The six books of a common-weale

WE have before said, That a Magistrat is an officer which hath publike power to commaund, or to forbid: Now he hath power so to command or forbid, which hath publike power to enforce or constraine them which will not obey that which he enioyneth them, or which do contrarie to his prohibition, and may also ease the prohibitions by himselfe made. For albeit that the law saith, That the force of the lawes consisteth in commaunding, and forbidding; in suffering, and punishing: yet is this power more proper unto the Magistrat, then unto the law, which is of it selfe dombe: wheras the Magistrat is a liuing and[*](The Magistrat a liuing law.) breathing law, which putteth all this in execution, seeing that the law in it selfe carrieth or containeth nothing but commaunds or prohibitions, which are but mockeries and to no purpose, if the Magistrat and the punishment were not attendant at the foot of the law, readie for him which transgresseth the same. Howbeit that to speake properly, the law containeth nothing but the verie prohibition, and the threats for not obeying the same; considering that he which commaundeth (inclusiuely) forbiddeth to transgresse his commaund: and as for sufferance, that is no law: for sufferance taketh away prohibition, and carrieth with it neither penaltie nor threat, without which the law cannot be, considering that the law is no other thing, then the commandement of the soueraigne, as we have before declared: and whatsoeuer threat or penaltie is propounded by the law, yet the punishment neuerthelesse neuer ensueth the breach thereof, vntill

it be pronounced by the mouth of the Magistrat. Whereby it euidently appeareth [*](The force of the law to consist in the Magistrate, or him that hath the power to commaund and constraine.) all the force of the law to consist in them which have the commaund, whether it bee prince, people, or magistrat, unto whome so commaunding, except the subiects yeeld their obedience, they have power to enforce or punish them, which Demosthenes calleth the verie sinewes of the Commonweale.

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

We have before said, that the first constraint of all them which had power to commaund, [*](The first constraining power that the magistrat hath.) is the ceising or attaching both of mens goods and persons; which the auntients called prehensio, or as we say an apprehending or laying on of hands: for it were to no purpose, for the Magistrat to call a man before him, to iudge him, or to fine him; and wh--- all is done not to have power to seise upon their goods nor person of him that shall disobey him. Now we have before said, that some there be, which have such power to apprehend and attache men; which yet have no authoritie or power to call a man before them, neither to examine a matter, neither to rescue a man, neither to enlarge them whome they have committed; as we have showed of the Tribunes of the people, of the eleuen Magistrats in Athens, of the Capitall Triumuiri in Rome, of the Auogadours in Venice, of the kings Attourneies, and the deputies of them which have power of the common treasure in other realmes and Commonweales: and of the Commissioners of the Chastelet of Paris, who may all imprison men, and seise uppon them, and yet for all that cannot releeue or enlarge them, which belongeth onely unto the publike Magistrats, which have power to condemne and acquite, and to iudge, some of them of mens goods onely, other some of mens goods and honour also, aud other some of mens goods and honour, with power to inflict corporall punishment also, but[*](The diuers power of Magistrats.) not death: and some hauing power to put to death also, and that some of them such power, as from whome men may appeale; and some others, such as from whom men may not appeale. But the last and highest degree, is of such as have the absolute power

of life and death; that is to say, power to condemne to death, and againe to giue life [*](The Lighest marque of soueraign maiestie is to have power of life aud death.) unto him which hath deserued to die; which is the highest marke of soueraigntie, aboue all lawes, and aboue the power and authoritie of all Magistrats, as proper onely unto soueraigntie, as we haue before declared. Whereby it appeareth, that there are two kinds of commaunding by publike power: the one in soueraigntie, which is absolute, infinit, and aboue the lawes, the Magistrats, and all other priuat persons: the other is a lawfull commaund, as subiect unto the lawes and soueraigntie, and is proper vnto[*](Two sorts of commmaunding by publique power: the one in soueraigntie, and the other by lawe) the Magistrats, and them which have extraordinarie power to commaund, vntill it be againe reuoked, or the time of their commission expired. The soueraigne prince next under God knoweth none greater than himselfe; the Magistrat under God holdeth his power of his soueraigne prince, and remaineth alwaies subiect unto him and his lawes: the particular man next after God (whome wee must alwayes put in the first place) acknowledgeth the soueraigne prince, his lawes, and his Magistrats, euerie one of them in his place. under the name of Magistrats I vnderstand also them which have iurisdiction annexed unto their fees, considering that they hold them also as well of the soueraigne prince, as do the Magistrats, in such sort, as that it seemeth that there are none in the Commonweale but the soueraigne princes, which may properly vse these words, Impero & iubeo, I charge and commaund: which in auntient time signified, I will and commaund, seeing that the will of euerie Magistrat, and of all others also, which have power to command, is bound and dependeth wholly of the soueraigne, which may alter, chaunge, and reuoke it at his pleasure. For which cause there is neither any one Magistrat, nor yet all together, which can put in their commissions, Such is our pleasure: or this clause, upon paine of death, for that none but a soueraigne prince or state, can vse the same in their edicts or lawes.

And hereof riseth a notable question, which is not yet well decided, viz. Whether[*](Whether the power of the sword be proper onely unto the soueraign prince or common also unto the magistrat to whom the prince hath communicated the same?) the power of the sword (which the law calleth Merum imperium, or meere power) be proper unto the soueraigne prince, and inseparable from the soueraigntie; and that the Magistrats have not this merum imperium (or meere power) but onely the execution thereof: or that such power is also common unto the Magistrat, to whome the prince hath communicated the same. Which question was disputed betwixt Lothaire and Azon, two of the greatest lawyers of their time: and the emperour Henrie the seuenth chosen thereof judge, at such time as he was at Bononia, upon the wager of an horse, which he should pay, which was by the iudgement of the emperour uppon the aforesaid question condemned. Wherein Lothaire indeed carried away the honour, howbeit that the greater part, & almost all the rest of the famous lawyers then held the opinion of Azon; saying, That Lothaire equum tulerat, sed Azo aequum (Lothaire had carried away the horse, but Azon the right) neuerthelesse many s---nce have holden the opinion of Lothaire: so that the question remaineth yet (as we said) vndecided, which for all that deserueth to be well vnderstood, for the consequence it draweth after it, for the better understanding of the force and nature of commaunding, and the rights of soueraign maiestie. But the difficultie thereof is growne, for that Lothaire and Azon neither of them well knew the estate of the Romans, whose lawes and ordinances they expounded; neither tooke regard unto the chaunge in that estate made by the comming in of the emperours. Certaine it is, that at the first, after that the kings were driuen out of the citie, none of the Roman Magistrats had power of the sword over the citisens: yea that which much lesse is, they had not so much power, as to condemne any citisen to be[*](No magistrate in Rome after the kings once driuen out▪ had power o the sword.) whipped or beaten, after the law Portia▪ published at the request of Cato Tribune of the people, 454 yeares after the foundation of the citie. By which law the people tooke this power, not from the Magistrats onely, but dispoyled euen it selfe thereof also so

much as it could, giuing the condemned leaue for what fault or offence soeuer it were, to void the countrey, and to go into exile: and that which more is, there was not any one magistrat, which had power to judge a citisen, if once question were but of his honour, or good name, or of any publike crime by him committed; for then the hearing thereof was reserued unto the comminaltie, or common people: but if it concerned the losse of life, or of the freedome of a citisen, none might then iudge thereof, but the whole estate of the people in their greatest assemblies, as was ordained by those lawes, which they called Sacred. Which although that they were not alwaies so precisely kept, but that they were sometime broken; yet Cicero for transgressing the same escaped not, but being Consull, and hauing caused certaine of the conspirators with Cateline to be executed, was therefore himselfe afterwards banished, and his goods all confiscated. Long after the lawes Valeria, Sempronia, and Portia, which had now remoued the Consuls hatchets and rods from the heads and backs of the citisens of Rome: Cornelius Sylla the dictator published his lawes concerning publike iudgements, wherby were appointed a certaine number of Praetors, as ordinarie officers, which were to iudge of all such causes as whereof the comminaltie before iudged, or at leastwise appointed commissioners for to iudge of such crimes, as of murders, of robbing of the common treasure, of treason, or of extortion; but yet so, as that these Pretors had their lesson by writing, beyond which they might not passe a iot. For they by lot drew a certaine number of particular judges out of them, which by the lawes might in such causes be iudiciarie judges, who before all the people hauing heard the accusations and defenses both of the one part and the other, had brought unto euerie one of them the judges, three little tables of diuers colours, upon one of which was written an A. uppon another a C. and upon the third N. L. the A. signifying acquited, C. condemned, and N. L. as much as to say, Non Liquet, or it is not manifest, or the matter is farther to bee inquired of (which they called Ampliare, and Amplius quaerere.) With these tables was also brought unto the judges a vessell whereinto euerie one of them did cast one of the three aforesaid tables, without any word speaking: Which done they counted the tables so cast in, and if there were moe marked with C. cast in, then the Pretor in his purple robe mounting into an high seat, in open place, and in the sight of all the people pronounced these words, Reus parum cauisse videtur, which is to say, It seemeth that the partie accused, hath not kept himselfe from doing amisse; or else Non iure fecisse videtur, He seemeth not to have done right; or Videtur prouinciam spoliasse, He seemeth to have spoyled the prouince. This was the Roman grauitie in iudgement mixt with[*](The great modestie of the Romaines in their iudgments.) modestie, least they should seeme therein to lie, or rashly to affirme any thing which was not altogether most manifestly tried. Of which sort are these words also, Si quid mei iudicij est, If my iudgement be any thing. So presently after the Pretor had pronounced the aforesaid words, the penaltie of the law was put in execution, the partie condemned voided the countrie and went into exile, and the receiuers seised upon his goods. If such penaltie were for the offence of the law appointed, unto which law except the partie so condemned yeelded himselfe obedient, he was forthwith by the Triumuirie of causes capitall, apprehended and cast in prison. VVherefore, might some man say, that these capitall Triumuiri had power over the citisens: But wee said before them to have had power onely over straungers, and that truely: and so men condemned to exile, are but to be accounted straungers, for that they have lost the libertie of the citie. To like purpose is that which Martian the lawyer writeth, concerning the decree of the Senat, at the motion of Turpilian, Si iudex pronunciauit haec verba, calumniatus es, condemnauit eum, If the judge (saith he) hath pronounced these words, Thou hast slaundered, he hath therein condemned him: and albeit that he say no more concerning the punishment of the offendor, yet shall the penaltie of the law neuerthelesse be executed upon him. Not to speake in the meane time of the inscriptions of their libels, with the examination of witnesses and writings. This was the manner of the publike iudgements used by the auntient Romans: VVherby it is easily to be vnderstood, that the Pretors or judges were but onely the simple executioners of the law, without power to adde or diminish one iot thereof, hauing not onely no power of the sword, but not so much as to whip, or yet lightly to punish a citisen.

Now if question were for the fine of any publike crime, which was not prouided for by the law, the lesser assembly of the common people or comminaltie, was called together therefore: But if question were of the life, good name, or the whole estate of any citisen, the people then in their greatest and most solemne assemblies gaue iudgement thereof: and that in both cases extraordinarily, as commonly they vse to doe which have the soueraigntie in all Commonweals: neither were voyces in these cases giuen by tables or markes: for that the law it selfe, and not the people, was made iudge of the punishment to be inflicted. The sentence of which law was almost this, or such like, Si M. Posthumius ante Calendas Maias non prodisset, neque excusatus esset, videri eum in exitio esse: ipsi aqua & igniplacere interdici, If M. Posthumius made not his appearance before the first of May, neither made his excuse, it should seeme good that hee should be banished, and decreed, That he should be forbid the vse of fire and water: all which things are more plentifully and at large set downe by Liuie Asconius, and Cicero. But if the state of the Commonweale being chaunged, and the power of iudgement and of giuing of voices, being taken from the people, yet for a certaine time continued this manner and forme of iudiciall proceedings, euen after that the forme of the Commonweale was chaunged from a Popular estate into a Monarchie, as a man may see in the time of Papinian the great lawyer, who gaue occasion unto Lothaire & Azon to make question of the matter, in these words by him set downe as a maxime, Whatsoeuer it is that is giuen unto Magistrats by decree of the Senat, by speciall law, or by the constitution of princes, that is not in their power to commit unto other persons: and therefore (saith he) the Magistrats do not well in committing that their charge unto others, if it bee not in their absence: which is not so (saith he) in them that have power, without the limitation of speciall laws, but onely in vertue of their office, which they may commit unto others, albeit that they themselves be present. And thus much for that which Papinian doth say, vsing the words, Exercitionem publici iudicij: as if he should say, That they which have the soueraigne maiestie have receiued unto themselves the power of the sword, and by speciall law giuen, but the execution thereof unto the Magistrats. And this is the opinion of Lothaire. By which words yet Azon vnderstandeth the right and power of the sword it selfe to have bene translated and giuen unto the Magistrats. Now there is no doubt, but that the opinion of Lothaire was true, if hee had spoken but of the auntient Pretors of Rome, and so kept himselfe within the tearmes and compasse of Papinian his rule: but in that he was deceiued, that he supposed that maxime or rule of Papinians, to extend to all Magistrats which have bene since or yet are in all Commonweals, who yet for the most part have the hearing of murders, robberies, riots, and other such like offences, and so the power of the sword giuen unto them euen by vertue of their offices. For the emperours and law giuers hauing in the processe of time seene the inconuenience and iniustice that arise by condemning all murtherers, unto one and the selfe[*](Great in commonweals to have now oftentimes the power of the sword committed vnto them euen by vertue of the offices.) same punishment, or els quite to absolue them: and so the like in other publike crimes also, thought it much better to ordaine and appoint certaine Magistrats, who according to their conscience and deuotion, might encrease or diminish the punishment, as they saw equitie and reason to require. And first of all Augustus unto the three little

tables noted with A. C. and N. L. added a fourth, whereby it was lawfull for the judges to pardon them, who by other mens fraud or deceit had offended the law, as wee read in Suetonius. And by little and little the auntient order and manner in the iudicial or penall laws set downe, was chaunged; the penaltie by every one of them appointed yet neuerthelesse still remaining, not by any to be encreased or diminished, but by them which we have before said, what diuersitie of causes soeuer happened. And oftentimes the emperours committed it unto the Senat, or some other the great and most worthy magistrats extraordinarily to iudge of great personages, or of some notable crimes, and to punish them as they saw cause, or thought best, without binding them unto the ordinarie penall lawes. But in the time of Papinian, Seuerus the emperour gaue power unto the great Prouost of Rome, extraordinarily to iudge of all offences and crimes, whatsoeuer they were, committed within the citie or within fortie leagues ---ound about it. Yea the other Pretors of the citie, who but by the ordinarie course of law were to iudge of civill causes and priuat crimes, dealt also with certaine publike iudgements referred unto them, not by vertue of their office, but by the law it selfe: whereof Papinian sheweth example. And sometime the Pretor preuenting the great Prouost, so by way of preuention extraordinarily iudged of extraordinarie crimes, together with the great Prouost. As for the presidents and gouernours of prouinces, in that they had power and authoritie of all the Magistrats of the citie, and extraordinarily iudged of all offences, and according to their owne discretion appointed both penall and capitall punishment unto all men, except the citisens of Rome; no man can reasonably doubt, but that they had the power of the sword, and were therefore called Potestates: for that before the creating of the great Prouost, there was none but the gouernours of the prouinces which had the power of the sword; whom they yet call euen to this present in Italie, by the name of Potestats. Now it is plaine by the maximes of the law, that the Magistrats which had power extraordinarily to iudge, might condemne the guiltie parties to such punishments as they would, yet so, as that they exceeded not measure: For so Vlpian the lawyer writeth, him to exceed measure, who for a small or light offence inflicteth capitall punishment; or for a cruell murther imposeth[*](Al magistrats hauing thoritie to iudge of capital crimes, to have the power of the sword.) a fine. VVhereof wee may then conclude, that the great Prouost, and the gouernours of prouinces, and generally all such Magistrats as have extraordinarie authority to iudge of capitall crimes (whether it bee by commission, or by vertue of their office) have the power of the sword, that is to say, to iudge, to condemne, or acquit; and not the bare execution of the law onely, whereunto they are not in this respect bound as are the other Magistrats, unto whome the law hath prescribed what and how they are to iudge, leauing unto them the naked execution of the law, without the power of the sword.

And thus much briefly, concerning the question betwixt Lothaire and Azon: for the fuller and more plentifull declaration whereof, it is needfull for vs yet to search farther: where it is first to be enquired, Whether the Magistrats office be proper vnto the Commonweale, or unto the prince, or vnto the magistrat himself that beareth office, or else be common unto the Magistrat himselfe together with the Commonweale? Then whether the power graunted vnto the Magistrats be proper unto the Magistrats, in that they are magistrats, or els be proper unto the prince, the execution therof only belonging unto the magistrats; or else be common unto them both together? Now concerning the first question, there is no doubt, but that all estates, magistrats, & offices, do in proprietie belong unto the Commonweale (excepting in a lordly Monarchie) the[*](To whom the proprietie of estats, magistracie, and offices doe properly belong.) bestowing of them, resting with them whith hane the soueraigntie (as we have before said) and cannot by inheritance be appropriat unto any particular persons, but by the

graunt of the soueraigne; and long and secret consent of the estates, confirmed by a long lawfull and iust possession. As in this kingdome, the Dukes, Marquesses, Counties, and such others as have from the prince the government of the castles in sundrie[*](Dukedomes, earledomes, marquisats, and such like in auntient time but simple commissions, now for most part are become hereditarie.) prouinces, and so the commaund of them, had the same in auntient time but by commission onely, to be againe reuoked at the pleasure of the soueraigne prince, but were afterward by little and little graunted unto particular men for tearme of their lives, and after that unto their heires males, and in processe of time unto the females also: insomuch as that in fine, through the negligence of princes, soueraigne commaunds, iurisdictions, and powers, may lawfully be set to sale, as well as may the lands themselves, by way of lawfull buing and selling, almost in all the empires and kingdoms of the VVest, and so are accounted of▪ as other hereditarie goods, which may lawfully bee bought and sold. VVherefore this iurisdiction or authoritie which for that it seemeth to bee annexed unto the territorie or land (and yet in truth is not) and is thereof called Praediatorie, is proper vnto them which are possessed of such lands, whether it bee by inheritance, or by other lawfull right, and that as unto right and lawfull owners thereof, in giuing fealtie and homage unto the soueraigne prince, or state, from whome all great commaunds and iurisdictions flow, and in sauing also the soueraigne rights of the kingdome, and the right of the last appeale.

Other publique officers there bee also which have neither iurisdiction nor commaund,[*](Some publique offices to be with out any iurisdiction or commaund at al.) but onely a certeine publique and seruile charge: as the foure offices of the Waxe-chafers in this realme, by right of inheritance belonging unto certein men, by the graunt of king Lewes. Diuers also have attempted by processe of time to prescribe the offices of the Constables both of Normandie and Champagne; as also the offices of the great Chamberlaines, by right of inheritance to belong unto them: howbeit that in that their sute they have beene often times by diuers decrees reiected, and amongst others by one solemne one, in the records of the court made in the yeare 1272. True it is that the word (Constable) was in auntient time no other thing than the captaine of a companie, which they called a Constableship, as we oftentimes read in Frosard. And in the records of the Chamber of accounts I remember I have red, three hundred Constables to haue beene at once in the armie. We read also that by the decree of the yeare 1274. Simon Countie of Montfort was excluded from the successiue right which he pretended to the honor of the Mareshalship D'la foy, which the lords of Mirepoix challenge unto themselves in their styles. And forasmuch as certaine Mareshals of Fraunce would have continued their estates in their posteritie and successors,[*](The states of the marshalships of Fraunce part of the demaine of the crowne.) they were embarred so to doe by a decree made in Parliament the xxij of Ianuarie, in the yeare 1361, as is to be found in the records of the court: wherein it is expresly set downe, That the estates of the Marshalships of Fraunce should bee as part of the demaine of the Crowne, and the execution thereof to remaine unto the Marshals so long as they lived. And albeit that the power of the Mareshals was not of force but in time of warre, (as was iudged by a decree of the xv of August in the yeare 1459,) yet neuerthelesse the militarie discipline carried with it the power of the sword, albeit that it were not giuen unto it by expresse Edict or law; as in nothing communicating with the decrees and lawes of civill pollicie, or of other the civill magistrats; which seemeth from the auntient manners and customes of the Romans to have beene unto vs translated. For albeit that the power of the sword, yea and of punishing with rods also was by the law Portia taken from all the Roman magistrats (so that it was not lawfull for any of them, or for all of them in the citie to beate or scourge a Roman citisen, as we have before noted,) yet neuerthelesse the Consull had still full power of life and death over the souldiours and men of warre, (without which their militarie discipline

could neuer have bene kept and preserued) from whom there was no mean to appeal [*](Marshal magistrats and Generals must of necessitie have the power of the sword giuen them.) as saith Polybius, and for that cause saith he, the Consuls had royall power: howbeit he marked not, that the Praetors, Dictators, Quaestors, and other Generals of their armies, had euen the selfe same power. In like manner the Constable of Fraunce by his letters of commission hath not the power of the sword, or of life and death graunted unto him: but hauing the managing of the warres, and conducting of the armyes, as in his absence the Mareshals of Fraunce haue: the power of the sword is also left unto them, as without which militarie discipline cannot possibly be maintained: which martiall power the simple captaines abused also, putting their souldiours to death, with out any forme or fashion of iust triall. unto that Henry the second the French king, at the request of Francis Colineus the Dandelot, then Colonell of the footmen, by expresse edict forbid them any more so to do.

If then the martiall Magistrats and Generals have in every Commonweal the power of the sword without any limitation or restriction unto the forme of proceeding or of the punishment to be by them inflicted, according to the varietie of crimes and offences, all being as it were left unto their owne discretion and iudgement, a man then cannot truely say them to be but the simple executioners of the law, considering that they have no law whereunto they are in this regard subiect: and so consequently we may conclude, that the power of the sword is transferred into their persons, that power now not remayning in the prince alone. Whereby it also followeth, that they being present, may commit vnto others, so much of that power and authoritie which they have by vertue of their place and office, as they please, and retaine thereof unto themselves what shall seeme unto them good, which they could in no wise doe, if by speciall law they were constrained and bound, to heare & determine of matters themselves, and from word to word to follow the solemnitie and paines set downe in the lawes. And this is it for which the law saith, That the Praetor of the citie, being himselfe present, might commit his authoritie and power to whom soeuer hee saw good, which the Praetors for publike causes could not do: for the Praetor of the citie had the hearing and disciding of all civill and criminall causes, (except such as they called publique, as belonging to the common state) which fell out betwixt the citisens of Rome: as had also the Praetor, established for the hearing of causes betwixt straungers and citisens, who according to their discretion condemned, or acquited such as were conuented before them, moderating, correcting, or supplying the rigour or lenitie of the law as they saw cause, which their power was limited by the will and discretion of the Pretor so iudging, and not by the necessitie of the law. And yet when as by the law or decree of the Senat, any particular cause otherwise out of their iurisdiction was committed unto them, albeit that it were referred unto their conscience to iudge thereof, yet neuerthelesse could they not in this case commit the same unto others, as is to be seene by many examples noted by the lawyers. Which point so manifested leadeth vs unto the disciding of an other question by vs before propounded: viz. That the power and authoritie graunted vnto Magistrats by vertue of their office, is proper vnto[*](The power and authoritie graunted unto magistrats by vertue of their office, proper unto the office and not to the person of the magistrats.) the office, albeit that the honour and dignitie of the office be not proper vnto the person: for Papinian saying, That Commissioners and Lieutenants have nothing proper unto themselves, but that they vse the power and authoritie of them, which have commissionate and deputed them, sufficiently showeth, that the power is proper unto them which so commissionate and deputed them, whether they be Soueraigne Princes, or Magistrats hauing power so to doe. And so in like case the law sayth, That the Gouernour of a countrey or prouince, hath within his government all power and authoritie next unto his Prince: wherefore it is not then onely in the prince. But the

difficultie of this question dependeth principally on this distinction, (whereunto the interpretours of the law have had no regard,) as namely, that it is great difference to say that the power or authoritie is proper unto the Magistrat in the qualitie of a magistrat, or in the qualitie of a particular person: for it followeth not, that if the authoritie or iurisdiction be proper unto the Praetorship, that therefore the Praetorship should be proper unto the person: but to the contrarie the law saith, That he hath it in trust, and that he is but the keeper thereof. So we call the Prouost of Paris the keeper of the Prouostship of that citie; which is to speake properly, and to show, that the estates and offices rest and remaine in the possession and propertie of the Commonweale, as[*](The proprietie of offices to belong unto the Commonweale: and to be with the magistrate but as things left with them in trust.) a thing put in trust unto the magistrat. And for that cause the Bailiffes of cities and townes are so called of the word (Bail,) that is to say Gardiens or keepers. So also the Florentines called the Ten men deputed to the keeping of their state and soueraigntie by the name of Bailifes. And that is it for which the Court of parliament in the decree concerning the Mareschals of Fraunce (before noted) saith, That their estate was of the proper demaine of the Crowne, as thereunto properly appertaining, and the exercise thereof belonging unto them so long as they lived. And so we may discide the[*](When the power and authoritie lieth in the magistrate, and when not.) generall question, and discusse the controuersie betwixt Lothaire, and Azon, who spake but of the power of the sword onely: and conclude, that as oft and whensoeuer the Magistrats and Commissioners are bound by the lawes and decrees, to vse the power and authoritie which is giuen them, in such prescript forme and manner as is therein set downe, whether it be in the forme of proceeding, or concerning the punishment; without power for the magistrats to adde or diminish any thing thereunto, or from: in this case they are but meere executors and ministers of the lawes and of the princes, from whom they have their authoritie: yet not hauing any power in this point or respect in themselves, whether it be concerning civill pollicie, or the administration of justice, or the mannaging of warre, or treaties to be had betwixt princes, or the charges of Embassadours: but in that which is left or committed to the magistrates integritie and discretion, in that case the power and authoritie lyeth in themselves.

Now as in every Commonweale there are two principall points which the magistrats[*](Two things to be alwaies in euerie Commonweale by the magistrate principally respected.) ought alwaies to have before their eyes: that is to say, the Law, and Equitie: so say we, that there is also the execution of the law, and the dutie of the magistrat, which the auntients called Legis actionem, and Iudicis officium: or as we say, the action or execution of the law, and duetie of the judge; which is to commaund, to decree, or to put in execution. And as the word Iudicium, or judgement, is properly vnderstood of that which is ordained by the magistrat following the strict tearmes and tenour of the[*](The difference betwixt a iudgment & a decree, and so likewise of magistrats, which have power and authoritie in themselves, and others which have not.) law: so the word Decretum, is likewise properly vnderstood of that which the magistrat ordaineth or decreeth, following equitie without the prescript law; the law it selfe being still referred to the strict execution thereof, and equitie vnto the duetie of the magistrat. And for this cause all the decrees of the Prince are properly called Decreta, and not Iudicia, Decrees I say not judgements: for why the soueraigne prince is not subiect unto the law; wherein they deceiue themselves, which take a decree to be any thing else then the resolute sentence of the Senat in their consultations: or the decree of a soueraigne prince, or the voluntarie ordinance of a magistrat, without being bound to law or custome in the making thereof. Now such proportion as there is of the law unto the execution thereof, the like there is of equitie unto the office of the judge. And so likewise of magistrats, who in case wherein they are not subiect to the law, resemble arbitrators: but being strictly and wholly bound unto the law, are but as judges appointed to vnderstand of the fact onely, without any power of themselves to determine of the merit or iustice of the cause, otherwise than the verie strictnesse of the law

appointeth. Now of these the one is is seruile, the other is noble; the one is bound unto the law, the other is not so; the one vnderstandeth but of the fact, the other of the right; the one is proper unto the magistrat, the other is reserued unto the law; the one is precisely written in the law, the other is without the lawes: the one is in the magistrats power, and the other quite without the same. And the better to note and perceiue this difference, the law saith, That it is not lawfull for a man to appeale from the punishment set downe by the law, being pronounced by the magistrat, but onely from[*](No appealing from the lawe: and why?) that the judge hath declared and denounced the partie accused to be guiltie: whereas it is right lawfull for a man to appeale from the punishment which the judge by his owne discretion appointeth: For he which appealeth from the law, appealeth from the prince, from whome no appeale is to be made. And thus much concerning the distinction of the power of magistrats, whereby not onely the question of Lothaire and Azon is decided, but many others also concerning the charge and duetie of magistrats, wherewith diuers have sore entangled themselves, some mistaking the practise, and some the theorique, but most part, for not hauing vnderstood the Roman estate, albeit that they were well exercised and seene in all the parts of their lawes, and yet neuerthelesse in the state of magistrats, concerning their power and authoritie they found themselves greatly troubled. For Moulin himselfe (the honour of lawyers) not vsing the distinctions by vs before set downe, hath without reason followed the opinion of Alciat and Lothaire: Whereunto he addeth the Pretors of cities, whome wee call Bailifes, and Seneshals, by the lawes of this realme, to have had the power taken from them for the appointing of their deputies: for that they are but as simple vsagers or occupiers, and that he which hath a thing but onely to vse and occupie, cannot make any other vsager or occupier but himselfe; which is a reason without apparance, as we have before shewed. VVhereunto ioyne also, that it is not past an hundred or six score yeares at the most, since that Charles the seuenth, and the eight, were the first which made an office of the Lieutenants, or deputies of Bailifes and Seneschals. For if Moulin his opinion were grounded upon reason, why should Papinian expresly say, That magistrats may depute and commit in their presence so much and so long, and with such limitation as they themselves please, of such things as they have by vertue of their office, and which are proper to their estate? Now their magistrats estates and offices in auntient time were much lesse proper, and lesse appropriat unto the persons, than they be at this present. For with vs they are perpetuall, and in Rome they continued but for one yeare; and therefore might with much better reason than they appoint their lieutenants or deputies. Besides that, the lawyers themselves have made and written diuers expresse bookes concerning lieutenants and deputies, which were all to no purpose, if the comparison of him, which hath but the vse onely unto the magistrat, were to be admitted and receiued. And as for others, the auntient doctors and interpretors of the law; they have in such sort entangled themselves, as that it euidently appeareth them to have had no insight into the estate or government of the Roman Commonweale: without which it is impossible to determine any thing concerning these questions. For whereas the Romans had properly separated the office of the Proconsuls Lieutenant, whome they called Legatum, from the office of the Proconsull himselfe: and so of the deputie tearmed a particular Commissioner, whome they called Iudicem datum, from the Commissioner himselfe, and of him unto whome power was giuen by the magistrat to commaund, whome they called Eum cui mandata inrisdictio est, the doctors haue confounded all together under the name of Delegats, which were a thing too long, and too superfluous to refute, hauing proposed unto ourselues no other end, but to entreat of that which concerneth the estate and duetie of magistrats in generall.

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

Now I have before said, that there was a new officer erected in Rome, who was the[*](The power of the Prouost or Praetor in the citie of Rome.) Prouost or Pretor of the citie, with power giuen him, to correct, supply, and amend, the lawes and customes, in that which concerned his iurisdiction, so farre as hee saw good in priuat iudgements: and euerie yeare the new chosen Pretor in the Tribunall seat appointed for the making of orations, after he had thanked the people for the honour he had of them receiued, gaue them there to vnderstand of his edicts, and in what sort his purpose was to administer the law. VVhich his edicts he caused afterwards to bee painted, and set up in some publike place: which for al that were not lawes, neither had the force of lawes, but were only edicts (that is to say, the magistrats commands) wherunto neither the people, nor the Senat, nor the Consuls, nor the other Pretors, nor the Tribunes, not yet the successors in the selfe same office, were not in any wise bound, but onely particular men, and they also but in that which was within the Pretors power and authoritie, as concerning their priuat suits, and businesse betwixt man and man. And therefore Cicero taunting Verres, intemperatly abusing the power and authoritie of his Pretorship, saith, Quiplurimum edicto tribuunt legem annu amappellant, tu plus edicto complecteris quàm lege, They which attribute most unto an edict, call it but an annuall law, but thou comprehendest more in an edict, than in a law. For the magistrat how great soeuer he be, cannot of himselfe derogat from the law, and much lesse abrogat the same: for these things we have shewed properly to belong vnto soueraigntie. Neither must we vnderstand, that the * lawyer when he saith, That the Pretor might[*](Papinian.) correct, amend, or supply the laws, that he had therefore power to derogat from them, or to disanull them, which is the highest point of soueraigntie: but that hee might by the authoritie of his office expound the obscure lawes, and in what they might with equitie be extended, yet without breaking or impugning the same. And that is it, for which the law generally saith, That the Pretor neuer could giue possession of the goods unto them, who by the lawes and ordinances could not be the heires. Neither was it also in the power of the Pretors, nor yet of all the magistrats together, to make

an heire of him which by the lawes could be none; for why, that was to be done onely by vertue of the law, whereby the magistrat by his definitiue sentence declared, the succession to belong to such, or such a man, whome the law or the testator had appoin---ed heire. And albeit that diuers of the Pretors edicts were more reasonable and indifferent then the lawes themselves; yet so it was, that the first Pretor that would, might (without regard unto all the edicts of his predecessors) make all new, or againe reuiue such lawes, which by reason of their antiquitie, were before buried in obliuion. And this was the cause that the Tribune Aebutius presented a request unto the people, which passed in force of a law; which was that the lawes of the twelue tables, which by long tract of time were then growne out of vse, might by an expresse law bee repealed and abolished: which law needed not, if the Pretors by vertue of their edicts had had power to derogat from the positiue lawes. Yea the Pretors themselves did not alwaies in the administration of iustice follow their owne edicts, but spared not sometime to giue iudgement quite contrarie unto them, especially if the equitie of the causes upon some straunge occurrents so required; sometimes also chaunging them for the grudge or favour that they bare unto certaine priuat men: which thing Cicero by way of reproach obiected to Verres, saying, Ille nulla religione motus, contrà quàm edixerat, decernebat, That he moued with no religion, iudged quite contrarie unto that which hee himselfe had before decreed. Howbeit that this reproach was but a flourish of the Orators, and not of any great importance: For as no man was subiect unto the law which hee himselfe made, so also might he upon good and iust cause derogat from the same. Yet certaine yeares before it was enacted by the people at the motion of Cornelius the Tribune, That the Pretors, and so euerie other magistrat also should bee constrained in giuing of iudgement, to obserue their owne edicts by themselves published and set up at their first entrance into their office, and not to depart therefrom; which cut off many courtesies and favours which the magistrats before shewed unto such as they thought good. Neuerthelesse this law being published without the good liking and consent of many: and also contrarie unto the nature of lawes (which can neuer bind them that made them) was shortly after abolished. Howbeit that the magistrats for their owne particular, and in their owne causes, were constrained to endure the same edicts, iudgements, and decrees, which they themselves had made, and caused to be executed uppon others: yet that notwithstanding the magistrats were alwaies at libertie, to derogat from their owne edicts, or to alter the same, whether they were published for the whole yeare that they were Pretors, or for a moneth, or for some few dayes or howres. For generally the law saith, That the magistrat may reuoke that which he hath decreed, and[*](The Magistrat may reuoke his owne decree or commaunds, but not his iudgement once giuen.) forbid that which he hath commaunded, although that he cannot reuoke that which he hath once iudged and pronounced sentence of. For that iudgements and decrees giuen or made upon the hearing of a cause, cannot without iniurie be reuersed or changed, as also for that nothing ought to be more firme and sure then iudgements once giuen, as whereby all civill societie is especially maintained: wherein many interpretors of the law have deceiued themselves, calling the magistrats simple commaunds, precepts, and not edicts: whereas an edict (as saith Varro) is nothing els but Magistratus iussum (that is to say) the magistrats commaund, and whereof another errour hath risen also, viz. That such the magistrats simple commaunds should bind no man: For so the auntient doctors affirme. VVhich their opinion, if it were true, wherefore then[*](The Magistrates simple cōmands of right ought to be obeyed.) should the law commaund vs to obey the magistrats bare commaund, without regard whether it be iust or vniust? Or why should the lawyer Maetian say, Reipublicae interesse, vt iniustis & ambitiosis decretis pareatur, It behoueth the Commonweale, that euen vniust and proud decrees (of the magistrats) should be obeyed. Yea and all the auntient Philosophers and law makers, have more religiously recommended nothing unto vs, not onely than the lawes, but euen than the writings and decrees of the wise. Now it is more reasonable to obey a simple verball commaund, which is but for a day or an howre (if we doubt or mislike of the equitie thereof) than to the commaundements which were for a yeare, as were all the edicts of the magistrats: besides that it was more easie to performe the one than the other. And that more is, the lawes, the ordinances, the decrees, and sentences, of themselves bind no man, if the commission (that is to say, the magistrats commaund) be not on foot. And therefore the Roman Pretors, and other their great magistrats, seldome times troubled themselves with giuing of iudgements, but were still occupied in appointing of judges, in commaunding and the putting in execution of the sentences and iudgements of such iudges as had by them bene appointed. Whose verball commands (as these men tearme them) had they bene of no force to bind men, the decrees and iudgements of such as were by them appointed, should have bene to no end or purpose, neither should they have bene obeied. And therefore the law permitteth all magistrats by punishment or penaltie to cause their commaunds to be obeyed, without distinction whether they bee commaundements verball, or by way of commission, or by decrees by them made, or by iudgements by them giuen.

Of this errour (for not obeying the magistrats command) is risen also a farre greater,[*](Whether priuat men may by force resist the Magistrate offering them violence or wrong.) some defending that it is lawfull for men in fact, and by force to resist the magistrates, offering them violence, (for that is the word which they vse) whether it be in the administration of iustice, or otherwise out of the same. Howbeit that the difference is great betwixt the one and the other: for that the magistrat out of iudgement, and out of the qualitie of a magistrat, is no more but as a particular man, and so if he by word or deed wrong any man, he may be resisted, in such sort as the law permitteth: but in the execution of his charge within his power, not exceeding the bounds of his iurisdiction, there is no doubt but that he ought to be obeyed, whether it bee right or wrong, as saith the law. But if he shall exceed his authoritie or power, a man is not bound to obey him, especially if the excesse be in it selfe notorious, but may defend himselfe by oppositions and appeales: but if he may not appeale, or that the magistrat will not admit his appeale, but proceed against him; in this case it is to be considered, whether the griefe be to be recouered, or otherwise irrecouerable: which if it be to be recouered, no resistance is then to be made against the magistrat; but if the case be irrecouerable, as in question of life, or of corporall punishment, and that the magistrat will needs proceed without regard of any appeale, in this case it is lawful for every man to make resistance, not of purpose to crosse or offend the magistrat, but onely to defend the life of the innocent man in danger, yet so farre as that it be done without fraud or seditious tumult: not for the violating of the magistrat, as we said, but for the deliverance of him which is with iniurie by the magistrat oppressed. As when Appius Claudius enflamed with the desire and lust of the faire maiden Virginia, (wresting the lawes) was about to giue sentence against her libertie, Virginius her father to preserue the honour of his house, and wishing rather the death of his so faire a daughter, than that she should so loose her virginitie, slew her openly with his owne hand, and so set all the citie on an uproare. Which desperat boldnes of the man was not indeed to have beene suffered, neither ought the quiet estate of the Commonweale to be with such[*](Priuat men are not to iudge whether the Magistrat do them wrong or not.) outragious facts troubled, what violence soeuer be done by the magistrat. Howbeit that it belongeth not unto priuat men to iudge whether the magistrat offer to doe wrong, or not: which to determine, if it appertaine but unto the greater magistrats, or the Prince onely, in vaine then it is to aske whether priuat men may by force resist the

magistrates, offering them violence? but onely this, whether Magistrats which go about to put in execution their sentences of life and death, or for the inflicting of some corporall punishment, contrarie unto appeales from them made, may of right bee withstood? which that they lawfully may be, I doubt not, so that it be done without fraud or tumult, in cases of life and death: but if iudgement be of goodes, or fines, or imprisonment, I thinke it not to be lawfull, for that all these things may be amended, either by intercessions, or by appeales, or by actions of trespasse, or iniurie, or by way of petition. But in other causes lawfull it is not by the law either of God or man to[*](In what cases the magistrates offering wrong, may of right in their iudgements be withstood?) withstand the magistrat offering vs violence: as many euill taught, and worse instincted in civill pollicie and gouernement most daungerously affirme: by whose positions (if they will be like themselves) the estates of all cities and Empires must needs be troubled and confounded. For if it were lawfull for the subiects by force to defend themselves against the magistrats, they might upon the same reasons and grounds resist their soueraigne Princes also, and tread the lawes vnderfoot. Wherefore we see the lawmakers and lawyers to have respected nothing more, than to keepe all force, and violence, not from the magistrats onely, but euen from priuat men themselves, hauing violence in so great detestation, as that they have restored euen theeves and[*](Violence in Cōmonweales, to be alwaies detested.) robbers into places, vniustly by them possessed, if they were from thence by force cast out, and excluded the true owners thereof from their rights for proceeding by way of force. And albeit that some particular men hauing territoriall iurisdiction, may (in the opinion of many) in a sort in their owne right of themselves lay violent hand, upon the land holding of them: when as the vassall neglecteth his duetie unto his Lord, yet the truer opinion is that he cannot in his owne cause so doe, for that it is a thing iniurious and vnreasonable, that any man should be a judge in his owne cause, or giue sentence for himselfe. Now the law which forbiddeth priuat men to doe that, which ought to be done by the magistrat, hath this reason ioyned with it, lest occasion should be giuen of greater sturre and tumult. The law also of the xij Tables, which saith: Vis in populo abesto, Let violence be from among the people, is not to be vnderstood onely of violence to be done by force of armes, whether it be publiquely or priuately done: but also when men would have things otherwise done then by the ordinarie way of justice: as when things are done by priuat mens authoritie, which should haue beene done by the Magistrat or judge. And if it bee not lawfull for the true lord or owner to put his seale unto his owne things being in the possession of an other man; how then should it be lawfull unto the territoriall lord of himselfe to enter or seize upon lands, the propertie whereof belongeth unto an other man? Wherefore the opinion of Plato is to be of vs reiected, who in his bookes of lawes hath left the shamefull violence and abuse offered unto maydens or boyes, to be revenged by their kinsfolke, and not by the Magistrat.

Now of this question dependeth an other; as whether the Magistrat may revenge[*](Whether the magistrat may revenge the wrong and iniurie offered him as he sitteth in place of iustice.) the wrong and iniurie offered him, as he sitteth in place of justice: whereof what to say the lawiers have not yet determined. Neuerthelesse without entering into farther dispute, it is and alwaies hath beene lawfull for all Magistrats exercising their estate or commission, to condemne or chastice them, which giue unto them rash or contumelious speech, and to proceed against them by way of fine, or by seizing upon their bodies or goods, according to the power and authoritie unto them giuen; if the wrong or iniurie offered be not such as may deserue corporall punishment: for then the magistrat ought to lay aside his publique person, and to receiue iustice at an other mans hand. But yet if the iniurie be done unto the whole companie or bench of Iudges, or Magistrats, in this case they may enquire and iudge of the crime or offence, and so

altogether lawfully do that which they could not do apart: and the reason seemeth to be, for that in so doing they punish not the wrong done unto themselves, but unto the Commonweale, which is therein farre more wronged than are they which beare[*](Priuat iniurie soo nest by sufferance buried.) the persons of magistrates. And albeit that the law saith, That the action of iniurie is easely to be forgiuen, and that it is soonest by sufferance buried; that is to be vnderstood of particular men, & not of publique persons, and especially of Magistrats unto whom[*](That the person of the magistrat ought to be alwaies sacred and inuiolat.) whosoeuer shall offer violence, is by the law in danger of treason. And for this cause an outrage committed against the person of a Magistrate, the indignitie of the fact is together with the heauinesse of the punishment therby encreased▪ and that not onely when he exerciseth his estate, but also in what place soeuer it be wherein he carrieth with him the marks and tokens of his office, or is knowen to be such a man, he ought to be inuiolable, and as the auntient Latins say, Sacrosanctus, or most holy: for that word the law, Horatia (published for the safetie of Magistrats) vseth, conceiued in these words: Qui Tribunis plebis, Aedilibus, Iudicibus nocuerit eius caput Ioui sacrum esto; familia ad aedem Cereris, liberi, liber aequè vaenum ito, He that shall hurt the Tribunes of the people, the Aedils, or Iudges, let his head be sacrificed to Iupiter, and his familie and children, male and female, sold at the Temple of Ceres. Wherein some are of opinion that the word Iudicibus (or judges) is meant or to be vnderstood of the consuls, who were afterwards the onely judges amongst all the magistrats: whereof they haue some probabilitie, for they were first called Pretors, and after that Iudges; and after that their iurisdiction for the citie was giuen to one speciall Pretor, they were called Consuls. Howbeit neuerthelesse it seemeth that the law Horatia hauing put the judges after the Tribunes, and the Aediles whome they called Aedituos (for why, the great and honourable Aediles, whome they called Curules, were not yet erected) was meant to comprehend all judges; considering withall, that the law it selfe was not published at the request or motion of any of the Tribunes, or in disgrace of the Consuls, but at the motion of Horatius the Consull himselfe. And this law Horatia was made fortie foure yeares after the sacred law Iunia, made for the safetie of the Tribunes of the people: whereby they were as by a speciall law, more religiously prouided for than were the rest of the magistrats. VVhereby it appeareth this law to appertaine to all magistrats, but especially unto judges, whose lives and persons are the more subiect to all daungers, in that they are to iudge of the lives, honour, and goods of all the subiects. And therefore the law saith not, That he that killeth the judges (shall die therefore) but if hee shall offer them neuer so little violence; that is to say, Si nocuerit, which is, if hee but hurt them. And well it is to be noted, that it is not said, as they are exercising their authoritie and iurisdiction onely, but euen in what other place soeuer they bee: which otherwise were but to open a gap to have them slaine in euerie other place where they ---at not in iudgement. So when as with vs a certaine noble gentleman beeing called into[*](An heauie sure upon a man for striking of a magistrat.) question, had with his sword wounded one of the judges of the court of Paris, not as then sitting in iudgement: the court condemned --- to have his right hand cut off, his bodie afterward to be quartered, his goods confiscated, and a most great fine to bee paid unto the judge. But if the magistrat disguised, or walking the streets by night to doe any man harme, shall himselfe chance to be by any man hurt, hee cannot redresse such his wrong as done unto a magistrat, but as unto a priuat man. So Aulus Hostilius the Aedile, when as by night hee had attempted to have broken open a Courtisans doores, was there grieuously hurt: whereof he complaining unto the people▪ in hope to have found some good remedie, was sent away with shame enough▪ for that the outrage unto him done, was not to be punished as done unto a magistrat. VVhich ought not to seeme strange, seeing that one of the Tribunes, who had vnlawfully abused a boy, and taken by the Capitall Triumuiri, was by him punished as a slaue or stranger (the rest of the Tribunes his fellowes forsaking him, as abhorring his most filthy lust) albeit that the sacred lawes forbid upon paine of death to offend the Tribune, or to commaund him to be punished for what thing soeuer. In like case if the magistrats went roaming up and downe masked, and priuat men went masked also, carrying with them the markes of magistrats, as in Rome they did during the feast of Cybele: if any iniurie happened to be so done unto the magistrat, it was not punished as done unto a magistrat, but unto a priuat person: howbeit that out of these cases the magistrat is to be holden for such as he is, in what place soeuer he be.

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

Now if these deriders of authoritie and power, be not to be moued either with the feare of God, or the touch of religion, yet can they not denie, but that it is more than necessarie for priuat men to obey, respect and honour the magistrats, for the defence of Commonweales, and of the civill societie of men. Which the aunrient Poets have unto vs well set forth in their deuised fables, making the goddesse Pitharchie (which signifieth the obedience of subiects unto their princes and magistrats) wife unto Iupiter▪ Sauiour: and of that marriage Eutuchia (that is to say Felicitie) to have bene engendred[*](The dutie of the magistrat for the maintenance of his reputation.) and borne. Wherefore the magistrat on his part also ought to giue a good opinion of himselfe, for his iustice, wisedome, and sufficiencie, that so the subiects may have occasion to honour and reuerence him: and not by his vnworthinesse to suffer the honour of the Commonweale to be troden vnderfoot or despised: for the fault which in a priuat man is but light, is in the person of the magistrat doubled. And therefore Solo--- in his lawes gaue leaue to kill the drunken magistrat, without any daunger of punishment

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