who refused to obey these magistrats commaunding them. But the Tribunes of the people had no power to call men before [ C] [Sidenote 801 - *] them, yet had they authoritie to commaund any citisen to prison, yea euen the Consuls themselues. So L. Drusus Tribune of the people cast in prison Philip the Consull, for that he had interrupted him as he was speaking vnto the people: which then by the law was death. Beside that it was also lawfull for them to oppose thēselues not only against all the magistrats, and the whole bodie of the Senat, but the opposition euen of one of the Tribunes was of power to stay all the proceeding of the •…]est of the Tribunes his fellowes in office: On which great power they presuming and bearing themselues, doubted not contrarie vnto the law to call men before them, and to take vpon them authoritie and iurisdiction. Which thing Labeo the lawier gaue them well to vnderstand, [ D] who being by one of them summoned, refused to make his apparance before him, openly protesting for defence of himself, That the Tribunes were not ordained or appointed for the administration of justice, or to haue iurisdiction, but onely to oppose themselues against the violence and abuse of other magistrats, and to giue ayde and succour vnto such as appealed being vniustly oppressed, and to imprison them which would not yeeld and giue place to their opposition. So the Tribune Sempronius, seeing that the Censor Appius would not giue vp his office, after that he had bene eighteene moneths Censor, (according to the law Aemylia, which had brought the tearme of fiue yeares before prefixed to the Censor, vnto the tearme of eighteene moneths) told him that he would thrust him into prison, if he obeyed not that law (which he did by consent of six others of the Tribunes his fellowes in office▪) but Appius hauing [ E] practised with three other of the tribunes to oppose themselues against the commaundement of the other seauen, by that meanes held still his office: for why, the opposition of one onely of the Tribunes suffised to stay the proceedings of all the rest, if order were not otherwise taken by the people, by taking from him his power and office; as by the request of Tiberius Gracchus, it was taken from Marcus octauius the Tribune, opposing himselfe against the law Agraria, that it might not take place. And this is it for which a Tribune of the people, speaking to the nobilitie said, Faxo ne i•…]uet vox ista VETO, qua Collegas nostros concinnentes tam laeti auditis, I will make [Page 302] (said he) that this word VETO shall not helpe, wherewith you so merrie heare our fellowes [ F] in office singing in accord together. And but a little after, Contemni iam Tribunos Plebis, quippe quae potestas iam suam ipsa vim frangit intercedendo, non posse aequo aure agi, vbi imperium penes illos, penes se auxilium tantum sit, nisi imperio communicato, nunquam Plebem in parte pari Reipublicae esse, The Tribunes of the people (he said) now to be contemned, as whose power did now of it selfe breake the strength of it selfe, by opposing of it self against it self, that things could not be there indifferently ordered, where the commaunding power was with the nobilitie: and onely the power of giuing help with the Tribunes. And that the people could neuer haue like part in the Commonweale, except the power to command were made common vnto both. The Tribunes complained the people to haue no magistrats which had power to commaund: the [ G] Tribunes (they said) to haue power to oppose themselūes, and to yeeld the people releefe, but yet to haue no power to commaund; neither that the comminaltie could be made equall with the nobilitie, except the offices and power to commaund were made common vnto both: and therfore they made request, That the Consuls might be chosen as well out of the comminaltie, as out of the nobilitie: which when it could not be obtained of the nobilitie, it was agreed, certaine Tribunes of the souldiours with the power of Consuls, to be indifferently chosen out of both sorts: which manner of gouernment continued fortie fiue yeares, without any Consull, vntill such time as that it was agreed, That one of the Consuls should be still chosen out of the people. Howbeit a man might say, That the Tribunes in so saying made their power lesse than indeed [ H] it was, they hauing power to oppose themselues, and to commaund men to prison; which is a part of power. For so Vlpian speaking properly and as a lawyer, •…]aith, That it is not lawfull without leaue and commission from the magistrat, to call into iudgement the Consuls, Pretors, or Proconsuls, or generally any of them saith hee, Qui imperium habent, & iubere possunt in carcerem duci, which haue power and can commaund men to be laid in prison. And so wee conclude, that they which haue power to commit men to prison, although they haue no iurisdiction, are in right magistrats, as the Tribunes in Rome, the kings atturneyes in Fraunce, and the three Auogadours at Venice. Neither do I in that agree with Plutarch, who saith in his Problems, That the [ I] Tribunes were no magistrats, for that they had neither mase-bearer nor seat of Iuorie, the true markes (as he saith) of magistracie: for why, they had sergeants, the token of their commaund; as M. Messala affirmeth. And lesse is it to the purpose, that hee alleageth of Appius the Consull: of whom, contending with one of the Tribunes in the assemblie of the people, Liuie thus writeth, Tribunus viatorem mittit ad Consulem, Consul Lictorem ad Tribunum, priuatum esse clamitans, sine imperio, sine magistratu, The Tribune sent a sergeant vnto the Consull, and the Consull sent a Lictor vnto him again, crying out, That he was but a priuat man, without power, without magistracie: For so the Consull said but to impaire the power of the Tribunes. Which for all that was so great, as that Licinius Stolo one of the Tribunes, was so bold, as by force to constrain [ K]Manlius the Dictator to depose himselfe of his Dictatorship. Another of them also committed both the Consuls to prison, for that they would not at the request of the Tribunes discharge ten souldiours from going to the warres. Yet true it is, that the power of the ten Tribunes of the people was shut vp and contained within the walles of Rome. And therefore Mar. Fabius, and Luc. Valerius the Consuls, seeing that they [Sidenote 802 - *] could not leuie their souldiours; for that the Tribunes opposed themselues against them, commaunded their chaires to be carried out of the citie, and so did there what they saw good. Yet oftentimes the Tribunes tooke vpon them more than belonged to their place, or than was by law permitted them, oftentimes propounding their [Page 303] edicts and prohibitions. Whereof Liuie speaking saith, Communiter edicunt Tribuni [ A]ne quis Consulem faceret: si quis fecisset so id suffragium non obseruaturos, The Tribunes generally forbad any man to giue his voyce to the making of a Consul, but if any man so did, that they would haue no regard of any such voice giuen. Which was but an abuse, and presumption vpon the power of the people, to forbid them the free and entire choice of their magistrats: ouer whome in generall, albeit that no man could commaund, yet did the Tribunes so do ouer euerie one of them in particular, although they could by no right so doe. Moreouer they tooke vpon them the administration of iustice, to all such as came vnto them, as is if they had had power to call men before them: as it is to be seene in Plutarch, where hee saith, That the Tribunes administred iustice in the place which was called Basilica Porta. And Aesconius Paedianus [ B] saith, Tribunos, Quaestores, Triumuiros▪ Capitales non in sellis Curulibus sed in subsellijs iura dixisse, The Tribunes, the Questors, and Triumuiri, judges of criminall causes, to haue administred iustice not in Iuorie chaires, (as the manner of the great Roman magistrats was) but vpon their benches. And Appian also saith, Liuius Drusus the Tribune, to haue bene most diligent in the administration of iustice, and doing of right to euerie man. Pomponius also reckoneth the Tribunes of the people amongst the Consuls, Pretors, and other magistrats which administred iustice vnto the citisens and strangers in Rome. Wherefore Cicero saith them to haue bene called Tribunes of the people, for that they might examine the wrong done by the Pretors: which what manner of examination should it haue bene, if they had wanted iurisdiction? Yea they had [ C] not onely taken vpon themselues iurisdiction, but appointed also commissioners: and in many causes made them whome they called Aediles aedituos, their deputies or Lieutenants; which they could not haue done, had they not had authoritie and iurisdiction: For why, that authoritie thou thy selfe hast not, thou canst not giue vnto another. Howbeit yet all this their presumption was but vsurpation and abuse; as Labeo the lawyer well shewed them, who being sent for by them, would neuer (as we said) come before them.

The same opinion we are to haue of those officers or magistrats whome they called [Sidenote 803 - *]Aedules Curules, who had neither power to call men before them, neither to attache any mans bodie; and therefore neither had mase-bearer nor sergeant, (as Marcus Varro [ D] and Messalla haue noted) and yet by the sufference of the Pretors vsurped a great part of their authoritie and iurisdiction. Which the Pretors of the citie oppressed with the multitude of causes easily suffered, at the first committing vnto them causes concerning the sale or alienating of things mouable: who afterward tooke vpon them to haue to do with lands and things immouable also: and after that drew vnto them also the heating of courtisans and common harlots causes, who might by no meanes set vp that base and filthie trade of life, but that they must first openly professe the same before the Aediles, and that they would prostitute themselues. Which the auntients did, to the intent that such women as reason could not keepe within the bounds of modestie, should yet for shame of such publike profession (of so lewd a life before the magistrat) [ E] be restrained. But after that in latter times many euen of the most noble dames in Rome (hauing together with their chastitie also lost their modestie) a shamed not right impudently to make such open profession before the Aediles, That they would prostitute themselues. The emperour Tiberius tooke order, that from thenceforth the magistrats should proceed against them by way of iustice: & at the same time also to represse the presumption and encroaching of the Aediles and others, by decree appointed vnto what summe, and what causes, their authoritie was to extend: which yet they had not by their auntient institution, and much lesse to call particular men before them, or to [Page 304] commit them, although they had power to call a generall assembly of the common [ F] people.

As for the Questors, I see not that they euer had, or yet tooke vpon them to haue [Sidenote 804 - *] had any iurisdiction or power to commit men: for so Varro saith, that they had not: albeit that the yeare after their office expired, they had sometime the gouernment of some prouince bestowed vpon them: as Gracchus the younger after his Questorship had the gouernment of Sardinia giuen vnto him. From which time they had as much and more power in the gouernment of the prouinces committed vnto them, than had all the magistrats in Rome: but that was not by way of commission, as had all the rest of the gouernours of prouinces.

As concerning Censors, Fr. Ottoman, and Carolus Sigonius (both of them most skilfull [ G] [Sidenote 805 - *] antiquaries) say, That they had well as they writ, Potestatem, sed non Imperium, (that is to say) power, but not commaund a thing altogether impossible: for that the word Potestas (or power) in termes of law, or in the person of a magistrat, importeth alwayes with it power to commaund. And namely Vlpian, where he saith, That the gouernour of a prouince had almost ample iurisdiction and power of life and death; calleth it properly by the name of Potestas. And wee oftentimes in antiquities read, the Censors Edicts, that is to say, their commaundements and lawes. Varro also and Messala call the Consuls, Censors, and Pretors, Maiores Magistratus (that is to say) greater Officers; and the rest, Minores, or lesser. And saith moreouer, That it was not in the power of the Pretors (who yet had both iurisdiction and commaund) to assemble the armie of [ H] the citie, which the Censors might, Praetori exercitum vrbanum conuocare non licere: Consuli, Censori, Interreg•…], Dictatori licere, He said it not to be lawfull for the Pretor to call together the armie of the citie; but yet to be lawful for the Consull, the Censor, the Interrex and the Dictator so to do. And at such time as Hannibal besieged Rome, there was an edict made, That all such as had bene Dictators, Consuls, or Censors, should haue a commaunding power, vntill such time as that the enemie had raised his siege. Placuit (saith Liuie) omnes qui antea Dictatores, Consules, Censoresue fuissent, cum imperio esse donec hostis a muris discessisset. Which they would not haue done if the Censors had not had a commaunding power, whilest they yet were in their office; especially seeing that they which had bene Pretors, had no such power giuen them. Besides [ I] that, if the Tribunes (whom Varro putteth in the number of the lesser magistrats) had power to command, why should not then the Censors so haue, whome he calleth the Greater Magistrats? Yea that more is, Plutarch giueth more authoritie and power [Sidenote 806 - *] vnto the Censors, than to any other of the Roman magistrats: yet attribute I no•…] so much vnto his writings, but that I see him being a Grecian, to be oftentimes deceiued in the antiquities of the Romans. Wherefore that is it which hath deceiued many, that the Censors, although they had power, yet had they no iurisdiction: albeit that Onophrius writ, That the Censors in some cases, and for some crimes had power to condemne men: but what those cases or crimes were, hee sheweth not. For either [ K] they must haue bene publike crimes, or priuat crimes: of priuat crimes the Pretor of the citie iudged, but of publike crimes the Pretor of the publike iudgements, and Triumuiri of criminall and capital causes determined. True it is, that the Censors were controllers of the peoples manners: but there is great difference betwixt the iudging of criminall causes, and the reprehending of mens manners and behauiours. And therefore Cicero said, The Censors iudgement, no farther to touch the partie by them condemned, than to make him blush. And that therefore, as all that the Censors iudgement concerned onely a mans name and credit, so it was called an ignominie or discredit, but not an infamie. For why, he saith not, That the Censors touched any mans honour, to the intent [Page 305] to note it with infamie, but rather with a certaine ignominie, or kind of disgrace, [ A] [Sidenote 807 - *] which many haue rashly abused for infamie; howbeit that there is great difference betwixt infamie & ignominie. Carolus Sigonius hath therein erred defining ignominie to be an infamie: and in the same place saith, That there are certaine capital causes, which draw infamie with them, and yet without crime, contrarie to the principles of the law: Whereby we are taught, that he which is by publike iudgement for any crime condemned, is thereby become infamous: And that the souldiour for his fault worthily by his captaine cassired, was thereby become ignominious, but not infamous, vntill that by the Pretors expresse edict he were so declared. The auntient doctors of the law haue called Ignominie, the infamie of a fact done: Whereof Cassius the lawyer saith, That he thinketh that a Senator put out of the Senat, can neither bee judge, nor [ B] beare witnesse, vntill he be againe restored: howbeit he doth say, That hee doth but thinke so. Which phrase of speech Vlpian also vseth, when as he saith, Se putare ei quae in adulterio depraehensa est & absoluta: notam obesse, That he did thinke, that vnto her that was taken in adulterie and acquited, yet the note thereof was a blemish. For certaine it is, that he which is by iudgement acquited, is safe from the infamie of the law, but yet not from the ignominie of the fact. And Calistratus saith, That hee did also thinke the honour and reputation of a man to be impaired, Quando quis ordine mouet•…]r, when a man is put out of his place. Festus Pompeius also setteth downe three sorts of militarie punishments, viz. Deprehensa, castigatio, ignominia, Deprehensa, saith he, is greater than castigatio, and lester than ignominia; and aboue all these the law addeth infamie. [ C] For otherwise if infamie, and the Censors note of ignominie were all one, the threescore and foure Senators by Lentulus and Gellius the Censors at once displaced and thrust out of the Senat, as also the foure hundred knights, who by Valerius and [Sidenote 808 - *]Sempronius the Censors were cassired, and their horses and publike wages taken from them, had bene also infamous. Yea that more is, all the people of Rome had beene noted with infamie, by the censure of Liuius Salinator, who rased and noted all the tribes, and as Valerius Maximus saith, Inter aerarios retulit, put them all from their freedome, and made them to pay all duties as straungers; For that they had by publike sentence first condemned him, and afterward made him Consull and Censor: only the [ D] tribe Metia he excepted, which had neither condemned nor acquited him, neither thought him worthie of those so honourable offices in the Commonweale. Hee also afterward noted Claudius Nero his companion in the Censorship, who also requited him againe with the like. VVherefore Cicero speaking of the Censorship, thus saith, [Sidenote 809 - *]Illud commune proponam, nunquam animaduersionibus Censorijs hanc ciuitatem ita contentam, vt rebus iudicatis fuisse, I will (saith he) set before you that common matter, this citie neuer to haue bene so contented with the Censors animaduersions, as with iudgements. And bringeth for example C. Geta a Senator, who by the Censors thrust out of the Senat, was afterwards himselfe made Censor. And after that he addeth, Quod si illud quoque iudicium putaretur, vt caeteri turpi iudicio damnati in perpetuum omni honore ac dignitate priu•…]rentur, sic hominibus ignominia notatis, neque ad honorem, neque in curiam [ E]reditus esset: timoris enim causam non vitae poenam in illa potestate esse voluerunt. Quare qui vobis in mentem venit haec appellare iudicia, quae a populo Romano rescindi, ab iuratis iudicibus repudiari, a magistratibus negligi, ab ijs qui eandem potestatem adepti sunt solent commutari? If that (saith he) should also be thought a iudgement, as others with infamous iudgement condemned, they should for euer be depriued of all honour and dignitie: so vnto men (by the Censors) noted with ignominie▪ should bee no meanes for them againe to returne vnto their honour, o•…] into the court: For why, our auncestors would cause of feare, but not danger of life to be in the Censors power. Wherefore [Page 306] how came it into your mind, to call these iudgements, which may by the people [ F] of Rome be reuoked, by the sworne judges be reiected, by the magistrats bee neglected; and of them which haue obtained the same power be vsually changed. Wherby it euidently appeareth the Censors to haue bene without all manner of iurisdiction. For the Pretors had the hearing and examination of the suits of the farmars of the publike reuenewes of all such things as concerned tributes, rents, writings, repairations, and farming out of publike things, made or done by the Censors: for that the power of the Censors was quite different from the iurisdiction of the Pretors. And so with vs (here in Fraunce) power is giuen vnto the gouernours of prouinces, but yet without iurisdiction: except it be, that they by consent of both the parties, take vpon them to decide or determine any matter. And so we may in like sor•…]say, That the Censors [ G] had power to commaund, but without any iurisdiction.

There were also other magistrats in Rome, which had power to command, and iurisdiction [Sidenote 810 - *] also in criminall causes, as those whome they called Triumuiri Capitales, whose power and authoritie extended yet onely vnto straungers or slaues: except perhaps such were the vnworthiuesse of the magistrats, and their corruption, or offence so great, as that the other magistrats did willingly winke at the proceeding of these Capital Triumuiri, & at the publike punishment by them taken vpon such notorious offendors. These Triumuiri beside this had also the putting in execution of all the capitall iudgements of the people, or of the other magistrats.

Now by this discourse of the Roman magistrats and their power, it appeareth, that [ H] in Rome there were some magistrats, who at the beginning of their first institution had no power or commaund, or els power yet without iurisdiction; and yet to haue at [Sidenote 811 - *] length vsurped both. Howbeit I deeme not them to be called Magistrats, which haue no power; well they may enioy some publike honour or charge, but no magistracie. For the true proprietie of the word Magistrat, importeth and draweth with it a power to commaund. And he that will haue regard vnto the phrase and manner of speech of the auntient Latines, and especially of the lawyers, shall find them to haue called the offices with honest charges in the Commonweale, by the word Honores, Honor (saith Calistratus) est administratio Reipublicae cum dignitate, Honour is a gouernment of the Commonweale with dignitie or reputation: and those which beside their honor had [ I] power also to commaund, them they noted by the word Imperia. As in Liuie we see the nobilitie to complaine in this sort, Salios, ac Flamines sine Imperijs as potestatibus relinqui, The Salij and Flamines to be left without command, without power: vnderstanding by the word Imperia, the great estates of the citie, whether it were by commission, or by office, such as had Mase bearers and power to commaund allowed them. And by the word Potestates, meaning the gouernours of prouinces, whome Vlpian the lawyer in proper tearmes calleth also Potestates. VVhich also Alexander Seuerus the emperour meant, when he with a loud voyce saith, Non patiar mercatores potestatum, I will not suffer the buiers of the gouernments of prouinces. [ K]

Now as a man may haue a publike charge without honour, as Criers, Sargeants, Trumpetors, (which in auntient time were slaues, & of the magistrats familie without title of office) and especially the towne clarkes and notaries vnto the magistrats, or Commonweale, vntill the time of Valcntinian, who forbad slaues any longer to haue that charge. So a man may say also, That there are publike charges with honour, without power to commaund; as ambassadours and priuie councellors, secretaries of estate, and treasorours; the auntient Ediles and Questors, and our Receiuers. So also some other there be which haue honorable charge, hauing also the hearing of many causes, and yet without commaund: as the auntient Roman Bishops, and our [Page 307] great Prelats. Others haue honorable charge, with power also to commaund, and [ A] [Sidenote 812 - *] yet without iurisdiction: as the Tribunes of the people, the Censors, and our Gouernours of countries, together with the kings Attourney. Some others there bee also which haue ordinarie, and honorable publique charge, and power to commaund with iurisdiction: and those are they, whom properly we call Magistrats: such as were the two Consuls and Praetors; who were encreased euen to the number of sixteene. As for the Dictators, Gouernours of prouinces, and those whom the Romans called Interreges: and Praefectos vrbi Latinarum feriarum causâ: they had more power and authoritie, then all the other magistrats we haue spoken of: yet were they not magistrats, but commissioners onely, as we haue before showed: albeit that some called them by the common name of Magistrats; but yet not they which knew how properly [ B] to speake. And so oftentimes it happeneth that they which haue the greatest honors, are yet destitute of all power and commaund: as amongst the Venetians the Chauncelour is created out of the people, which is with them the greatest honour; and yet without any power. So the Procurators of S. Marke, are also (with them) highly honored, and in all Commonweales the counsellors of estate, Embasladours, Bishops, and prelates, who haue no commaund, and yet are more respected, than the other little Prouosts, and diuers other judges, which haue power to commaund, and iurisdiction to discide controuersies, with administration of justice both high and low.

There are also publique charges, who haue neither honour nor commaund, but rather [ C] [Sidenote 813 - *] to the contrarie draw after them a certain kind of dishonour: as the Hangmans office; who after the charge committed vnto him for the execution to death, was by the Praetors edicts commaunded still to lodge out of the citie: a custome yet obserued in Tholouse, and in diuers other cities also. Other publique charges also there be, not much more honest, and yet neuerthelesse necessarie vnto the Commonweale, and profitable vnto them that haue execution of the same: to the end that the profit arising thereby, might in some sort couer the dishonour thereof. And vnder this diuision are generally comprehended all publique persons placed in title of office, or in commissions, or in simple dignitie without power to commaund. And in like maner we might diuide all publique officers & magistrats, according to the [ D] diuersitie of the publike charges, which euerie one of them hath: some in matters of religion, other some in the affaires of state; these haue the administration of iustice: others haue the charge of the publike reuenewes, some of the fortification and repairation of publike places, and others the prouision of victuals, and other things needfull: these haue the mannaging of the warres, for the defence of the subiects against their enemies: these the care of the publique health and welfare of the people, and these the ouersight and charge of the high waies, riuers, forrests, ports and passages: all which publicke charges may bee giuen either in title of office, or in commission, or simple dignitie without commaund: or els with a commanding power also, or only by way of the execution of the commaunds of others, such as are the magistrates ministers, [ E] towne clarkes, notaries, vshers, surueyers, sergeants, cricrs. Which so great a mulritude of honours, offices, and publicke charges, to comprehend under the simple name of magistrates, or as the Greekes call it 〈 in non-Latin alphabet 〉], were but to confound the whole discourse of publicke honours and offices, of all magistrates and commissioners together. [Sidenote 814 - *]

Wherefore in euerie Commonweale for the creating of magistrats and officers, and such as are to be implo•…]ed in common charge, three things are chiefly to bee respected: First them that haue the choyce and creation of them: then of what manner of [Page 308] persons choice is to be made: and thirdly in what maner and forme they are to be created [ F] or chosen. As for the first, it is a thing belonging onely vnto the soueraigntie, as we haue in due place declared. And the second, although it most properly belong also vnto soueraigntie, yet for the most part it ordinarily followeth the lawes to that end and purpose established, and especially in the Popular and Aristocratike estates: wherin (as generally in all sorts of Commonweales) offices, and publike charges are giuen vnto men, either for their vertue and wisedome, or else for their wealth, or for their nobilitie; or indifferently for all these things together; for why there is no Commonweale so barbarous, which hath not some regard of these things in bestowing of the offices and publike charges of the state: but which of these considerations were most to be respected, belongeth not to this place to discusse. And as concerning the [ G] third point, which is the manner and forme for the choice and creation of magistrats and officers, it is of three sorts: For either it is done by election, or lot; or by a mixture of both together. Election is made either by liuely voyce, or by holding vp of hands, (which the auntient Greekes called 〈 in non-Latin alphabet 〉]) a thing yet vsed amongst the Swissers: or else by tables or billets, by beanes or stones, and that in two sorts, viz. by open, or by secret suffrages. By lot choice is made of one, or mo of the citisens to be magistrats, or out of all sorts and degrees of the people, at a certaine age, by the laws appointed. Now as for choice to be made by election and lot mingled together, although it be a thing not much vsed in auntient time, yet is it now at this present a a thing most common in Aristocraticall estates, and especially in Genes and Venice. As [ H] the Romans alwaies also did in making choice of the judges of capitall causes, concerning life and death; who were by lot drawne onely out of the order of the Senators, before the law Sempronia, or out of the orders of the Senators and the knights by the law Sempronia also; or out of both those orders, and the Tribunes of the common treasure, by the law Aurelia, the people being still excluded. But in a Popular estate, either must all the citisens together iudge of euerie one in particular, or of the lesser part together, and that without lot or election. (For where the whole multitude of citisens haue authoritie and power, there is no place left for election or lot:) or else must some citisens by lot, or choice, or both drawne out, iudge of euery man in particular: or some, [ I] of some chosen by lot or election onely, or by both together; or else some partly by lot, partly by election taken our of all the estates of the Commonweale, to iudge of some of the other citisens; or else some by lot drawne out of all, with some other taken out of one or many estates of the Commonweale: or part by lot and election drawn out of all, and other part out of a certaine order of the citisens. And thus much concerning all the meanes that can be imagined concerning the varietie of them which haue any publike charge: and for the estate, qualitie, and condition of euerie one of them, with the forme of their calling and imploiment.

Aeschines the orator, diuiding the offices and publike charges of the Athenians, hath cut them much shorter, and more obscurely reckoned them vp, than was fit for so great [ K] a citie, considering that therein were moe magistrats and officers, than in any other Commonweale that then was, for the greatnesse thereof. Hee said, That there were therein three sors of officers: one sort of them which were taken by lot or choice; another of them which had publike charge aboue the space of 30 dayes, such as were they which had the ouersight of publike repairations and buildings; and the third sort, of such as were by the auntient lawes appointed; as commissioners chosen for the warres, or for the administration of iustice, such as were the magistrats. But by this diuision cannot the diuersitie of magistrats and officers be iudged, no more than by that of Demosthenes, (altogether different from that of Aeschines his aduersarie.) For hee saith [Page 309] them onely to be magistrats, which were by lot drawne in the temple of Theseus: or [ A] they to whome the people had giuen extraordinarie power to commaund, or made choice of for captaines. The diuision also of Varro, and Messala, is also too short, who make but two sorts of magistrats in Rome, viz: the great and the little. The great magistrats they called the Consuls, the Pretors, and Censors, as chosen by the great estates: and the other they called the little, as chosen by the common people; the ceremonie of their soothsayers diuination being more solemne in the choice of the greater, than in the choice of the lesser. But better it were to search and find out the essentiall diuisions of magistrats, and such as might serue in euerie Commonweale; as are those by vs alreadie set downe, concerning the charge of magistrats. VVee may also otherwise diuide magistrats into three sorts, in respect of their power. The first may bee called [ B] Soueraigne Magistrats, as owing obediēce vnto none, but vnto the soueraigne maiestie onely. The second are lesser Magistrats, who owe obedience vnto the soueraign Magistrats, and yet haue commaund ouer other magistrats also. The last sort are they which owe obedience vnto other superiour Magistrats, and yet haue no commaund but ouer particular persons onely. Let vs then in order speake of these three sorts of Magistrats, and first of the obedience of Magistrats towards their Soueraigne Prince.

CHAP. IIII. ¶ Of the obedience that the Magistrat oweth vnto the Lawes [ C] and Soueraigne Prince.↩

SEeing that the Magistrat next vnto the Soueraigne Prince, is the principall person in the Commonweale, & vpon whom they which haue the soueraigntie discharge themselues, communicating vnto him the authoritie, force, and power to commaund: it is good reason before we passe further, briefly to touch what obedience he oweth vnto his Soueraigne Prince; which is the chiefe part of his dutie. Now in this the Prince and Magistrat, and both of them do most differ from a priuat [Sidenote 815 - *] man: for that the Prince seeth no man in the state or Commonweal, whome he may [ D] compare or preferre before himselfe; but as one placed in a most high degree, and next vnto the immortall God, beholdeth all his subiects set a great way beneath him: wheras the priuat man cannot by any publike right commaund ouer any other subiect, although that he by priuat and domesticall commaunds rule and gouerne his owne familie. As for the Magistrat, for that he is to regard many persons, hee must oftentimes change his port, his gesture, his speech and countenance, for the good performance of his dutie towards all: which no man can well discharge, except he first know his duty towards his Soueraigne prince, as also how to submit himselfe vnto the other Magistrats his superiours, how to respect his equals, and how to commaund his inferiours, how to defend the weake, to withstand the great, and to doe iustice to all. And that is [ E] it, for which the auntients commonly said, Magistracie or authoritie to declare what was in a man, hauing as it were vpon the stage in the Theatre, and in the sight of all men, to performe the parts of many persons. And so also may we say, A man to show what his office is: For if he be such an one as he ought to be, hee graceth his place: whereas if he bee otherwise, hee debaseth not only the authoritie of his place and office; but euen of the maiestie of the state and Commonweale. So Liuie speaking of Quintus Flaminius, a man vnworthy his high place, saith of him, Non qui sibi honorem adiecisset, sed indignitate sua vim ac ius Magistratui quem gerebat dempsisset, That hee had not (by [Page 310] his office) encreased his honour; but by the vnworthinesse of himselfe, impaired the [ F] force and power of the office which he bare.

Now the better to know what obedience the Magistrat oweth vnto his Soueraign, it is needfull first to vnderstand, what it is that a Soueraigne Prince may of right commaund [Sidenote 816 - *] euery Magistrat to doe. For why, the lawfull commands of Soueraigne Princes are right diuers, and vnlike themselues. Some of them seruing for perpetuall edicts or lawes concerning all persons, of what condition or qualitie soeuer they bee; or but for certaine persons, and for a certaine time, by way of prouision: othersome containe some priuilege or exemption contrarie to the edicts or lawes, for some one onely, or for some few of the subiects: or some graunt not contrarie vnto the law, or some reward for the good, or punishment for the euill, or some office or commission; or else serue [ G] for the expounding of some edict or priuilege, or for the denouncing of warre, or the making of peace, or for raising of souldiours, or for the erecting of Faires or Markets, or for the leuying of taxes, subsidies, fifteenes, new impositions, or loanes: or for the sending of ambassadours to congratulat the good haps of other princes; or to mone their misfortunes, or to entreat of marriages, and alliances, or other such like things; or for the building or fortifying of places to be fortified, for the repairing of bridges, hie wayes, ports or passages, or for to iudge of certaine suits and proceedings in the law, or for the execution of some commaunds, or for the maintenance of letters of iustice, or for the restoring of such as be vnder age, or of full age, or of such as be condemned, or for some particularitie, or for some remission, or pardon, which may bee of diuers [ H] sorts. Of which commaunds so before declared, some containe diuers kinds, as do priuileges and graunts, whether it be for some gift giuen, or for exemption and immunitie from all charges, or from some one: or letters of discharge, or of estate, or to haue the freedome of a citisen, or for to be made legitimat, or for nobilitie, or knighthood, or for the erecting of corporations or colleges, or other such like things. All which letters may be diuided into two sorts, that is to say, into letters of iurisdiction or commaund, or letters of iustice or state. Albeit that the word Iubemus, or we commaund, be as well in the letters of iustice, as in the letters of grace and fauour, as is to bee seene in the lawes and letters pattents of the Greeke emperours. Yet the letters of grace, or which proceed from the onely power and authoritie of the prince, are properly in [ I] Fraunce called Mandements, or Commands; and the secretaries which dispatch them are also called the Secretaries of the Commaunds: whereas the letters of iustice are most commonly dispatched by the other secretaries; beside the difference of the great and little seale, and for the most part the diuersitie of the waxe: or the single or double labell, or the seale hanging in silke of diuers colours, making the difference of the letters to be knowne. The auntient Latines called such instructions as were by princes giuen to their ambassadours, or gouernours of countries, or generals of their armies, Mandata Principum, or Princes Commands, which we do call by the name of of instructions: For so the word Mandat•…] is taken in the law, where Iustinian the emperour saith, That [ K] hee had made a booke of Mandats or Commaundements for the gouernours of prouinces.

But leauing the subtilitie of words, let vs go vnto the matter, and examine the force [Sidenote 817 - *] of the clauses commonly set downe in the letters patents and mandates of princes. And first these wordes, Vniuersis praesentibus & futuris (To all men present and to come) are ioyned onely vnto such letters patents as are to endure for euer: (howbeit that no worldly thing can so for euer continue) but not vnto temporarie edicts made by way of prouision, nor to commissions, nor to any other letters of prouision. But this clause, Quantum satis est &c. (so much as shall suffice) is of much greater importance, [Page 311] & ordinarily ioyned vnto letters which they call letters of iurisdiction or iustice, [ A] whereby the prince leaueth vnto the discretion of him to whom such his letters are addressed, to allow of them, or to refuse them, as his conscience, and the equitie of the cause shall require: which is not in letters of commaundement which leaue nothing vnto him to whom they are directed, except happily sometimes the examination of the fact onely: as in these words, Si paret &c. (If it shall appeare vnto you &c.) In such [Sidenote 818 - *] sort that one may say of all sorts of charters or letters of iustice, albeit that they be granted by the prince, that they import not any commaund or constraint whatsoeuer vnto the magistrat to whom they are directed: But to the contrarie, that by our lawes and customes it is most religiously prouided, that the magistrats or judges should vnto such charters or letters haue no further respect, than in that they were agreeable with [ B] equitie and trueth. And although that the same forme of letters of justice, be graunted in England, as also in Spayne, and other kingdomes; yet so it is neuerthelesse, that it is done rather for the particular profit of some one, than for the greatnes or increasing of the maiestie of the king, (who graunted them by way of benefit vnto the partie) or for any necessitie there is thereof: seeing that the whole is remitted vnto the power of the magistrat, after the graunting of such letters, which was not before the graunt thereof. Which was the cause that the people in the assemblie of the Estates in parliament at Orleans, presented a request vnto the king for the cutting off of this formalitie of letters: as seruing not but to the oppressing of the people, without any profit therout of to be drawne vnto the king or Commonweale. The auntient Greeks and Latins [ C] also neuer knew this forme of letters of iustice: but the magistrats vpon the request of the parties did as much as do our judges vpon the graunt of such letters of iustice. And the clause, Quantum satis erit quod liqueat (so much as may suffice for the manifesting of the matter) is the same which was conteined in the Praetors edicts, in this forme, Si qua mihi iusta causa videbitur, (if any iust cause shall seeme vnto me.) True it is that the power to correct, supply, and expound the lawes, concerning the ciuill iurisdiction, together with the restitution & relieuing of them which had beene circumuented, or deceiued by the formalities of the lawes, (a power before giuen vnto the Praetors by the vertue of their office) resteth now (I know not how) amongst the [ D] marks of soueraigne maiestie; and for this cause the Praetors authoritie and lawes were called honorable; which the interpretors of the law call Nobile officium. Wherefore as offices are confounded, when as the prince conuerteth vnto himselfe such things as belong vnto the magistrat▪ euen so also are the rights of soueraigntie impaired, when as they are by the magistrats vsurped. Now as for the declaration, and correcting of the edicts and lawes, we haue before said that it appettaineth and belongeth vnto them which haue the soueraigntie: But as for restitutions against the extremitie of the law, and all that concerneth letters of justice, it greatly appeareth not that the soueraigne princes haue much troubled themselues therewith, but haue left them to the magistrats to be in their name decided. I except only certain letters of iustice, which passe vnder the great Scale, and whereunto the aforesaid clause, If it shall be iust, If it shall be agreeable [ E]vnto equitie and truth, is inserted: which clause so much displeased a certaine great personage, holding one of the highest places of honour in this Realme, (who vnderstood not the force thereof) as that he would haue raced out the same; saying the maiestie of the king to be thereby impaired▪ howbeit that he was therein to be excused, as being a straunger, and not well seene in the lawes and customes of a straunge countrey. But how could the maiestie of kings be in this respect empaired or diminished? seeing that the auntient kings of Aegipt caused their magistrats solemnely to sweare, [Sidenote 819 - *] neuer to obey their commaundements, in case they commaunded them any thing [Page 312] that was vniust: as we read in the sayings of the Aegiptian kings reported by Plutarch. [ F] Seeing therefore that the allowance or reiecting of letters of iustice directed in the kings name vnto the magistrats, dependeth of the equitie and discretion of the magistrats themselues, it needeth not vs to speake any more thereof. Wherefore let vs now proceed to those rescripts or letters of commaund, which for that they concerne the state of the Commonweale, and publique and not priuat causes, are called rescripts of State; or letters of commaund or state. Concerning which, a double question may be made: One whether such Rescripts or letters of the prince, containing onely the simple examination of the fact, without giuing any further hearing of the matter vnto the magistrat, according to the desert thereof; whether (I say) the magistrat fully informed of the truth of the fact according to the tenour of his letters, ought to proceed to the [ G] further execution thereof being vniust, or to hearken vnto the vniust commaunds of his prince? The other, whether the magistrat hauing neither power to examine the [Sidenote 820 - *] equitie nor truth of a matter, may refuse the vniust commaunds of his prince: the doubt therein being the greater, if they shall be thereunto by the prince more straitly vrged, or expresly commaunded: For sometime princes by their particular and secret letters, vse to request the magistrats; so with couert requests accompanying their vniust commaunds: yea oftentimes in their letters patents their requests are ioyned with their commaunds, because they would not seeme to wrest all things from them against their wils; but to request many things of them: as when they say, We pray and commaund you, wherein the prince seemeth as in nothing more to derogate from his soueraigne [ H] maiestie: for if the thing be iust and honest which hee commaundeth, what needeth requests? if vniust or dishonest, why doth he commaund it? Now the magistrat is neuer to be requested to doe his dutie, or intreated not to doe wrong, or that which is vniust or dishonest, as Cato the Censor saith. Besides that, to commaund is a thing incompatible with request. It is wisely said, 〈 in non-Latin alphabet 〉], [Sidenote 821 - *] Tyrants requestes to bee commaunds: wherefore let vs suppose nothing to be more straitly commaunded, than that which the prince seemeth by fyled speech or intreatie to persuade. Wherefore to resolue this point, if the princes letters giue vnto the magistrat neither the examination nor the hearing or disciding of the [ I] fact, or of the right and truth of the cause, but that onely the execution of the princes commaund be vnto him committed: the magistrat in this case may not in any sort take vpon him the examination or hearing of the matter; except the letters of commaund be notoriously false, faultie, or absurd, and contrarie to the lawes of God and nature (as we read of the commaunds of Pharao and Agrippa:) or else to robbe and spoile the poore people; as in our time Albert Marques of Brandeburg, who amongst other his notable cruelties, set vp sundrie gibbets in all such townes and cities as he had taken in, threatning his souldiours to hang them thereupon, if that contrarie to his commaund they should spare to robbe and spoile the poore inhabitants: albeit that he had neither true, nor yet any colourable cause, for his taking vp of armes against his [ K] countrey. Now if a man subiect vnto a particular Lord or Iustice, be not in law or right bound to obey him passing the bounds of his territorie, or the power to him giuen, (albeit that the thing which hee commaundeth be both iust and honest) but may well refuse his commaund: how should the magistrat then be bound to obey or to put into execution the princes commaunds in things vniust and dishonest, the prince in this case transgressing and breaking the sacred bounds of the lawes both of God and nature? But some will say, no prince to be found so euill aduised, nor that it is to be supposed that he would commaund any thing contrarie vnto the lawes of God and nature: and true it is; for why he worthily loseth the title and honour of a Prince, which [Page 313] departing from reason, and forgetting the dutie of a prince, breaketh the lawes of [ A] God and nature.

We haue before (as we suppose) sufficiently enough declared, what and how much [Sidenote 822 - *] a prince may doe by the right of his soueraigntie, from whence many things may be deriued pertinent vnto this question here in hand: for why it is not well to be vnderstood what obedience is by the magistrat due vnto the soueraigne maiestie, except the rights of Soueraigntie be before well vnderstood and fully knowne. But here the question is, what commaunds of the prince, and how farre the magistrat ought to execute the same? for sometime dishonest and vniust thinges are by princes commaunded, which the euill magistrats themselues do more willingly, and shamefully put in execution, than they were by the princes commaunded. As not long agoe in the time of the [ B] ciuill warres, (wherewith all Fraunce was on a light fyer) the president of the court of Normandie (whose name deserueth to be buried in perpetuall obliuion) beeing commaunded extraordinarily to leuie thirtie thousand crownes of them which professed the reformed religion, extorted from them three hundred thousand; and for so doing (the calamitie of the time considered) receiued a great reward. Howbeit that Tiberius the emperour (a man of incredible crueltie) sharply reproued the gouernour of Aegypt for exacting more of the subiects than he was commaunded: saying, Tonderioues meas non cutem detrahi volo, I would haue my sheepe shorne, but not flaine. If therefore the commaundement of the prince be not contrarie vnto the lawes of God and nature, the magistrat is to put it in execution, although it seeme to differ from the lawes of other [ C] nations: which lawes it is not against nature for the princes to chaunge, for the profit or disprofit of their Commonweales. For albeit that the princes (as wee haue said) ought to keepe the oath by him made vnto his people, if hee haue so bound himselfe by oath; and although hee were not by oath so bound, yet neuerthelesse of duetie ought to keepe the lawes and customes of the estate and Commonweal whereof hee is soueraigne: yet for all that wee must not thereof conclude or gather, That if the prince doe in that case commaund any thing contrarie vnto his oath or the duetie of a Prince, that the Magistrat is therefore to refuse to obey his commaund. Forasmuch as it belongeth not vnto the Magistrat to examine or censure the doings [Sidenote 823 - *] of his prince, or to crosse his proceedings concerning mans lawes, from which the [ D] prince may as he seeth cause derogat. Yet if the Magistrat bee commaunded by the Prince to abrogat an auntient law, being more vpright and profitable to giue way vnto another lesse iust, and lesse profitable for the Commonweale; he may stay the execution of such a law or commaundement in suspense, vntill he haue shewed his reasons therefore vnto the prince, which he is in dutie bound to do, not once, but euen twice or thrice: and then if the prince notwithstanding his remonstrances, will not by him be aduised, but refuse his wholsome and profitable admonition, and will needes haue the law to passe further; then the Magistrat (as hauing alreadie done his dutie) shall put it in execution: which he may also at the first commaund of his prince doe, if the delaying thereof be daungerous. And to that end and purpose tendeth that which is by [ E]Innocentius the fourth written, before he was Pope, That Magistrats ought to put in execution the princes commaunds, albeit that they be vniust: which is to bee vnderstood of ciuill iustice and vtilitie: but not if such commaunds bee contrarie to the lawes of nature. Which interpretation may serue also for the right vnderstanding of that which the lawyers say, That the prince may derogat euen from the law of nature. VVherin [Sidenote 824 - *] their meaning is, from the law of nations, and common constitutions of other people: least any deceiued by the obscuritie of the words, or equiuocation of the law of nature, should thereby rashly presume to breake the sacred lawes of God and nature.

[Page 314] Now if any man shall obiect and say, That the emperour Anastasius expresly commaunded, [ F] That the judges and Magistrats should not so much as suffer men to produce the princes rescripts or letters graunted vnto particular persons, contrarie to the generall edicts or lawes: Mine aunswere is, that that is to be vnderstood, if in such the princes rescripts or letters no speciall clause be comprehended, derogating from the generall lawes: notwithstanding which derogation, yet the Magistrat ought neuerthelesse to aduertise the prince thereof, and to put him in mind of his dutie: who if he be not by the Magistrats reasons to be remoued from his former opinion, but command the same the second time, the Magistrat is then to obey his commaund, although the thing so commaunded be not agreeing with the common profit, and contrarie vnto the lawes. For why, the Magistrat hauing so done his dutie, is not to expect but the [ G] second commaund; as is by the law prouided. To the example whereof the edict of Charles the ninth was made, concerning the magistrats admonitions vnto their prince. So long before this Theodosius the Great, at the request of Saint Ambrose the good bishop of Milan, made a law, whereby he willed, That the execution of his letters pattents and commaunds, should be holden in suspense thirtie dayes after the signification thereof, when he had commaunded any to be more rigorously punished than the vsual manner and custome was. The occasion of the making of which law was, the execution of seuen thousand Thessalians, put to death by the commaundement of this Theodosius, for that they had murthered and slaine certaine of his Receiuers and Magistrats. For which cause Saint Ambrose excommunicated the emperour, neither would suffer [ H] him to be reconciled, vntill he had made the aforesaid law. And hereof (as I suppose) proceed those rescripts, which are yet vsed by the bishops of Rome: the first called Monitorie, the second Iussorie, and the third Executorie; or as we say in English, Edicts of admonition, of Commaund, and of Execution.

The same opinion we are to haue, if the prince by his letters patents command the [Sidenote 825 - *] Magistrat to proceed to the execution of the penaltie vppon them that haue offended against such his edicts and lawes, as by the antiquitie of themselues, or by the negligence of the Magistrats seeme to haue bene quite forgotten and abrogated. For why, the long sufferance of the prince, and conniuence of the magistrats, in the sight and [ I] knowledge of whome the lawes are so broken, remitteth the penaltie due by the law: which could not otherwise haue bene infringed, by the abuse of them which transgressed the same, had it by the prince or magistrat bene still looked vnto. And therefore the magistrat ought not rashly to proceed to the execution of the penaltie of such forgotten or neglected lawes, before he haue caused the same to be againe republished, being by his default before neglected. Yea the prince ought rather to proceed against his magistrats, who through their remisse negligence haue suffered his edicts and lawes to be contemned. For otherwise it should be a thing verie vniust and sauouring of tyrannie, to make edicts and lawes, and after long neglecting of them, vpon a sodaine to proceed against them, who by the example of others, had transgressed against them, seeing [ K] others before them to haue escaped vnpunished. Which was one of the tyrannicall slights of the most cruell emperour Nero, as of other auntient tyrants also. Wheras the good emperour Traian to the contrarie commaunded Plinie gouernour of the lesser Asia, of new to publish such edicts and lawes as were any wise before buried in obliuion, by the disobedience or errour of his subiects, or the sufferance of the magistrats: for that a common errour is reputed for a law, if the errour bee not against the law of nature, against which no errour can probably be pretended.

But some man may aske, Whether the magistrat owe obedience vnto such his princes commaunds, as shall vnto him seeme contrarie vnto the law of nature, albeit [Page 315] that indeed they be not contrarie thereunto? For the equitie and reason which we call [ A] [Sidenote 826 - *] naturall, is not alwaies so cleere and manifest, but that it findeth impugners. Yea oftentimes the greatest lawyers and philosophers are therein intangled, and of quite contrarie opinions, and the lawes of people are therein sometime so repugnant, as that some of them appoint reward, and some others punishment for the selfe same fact, whereof bookes, lawes, and histories are ful, all which to prosecute were a matter infinit. Wherunto I aunswere, that if that which the auntients say may take place, a man neuer ought to doe that whereof he doubteth, whether it be iust or not; and much lesse ought hee so to doe, if he be thereof certainly persuaded that the thing which the prince commaundeth, is of it selfe by nature vniust. But if question be of ciuill iustice onely, the [Sidenote 827 - *] magistrat ought in such case to verifie and put in execution his princes commaunds, although [ B] he thinke them to be in ciuill equitie or law vniust. And therfore the magstrats in euerie Commonweale were compelled to sweare to obserue the lawes and ordinances; to the end they should not call into dispute or question, that which they ought to hold, as before resolued vpon. And this was the manner and custome of the Romans when the old magistrats receiued the oath of the new, before they entred into their charge: which was commonly done vpon the calends of Ianuarie, in the capitoll, after solemne sacrifices there made: for otherwise the magistrat lost his place of estate, if hee tooke not his oath within fiue daies after. Yea sometimes the Tribunes which held the estate of the people constrained them in particular which had withstood the publishing of a law, to sweare to obserue the same, after that it was once published, and that [ C] vpon the paine of banishment. So L. Metellus Numidicus was by a decree of the people banished, for refusing to sweare vnto the lawes published at the instance of the factious Tribune Saturninus. So also after that the lawes of Lewes the twelfth were published in the high court of the parliament of Paris: for that many disliked of the same, the kings atturney generall there made a request, That they might be duely obserued, and prohibition giuen for any man to call them in doubt, and that vpon paine of high treason; as is to be seene in the records of the court. For why, it is lawfull for [Sidenote 828 - *] euerie man before the publishing of the law, to despute and reason of the equitie thereof: which to doe after the publication thereof, is not lawfull. And so, before that, when [ D] as king Lewes the eleuenth had commaunded certaine vniust decrees of his to be published in the court of the parliament at Paris: the court refused to yeeld thereunto, for that they seemed vnto euerie man vniust: but the king neuerthelesse still vrging his former requests, ioyned thereunto grieuous threats also; as that they should loose their heads that would not yeeld thereunto. Which thing Lauacr•…]e, president of the parliament [Sidenote 829 - *] vnderstanding, accompanied with the rest of the judges of that honourable court in their red robes, came vnto the king, not to excuse the fault by him and the rest committed, in refusing the kings vniust decrees, but to show the reasons of their such refusall, and to request, That he with the rest might rather bee put to death, than enforced to giue their consent to the publishing of the propounded lawes. The king beholding the grauitie, the port, and dignitie of these persons, and almost abashed with the so constant [ E] resolution of such his great magistrats, and withall doubting the power and authoritie of the parliament, caused those his decrees so much misliked, to bee abrogated, and in their presence torne in peeces, requesting them to continue so still to maintaine iustice; solemnly protesting neuer more to send vnto them any edict which should not be both iust and reasonable. It is a wonderfull thing to say of what power and moment this thing was to keepe the king within the bounds of reason, who otherwise had alwayes vsed his absolute power and commaund. As before hee came vnto the kingdome, being as yet Dauphin, he caused the presidents of the court of Paris to bee [Page 316] called before him▪ to rase out the clause, De expresso mandato (by expresse commaundement) [ F] which the court had caused to be put vnto the confirmation of the priuileges graunted vnto the countie of Maine, protesting, That he would neuer goe out of the citie, vntill it were done, or yet take vppon him the charge by the king committed vnto him. Whereupon the court indeed commaunded those words to bee cancelled: but yet that the cancelling might appeare, commaunded the acts to be kept, which are [Sidenote 830 - *] yet preserued vndefaced. Now these words, De expresso mandato, and De expressissimo mandato, whereunto these words are also sometimes annexed, Multis vicibus iterato (or oftentimes repeated) which are many times to be found in the records of soueraign courts ioyned vnto the publication of the princes edicts and decrees, haue this illation or meaning, that such edicts and priuileges (graunted by the princes expresse commandement) [ G] should not be so precisely kept, but that shortly after they might by the sufferance of the magistrats be againe forgotten and neglected, as not much regarded. And by this secret of the courts, hath the state of this kingdome bene preserued in the greatnesse thereof: which otherwise would haue bene ruinated by the flatterers of princes, who by such extorted priuileges scrape vnto themselues whatsoeuer they desire: and the good kings not stil able to satisfie the hungry courtiers, sometimes wel eased, which haue vsed these restrictions, being so of their subiects well beloued, the confirmation of such edicts and priuileges not carrying with them any effect vnto the subiect, or disobedience vnto the king to giue good words, or charge of conscience vnto the magistrat in not performing it. [ H]

But yet farther question might be made, VVhether a magistrat may bee suffered to [Sidenote 831 - *] giue vp his place, rather than he will allow an edict, a commission, or commandement from his prince, which he for certaine thinketh to be vniust and contrarie vnto naturall reason, when as the equitie of it is called in question, & especially if the other magistrats and multitude of the people shall hold it to be iust, contrarie to the others. For the force of iustice, and power of vpright reason, is not perceiued but of the fewer and wiser sort: and a wise man being as it were the rule of reason, is of all others the greatest enemie vnto the multitude. VVhich if it be so, why should a wise man bee enforced to giue his consent vnto the multitude of mad magistrats. In which case I say, that the magistrat is not to be suffered to giue vp his place, if it please not his soueraign [ I] prince he should so do, but ought rather to bee constrained to obey his princes commaunds, if the equitie thereof being called in doubt, be approued by the greater part of the magistrats, which haue charge to confirme such edicts: For otherwise if they should be permitted to giue vp their places, rather than to passe an edict approued by others, it would open a perilous gap to all the subiects, by their example to refuse and reiect the edicts and commaunds of their prince: and so euerie one in his charge might leaue the Commonweale vnto danger, and expose it vnto the tempest, as a ship without a Rudder, and that vnder the shadow of an opinion of iustice▪ which may haply be but a deuise of a subtill braine, to no other purpose than to contradict the more common [ K] opinion. And therefore among the most lawdable laws made by Lewes the xij, there is one which importeth, That if the judges be of three or moe opinions, those which were the fewer in number should be constrained to conforme and ioyne themselues vnto one of the greater parties, for the concluding of the decrees. VVhereupon the court of Paris of long time doubted, whether this law should be published or not: for that it seemed a very hard and a most strange thing vnto many, to force the conscience of the judges contrarie to their owne opinions, and so enforce them to iudge contrarie to that they ought, and that especially in such things as were committed vnto the wisedome and deuotion of the judges, as are almost all both publike and priuat [Page 317] iudgements. Yet neuerthelesse after the court had considered of inconueniences which [ A] it saw ordinarily to arise vpon the varietie of opinions, and that the course of iustice, and the concluding of many good decrees, was thereby also often letted, the court confirmed the aforesaid law, which by processe of time hath bin found to be most iust & profitable. Hereunto also agreeth the maner and custome of the antient Romans: for their judges oftentimes to change their opinions, and to ioine themselues vnto the greater part, albeit that they were not thereunto constrained. As is to bee seene in Plinie, of a iudgement wherin one part of the iudges had condēned the guiltie person vnto death, another part had cleerely and fully acquited him, and the third part had for a time banished him: in this diuersitie of opinions, as well they which had before acquited him, as they which had condemned him to death, consented both to them which would haue [ B] him banished. But our law is in that point better, which compelleth the fewer to ioyne themselues vnto the more. For in all corporations & colledges reason would, that that which pleaseth the greater part should take place and preuaile, as strengthened with the most voices. Howbeit that in all such consultations and actions the rule of the auntient wise neuer faileth; which willeth, That of many honest and profitable things propounded vnto vs, we should chuse those which be most honest, and most profitable: and so of many inconueniences and daungers, to make choice of the least: for otherwise mens actions should neuer sort to good end. And a man may also say, That the equitie of a law is not properly naturall, if it bee obscure or doubtfull; for that true naturall iustice is more cleere and resplendent than the brightnesse of the sunne, as not [ C] wrapped vp in obscuritie, nor depending of the erroneous opinions of men, but of the most cleere and immutable wisedome of the euerlasting.

And yet neuerthelesse since the law of Lewes the xij. I find not that any magistrat hath giuen vp his place, as fearing to be inforced to maintaine or yeeld to any opinion contrarie vnto his conscience: and especially since the places of justice were giuen vnto men for vertue, and not for reward and fauour. Neither hath the law of Lewes the xij. at any time constrayned the judges to iudge contrarie vnto their conscience, but hath rather silently giuen them leaue to giue vp their places; howbeit that it were more equitie so to constraine them, than to leaue it vnto their will and pleasure. For which cause the kings Attourneyes general haue oftentimes constrained the Iudges to iudge [ D] according vnto Lawes and customes of the land, albeit that all the Iudges were of contrarie opinion. As I remember that whilest I was at Tholouse, one Bartholomew President of one of the Chambers of Inquirie, seeing all the counsellours of his court of one and the same opinion in a suit, and directly against the law: after he had assembled all the rest of the courts vpon the matter, he constrayned them to change their opinions, and to iudge according to the law; And that iustly also: for who enforced thee to seeke for thine office? or to accept of it being offered thee? and hauing taken it vpon thee, (being happily got either by suspending of voices, or by sure, or briberie,) and being sworne, wilt thou now forsweare the lawes, which thou mightest before haue red, or at least wise oughtest to haue red? wilt thou by thy false opinion of the law and [ E] iustice, wrong the place thou bearest? delude the lawes? or forsake thy prince and Commonweale.

Yet sometime it happeneth that such lawes as of themselues seeme vnto euery man [Sidenote 832 - *] most iust, may vpon some suddein occurent appeare and proue to be most vniust. In which case, whereas the wrong is in the fact presented plaine and euident, wise magistrats vse to certifie the king thereof, (as I remember it to haue most oftentimes bene done in the parliament at Paris,) who imparting the matter vnto his Counsell, doth as he seeth cause derogate from the positiue law; or adde some thing vnto the same: [Page 318] (which our men call the exposition or declaration of the law) a thing properly belonging [ F] vnto the soueraigntie of a Prince, as we haue before declared. So that in this case, it is not lawfull for the magistrat to iudge against the law, although he may suspend his sentence vntill that the Princes pleasure be further knowne. But otherwise the law being cleare and without difficultie, the magistrat is to iudge according thereunto without disputing of the equitie thereof: for otherwise if the judge shall wittingly and wilfully iudge contrarie vnto the law, he is by the lawes themselues noted of infamie: but if he shall so iudge of ignorance, or supposing himselfe to iudge according vnto the law; he is not therefore to be accounted infamous: howbeit that such his iudgement is of it selfe void, as if it had not beene giuen at all, in such sort as that a man by the auntient Roman law need not at all to appeale therefrom. [ G]

Now there is great difference whether question be of the lawes alreadie established, or of those which yet are by the magistrat to be published. For why, such as be alreadie established, euery man is bound to keepe, and especially the magistrats, who if they wittingly swarue therefrom, (beside the penaltie appointed by the law) are subiect also vnto the note of infamie, as periurours and forsworne men. But as for such Edicts and [Sidenote 833 - *] lawes as are not yet published, but are but as yet presented vnto the magistrats to be confirmed and published, of them it behoueth the greater magistrats (to whom the publication of lawes especially appertaineth) well to consider, and to show the reasons if they shall dislike of them vnto the prince, albeit that it concerne but the particular interest of some one priuat person; but much more, in case it concerne the great harme [ H] or good of the Commonweale: which good if it be verie great, may in some sort couer the iniustice of the law; (as the auntient states-men say.) Yet must we not proceed so farre in respecting of the publike profit be it neuer so great, as therefore to forget reason, and to be caried headlong with wrong and iniustice: as were in auntient time the Lacedemonians, who measured all iustice by the common profit, whereunto they directed all their lawes, all their iudgements, and counsels; so that if that were once in question, neither oath, nor reason, nor iustice, nor yet the law of nature was by them [Sidenote 834 - *] once respected. But much better it were for the Commonweale, and more beseeming the dignitie of the magistrat, of himselfe to giue vp his office (as did the Chauncelour [ I] of Philip the second, duke of Burgundie) than to giue way vnto a law that is contrarie vnto the lawes of God and nature, or that in euery mans iudgement seemeth to be dishonest or vniust; howbeit the Duke seeing the irremoueable constancie of his Chauncelour, readie to giue vp his office, thought it better to reuoke such his commaunds, than to want so stout & wise a man. Which so constant resolutions of the magistrats, hath oftentimes preserued Princes from infamie, lawes from decay, and Commonweales [Sidenote 835 - *] from destruction. But when such constancie cannot heale the diseases of the Commonweale, or faults of soueraigne princes; and that the prince commaundeth the magistrats, to haue his actions excused vnto his subiects; it is much better for the magistrat to obey his commaund, and in so doing to couer and burie the memorie of a [ K] wicked fact alreadie done, than in refusing so to do, to irritate the prince to the doing of worse; and so (as they say) to cast the helue after the hatchet. As did Papinian the great Gouernour of the empire, (and by Seuerus the Emperour in his will appointed Tutor vnto the yong emperours Anthonius Caracalla, and Geta his sonnes) who by Caracalla commaunded to excuse vnto the Senat the murder by him committed vpon the person of his brother Geta, would therein do nothing, but cut him off with this sharpe and short answere, saying, That murthers were more hardlie excused, than committed: which was of him more stoutly then wisely said. For Caracalla with this aunswere enraged, and yet not satisfied with his brothers blood, in his rage commaunded [Page 319] Papinian also to be slaine: and after the death of him so great a man, (as who alone [ A] might haue gouerned the furious yong prince, and repressed his rage) neuer ceased without any contradiction or controulment to kill, murther, and tyrannize, vntill such time as he had brought himselfe together with the Empire vnto destruction. Which I would not haue to bee so vnderstood, as spoken of vs in any respect to impaire the worthie praises of so notable a man, (for that can in no wise be done) but that magistrats may hereby vnderstand, how farre they are to beare with the saults of princes, which once done, cannot by them be amended. For had Papinian couered that he could not now amend, he had saued his owne life, and counterpeased the tyrannies and cruelties of the Emperour, who alwaies before had him in greatest honour and regard. Which fault in Papinian I haue thought good to note, for that many haue [ B] right highly commended him for the same▪ without respecting, that such his resistance auailed nothing, but brought an irrepairable losse vnto the affaires of the empire, being so depriued of so great a personage, as might therein doe more than any other; for that he was a prince of the blood, and the greatest magistrat in the state. But had the matter then stood whole and entier, and that the Emperour had commaunded him to put his brother Geta to death, he had then done both stoutly and wisely in refusing so to doe, and had had iust cause rather to die than to consent to that vnnaturall fact, for one brother to murther another. But Seneca and his companion Burra (the gouernors of Nero) shall be for euer blamed, as hauing no excuse to pretend for their most wicked counsell, persuading Nero to kill his mother, who by chaunce had escaped drowning: [ C] which most cruell counsell, commaund, or fact, shall together with the authors thereof be for euer crowned with eternall infamie and shame.

But what if the prince shall command any thing to be done, and that the same thing [Sidenote 836 - *] being begun to be put in execution, he changing his mind shall reuoke his former commaund; shall the magistrat in this case stay from proceeding any further, or go on with that he hath begun? Whereunto a man at the first sight would say, That he ought to stay and to proceed no farther: following therein the maximes of the law. Howbeit to aunswere rightly thereunto, the matter is by distinction to be opened; that is to wit, that if the thing so begun may be left off without the publike harme, it is then so to bee [ D] left off according to the last commaund: but if it be so begun, as that it cannot bee left off, whithout the manifest hurt of the state and Commonweale; the magistrat in this case is to proceed on with that he hath so begun, notwithstanding the latter countermaund, and that especially in matters of warre; as wee haue before said. And to this [Sidenote 837 - *] purpose Marcellus the Consull saith, Multa magnis ducibus sicut non aggredienda, ita semel aggressis non dimittenda. As many things are not of great captaines to be at all taken in hand: so being once by them vndertaken, are not by them to bee againe giuen ouer. And this in time of warre. But if at home the magistrat following the commandement to him giuen, hath begun to execute the condemned, or them that the prince hath commaunded to be put to death, he ought forthwith to surcease from any further execution, if the commaundement be reuoked: and not to do, as did the Consull Fuluius, [ E] who hauing taken the citie of Capua, as he was punishing the authors of the rebellion, and had now caused the greater part of the Senators of that citie to bee beheaded, receiuing letters from the Senat of Rome, willing him to stay and cease the execution, put those letters in his bosome, without reading of them, & doubting of the contents thereof, proceeded to the execution of the rest, vntill he had put to death fourescore of them. True it is, that the Senat had no power in any thing to commaund the Consuls (as we haue before said) yet for all that, the gouernours of prouinces, and the generals of the Roman armies, yea a•…]d the Consuls also, vsed most commonly to be obedient [Page 320] vnto the Senate, and to yeelde vnto the decrees thereof, as vnto lawes. And truely [ F] the principall cause why they of Gaunt put to death sixe and thirty of their lawyers, after the death of Charles Duke of Burgundy, was for nothing else, but for that they had condemned a citisen to death, after the death of the Duke; before they were againe confirmed in their authoritie and office, although it was not a thing altogether necessarie; as with like examples wee haue declared. Yea it is almost a perpetuall thing, for them which are in authoritie and haue power to commaund, to bee able of their owne right to execute that was commanded them, yea after that the time of their authoritie is expired, if he that gaue them the authoritie and charge knowing and wittingly shall dissemble the fact, or not forbid it when he might.

Now all that we haue hitherto said, is to be vnderstood onely of such letters or rescripts [ G] of commaund, as yet carrie with them no power for the magistrat to examine the fact or matter they concerne. But then what shall wee say, if such rescripts or commaunds report such things as certainely knowne and true, which yet are neither publikely, nor vnto the magistrat so knowne to be. Heere we must againe consider, whether [Sidenote 838 - *] the examination of the matter, be by speciall commaund expresly taken from the magistrat, or else left vnto him: if it be left vnto him, there is then no doubt, but that the magistrat may and ought to enquire of the truth of such things, as are reported in the princes rescripts or letters: but if al examination of the matter be taken from the magistrat, then some doubt, whether he may inquire of the truth thereof or not; and especially if it be expressed in the rescript or mandate, that the prince being well enformed [ H] of the truth, commaundeth the magistrat to proceede to the execution of his letters or commaunds: howbeit the best opinion is, that the magistrat both in the one case and the other, ought to examine the truth of the matter. For when to inquire of the truth of the cause, is neither forbidden nor commaunded, although it bee expressed in the princes rescripts or letters, to proceede to execution, yet ought the magistrat neuerthelesse to examine the truth of the mater. And to the intent, that the magistrats should not pretend to excuse themselues by ignorance, the emperour Constantine, prouided by an expresse law, that the magistrats should inquire, whether these things were true or not, which were set downe in his rescripts or letters of commaund, whether it were so in them expressed, or left out. And as for the other point, if in the rescripts or letters, [ I] it be expresly set downe to proceede to execution, for that the prince is well enformed of the truth of the matter; yet neuerthelesse ought the magistrat to examine the truth thereof: notwithstanding the clause which I haue said, which ought not to hinder the examination of the matter, nor to be preiudiciall to any other mans right; and so much lesse vnto the publike, and least of all vnto the truth: and so generally, all such narratiue clauses as are but reported in rescripts, mandates, commissions, lawes, priviledges, testaments, and sentences, cannot be any thing preiudiciall vnto the truth. And albeit, that during the tyranny of the Sforces, they made a law, that all faith and credence should be giuen vnto the princes commaunds and letters; yet was the same law againe [ K] disanulled, after that they were by the French, driuen out of the estate of Milan. And if the faith and credite must needes bee giuen vnto the narratiue clauses of princes rescripts and letters of commaund, that is to bee vnderstood, onely of such clauses, as whereby the obscure places of their edicts, and lawes, commissions, mandates, or iudgements are expounded, which none can better declare, then they themselues that made them; howbeit, that such their declarations ought rather to be called decrees, then expositions or declarations. But if the prince shall in the bestowing of offices, places of charge, or other his grants in his rescripts or letters, testifie for the fidelity, integrity, wisedome, or religion of any man, it is so farre from, that the magistrat should rest contented [Page 321] with that testification, as that hee ought therefore with greater diligence to inquire [ A] [Sidenote 839 - *] of him, for that the prince supposed him to be indeede such, and would not haue such benefits or preferments bestowed vpon an ignorant or vnwise man. But contrary wise, if the prince shall simply giue vnto any man an office or place of commaund, he is no farther by the magistrat to bee inquired of, for that the prince in his wisedome hath thought him worthy such honour and place; if the prince first giue him not leaue so to doe, or that the custome of the country so require: as in the latter times they did in Rome; but afterwards, almost •…]ery where: but especially in the appointing of iudges. So also in antient time, in the raigne of the Gothes, triall was made of the Senators, before they were to bee admitted into the Senate. For Theodoric, king of the Gothes, writing vnto the Roman Senate, for the receiuing of a new Senator, saieth, [ B]Admittendos in Senatum examinare cogit sollicitus honor Senatus▪ the care (we haue) of the honour of the Senate, causeth vs to examine such as are to be admitted into the Senate.

But if any man vnder a false pretensed colour shall encroach vppon the prince the profits and commodities vnto him graunted, being in the princes rescript expressed, yet is he thereof by the magistrat to be embarred; and the rather, if the common treasure be with immoderat gifts exhausted: vnto which disease euerie where spreading, remedie might be giuen, if the law of Valois concerning gifts might take place. For Philip Valois the French king, commaunded those gifts and graunts to bee reuoked from them, who in the letters of such gifts or graunts, had not expressed what they or any other [ C] for them, had for the same cause in the letters of their graunts, before obtained; which yet also is in vse in Millan. For seeing that it much concerneth the Commonweale what money and profit, what rewards, and priuileges, euery man obtaine•…]h, the magistrats [Sidenote 840 - *] must thereunto haue a most vigilant eye, and especially in popular estates, wherin as all publike things lie open vnto the spoyle of all men; so for the same cause occasion is ministred vnto the seditious, to the trouble and oftentimes to the ruine of the Commonweale. And for this cause it was most straitly prouided by a law in the twelue tables, that no priuilege or dispensation might in any wise be graunted, and that vpon paine of death, but onely in the great assembly of the whole estate of the people: the words of the law being these, Priuilegia nisi Commitijs Centuriatis ne irroganto, qui [ D]secus faxit Capital esto,•…]et no priuilege be graunted, but in the great and general assembly of the people: and he that shall otherwise doe, let him die the death. And after that Constantine the emperour writing vnto the people, saith, Nec d•…]mnosa fi•…]co, nec legibus contraria impetrari oportet,•…]t is not fit, things hurtfull vnto the common treasure, or [Sidenote 841 - *] contrarie vnto the laws, to be obtained▪ howbeit that all priuileges are directly contrarie vnto the law; for otherwise they should not be priuileges. And i•…] it bee so, that they must needs passe after the second commaund (as we haue before said) yet beseemeth it the magistrat to cut them short, and to interpret them in strictest maner that he can, and to the least hurt of the Commonweale, as things odious, and contrarie vnto the law; and not by fauourable interpretations to encrease their strength, or to draw [ E] them into consequence, as heretofore haue the judges and the clergie, which by their faire gloses, haue drawne the profit and priuileges graunted onely vnto souldiors, vnto themselues also; vsing these faire gloasing words, of worldly Souldiours and heauenly Souldiours: so laying all the burthen vpon the poore countrey man, vnto whom the same priuileges ought of better right to be communicated than to them.

But for that our purpose is not here to enter into the disputing of priuileges, which [Sidenote 842 - *] were a thing infinit, sufficeth it in passing by, in generall to aduertise the magistrat to haue speciall regard vnto the priuileges by princes graunted, and most straitly to examine [Page 322] them, what good report soeuer the prince therin make of him that hath obtained [ F] such priuilege: For that euery man well knoweth, that the prince oftentimes knoweth not them to whome such priuileges are graunted; vnworthy men still not so much obtaining them, as indeed wresting them from princes, euen as it were against their wils: no craft or subtiltie in this case left vnsought out, to defraud the lawes, and abuse the prince and magistrats, and that with so many shifts and quirkes of words, and so much deceit, as that they seeme hardly to be by the magistrat to be met withal, but by plaine force. Such is that clause, De motu proprio (of our owne meere motion) which inuented at Rome, hath from thence crept abroad into all Europe. For why, there is almost neither king nor kesar, which when question is for the breaking of a law, or repealing an edict, or for giuing way vnto dispensations and priuileges, ioyneth not thereunto [ G] this clause, De motu nostro proprio (Of our owne proper motion) howbeit that the same princes haue bene importuned, and as it were enforced to graunt that euen vnto vnknowne and most vnworthy men, for whome they haue bene so importunatly requested. There is at Rome a field called Flory, or Flourishing, not so much for the plentie of flowers, as of witnesses that are therein; out of which euerie man may take testimonies, for the bestowing of benefices vpon them which dwell euen in the remotest places of Asia and Affrica, and that with these words, De motu proprio. By which onely clause, all the fraud and deceit of them that sued for preferment, be they neuer so bad or vniust, are easily excused: and by vertue of which words the examination of all slye incommings or craftie intrusions, cease, if wee will receiue the opinion of some [ H] most pernitious and daungerous vnto the state: but such sleights and deceits wee haue long since bid farewell out of our Commonweale. And for that princes and magistrats circumuented with the wiles of deceitfull men, could hardly, or not at all escape the same, it was wisely decreed, That the princes rescripts, nor letters pattents, should be of none effect, except they were presented vnto the magistrat the same yere that they were obtained; neither should be of any force, before they were by the magistrat approued. And yet it seemeth vnto me, that the law of Milan is better, that is to wit, that the princes mandats and letters pattents directed vnto the Senat, were not to be receiued after the yeare expired: neither those that were directed vnto the magistrat after a moneth [ I] were past: and that not onely the yeare and day, but euen the verie howre also, should be therein set downe, as the manner is almost throughout all Germanie; following therein the opinion of many great lawyers, to stop the suits and controuersies which oft times arise for gifts, offices, and benefices graunted vnto diuers in one day, as it was decreed by the parliament at Blois, at the request there made by Bodin deputie of Vermandois.

But what if the prince by his rescript or letters pattents, shall expresly forbid the magistrat [Sidenote 843 - *] to examine the truth of such things as are contained in them, albeit that they be false or doubtfull; ought the magistrat in this case to examine the matter? And it seemeth that he ought so to doe: For we haue before said, that hee may, and ought to [ K] examine the cause, and enquire of the truth of things expressed in the princes rescripts and letters, albeit that the prince therein declare himselfe to know the truth thereof. Yet for all that, I say, that it belongeth not vnto the magistrat in this case to passe beyond the prohibition of his soueraigne prince: For there is great difference when the prince declareth, That he knoweth the truth; and when he forbiddeth to enquire therof: For in him it is to be presumed, that he hath bene circumuented, and so mistaking things false for true, and things vnknowne for knowne, to haue commaunded them so to be put into his rescript, which he would not haue done, had hee beene truely thereof enformed: As if hee should giue a judges place vnto a souldior, or a captaines place [Page 323] vnto a lawyer, neither the one nor the other ought by the magistrat to be admitted or [ A] receiued, although the souldiour were commonly called a lawier, and the lawier a souldiour, such pretended qualitie hauing happely giuen occasion vnto the prince to be so in his graunt deceiued. But when the prince shall expresly forbid the magistrat to examine the fact or matter, it is to be presumed, that he well knoweth that which he doth, and that he would not that the magistrat should farther enquire thereof. Yet may the magistrat well vse the remedie by vs before spoken of, and show the prince the truth, and the importance of his commaund, with the inconueniences and harmes ensuing thereof, and so in what he may to draw him from his former purpose: and hauing so discharged his duetie, yet neuerthelesse then to yeeld his obedience, if he shall be againe so commaunded: for otherwise the maiestie of a prince or Commonweal should [ B] be but a mockerie, as still subiect vnto the controlement of the magistrates. Besides that, it is much more also to be feared, least that the other magistrates, by the example of one or two, and after them other priuat men also, should presume to contemne the princes commaund, to the great endangering and ruine of the Commonweale.

Now if a man should say that a Prince ought not to commaund any thing that is dishonest or vniust, he therein sayth well: neither ought the prince (if it were possible) to commaund any thing not beseeming his honour, or that were so much as subiect vnto reprehension or slaunder, or knowing the magistrates to be of contrarie opinion vnto his, to constraine them thereunto: for that the ignorant and common people is no way more moued vnto disloyaltie, and contempt of their princes edicts and lawes, [ C] then to see the magistrates hardly delt withall, and the lawes by them contrarie to their [Sidenote 844 - *] good liking published and forced. But now here the question is, what the magistrat ought to doe, in case the prince forgetting his duetie, commaund any thing contrarie to the common profit and ciuill iustice; yet prouided still that it be not against the law of God and nature: whether the magistrat ought to obey such his princes commaund, or to giue vp his place? And if so it be, that the worldly magistrat ought to be obeyed, albeit that he commaund such things as are vniust: Ne Praetoris matestas contempta videatur, Lest the maiestie of the Praetor should seeme to be contemned (as saith the law) how much more then ought men to obey their soueraigne Prince, of the maiestie [ D] of whom all magistrates depend? Now it is in many lawes repeated that we must obey the magistrat, whether the thing that he commaundeth be iust or not, following the counsell of all the wise which haue hereof written. And to this purpose saith Cicero (albeit that he was a mortall enemie vnto the Tribunes of the people) that men were to obey euen the vniust oppositions of the Tribunes, in these words: Parere iube•…] lex intercessori, quo nihil praestantius: impediri enim bonam rem melius est, quàm concedi malè, The law (saith he) commaundeth vs to obey the magistrat that opposeth himselfe, then which nothing is better: for better it is a good thing to be crossed then euill graunted. And before he had said: Nihil exitiosius ciuitatibus, nihil tam contrarium iuri ac legibus, nihil minùs ciuile & humanum, quàm composita & constituta republica quicquam agi per vim, Nothing is more dangerous vnto cities, nothing more [ E] contrarie vnto right and law, nothing more vnciuill or inhumaine, then in a well ordered [Sidenote 845 - *] and setled Commonweale to haue any thing done by force. We oft times see the subiects to take vp armes against their prince, the lawes violated, and iustice go to wracke, and all for the false opinion that the people haue of the equitie and integritie of the judges, refusing to verifie and put in execution the Edicts and commaunds of their prince. O but say they it is an vniust Edict or law, neither can we, nor ought we, to obey the same: an honest speech, if indeed thou canst not; but where learnedst thou that thou oughtest not? from whence haddest thou that doctrine? wilt thou (being a [Page 324] magistrat) with stripes, imprisoment, fines, yea, and with death it selfe enforce priuat [ F] men to obey, yea euen thine vniust commaunds, and yet thy selfe not obey the commaundement of thy Prince? But thou wilt denie thine owne commaunds to be vniust: so doth the prince also denie that which he commaundeth to be so: shalt thou now be iudge herein, or he? or if thou wilt needs be iudge, why shouldst thou not thinke to suffer the same in thine owne decrees concerning priuat men. Besides that, as no man enforced thee to take vpon thee thine office, so no man forbiddeth thee to giue vp the same, if the law thou likest not seeme to thee so vniust: it is therefore the desire of bearing rule, that maketh thee that thou wouldest beare rule ouer priuat men, and yet not obey thy prince thy selfe. Wherefore let vs vpon this conclude, it to be much better in all obedience to stoupe vnto the soueraigne maiestie, than in refusing of his [ G] soueraigne commaunds to giue example and occasion of rebellion vnto the subiects; yet still keeping the respects that we haue before set downe, and especially when it concerneth the honour of God, which is and ought to bee vnto all subiects greater, and more precious than the wealth, the life, the honour of all the princes of the world. And to know how a man should beare himselfe herein, amongst many examples we will vse but one or two. Saul commaunded all the priests of God without iust cause in his presence to be slaine, yet was there no man which refused not his vngodly commaund, except Doeg, who himselfe alone performed that so cruell an execution. An other notable example there is of one Petronius gouernour of Syria, who receiued [Sidenote 846 - *] commaundement to place the image of Caligula the emperour, in the fairest place of [ H] the Temple of Hierusalem, as it had beene in all other Temples of the empire: howbeit that the Iewes had neuer suffered those images to stand in their Temples, but had still cast them downe, and broken and beaten them all to peeces, euen to the verie shieldes of the emperours, which they had there placed. Whereof Petronius aduertised the Emperour, and that it could not be done without great trouble and slaughter of the people: wherewith Caligula more incensed, sent more expresse and strait commaund vnto Petronius, to assemble all the old bands of his garison souldiours in those quarters, and so with a puissant armie to put his commission in execution. Of whose comming the Iewes hearing, left their Townes, and the tillage of their grounds, and so in great companies all vnarmed, went to meet him, if happily they so might by their [ I] humble prayers intreat him; telling him withall, that they ought not so much to feare any mortall man, as to commit so abhominable a sinne against the maiestie of the immortall God: and therfore most humbly requested him to take in good part such their constant resolution, which was rather to die, than to see so great an abhomination, as the most sacred Temple of God to be so polluted with the images of men. Neuerthelesse Petronius told them that it concerned his life, to performe his commission: and so to terrifie them the more, marched with his armie vnto Tiberias, (as supposing himselfe to doe nothing contrarie to his owne religion, or to the lawes of God or man) but there the people came running vnto him from all parts, disarmed, and resolued all [ K] to die, rather than to see the image set vp in the Temple, humbling themselues, and bowing their heads before the armie wherewith Petronius had beset them round: who seeing the great constancie of the people, and their exceeding zeale towards the honour of their God, as to chuse rather to die, than so much as to see the image of 2 man in the Temple of God; wonderfully moued therewith, and with their pitifull complaint and teares, (and being himselfe also a man of a courteous and milde nature, and farre from that crueltie, which the Iewes feared not whatsoeuer it had beene) he commaunded them all to returne home; promising againe to write in their behalfe vnto the Emperour, and rather himselfe to die than to execute his commission, accounting [Page 325] his life a worthie ransome for the sauing of the guiltles blood of so many innocent [ A] people. Neuerthelesse Caligula therewith the more enraged, sent vnto him a new commaund, with grieuous threats to put him vnto the most grieuous torture that he could possibly deuise, if he forthwith put not his commission in execution, according to his commaund. But the ship, together with them that brought the commission, was by force of tempest caried an other way, and newes brought into Iurie of the death of the tyrant, before that the cruell commission could come thither. And so Petronius hauing discharged his conscience towards God, his duetie towards his prince, and well showed his great loue toward the subiects, and discharged all the parts of a most wise Gouernour: was himselfe by the diuine prouidence wonderfully preserued from the cruelties vnto him by the tyrant threatned. But yet this is especially to be considered, that we [ B] [Sidenote 847 - *] pretend not the vaine show of religion, or rather of superstition, against our princes commaunds, and so vpon a conscience euill grounded open a way vnto rebellion: for when the magistrat maketh conscience, and a matter of religion, about the executing of his princes commaunds, he seemeth himselfe (and giueth occasion vnto others also) to suspect euill both of the religion and conscience of his prince. Wherefore he ought to be well assured of the true knowledge of the eternall God, and of the true worship and seruice vnto him due: which consisteth not in vaine and counterfeit showes of religion or conscience. Diuers other examples I could to the same purpose produce, were I not afraid lest those whom we call Pagans should therein ashame vs, with whom the feruent zeale vnto the honour of God is so abated, and by processe of time cooled, as [ C] that it is to be feared lest at length it be altogether frosen. And thus much for the obedience of the Magistrat vnto his Soueraigne Prince. Let vs now also speake of his power and authoritie ouer particular and priuat men, and what a manner of man we wish him for to to be towards them.

CHAP. V. ¶ Of the power an•…] authoritie of a Magistrat ouer particular and priuat men, and of his office and duetie.↩

WE haue before said, That a Magistrat is an officer which hath publike [ D] power to commaund, or to forbid: Now he hath power so to command or forbid, which hath publike power to enforce or constraine them which will not obey that which he enioyneth them, or which do contrarie to his prohibition, and may also ease the prohibitions by himselfe made. For albeit that the law saith, That the force of the lawes consisteth in commaunding, and forbidding; in suffering, and punishing: yet is this power more proper vnto the Magistrat, then vnto the law, which is of it selfe dombe: wheras the Magistrat is a liuing and [Sidenote 848 - *] breathing law, which putteth all this in execution, seeing that the law in it selfe carrieth or containeth nothing but commaunds or prohibitions, which are but mockeries and to no purpose, if the Magistrat and the punishment were not attendant at the foot of [ E] the law, readie for him which transgresseth the same. Howbeit that to speake properly, the law containeth nothing but the verie prohibition, and the threats for not obeying the same; considering that he which commaundeth (inclusiuely) forbiddeth to transgresse his commaund: and as for sufferance, that is no law: for sufferance taketh away prohibition, and carrieth with it neither penaltie nor threat, without which the law cannot be, considering that the law is no other thing, then the commandement of the soueraigne, as we haue before declared: and whatsoeuer threat or penaltie is propounded by the law, yet the punishment neuerthelesse neuer ensueth the breach thereof, vntill [Page 326] it be pronounced by the mouth of the Magistrat. Whereby it euidently appeareth [ F] [Sidenote 849 - *] all the force of the law to consist in them which haue the commaund, whether it bee prince, people, or magistrat, vnto whome so commaunding, except the subiects yeeld their obedience, they haue power to enforce or punish them, which Demosthenes calleth the verie sinewes of the Commonweale.

We haue said, that the Magistrat ought to haue publike power, to put a difference [Sidenote 850 - *] betwixt this power and the domesticall power. We said also, that the Magistrat should haue power to constraine such as would not obey: for the difference from them which haue the hearing of matters, who may also iudge and pronounce sentence, & call men before them, but yet haue no power to compell or constraine men, or to put their sentences or commaundements in execution; such as were in auntient time the bishops, [ G] and now our bishops also: such were also the auntient commissioners, delegats vnto the Magistrats, hauing power to heare the causes vnto them committed; as also to condemne the parties, but yet had no power to constraine them, but sent their sentences vnto the Magistrats, to be ratified or reuersed, and by them to be put in execution as they saw good: So might these delegates call men before them, but yet so, as that no man, except he listed, needed to obey them, except the Magistrats themselues had by vertue of their authoritie so commaunded. And therefore he was not in danger of the law, who had by force rescued a priuat man, as he was to be brought before these priuat judges or delegates appointed by the Magistrats, which he should haue incurred, had the delegates had of themselues any power to commaund. Howbeit that now by our [ H] lawes and customes the delegates haue with vs power to command, and to cause their sentences to be put in execution by sargeants and other publike persons, by vertue of their decrees which they giue out, signed and sealed with their owne hands and seales: whereas the bishops with vs haue no such power to constraine men, but send their sentences to be executed by the Magistrats. As the Cadies, and Paracadies do in all the East, who haue the hearing of all matters, but yet haue no power to constraine men, but send their iudgements vnto the Sabbassaes, which haue the commaund and power in their hand.

We haue before said, that the first constraint of all them which had power to commaund, [ I] [Sidenote 851 - *] is the ceising or attaching both of mens goods and persons; which the auntients called prehensio, or as we say an apprehending or laying on of hands: for it were to no purpose, for the Magistrat to call a man before him, to iudge him, or to fine him; and wh••] all is done not to haue power to seise vpon their goods nor person of him that shall disobey him. Now we haue before said, that some there be, which haue such power to apprehend and attache men; which yet haue no authoritie or power to call a man before them, neither to examine a matter, neither to rescue a man, neither to enlarge them whome they haue committed; as we haue showed of the Tribunes of the people, of the eleuen Magistrats in Athens, of the Capitall Triumuiri in Rome, of the Auogadours in Venice, of the kings Attourneies, and the deputies of them which haue [ K] power of the common treasure in other realmes and Commonweales: and of the Commissioners of the Chastelet of Paris, who may all imprison men, and seise vppon them, and yet for all that cannot releeue or enlarge them, which belongeth onely vnto the publike Magistrats, which haue power to condemne and acquite, and to iudge, some of them of mens goods onely, other some of mens goods and honour also, aud other some of mens goods and honour, with power to inflict corporall punishment also, but [Sidenote 852 - *] not death: and some hauing power to put to death also, and that some of them such power, as from whome men may appeale; and some others, such as from whom men may not appeale. But the last and highest degree, is of such as haue the absolute power [Page 327] of life and death; that is to say, power to condemne to death, and againe to giue life [ A] [Sidenote 853 - *] vnto him which hath deserued to die; which is the highest marke of soueraigntie, aboue all lawes, and aboue the power and authoritie of all Magistrats, as proper onely vnto soueraigntie, as we haue before declared. Whereby it appeareth, that there are two kinds of commaunding by publike power: the one in soueraigntie, which is absolute, infinit, and aboue the lawes, the Magistrats, and all other priuat persons: the other is a lawfull commaund, as subiect vnto the lawes and soueraigntie, and is proper vnto [Sidenote 854 - *] the Magistrats, and them which haue extraordinarie power to commaund, vntill it be againe reuoked, or the time of their commission expired. The soueraigne prince next vnder God knoweth none greater than himselfe; the Magistrat vnder God holdeth his power of his soueraigne prince, and remaineth alwaies subiect vnto him and his [ B] lawes: the particular man next after God (whome wee must alwayes put in the first place) acknowledgeth the soueraigne prince, his lawes, and his Magistrats, euerie one of them in his place. Vnder the name of Magistrats I vnderstand also them which haue iurisdiction annexed vnto their fees, considering that they hold them also as well of the soueraigne prince, as do the Magistrats, in such sort, as that it seemeth that there are none in the Commonweale but the soueraigne princes, which may properly vse these words, Impero & iubeo, I charge and commaund: which in auntient time signified, I will and commaund, seeing that the will of euerie Magistrat, and of all others also, which haue power to command, is bound and dependeth wholly of the soueraigne, which may alter, chaunge, and reuoke it at his pleasure. For which cause there is neither [ C] any one Magistrat, nor yet all together, which can put in their commissions, Such is our pleasure: or this clause, Vpon paine of death, for that none but a soueraigne prince or state, can vse the same in their edicts or lawes.

And hereof riseth a notable question, which is not yet well decided, viz. Whether [Sidenote 855 - *] the power of the sword (which the law calleth Merum imperium, or meere power) be proper vnto the soueraigne prince, and inseparable from the soueraigntie; and that the Magistrats haue not this merum imperium (or meere power) but onely the execution thereof: or that such power is also common vnto the Magistrat, to whome the prince hath communicated the same. Which question was disputed betwixt Lothaire and [ D]Azon, two of the greatest lawyers of their time: and the emperour Henrie the seuenth chosen thereof judge, at such time as he was at Bononia, vpon the wager of an horse, which he should pay, which was by the iudgement of the emperour vppon the aforesaid question condemned. Wherein Lothaire indeed carried away the honour, howbeit that the greater part, & almost all the rest of the famous lawyers then held the opinion of Azon; saying, That Lothaire equum tulerat, sed Azo aequum (Lothaire had carried away the horse, but Azon the right) neuerthelesse many s•…]nce haue holden the opinion of Lothaire: so that the question remaineth yet (as we said) vndecided, which for all that deserueth to be well vnderstood, for the consequence it draweth after it, for the better vnderstanding of the force and nature of commaunding, and the rights of soueraign maiestie. But the difficultie thereof is growne, for that Lothaire and Azon neither of [ E] them well knew the estate of the Romans, whose lawes and ordinances they expounded; neither tooke regard vnto the chaunge in that estate made by the comming in of the emperours. Certaine it is, that at the first, after that the kings were driuen out of the citie, none of the Roman Magistrats had power of the sword ouer the citisens: yea that which much lesse is, they had not so much power, as to condemne any citisen to be [Sidenote 856 - *] whipped or beaten, after the law Portia▪ published at the request of Cato Tribune of the people, 454 yeares after the foundation of the citie. By which law the people tooke this power, not from the Magistrats onely, but dispoyled euen it selfe thereof also so [Page 328] much as it could, giuing the condemned leaue for what fault or offence soeuer it were, [ F] to void the countrey, and to go into exile: and that which more is, there was not any one magistrat, which had power to judge a citisen, if once question were but of his honour, or good name, or of any publike crime by him committed; for then the hearing thereof was reserued vnto the comminaltie, or common people: but if it concerned the losse of life, or of the freedome of a citisen, none might then iudge thereof, but the whole estate of the people in their greatest assemblies, as was ordained by those lawes, which they called Sacred. Which although that they were not alwaies so precisely kept, but that they were sometime broken; yet Cicero for transgressing the same escaped not, but being Consull, and hauing caused certaine of the conspirators with Cateline to be executed, was therefore himselfe afterwards banished, and his goods all confiscated. [ G] Long after the lawes Valeria, Sempronia, and Portia, which had now remoued the Consuls hatchets and rods from the heads and backs of the citisens of Rome: Cornelius Sylla the dictator published his lawes concerning publike iudgements, wherby were appointed a certaine number of Praetors, as ordinarie officers, which were to iudge of all such causes as whereof the comminaltie before iudged, or at leastwise appointed commissioners for to iudge of such crimes, as of murders, of robbing of the common treasure, of treason, or of extortion; but yet so, as that these Pretors had their lesson by writing, beyond which they might not passe a iot. For they by lot drew a certaine number of particular judges out of them, which by the lawes might in such causes be iudiciarie judges, who before all the people hauing heard the accusations and [ H] defenses both of the one part and the other, had brought vnto euerie one of them the judges, three little tables of diuers colours, vpon one of which was written an A. vppon another a C. and vpon the third N. L. the A. signifying acquited, C. condemned, and N. L. as much as to say, Non Liquet, or it is not manifest, or the matter is farther to bee inquired of (which they called Ampliare, and Amplius quaerere.) With these tables was also brought vnto the judges a vessell whereinto euerie one of them did cast one of the three aforesaid tables, without any word speaking: Which done they counted the tables so cast in, and if there were moe marked with C. cast in, then the Pretor in his purple robe mounting into an high seat, in open place, and in the sight of all the people pronounced these words, Reus parum cauisse videtur, which is to say, It seemeth that the [ I] partie accused, hath not kept himselfe from doing amisse; or else Non iure fecisse videtur, He seemeth not to haue done right; or Videtur prouinciam spoliasse, He seemeth to haue spoyled the prouince. This was the Roman grauitie in iudgement mixt with [Sidenote 857 - *] modestie, least they should seeme therein to lie, or rashly to affirme any thing which was not altogether most manifestly tried. Of which sort are these words also, Si quid mei iudicij est, If my iudgement be any thing. So presently after the Pretor had pronounced the aforesaid words, the penaltie of the law was put in execution, the partie condemned voided the countrie and went into exile, and the receiuers seised vpon his goods. If such penaltie were for the offence of the law appointed, vnto which law except [ K] the partie so condemned yeelded himselfe obedient, he was forthwith by the Triumuirie of causes capitall, apprehended and cast in prison. VVherefore, might some man say, that these capitall Triumuiri had power ouer the citisens: But wee said before them to haue had power onely ouer straungers, and that truely: and so men condemned to exile, are but to be accounted straungers, for that they haue lost the libertie of the citie. To like purpose is that which Martian the lawyer writeth, concerning the decree of the Senat, at the motion of Turpilian, Si iudex pronunciauit haec verba, calumniatus es, condemnauit eum, If the judge (saith he) hath pronounced these words, Thou hast slaundered, he hath therein condemned him: and albeit that he say no more concerning [Page 329] the punishment of the offendor, yet shall the penaltie of the law neuerthelesse [ A] be executed vpon him. Not to speake in the meane time of the inscriptions of their libels, with the examination of witnesses and writings. This was the manner of the publike iudgements vsed by the auntient Romans: VVherby it is easily to be vnderstood, that the Pretors or judges were but onely the simple executioners of the law, without power to adde or diminish one iot thereof, hauing not onely no power of the sword, but not so much as to whip, or yet lightly to punish a citisen.

Now if question were for the fine of any publike crime, which was not prouided for by the law, the lesser assembly of the common people or comminaltie, was called together therefore: But if question were of the life, good name, or the whole estate of any citisen, the people then in their greatest and most solemne assemblies gaue iudgement [ B] thereof: and that in both cases extraordinarily, as commonly they vse to doe which haue the soueraigntie in all Commonweals: neither were voyces in these cases giuen by tables or markes: for that the law it selfe, and not the people, was made iudge of the punishment to be inflicted. The sentence of which law was almost this, or such like, Si M. Posthumius ante Calendas Maias non prodisset, neque excusatus esset, videri eum in exitio esse: ipsi aqua & igniplacere interdici, If M. Posthumius made not his appearance before the first of May, neither made his excuse, it should seeme good that hee should be banished, and decreed, That he should be forbid the vse of fire and water: all which things are more plentifully and at large set downe by Liuie Asconius, and Cicero. But if the state of the Commonweale being chaunged, and the power of iudgement [ C] and of giuing of voices, being taken from the people, yet for a certaine time continued this manner and forme of iudiciall proceedings, euen after that the forme of the Commonweale was chaunged from a Popular estate into a Monarchie, as a man may see in the time of Papinian the great lawyer, who gaue occasion vnto Lothaire & Azon to make question of the matter, in these words by him set downe as a maxime, Whatsoeuer it is that is giuen vnto Magistrats by decree of the Senat, by speciall law, or by the constitution of princes, that is not in their power to commit vnto other persons: and therefore (saith he) the Magistrats do not well in committing that their charge vnto others, if it bee not in their absence: which is not so (saith he) in them that haue power, without the limitation of speciall laws, but onely in vertue of their office, which they may commit vnto others, [ D]albeit that they themselues be present. And thus much for that which Papinian doth say, vsing the words, Exercitionem publici iudicij: as if he should say, That they which haue the soueraigne maiestie haue receiued vnto themselues the power of the sword, and by speciall law giuen, but the execution thereof vnto the Magistrats. And this is the opinion of Lothaire. By which words yet Azon vnderstandeth the right and power of the sword it selfe to haue bene translated and giuen vnto the Magistrats. Now there is no doubt, but that the opinion of Lothaire was true, if hee had spoken but of the auntient Pretors of Rome, and so kept himselfe within the tearmes and compasse of Papinian his rule: but in that he was deceiued, that he supposed that maxime or rule of Papinians, to extend to all Magistrats which haue bene since or yet are in all Commonweals, who [ E] yet for the most part haue the hearing of murders, robberies, riots, and other such like offences, and so the power of the sword giuen vnto them euen by vertue of their offices. For the emperours and law giuers hauing in the processe of time seene the inconuenience and iniustice that arise by condemning all murtherers, vnto one and the selfe [Sidenote 858 - *] same punishment, or els quite to absolue them: and so the like in other publike crimes also, thought it much better to ordaine and appoint certaine Magistrats, who according to their conscience and deuotion, might encrease or diminish the punishment, as they saw equitie and reason to require. And first of all Augustus vnto the three little [Page 330] tables noted with A. C. and N. L. added a fourth, whereby it was lawfull for the judges [ F] to pardon them, who by other mens fraud or deceit had offended the law, as wee read in Suetonius. And by little and little the auntient order and manner in the iudicial or penall laws set downe, was chaunged; the penaltie by euery one of them appointed yet neuerthelesse still remaining, not by any to be encreased or diminished, but by them which we haue before said, what diuersitie of causes soeuer happened. And oftentimes the emperours committed it vnto the Senat, or some other the great and most worthy magistrats extraordinarily to iudge of great personages, or of some notable crimes, and to punish them as they saw cause, or thought best, without binding them vnto the ordinarie penall lawes. But in the time of Papinian, Seuerus the emperour gaue power vnto the great Prouost of Rome, extraordinarily to iudge of all offences [ G] and crimes, whatsoeuer they were, committed within the citie or within fortie leagues •…]ound about it. Yea the other Pretors of the citie, who but by the ordinarie course of law were to iudge of ciuill causes and priuat crimes, dealt also with certaine publike iudgements referred vnto them, not by vertue of their office, but by the law it selfe: whereof Papinian sheweth example. And sometime the Pretor preuenting the great Prouost, so by way of preuention extraordinarily iudged of extraordinarie crimes, together with the great Prouost. As for the presidents and gouernours of prouinces, in that they had power and authoritie of all the Magistrats of the citie, and extraordinarily iudged of all offences, and according to their owne discretion appointed both penall and capitall punishment vnto all men, except the citisens of Rome; no man can [ H] reasonably doubt, but that they had the power of the sword, and were therefore called Potestates: for that before the creating of the great Prouost, there was none but the gouernours of the prouinces which had the power of the sword; whom they yet call euen to this present in Italie, by the name of Potestats. Now it is plaine by the maximes of the law, that the Magistrats which had power extraordinarily to iudge, might condemne the guiltie parties to such punishments as they would, yet so, as that they exceeded not measure: For so Vlpian the lawyer writeth, him to exceed measure, who for a small or light offence inflicteth capitall punishment; or for a cruell murther imposeth [Sidenote 859 - *] a fine. VVhereof wee may then conclude, that the great Prouost, and the gouernours [ I] of prouinces, and generally all such Magistrats as haue extraordinarie authority to iudge of capitall crimes (whether it bee by commission, or by vertue of their office) haue the power of the sword, that is to say, to iudge, to condemne, or acquit; and not the bare execution of the law onely, whereunto they are not in this respect bound as are the other Magistrats, vnto whome the law hath prescribed what and how they are to iudge, leauing vnto them the naked execution of the law, without the power of the sword.

And thus much briefly, concerning the question betwixt Lothaire and Azon: for the fuller and more plentifull declaration whereof, it is needfull for vs yet to search farther: where it is first to be enquired, Whether the Magistrats office be proper vnto the [ K] Commonweale, or vnto the prince, or vnto the magistrat himself that beareth office, or else be common vnto the Magistrat himselfe together with the Commonweale? Then whether the power graunted vnto the Magistrats be proper vnto the Magistrats, in that they are magistrats, or els be proper vnto the prince, the execution therof only belonging vnto the magistrats; or else be common vnto them both together? Now concerning the first question, there is no doubt, but that all estates, magistrats, & offices, do in proprietie belong vnto the Commonweale (excepting in a lordly Monarchie) the [Sidenote 860 - *] bestowing of them, resting with them whith hane the soueraigntie (as we haue before said) and cannot by inheritance be appropriat vnto any particular persons, but by the [Page 331] graunt of the soueraigne; and long and secret consent of the estates, confirmed by a [ A] long lawfull and iust possession. As in this kingdome, the Dukes, Marquesses, Counties, and such others as haue from the prince the gouernment of the castles in sundrie [Sidenote 861 - *] prouinces, and so the commaund of them, had the same in auntient time but by commission onely, to be againe reuoked at the pleasure of the soueraigne prince, but were afterward by little and little graunted vnto particular men for tearme of their liues, and after that vnto their heires males, and in processe of time vnto the females also: insomuch as that in fine, through the negligence of princes, soueraigne commaunds, iurisdictions, and powers, may lawfully be set to sale, as well as may the lands themselues, by way of lawfull buing and selling, almost in all the empires and kingdoms of the VVest, and so are accounted of▪ as other hereditarie goods, which may lawfully bee bought [ B] and sold. VVherefore this iurisdiction or authoritie which for that it seemeth to bee annexed vnto the territorie or land (and yet in truth is not) and is thereof called Praediatorie, is proper vnto them which are possessed of such lands, whether it bee by inheritance, or by other lawfull right, and that as vnto right and lawfull owners thereof, in giuing fealtie and homage vnto the soueraigne prince, or state, from whome all great commaunds and iurisdictions flow, and in sauing also the soueraigne rights of the kingdome, and the right of the last appeale.

Other publique officers there bee also which haue neither iurisdiction nor commaund, [Sidenote 862 - *] but onely a certeine publique and seruile charge: as the foure offices of the Waxe-chafers in this realme, by right of inheritance belonging vnto certein men, by [ C] the graunt of king Lewes. Diuers also haue attempted by processe of time to prescribe the offices of the Constables both of Normandie and Champagne; as also the offices of the great Chamberlaines, by right of inheritance to belong vnto them: howbeit that in that their sute they haue beene often times by diuers decrees reiected, and amongst others by one solemne one, in the records of the court made in the yeare 1272. True it is that the word (Constable) was in auntient time no other thing than the captaine of a companie, which they called a Constableship, as we oftentimes read in Frosard. And in the records of the Chamber of accounts I remember I haue red, three hundred Constables to haue beene at once in the armie. We read also that by the decree [ D] of the yeare 1274. Simon Countie of Montfort was excluded from the successiue right which he pretended to the honor of the Mareshalship D'la foy, which the lords of Mirepoix challenge vnto themselues in their styles. And forasmuch as certaine Mareshals of Fraunce would haue continued their estates in their posteritie and successors, [Sidenote 863 - *] they were embarred so to doe by a decree made in Parliament the xxij of Ianuarie, in the yeare 1361, as is to be found in the records of the court: wherein it is expresly set downe, That the estates of the Marshalships of Fraunce should bee as part of the demaine of the Crowne, and the execution thereof to remaine vnto the Marshals so long as they liued. And albeit that the power of the Mareshals was not of force but in time of warre, (as was iudged by a decree of the xv of August in the yeare 1459,) yet neuerthelesse the militarie discipline carried with it the power of the sword, albeit that it [ E] were not giuen vnto it by expresse Edict or law; as in nothing communicating with the decrees and lawes of ciuill pollicie, or of other the ciuill magistrats; which seemeth from the auntient manners and customes of the Romans to haue beene vnto vs translated. For albeit that the power of the sword, yea and of punishing with rods also was by the law Portia taken from all the Roman magistrats (so that it was not lawfull for any of them, or for all of them in the citie to beate or scourge a Roman citisen, as we haue before noted,) yet neuerthelesse the Consull had still full power of life and death ouer the souldiours and men of warre, (without which their militarie discipline [Page 332] could neuer haue bene kept and preserued) from whom there was no mean to appeal [ F] [Sidenote 864 - *] as saith Polybius, and for that cause saith he, the Consuls had royall power: howbeit he marked not, that the Praetors, Dictators, Quaestors, and other Generals of their armies, had euen the selfe same power. In like manner the Constable of Fraunce by his letters of commission hath not the power of the sword, or of life and death graunted vnto him: but hauing the managing of the warres, and conducting of the armyes, as in his absence the Mareshals of Fraunce haue: the power of the sword is also left vnto them, as without which militarie discipline cannot possibly be maintained: which martiall power the simple captaines abused also, putting their souldiours to death, with out any forme or fashion of iust triall. Vnto that Henry the second the French king, at the request of Francis Colineus the Dandelot, then Colonell of the footmen, by expresse [ G] edict forbid them any more so to do.

If then the martiall Magistrats and Generals haue in euery Commonweal the power of the sword without any limitation or restriction vnto the forme of proceeding or of the punishment to be by them inflicted, according to the varietie of crimes and offences, all being as it were left vnto their owne discretion and iudgement, a man then cannot truely say them to be but the simple executioners of the law, considering that they haue no law whereunto they are in this regard subiect: and so consequently we may conclude, that the power of the sword is transferred into their persons, that power now not remayning in the prince alone. Whereby it also followeth, that they being present, may commit vnto others, so much of that power and authoritie which [ H] they haue by vertue of their place and office, as they please, and retaine thereof vnto themselues what shall seeme vnto them good, which they could in no wise doe, if by speciall law they were constrained and bound, to heare & determine of matters themselues, and from word to word to follow the solemnitie and paines set downe in the lawes. And this is it for which the law saith, That the Praetor of the citie, being himselfe present, might commit his authoritie and power to whom soeuer hee saw good, which the Praetors for publike causes could not do: for the Praetor of the citie had the hearing and disciding of all ciuill and criminall causes, (except such as they called publique, as belonging to the common state) which fell out betwixt the citisens of Rome: as had also the Praetor, established for the hearing of causes betwixt straungers and citisens, [ I] who according to their discretion condemned, or acquited such as were conuented before them, moderating, correcting, or supplying the rigour or lenitie of the law as they saw cause, which their power was limited by the will and discretion of the Pretor so iudging, and not by the necessitie of the law. And yet when as by the law or decree of the Senat, any particular cause otherwise out of their iurisdiction was committed vnto them, albeit that it were referred vnto their conscience to iudge thereof, yet neuerthelesse could they not in this case commit the same vnto others, as is to be seene by many examples noted by the lawyers. Which point so manifested leadeth vs vnto the disciding of an other question by vs before propounded: viz. That the [ K] power and authoritie graunted vnto Magistrats by vertue of their office, is proper vnto [Sidenote 865 - *] the office, albeit that the honour and dignitie of the office be not proper vnto the person: for Papinian saying, That Commissioners and Lieutenants haue nothing proper vnto themselues, but that they vse the power and authoritie of them, which haue commissionate and deputed them, sufficiently showeth, that the power is proper vnto them which so commissionate and deputed them, whether they be Soueraigne Princes, or Magistrats hauing power so to doe. And so in like case the law sayth, That the Gouernour of a countrey or prouince, hath within his gouernment all power and authoritie next vnto his Prince: wherefore it is not then onely in the prince. But the [Page 333] difficultie of this question dependeth principally on this distinction, (whereunto the [ A] interpretours of the law haue had no regard,) as namely, that it is great difference to say that the power or authoritie is proper vnto the Magistrat in the qualitie of a magistrat, or in the qualitie of a particular person: for it followeth not, that if the authoritie or iurisdiction be proper vnto the Praetorship, that therefore the Praetorship should be proper vnto the person: but to the contrarie the law saith, That he hath it in trust, and that he is but the keeper thereof. So we call the Prouost of Paris the keeper of the Prouostship of that citie; which is to speake properly, and to show, that the estates and offices rest and remaine in the possession and propertie of the Commonweale, as [Sidenote 866 - *] a thing put in trust vnto the magistrat. And for that cause the Bailiffes of cities and townes are so called of the word (Bail,) that is to say Gardiens or keepers. So also the [ B] Florentines called the Ten men deputed to the keeping of their state and soueraigntie by the name of Bailifes. And that is it for which the Court of parliament in the decree concerning the Mareschals of Fraunce (before noted) saith, That their estate was of the proper demaine of the Crowne, as thereunto properly appertaining, and the exercise thereof belonging vnto them so long as they liued. And so we may discide the [Sidenote 867 - *] generall question, and discusse the controuersie betwixt Lothaire, and Azon, who spake but of the power of the sword onely: and conclude, that as oft and whensoeuer the Magistrats and Commissioners are bound by the lawes and decrees, to vse the power and authoritie which is giuen them, in such prescript forme and manner as is therein set downe, whether it be in the forme of proceeding, or concerning the punishment; [ C] without power for the magistrats to adde or diminish any thing thereunto, or from: in this case they are but meere executors and ministers of the lawes and of the princes, from whom they haue their authoritie: yet not hauing any power in this point or respect in themselues, whether it be concerning ciuill pollicie, or the administration of justice, or the mannaging of warre, or treaties to be had betwixt princes, or the charges of Embassadours: but in that which is left or committed to the magistrates integritie and discretion, in that case the power and authoritie lyeth in themselues.

Now as in euery Commonweale there are two principall points which the magistrats [Sidenote 868 - *] ought alwaies to haue before their eyes: that is to say, the Law, and Equitie: so say we, that there is also the execution of the law, and the dutie of the magistrat, which [ D] the auntients called Legis actionem, and Iudicis officium: or as we say, the action or execution of the law, and duetie of the judge; which is to commaund, to decree, or to put in execution. And as the word Iudicium, or judgement, is properly vnderstood of that which is ordained by the magistrat following the strict tearmes and tenour of the [Sidenote 869 - *] law: so the word Decretum, is likewise properly vnderstood of that which the magistrat ordaineth or decreeth, following equitie without the prescript law; the law it selfe being still referred to the strict execution thereof, and equitie vnto the duetie of the magistrat. And for this cause all the decrees of the Prince are properly called Decreta, and not Iudicia, Decrees I say not judgements: for why the soueraigne prince is not subiect vnto the law; wherein they deceiue themselues, which take a decree to be any [ E] thing else then the resolute sentence of the Senat in their consultations: or the decree of a soueraigne prince, or the voluntarie ordinance of a magistrat, without being bound to law or custome in the making thereof. Now such proportion as there is of the law vnto the execution thereof, the like there is of equitie vnto the office of the judge. And so likewise of magistrats, who in case wherein they are not subiect to the law, resemble arbitrators: but being strictly and wholly bound vnto the law, are but as judges appointed to vnderstand of the fact onely, without any power of themselues to determine of the merit or iustice of the cause, otherwise than the verie strictnesse of the law [Page 334] appointeth. Now of these the one is is seruile, the other is noble; the one is bound [ F] vnto the law, the other is not so; the one vnderstandeth but of the fact, the other of the right; the one is proper vnto the magistrat, the other is reserued vnto the law; the one is precisely written in the law, the other is without the lawes: the one is in the magistrats power, and the other quite without the same. And the better to note and perceiue this difference, the law saith, That it is not lawfull for a man to appeale from the punishment set downe by the law, being pronounced by the magistrat, but onely from [Sidenote 870 - *] that the judge hath declared and denounced the partie accused to be guiltie: whereas it is right lawfull for a man to appeale from the punishment which the judge by his owne discretion appointeth: For he which appealeth from the law, appealeth from the prince, from whome no appeale is to be made. And thus much concerning the distinction [ G] of the power of magistrats, whereby not onely the question of Lothaire and Azon is decided, but many others also concerning the charge and duetie of magistrats, wherewith diuers haue sore entangled themselues, some mistaking the practise, and some the theorique, but most part, for not hauing vnderstood the Roman estate, albeit that they were well exercised and seene in all the parts of their lawes, and yet neuerthelesse in the state of magistrats, concerning their power and authoritie they found themselues greatly troubled. For Moulin himselfe (the honour of lawyers) not vsing the distinctions by vs before set downe, hath without reason followed the opinion of Alciat and Lothaire: Whereunto he addeth the Pretors of cities, whome wee call Bailifes, and Seneshals, by the lawes of this realme, to haue had the power taken from them [ H] for the appointing of their deputies: for that they are but as simple vsagers or occupiers, and that he which hath a thing but onely to vse and occupie, cannot make any other vsager or occupier but himselfe; which is a reason without apparance, as we haue before shewed. VVhereunto ioyne also, that it is not past an hundred or six score yeares at the most, since that Charles the seuenth, and the eight, were the first which made an office of the Lieutenants, or deputies of Bailifes and Seneschals. For if Moulin his opinion were grounded vpon reason, why should Papinian expresly say, That magistrats may depute and commit in their presence so much and so long, and with such limitation as they themselues please, of such things as they haue by vertue of their office, and [ I] which are proper to their estate? Now their magistrats estates and offices in auntient time were much lesse proper, and lesse appropriat vnto the persons, than they be at this present. For with vs they are perpetuall, and in Rome they continued but for one yeare; and therefore might with much better reason than they appoint their lieutenants or deputies. Besides that, the lawyers themselues haue made and written diuers expresse bookes concerning lieutenants and deputies, which were all to no purpose, if the comparison of him, which hath but the vse onely vnto the magistrat, were to be admitted and receiued. And as for others, the auntient doctors and interpretors of the law; they haue in such sort entangled themselues, as that it euidently appeareth them to [ K] haue had no insight into the estate or gouernment of the Roman Commonweale: without which it is impossible to determine any thing concerning these questions. For whereas the Romans had properly separated the office of the Proconsuls Lieutenant, whome they called Legatum, from the office of the Proconsull himselfe: and so of the deputie tearmed a particular Commissioner, whome they called Iudicem datum, from the Commissioner himselfe, and of him vnto whome power was giuen by the magistrat to commaund, whome they called Eum cui mandata inrisdictio est, the doctors haue confounded all together vnder the name of Delegats, which were a thing too long, and too superfluous to refute, hauing proposed vnto ourselues no other end, but to entreat of that which concerneth the estate and duetie of magistrats in generall.

[Page 335] It is also worth the noting, that in Popular and Aristocratique estates, such as were [ A] [Sidenote 871 - *] those of the Greekes, and of the Italians, their chiefe drift was so much as they could, so to bind their magistrats, gouernours, ambassadours, captaines, lieutenants, and other their great officers & ministers vnto their lawes, as that they should not one iot swarue or stray therefrom: which the auntients did much more than they of our time: whereas in a regall monarchie it is quite otherwise, where in publike iudgements all paines and penalties, and in priuat iudgements that which concerneth euerie priuat mans right, is left to be iudged and determined according to the discretion of the magistrat. And albeit that Iustinian the emperour made a law, That euerie mans right should be tried by the law, so to haue kept the magistrats within the power of the lawes: yet was that his law to no purpose, but much troubled all the judges and lawyers, willing to [ B] obserue the same his law, being impossible to be kept, and incompatible with the other auntient former lawes. For why, that which concerneth euerie mans right, consisteth [Sidenote 872 - *] in fact, and not in the law: by which words Paulus (the great lawyer) seemeth euen by the root to haue cut vp all the opinions of all the interpretors of the law, being not only in number almost infinit, but also altogether inexplicable, thereby giuing men to vnderstand, that that which concerneth euerie mans right, ought not only in priuat, but euen in publike iudgements also to be left vnto the fidelitie, integritie, conscience, and wisedome of the magistrat. VVhich with vs is by a royall constitution prouided for, and by the vse of iudiciall proceedings, in respect of the infinit varietie of causes, places, times, and persons: which for that they are infinit, can in no lawes, writings, or tables, [ C] be comprised, and much lesse vnder any certaine rule be comprehended.

Now I haue before said, that there was a new officer erected in Rome, who was the [Sidenote 873 - *] Prouost or Pretor of the citie, with power giuen him, to correct, supply, and amend, the lawes and customes, in that which concerned his iurisdiction, so farre as hee saw good in priuat iudgements: and euerie yeare the new chosen Pretor in the Tribunall seat appointed for the making of orations, after he had thanked the people for the honour he had of them receiued, gaue them there to vnderstand of his edicts, and in what sort his purpose was to administer the law. VVhich his edicts he caused afterwards to bee painted, and set vp in some publike place: which for al that were not lawes, neither had [ D] the force of lawes, but were only edicts (that is to say, the magistrats commands) wherunto neither the people, nor the Senat, nor the Consuls, nor the other Pretors, nor the Tribunes, not yet the successors in the selfe same office, were not in any wise bound, but onely particular men, and they also but in that which was within the Pretors power and authoritie, as concerning their priuat suits, and businesse betwixt man and man. And therefore Cicero taunting Verres, intemperatly abusing the power and authoritie of his Pretorship, saith, Quiplurimum edicto tribuunt legem annu amappellant, tu plus edicto complecteris quàm lege, They which attribute most vnto an edict, call it but an annuall law, but thou comprehendest more in an edict, than in a law. For the magistrat how great soeuer he be, cannot of himselfe derogat from the law, and much lesse abrogat the same: for these things we haue shewed properly to belong vnto soueraigntie. [ E] Neither must we vnderstand, that the * lawyer when he saith, That the Pretor might [Sidenote 874 - *] correct, amend, or supply the laws, that he had therefore power to derogat from them, or to disanull them, which is the highest point of soueraigntie: but that hee might by the authoritie of his office expound the obscure lawes, and in what they might with equitie be extended, yet without breaking or impugning the same. And that is it, for which the law generally saith, That the Pretor neuer could giue possession of the goods vnto them, who by the lawes and ordinances could not be the heires. Neither was it also in the power of the Pretors, nor yet of all the magistrats together, to make [Page 336] an heire of him which by the lawes could be none; for why, that was to be done onely [ F] by vertue of the law, whereby the magistrat by his definitiue sentence declared, the succession to belong to such, or such a man, whome the law or the testator had appoin•…]ed heire. And albeit that diuers of the Pretors edicts were more reasonable and indifferent then the lawes themselues; yet so it was, that the first Pretor that would, might (without regard vnto all the edicts of his predecessors) make all new, or againe reuiue such lawes, which by reason of their antiquitie, were before buried in obliuion. And this was the cause that the Tribune Aebutius presented a request vnto the people, which passed in force of a law; which was that the lawes of the twelue tables, which by long tract of time were then growne out of vse, might by an expresse law bee repealed and abolished: which law needed not, if the Pretors by vertue of their edicts had had power [ G] to derogat from the positiue lawes. Yea the Pretors themselues did not alwaies in the administration of iustice follow their owne edicts, but spared not sometime to giue iudgement quite contrarie vnto them, especially if the equitie of the causes vpon some straunge occurrents so required; sometimes also chaunging them for the grudge or fauour that they bare vnto certaine priuat men: which thing Cicero by way of reproach obiected to Verres, saying, Ille nulla religione motus, contrà quàm edixerat, decernebat, That he moued with no religion, iudged quite contrarie vnto that which hee himselfe had before decreed. Howbeit that this reproach was but a flourish of the Orators, and not of any great importance: For as no man was subiect vnto the law which hee himselfe made, so also might he vpon good and iust cause derogat from the same. Yet certaine [ H] yeares before it was enacted by the people at the motion of Cornelius the Tribune, That the Pretors, and so euerie other magistrat also should bee constrained in giuing of iudgement, to obserue their owne edicts by themselues published and set vp at their first entrance into their office, and not to depart therefrom; which cut off many courtesies and fauours which the magistrats before shewed vnto such as they thought good. Neuerthelesse this law being published without the good liking and consent of many: and also contrarie vnto the nature of lawes (which can neuer bind them that made them) was shortly after abolished. Howbeit that the magistrats for their owne particular, and in their owne causes, were constrained to endure the same edicts, iudgements, and decrees, which they themselues had made, and caused to be executed vppon [ I] others: yet that notwithstanding the magistrats were alwaies at libertie, to derogat from their owne edicts, or to alter the same, whether they were published for the whole yeare that they were Pretors, or for a moneth, or for some few dayes or howres. For generally the law saith, That the magistrat may reuoke that which he hath decreed, and [Sidenote 875 - *] forbid that which he hath commaunded, although that he cannot reuoke that which he hath once iudged and pronounced sentence of. For that iudgements and decrees giuen or made vpon the hearing of a cause, cannot without iniurie be reuersed or changed, as also for that nothing ought to be more firme and sure then iudgements once giuen, as whereby all ciuill societie is especially maintained: wherein many interpretors [ K] of the law haue deceiued themselues, calling the magistrats simple commaunds, precepts, and not edicts: whereas an edict (as saith Varro) is nothing els but Magistratus iussum (that is to say) the magistrats commaund, and whereof another errour hath risen also, viz. That such the magistrats simple commaunds should bind no man: For so the auntient doctors affirme. VVhich their opinion, if it were true, wherefore then [Sidenote 876 - *] should the law commaund vs to obey the magistrats bare commaund, without regard whether it be iust or vniust? Or why should the lawyer Maetian say, Reipublicae interesse, vt iniustis & ambitiosis decretis pareatur, It behoueth the Commonweale, that euen vniust and proud decrees (of the magistrats) should be obeyed. Yea and all the [Page 337] auntient Philosophers and law makers, haue more religiously recommended nothing [ A] vnto vs, not onely than the lawes, but euen than the writings and decrees of the wise. Now it is more reasonable to obey a simple verball commaund, which is but for a day or an howre (if we doubt or mislike of the equitie thereof) than to the commaundements which were for a yeare, as were all the edicts of the magistrats: besides that it was more easie to performe the one than the other. And that more is, the lawes, the ordinances, the decrees, and sentences, of themselues bind no man, if the commission (that is to say, the magistrats commaund) be not on foot. And therefore the Roman Pretors, and other their great magistrats, seldome times troubled themselues with giuing of iudgements, but were still occupied in appointing of judges, in commaunding and the putting in execution of the sentences and iudgements of such iudges as had [ B] by them bene appointed. Whose verball commands (as these men tearme them) had they bene of no force to bind men, the decrees and iudgements of such as were by them appointed, should haue bene to no end or purpose, neither should they haue bene obeied. And therefore the law permitteth all magistrats by punishment or penaltie to cause their commaunds to be obeyed, without distinction whether they bee commaundements verball, or by way of commission, or by decrees by them made, or by iudgements by them giuen.

Of this errour (for not obeying the magistrats command) is risen also a farre greater, [Sidenote 877 - *] some defending that it is lawfull for men in fact, and by force to resist the magistrates, offering them violence, (for that is the word which they vse) whether it be in the administration [ C] of iustice, or otherwise out of the same. Howbeit that the difference is great betwixt the one and the other: for that the magistrat out of iudgement, and out of the qualitie of a magistrat, is no more but as a particular man, and so if he by word or deed wrong any man, he may be resisted, in such sort as the law permitteth: but in the execution of his charge within his power, not exceeding the bounds of his iurisdiction, there is no doubt but that he ought to be obeyed, whether it bee right or wrong, as saith the law. But if he shall exceed his authoritie or power, a man is not bound to obey him, especially if the excesse be in it selfe notorious, but may defend himselfe by oppositions and appeales: but if he may not appeale, or that the magistrat will not admit his appeale, but proceed against him; in this case it is to be considered, [ D] whether the griefe be to be recouered, or otherwise irrecouerable: which if it be to be recouered, no resistance is then to be made against the magistrat; but if the case be irrecouerable, as in question of life, or of corporall punishment, and that the magistrat will needs proceed without regard of any appeale, in this case it is lawful for euery man to make resistance, not of purpose to crosse or offend the magistrat, but onely to defend the life of the innocent man in danger, yet so farre as that it be done without fraud or seditious tumult: not for the violating of the magistrat, as we said, but for the deliuerance of him which is with iniurie by the magistrat oppressed. As when Appius Claudius enflamed with the desire and lust of the faire maiden Virginia, (wresting the lawes) was about to giue sentence against her libertie, Virginius her father to preserue [ E] the honour of his house, and wishing rather the death of his so faire a daughter, than that she should so loose her virginitie, slew her openly with his owne hand, and so set all the citie on an vproare. Which desperat boldnes of the man was not indeed to haue beene suffered, neither ought the quiet estate of the Commonweale to be with such [Sidenote 878 - *] outragious facts troubled, what violence soeuer be done by the magistrat. Howbeit that it belongeth not vnto priuat men to iudge whether the magistrat offer to doe wrong, or not: which to determine, if it appertaine but vnto the greater magistrats, or the Prince onely, in vaine then it is to aske whether priuat men may by force resist the [Page 338] magistrates, offering them violence? but onely this, whether Magistrats which go about [ F] to put in execution their sentences of life and death, or for the inflicting of some corporall punishment, contrarie vnto appeales from them made, may of right bee withstood? which that they lawfully may be, I doubt not, so that it be done without fraud or tumult, in cases of life and death: but if iudgement be of goodes, or fines, or imprisonment, I thinke it not to be lawfull, for that all these things may be amended, either by intercessions, or by appeales, or by actions of trespasse, or iniurie, or by way of petition. But in other causes lawfull it is not by the law either of God or man to [Sidenote 879 - *] withstand the magistrat offering vs violence: as many euill taught, and worse instincted in ciuill pollicie and gouernement most daungerously affirme: by whose positions (if they will be like themselues) the estates of all cities and Empires must needs be [ G] troubled and confounded. For if it were lawfull for the subiects by force to defend themselues against the magistrats, they might vpon the same reasons and grounds resist their soueraigne Princes also, and tread the lawes vnderfoot. Wherefore we see the lawmakers and lawyers to haue respected nothing more, than to keepe all force, and violence, not from the magistrats onely, but euen from priuat men themselues, hauing violence in so great detestation, as that they haue restored euen theeues and [Sidenote 880 - *] robbers into places, vniustly by them possessed, if they were from thence by force cast out, and excluded the true owners thereof from their rights for proceeding by way of force. And albeit that some particular men hauing territoriall iurisdiction, may (in the opinion of many) in a sort in their owne right of themselues lay violent hand, vpon [ H] the land holding of them: when as the vassall neglecteth his duetie vnto his Lord, yet the truer opinion is that he cannot in his owne cause so doe, for that it is a thing iniurious and vnreasonable, that any man should be a judge in his owne cause, or giue sentence for himselfe. Now the law which forbiddeth priuat men to doe that, which ought to be done by the magistrat, hath this reason ioyned with it, lest occasion should be giuen of greater sturre and tumult. The law also of the xij Tables, which saith: Vis in populo abesto, Let violence be from among the people, is not to be vnderstood onely of violence to be done by force of armes, whether it be publiquely or priuately done: but also when men would haue things otherwise done then by the ordinarie [ I] way of justice: as when things are done by priuat mens authoritie, which should haue beene done by the Magistrat or judge. And if it bee not lawfull for the true lord or owner to put his seale vnto his owne things being in the possession of an other man; how then should it be lawfull vnto the territoriall lord of himselfe to enter or seize vpon lands, the propertie whereof belongeth vnto an other man? Wherefore the opinion of Plato is to be of vs reiected, who in his bookes of lawes hath left the shamefull violence and abuse offered vnto maydens or boyes, to be reuenged by their kinsfolke, and not by the Magistrat.

Now of this question dependeth an other; as whether the Magistrat may reuenge [Sidenote 881 - *] the wrong and iniurie offered him, as he sitteth in place of justice: whereof what to say [ K] the lawiers haue not yet determined. Neuerthelesse without entering into farther dispute, it is and alwaies hath beene lawfull for all Magistrats exercising their estate or commission, to condemne or chastice them, which giue vnto them rash or contumelious speech, and to proceed against them by way of fine, or by seizing vpon their bodies or goods, according to the power and authoritie vnto them giuen; if the wrong or iniurie offered be not such as may deserue corporall punishment: for then the magistrat ought to lay aside his publique person, and to receiue iustice at an other mans hand. But yet if the iniurie be done vnto the whole companie or bench of Iudges, or Magistrats, in this case they may enquire and iudge of the crime or offence, and so [Page 339] altogether lawfully do that which they could not do apart: and the reason seemeth [ A] to be, for that in so doing they punish not the wrong done vnto themselues, but vnto the Commonweale, which is therein farre more wronged than are they which beare [Sidenote 882 - *] the persons of magistrates. And albeit that the law saith, That the action of iniurie is easely to be forgiuen, and that it is soonest by sufferance buried; that is to be vnderstood of particular men, & not of publique persons, and especially of Magistrats vnto whom [Sidenote 883 - *] whosoeuer shall offer violence, is by the law in danger of treason. And for this cause an outrage committed against the person of a Magistrate, the indignitie of the fact is together with the heauinesse of the punishment therby encreased▪ and that not onely when he exerciseth his estate, but also in what place soeuer it be wherein he carrieth with him the marks and tokens of his office, or is knowen to be such a man, he ought [ B] to be inuiolable, and as the auntient Latins say, Sacrosanctus, or most holy: for that word the law, Horatia (published for the safetie of Magistrats) vseth, conceiued in these words: Qui Tribunis plebis, Aedilibus, Iudicibus nocuerit eius caput Ioui sacrum esto; familia ad aedem Cereris, liberi, liber aequè vaenum ito, He that shall hurt the Tribunes of the people, the Aedils, or Iudges, let his head be sacrificed to Iupiter, and his familie and children, male and female, sold at the Temple of Ceres. Wherein some are of opinion that the word Iudicibus (or judges) is meant or to be vnderstood of the consuls, who were afterwards the onely judges amongst all the magistrats: whereof they haue some probabilitie, for they were first called Pretors, and after that Iudges; and after that their iurisdiction for the citie was giuen to one speciall Pretor, they were called [ C] Consuls. Howbeit neuerthelesse it seemeth that the law Horatia hauing put the judges after the Tribunes, and the Aediles whome they called Aedituos (for why, the great and honourable Aediles, whome they called Curules, were not yet erected) was meant to comprehend all judges; considering withall, that the law it selfe was not published at the request or motion of any of the Tribunes, or in disgrace of the Consuls, but at the motion of Horatius the Consull himselfe. And this law Horatia was made fortie foure yeares after the sacred law Iunia, made for the safetie of the Tribunes of the people: whereby they were as by a speciall law, more religiously prouided for than were the rest of the magistrats. VVhereby it appeareth this law to appertaine to all magistrats, but especially vnto judges, whose liues and persons are the more subiect to all [ D] daungers, in that they are to iudge of the liues, honour, and goods of all the subiects. And therefore the law saith not, That he that killeth the judges (shall die therefore) but if hee shall offer them neuer so little violence; that is to say, Si nocuerit, which is, if hee but hurt them. And well it is to be noted, that it is not said, as they are exercising their authoritie and iurisdiction onely, but euen in what other place soeuer they bee: which otherwise were but to open a gap to haue them slaine in euerie other place where they •…]at not in iudgement. So when as with vs a certaine noble gentleman beeing called into [Sidenote 884 - *] question, had with his sword wounded one of the judges of the court of Paris, not as then sitting in iudgement: the court condemned 〈◊〉] to haue his right hand cut off, his bodie afterward to be quartered, his goods confiscated, and a most great fine to bee [ E] paid vnto the judge. But if the magistrat disguised, or walking the streets by night to doe any man harme, shall himselfe chance to be by any man hurt, hee cannot redresse such his wrong as done vnto a magistrat, but as vnto a priuat man. So Aulus Hostilius the Aedile, when as by night hee had attempted to haue broken open a Courtisans doores, was there grieuously hurt: whereof he complaining vnto the people▪ in hope to haue found some good remedie, was sent away with shame enough▪ for that the outrage vnto him done, was not to be punished as done vnto a magistrat. VVhich ought not to seeme strange, seeing that one of the Tribunes, who had vnlawfully abused [Page 340] a boy, and taken by the Capitall Triumuiri, was by him punished as a slaue or stranger [ F] (the rest of the Tribunes his fellowes forsaking him, as abhorring his most filthy lust) albeit that the sacred lawes forbid vpon paine of death to offend the Tribune, or to commaund him to be punished for what thing soeuer. In like case if the magistrats went roaming vp and downe masked, and priuat men went masked also, carrying with them the markes of magistrats, as in Rome they did during the feast of Cybele: if any iniurie happened to be so done vnto the magistrat, it was not punished as done vnto a magistrat, but vnto a priuat person: howbeit that out of these cases the magistrat is to be holden for such as he is, in what place soeuer he be.

Neither is it not onely vnlawfull to offend or abuse the magistrats by word or deed, [Sidenote 885 - *] but necessarie it is, that we should duetifully respect and honour them, as them vnto [ G] whome God hath giuen this power: which thing we see the auntient Romans (from whom the fountaines of law and iustice flowed into all the world) to haue much more religiously obserued, than did the other nations. For the Censors disgraced and degraded from his order a bourgeous of the citie, by taking away from him his horse, for that he had but coughed and spauled a little too lowd in their presence. And Vectius a citisen of Rome, for not rising vnto the Tribune of the people, but passing by him, was by the people slaine. Yea the law it selfe calleth it sacrilege, not to reuerence the magistrat. VVe vnderstand also not the same, but yet great reuerence to haue beene giuen vnto the magistrats euen amongst the Greekes also, in that it was not lawfull for a man to laugh in the councell of the Areopagits. VVe read also, that Fabius Maximus his [ H] sonne seeing his father a farre off comming towards him, and that the Lictors or officers for his fatherly reuerence durst not cause him to alight from his horse, commaunded him himselfe to alight: which his commaund the father obeying, alighted and embraced his sonne, making much more of him, than if he had done otherwise. For domesticall power (as saith the law) ought to stoope vnto publike authoritie. True it is, that in those times and in those places offices were giuen to vertue, and not to them that offered most: for then verily was the time wherein rewards were set vp for vertue: Howbeit that the lawes against ambition, and the auntient histories sufficiently declare honours and offices to haue bene oftentimes in Rome, de lapide emptos, as saith Cicero. But howsoeuer power and authoritie be got, whether it be by fauour, by wealth, or [ I] force of armes, we must not therefore contemne the magistrat, which cannot bee done without the contempt of God, from whome he hath his authoritie, in whatsoeuer fo•…] it be. As witnesseth that speech of God vnto Samuel judge of Israel, now growne weake with age: whose commaunds when as the people did refuse, It is not thee (saith he) but me, whome they haue despised.

Now if these deriders of authoritie and power, be not to be moued either with the feare of God, or the touch of religion, yet can they not denie, but that it is more than necessarie for priuat men to obey, respect and honour the magistrats, for the defence of Commonweales, and of the ciuill societie of men. Which the aunrient Poets haue vnto [ K] vs well set forth in their deuised fables, making the goddesse Pitharchie (which signifieth the obedience of subiects vnto their princes and magistrats) wife vnto Iupiter▪ Sauiour: and of that marriage Eutuchia (that is to say Felicitie) to haue bene engendred [Sidenote 886 - *] and borne. Wherefore the magistrat on his part also ought to giue a good opinion of himselfe, for his iustice, wisedome, and sufficiencie, that so the subiects may haue occasion to honour and reuerence him: and not by his vnworthinesse to suffer the honour of the Commonweale to be troden vnderfoot or despised: for the fault which in a priuat man is but light, is in the person of the magistrat doubled. And therefore Solo•…] in his lawes gaue leaue to kill the drunken magistrat, without any daunger of punishment [Page 341] therefore. Truely an vnreasonable law, for that it was thereby to be feared, least [ A] vnder the pretence of drunkennesse the magistrats life should be oftentimes endaungered. VVhereby yet we may gather, how much vice was then detested, as also with what integritie, seueritie, and wisdome, magistrats ought to excell other men. And yet ought we not to imitat them, who by the rigour of punishment seeke to bee accounted seuere; or by their too much lenitie, desire to be accounted gentle, both the one and the other being therefore worthily reproued by the law. VVherein many haue mistaken [Sidenote 887 - *] themselues, who hauing extraordinarie power to punish without law, haue thought equitie to consist in lenitie and mercie, repugnant to the rigour of the lawes: howbeit that equitie is of such a nature, as that it in nothing communicateth either with rigour, or with mercie; but declining from both the extreames, crueltie (I say) and [ B] mercie, keepeth clemencie, the preseruer of them both: not vnlike the Lesbian rule, which being of lead, yeelded as well vnto the one side as to the other. Now if the offence be greater than the punishment appointed in the ordinarie lawes, the magistrat hauing extraordinarie iurisdiction and power may as an vpright iudge augment the punishment. So if the fault be lesse, he may with like equitie mitigat the punishment by the rigour of the law appointed. And truely the magistrat in seeking to be accounted [Sidenote 888 - *] pitifull offendeth more, than if he should seeme to be cruell: For crueltie, although it be indeed to be blamed, yet keepeth it the subiects in obedience vnto the laws, for feare of punishment; whereas too much lenitie giueth libertie vnto offence, and causeth the magistrat himselfe, the lawes, yea and the prince which established the lawes, to bee altogether [ C] contemned. And this is it for which the law of God expresly forbiddeth to haue any pitie of the poore in iudgement. Some others there bee, which iudge well [Sidenote 889 - *] and vprightly, enclining neither vnto crueltie nor mercie, but yet cannot keepe that grauitie and seueritie which best beseemeth a magistratias in our time one of the chiefe magistrats of this realme, who in the highest seat of iustice, and euen then when he pronounced the sentence of death vpon the condemned, would with one merrie conceit or other, minister vnto the hearers occasion of laughter. VVhereas Augustus Gaesar did farre otherwise, who albeit that he was accounted a sincere and vpright iusticiar, yet for all that he neuer pronounced sentence of death vpon any, but with deepe sighes fet euen from the bottome of his heart. Some other to the contrarie, all enraged, [ D] threaten and reuile them whom they giue iudgement of: as did ordinarily the emperour Claudius, who one day with a countenance more like a beast than an emperour, strucke him in the face with a pen knife, whom he was to pronounce sentence of death of. Yet blame I not the graue exhortations, and bitter reproofes of the magistrat vnto the offendors, and then especially, when as hee meaneth to vse more lenitie than the rigour and extremitie of the law requireth. For why, it is one of the things most requisit in a magistrat to cause the offendors to haue the better vnderstanding and feeling of the greatnesse of their offences: that so they may the better also perceiue and see what they haue therefore deserued, and so to be the rather induced to repentance. But it were a kind of iniurie, and not beseeming the authoritie and wisedome of a magistrat [ E] to charge him whome he hath condemned to death, with opprobrious words also. Papirius Cursor was of all that liued in his time (than which none is said to haue bene [Sidenote 890 - *] more plentifull of vertues) a man most famous both at home and abroad in the wars, but so terrible with the maiestie of his commaund, as that hee caused euen the stoutest of his followers to tremble and quake at the force of his commaunding speech: which his roughnesse of speech he for all that wisely tempered with great lenitie in the executing of punishment. As when the generall of the Prenestines was come vnto him with his promised aid after the battaile fought & the victorie obtained▪ Paperius with sterne [Page 342] countenance, and such speech as caused all there present to tremble thereat, hauing first [ F] reproued him, forth with commaunded one of the Lictors to vnbind his bundle of rods, and to make readie his axe: the fearefull captaine in the meane time expecting nothing but present death, when sodenly Paptrius commaunded the same Lictor standing readie with the axe in his hand, to haue done execution (as all men thought) but to cut vp a stub of a tree which stood in his walke, and condemned the negligent captaine in a great fine, which he right willingly paid, with great thankes that hee had so spared him his life. Whome if he had put to death, it was in daunger least that those his followers the Romans allies would haue thereupon reuolted: which so great a fault no doubt Papirius would not haue pardoned a Roman. But as there is great difference [Sidenote 891 - *] betwixt faults which are committed in warre, and elsewhere (for that as an antient captaine [ G] said, In martial matters men scarcely offend twice) so must the militarie magistrats vse another manner of fashion of commaunding, of punishing, and execution of penalties, than must the magistrats in time of peace. For that the discipline of warre ought to be much more seuere than the domesticall or ciuill gouernment. And yet for all that ought not this martiall rigour to passe into crueltie, nor the generall to exceed the bounds of seueritie, as many commaunders do, who in nothing show themselues valiant, but in killing their souldiors without hearing. As Seneca propoundeth one act of Piso the Proconsull, for an example of his notorious crueltie towards his souldiours. [Sidenote 892 - *] For seeing a souldiour returning alone out of the field into the campe, from forraging, in a rage condemned him to death, for that he was returned out of the field without [ H] his companion, charging him, That hee had slayne him: the souldiour still alleaging, That his fellow was comming after him: which his excuse for all that Piso would not admit, but sent him presently to be executed. But lo, whilest that the execution was about to be done, he sodenly returned who was supposed to haue bene slaine. VVherupon the captaine which had the charge to see the execution done, returned to the Proconsull with both the souldiours, who embrasing one the other, were with great applause and reioycing of their fellow souldiours brought before him: Wherewith the Proconsull enraged, caused them all three to bee put to death: The first, for that hee was before condemned: The second, for that he was the cause of his fellowes condemnation: [ I] And the captaine, for that hee had not done what hee was by him his generall commanded. So that for the appearing of one innocent mant, he put three to death: which was not iustly to vse, but most cruelly to abuse his authoritie. VVhich his crueltie was so much the more to be detested, for that there was there no meanes to appeale, nor prince to flye vnto, nor ciuill exception to bee taken, by reason of the rigour of the militarie discipline. And thus much concerning the power and authoritie of Magistrats ouer particular and priuat men: It remaineth now to speake also of the power and duetie of one of them towards another. [ K]

[Page  343 ]

CHAP. VI. [ A] ¶ Of the mutuall duties of Magistrates among themselues, and of the power that one of them hath ouer an other.↩

IN euery well ordered Commonweale there be three degrees of [Sidenote 893 - *] Magistrates: The highest, which is of them which may be called soueraigne magistrats, and know none greater then themselues, but the soueraigne Maiestie onely: The middle sort which obey their superiours, and yet commaund others: And the lowest degree of all, which is of them which haue no commaund at all [ B] ouer any other magistrats, but onely ouer particular men subiect to their iurisdiction. Now of soueraigne magistrats, some haue power to commaund all magistrats without exception, and other some acknowledge no superiour but the soueraigne Maiestie, and yet haue no power ouer all the rest of the magistrats which are placed in the middle & lowest degrees, but ouer such onely as are subiect vnto their iurisdiction. Of the first sort of soueraigne magistrates which haue power ouer all others, and that know none their superiours, but the soueraigne power, there are but verie few, and fewer at this present then in auntient time: for that it is by daily experience found, nothing to be more dangerous in a Commonweale, then for some one [Sidenote 894 - *] magistrat to be aboue the rest, who may lawfully commaund all the rest, aswell priuate [ C] persons as magistrats, wanting himselfe but one step or degree to mount vnto the soueraigntie, and that especially if his soueraigne magistrate which hath such power bee alone, and without a companion, hauing all in his owne hand: as had sometime the Grand Prouost of the Empire, whom they called Praefectum Praetorio, who had commaund ouer all the Magistrates throughout the whole Empire, and might receiue the appeales from all the other magistrates and gouernours; but might not be appealed from himselfe, no not although the appeal were made euen vnto the Emperour himselfe, albeit that the first which were promoted to this dignitie and honour, were but captaines of the praetorian legions: as Seius Strabo the first that was preferred [ D] vnto this office vnder Augustus: and after that Seianus vnder Tiberius. Which honour the other succeeding Emperours thought good to bestow vpon such as of whose integritie, fidelitie, and deuotion towards them they had had good experience and proofe: such as they would in some sort to be their imperiall Lieutenants, vpon whom they for the most part discharged the mannaging of their greatest affaires, such as were by the Emperours themselues to haue beene discharged: as the hearing of imperiall causes: the receiuing and dismissing of Embassadours: the hearing of appeales from the Magistrats of all prouinces; which great charge for that no man could well execute, except he were skilfull in the Lawes, the Emperours in steed of captaines of their legions, preferred lawyers to that honour. So did Otho the emperour promote Martian: Seuerus, Papinian: and Alexander, Vlpian. And at length vnder the Greek [ E] emperours, two great Prouosts of the empire were by the Emperours created, and at last three also, that the greatnes of their power so diuided might be lessened; and yet the honour thereof imparted to moe. Such soueraigne Magistrats were with our auncestours: the Master of the Pallace: and he whom they called the Prince of Fraunce: and of late Henry duke of Aniou, king Charles his great Lieutenant: and the chiefe Bassa in the Turkes empire: and the great Edegnare or Diadare in Aegypt vnder the principalitie of the Mamaluke Sultans. Yet in this they differ, that in the Turkish empire the Great Sultans children in the absence of their father commaund aboue all the Bassaes, [Page 344] and had the preheminence and precedence before them: and in Aegypt the great [ F] Edegnare commaunded ouer all the rest of the Magistrates, excepting such onely as had the keeping of the castles & fortresses of the kingdom committed to their charge, ouer whom he had no commaund. Which manner and custome whether the Princes of the East tooke it from ours, or our Princes from them, we still keepe together with the Italians, Germaines, Spaniards, and most of other Nations also. Wherefore [Sidenote 895 - *] the soueraigne power to commaund ouer all Magistrats and officers without exception, ought not to be giuen to one alone, but in case of necessity; as when the Commonweale cannot otherwise be preserued: and yet then not with the authoritie and countenance of a standing office, but by way of commission onely, such as were in auntient time graunted vnto the Roman Dictators, the Archo of the Thessalians, and Azymnets [ G] of the Lacedemonians: and now with vs are giuen vnto Protectors and Regents, in the absence, furie, or minoritie of soueraigne Princes. In the absence I say of the soueraigne prince, for that in his presence all the power & commaund of magistrates and [Sidenote 896 - *] commissioners cease: For as the force and strength of all riuers and flouds is together with their names lost and swallowed vp when they once fall into the Sea; and as the other heauenly lights, as well the planets as other starres, lose their light in the presence of the Sunne, or as soone as he approacheth the horizon, in so much as that they seeme againe to render vnto him the whole light that they had before borowed of him▪ euen so likewise all the authoritie of the Senat, and all the commaund and power of Magistrats cease in the presence of the prince. So we see that he which deliuereth the soueraigne [ H] princes mind, whether it be in counsell, or in soueraigne court, before the states, or vnto the people, still vseth these wordes, So and so the king commaundeth, or saieth. But to the contrarie, if the prince be absent, the Chauncelour or President keeping the kings place aboue the other princes, pronounceth sentence or iudgement according to the opinion and mind of the Senat or Court wherein he sitteth, hauing ordinarie iurisdiction and power, and not in the name of the king. And for asmuch as William Poyet Chauncelour of Fraunce, and President of the great Counsell, in the absence of the king, oftentimes in iudgement vsed this forme of speech, The king saith so and so vnto you; he was therefore charged with treason, besides the other points of his accusation. Wherefore many are deceiued which thinke those lawes or Edicts which are [ I] published or ratified in the councell or court, in the presence of the prince, to be so published or confirmed by the Court or Councell: seeing that the Court hath then the hands bound, and that it is none but the king that so commaundeth, the motion or consent of his Attourney, the prince himselfe being then present, seruing to no purpose at all. And in Popular estates, the greatest magistrats as well as the least, in token of their humilitie, laid downe their mases and other tokens of honour before the people, and so standing, spake vnto the people sitting: showing, that in their presence they had no power at all to commaund. So all the motions made by the magistrates of Rome, were by way of humble request, as in this forme, Velitis, Iubeatis, May it please [ K] you, or commaund: VVhereunto the people there present, giuing their consent with alowd voice, before the law Cassia Tabellaria, vsed these words, Omnes qui hic assident volumus, iubemusque, All we that here sit will and commaund. And after the lawes called Tabellarias, the letters A. and V. R. written in the tables, signified Antiquo, (or, I repeale the law) and Vti Rogas (or, as you request). And in like manner the people of Athens gaue their voyces sitting, the magistrat in the meane time speaking vnto them standing, so long as they had any thing to say vnto them.

But then might some man say, If it be so, that the magistrats had no power to commaund particular men, nor yet one another, in the presence of the people which had [Page 345] the soueraigntie. VVhy did the Tribune of the people send his vsher vnto Appius [ A]Claudius the Consull, to commaund him to silence? And why did the Consull •…]o requite him with like, send his sergeant vnto him likewise, crying with a lowd voice, That the Tribune was no magistrat? VVhereunto I aunswere, that such contention and debate▪ oftentimes fell out amongst the magistrats, and especially betwixt the Consuls and the Tribunes: yet may we not thereof conclude, that either of them had any power to commaund the one the other, in the presence of the people, both their authorities then ceasing. So a controuersie arising betwixt the high court of Paris, and the court of Aids, for wearing of their purple robes, and accompanying the king, not farre from Henrie the second the French king, the president of the greater court of Paris sent a sergeant vnto the judges of the court of Aides, to forbid them to go any further: (and albeit [ B] that the king was not so nie as that he could heare such the presidents commaund) yet receiued he such aunswere from the judges, That hee had no such power to commaund ouer the court of Aids, and if he had, that yet he could not rightly there vse the same in the presence of the king.

But yet some man might obiect and say, That if the magistrats had no power to commaund in the presence of the prince, they were no more magistrats, neither should so great regard be had of their honours and dignities the prince being present, so as we see there is. VVhereunto mine aunswere is, That the magistrats by the presence of the prince loose nothing, but still continue in their offices, and so consequently in their dignities and honours, their power to commaund being but suspended. As in like case [ C] the Dictator being created, all the magistrats continued in their estates and offices, howbeit that all their commaunding power was then holden in suspence: but so soone as the Dictators commission was expired, and he once out of his office, the magistrats againe commaunded by the same right they had before: which they could not haue done, if their magistracies and offices had so, & indeed bene from them taken. Which may serue for aunswere to that which might be alleaged of these words, which are oftentimes to be read in the writings of the auntient Romans, viz. Creaeto Dictatore magistratus abdi•…]aht, Whereby it might seeme that the Dictator being created, the magistrats were out of office: which is not to be vnderstood of their offices, but of their power, as we haue before said, which was so for a while suspended. For otherwise the [ D] Dictator yeelding vp his office, the magistrats must haue sought for new power and authoritie from the people, their former power being before together with their office [Sidenote 897 - *] expired. And the reason is generall, that the power of the inferiour should be holden in suspence, in the presence of the superiour: for otherwise the subiect might command contrarie to the will of his lord, the seruant contrarie to the good liking of his master and the magistrat contrarie to the will and pleasure of his soueraigne prince•…] o•…] might at leastwise oppose himselfe against him, and by the vertue of his office forbid the inferiour persons to performe the commaunds of their superiours: which can in no wise be done, without ineuitable preiudice vnto the soueraigntie▪ except it be that the prince laying aside the soueraigntie of his person, goeth to see how his magistrats commaund; [ E] as the emperour Claudius ofttimes went openly to see the doings of his magistrats, and without disguising himselfe sat beneath them, foolishly giuing to them the more honourable place: or else in case tha•…] the prince, his maiestie in a sort set aside, giue leaue to the magistrat to iudge of his cause. For the maxime of the law, which saith, That the magistrat of equall or greater power may bee iudged by his companion or fellow in office, or by his inferiour also, when he snbmitteth himselfe vnto his power, hath place not onely in priuat persons and magistrats, but euen in soueraigne princes also; whether it please them to submit themselues or their causes to the iudgement of [Page 346] other princes, or of their owne subiects. And albeit that they may bee judges in their [ F] [Sidenote 898 - *] owne causes, vnto whome power is by God giuen to iudge, without beeing bound to the law, as Xenophon saith; yet neuerthesse it is much better beseeming their maiestie, and more indifferent also for them in their owne causes to abide the iudgement of their magistrats, than to become judges thereof themselues. But to the intent that the soueraigne maiestie of princes should not in any thing be impaired of the greatnesse thereof, and yet that the brightnesse and glorie of the royall name should not dazle the eies of the judges, it was wisely in this realme ordained by our auncestors, That the king should not plead but by his atturney; and that in all publike causes wherein the king or Commonweale were priuatly interessed, the kings name should be still cancelled, and the matter pleaded but in the name of his attourney. Which thing the rest of the [ G] princes and others hauing territorial iurisdiction, haue afterwards imitated and followed. So Augustus the emperour writ vnto the lieutenants of his prouinces, That they should not suffer his name to be debased with being too common in their commissions, as Tranquillus reporteth. Yet is it by a certaine speciall custome by our auncestors receiued, that if the king will in priuat iudgements against priuat men, be restored, the kings attourney shall not in demaunding thereof hold his seat and place, but chaunge the same, least he should seeme to plead a publike and not a priuat cause. But whereas we haue said, the power of the magistrats to be suspended in the presence of the prince, belongeth vnto the whole princes familie, so long as they waite vppon the prince: for ouer them the ciuil magistrats haue no power, except such magistrats as the prince hath [ H] appointed for the executing of the iurisdiction of the court.

Yet a man might demaund, Whether the magistrat might forbid a subiect or priuat [Sidenote 899 - *] man to come vnto the court, being within the iurisdiction of his territorie? Which is not without some difficultie: howbeit without entring into farther dispute, I say, that the magistrat banishing the guiltie subiect out of the territorie of his iurisdiction, where the prince may then be, secretly also forbiddeth him to approach the court, albeit that he cannot expresly forbid him to come vnto the princes court. Wherein the rule of Vlpian the lawyer taketh place, which saith, Expressa nocent, non expressa non nocent, Things expressed hurt, but things not expressed hurt not. And I remember how that [ I] it seemed a thing right strange vnto the court, and especially vnto the chauncellours of the houshold, that the Commissioners deputed by the prince, for the triall of the president Allemand (who familiarly vsed my councell) hauing by their sentence condemned him, forbad him also to come within ten leagues of the court. Which thing the councell vnderstanding, decreed, That it was lawfull for no man but the prince only to make any such prohibition. And haply was the chiefe cause that the president (of whose councell I was) obtained of the king, to haue the iudgement reuersed. For it were not onely an hard and inhumane thing, to keepe the subiects from hauing accesse vnto the prince, to deliuer vnto him their petitions (as well agreeing with the lawes both of God and nature) but it should also be a thing much preiudiciall vnto the maiestie of a soueraigne [ K] prince, as I haue before said. And albeit that the superiour courts of this kingdome haue vsed to banish men out of the realme, and so out of the bounds of their iurisdiction, yet should such their iudgement take none effect, if the king in whose name the courts of Parliament giue iudgement, gaue them not commission so to do, and that his royall commaunds were not vnto such their sentences subscribed: So their decrees also in forme begin in the kings name.

Now as the presence of the Prince holdeth the power of all Magistrats in suspence, [Sidenote 900 - *] so is it also to be deemed of the power of the superiour magistrates or commissioners ouer the inferior. As a man may see in Fraunce, where the Presidents & Councelours, [Page 347] euery one in his iurisdiction, and the Masters of Requestes in all seates of iustice, (except [ A] the soueraigne courts) haue power to commaund the Seneschals, Bailiffes, Prouosts, and other inferior magistrates, when they come into their prouinces, and sit in their places of justice, and there may iudge, ordaine, and commaund as superiours vnto their inferiours, and prohibit them to proceed any further, which is generall to all superiour magistrats towards their inferiours, as saith the law: Iudicium soluitur, ventante eo qui iudicare iusserat, vel qui maius imperium in ea iurisdictione habet, The iudgement is stayed, he forbidding it which commaunded it, or he which hath greater power in the same iurisdiction. Where the word, Imperium, or power, signifieth not onely the power to commaund, or forbid, but euen the magistrat himselfe: As when Cicero saith: Maius imperium à minori rogari ius non est, Lawfull it is not, for the greater power to [ B] be examined by the lesse; he would say, that the magistrat or commissioner equall or superiour in power, is not bound to answere before his companion, or one lesse then himselfe, which is a Maxime of the auntients, which Messala the Lawyer declareth by example, as thus: A minore imperto, maius, aut a maiore collega rogari iure non potest: quare neque Consules aut Praetores, Censoribus, neque Censores, Consulibus aut Praetoribus turbant, aut retinent auspicia, at Censores inter se; rursus Praetores Consules{que} inter se, & vitiant et obtinent, The greater power cannot by right be examined by the lesse, or a fellow in office, by an other his fellow officer though greater then him selfe: wherefore neither the Consuls or Pretors trouble, or keepe the south-sayings from the Censors, neither the Censors from the Consuls or Pretors, but the Censors [ C] amongst themselues; and so againe the Pretors and Consuls among themselues, do one hinder an other, and so preuaile. And these be the words of Messala, which hee saith himselfe to haue writ out of the xiiij booke of C. Tuditanus, but hath failed in that which he saith after: Praetor etsi Collega Consulis est, neque Praetorem, neque Consulem iure rogare potest, The Pretor although he be the Consuls companion, can by right examine neither the Pretor nor the Consul, which was happely done by the errour of him that write it: For he should haue said: Praetor etsi Collega Praetoris est, The Pretor although he be the Pretors companion, and not, Consulis, or the Consuls: except we should salue the matter, in saying that the Consuls, Pretors, and Censors were all fellowes and companions: Quia soli ijsdem auspicijs, ijsdem comitijs, id est maioribus [ D]creabantur, caeteri magistratus minoribus auspicijs & comitijs, for that they alone were created and chosen, by the same diuinations and assemblies, that is to say the greater: whereas the other magistrats were chosen by the lesser, for otherwise the Latins neuer abused the word (Collega) in that sence; Besides that the Pretor was neuer the Consuls companion or fellow: but well to the contrarie, appeal might lawfully be made from the Pretor to the Consul. As we read that Aemylius Lepidus the Consul receiued a man appealing from the Pretor Orestes; and by a contrarie decree reuersed the Pretors decree. So we read also that Luctatius the Consull tooke the triumph from Valerius the Pretor, for that he being Consull was the generall of the armie, although he were that day from the armie wherein the victorie was got. That showeth also the [ E] power of the Consull to haue beene greater then the Pretors, for that the Consull had twelue Lictors, and the Pretors but two in the citie, and sixe at the most if they were sent into the prouinces, whom the Greekes therefore called 〈 in non-Latin alphabet 〉], for so it is by the law Lectoria prouided, which was made concerning the power of the Pretor of the citie; who was of all other Pretors the greatest: Praetor Vrbanus duos Lictores apud se habeto, isque ad supremum solis occasum ius inter ciues dicito, The Pretor (or Prouost) of the citie, let him haue with him two Lictors, and let him administer justice amongst the citizens vnto the going downe of the sunne. Wherefore let this stand for good, [Page 348] not onely fellowes and companions in the same power, but also magistrats of like and [ F] equall power, not to haue power to examine one another, and therefore much lesse them which haue greater power than themselues.

But yet question may be, whether a companion or fellow in office, or one of lesser [Sidenote 901 - *] power, or he which is no fellow in office at all, yet hauing power in his owne iurisdiction, may therein stay the acts or proceedings of his equall or superiour in authoritie? For oftentimes great cōtrouersies haue fallen amongst magistrats about such prerogatiues. And the difference is right great betwixt commaundement, and empeachment or opposition: for companions or fellowes in office haue no commaunding power one of them ouer an other, and yet neuerthelesse they may in publique actions one of them oppose themselues against an other, and so hinder one an others proceedings. [ G] [Sidenote 902 - *] As Piso the Pretor or judge betwixt straungers and the citisens of Rome, oft times troubled Verres the Pretor of the citie, sitting in iudgement of causes betwixt citisen and citisen: causing his tribunall seat to be brought neere vnto the tribunall seat of the Pretor of the citie, so to hinder the vniust and iniurious decrees of Verres; and so administred iustice vnto the citisens flying from the tribunall seat of the citie, vnto him, as by the law they might. And therefore Cicero in one of his lawes sayth: Magistratus nec obedientem, & nociuum ci•…]em, mulcta, verberibus, vinculis coerceto, nisi par maiorue potestas prohibessit, Let the magistrat restraine the disobedient and hurtfull citisen, with fine, stripes, and bondes, except an equall or greater power forbid it to be done: [Sidenote 903 - *] neither sufficeth it to say prohibessit, or forbid it, for that the magistrat can do nothing [ H] in the presence of his companion equall in power with himselfe, without his expresse consent, or else that he submit himselfe vnto his power. As it appeareth in that which Paulus the lawyer saith: Apud eum cui par imperium est manumitti non posse, & Praetorem apud Praetorem manumittere non posse, Before him which hath equall power (with himselfe) a man cannot manumize, and a Pretor before another Pretor cannot manumize. Neither doth that saying of Vlpian contradict or impugne the same: Consulem apud Consulem manumittere posse, which is, That one of the Consuls may manumize before the other Consul: seeing that that is to be vnderstood that he might not doe it vpon the same day that hee which did manumize or enfranchise had the bundels of rods and power to commaund; for that they both neuer had power vpon [ I] the same day, as saith Festus Pompeius, as is in many places to be seene, whether they were at vnitie betwixt themselues or not. And therefore Liuie surnamed the Salter, carried away the triumph from Claudius Nero his fellow and companion in the Consulship, for that he commaunded that day wherein the victorie was obtained (as saith Liuie) albeit that the battell were giuen against Hasdruball by consent of them both; For Lucius Caesar (as Festus Pompeius writeth) deemeth him to be called the greater Consul, which had the bundels of rods or maces; or him which was first made Consul; which Paulus himselfe confirmeth. And all this wisely, for if both of them should at once haue had the power, nothing could haue beene peaceable, nothing firme or [ K] sure in the great affaires of the Commonweale. Wherefore the Decemuiri beeing created at Rome for the reforming of the Commonweale, and making of the lawes of the xij Tables; it was added vnto the law, That they should by turnes haue the maces with the power to commaund. Now if any man aske the reason why a fellow in office may impeach or stay his fellow officer in his proceeding, if they both haue authoritie and power at the same time: it is grounded vpon the reason generall, of all them which haue any thing in common, wherein he which forbiddeth hath most force, and his condition in that case is better than his which would proceed on further. Which reason preuaileth also, when question is of the force & power of laws, wherein [Page 349] the force of the law which forbiddeth, is greater then of that which commaundeth. [ A]

But whereas we haue said Magistrats of like power or fellowes in office not to be [Sidenote 904 - *] bound to the power or commaund of their companions or fellowes, that is so true if that they both be in number equall: for in all Corporations and Colleges, they which are in number most, are also superiour in power: and therefore the lesse part of magistrats fellowes in office, cannot forbid the greater. But if all the Magistrats were of one mind and opinion, these words were wont to be written vpon their decrees and edicts, Pro Collegio, for the Colledge, (which shall in their place be expounded.) But if it be true that we haue said, why did then Messala say? Consulem ab omnibus magistratibus concionē auocare posse▪ ab eo neminem: deinde Praetorem ab alijs preterquàm a Consulibus: minores magistratus nusquam nec concionem nec comitatum auocasse, That the Consull [ B] might call the assemble of the people from al the Magistrats, but none might call them from him, and so next after him that the Pretors might call them from all others, excepting from the Consuls: but that the lesser magistrats could no where call away, neither the assemblie nor sessions of the people. Wherof it followeth, that the impeachment & opposition of the lesser magistrats could not in any sort let or hinder the actions or commaunds of the greater. Whereunto I aunswere, that to call away belongeth to power and commaund, which opposition doth not. Now there is great difference, whether you commaund, or otherwise hinder any thing to be done, as we will hereafter more plainely declare. But first it is to be noted, that that which Messala saith is true in other magistrats, but not in the Tribunes of the people: whome wee haue [ C] showed to haue had the title of magistrats, with power to assemble and call together the common people, and to constraine the Consuls to giue place vnto their opposition, not so much by the power they had to commaund▪ as by imprisoning of their persons, and seising of their goods: for if they commaunded any thing, and the magistrat refused or reiected their commands, they forthwith for such their contempt, commanded them to be cast in prison: For so Seruilius the Senator directing his speech vnto the Tribunes, saith, Vos Tribunt plebis Senatus appellat, vt in tanto discrimine Reipublicae Dictatorem dicere Consules provestra potestate cogatis, Tribuni pro collegio pronuntiant, placere Consules Senatus dicto audientes esse, aut in vincula se duc•…] iussuros, The Senat calleth vpon you the Tribunes of the people, that in so great a daunger of the Commonweale, [ D] you for the power you haue, would compell the Consuls to nominat a Dictator. The Tribunes in the name of the colledge of Tribunes pronounced that their pleasure was, that the Consuls should be obedient vnto the commaund of the Senat: threatning otherwise to commaund them to bee cast into bonds. And it was so farre from being lawfull for the Consuls to haue power to hinder the assemblies of the common people called together by the Tribunes, as that it was not in their power so much as to interpret them in speaking vnto the people, and that vppon paine of death by the law Icilia, if he that had so interpreted the Tribune in his oration or speech, paied not the fine or amercement imposed vpon him by the Tribune. As the Tribune Drusus well caused Philip the Consull to vnderstand, whome he made to be cast in prison [ E] for interrupting him in his speech vnto the people.

That also which we haue said, the greater part of a companie, or colledge of magistrats [Sidenote 905 - *] to preuaile against the lesser, taketh not place amongst the Tribunes of the people, one of the Tribunes voices being able of it selfe to stay all the proceedings, not of the Senat onely, but of all other the magistrats, yea & of the rest of his fellow Tribunes also: whereas to the contrarie, the acts of one Tribune alone, were of force, except some of his fellowes and companions openly opposed himselfe against the same. As is in Liuie to be seene, where he saith, The farmers of the publike demaine to haue beene [Page 350] discharged by a decree published vnder the name but of one of the Tribunes only. And [ F] that the power of the greater part of the Tribunes might bee withstood by the fewer opposing themselues against them, it is manifest by that, that at such time as Appius the Censor by force held his power and Censorship longer than he should haue done, and the time thereof being now expired, contratie to the law Aemilia, Sempronius the Tribune of the people in the open assemblie of the people, said vnto him, Ego te Appi in vincula duci iubebo nisi Aemiliae legi parueris, approbantibus sex Tribunis actionem collegae, tres auxilio fuerunt summaque inuidia omnium or dinum solus Censuram gessit, I will commaund thee, O Appius (saith he) to be cast into bonds, except thou obey the law Aemilia; and six so of the Tribunes allowing & approuing the doing of their companion and follow Tribunes, three others of them tooke part with Appius, and so hee alone [ G] held his Censorship, with the great enuie and hart-burning of all sorts of men. So likewise at such time as Cicero then Consull (the armie of Cateline beeing discomfited and ouerthrowne, by the conduct of C. Antonius the other Consull) bare all the sway in the citie, and had turned all the fauour of the people vnto himselfe alone, nine of the Tribunes of the people to restraine such his immoderat power, were all of opinion to send for Pompey with his armie; and had so done, had not Cato one of the Tribunes of the people alone opposed himselfe in Ciceroes behalfe, and so hindered the proceeding of his fellow Tribunes. So when Scipio Africanus accused of extortion, was to haue bene cast in prison, he was saued onely by Sempronius one of the Tribunes, and father of the Gracchies, opposing himselfe against his fellowes. [ H]

But how (might some man say) could one Tribune alone let the actions and proceedings of the Senat, of the Consuls, yea and of all his companions and fellowes in office also? Yet most certaine it is that he might so do, if the other Tribunes preferred not a request against him vnto the people, to haue him put out of his office and authoritie. And therefore at the request of Tiberius Gracchus the Tribune, Marcus Octauius another of the Tribunes, withstanding the profit of the people, and the enacting of the lawes for the diuision of lands, was of necessitie to be thrust out of his office of the Tribuneship, before the law Sempronia for the diuision of lands could bee established. And to that end tendeth that speech of the Tribune vnto the Senators, in Liuie, Faxo ne iuuet vox ista veto, qua collegas nostros tam laeti concinentes auditis, contemni iam Tribunos [ I]plebis, quippe potestas Tribunitia suam ipsa vim frangat intercedendo, I shall make (saith he) that this word Veto, (or, I forbid) which you now so merrie heare our fellowes together singing, shall helpe you nothing, the Tribunes of the people must now needs be contemned, for that the Tribunitial power doth weaken the power of itselfe, by opposing it selfe against it selfe. But this power and opposition of the Tribune, was ordained and prouided for the libertie of the people, and against force offered them, and not for the priuat profit of the Tribunes themselues: who if question were of any particular of theirs, whether it were in ciuill or criminall causes, were not in any thing respected, but suffered iudgement, as other men did, if some one or other of their fellowes [ K] in office enterposed not themselues, and so letted the proceeding. As when Lucius Cotta one of the Tribunes of the people, being sued, would neither answere nor pay his creditors, Fiducia sacrosanctae potestatis, as bearing himselfe vpon the reputation and credit of the most sacred power of the Tribuneship; his companions in office openly denounced vnto him, That they would aid the creditors against him, except hee made them payment. Yet at length by little and little it was agreed, That the colledge or companie of Tribunes, should be also bound vnto the same lawes and customes that other colledges and companies were, viz. That decrees made by the consent of the greater part should bind the rest. As is easily to be gathered of that which Liuie saith, [Page 351] Ex auctoritate Senatus latum est ad populum, ne quis templum arcemue iniussu Senatus, aut [ A]Tribunorum plebis maioris partis dedicaret, It was by the authoritie of the Senat propounded to the people, That no man without the commaund of the Senat, or of the greater part of the Tribunes of the people, should dedicat a temple or a castle. And afterwards by the law Attilia it was ordained, That the Pretor of the citie, and the greater part of the Tribunes of the people, might appoint tutors vnto women and fatherlesse children. Which custome grew into such force, as that the Senat commaunded Quintus Pompeius Rufus a Tribune of the people to be cast into prison, for that he being but one, went about to forbid an assemblie of the states to bee called. Whereas otherwise the wilfull rage of one furious Tribune might haue troubled the whole state of the Commonweale. And this was the cause why the Consull being about to assemble [ B] the great estates of the people, by sound of trumpet caused an edict to bee proclaimed, forbidding all magistrats lesser than himselfe, to haue regard vnto the Auspicia, that is to say, vnto the disposition of the ayre, or the flight of birds, for the coniecturing thereby, whether the thing which was then taken in hand, were agreeable with the wil and pleasure of their gods or not. For if it thundered or lightned neuer so little, or if the birds were seene to flie on the right hand, or if any of them there present fell of the falling sicknes, (which was therefore called Morbus comitialis) or if any other monster were borne, the assembly was accounted thereby polluted, and so the people presently broke vp and departed without any thing doing: the sooth-sayers thereby denouncing vnto them, That the gods were then angrie, and not well pleased with their doings. [ C] Which was the charge of the Augures or soothsayers so to denounce vnto them, but yet might not lawfully oppose themselus against that was to be done, as might the magistrats of equall power, or greater: but if the magistrats were inferiour vnto him that held the assembly of the estates, their opposing of themselues could not let the further proceeding of the superior magistrat, howbeit that such acts or proceedings were thereby defectiue, and so subiect to reuocation. In such sort, as that Caius Figulus the Consull with his companion, after he had bene chosen, taken his oath, and transported his armie euen into Spaine; yet was he neuerthelesse with his fellow Consull, by a decree of the Senat, called backe againe home and enforced to giue vp their power and authoritie: For that the soothsayers had before declared vnto Tiberius Gracchus the [ D] Consull (then holding the great assemblies for the choyce of the Consuls) That the signes and tokens whereby they tooke their predictions were vnfortunat and contrary. Wherefore the lesser magistrats could not trouble the assemblies of the greater, or cal the people alreadie assembled from them, but such magistrats onely as were equall and of like power with them. But the Tribunes of the people although they might not interrupt the assemblies of the greater magistrats, or cal the assembled people from them, yet might they by opposing of themselues hinder their other actions and proceedings: and in case that the magistrats would yet needs proceed contrarie to their oppositions, the Tribunes would then vse plaine force against them; so that ostentimes murthers were thereabouts committed. For so Asellius the Pretor, or Prouost of the citie, for fauouring [ E] the debtors against their creditors, was as he was doing sacrifice slain by atumultuous company of the creditors, hauing for their leader one of the Tribunes of the people. In like sort Appius Saturninus Tribune of the people, slew Munius the Consul, [Sidenote 906 - *] in the verie assemblie of the people.

And as publike actions are troubled or letted by magistrats equal or greater in power than they by whome they are done, opposing themselues against them: so beeing once done, appeale is to be made from the lesser magistrats vnto the greater, sauing vnto euerie man his iurisdiction and power. Now if it bee not in the lesser magistrats [Page 352] power to commaund the greater, or to stay his proceedings, much lesse can he vndoe [ F] what he hath alreadie done, reuerse his iudgements, or receiue appeales made from him, which are not lawfully to be admitted from the greater magistrats vnto their fellowes or men equall in authoritie with themselues. But euen to the contrarie, if a magistrats deputie or lieutenant be preferred to like estate or degree with the magistrat whose deputie or lieutenant he is, his commission of deputation or lieutenancie ceaseth, and the acts by him begun are interrupted and broken off. Wherefore if the equall or lesser magistrat, shall receiue one appealing from the equall or greater magistrat, an action of iniurie may be commenced against such a magistrat, as also against him who hath so appealed vnto the lesser magistrat, or fellow in office with him from whom he hath appealed. For so Caesar as then but Pretor, beeing accused before one [ G] of the Questors, as hauing an hand in the conspiracie of Cateline, caused both the accuser and the Questor being both grieuously fined to bee cast in prison, and especially the Questor, for that he had suffered a greater magistrat than himselfe to be accused before him, as saith Suetonius. So the court of Paris by a seuere decree forbad the judges or magistrats of them which haue territoriall iurisdiction, to bind the kings magistrats or judges with their edicts or prohibitions: and that if they did otherwise, the kings magistrats or judges might by way of iustice proceed against them for so doing.

But here a man might doubt, Whether the inferiour or lesser magistrat, who may [Sidenote 907 - *] be commaunded by the superiour, may also be commaunded by the superiour magistrats lieutenant, or deputie? Which most haue thought to be a thing without doubt, [ H] considering that the lieutenants, or deputies, command nothing in their owne names, neither can do any thing but in the name of the magistrat whose place they hold, and vnto whome the inferiour magistrat oweth obedience. For otherwise if it were lawfull for the inferiour magistrats to disobey the lieutenants or deputies of their superiours, other particular men by the same reason might likewise withstand them, which were the way to ruinat & ouerthrow the whole estate of the Commonweal. Howbeit that it might also be said, that magistrats lieutenants erected in title of office haue power and authoritie by the law, and so also power to commaund in their owne names, and in that qualitie to constraine the inferiour magistrats to obey them. Yet neuerthelesse I say, that in that they are lieutenants or deputies vnto other the superiour magistrats, [ I] they cannot commaund or giue our commission in their owne names; which if they do, the inferiour magistrats are not bound to obey them: As was adiudged by a decree of the parliament of Paris, at the suit of the Seneschal of Touraine against his lieutenant, who published edicts and decrees in his owne name, which should haue bene set forth in the name of the Seneschall himselfe. Which was a thing without all doubt before the edict of king Charles the seuenth that the lieutenants should bee placed and displaced by the Seneschals: but the doubt arose after that they were by him erected in title of office, as hauing then their power from the king, and not from the Seneschals. But we must not thereupon presume, that the purpose and intent of the king therein, [ K] was to take away the power from the Seneschals or Bailifes (which could not be done but by an expresse edict for the suppressing of those offices) but contrariwise the erection of their lieutenants in the title of lieutenants, was much more to establish the honour of the Seneschals and Bailifes, and yet so to diminish their power. As first the Senators at Rome, and after that the emperours themselues, were woont to appoint lieutenants vnto the Proconsuls (or gouernours of their prouinces) who yet for all that had not their power to commaund from the Senat or the emperour, but from the Proconsuls or gouernours themselues. Wherefore the law saith, Apud legatum Proconsulis non est legis actio, that is to say, that he might do no exploit or act of iustice, [Page 353] but in the name of another man: not for that▪ it was not lawfull for the Proconsuls [ A] lieutenants, as it was for the lieutenants of al other magistrats to manumise or enfranchise within the precinct and territorie of the prouince of those magistrats whose lieutenants they were. Which the doctor Cuias hath denied, and in the auntient reading corrected these words, Ex quo prouinciam ingressus est: Which his correction if it were to be admitted, thereof should follow diuers ineuitable absurdities, these words (as hee would haue them) being left out: for so the lieutenants could not in the territorie of their magistrats, ordaine, decree, commaund, or do any thing; which is all that the law properly calleth Legis actiones, or the actions of the law; all which we read lieutenants to haue still done in their owne prouinces: and yet neuerthelesse the Maires, and Duumuirs, or Consuls of villages & townes, had power to manumise or enfranchise, and [ B] to appoint tutors by commission within their owne iurisdiction. Wherfore the execution or action of the law, is not in the magistrats lieutenāts or deputies, but in thē which so appointed the lieutenants or deputies. Yea the magistrat himselfe, who doth but exercise another mans iurisdiction, can in his owne name commaund nothing. Wherof it commeth, that a man cannot appeale from a lieutenant or deputie, vnto him whose lieutenant or deputie he is: for so appeale should be made from the same man to himselfe. Howbeit that the magistrat may examine the iniurie and wrong done to priuat men by his lieutenant or deputie; and that because the lieutenant or deputy hath not all the iurisdiction and power of the magistrat, whose lieutenant or deputie hee is: and yet lesse in auntient time, than at this present, when as the lieutenants of the Proconsuls [ C] or gouernours of countries, had no power to inflict corporall punishment vpon any. The princes lieutenants generall also in the wars, albeit that they haue a most high commaund and power ouer all souldiors, of what degree or condition soeuer, yet if any of the princes of the blood offend against the lawes militarie, the hearing and triall thereof belongeth not vnto the lieutenants generall, but vnto the soueraigne prince himselfe; or at least wise vnto the chapiter of the knights of the order, especially in case it concerne either honour, or life. And in much more strong tearmes, if question be of ecclesiasticall discipline, onely the bishops are not bound to aunswere before the archbishops officials, or vicars generall; as it was by a decree of the parliament of [Sidenote 908 - *] Paris, adiudged for the bishops of Troy, and Neuers: Whereby it was said, that they [ D] were not bound to obey, but onely vnto the archbishops in person themselues. But that which I haue said of the power of the superiour magistrats ouer the inferiour, is to bee vnderstood in their owne territorie, seat, and iurisdiction▪ out of which they are but as other priuat and particular men, without power or commaund.

But now the question might be asked, Whether that magistrats equall and fellows [Sidenote 909 - *] in authoritie and power, be also equall in honour and dignitie? Whereunto I aunswere, that honor and dignitie doth in nothing communicat with authoritie and power: yea oftentimes it chaunceth and commeth to passe, that hee which hath most honour, hath so much the lesse power: than which secret none is almost greater, or more profitable for the maintenance & preseruation of the Aristocraticall or Popular Commonweales, [ E] or that is in any place of the world better kept than in Venice. Of the Consuls he that was first chosen Consull, was also first named in all their publike acts and fastes, and so had the honour of precedence: but if they were both at once chosen, he that was the elder was in honour also aboue his fellow, vntill the law Pappia Poppeia, which gaue the prerogatiue of honour vnto the married Consull: or if they were both married, then vnto him that had most children, which supplied the number of yeares. So amongst the Pretors, who were all of one colledge or companie, and their power all one; he which was called Vrbanus (or the Pretor of the citie) was in dignitie [Page 354] and honour aboue the rest, and so called the Greatest Pretor, for that he was first of all [ F] chosen, and in the absence of the Consuls held their places, assembled the Senat, and called together the greatest estates, with such other like things belonging to the office of the Consuls. And amongst the ten Archontes of equall power in Athens, there was one, who yet in honour exceeding the rest, had the publike acts authorised in his name, and gaue himselfe names also vnto the Annales and publike acts and decrees, and was thereof called 〈 in non-Latin alphabet 〉]. So amongst all the parliaments of Fraunce (beeing almost all of like power) the parliament of Paris hath the prerogatiue of honour aboue the rest, as more auntient; and by a certaine singular right is yet called the Court of the peeres of Fraunce, as hauing the triall and iudgement of the peeres, which none of the rest of the courts of parliament haue. And albeit that in the time of Charles the viij, the [ G] great Councell mannaged the affaires of state, yet so it is, that the king by expresse edict ordained and appointed, That in all edicts and mandats, wherein mention should bee made of the court of parliament, and of the great Councell, the Court of parliament of Paris should alwayes be set formost. So whereas the kings Attourneies are almost in number infinit, he of the parliament of Paris hath alwaies the prerogatiue of honour aboue all the rest of the kings Attourneies, who all are sworne vnto the judges of the soueraigne courts (wherein they are Attourneies) except the Attourney generall of the Parliament of Paris, who is not to bee sworne but vnto the king onely. So wee see that the Constable of Fraunce, and the Chauncelor, albeit that they haue not power or commaund one of them aboue the other, but are equall in sitting, [ H] and in going side by side, yet neuerthelesse the more honourable place is reserued vnto the Constable▪ which is on the right hand of the king, and the Chauncellor on the left: except some haply may say him to haue that place for to beare the kings sword vpon the kings right hand: yet besides that, at the consecration and coronation of the king, and other ceremonies wherein place of precedence is, the Constable goeth before the Chauncellour, and next vnto the Chauncellour followeth the Grand Maister of Fraunce. Which I would haue vnderstood to be of me so spoken, not as if my purpose were to determine any thing of honours, but as an example by the way whereby to perceiue how much honour differeth from authoritie or power. [ I]

But forasmuch as we haue said, that magistrats equall in power, or which hold nothing [Sidenote 910 - *] one of them another, cannot be commaunded one of them by another; a man may doubt whether if amongst many princes or coequall lords, one offend, hee may be restrayned or corrected by the other princes or lords his equels? For why, iurisdiction is of it selfe by nature indiuisible: and lords of one and the same iurisdiction haue one of them as much power as the other; and euerie one of them hath entire power for all: which is not so amongst princes or magistrats which haue their charges or territories diuided, and which haue not any thing to commaund one of them the other; and much lesse when many magistrats in one bodie or colledge haue one and the same charge together; where no one of them hath of himselfe any [ K] power or commaund, except it be by commission from the whole colledge giuen him. Yet many there be which hold, that one of these lords may be restrained and corrected by the other lords his compeers and coequals, as hauing by his fault lost his iurisdiction and right, as it hath bene iudged in the court at Rome. Which iudgement may well be borne with, howbeit that the reason thereof is not good; for to say that hee offending hath thereby forthwith lost his power and iurisdiction, were to do execution before iudgement, and to spoile the lord or magistrat of his estate or place before he were heard. And albeit that the threats, penalties, edicts, and decrees, expressed and set down in the lawes, had the force of a thing alreadie iudged, as some haue thought them to [Page 355] haue: yet so it is, that the fact in question is alwaies in iudgement to be tried, whether [ A] it were done or no; and in case it be confessed, yet before the execution, must the sentence be pronounced by the mouth of the judge, who can haue no power ouer his compeere, who hath equall power and authoritie in the same territorie with himselfe, as we haue before declared, following therein the sounder opinion of the greater part of lawyers, not much regarding that others say, That euerie man is there to be iudged where he hath offended: which is so true, if there be no lawful cause which may hinder iudgement to be in the same place giuen. In a colledge or companie of magistrats, or [Sidenote 911 - *] judges, if the greater part of them agree in one, there is no doubt but that they may iudge or chastice any one, or the lesser part of their fellowes: as they did in the Senat of Rome, after the law which Adrian the emperour made for the iudging of Senators; [ B] and as they doe in all the courts of this realme. But betweene many equall lords or compeers of the same territorie, the reason is farre otherwise; for that euerie one of them hath himselfe the whole iurisdiction and power, nor cannot iudge but by turnes, one of them after another, neither haue more than one seat of iustice, in one and the same iurisdiction, but by the new grant of their patron or predominant lord. And in this, seruice differeth from iurisdiction; for that seruice suffereth it selfe to be at once & together enioyed of euerie one that hath right thereunto: but iurisdiction not so, as many haue thought, hauing excepted dutchies, marquisats, and counties; which by the auntient lawes of fees are of an indiuisible nature. But it is neither for vs needfull, neither doth this place require vs by reasons to refute the opinion of them which affirme [ C] iurisdictions so to cleaue vnto the territories, as if they were indeed seruices; least in so doing we should passe without the bounds of our purpose. Sufficeth it in passing by, to say, Iurisdiction to hold so little of fee, as that the soueraigne prince selling or giuing a fee, of what nature soeuer it be, is not therefore to be reputed to haue giuen or sold the iurisdiction thereto belonging; as it hath ofttimes bene iudged, & at length because it should no more be doubted of, was by an edict of Philip the faire more straitly prouided for: yea although the donation were by the soueraigne prince made to religious or deuout vses; which many (but without cause) haue excepted, the law being made generall. Seeing therefore that magistrats in power equall, or which hold not any thing one of them of another, cannot be commaunded or corrected one of them by [ D] another; much lesse can the equall lords or compeers of the same territorie and iurisdiction commaund or reforme one another, but the superiour magistrat or predominant lord is to haue the hearing and determining of the matter. By our customes the superiour courts haue reserued vnto themselues, the controuersies of the kings magistrats and officers amongst themselues, concerning their power and iurisdiction. But if question be for the executing of the decrees or iudgements of one of them in the territorie of another, it is to be done by honest request and leaue before obtained: howbeit that by a new law, that custome is taken away out of this our Commonweale, and power giuen vnto pursiuants to put in execution all the magistrats commaunds, almost throughout all the kingdome. As for soueraigne princes, not subiect to the [ E] power or commaund of others, they must in such case, of necessitie vse requests one to another, for that they cannot be compelled by the command of any greater power, as magistrats may, who without any leaue asked, suffer the iudgements of other magistrats to be put into execution in their prouinces: or in case they refuse so to doe, are to be constrained by the superior powers. Which asking of leaue of the greater or equall power to execute or suffer iudgement giuen out of their territories, to bee executed therein, offering to do or suffer the like to be done in theirs, as occasion shall require, hath of all antiquitie beene obserued and kept. Howbeit it seemeth the Roman empire [Page 356] yet florishing, that to put in execution a mandat or iudgement out of ones owne territorie, [ F] it was needfull first to obtaine the Emperours letters of commaund, seeing that the law saith, Sententiam Romae dictam, possunt Praesides in prouincijs, si hoc iussi fuerint exequi, The Presidents in their prouinces may put in execution a sentence (or iudgement) giuen at Rome, if they be thereunto commaunded: yet much more seemely it were by the good leaue of the magistrat to obtaine the same, than by force to extort it against his will. As in like cause the Emperour said vnto him which complayned of his companion, without hauing before spoken vnto him, Alloquere illum, ne rem iniustam faciat, Speake vnto him, that he do thee not wrong: forasmuch as the princes commaund, or constraint of the superiours in such case, giueth occasions of quarrels and iealousies amongst Magistrats, seeing the decrees of their equals, or of their inferiours, [ G] against their wils to be put in execution in their owne territories: which oft times turne to the great hurt of the subiects, and dishonour of the Commonweale, one of the magistrats, or of such as are in authoritie, in dispite of the other discharging their cholerique passions vpon the poore innocents: As did the Consul Marcellus, who in [Sidenote 912 - *] despite of Caesar caused certeine of the citisens of Nouocome to be whipped, to make them to know (as he said) that Caesar had no power to giue vnto them the right and freedome of the citisens of Rome. But much greater is the poore subiects harmes if such contention and difference for power and authoritie, fall out amongst the greatest magistrats, or highest Courts. As I remember such a difference fell out betwixt the [ H] parliament of Paris, and of Burdeaux, about the execution of an arrest giuen in the parliament of Paris; which the parliament of Burdeaux vpon the princes commaund suffered to be executed within the iurisdiction thereof, but with condition, that if any opposition or appeale were in the doing thereof made, the parliament of Burdeaux should haue the hearing and disciding thereof. He which had the execution of the matter, willing to proceed farther, notwithstanding the opposition of the defendant, appeal was by the partie made vnto the parliament of Bourdeaux, whom the plaintife preuented in the parliament of Paris. This contention betwixt the two parliaments was by the king referred vnto the great Counsel; where it was decreed, That to receiue and heare the appeale belonged vnto the parliament of Paris; for that euery man ought [ I] of right to be the interpreter and expounder of his owne meaning: and as none but the prince may declare his lawes and commaundements, so it belongeth to the magistrat to declare the meaning of his owne sentence. Now here question was of the right meaning of a thing alreadie iudged, at such time as the partie guiltie offered his opposition vnto the officer, putting into execution the decrees of the higher Court, from which a man may not by the lawes appeale▪ vnto which opposition of the partie guiltie, if the officer giue not way, then it is vsuall to appeale, not so much from the sentence of the higher Court, as from the iniurie of the officer which would not heare the opposition, which he must needes, except the Court haue commaunded the iudgement thereof to be put in execution, notwithstanding any opposition. [ K]

But what if the Magistrat shall haue no respect or regard vnto the requestes or decrees [Sidenote 913 - *] of his equall, or of the inferiour magistrat, nor suffer their commaundements to be put in execution within his iurisdiction. Truely in this case he is to be thereunto by the superiour magistrats compelled: or if they be of the higher sort of magistrats which are at controuersie among themselues about their iurisdiction and power, they are by the princes authoritie to be enforced: for so these wordes of Vlpian the Lawier are to be vnderstood, Si hoc iussi fuerint, If they shall be so commaunded: viz. by the prince, (but not by the magistrats) at such time as the Presidents or gouernours of countries, euery one of them in his own prouince had the chiefest power and authoritie next vnto [Page 357] the Prince, by whom onely they were to be commaunded. And whereas in the Edicts [ A] or lawes any thing is commaunded to be done, it is thus to be vnderstood, that euery Magistrat in his owne prouince is to be obeyed, for that the magistrat hath no power to commaund out of his owne territorie or iurisdiction. In auntient time the kings Pursuiuants or officers, if they were to put in execution the commaunds of the royall magistrats in the territorie of such lords as had therein territoriall iurisdiction, were first to aske them leaue; vntill that afterwards it was by the most strait decrees of the highest courts forbidden them so to doe, for that therein the soueraigne maiestie of the king seemed to be something empaired.

But yet it might be demaunded, whether the inferiour Magistrats might cause their [Sidenote 914 - *] commaunds to be put in execution, without the leaue of the superiour magistrat, vnto [ B] whom appeale was made? and that after the same appeale let fall, and the time past, appointed for the prosecuting thereof; which the Lawiers to no purpose call Fatalia, enduced thereunto by an old errour and inueterat fault of them which haue translated the Code, and authentiques out of Greeke into Latin, wherein for 〈 in non-Latin alphabet 〉], they haue red 〈 in non-Latin alphabet 〉], which is to say, fatall daies, for daies prefixed and of assignation: which the law of the twelue Tables called Statos d•…]es, daies appointed; as in this law, Si status dies cum hoste, that is to say, If the day appointed with a straunger. Neither euer did lawier or man that could speak Latin, vse this forme of speaking, neither hath any of the Latins or Greeks called them for 〈 in non-Latin alphabet 〉] or Fatales. The Lawiers haue oftentimes diuided Dies sessionum, a diebus continuis, Daies [ C] [Sidenote 915 - *] of Session, from daies of Continuation. And if any thing were by the magistrat commaunded to be done within a certaine time, the Lawiers called it Statutum tempus, and edictum peremptorium, a time appointed, or edict peremptorie: but when the time wherein the sute ought to be determined is expired and past, or that the sute is let fall, we say, Litem mori, the sute to die; or instantiam perimi, the instance to be lost: as before, we say, Litem viuere, or, the suit to liue: but none of the Lawiers hath vsurped Fatalem diem, or Fatalia tempora, a fatall day, or fatall times. But all this errour is deriued of the chaunging of this one Greeke letter 〈 in non-Latin alphabet 〉] into 〈 in non-Latin alphabet 〉], for seeing that by the word 〈 in non-Latin alphabet 〉], or 〈 in non-Latin alphabet 〉], the Greeks aswell as the Hebrewes signifie Fatum, or destinie, they must needes translate 〈 in non-Latin alphabet 〉], fatalem diem, that is to say, a fatall day. Demosthenes [ D] oft times calleth it 〈 in non-Latin alphabet 〉], which the Latins call statum diem; and we in our practise, praefixam, that is to say, an appointed, or prefixed day: for so Demosthenes saith against Media,〈 in non-Latin alphabet 〉], & against Stephanus,〈 in non-Latin alphabet 〉]: and sometimes also he saith, 〈 in non-Latin alphabet 〉], as to Nicostratus: and the later Greeks haue called it 〈 in non-Latin alphabet 〉], & 〈 in non-Latin alphabet 〉], but neuer called it 〈 in non-Latin alphabet 〉]. And so pope Synesius metaphorically calleth the last day of a mans life 〈 in non-Latin alphabet 〉], because he would not call it 〈 in non-Latin alphabet 〉], or Fatall; a word vnto Christian men and true religion straunge. Wherefore for Fatall daies of appeales, we shall more truely and better vse the tearmes of Appointed times, for so the lawyer calleth them. But that Iustinians lawes were written in Greeke before they were written in Latin, I suppose no man to [ E] doubt. And that the Theodosian and Hermogenian Codes, out of whome Iustinians Code was almost all compiled, were as well written in Greek as in Latin, it is plaine: and so the law Properandum to haue beene translated rather by a Greeke than by a Latinist, being altogether writ in the Greeke phrase, as namely calling the defendant fugientem, or the partie flying away; which is the proper Greeke word 〈 in non-Latin alphabet 〉]▪ Neither ought it to seeme straunge, that the Greekes translated the Roman lawes, and euen Iustinians Iustitutions into Greeke; seeing them to haue translated most of the writings of Thomas Aquinas, as also the latter bookes of Aristotles Metaphysikes out of Arabike [Page 358] into Greeke, the Greeke copie being before lost. But to returne againe from [ F] whence we haue digressed, and to resolue the propounded question; I say, that it is not needfull for the inferiour magistrat, the appeale being let fall, to haue leaue of the superiour magistrat (vnto whome the appeale was made) for the putting in execution of their owne iudgements: as in the time of our auncestors, the manner was, by letters of iustice (as they tearmed them) which by a decree of Charles the seuenth, were vtterly abolished and taken away: sufficeth it the appeale being once giuen ouer before the iudge that gaue the sentence, to request, that the same may now be put in execution, except the superiour magistrat vnto whome the partie condemned hath appealed, hath expresly before forbid the executionto be done. In which case it is needfull, that such prohibitiō be taken away, before the inferior magistrat proceed further. For otherwise [ G] it is not requisit, that the appeale should by the superiour magistrat be declared to be let fall or giuen ouer, that the sentence may be put in execution; for that the benefit of the appeale let fall, is obtained by the law, & not by vertue of the magistrats sentence. Neither is the honour or reputation of the superiour magistrats impaired by the inferiours, not hauing from them expresse prohibition: in reuerence & respect of whom, the inferiour magistrats ought to stay the execution, if the stay thereof bee not perilous vnto the Commonweale. In which case they may proceed, although it were in question of life, and afterwards write back their aunswere; whereas otherwise, in causes concerning life and death, if the magistrat giue not way vnto the appeale, he himselfe is in danger of capitall punishment. Yea and in this case, the magistrat for not yeelding vnto the [ H] appeale, is guiltie of treason, albeit that question were but concerning the whipping of a citisen.

Now all that which we haue hitherto said concerning magistrats, and of the obedience that one of them oweth vnto another, is to be vnderstood of magistrats that be of the selfe same Commonweale. But what shal we then say of magistrats of diuers Commonweales? As if a man by the magistrats condemned in this kingdome shall flie into Greece, whether shall the Grand Signior of the Turkes, at the request of the French king, or of some other priuat man whome the matter doth concerne, cause the iudgement to be put in execution, without further enquirie of the equitie of the cause? The [ I] like question whereunto I remember to haue hapned in the parliament of Paris, concerning a French marchant condemned by default and contumacie at Venice, at the suit of a Venetian marchant; who came into Fraunce to demaund execution of the iudgement giuen in Venice, hauing before obtained letters of request frō the seigneurie to that purpose, as the vsuall manner & custome of soueraigne princes & lords in such cases is: For a mutual respect and care which all princes haue vnto iustice, wherof they hold their Scepters and Crownes. The French marchant excepteth against the Venetian, and no regard being had to his exception, appealeth vnto the court of parliament. Where most were of opinion, that the sentence so giuen was to bee put in execution, without any farther examination, whether it were rightfully iudged or not: [ K] which otherwise might▪ seeme a wrong offered vnto the Seigneurie of Venice, which might vse the like circumstāce, & examine the iudgements of the magistrats of France, and also reuerse them, rather in reuenge of their wronged maiestie, than for the iniquitie of the same. Yet for that the marchant was condemned by default, it was thought meet to haue it enquired, whether he had by couenant in this point submitted himselfe vnto the Venetian Seigneurie and iurisdiction or not? And then, whether the iudgement were duely giuen, after certaine peremptorie edicts and appointed times, according to the laws and customs of the Venetians? Which being found to be so, the court adiudged the sentence to be put in executiō. And this is the course in priuat iudgements. [Page 359] Howbeit if question were of the honour, or life, not of one of our owne subiects only, [ A] but euen of a straunger flying vnto vs, the iudgement of a straunge magistrat is not to be put in execution, before the truth of the matter be againe of fresh and throughly examined and tried. Yea Adrian the emperour commaunded the gouernours of his prouinces, to vse 〈 in non-Latin alphabet 〉] (for that word the law vseth) that is to say, to iudge againe of them which had beene condemned, by the justices of peace euen of the same Roman empire. And that which I haue said, is right straitly obserued and kept in the Commonweales of the Swissers, of Geueue, of Venice, Lucque, and Genes, who cause the condemned straungers flying vnto them, to be againe of new tried, before they restore them vnto forrein princes, demaunding from them such their condemned [Sidenote 916 - *] subiects againe. For so all lawiers almost with one consent say; Soueraigne Princes [ B] not to be bound to restore Straungers flying vnto them, vnto their owne Princes demaunding them againe. Which is true that they are not bound in any ciuill obligation, from which all soueraigne princes are exempted: but they without any distinction of the Law of nations or nature, altogether denie that a forrein subiect is to be restored vnto his prince requiring him againe. Onely Baldus addeth this condition therunto, Not to restore him to be right, so that the prince vnto whom the condemned or guiltie person is so fled, do vpon him iustice. But if they will confesse euery Prince by the lawes both of God and nature to be bound to doe iustice; they must also confesse that he is bound to restore another mans subiect vnto his owne natural prince, demanding him: not onely for the more manifest trying out of the truth, and discouering of [ C] the conspirators their partakers, for which their personall presence and confrontation is most necessarie; but also for exemplarie punishment to be done, in the same places where the offences were committed: which of all other things seemeth most to belong vnto the profit to arise vnto the Commonweale by punishments, as examples of common reuenge, the death of the offender, being one of the least thing that in matter of iustice is to be sought after. And if Magistrats in the same Commonweale are by mutuall obligation bound to helpe one an other, and so the Commonwealth, (whereunto next vnto God we owe all our endeuours) for the prosecuting and punishing of malefactors and offenders; why then should Princes be exempted from the [Sidenote 917 - *] like bond, so well agreeing with the lawes both of God and nature? Wherein the notable [ D] act of Mahomet (the second of that name) emperour of Constantinople, euen he which was surnamed the Great, is tight worthily commended; in that he caused the murtherer, who had most cruelly slaine Iulian de Medices in the Church before the Aultar, to be apprehended at Constantinople whether he was fled, and so bound hand and foote, to be restored to Laurence de Medices and the state of Florence, requesting of him: which he did not as respecting the power of the Florentines, being then but small, but as fearing the hand and power of the immortall and almightie God. And in this Realme the custome hath alwaies beene to restore the guiltie fugitiues vnto their owne Lords and Princes demaunding of them, except therein question be made of the maiestie, boundes, or state of the kingdome, which hath beene by their decrees [ E] determined. One of the parliament of Paris: Another of the court of Rome against the king of England, who demaunding his fugitiue subiect, was denyed him: And the third of the parliament of Tholouse: that of Rome being then grounded vpon the soueraigntie of the See of Rome ouer the realme of England. But out of tearmes of estate, and where question is but of publique punishment, there is no Prince which is not bound to restore another mans subiect vnto his Prince demaunding him, as hath beene solemnly iudged by the parliament of Bourdeaux: howbeit that the same hath beene also expresly articulated in diuers treaties of peace. As in the treatie which [Page 360] the Swissers made with the emperour Charles the fift, as Duke of Millan, the vij article [ F] caried an expresse clause, for the restoring of guiltie fugitiues. And for this cause king Henry the second, after he had by his Embassadour requested the Lords and people of Geneua, to restore vnto him Baptista Didato an Italian, his Receiuer generall of Roan, who was thither fled with all the money of the receipt: which they being thereto oftentimes requested, refused to doe: At length the king protested vnto the Lords of Berne, in whose protection the Seignorie of Geneua then was, that he would vse the law of Reprisall against them of Geneua; who before had resolued in their grand Councell of two hundred, in no wise to restore him: but afterwards being by an Herault sent from them of Berne, willed to deliuer him vnto the king, they chaunged that their former opinion for the detaining of him: So at length the robber of the cōmon. [ G] treasure was forsaken by them of Geneua, lest they in doing otherwise should haue stirred vp the displeasure of a most mighty king, or of the Swissers against them, as also seeme to haue opened a sanctuarie or place of refuge for the eues, and other such like wicked men. And this we haue gathered out of the letters of the French embassador to Anne Mommorancie Constable of Fraunce, so that they are to be blamed which otherwise either thinke or write. Wherefore I hold it to be an iniurie vnto the estate [Sidenote 918 - *] of another man, to detaine a guiltie fugitiue after he is demaunded to be againe vnto his owne prince restored; and much more if he should be so detained by the subiects among themselues. For which cause all the Tribes of Israel combined themselues against the Tribe of Beniamin, which was so vtterly destroyed, except sixe hundred [ H] persons, for refusing to restore the guiltie persons demaunded of them. And for the [Sidenote 919 - *] same cause we find that the Hippotae were all destroyed, and their citie v•…]terlie razed by the Thebaus; for that they chose rather to defend the murtherers of Phox the Baeotian, and for them to take vp armes, then to restore them vnto the Thebans, demaunding them. But if the Prince vnto whom the fugitiue is retired certeinly know him [Sidenote 920 - *] whom he hath so receiued, to be an innocent and guiltles man, and to be vniustly pursued and sought after, as hauing but escaped the crueltie of a tyrant, it is not onely a shamefull and iniurious thing to betray the poore innocent and straunge man vnto the cruell tyrant: but he should rather for the miserable mans defence, and safegard of his life take vp armes, seeing that by the law of God, we ought not to restore a fugitiue [ I] [Sidenote 921 - *] seruant vnto his angry master, from whose furie he is fled into anothers mans house.

And thus much concerning Magistrats; and the obedience that they owe vnto Princes, and of the power that they haue ouer particular men, and of the respect that they ought to haue one of them towards an other. But to compare the Magistrats of auntient time, with ours now, belongeth not to this our purpose, considering that they are still in chaunge, howbeit that wee see them to be like in effect, although that they differ in names. As we read in the booke of the kings, where it is said, That Azarias the sonne of the high priest Tsadoc was neere vnto the person of Salomon to instruct him in matters concerning Religion; that Iosophat was chiefe of his councell, or his Chauncellour; [ K] that Eliphore, and Aiah were his Secretaries for the estate; that Banaia was his Constable; and Azarias the sonne of Natan his Lieutenant generall ouer the gouernments of the twelue Tribes, which are and haue beene as it were like in all Monarchies. So in like maner we see in the Turkish Empire, that the first and principall Bassa is Generall of the armie, as Constable or chiefe Mareschall; and Beglerbegs are gouernours generall of Prouinces; the Zanzacks are as more particular and inferiour gouernours; the two Cadilesquires are the Chauncelours, attendinding vnto the administration of justice, the one in Asia, the other in Europe; the Sabbassaes and Cadies are the ordinarie magistrats and judges; the Mophti is the great Bishop. So in the [Page 361] kingdomes of Thunes, of Fes, and of Maroch, the Munafide is as Chauncelour, the [ A] Admirall is Generall of the armie at Sea, a word or name which we haue borowed from the Arabians. So we see the charges and offices to be as it were like, although their names be diuers, as the Great Master of Ethiopia is called Bethudere, which is an Hebrew word, signifying Master of the houshold. But forasmuch as Magistrats in euery Commonweale are diuided into Corporations and Colledges, and that there are more Corporations and Colledges of priuat men than of Magistrats, let vs also say somewhat of such Corporations and Colledges.

CAAP. VII. ¶ Of Corporations, and Colledges, Estates, and Communities, and what profits [ B] or inconueniences ensue thereof vnto the Commonweale.↩

NOw after that we haue spoken of a Familie, and of the parts thereof, of Soueraigntie, and of Magistrats; we must speake of Corporations and Colledges also: wherefore let vs then first speake of the cause of Corporations and Colledges, and after of their power and priuileges in generall, and of the maner of punishing of them, if they offend: and last of all whether the Commonweale can be without them. The difference of a Familie, from Corporations and Colledges, and so of them from [ C] a Commonweale, is such as is the difference of the parts from the whole: for the communitie of many heads of a familie, or of a village, or of a towne, or of a countrie, may be without a Commonweale, aswell as a familie without a colledge. And, as many families [Sidenote 922 - *] by amitie alyed, are members of one corporation and communitie; so many corporations and communities allyed by a soueraigne power, make one Commonweale. Now a familie is a communitie naturall; a colledge is a communitie ciuill; and a Commonweale hath that moreouer, That it is a communitie gouerned by a soueraigne power, and may be so strait, as that it may haue neither corporation nor colledges, but onely many families in it. And so the word Communitie is common vnto a familie, a colledge, and a commonweale. And properly a Corporation is vnderstood [ D] to consist of diuers families, or colledges, or of many families and colledges together. But the beginnings of all ciuill societies are deriued from a familie, which is [Sidenote 923 - *] (as we say) it selfe a naturall societie, and by the father of nature it selfe first founded in the beginning together with mankind. But when reason, by God himselfe ingrafted in vs, had made man desirous of the companie and societie of man, and to participate together both in speech and conuersation; the same so wrought, as that proceeding farther from the loue of them that were domesticall & their owne, it extended farther, to take pleasure in the propagation and encrease of families. So also families by little and little departing from their first beginning, learned by ciuill societie to imitate the naturall societie of a familie. For why, a Commonweale is a ciuill societie, which can [ E] of it selfe stand without corporations or colleges; but not without a familie: besides that, Commonweales may be dissolued, for that they are deriued from the Lawes and institutions of men: whereas families cannot altogether perish, but that all mankind must before perish also. Whereby it is to be vnderstood, From the roote of one familie, by the euerliuing God himselfe planted, at the first to haue sprung vp as it were certeine plants, who by necessitie constrained, built for themselues houses and dwelling places, so to be the safer from the iniurie of the weather, and the rage of wilde beasts: and after that Hamlets and villages, which in processe of time became Boroughes and [Page 362] Townes. But being growne to such a multitude, as that they could not longer be contained [ F] within the compasse and precinct of the same countrie, they were driuen to depart thence also, and to seeke out new dwelling places. So that now thus diuided in places, in regions, and kinred, being bound vnto no law or commaund, as euery one of them exceeded the other in strength and power, so he forced himself to thrust them that were neere vnto him, and weaker than himselfe, out of their houses and dwelling [Sidenote 924 - *] places; or to take from them their springs, their fountaines, or pleasant places; or to driue them from their pastures or feedings: which violence so offered by the stronger, enforced the weaker either to seeke out places by nature defencible and strong, or else by art or wisedome to fortifie themselues, their children, wiues, and families, with ditches, trenches, and walles, whereof strong townes and cities arise. For so Dionysius [ G] long since writeth king Seruius to haue placed certeine places of refuge in the mountaines & strongest hilles, whether the poore countrie men might retire themselues out of the fields, so to saue themselues from the incursions of their enemies. And yet could not the enemies force be so kept off with walles and other fortifications, but that they which had so shut vp themselues therein, were yet neuerthelesse besieged by the stronger. For why, the first sort of men was most giuen to rapine, murther, and theft, delighting [Sidenote 925 - *] in nothing more, nor accounting any honour greater than to robbe and kill, and to oppresse the weaker sort as slaues: as Plutarch well agreeing with the sacred historie most truely writeth. And long before Plutarch, Thucidides the most famous historiographer of them that florished among the Greekes reporteth, all Greece but a [ H] little before his time to haue beene troubled with the robberies and outrages committed [Sidenote 926 - *] by the mightier sort; and then robberie & theft to haue bene no disgrace or shame. Yea such as traueiled by Sea or land (as the same authour reporteth) when they met, before they came neere together, vsed commonly (and that without any reproach or imputation) to aske whether they were Robbers or Pyrates or not. And not onely Plato, and his disciple Aristotle, haue put robberie among the kinds of hunting, but the Hebrewes also▪ who call Theeues and Robbers, mightie hunters, as they did Nimroth. And by the lawes of Solon it is plaine, that men might lawfully ioine in fellowship [Sidenote 927 - *] to robbe and steale, (prouided alwaies that it were not from the subiects of their [ I] owne estate) as appeareth by these words, 〈 in non-Latin alphabet 〉], which the Latin interpretour thinking to be absurd and false, hath wrested them another way: For what other thing is 〈 in non-Latin alphabet 〉], than to robbe? And what other thing is 〈 in non-Latin alphabet 〉], but 〈 in non-Latin alphabet 〉]? Neither were robberies lesse allowed of the auntient Latines than they were of the Greeks and Hebrewes, as it is to be perceiued by the first league made betwixt the Romans and the Carthaginensians: wherein it was thus expresly set downe: * Vltra Promontorium pulchri praedae aut mercaturae gratia Romani ne nauiganto, [Sidenote 928 - *] Beyond the faire Promontorie, the Romans shall not saile either for bootie, or in trade of marchandize. From which kind of robberies long it was before other people also abstained: for so Caesar speaking of the Germaines in his time saith, [ K]Latrocinia nullam habent infamiam, quae extra fines cuiuscunque ciuitatis fiunt, atque ea iuuentutis exercendae, ac desidiae minuendae causa fieri praedicant, Robberies done without the boundes of euery citie, haue with them no infamie; and those they say to be done for the exercise of the youth, and auoiding of slouth. This licence and impunitie of robbing and reauing, constrained men which as yet had no Princes nor Magistrats, to ioyne themselues in societie and amitie for the defence of one an other, and to make Communities and Fraternities, which the Greekes called 〈 in non-Latin alphabet 〉], and 〈 in non-Latin alphabet 〉], as brethren which drew water of the same well, which they called 〈 in non-Latin alphabet 〉], as also 〈 in non-Latin alphabet 〉], which are rurall and countrie people vsing the faire fountaine, which [Page 363] the Dorians called 〈 in non-Latin alphabet 〉], and whereof such countrie villages were called Pagi, as [ A] the Latines also said them Commessari, who in the same countrey villages, which the Greekes called 〈 in non-Latin alphabet 〉]▪ did ordinarily eate and drinke together: as [Sidenote 929 - *]Festus writeth. Whereby it is plainely to be seene, the societies of men among themselues, to haue bene at the first sought out for the leading of their liues in more safetie and quiet: and them first of all to haue sprung from the loue which was betwixt man and wife: From them to haue flowed the mutuall loue betwixt parents and their children: then the loue of brethren and sisters one towards another: and after them the friendship betwixt cosens and other nie kinsmen: and last of all, the loue and good will which is betwixt men ioyned in alliance: which had all at length growne cold, and bene vtterly exstinguished, had it not bene nourished, maintained, and kept, by societies, communities, [ B] corporations, and colledges: the vnion of whome hath for long time in safetie maintained many people, without any forme of a Commonweale, or soueraigne power [Sidenote 930 - *] ouer them. So the people of Israel for a long time florished in great tranquilitie without kings, and without any Popular or Aristocraticall estate, euerie man liuing at his pleasure in all libertie, euerie Tribe being in it selfe vnited by the bond of bloud and kindred, and all of them together by the communitie of their law and sacrifices. Who when they were by any enemie to be assailed or inuaded, the estates of their Tribes and communities assembling together, made choyce of a chieftaine, vnto whom they gaue soueraigne power; and namely of such an one as God had with his spirit enspired and stirred vp amongst them. So of many Tribes and families together vnited, was made [ C]•…] Commonweale, by meane of a soueraigne power set ouer them. And for this cause the princes and lawgiuers which first founded Commonweals, who had not yet discouered the difficulties they were to proue, to keep & maintaine their subiects by way of iustice, ordained and maintained fraternities, communities, and colledges; to the end, that the parts and members of the self same body of a Commonweale, being at accord among themselues, it might be for them the more easie to rule the whole Commonweale [Sidenote 931 - *] together. So we see that Numa Pompilius, king and lawgiuer vnto the Romans (after he had abolished the name of the Sabines, which some thing diuided the Roman state) established certaine fraternities, and colledges, or companies of men, of all maner of occupations; appointing vnto euerie fraternitie certaine patrons, priests, and solemne [ D] sacrifices, which were kept on certaine appointed dayes of the yeare. And afterwards also ordained a fraternitie of marchants, to whome he gaue Mercurie for their patron: which he seemed to haue done to the imitation of Solon, who by a positiue law permitted all manner of fraternities and communities whatsoeuer, with power for them to make such lawes and statutes among themselues as they should see good, so that they were not contrarie vnto the publike positiue lawes of the state. Lycurgus also did not onely permit, but straitly commaund also to maintaine and cherish such societies and communities, as well generall as particular; and that all his subiects should take their refection and diet in companies of fifteene and fifteene together: which for that they were kept for friendship sake, were called 〈 in non-Latin alphabet 〉], of the friendship that they had [ E] one of them with another. As also in almost all the other townes of Greece, there were the like fraternities and companies, whome they called 〈 in non-Latin alphabet 〉], as in Italie the same colledges and companies were called Sodalitia; for the vnitie, companie, and [Sidenote 932 - *] friendship they had among themselues, eating and drinking together for the most part: and hauing no judges but themselues, if any difference or strife chaunced to fall out amongst them, being such companions and fellowes; as knowing that amitie and friendship was the onely foundation of all humane and ciuill societie, and much more requisit for the keeping and maintaining thereof, than iustice it selfe: For that iustice [Page 364] neuer flexible, but alwayes keeping the vprightnesse of it selfe, by iust iudgement well [ F] endeth suits; but not hatred, making oft times of friends foes: whereas amitie and friendship, which is by company nourished, yeelding of the right of it selfe, best establisheth the true naturall iustice, and plucketh vp all controuersies by the root, with great quietnesse and loue reconciling subiects among themselues, together with the Commonweale. Now the principall end & scope of all laws, both diuine and humane, is to keep and maintaine the loue of men one towards another amongst themselues, and them altogether in their dutie towards God; which cannot better be done, than by ordinarie and orderly conuersing and combining of men themselues together.

Wherefore the Cretentians in auntient time did all eat and drinke together, young and old, men and women; for to maintaine the loue and amitie which we haue before [ G] spoke of amongst them: Howbeit that afterwards to auoid confusion, the ages and sexes were into certaine orders diuided. So we see in the law of God, the feasts of Passeouer, to haue bene commaunded to be holden by companies of ten and ten persons together: beside the feasts of Tabernacles, and the ordinarie banquets of sacrifice, which God commaunded to be solemnised with all ioy and gladnesse: and that for no other cause, but that so men might be together vnited in religion towards God, and mutuall loue and friendship one to another among themselues. The same was also well obserued [Sidenote 933 - *] & kept in the Christian primitiue church, who oftentimes made such feasts, which they called 〈 in non-Latin alphabet 〉], for the deuout kissings, and charitable embracements one of them (in the feruensie of their zeale) gaue to another, in the ending of them, besides their ordinarie [ H] behauiour and communication. And albeit that many things are long since by tract of time growne out of vse, yet neuerthelesse a resemblance of those old feastes is yet shadowed in our holy feasts and banquets: which not faigned but true feasts the Venetians do with most great care and solemnitie keepe: but the Swissers better than in any place of the world, where the fraternities and companies in euerie towne haue their common houses or halles▪ wherein they oftentimes make their feasts and bankets, neither is there any village so little, which hath not a common house in it for that purpose. Where if any strife or contention shall arise amongst them that be of the fellowship or companie, it is by the common consent there ended, and the definitiue sentence there written, not in paper, but vpon the verie table whereon they haue banqueted, and [ I] that not with inke, but with chalke. And as in auntient time artisans, marchants, priests, bishops, and all sorts of men had their fraternities, and companies: so had also the philosophers, and especially the Pythagorians, who ordinarily met together, and liued for most part of their time in common. And thus much concerning the cause, the beginning, and progresse of corporations, and colledges, communities, and companies: which afterwards by succession of time haue in all Commonweales beene better ruled by lawes, statutes, and customes.

But that all things which are to be said of corporations and colledges, may in order be declared: Let vs first orderly set downe and show, what power euery corporation [ K] or colledge is of, and what priuilege is to euerie one of them giuen; then how they are to be gouerned, and kept within the bounds of their dutie; and last of all, whether a [Sidenote 934 - *] Commonweale can be without colledges or companies, and what colledges are most necessarie and best fitting a Commonweale. Which the better to vnderstand, we may say, that all colledges and companies are ordained either for religion, or for policie, and so concerne but worldly things. If they be instituted but for policie, either they haue iurisdiction, or are without all iurisdiction. Colledges without iurisdiction, are such as are ordained for the bringing vp of youth, or for fellowship of physitians, or of other schollers, or of marchants, or of handie craft and trades men, or of companies of husbandmen: [Page 365] but such as haue iurisdiction, are colledges of magistrats, and judges, such [ A] as of whome we haue before spoken. Colledges ordained and made for religion, or for publike deuotion, are growne into number almost infinit; differing as wee see, in lawes, manners, life, attire, orders, fashions, and apparell. And it may be, that a colledge may be particular to one occupation, or to one science, or to one companie of marchants, or to one iurisdiction: and it may also be, that two or moe colledges, may bee vnited into one bodie, as all manner of occupations together, all sorts of marchants, or all maisters of sciences, or all the magistrats; which ought not of right to bee called a colledge, but a bodie politique, or corporation: albeit that by the ambiguitie of words they be oftentimes together confounded. For there was one colledge of the Tribunes, another of the Pretors, and another of the Questors: but when these three colledges [ B] meet together into one and the selfe same bodie, it is foolishly called a colledge: and yet can it not rightly be tearmed an Vniuersitie, which consisteth of the companie and assemblie of all the citisens, colledges, and corporations, yea and sometimes also of the villages of the same countrey. Wherefore we shall rather call it a bodie politique than a colledge: which so together groweth of many colledges, or persons of vnlike condition. And it may be also, that all the particular colledges may haue the right of a generall communitie, or of an vniuersitie. And that not onely all the colledges and communities, but that also all the inhabitants ioyned together with the corporation & colledges of a towne, or of a countrey, or of a prouince, may haue the right of a communitie for to hold their estates. Moreouer the right of a colledge or companie may be giuen [ C] to euerie mysterie or occupation in particular, and yet forbidden them in generall. [Sidenote 935 - *] And euerie one of them may haue diuers rules, statutes, and particular priuileges. So that we may say, that euerie corporation or colledge, is a lawfull communitie or consociation vnder a soueraigne power. Where the word Lawfull importeth the authoritie [Sidenote 936 - *] of the soueraigne, without whose permission there can be no colledge: and is referred not onely vnto the power of meeting together: but vnto the place also where it ought to meet, vnto the time and manner of meeting, and to what things ought to bee entreated of, in their assembly. And the word communitie, or consociation, signifieth that there ought some thing to be common to all that be fellowes of the colledge or [Sidenote 937 - *] societie: For where there is nothing common, there is no colledge: sufficient it is for [ D] them to haue their meeting common, their attourney or agent common, and the priuileges giuen vnto the colledge common unto all the fellowes thereof: albeit that they haue neither common treasure, neither ordinarily liue or conuerse together. So that they haue not well defined a colledge, which haue said it to bee a fellowship of three persons dwelling together, hauing their goods and substances in common. Wherein they are two wayes deceiued, for it may be, that three persons or moe may haue their goods in common, and liue together, and yet be all no colledge, but a societie of themselues, contracted for the getting of goods, and liuing together: as also to the contrarie, fellowes of the same colledge may dwell separat in houses, not hauing their goods in common, nor any common treasure; neither yet commonly liuing together: and yet [ E] enioy indeed the right of a colledge or companie, as hauing by law and the princes graunt, power to assemble themselues and meet together at certaine places, and times: and to intreat of certaine their affaires, such as are the fraternities or companies of artificers and trades men, whome the law calleth Collegia, or colledges. Yet some colledges there be, which haue almost all those things among themselues common, as wee [Sidenote 938 - *] see those to haue, which are together ioyned for studie, religion or deuotion sake.

As for the number of fellowes in a colledge or societie, it is no matter what it bee, so that they be not fewer than three: for that otherwise it cannot be a colledge. Wherefore [Page 366] the Romans called it not a colledge of their Censors, or Consuls, as they did of [ F] [Sidenote 939 - *] their Pretors, Tribunes, and Questors. And as for the fellowes themselues, my meaning is, that they should be equall of power, in respect of their communitie or fellowship, hauing euerie one of them a deliberatiue voice in their affayres: howbeit that it may be, that the colledge, or prince, may make choyce of one of the fellowes to commaund, reforme, and chastice euerie one of the fellows in particular, but not all of them in generall: such as are our bishops and abbats, hauing power to chastice their religious and chanons But if this head or chiefe haue power ouer the whole body of the societie or colledge in grosse, it is not then rightly a colledge, but rather a forme of familie, such as are colledges or schooles ordained for the bringing vp of youth: wherein there bee no bursors or fellowes, which haue therein any deliberatiue voice: For if it haue in it [ G] any such bursors or fellowes, hauing the right of the societie or colledge, and deliberatiue voice in their assemblies, it is then a colledge, albeit that the rest of the yonger sort be vnder the power and correction of the principall.

And hereof ariseth a question, Whether a bishop in the companie of his priests, or an abbat amongst his religious, be to be accounted fellowes, hauing the verie title and [Sidenote 940 - *] right of a fellow, and himselfe making a part of the colledge, without the qualitie or title of a bishop or abbat? Which question being by the learned on both parts disputed, yet remaineth vndecided. But to leaue the disputation apart, it seemeth, that he which is chosen by the colledge or prince to commaund all the fellowes in particular, hath a [ H] double qualitie; one in respect of euerie one of the fellowes, and another in respect of the whole colledge or societie: where in regard of the fellowes he is called Principall, Bishop, Abbat, Prior, President, or such like, hauing power and authoritie to command euerie one of them in particular: howbeit that in the bodie of the colledge or corporation, he is no more than a fellow, although he haue the place of precedence: and that is it for which they put their titles diuided, as, the Bishop, Chanons, and Chpite•…]; the Abbat, Religious, & Couent; the Principall, Bursors, & Colledge. Wherein one of the chiefest lawyers hath bene deceiued, saying, That the Philosophers haue called the persons of a colledge, the colledge: showing indeed no Philosophie in so saying, considering [Sidenote 941 - *] that a colledge is a name of right, and that all the reuenew and right of a colledge [ I] may remaine in one person, the rest of the fellowes being all dead. And in case that all the fellowes of a colledge were dead, yet doth the right of a colledge remaine: neither can the lands or goods thereof be confiscated, except the right of a colledge be before by the supreme authoritie suppressed. For one of the principall priuileges of corporations and colleges is, that legacies may be vnto them giuen by testament: wheras societie by the law forbidden, are not colleges, but vnlawfull assemblies, vnto whom it is not by the law permitted, to leaue any thing by testament, albeit that legacies may be giuen vnto euerie one of the colledges. But to the intent such vnlawfull companies and assemblies might be repressed, I thinke it needfull, that it should by law bee forbidden, [ K] any lands or legacies to be vnto al or any of them left by testament, as vnto fellows of such corporations or colledges.

And whereas we haue said, that a colledge or societie may be without any common [Sidenote 942 - *] stocke or treasure: that it also to be vnderstood, that a colledge or societie may bee ordained with such prouiso, that nothing shall be left vnto it by gift or legacie. Antoninus the emperour was the first which gaue leaue for legacies & donations to be giuen to al colledges, except to the colledges of the Iewes, vnto whome it was yet lawfull to meet together for religion sake, and to haue their Synagogues: as is to be seene in the oration of the ambassadour Philo, vnto the emperour Caligula. And Augustus himselfe by letters pattens directed vnto the gouernours of the prouinces of the empire, commanded, [Page 367] That they should permit and suffer the Iewes to enioy their colledges. Whereupon [ A] [Sidenote 943 - *]Narbanus Proconsull of Asia, forbad the magistrats of Ephesus in any sort to let of disturbe them. Yea that more is, Augustus himselfe commaunded a dailie and perpetuall sacrifice of a calfe, a goat, and a ram, to be made at Hierusalem for the welfare of himselfe, and of the Commonweale: and willed an ordinarie almes or doale to bee giuen vnto the Iewes, of his owne proper costs and charges, for the reliefe of their necessitie. There be also corporations and colledges of judges and magistrats, which yet are not capable of testamentarie legacies, if they haue not expresse leaue by their erection and institution so to doe. As was iudged against the Senat of Rome: whereunto Russius Caepio one of the Senators, had giuen by legacie a certaine summe of money, which he willed to be still distributed to them onely which came vnto the councell: which legacie [ B] the Senat demaunding, Caepio his heires denied it to bee vnto the Senat due: in which controuersie Domitian the emperour gaue sentence for the heire, and excluded the Senat, although it were the most auntient, and most necessarie corporation of all the Roman Commonweale.

And thus hauing set downe and declared the beginning and definition of colledges, and communities: let vs now also speake of their power in generall; which is not determined by their particular foundations, statutes, and priuileges, which are diuers and [Sidenote 944 - *] almost infinit, according to the diuersitie of the particular colledges and communities themselues. Now the chiefe corporations or colledges, and which haue most power in a Commonweale, are the colledges of judges and magistrats: who not onely haue [ C] power ouer euerie one of their fellowes, and the lesser part of their owne colledge, but ouer other particular colledges also; and so ouer others subiect to their iurisdiction, and yet without their colledge. And in this the colledges of judges and magistrats notably differ from other colledges: for that other colledges are established euerie one of them for the good gouernment of that onely which is vnto themselues common; whereas the colledges of judges and magistrats, are principally erected for the good of other subiects, and to rule the other colledges, as also to chastice them if they shall transgresse their lawes and statutes. But as a wise man ought first to be wise for himselfe, and then for others; as also to looke first into himselfe, before he can rightly iudge of others; or as the Hebrewes in their prouerbes say, That charitie ought first to begin of [ D] it selfe, if it be well ruled: So ought the colledges of judges and magistrats, first to establish iustice amongst themselues, euerie one of them in particular, and to themselues all in generall, the better to distribute the same to the other subiects.

But question might be made, Whether it were more expedient that the colledges [Sidenote 945 - *] of magistrats and judges, should be iudged by their fellowes, or by others? for some particular reasons, which in due place we shall hereafter set downe. But here to make the matter short, If the colledge for the most part be composed of euill and naughtie men, it is not to be left vnto themselues, to iudge of their owne misdemainers; but they are to be iudged by the superiour magistrats, if they haue power ouer them; or by the prince, in case they be not by any other superiour magistrat to be reformed. But if the [ E] greater part of them be good and honest men, there is then no doubt but that it is better and more expedient both for the colledge and the Commonweale, that the fellows should be iudged by their fellowes, rather than by other iudges: For that euerie colledge I know not how hath in it some particularitie which cannot so well bee vnderstood or iudged, as by the fellowes of the same corporation themselues. Ioyning hereunto also, that by this meane the loue and vnitie of the fellowes among themselues, is in their colledge and societie the better maintained. And for this cause chiefly the emperour Adrian decreed, That the Roman Senators should be iudged by the Senat onely. [Page 368] And for the selfe same reason the ciuill iurisdiction of marchants, and for the trade [ F] of marchandise hath bene wisely in all Italie, and since that in Fraunce committed and giuen to certaine magistrats and Consuls of the corporation and companie of marchants, summarily to decide the differences arising about the contracts of marchandise, which haue in them I know not how certaine secrets, not to others well knowne.

As for other corporations and colledges, as of physitians, and tradesmen, albeit that [Sidenote 946 - *] by their foundation they haue not any iurisdiction or commaunding power; yet neuerthelesse so it is, that they alwayes haue a certaine restrayning authoritie and power by their statutes and priuileges, limited and allowed them; and sometime without any limitation at all left vnto the wisdome and discretion of the corporation or colledge, or [ G] of the head thereof: which ought to be vsed with such moderation, as the father is to vse towards his children: which ought not to be with crueltie or rigour. For if the law condemne him to pay the price of the slaue, slaine by him that hath taken vppon him to teach him, albeit that it were in correcting of him: of much greater reason were he to be condemned, which hauing but the moderat correction of men of free condition, should vse such rigour as that death should thereof ensue? As it sometimes happened in Lacedemonia, where yong children were by the Great Maister of the youth so rigorously whipt, a•…] that sometimes they gaue vp the ghost vpon the altar of Diana whilest they were yet in whipping; most part of them not daring so much as to sigh or grone, for feare they had to be accounted faint harted cowards. And albeit that the [ H] emperour Frederike the second gaue power and authoritie vnto the rectours of Vniuersities, and that the principals of schooles and colledges haue alwayes had the correction of their disciples and schollers: yet that is to bee vnderstood but of light matters, and not of such chastisement and correction as the magistrat hath by the princes graunt ouer priuat offendors; as many haue beene of opinion. For why, neither the German emperour, no•…] the pope can giue any such power vnto the principalles of colledges, or to the colledges themselues: but in such countries as are vnto themselues subiect. For albeit that pope Gregorie the eleuenth in a Bull graunted for the confirmation of the priuileges of the Vniuer•…]itie of Paris, before graunted by the popes Vrban the fift, and Innocent the sixt, in one article prouided, That if a scholler [ I] committed any thing deseruing punishment, the hearing thereof should belong vnto the bishop of Paris onely: and in another article also, That no scholler should from thenceforth bee imprisoned for whatsoeuer debt. Yet the French kings and magistrats haue o•…]eentimes well declared themselues not to bee bound to any such the popes Bulles. Yet true it is, that colledges instituted for religion, haue ordinarily the correcting of them that are therein professed; and that so much the more, as their rule and order is the straiter: For which cause such as haue therein taken vppon them such profession, are exempted from the power and correction of their owne fathers: albeit that many hold the contrarie: whose opinion for all that is not in that [ K] point followed. And yet neuerthelesse certaine it is, that the naturall dutie and reuerence [Sidenote 947 - *] of children towards their parents, remaineth alwaies in force and power, notwithstanding whatsoeuer bond and vow they haue made to any corporation or colledge. For why, neither mans lawes, nor the statutes or priuileges of princes can derogat from the lawes of God and nature, which hath expresly bound children vnto the obedience of their fathers and mothers; from which they can by no otherwise free, or yet deliuer tthemselues, than by lawfull emancipation: or their fathers silence, who in saying nothing, seeme to haue consented vnto their childrens vowes, which by speaking they might haue letted: which cōsent for all that excuseth not children from doing [Page 369] the honour and reuerence due vnto their parents, although that they being so professed, [ A] be from thenceforth accounted children of the colledge; vnto whome also their colledges in right of inheritance succeed, they themselues beeing accounted of seruile estate & condition. For which cause the canonists giue vnto the abbies power and authoritie ouer their owne religious, exempt from the bishops, which hath oftentimes by the decrees of the parliament of Paris bene confirmed. In such sort, as that they which are once entred into such religious orders, may not from that time be called to account or into questiō for any thing by them committed before they entred into the monastery: which yet is to be vnderstood but of light & youthful faults; which otherwise were but to open a way to theeues and murtherers, to retire themselues into such colledges, as into forrests, for the auoiding of due punishment; as indeed it ofttimes happeneth: [ B] wherewith the wise magistrats ought to meet, & according to the law of God to draw the murtherers from the altar to doe vpon them iustice. As the court of parliament of Thoulouse (not long agoe) condemned two religious monks of the order D'aurade, to be in their habits shamefully drawne vpon a hurdle to the place of execution, and there to be quartered, without disgrading of them, for hauing most cruelly murthered [Sidenote 948 - *] the head of their monasterie, whose seueritie they could by no meanes endure. Yea the abbat himselfe may by his monkes be conuented before the ordinarie judge, and that as well in criminall as ciuill matters: who may also freely appeale from the sentence of their abbat vnto his superiour, as it hath oftentimes beene iudged by the decrees of the parliament of Paris; & that without leaue, as witnesseth [Sidenote 949 - *] the abbat of Palermo; [ C] and hath also bene iudged by the parliament of Bourdeaux. And for the same reason if the colledge would without cause thrust out or depriue one of the fellowes of his right, priuilege, and libertie in the colledge, the hearing of the cause belongeth to the ordinarie judge of the colledge. Howbeit that in auntient time the corporations and colledges of Artisans, Marchants, and other such like, had this power (for the remouing of their fellowes) as we read in Cicero of the Roman marchants, Mercuriales & Capitolini, M. Furium hominem nequam, equitem Romanum de collegio deiecerunt, The Mereuriales and Capitolini (saith he) thrust M. Furius a naughtie man, and yet a gentleman of Rome, out of their colledge or companie. And in Lacedemonia (as Plutarch writeth) it was lawfull for to thrust out of their colledges or companies, him that [ D] had discouered or reuealed the sec•…]ets of their companie. As in like case Panormitan the abbat writeth, That in abbies or colledges erected for deuotion, the chapiters haue power to thrust out any of the fellowes, or to depriue him of his ordinarie diuidents, but not to beat him, or to vse sen•…]re correction vpon him, or yet to imprison him; as hath bene iudeged by a decree of the parliament of Paris.

But yet here a man might aske, Whether a colledge may make a decree, That none of the fellowes shal conuent or sue another of his fellowes, before any other judges but the colledge? And in case it be so decreed, whether hee that shall breake the decree so made and sue his fellow before another judge, shall be bound vnto the ciuill penaltie in the decree set downe? Wherein Sceuola the lawyer is of opinion, the decree to bee [ E] good; and that the fellow of a colledge or societie cannot haue recourse vnto other magistrats, contrarie vnto the decree of the colledge, but in paying the penaltie in the decree of the colledge expressed. Howbeit (in mine opinion) this decree is not general, neither can take place in causes criminall, no more than the conditionall penalties set downe in arbitrements, which haue no place if they concerne matters of crime. Secondarily mine opinion is, That the decree of a colledge or companie, euen in ciuill causes hath no place, if all the fellowes of the colledge or societie giue not thereunto their consents, as they do in arbitrements, whereunto no man is bound that [Page 370] would not. For in all communities, corporations and colledges, and so generally in [ F] [Sidenote 950 - *] euerie societie and companie, if question be of any thing which is common to them al in particular & apart from the community, the expresse consent of euery one of them is therin requisit, if any thing be therin to be done. But if question be of that which is commō to them all iointly & indiuisibly, it sufficeth that the greater part be of one opinion, for the binding of the rest: Prouided alwaies, that nothing be ordained or decreed, contrarie to the statutes of the colledge, established by the soueraigne prince, or by the founder of such corporation or colledge, authorised by the prince. Wherfore the laws of the Commonweale, and the statutes of the colledge standing whole and entire, the colledge may make decrees which may bind the lesser part all together, and all the fellowes in particular: yet still prouided, that two third parts of the fellowes consent vnto [ G] the making of the decree: albeit that they be not all of one aduise or opinion, in matters concerning their common society, although that such decrees so made cannot bind the greater part of the fellows collectiuely, and much lesse the whole corporation and college: no more than the prince is bound to his owne law, or the testator to his owne will, or particular men vnto their owne agreements, from which they may by their common consent reuolt, nothing beeing more agreeing with reason and nature, than euerie thing to be dissolued, by the same meanes that it was made.

But yet it might be doubted, Whether decrees made by the consent and good liking [Sidenote 951 - *] of an whole colledge or societie, might bee againe repealed and abrogated by the greater part, or two third parts of the same societie or colledge? Which I doubt not [ H] but that they may in al common estates, corporations, and colledges, if question be but of things common to them al in generall (as they are one vnited body:) but if question be of euerie mans right by himselfe particular and apart from others, then euerie man is to giue his consent thereunto. Wherefore if the assemblies of the estates in a Commonweale consist and be of diuers bodies, as in the diets of the empire, and in all other Commonweales are composed of three orders and degrees of men, viz. of the Clergie, the Nobilitie, and Comminaltie, nothing can be done or decreed by any two of the orders, to the hurt or preiudice of the third, especially if the matter concerne euery one of the orders by themselues apart. By which reason I caused two of the orders of [ I] Fraunce, to chaunge their opinions in matter concerning the third. For at such time as I was sent deputie for the prouince of Vermandois to Blois (whither king Henry the iij had called an assemblie or parliament of al the kingdome of France) a great and weightie question was moued amongst the three estates, Whether it were more indifferent, and better also, the requests of the people to bee before the prince iudged and determined by 36, men which euerie one of the three orders should by voice chuse, than by the prince himselfe with his councel? And now the Clergie and Nobilitie had not onely so decreed, but had drawne a great part of our sort vnto their side also, hauing with hope of great rewards gained their voices. At which time I perceiuing the drift and purpose of certaine ambitious persons that were dealers in the matter, aunswered, [ K] That the matter was further to bee considered of. For why, it was laboured, that such things as could not bee obtained of the people in generall, might so be from a few in the name of the whole extorted. Wherefore the question being more throughly debated, I denied that the matter could so by vs bee passed, without a more speciall commission from the people. Neither that if wee had any such speciall commission from the people, could it yet by vs bee done, without the great daunger of the whole Commonweale; and that for many reasons, by me then discouered: whereby I drew the rest of my fellowes backe againe to mine opinion, who laied this charge vppon mee to remoue also the other two orders of estate [Page 371] from their former receiued and setled opinion. But when the Archbishop of Lyons [ A] (President of the Ecclesiasticall estate) earnestly withstood me, seriously alleaging that the Clergie and Nobilitie had before so resolued; I showed him, that such a Prerogatiue had from all antiquitie beene kept to euery of the three Estates, as that no two of them could decree any thing to the preiudice of the third: as it had before without any difficultie passed in the parliament at Orleance; and as it is also vsed in the diets of the Empire, and the Parliaments of England, and of Spayne. For which cause, and other reasons then alleaged, I requested the other two orders of Estate, to take it in good part, in that they were by me hindered, as hauing the charge of the third estate. Which was the cause, that the thing beeing againe called into consultation, both the estates chaunged their opinions. Which the king hearing, and dissembling his griefe, said in [ B] the presence of Ruze Bishop of Angiers, and other Lords, That Bodin at his pleasure had ouer ruled the Estates.

But if question be of a thing common to all a corporation or colledge, and which [Sidenote 952 - *] concerneth not any the particular members apart from the whole bodie, but the whole and entire bodie onely; the greater part of the societie, may at their discretion thereof determine: albeit that the whole communitie haue determined that their Statutes and orders should not be infringed, but by the consent of all the fellowes. For why, The greater part of a Communitie is alwaies reputed for the whole. Yea the law willeth, that he which is chosen of a communitie or colledge to entreat and discide of their common affaires, may bind euery one of the colledge. Wherefore they are deceiued [ C] which write the greater par•…], or two third parts of a Colledge, to be able to do nothing, if the colledge haue made a statute, That they must all thereto consent: for if that might take place, then any one of the fellowes himselfe alone might empeach and stay the aduise, decrees, and resolutions of the whole societie; which is contrarie to the formall disposition of the law, which willeth, That in all acts concerning a communie or corporation, the greater part should be the stronger; and that the more part of two third parts, may giue lawe to all the fellowes in particular, whether the rest of the fellowes be there present or absent. For why, it is not needfull that they should all be present, that the decrees should stand good, and that especially in light matters; prouided yet that they be all thereunto summoned or called. Howbeit that in matters of waight & [ D] consequence, it is needfull that two third parts be there present, albeit that they all giue not their consents, except it be by a speciall law prouided that the two third parts must of necessitie agree in one. As by the iudiciall lawes of Lewes the xij the French king, it is ordained, That two parts of the Iudges, and no fewer, may in the higher Courts end any ciuill cause: whereas in criminall causes, equall voices acquite the partie accused; who yet otherwise is to be condemned, if the greater part do but by one voice exceed the lesser. So also by a decree of Gregorte the x, concerning the election of the Pope, he must haue two third parts of the colledge of Cardinals that is to be chosen Pope. As also in many elections of the heads of Colledges, it is necessarie that two third parts of the colledge should agree in one. Yea sometime it is necessarie that all the fellowes [ E] should be of one and the selfe same accord. As in Rome it was by the Tribunitiall law requisite that all the ten Tribunes should be of one opinion and mind, or at least wise not openly to discent, for that otherwise one Tribune alone might empeach and stay the proceedings of the whole Colledge. Now if they all agreed in one, then vnto the decree were ioyned these words, Pro Collegio, for the Colledge: otherwise if there be no speciall statutes or law to the contrarie, the greater part of two third parts sufficieth in all acts concerning the communitie of corporations and colledges.

It is also necessarie, that the consent whereof we speake, bee giuen in the common [Page 372] assembly of the corporation or colledge: for albeit that all the fellowes had seperately [ F] [Sidenote 953 - *] and apart consented vnto any thing concerning that which is common to all the Colledge, yet so it is that such act is not to any effect or purpose, neither for nor against them which haue so giuen their consents, although it were done euen before publique notaries: for that it is not done by the Colledge, which is done by all the fellowes apart. Neither sufficeth it that all they of the Corporation or Colledge were called together, if it were not in time and place, by the Statutes appointed. Wherefore two parts of the fellowes gathered together, can do more, than all the fellowes consenting apart.

But here some man may aske, who shall call the fellowes together? Wherein many are of opinion, that the most auntient fellow of the Colledge or Societie, hath power [ G] [Sidenote 954 - *] to call the rest together; as also to condemne them of contumacie for not comming▪ and yet for all that not to haue power to fine them, which is but a ridiculous thing, if such contumacie cannot be punished, neither by him, nor yet by the colledge; as certein it is that it cannot: wherfore such calling of the fellows together, by the most auntient fellow, is but vaine, except that the fellowes of their owne accord be content to obey the same. And therefore the Senat during the Consulship of Caesar could not be assembled or called together, Caesar the greatest magistrat forbidding the same, as is afore said. Othersome are of an other opinion, and hold, That two third parts of a Colledge may of right call together the rest: but yet who shall then call together those two third parts they say not. Howbeit is two third parts suffice to do and determine [ H] the affaires of a corporation or communitie, we need not to trouble our selues with the rest, all the fellowes being called. Howbeit the custome kept almost in all corporations and colledges is, for the elders by their seruants or other ministers to call together the rest; or else for them of them selues to come together at the tolling of a bell, or the sound of a Trumpet; as in auntient time they did in Graece and Rome, when as the magistrats which had power to assemble the people, or the Senat, caused their commaunds by the sound of a Trumpet to be published to the people in particular, but not to all in generall, for that they could not be so in that sort commaunded. And who so obeyed not but refused to come, him the magistrat had power to fine, or seize vpon his goods. As we see how that Marcus Antonius being Consull, threatned [ I]Cicero to pull downe his house, if he came not to the Senat being called. So that there is no question where he that calleth together the fellowes, hath power to commaund. But if the Colledge or societie be destitute of an head or magistrat which hath power to commaund, or hauing power, yet is not willing to constraine them which will not obey him; then he whom it concerneth to haue the societie assembled, is to obtaine commission from the magistrat to constraine them to come together, and so we vse to doe. Yet may the greater part of the fellowes together, depriue euery particular fellow of part of the profit and commoditie he is to haue of his Colledge, if being orderly called he shall refuse to come, it being so decreed; yet so that it be moderately [ K] [Sidenote 955 - *] done. Wherefore to conclude this question of the power of Communities, Corporations, and Colledges, we may say Solons law to haue generally place in euery Commonweale, and to be approued by the Interpretors of both the lawes: that is to say, that it is free for all lawfull communities, corporations, and colledges, to make such orders as they shall think for themselues best, so that therby they do not derogate from the statutes of the Colledge, made or established by the Soueraigne Prince, or that they be not repugnant or contrarie to the lawes and ordinances of the Commonweale. And in auntient time it was not forbidden corporations and colledges to make decrees and ordinances within themselues, without derogating from the publique [Page 373] lawes; as also to put therunto such and so great a penaltie and punishment, as pleased [ A] the Colledge. But since that time by the statutes and ordinances of euery Colledge & Commonweale, that power hath beene ordinarily cut short, and brought vnto some small fi•…]e. Neither am I of their opinion, which hold that a Colledge may make ordinances and decrees without any penaltie annexed vnto them; for that such an ordinance, degree, or statute, should be but vnprofitable and ridiculous, if no punishment were thereunto apposed against them that should disobey the same, especially if he that maketh the orders or decrees haue not power by arbitrarie punishment to cause them to be obserued and kept. We see also in many places the Corporations of artificers and such like, which haue the right of a communitie, to haue also a certeine forme of restraining, and visiting of the workes and wares of their occupations or [ B] trades, with power to seise vpon them, or to breake or confiscate them, if any thing be done contrarie to their decrees and orders: sauing yet alwaies the Magistrats authoritie [Sidenote 956 - *] for the hearing of the matter, if it be so reserued vnto him. But whereas we said that a lawfull Corporation or colledge may make ordinances and decrees, not derogating from the lawes of the Commonweale: that is so yet to be vnderstood, as that they in their assemblies and meetings entreat onely of that which is vnto themselues common, and not of such things as whereof they are by the law prohibited not onely to determine, but euen to consult also: lest in so doing they incurre the penaltie appointed against vnlawfull Colledges and Companies.

And thus much concerning the power, rights, and priuileges of Corporations and [ C] [Sidenote 957 - *] Colledges in generall. Let vs now see also how and in what sort they are to be corrected and punished when they shall offend. Howbeit that one might say that where no offence is committed, there no punishment is to be inflicted. Now so it is that a colledge or corporation cannot offend, nor so much as consent, or doe any thing by fraud or deceit (as the law saith;) and therefore there lyeth no action of fraud or deceit against a colledge or corporation, although all the fellowes of the same colledge, or all the inhabitants of a citie, or all the estates of a countrie, had particularly and euery one of them apart consented thereunto: a thing yet altogether impossible in corporations and communities of Townes, Countries, Prouinces, & Commonweales, considering that the children and furious persons which therein are, cannot yeeld their consent [ D] thereto. But forasmuch as things done by the greater part of the fellowes of a colledge [Sidenote 958 - *] collegiatly assembled, or by the greater part of the inhabitants of a towne or citie in a lawfull assemblie, are supposed to be done by them all, therefore the whole colledge or corporation is punished: as in rebellions of Townes, and seditions of communities, which are punished in their Corporations by losse of their priuileges, or of the right of their communitie, by fines, charges, seruices, and other punishments, according to the qualitie of the offence: which punishment yet ought not to take place, if the rebellion or other crime be not committed by the consent of the communitie or corporation, and decree for the doing thereof made in their common assemblie: as it was iudged by a decree of the parliament of Paris, for the communitie of the citie of Corbeil. And [ E] yet neuerthelesse, if the corporall punishment be for the offence committed, to be inflicted, as whipping, torture, or death, none of the societie or corporation are so to be punished, but they which were therein partakers, or at least thereunto priuie, although the whole bodie of the communitie or colledge be therefore condemned. As in priuat offences done by many being of no colledge or communitie, there lyeth not an action but against euery one of the offendours in particular, and for the whole, in such sort, as that one of them hauing made satisfaction, the others are thereby acquired. But if such fact or offence be done by any one, following therein the aduise, counsell, and [Page 374] deliberation of all, they may be all therefore conuented, and euery one of them apart [ F] for the whole, neither one of them making satisfaction, are the others thereby discharged. But happely it may seeme a thing verie vnreasonable and absurd, that many, yea the greater part of the same colledge or corporation, should be found innocent, and yet to be altogether punished in the whole bodie, as in the cases by vs before rehearsed. Whereunto I answere, That it is yet more straunge, that the innocents should by lot be drawne together with the offendours, and that these should be punished, vpon whom the lot should fall; as the maner was in the Decimation (or as it were tything) of the armie, for hauing borne it selfe cowardly against the enemie, where the most hardie & valiant, were oftentimes by lot drawne out, and for cowards executed. Which example the Senator Cassius vsed, at such time as he in full Senat, [ G] persuaded the Senators to put foure hundred Slaues to death, although that there was one (and he vnknowne) amongst them guiltie of the murther committed in the person of their master, ioyning thereunto these wordes: Omne magnum exemplum habet aliquid [Sidenote 959 - *]ex iniquo, quod publica vtilitate compensatur, Euery great example sauoreth something of iniustice, which (yet for all that) is with the common profit againe recompensed or requited. But this is not (may some say) to pay the debt, to alleage one inconuenience in defence of an other, and of one absurditie to conclude an other. Whereunto I say, that the best iustice that a man can doe is, of diuers inconueniences at once [Sidenote 960 - *] propounded, to shunne the greatest, especially when question is of such offences as may in no wise be left vnpunished. For we see that the wisest, & most aduised Lawiers [ H] haue descided, That if there be any one slaine, or beaten, or robbed by many, they are all bound for the whole, albeit that happely it was but one of them which gaue to him the mortall wound: but if it shall appeare, which of them killed him, and that it was done without the conspiracie of the rest, onely he is bound that so slew him: But if it appeare not at all by whom he was slaine, neither that they had conspired against him, they are all acquited from corporall punishment; but yet are to be therefore fined: For nothing is more effectuall for the finding out of that which is true and iust, then that in doubtfull things it is admitted, still to shunne those things which are more absurd and vniust. As if a felonie bee done which cannot by one man be performed; as if many haue caried away an other mans timber log, and amongst those many it appeareth [ I] not who it was that did it, none of them is guiltie of the theft, if we will sticke vnto the subtillitie of the words of the law; and yet are they all indeed guiltie: whereof the Lawiers haue no other reason, but that the inconuenience falleth greater on the one side, when they would shunne it on the other, which is (as we said) the greatest reason that a man can haue, to find out the truth of all things, when all other reasons faile. We speake not here of that which enemies do to townes besieged, and by force taken, pilling, killing, sacking aswell the good as the bad; and where the better that a man is, the worse commonly he fareth: but what a prince ought to do against his rebellious subiects. Howbeit that the Romans, although accounted the most iust people [ K] of the world, haue not alwaies followed that rule of equitie and iustice which we before spoke of, but sometimes punished not onely in generall, but euen in particular, [Sidenote 961 - *] all the inhabitants of their rebellious Townes after that they had taken them: and yet alwayes obserued this point, to punish the heads more seuerely than the rest, and to preserue them that had resisted the seditious; hauing still aspeciall regard whether the rebellion were consulted of and decreed in the Corporation and communitie or not. So Liuie saith: Valerius Leuinus Agrigento capto qui capita rerum erant, virgit caesos securi percussit, caeteros proedamque vendidit, Valerius Leuinus hauing taken Agrigentum beheaded them that were the chiefe authours (of the rebellion) being [Page 375] before whipped, the rest and the prey he sold. And in an other place: Quoniam defectionis [ A]authores merit as poenas a dijs immortalibus, & a vobis habent P. C. quid placet innoxia multitudine fieri? tandem ignotum est illis, & ciuitas data, For that the authours of the rebellion (saith he) haue from the immortall Gods, and you the appointed fathers, receiued their deserued punishment, what is it your pleasure to be done with the rest of the guiltlesse multitude? at length they were pardoned, and the freedome of the citie giuen them. The Consull Fuluius, hauing after a long siege taken the citie of Capua, beeing renolted from the Romans, beheaded fourescore of the Senatours, beside xxvij others which had before poysoned themselues, and caused three hundred moe of their chiefe gentlemen to be in prison starued, the rest of the inhabitants he sold for slaues. As for the other Townes which were vnder the obedience [ B] of them of Capua, there were none but the chiefe men punished. Atella, Calatia{que} in deditionem acceptae, ibi quoque in eos qui capita rerum erant animaduersum, Atella and Calatia (saith Liuie) were taken in by composition, and there also execution was done vpon such as were chiefe doers in the rebellion. The other Consull Appius more seuere than his fellow Fuluius, would haue enquirie made also of their allyes, who had had secret part in the same conspiracie: Whereunto Fuluius would not agree, saying, That so to do, were but to prouoke their faithfull and loyall allyes to rebell, in giuing credit vnto the traiterous Campanians▪ Whereby it is manifest with [Sidenote 962 - *] what seueritie the Romans thought it good to punish their rebellious conspirators, during the time of their popular gouernment. And as for the Roman Emperours, [ C] some of them vsed towards such offendours gratious fauour, and othersome extreame ctueltie. The emperour Aurelianus for his clemencie deserueth to be for euer commended, who laying siege vnto the citie Thyane, swore that there should not a dog escape aliue, if he should take the citie: but hauing by force wonne it, chaunging his mind, as with compassion moued, he straitly forbid any man to be therein slaine; and when some to prouoke him vnto wrath, put him in remembrance of the oath he had made: he said it concerned but dogs, which hee commaunded to be all forthwith killed. The like clemencie Henry the fift the Germaine Emperour, hauing condemned the citie of Brixia to bee vtterly rased, and laid euen with the earth; yet when he had wonne the same, pardoned the citisens neuerthelesse, least the innocent people should [ D] so haue perished together with the offendors; following therein the mercie of God, who would not onely the good not to perish together with the euill and wicked, but promised to be mercifull vnto certeine cities, and a multitude of wicked persons, for some few good men to bee found amongst them. Some others of the Emperours haue contrariwise vsed most barbarous cruelties, without discretion killing the good and bad together, and that for the fault of some few. As the emperour Antonius Caracalla, who in reuenge of certeine rymes and songes made and sung against him [Sidenote 963 - *] at Alexandria, caused certeine of his garrison souldiours and Praetorian bandes to bee entermingled with the people as they were there beholding playes: who vpon a signall giuen, slewe an infinite number of the poore Citisens one with an other [ E] without respect, as they came to hand. The like whereof hee had also before commaunded to bee put in execution at Hierusalem. And afterward at Thessalonica, where the Emperour Theodosius the great caused seauen thousand of the inhabitants to bee slaine one with another pell mell in reuenge of certaine of his Receiours and other his magistrates and officers there slaine, without any deliberation or decree for the doing thereof, before made in their Communitie or Corporation. Xerxes king of Persia vsed an other manner of reuenge, not in deede so cruell as the other, but yet farre more ignominious and despirefull, causing [Page 376] the noses of all the people of a citie in Syria to bee cut off (which citie after that was [ F] of that euent called Rhinocura) for the like fault done by some few of them. But of all cruelties that of Syllaes passed, who beside three score thousand citisens of Rome by him slaine, caused also all the inhabitants of Preneste to bee put to death, pardoning none but his hoast, who would also needs die with the rest, saying, That he would not be beholden for his life, vnto the murtherer of his countrey. Which cruelty may yet be borne with, when the vanquished shal chuse rather to die than to become subiects; as in all ages there haue bene such: but not if they shall bee content to serue and obey them, by whome they are ouercome and vanquished. So the Pisans (in the memorie of our fathers) not able to endure the iust gouernment of the Florentines their lords, by the fauour of Charles the eight the French king, yeelded themselues to [ G] Countie Valentine Borgia, who beeing not able to protect them, they in vaine offered themselues first to the Genowayes, and then to the Venetians: By both which states they being reiected, after that they had for a long time beene most straitly besieged, they yeelded themselues subiects vnto the Florentines their old lords, of whome they easily obtained pardon, and so afterwards continued their good and faithfull subiects. But Lewes eare of Flaunders, and the last of his house (for after his death that earledom [Sidenote 964 - *] fell into the house of Burgundie) hauing brought the Gantois rebelling against him to such extremitie, as that they were glad to craue of him grace and pardon, would not so receiue them, but propounded vnto them most hard conditions, and not beseeming a free people to accept of: as that they should all come vnto him out of the citie to craue [ H] pardon with halters about their neckes; and that then he would consider what he were to do with them. Which put the poore distressed people into such a desperat feare, as that they went out being in number but fiue thousand (but all armed with dispaire) against the earle, who then was fortie thousand strong, whome they in a great battell ouerthrew; and so brought vnder their obeysance all the townes of Flaunders, except Audenard. The earle flying out of the ouerthow hid himselfe vnder a poore womans bed; who afterwards found meanes for his escape, by couering him in an heape of apples: but being so escaped▪ for euer lost his power, together with his honour. With which so great an ouerthrow giuen, the Gantois became much more arrogant than before, [ I] [Sidenote 965 - *] & neuer afterwards willingly endured their princes commands. Whereby it was then perceiued, No more cruell enemies to be found against the prince, than his desperat subiects, Nor any war to be more iust, than that which is by necessitie imposed; as said an auntient Roman Senator. But that the aforesaid warre was such, it is euident & plaine, seeing that together with their most shamefull yeelding, most cruell death did hang ouer all their heads, and a reproach heauier than death it selfe; reproach and disgrace being alwayes more dreadfull vnto men of honourable minds, than most cruell death. But in that time it should seeme, that princes tooke pleasure to encrease their crueltie with reproach and despight against their disobedient and disloyall subiects. For so [Sidenote 966 - *]Frederike the second, the German emperour, to reuenge the miurie done vnto his [ K] wife, with great disgrace at Milan, hauing besieged and taken the citie, after he had put to death the chiefest of the citisens, and rifled and rased the citie, vsed a contumelie and despight towards the rest that had escaped the souldiours furie, as was vnto them more despightful than cruel; & yet worse than death. So Dagobert king of France, not cōtented to haue slaine the inhabitants of Poitiers, for ayding his enemie against him, caused also the towne to be rased, and the ground to be plowed with an eternall curse, and salt to be sowne vpon it to make it barren: whereof they are yet called Salted men of Poitiers. But as princes which with sufferance passe ouer the seditions & rebellions of the corporation or communitie of any towne or prouince, giue example to others to doe [Page 377] the like: so those princes also which without measure exercise crueltie vpon their vanquished [ A] [Sidenote 967 - *] subiects, get vnto themselues not onely the title of most barbarous and cruell tyrants, but in so doing sometimes also hazard their whole estates. But hee shall deserue the prayse and commendation of a iust prince, and preserue also his estate, which shall keepe the meane in punishing the authors and ringleaders of rebellions, tempering seueritie with lenitie. As did Charles of Fraunce king Lewes the ninth his brother: (afterwards king of Naples) who hauing commission from the king, to chastice the inhabitants of Mont Pelier, who had slaine certaine of the kings receiuers & officers: tooke from them all their liberties and priuileges, appointed the walles of their citie to be rased, their steeples pulled downe, and a fine of six score thousand crownes to be set vpon them: or as some write, caused halfe the goods of the citisens to bee confiscated, [ B] and of six hundred of them one part to be drowned, another part to bee hanged, and the third part burnt. And so indeed the iudgement was to the terrour of them giuen, and the decree set downe: how bei•…] that it was afterwards by the good prince moderated, in such sort, as that none but the offendors themselues were executed: for that the kings officers and magistrats had bene so murthered by no publike councel, or assembly of the citisens orderly called, but by the insolencie of the rash tumultuous people onely. With like lenitie Charles the sixt the French king disarmed the Parisians risen vp in rebellion against him, and executing the authors thereof, restrayned the rest of the whole bodie of the citisens, by imposing vpon them a great fine. And admit all the citisens of a citie, by their common consent, and the matter being before well debated, [ C] to haue all together with one mind rebelled, and chosen vnto themselues a new prince: Yea and to haue augmented their wickednesse with contumelie and despight against their soueraigne: yet were it not the part (I will nor say) of a good prince, but euen of a wise prince, to take reuenge of all of them of whome he might, for blemishing thereby for euer of his fame and reputation; than which nothing ought to bee vnto a prince more deere: albeit that he might so doe (which yet were a most hard thing) the state of the Commonweale reserued whole. Wherefore T. Quintius the Consul [Sidenote 968 - *] did wisely, who when he could not with the safetie of the Commonweale chastice the armie which he then had vnder his conduct and leading, for their rebellious mutinie, after he had appeased all matters, and yet thought it not safe for the souldiours so in danger [ D] of the law to returne into the citie, he himselfe came first to Rome, and there by consent of the Senat presented a request vnto the people, Ne cui militum fraudi esset secessio, That the mutinous reuolt might not be daungerous to any of the souldiours: which he with the great good liking both of the Senat and of the people obtained. With like wisdome Scipio Affricanus the father, repressed the mutinie of his army at Seuerone, with the execution of thirtie fiue of the souldiours onely: Certabatur vtrum in authores tantum seditionis xxxv animaduerteretur, an plurium supplicio vindicanda defectio magis esset quam seditio: vicit sententia lenior, vt vnde culpa orta esset, ibi poena consisteret, ad multitudinis castigationem satis esse, Question was (saith Liuie) whether execution were to be done onely vpon thirtie siue, the authors of the sedition: or that so [ E] great a reuolt rather than a sedition, were to be reuenged with the execution of moe: wherein the milder opinion preuailed, That from whence the offence was begun, there should the punishment rest: and that to suffice for the chastising of the whole multitude. And shortly after in the oration which Scipio made vnto the armie, he vseth these words, Se non secus quàm viscera secantem sua cum gemitu & lachrimis xxx hominum capitibus, expiasse octo millium noxam, Him no otherwise but as a man cutting his owne entrels, with sighes and teares to haue made satisfaction for the offence of eight thousand men, with the heads of thirtie. So when Appius the Consull (with great rashnesse [Page 378] should I say, or pride) would by strong hand haue restrained and corrected his armie, [ F] then all in a mutinie, he was by the Colonels and captaines staied from so doing: who all with one voice told him, Nothing to be more daungerous, than to seeke by force to chastice them, in whose loialtie and fide litie the whole force of the empire consisted. And albeit that nothing were to bee feared in the punishing of an whole armie, or [Sidenote 969 - *] of a citie, yet such generall and popular punishments are not to be vsed: but in chastising of such offences, an especiall regard is to be had, Vt poena ad paucos, metus ad omnes perueniat, That the punishment it selfe should touch but few, but that the feare thereof should come vnto all; [Sidenote 970 - *] as an auntient orator no lesse eloquently than wisely said.

Yea moreouer it beseemeth not a soueraigne prince to be the executor or beholder of the execution of such generall punishments; (if otherwise it may bee in his absence [ G] done) to the intent his subiects minds should not so be alienated from him: but to the contrarie it is needfull for him with a conuenient lenitie to moderat euen the iust and necessarie seueritie of his deputies and magistrats, to the imitation of Antiochus the [Sidenote 971 - *] great king of Asia, who hauing giuen commission to Hermeas his constable, to punish the rebellion of them of Seleucia: and he condemning the corporation of the citie in a fine of six hundred thousand crownes, and banishing also a great number of the citisens, and taking away the liberties and priuileges of the citie: Anoiochus called home againe the banished; and contenting himselfe almost with the tenth part of the fine, restored againe vnto the citie the auntient liberties and priuilegs thereof. But not to goe further, Henrie the second the French king, hauing giuen commission to the duke [ H]Mont-morencie constable of Fraunce, to chastise the rebellion of the countrey of Guyenne, and especially of the inhabitants of Bourdeaux, graunted them afterward a generall patdon, and forgaue them the rasing of their towne hall, wherein they had made their assemblies, with the fine of two hundred thousand pound, and the charges of the armie brought against him: in all which the inhabitants of Bourdeaux were by the duke condemned; restoring vnto them also the right and freedome of the corporation of the towne, excepting them only who had laid hands vpon his officers, and some few priuileges and demaines of the towne, which were then abridged and cut off. But the emperour Charles the fift, not so cruelly as wisely, by one and the selfe same iudgement, [Sidenote 972 - *] reuenged the often rebellions and iniuries which they of Gaunt had of old vsed [ I] to doe against his auncestors, and which till then remained vnpunished: partly by the sufferance, and partly through the weakenesse of the earles of Flaunders. For when the citisens of Gaunt had now compelled the Bourgamaster openly to teare in peeces the emperours edicts, and had sent ambassadours vnto Frauncis the French king to receiue them with their citie into his protection: and he refusing them, had solicited his other subiects, their neighbours to rebellion: the councell of Spaine decreed, That the citie should be rased and laid euen with the ground, and all the goods of the citisens confiscated. Howbeit the emperour hauing it in his power, spared the countrey and citie wherein he was borne and brought vp: but executed thirtie of the chiefe authors [ K] of the rebellion, tooke away all their corporations and colledges, depriued the citie of part of the publike lands thereunto belonging, as also of all the priuileges; and caused a most strong castle to be there built, and a garrison therein to be kept and maintained, and all at the citisens charge. This the emperours sentence I receiued of them of Gaunt, at such time as I was of councell to Frauncis duke of Aniou, and of the Low countries. And not long after king Frauncis, who had refused to protect the Gantoies going in person himselfe to represse the rebellion at Rochell, raised for the custome of salt, with the maiestie of his speech terrified them of Rochell, and fined them, but yet put no man to death: yea he left vnto the citie the liberties and societies thereof whole, [Page 379] yet protesting himselfe to haue had no lesse occasion to reuenge himselfe than had [ A]Charles the fift, but that he had rather to encrease his commendation, by sauing, than by spilling of his subiects, and by gentlenesse rather than by crueltie. By these examples before set downe it is well to be vnderstood, what is to bee determined for the punishment of Communities, Corporations, and Colledges: wherein they which affect lenitie, do giue occasion vnto the same citisens oftentimes to rebell: which in a Commonweale is of a prince especially to be taken heed of. In which thing no man seemeth to haue behaued himselfe more wisely than Charles the fift. Yet he that seemed to haue bene so seuere against the Gauntois, vsed the greatest lenitie that might bee towards the Spaniards of all sorts, at such time as they had not only rebelled against him, (when he went to take possession of the empire) but also chosen the duke of Calabria [ B] for their king, who refused that so daungerous a preferment. Of which so great a multitude Charles thought it not good to punish one, and that right wisely: for that in so doing he should haue launced all the members of the Commonweale. For albeit that it is an wholesome thing to cauterise or cut off a mortified member for the preseruation of the whole bodie; must we therefore if all the members of the bodie bee in a consumption, or taken with a Gangrena vse sections or cauterisations? Hypocrates the great physitian saith no, forbidding vs to apply remedies to desperat diseases, and so much the lesse, if a consumption shall take hold of the chiefe and principall members of the bodie. [Sidenote 973 - *] Wherefore to conclude this question, if the offence be committed by the councell or deceit of a communitie or corporation, that which belongeth vnto such a communitie [ C] or corporation so offending, is therefore to be confiscated or forfeited: but if there be no such thing thereto belonging that may so be forfeited, then a fine in money is to be set thereupon, but yet to be exacted onely of them which gaue counsell or aid to the committing of the offence: for as much as it could not bee committed by the whole communitie or corporation it selfe: but if the guiltie parties be not to be known from the guiltles, then are they altogether to be fined: but as for any corporall punishment, it is not to be inflicted, except that euerie one of them, and all of them together, haue most grieuously offended. Neither yet are they to be thought all to offend, although they follow the ensignes displaied, except that they altogether and euerie one of them apart gaue their councell or consent thereunto before: but the communitie or [ D] corporation being punished, doth not therefore exempt them that are guiltie of the offence committed, from their due deserued punishment. [Sidenote 974 - *]

But these things being thus declared, concerning the punishments of Communities aud corporations: it remaineth for vs to see, whether that a Commonweale can bee without such Communities, Corporations, and Colledges. Wee said at first, men euery where to be, and alwaies to haue bene desirous of the societie and companie of men: and so out of a familiar and naturall societie by little and little to haue growne into a colledge, into a corporation, into a communitie, and so at length into a citie: and so to haue made these empires and kingdomes, which we here in the world see, hauing no surer foundation wherupon to rest (next vnto God) than the loue and amitie of one [ E] of them towards another: which can in no wise be maintained, but by alliances, societies, estates, communities, fraternities, corporations, and colledges. So that to demand, whether communities and colledges be necessarie in a Commonweale? is as much, as to demaund, Whether that a Commonweale can be maintained and vpholden without loue and amitie? without which the world it selfe cannot long stand. Which I haue said, for that there haue bene, and yet are some of opinion, That all corporations and colleges are out of a Commonweale to bee excluded and banished; not considering that a familie, and the verie Commonweale it selfe, are nothing else but communities. [Page 389] Which is an errour whereat the greatest spirits haue oft times stumbled; for [ F] one absurditie or incommoditie which ensueth of one good custome or ordinance, willing to haue the same custome or ordinance abolished and quite taken away, without [Sidenote 975 - *] regard of the great good which otherwise ensueth thereof vnto the Commonweale. I confesse that colledges and communities euill gouerned, draw after them many factions, seditions, part-takings, monopolies, yea and sometime the ruine of the whole Commonweale also: and that in stead of sacred loue and amitie, there ariseth of them coniurations, and conspiracies of one of them against another. And that more is, it hath bene seene, that vnder the shadow of religion diuers colledges haue couered some most detestable and execrable impietie. Whereof no better example can bee giuen, than of the fraternitie of the Bacchanals in Rome, which deuised vnder the colour of [ G] religion, so long couered the most execrable and detestabble filthinesse of both sexes, vntill that the secrets thereof opened, polluted the citie then mirrour of the world, and all Italie with the loathsome sauour thereof, aboue seuen thousand persons beeing partly accused, attainted, conuinced, and many of them execured and banished, [Sidenote 976 - *] for the abhominable villanies by them committed vnder the colour of that religion, which hath alwaies the fairest and most glorious show that can bee deuised, to bee set vppon a fowle matter; as said Flaminius the Consull speaking vnto the people of Rome, concerning the impieties by him found out, Nihil in speciem fallacius praua religione; vbi Deorum numen praetenditur sceleribus, subit animum timor, Nothing is in show more deceitfull than corrupt religion: For where the maiestie of the gods [ H] is pretended for the cloaking of villanies, there feare pierceth the mind. Which was the cause that the fraternities of the Bacchanals was by a decree of the Senat put downe through all Italie: VVhich decree of the Senat confirmed by the people, passed into the force of a law, That from that time forward no moe sacrifices should bee made by night, but alwayes done in publike. VVhich thing Damonax a wise Grecian had long time before attempted to persuade the Athenians of, saying, Those [Sidenote 977 - *] night-sacrifices to haue alwaies seemed vnto him verie suspitious. And better it is in euerie Commonweale openly to suffer whatsoeuer assemblies or sacrifices to bee done by day, in the sight of all the people, then nightly assemblies to bee made vnder [ I] the colour of religion▪ VVhereof Cato the Censor most grieuously said, Ab nullo genere non summum periculum est, sicaetus, & consilia, & secretas consultationes esse sinas, There is no sort of men from whom the greatest daunger is not to bee feared, if you shall suffer conuenticles, and secret councels and consultations to be kept amongst them: VVhich can so much the lesse be auoided, when as the false opinion of religion is pretended for to colour villanies. For that there is no conspiracie, which may not be contriued and made in such secret assemblies: which growing by little and little, and not perceiued vntill they bee growne great, at length bursting like to a rotten impostume, infecteth the whole bodie of the Commonweale. As for proofe thereof in our remembrance, whereas there haue alwaies beene many conuenticles and meetings [ K] of seditious persons, vnder the pretensed show of religion, so a more daungerous companie of filthie fellowes neuer more sodenly in any place brake out, than did that of the Anabaptists in Munster, the chiefe citie of VVestphalia, who there secretly multiplying, vppon the sodaine tooke vp armes, and by the leading of a Taylour draue out the bishop and magistrats, and so possessed the citie wholly to themselues, which could not bee againe recouered from them, not those phantasticall seditions repressed, but by a strong armie of the whole German empire. The Colledges and Fraternities of the Pythagorians dealt more moderatly in Italie, who professing the studie of wisedome, and hauing drawne vnto them [Page 381] so many disciples, as that many the greatest lords & princes, both of Italie and Greece, [ A] moued with the admiration of their doctrine, were now become both their auditors and followers: they bearing themselues thereupon, went about to haue euerie where ouerthrowne the popular estates, and tyrannicall gouernments, and for them to haue established Aristocraties, and the gouernments of wise men. But that their so good a purpose was ouerthrowne by certaine ambitious and popular men, who setting the people in an vprore with fire and sword, destroyed all the Pythagorians. Which (as saith Polibius) troubled almost all the estates both of Italie and of Greece. And for this cause the emperours, and almost all other princes, popes, and councels, giuing the Iews leaue to haue their meetings & synagogues (which Tyberius, Claudius, & Domitian) the emperours, had of antient time taken from them) commaunded yet, That they should [ B] alwaies do their sacrifices, and haue their prayers openly, and in publike. Which libertie Pharao king of Aegypt (terrified with the iudgements of God) would haue also graunted them, but was by Moyses refused, alleaging, That it was to be feared least the Aegyptians should ouerwhelme with stones the Iewes, vsing a strange religion, and by the lawes of the countrey forbidden. And to say the truth, it is a thing most hard and [Sidenote 978 - *] difficult to maintaine colledges or corporations in a Commonweale of what religion soeuer, either publikely or priuatly, being contrarie to the religion of the people, or of the greater part of them: For that the people euery where most iealous of their religion, cannot but most hardly endure any rites and ceremonies, differing from the religion by themselues generally receiued: neither are by the lawes, or by the magistrats commaund, [ C] or bands of men so to be restrained and kept in, but that their rage will ofttimes most furiously breake out, not against the weaker sort onely, but euen against the most mightie ones also. For so Thomas emperour of Constantinople, pulling downe the altars and images of the saints, was by the angrie people most cruelly slaine in the verie temple of saint Sophia. We haue also seene in the citie of Franckford foure corporations [Sidenote 979 - *] and colledges of diuers religions, to haue bene publikely allowed and exerci sed, namely those of the Iewes, of the Catholikes, of the Protestants, and of the Confes▪ sion of Geneua: But it so fell out in the yeare 1562, in the moneth of May, that the Protestants assuring themselues of the strength of their partakers, fell vpon them of the Confession of Geneua, (who in their profession came neerest vnto them) and bearing [ D] with the other which more differed from them, cáused that of the Confession to bee there vtterly forbidden. Which is lesse to be feared in such religions and sects as haue bene of auntient time receiued, and which as it were in their owne right defend their profession: such as is the religion of the Iewes, from which all other religions, except 〈 in non-Latin alphabet 〉], seeme to haue taken their beginning: which Chrysostome therefore calleth The mother of the Gentiles: the princes of Europe and of Barbarie hauing alwaies granted vnto the Iews, their antient priuileges, corporations, & colledges, for the exercising of their religion, in paying vnto them certaine tribute, as they did vnto the Roman emperors, which was called Aurum Coronarium; which the German emperours ordinarily giue vnto the emprises, for the confirmation of the Iewes priuileges, [ E] which are yet greatet in Polonia and Lituania than in any other place of the world, since they were by Cazimir the great king of Polonia graunted vnto them, at the request of a Iewish ladie, called Hester; such as had of antient time by a Persian king bene vnto this nation giuen, at the instance of another Iewish ladie of the same name. Where they so mightily encreased, as that there was no prince in the greater Asia, which had not in it one or other Collonie of the Iewes; as we read in Iosephus, and Philo. Wherefore the most auntient antiquitie of that the Iewish religion, together with the great pouertie of the Iewes themselues, who in no place of the world may possesse [Page 382] any lands, maketh that they need the lesse, and are indeed the lesse able to sight for their [ F] religion and libertie.

But it may be, that the consent and agreement of the nobilitie and people in a new religion or sect, may be so puissant & strong, as that to represse or alter the same, should [Sidenote 980 - *] be a thing impossible, or at leastwise maruelous difficult, without the extreame perill and daunger of the whole estate. In which case the best aduised princes and gouernours of Commonweales do imitat the wise pilots, who when they cannot attaine vnto the port by them desired, direct their course to such port as they may: Yea and oft times quite chaunging their course, giue way vnto the stormes and tempests, least in seeking too much to put into the desired hauen, they suffer shipwracke. Wherefore that religion or sect is to be suffered, which without the hazard and destruction of the [ G] state cannot be taken away: The health and welfare of the Commonweale being the chiefe thing the law respecteth. Wherefore Constans the emperour suffered the companies and colledges of the Arrians, not so much for the loue and affection he bare towards them, as diuers haue written but so in quiet to preserue his subiects, and estate. And Theodosius the Great being himselfe a Catholike, and alwaies contrarie to the Arria•…]s opinion, yet bare with their religion, which hee could by no meanes suppresse, maintaining both the one sort and the other in peace and obedience. And after him Zeno the emperour, to reconcile the companies of all sorts of religions among themselues, and together with the Commonweale, commaunded an edict, which they called 〈 in non-Latin alphabet 〉], which is to say, of vnion and tranquilitie or quietnesse to be published. After [ H] whose example Anastasius caused the law of forgetfulnesse to bee set forth, cherishing the graue and modest preachers, and remouing such as were of vehement and turbulent spirits.

And yet no doubt, but that a prince fauouring one sect or religion, and disliking another, [Sidenote 981 - *] may if he will without force or constraint, or any violence at all, suppresse that which he liketh not (except it be by the hand and power of the almightie supported) & that by keeping the maintainers thereof from all preferments and places of command; and by shewing himselfe in deeds rather than in words, to abhorre that religion which he desireth to haue extinguished, For the maner of men is, to loue such things as their princes embrace: and minds resolued, the more they are crossed, the stiffer they are, [ I] which otherwise of themselues grow weake and feeble, if they be not at all resisted. Besides that, there can be nothing more daungerous vnto a prince, than to make proofe of his forces against his subiects, except he be wel assured to preuaile against them: which otherwise were but to arme a lion, and to show him his clawes wherewith to teare his master. But if the wiser sort of princes do in the varietie of religions right, hardly keepe the concord and vnitie of their subiects: what then is to be hoped for of such princes, as haue no experience of gouerning of the state, on euerie side beset with their flatterers? pressed by their false enformers, thrust forward by their furious followers: aiming only at this, how to fill themselues with other mens wealth and blood. So in the beginning [ K] [Sidenote 982 - *] of the Primitiue Church, vnder the first emperours, so many grosse and impudent calumnies, and slaunderous reports, were deuised and put in writing against the Christians, for the taking away of their assemblies and meetings, as the like whereof were neuer before deuised, and would indeed seeme incredible, were they not yet in writing extant. As witnesseth Anaxagoras the orator, in his apologie to Antoninus: Tertullian in his apologie for the Christians: and Origen against Celsus, certaine of whose writings are yet extant. Whereby it is to be vnderstood, that it was commonly obiected vnto the Christians, that they were Atheists, irreligious contemners of all gods, incestuous murtherers: and such as in their secret assemblies and meetings vsed [Page 383] to kill yong infants conceiued of their mutuall incests, and after that they had so killed [ A] them, to eate them. Which thing indeed Epiphanius reporteth of the heretiques called Gnostic•…]: as that they should in their meetings beat in a morter their new borne children, begotten in incest,, with the yeolkes of egges, flower, honie, and certeine spices mingled together, and so to make cakes of them, and to bake them, and eate them: and that to haue beene with them accounted a sacrament of the bodie and blood. Which slaunders so falsely obiected against the Christians, might seeme altogether incredible, if in the time of our auncestours the like accusation had not beene commenced against the Templers, viz. vnder the raigne of Philip the faire; for which the [Sidenote 983 - *] Colledges in Fraunce before graunted vnto the Templers, at last by a decree of pope Boniface the viij were taken from them, the master with a great number of his fellowes [ B] most cruelly burnt, and the order quite suppressed. All which for all that, the Germans by their writings haue since showed to haue beene but a malitious false accusation, inuented for the taking away of their great lands and wealth from them. The like practise was also vsed against the Corporations and societies of the Iewes, aswell in [Sidenote 984 - *] Fraunce vnder Dagobert, Philip Augustus, and Philip the long: as afterward in Spaine vnder Ferdinand king of Aragon and Castile, who of a mercilesse deuotion driue them quite out of their countries, and enriched themselues with their goods, it being giuen out, that they had crucified boyes, and poysoned wels with the blood of their leprous persons.

Wherefore, to discide the question before propounded, as whether Communities, [ C] [Sidenote 985 - *] Corporations, Societies, and Colledges be good in a Commonweale, or no? or that the Commonweale may well be without them? Truely in mine opinion nothing could euer haue beene deuised more effectuall or better for the keeping & mainteining of popular estates, or for the ouerthrow of tyrannicall gouernements, than corporations and societies: For why, the Commonweales and estates being one vnto an other contrarie, doe by quite contrarie meanes both mainteine and ruinate themselues. And therefore the people and popular estates, accept and embrace all manner of communities, corporations, and colledges; as we said that Solon did, in establishing the popular estate of Athens. All which tyrants in their tyrannicall gouernments seeke vtterle to ouerthrow, as well knowing, the vnitie and amitie of subiects among themselues, [ D] to be the tyrants ineuitable ruine and destruction: the iust royall, and Aristocraticall estates, euen for the same reasons still holding the meane betwixt both, neither accepting nor reiecting of all communities and colledges, but admitting onely such as they see needfull for the state and Commonweale; which with good lawes and orders they still keepe within the compasse of duetie and obedience. The good king Numa was the first that ordained Societies and Fraternities of artificers and men of occupation; and so Tarquin the proud was the first that tooke them away, and that forbid the assemblies of the people, and that had in himselfe a purpose also to haue suppressed the bodie of the Senat, by the death of the Senatours, not suffering any new to be chosen in the roomes of them that died But he was no sooner by his subiects driuen [ E] out, but that the popular estate was established, the number of the three hundred Senatours supplied, and the colledges and companies before abolished againe restored. But when the people by the helpe of their Tribunes began more insolently to rule, and that in the bodie of the Senat were almost six hundred of the nobilitie and chiefe men of the citie, who had almost drawne vnto themselues the soueraigntie, the colleges, and companies of the citisens, were by a decree of the Senate, for the most part suppressed and put downe: Howbeit shortly after Clodius the Tribune to be the more gracious with the people, and to maintaine them in iarre and discord with the nobilitie [Page 384] (which he had renounced, causing himselfe to be adopted by a base fellow, so to become [ F] Tribune) not onely restored all the Colleges and companies by the Senat before suppressed, but ordained and erected a great number moe: which Caesar being got to be Dictator, to maintaine his owne power and weaken the peoples, put downe; but were afterwards by Augustus hauing assured his estate, by an expresse edict againe restored. All which Nero the the tyrant againe suppressed. Whereby it appeareth, Tyrants alwaies to haue hated the corporations and communities of the people, and [Sidenote 986 - *] by all meanes endeuored to haue them vtterly extinguished: Insomuch that Dionysius the tyrant of Sicilie would not that euen neere kinsfolks should so much as visit one an other, but as they came late from supper from their friends, caused them to be robbed and spoiled. As in like manner did Nero, who oft times by night walking the streats, [ G] spoiled and slew such as he met, which returned late from supper with their friends; so much he feared the assemblies of his subiects, for the conspiracies they might so make against the tyrannie of him so wicked a prince. And yet for all that the iust Monarchie, [Sidenote 987 - *] hath not any more assured foundation or stay, than the Estates of the people, Communities, Corporations, and Colleges: For if need be for the king to leuie money, to raise forces, to maintaine the Estate against the enemie, it cannot be better done, than by the estates of the people, and of euery Prouince, Towne, and Commutie. Yea we see that they themselues which would haue these estates of the communities and societies of the people suppressed and abolished, haue in time of their necessitie no other refuge or stay to flie vnto, but euen to these estates and communities of [ H] the people: which being together vnited, strengthen themselues for the defence and protection, not of their Prince onely, but euen of themselues also, and of the whole estate and subiects in generall, especially the Prince himselfe there being in person present. For where can things for the curing of the diseases of the sicke Commonweale, or for the amendment of the people, or for the establishing of lawes, or for the reforming of the Estate, be better debated or handled, than before the prince in his Senat before the people? There they conferre of the affaires concerning the whole bodie of the Commonweale, and of the members thereof; there are heard and vnderstood the iust complaints & greeuances of the poore subiects, which neuer otherwise come vnto [ I] the princes eares; there are discouered and laid open the robberies and extortions committed in the princes name; whereof he knoweth nothing, there the requests of all degrees of men are heard. Besides that, it is almost a thing incredible to say, how much the subiects are eased, and how well they are also pleased, to see their king to sit as chiefe in the assemblie of the estates, and to heare him discoursing; how euery man desireth to be seene of him, and if it please him to heare their complaints, and to receiue their requests, albeit that they be often times denied the same; yet O how it pleaseth them to haue had accesse vnto their Prince, yea sometime they goe away better pleased with such a deniall, than if they had had that they requested, being by their prince altogether contemned. All which is better obserued and kept in Spayne, than in any place of [ K] the world, where the assemblies of the estates heretofore haue beene holden euery two or three yeares one. And in England also, for that the people graunt no payments, if the Estates be not assembled: as I remember was done, when as I passed ouer into England embassadour from Frauncis duke of Aniou. Our kings do not so often call together the assemblies of their estates, as doe the kings of England. But whereas there are accounted sixteene Prouinces in this kingdome, whereof six haue their particular assemblies among themselues, (namely Bretagne, Normandie, Bourgundie, Languedoc, Dauphine, and Prouence) some there were, who for feare their villanies and extortions should in those assemblies haue beene found out, laboured to the vttermost [Page 385] of their power to haue had the same assemblies and meetings of the Estates of the aforesaid [ A] prouinces, in any wise taken away and changed into elections. As also in the beginning of the raigne of Charles the eight, at such time as it was with one generall voice called vpon, that a generall assemblie of all the Prouinces might be had; there wanted not some who threatned it to be Treason to such as in the counsell should consent with the people for the calling of such an assembly: whose opinion Philip de Commines (a most worthy counsellour and a man of great experience) most earnestly withstood. But how necessarie the assemblies & meeting of the whole people for to consult [Sidenote 988 - *] of matters, are, is hereby perceiued; in that the people which may so call together such their counsels, with them all things go well: wheras others which may not so do, are oppressed with tributes & seruitude. For as the shot of many pieces of artillerie deliuered [ B] one after another, is not of so great force and power for the battering of a fort, as when the whole tyre of the great ordinance is together discharged, so the particular requests of men often times vanish but into smoake. But when whole Colleges or Communities, or the estates of a prouince, or of a people, or of a realme, shall make their requests vnto their king; the voice is so loude, and the requests so effectuall, as that it is hard for him to refuse it. Howbeit that there is a thousand other commodities & vses of the generall assemblies of the Estates in euery prouince and countrie, for the common good therof. As if question be for the leuying of forces, or of money to withstand the enemie, or for the building of fortresses, for the mending of high waies, repairing of bridges, or for the scouring of the countrie of theeues, or withstanding of the great; [ C] all these things which can in no wise be done by particular men, are best of all performed by them all in their generall assemblies. As to passe ouer the rest, all these things haue beene better done in the prouince of Languedoc by their assembled Estates, than in any other prouince of this Realme. They within a few yeares erected a Schole, and appointed twelue hundred pounds yearely pension for the instruction of all the youth of the countrie. In the Towne of Nismes, beside the other particular Colleges, they built the fairest fortresses of this realme; and caused Buzac to be executed, the most notable [Sidenote 989 - *] robber that euer was in our remembrance, of whom neither judge, nor magistrate, no nor yet the parliament of Thoulouse it selfe, could take punishment, he being growne so strong as to doe his robberies in forme of iustice, and yet no man so [ D] hardie as to dare to lay hands vpon him: of whose execution I was a beholder, & saw the people wonderfully reioycing to see themselues deliuered of a theefe and robber, of all others the greatest: albeit that I remember ten thousand crownes to haue bene before laide out about the same matter. And to keepe that prouince the safer from theeues & robbers, they appointed farre greater rewards for the Prouost Marshal than did any other prouince, as twelue hundred pound for his maintenance, and xxv pound for euery processe he should bring of the execution by him done. I haue bene willing in passing by, thus the rather to note these particularities, to show the great good which ariseth vnto Cōmonweals by the assemblies of their Estats: which are yet better ordered in the Commonweals of the Swissers, & the Germaine empire, than in other the Commonweals [ E] of Europe. For the Swissers beside the assemblies of Estate, in euery Towne and Canton, haue their generall assemblies of their Estates also; and the ten Circles or Circuits of the Empire haue their assemblies of their Estates separate, vnto whom the particular estates of the Imperiall Townes & Countries referre themselues: and so likewise the estates of the circuits refer themselues and their decrees vnto the assemblie of the estates [Sidenote 990 - *] of the Empire, which without this pollicie had long ago bene ruinated & fallen.

We said that the meane and measure which is in all things commendable, ought also to be kept in all iust Monarchies and Aristrocraties, in regard of the number of [Page 386] Corporations and Colleges to be had in their kingdomes and Commonweales: For [ F] as quite to take away all Corporations and Communities were to weaken or ruinate the estate, and to establish a barbarous tyrannie, or tirannicall gouernment; so likewise to permit and suffer all assemblies, and all fraternities, is not also without danger, as not easely to be ruled by the princes power, or nobilities commaund. In them also oft times are couered conspiracies, and secret Monopolies, whereof we haue many examples, which hath bene the cause often times by expresse Edict in this Realme to take away these fraternities; which for all that could neuer yet be put into execution. Howbeit much better it were to take away the abuse, than the thing it selfe that is abused, and to [Sidenote 991 - *] pluck vp the weeds alone, rather then both the good and bad together. And to auoid Monopolies amongst artificers and trades men, it is good to diuide them into diuers [ G] streets and quarters of the citie, and not to seat them in one street or quarter together, (as they do in Affricke, and also in many townes and cities of Europe) except th•…] place for the hauing of water, or some other such common respect so require: For besides the incōmoditie that it is in great cities not to haue artificers which are ordinarily required in euery quarter thereof, there must needs either be secret monopolies amongst them so to sell their marchandize and wa•…]es the dearer, or else iealousies and quarels, if one of them shall sell better cheap than another, before his face that hath refused to take the money. I said artificers ordinarily required, for that it is not fit in their dwellings to mingle men giuen vnto their studie and quiet, together with Fishmongers, or Armorers, or Curriors with Schollers: for as for such as are lesse requisite as hammermen, [ H] they may well enough be raunged in the same street or quarter of a citie together, and that better than to trouble the quiet of others. But as there is nothing better for the maintenance of the strength and vnitie of the subiects, than Corporations & Communities: so is there nothing which can so much weaken & keepe vnderfoot a Commonweale, as by the vtter taking away of Communities, Corporations, and Colleges, or Societies: Which the Romans well knowing, wisely put in practise, who after they had vanquished the kings of Macedonia, and conquered the countrie, vtterly forbid all assemblies and meetings together of the people there to consult of matters. And so afterwards also the Achaeans being ouer come, the consul Mummius as saith Liuie: Concilia omnia singularū Achaiae nationum, & Phocensium, & Baeotorum, aut in alia parte Graeciae [ I]deleuit, Suppressed all the councels of all the particular nations of Achaia, and of the Phocensians, and of the Baeotians, or in what soeuer other part of Graecia else: But after that they were once become good and obedient subiects vnto the Romans: Antiqu•…] concilia genti cuique restituta, The auntient councels were vnto euery nation againe restored, as saith Strabo.