Jean Bodin, The Six Bookes of a Commonwealth (1577, 1606)

Jean Bodin (1529-1596)  

 

Source

The Six Bookes of a Common-weale. VVritten by I. Bodin a famous Lawyer, and a man of great Experience in matters of State. Out of the French and Latine copies, done into English, by Richard Knolles (London: G. Bishop, 1606).

See the facs. PDF as swell as the French original of 1577 [facs. PDF].

Editor's Note: This HTML has been edited from that done by the University of Michigan. No attempt has been made to render the over 2,000 marginal notes into HTML. They are numbered and the page numbers have been provided so the reader can consult the facs, PDGF if they wish.

 


 

A SVMMARIE TABLE OF ALL THE CHAPTERS CONTAINED IN THE SIX BOOKES OF I. BODIN.

FINIS.

 

 


 

To My Most Especiall good Friend ... [The rest of this section was not coded]

To the Reader ... [The rest of this section was not coded]

[Page  1]

THE FIRST BOOKE OF A COMMONWEALE.

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 St. 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 - *] Mr. 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]

 


 

[Page  183 ]

THE SECOND BOOKE OF [ A] [ B] OR CONCERNING A COMMONWEALE.

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 〉].

An euill thing it is to be ruled by many:
one prince, and one king, where there is any.

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,

Nulla fides regni socijs, omnis que potestas,
Impatiens consortis erit.
No sincere loue is to be found in partners of the soueraigne state,
And fellowship in power great, is alwaies mixt with mortall hate.

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