The six books of a common-weale
Jean Bodin
Bodin, Jean. The six books of a common-weale. Knolles, Richard, translator. London: G. Bishop, 1606.
IT may seeme unto some that this question not before reasoned of, hath not in it any doubt, and that it is not needfull for vs farther to enter there into, considering that all the auntient and wise polytitians are of accord, that kings were neuer for other thing established than for the administration of justice, as saith Herodotus speaking of the Medes; and Cicero likewise of the Romans;[*](Kings first established to iudge his subiects.) as also we read that the first kings of Greece, Aeacus, Minos, and Radamanthus had no title more honorable then the title of Iudges; who for they with great equity administred iustice, are by the Poets reported to have obtayned of Iupiter an euerlasting power & office for iudging of the ghosts in hel. And albeit that Homer calleth princes the pastors, or feeders of the people. Yet so it is that the title of Iudges hath long time after him continued in the person of the princes of Athens, who had the soueraigne government for ten yeares. And not onely the princes of the Medes, the Greeks, and Latins, but euen the Generals also, who were as soueraignes amongst the Hebrewes, had no other title then the title of Iudges: And at such time as they demaunded of Samuel (now wearied with age) a king, they ioyned thereunto, that he might iudge them, as other kings did their people: Which showeth sufficiently that the principall charge which they had, was to doe iustice themselves in person. And the principall reason that might moue the princes themselves to iudge the[*](Reasons to show that princes themselves in person ought to administer iustice unto their subiects.) subiects, is the mutuall obligation which is betwixt the Prince and his subiects: For as the subiect oweth unto his lord all duety, aide, & obedience; so the Prince also oweth unto his subiects iustice, guard, & protection: so that the subiects are no more bound to obey the prince, than is the prince to administer unto them iustice. Neither is it sufficient to have it done by an other man, as by the Magistrate at the Princes command, seeing that the subiects being commaunded to yeeld their faith and obedience unto the prince, cannot do it by their Deputies, but onely by themselves in person; and that this obligation betwixt the Prince and the subiect is reciprocall. Howbeit that it is lesse inconvenient that the vassall should giue his faith and homage unto his Lord by his deputie, than the Lord to do him iustice by his officer, for that the obeisance of the subiect in this case cannot be called in doubt: whereas the subiect hath no warrant that the magistrat or officer shall not suffer himselfe to be by bribes corrupted, which the Prince will not do, who is therefore still aunswerable before God, vnto whom he cannot say that he hath therewith charged the conscience of his Iudges, his owne thereby being not discharged. Besides that it much and notably concerneth Commonweales, that they which hold the soueraignty should themselves doe iustice: that is to wit, the vnion and amitie of the Princes with the subiects, which cannot better be nourished and maintained than by the communion of one of them with the other, which is lost, and brought to nought, when the Princes do nothing but by their magistrats and officers: For so it seemeth unto the subiects that their princes disdaine and contemne them, a thing unto them more grieuous than if the prince should him selfe doe them wrong; and so much the more heauy, as a contumelie or disgrace is[*](The great good that ensueth whē princes in person themselves do iustice unto their subiects.) more hardly to be borne, than is a simple wrong or iniurie. Whereas to the contrarie when the subiects see their Prince to present him selfe in person unto them to do them iustice, they go away halfe contented, albeit that they have not that which they desired, or at least wise they will say, The king hath seene our request, he hath heard our difference, he hath taken the paines to iudge our cause. And if so be that the subiects
But not to rest altogether upon reason and arguments, we will also vse the examples[*](Examples of great Princes, who themselves in person administred iustice unto their subiects.) herein of the most wise and noble princes. VVhat man was there amongst men to be in wisedome compared with Salomon? And yet we read, That the onely prayer that he made unto God, was to obtaine wisedome wherewith rightly to iudge his people, which his prayer was so acceptable unto God, as that he seemed therefore most plentifully, and to the great worlds wonder, to haue powred out upon him all the treasures both of wisedome and of knowledge; that so all men might vnderstand God not onely
Now if the knowledge of that which is right, and the administration of iustice, bring so many & so great profits unto princes; how much greater shal the same then be, if they [*](To be necessarie for a prince to vnderstand of the affaires of estate.) shall by themselves handle but those things onely which are proper unto their soueraigntie? For as for the rest of the civill affaires, a prince may well commit them unto the magistrats: but the rights of soueraigntie, and the deciding of them, hee can in no wise put off, but together with the soueraigntie it self. Surely they are verie blind, deafe, and dumbe, which neuer but by other mens eies see, and by other mens eares heare, and by another mans tongue, and that oftentimes a straunge tongue also, speake and talke of such things as are theirs, and most proper unto themselves. Now wee have before shewed also, not by the examples of straunge nations onely, but euen by the examples of our auncestours also, the idle slothfulnesse of kings, who committed the mannaging of all their affairs unto their domesticall seruants, to have thereby brought both themselves and their posteritie unto destruction.
These arguments and reasons thus by vs before alleaged, make a faire show vnto them who sufficiently vnderstand not, nor by experience know not, the secrets of soueraigntie,[*](Reasons to show that it is not meet for princes themselves in person to administer iustice unto their subiects.) and hidden knowledge for the maintaining of maiestie: But unto me looking neerer into the matter, they are not sufficient to resolue this question, nor to maintaine, That a prince ought in person himselfe to administer iustice: Yea unto mee it seemeth not onely not necessarie, but not profitable unto the subiects, the prince himselfe to bee unto them the minister of iustice. True it is, that for them so to do, it should bee not onely profitable, but euen necessarie also, if the princes were themselves such as Scylax faigned unto himselfe the kings of the Indians to be; that is to say, so much better than their subiects, as the gods are aboue men. For what can bee more glorious or more royall, than to see a prince by himselfe in the open sight of the people with great integritie and uprightnesse iudge and decide causes, to giue rewards unto such as have well deserued of the Commonweale, and to inflict punishment upon the wicked and offendors. For he must needs be a good and wise man himselfe, which is not delighted but in the companie of good and wise men: and he must needs excell in integritie and iustice, who himselfe with great equitie administreth iustice. But shall we therfore say, that vitious princes ought to thrust themselves into the sight, and so to communicat
But suppose we the prince not to be vitious (a rare gift, and by the goodnes of God giuen unto men, when as in euerie age a tollerable prince is scarcely to bee found) but to be of great vertue and perfection, yea euen a man without fault (howbeit that there is a great space betwixt them which are endued with vertues, and them which are without vices) yet is it almost a thing impossible, but that some thing shall at one time or other fall from him, which wel noted may seeme unto the people foolish or rediculous: wherein much is derogated from the reputation and dignitie which the subiects ought to have of him. But let vs suppose that also, him to be neither a man euill giuen, nor
And truely unto me more deepely considering of the matter, almightie God (the[*](How princes are to behave themselves, to be of their subiects both beloued and feaed.) soueraigne prince of the whole world) seemeth to have shewed a short way unto worldly princes (the true images of himselfe) how they are to communicat themselves unto their subiects, to be of them both beloued and feared: For the communicateth himselfe unto men but by visions and dreames, and that but to a few of the elect & most perfect of them also, men of great integritie of life. But when hee with his owne voyce published the Ten Commaundements, he caused his fire to bee seene heauens high, and the mountaines to tremble with thunder and lightning, with such a dreadfull sound of trumpets, that the people strucken with feare, and falling flat upon their faces, besought him, That hee would no more from thenceforth speake vnto them himselfe (for that otherwise they should all die) but onely to commaund such things as he pleased by his seruant Moyses. So that that people of all others most chosen, had but once almightie God (who sheweth himselfe but in spirit to be seene) himselfe sounding forth his lawes; when as yet for all that to allure men the more feruently to loue him, hee at all times, and in all places and countries, doth with great loue, and eternall bountie, foster and cherish all mankind, yea indeed all sort of liuing creatures, powring continually upon them his great and infinit favours, larges, and bountie. If therefore the wise prince ought in mannaging of his subiects, to imitate the wisedom of God in the government of the world, he must but seldome times come into the sight of his subiects, and that with such a state and maiestie, as best agreeth with his wisedome, power, and greatnesse, and yet make choice of some few most wise and worthy men, with whome to communicat his secret councels, and by them to declare his will and pleasure unto the rest, and yet incessantly to heape upon his subiects his graces and favours; & with great wisedome and power to protect and defend them against their enemies. In the booke De Mundo (or of the world) dedicated to Alexander the Great (and without cause ascribed to Aristotle, as sauouring nothing of his stile) a comparison is made of a soueraigne prince unto God; as that the great king of Persia was stil resiant in a proud and stately pallace or castle, compassed in with three high walles, full of all pleasures and delights, neuer sturring abroad, or shewing & acquainting himselfe but with some few of his friends; who yet neuerthelesse by fiers and watches set upon high places, stil in one day vnderstood and knew all the enemies of his empire, euen from the farthest parts of the East Indies, unto the straits of Hellespontus. And yet neuer was there any princes under heauen more honoured and reuerenced, or better beloued of their subiects than they: or whose commaunds were more iust unto their subiects, or more of their subiects regarded, or that longer preserued their empire, power, and state. So those princes also which giue themselves ouer, and became slaues unto their vaine pleasures
Wherefore a prince that wise is, so oft as he should show himselfe unto the people[*](How a prince is to frame his countenance and speech when he showeth himselfe unto the people.) (which he should most seldome do) should so prepare himselfe, as that he may unto all men seeme euen in his face and countenance to carry with him a certaine state and maiestie, yet still mixt with modestie, but especially in his speech, which should alwaies be maiesticall and sententious, and in the manner of phrase, something different from the vulgar. Which if it shall seeme something hard for the prince to performe, or that he have not the grace of speaking, it is best for him to speake little, or els altogether to be silent: For that we know men in so great matters, as to contemne, or feare; to hate, or loue; to be stil no lesse with opinion, than with any certaine reason, led & moued thereunto. For if the prouerbe of the wise Hebrew be true, That the foole himselfe in holding his peace is accounted wise, how circumspect and aduised ought a prince to be, when hee openeth his mouth to speake in publike place? considering that his words, his countenance, and lookes, are oftentimes accounted and esteemed of as lawes, oracles, and decrees. Wherein Tiberius the emperour, least he should in any thing offend, brought in a new fashion, as to be spoke vnto, and also to giue aunswere by writing, for what matter soeuer it was, Moris erat (saith Tranquillus) eo tempore principem etiam presentem scripto adire, The manner (saith he) at that time was, with writing to goe unto the prince euen then present; to the end that nothing might escape which had not before bene well thought upon. For it is not possible but that they which speake much in open assemblies, as in the Senat, or before the people, must many times erre: which done by a prince, shall breed contempt, or at leastwise cause him to bee the lesse esteemed: so that a Grecian (I wot not who) not vnfitly said, That a prince if hee bee wise should unto the people, or in open audience no otherwise speake, than hee would doe in a Tragedie.
But I know that some of contrary opinion unto mine, wil say, Is it not the true estate and office of a prince, to doe iustice unto his people? to heare the complaints of his subiects? to see the requests of his own? and by the mouth of every one to vnderstand of their iust grieuances, which are commonly suppressed, or at leastwise disguised by another man? And why then should the prince hide himselfe from his people? talke but with few, and those of his most inward friends also? or aunswere nothing unto many, of right asking him of many things? yea not to be willing so much as to heare his subiects speake? Things altogether absurd, and not beseeming the maiestie of a soueraigne prince. Whereunto I say, that mine opinion is not, that he should so hide himselfe, as not at all to show himselfe; as the kings yet doe euen at this present in the East Indies, and namely the king of Borney, who speaketh not unto any but unto his wife[*](The maner of the kings of Borney.) and children; neither is seene of any, but still speaketh unto others by one of his gentlemen through an hole by a reed or cane which he holdeth in his mouth, as he did unto the king Catholike (as we read in the histories of the Indies:) but my meaning is,[*](How a prince ought but seldome times to conuerse with his subiects.) that he should not be much in the assemblies of the people, neither easie to bee spoke withall of all men, not to vse much discourse with his subiects, except with such as are
Now if any man shall say, That the kings of the East, and of the South are thus to be honoured, for that their subiects are of an abiect and a seruile nature; but that they of the North, or of the West, whose subiects be of greater courage, are not able to endure such a seruitude and slauerie: this shall be in due place decided, as also what the nature of euerie region is: and yet for all that I see the kings of England, Sweden, Denmarke, and Polonia, who are situat toward the North, much better to maintaine the maiestie of their estates with their subiects, than doe the kings of Fraunce, or the princes of Italie; and the kings of Moscouia yet better than all the rest, and yet are not therefore the lesse, but well the more of their subiects obeyed.
Now the greatest daunger that can come unto a prince, to doe all by others, is, least[*](How the danger least a prince should be dispossessed of his estate by him whom he putteth in trust for the mannaging of his affaires, is to be preuented.) that they upon whome he should so discharge himselfe, should take from him his estate and soueraigntie, and so possesse themselves thereof: which for al that hath neuer chanced in this realme, but onely under king Childeric, surnamed the Loutish▪ since the time that the kings of Fraunce showed themselves unto their subiects in their maiestie but once a yeare, viz. the first of May; as we read in our owne histories, and also in Cedrinus a Greeke author, who saith, That the auntient kings of Fraunce tooke no other pleasure but to eat and drinke, leauing the mannaging of all their affaires unto the great Master of the Pallace. But we must not draw into consequence the example of one king bereft of sence, to ground a maxime of state upon. Yet is there well one meane to meet with that inconuenience, which is, That the prince for one lieutenant, or for one great Maister of the Pallace, should have two or three in power and favour equall: For in so doing he shall neuer be circumuented, their power being so diminished, one of them still bewraying or controlling the other, the kings maiestie being so still the more stately and sure. For Tiberius hauing made Seianus too great; and so Commodus, Perennius; Theodosius the second, Eutropius; Iustinian, Bellisarius; Xerxes, Artaebanus; and Childeric, Pepin: committing unto them alone the mannaging of all their affaires, with the guard of their persons, they fell into the daungers which wee spake of, being in hazard of their estates.
As for the administration of iustice, and the hearing of the complaints and griefes of[*](Iustice better to be administred by good and sufficient magistrats, than by the prince himselfe.) the subiects, it shall be alwayes better prouided by good and sufficient magistrats, than by the prince in person himselfe. For who knoweth not so many good parts to bee requisit in a good judge, as are not all well to be found in the most sufficient prince in the world? Yea who knoweth not so many things to bee within the compasse of the duetie of a good judge, as may ouerslip and escape euen the most skilfull and carefull men? whereof many must needs escape the prince before he can perceiue them, and
But suppose that the prince were at leisure, and that hee both could and would see,[*](An hard chargesble, and daungerous matter, for subiects to prosecute their suits before the prince.) heare, and iudge all the causes of his people, yet were it a thing not beseeming the maiestie of a king to make such an ordinarie confusion of his court, where beside the subtilties, the countenances and favours, (not there subiect to enquirie) and the contraritie of letters, commissions, decrees, and prouisions, which are there dispatched under the name (but without the knowledge) of the prince, whereof colour is oftentimes made for the doing of wrong: it is yet moreover insupportable for the subiects, unto whome iustice is due in the places where they are, to search for the same at the court, and to follow the prince still remouing from place to place; where it were better for them sometimes to loose their right, than with so great charge to follow the suit. Besides that the most honorable and worthy causes for a prince that wil himselfe intermedd---e in iudgements, are the causes concerning life and honor: who shall be the accusers? who would fall into so great charges to sue the matter in the court? and into the daunger to bee slaine by the accused, if the prince should pardon the fault. For when princes vse scarcely at any time to condemne the guiltie parties, but doe oftentimes pardon and restore such as be alreadie condemned: by this meanes should ensue not onely no punishment of offences, but euen the greatest impunitie of the offendors: than which there is no more certaine token of a Commonweale in short time about to perish. Wherewith to meet, secret accusations have bene brought in and admitted by an auntient edict of Conan king of Scots, which is at this day in vse in Scotland, and called the Indict: and yet is better prouided for by the ordinance of Milan (which well deserueth to bee religiously kept in euerie Commonweale) where in euerie towne there is a chest with an
But here some man may say, That a prince may be so wise, so iust, and so full of understanding,[*](Not good for a louegne prince how sufficient soeuer, to sit in iudgement himselfe, for feare of too much lenitie, or else seu: ritie▪ to the peruerting of iustice.) as that he will giue no iudgement but such as is agreeable unto equitie and reason; and the compasse of his territorie so strait, as that hee may himselfe suffice to iudge and determine all the suits of his subiects, as there bee diuers such princes in the Low countries, in Germanie, & especially in Italie: In this case should it not be a goodly and a profitable thing for the Commonweale, the prince himselfe there to administer iustice? If thou aske me what mine opinion is therein, I thinke it not profitable either for that so blessed a prince, either for those his so happie citisens or subiects, or him in person himself to sit in iudgement; not for that the subiects do so much loue and honour the maiestie of their prince, as not to dare freely enough to speake their minds, and to cause him to vnderstand their right; neither for that they could hardly haue accesse unto him, for the multitude of causes which he should still have before him, hauing opened this gap: but euen for that nothing is so proper unto a prince, as clemencie; nothing unto a king, as mercie; nothing unto maiestie, as lenitie. And therefore the emperor Titus (a man of so great courtesie, as that he was called Humani generis delitias, or the myrror of mankind) gladly took upon him the office of the great bishop, because he would pronounce sentence of death upon no man, either pollute his hands with mans blood, when as yet some other emperours who were also bishops (though not so religious as he) least of all others abstained from such capitall iudgements of life and death. Now nothing is more contrarie unto true iustice, than pitie; neither any[*](Nothing more contrary unto true iustice, than lenitie and piti.) thing more repugnant unto the office and dutie of an upright judge, than mercie: hee not onely by the civill law, but euen by the law of God also being forbidden to have pitie (euen of the poore) in iudgement: which we said to be so proper unto maiestie, as that it cannot be therefrom divided or seperated. So that a prince sitting in iudgement must take upon him two contrarie persons, that is to say, of a mercifull father, and of an upright magistrat; of a most gentle prince, and of an inflexible judge. And if the prince be by nature mild and pitifull, there shall bee none so euill or wicked, who by force of teares and prayers shall not escape the punishment by the law appointed, euen the most cruell men being oftentimes by them ouercome. So we read, that Augustus the great emperour, for wisedome inferiour vnto none, examining a murderer, began in this sort to question with him, I am sure thou hast not killed thy father: in which words he not
But now if it bee so hard for a prince in this case not to erre and bee deceiued, then[*](The people in a Popular estate easily moued unto pitie.) how much more hard is it in a Popular estate, where the people suffer themselves to bee deceiued and led away with faire words, as a man may see almost in all the accusations made both in Athens and Rome, when the people giue sentence; where the innocent were condemned, and the guiltie acquited: of examples whereof all the histories are full. As Seruius Galba a great oratour, accused, attainted, and condemned of treason befor the people of Rome; not hauing any more to say for himselfe, but turning his speech and action, wholly framed to the mouing of pitie; and so embracing his children, and with teares commending them unto the people, so moued the beholders, as that he easily obtained pardon, and so escaped. Whereupon Cato the elder, who had accused him, said That had not Galba abused his children and his teares, hee had beene well whipt. Whereas other noble and valiant men, who could
But suppose the prince to bee such an one as is not easily to bee moued vnto pitie or[*](A most hard thing for a soueraigne prince sitting himselfe in iudgement, to keepe a meane betwixt too much lenitie and seueritie.) compassion, yet then is it to bee feared, least hee in iudgement fall into crueltie. For whereas to keepe the meane is to euerie man a right hard thing, so unto princes it is of all others most difficult, who easily suffer themselves to be carried into the one extremitie or other. If hee bee a good prince and an embracer of vertue, hee will have wicked men in extreme horror & detestation, wherwith euen the wisest men are moued with a iust anger, and so oftentimes carried away with a cholerike passion. There need no better example than that of Augustus the emperour, who was accounted to bee one of the most wise and vertuous princes that euer was, and at his first sitting in iudgement endured as it were the paine of the condemned: and suffered not lesse (as saith Seneca) than did they themselves which were executed. And yet neuerthelesse this vertuous prince by continuall custome of iudging and condemning such as were conuict before him (as most necessarie it was) became too much rigorous and cruell, suffering himselfe to bee transported with passion and indignation against the wicked: in such sort, that one day sitting in iudgement, and condemning many the accused to diuers punishments: his friend Mecenas beeing not able for the preasse to come neere him, cast a little billet of paper into his bosome, wherein hee called him an Executioner or Hangman: whereat Augustus suddenly staied, and finding himselfe transported with choler, and so to bee too hastie in iudgement, to stay his anger forthwith brake up the court. And for this cause our fathers have right wisely ordayned, That the Criminall Chamber of Parliaments should from three monethes to three monethes still bee chaunged (which for this cause is called Tournelle: for that all the judges of the other Chambers iudged euerie one of them by turnes, to the intent that the common custome to condemne and put men to death, should not chaunge the naturall mildnesse of the judges, and make them cruell and hard harted. Besides that it is a verie hard, and almost impossible thing (as saith Theophrastus) that a good and honest man, should not enter into choller, seeing the most detestable enormities of the wicked, and so sometimes to become as a man euen furious, and as it were out of his wits. So Claudius the emperour hearing one day the plaintife rehearse the great and manifold villanies of one accused, fell into such an outrage, that taking up a knife which lay before him, hee threw it into the accused mans face, euen in full iudgement. But if the prince which intermedleth himselfe with iudgement bee by nature cruell, he shall then make a butcherie of his court; as did the emperour Caligula, who by one[*](The most strange & extreame crueltie of Caligula the emperour.) onely sentence, for diuers crimes condemned fiftie persons, euen unto the same kind of death, and often tooke pleasure to cut off the heads of many goood men, sometime
But let vs proceed farther, and suppose, that the prince have the grauitie, the knowledge,[*](The best and surest meanes for the maintenance of a prince in his estate, is by all good meanes to procure the loue of his subiects: and how the same is to be obtained.) the wisedome, the discretion, the experience, the patience, and all other the vertues requisit in a good judge: yet so it is, that he cannot be without daunger, if he shall in person iudge his subiects. For the best and fairest rule for the maintenance of the state of a Monarchy, is, that the prince, if it may be, cause himself to be beloued of al, without the disdaine or hatred of any. Wherunto to attaine, he hath two means, the one by appointing due punishment to be inflicted upon the euill, & the other by giuing deserued rewards unto the good. And for that the one of them is fauorable, & the other odious, it behoueth the prince that would be loued, to reserue vnto himselfe the bestowing of rewards; which are, estates, honors, offices, benifices, pentions, priuileges, prerogatives, immunities, exemptions, restitutions, and other graces and favours, which every well aduised prince ought himselfe to graunt: but as for condemnations, fines, confiscations, and other punishments, he is not himselfe to meddle with them, but to commit them unto his most upright and wise magistrats, for them to doe good and speedie instice therein. In which doing, they which receiue the benefits, shall haue good cause to loue, respect, and reuerence the prince their benefactor: and those which are condemned, shall yet have no occasion at all to hate him, but shall still discharge their choller upon the magistrats and judges. For why, the prince doing good to every one, and euill to none, shall be beloued of all, and hated of none: which euen nature hath figured out unto vs in the king of Bees, who neuer hath sting, least he should hurt any. And albeit that the sacred Scriptures teach vs, all plagues, diseases, calamities, and other worldly chaunces to depend of the wrath of God; yet in this all diuines (which more exactly entreat of diuine matters) wholly agree, none of all these things to bee done by almightie God, as by an efficient cause; but by permission onely, and to bee from him divided, but as from a not letting cause: which cause the manner of the Hebrew phrase euerie where signifieth by the word Hiphil, ordinarily vsed, when it speaketh of the vengeance of God. We read also in the Poets (though somewhat otherwise) that Iupiter had three kinds of lightning, which they called Manubias Albas, Rubras, Atras, The first is white, which serueth for aduertisement, but hurteth no man, as proceeding onely from Iupiter, and his friendly aspect unto the Sunne: For which cause Seneca saith, Id solum fulmen placabile est quod mittit Iupiter, That onely lightning (saith hee) is peaceable which Iupiter sendeth. The other is red, and proceedeth from the aspect of Iupiter unto the inferiour planets, whome they call the inferiour gods, which hurteth and blasteth fruits and beasts, but killeth no man. The third is blacke, and made by the aspect of Iupiter unto the high planets and the sixe starres (which they call the high gods) which killeth, ouerthroweth and destroieth whatsoeuer it lighteth upon. For the Theologie of the auntients belonged unto the Bishops, the Philosophers, and the Poets, as Marcus Varro witnesseth in the one and twentieth booke of worldly things: wherein they all agreed, That the great God, which they thought to be Iupiter (to speake properly and according to the truth) could not be himselfe augrie, neither hurt nor condemne any man, but all things to be done by meane causes, and the ministerie and power of angels. And therefore the auntient Aegyptians deriued a law euen from
But here haply some man may say, the honour of noble personages to require, that when question is of their lives, their honour, or whole estate, the king himselfe should take upon him the hearing of the matter. For when the duke of Alencon (Charles the seuenth his nie kinsman) was accused of treason, the court of parliament answered the king, That hee could not be tryed but in the presence of the king, and of the peeres of Fraunce, without being lawfull for them to appoint their substitutes. In like case uppon councell asked by Lewes the eleuenth, when question was for the triall of Renate of Aniou king of Sicilie, the court gaue the same aunswere, viz. That it could not so[*](Not lawfull for the French king to be in person assistant in the triall of a prince or peere accused of treason.) much as giue an interlocutorie decree against a peere of Fraunce, when question was of his honour, except the king himselfe were there present. I say for all that, that this was not for the king to iudge. For why, it is to be proued, that the king in auntient time was not in person himselfe assistant in the iudgement of treason, although it were in the triall of the princes, or of the peeres; as is to be found in the records of the court, a protestation the third of March 1386, made by the duke of Burgundie, as chiefe peere of Fraunce, against king Charles the sixt, wherein is contained, That the king ought not to be assistant at the iudgement of the king of Nauarre, arraigned of treason; and that so to be, appertained not but onely to the peeres of Fraunce, saying, The like protestation to have beene made against king Charles the fift, to the intent hee should not bee present at the triall of the duke of Brittaine: and in case hee would needs passe on farther, and breake the custome of their auncestors, the peeres of Fraunce demaunded in full parliament, That an act of that their protestation might be unto them decreed, and so afterwards it was enioyned unto the clarke by a decree of the court, to deliver unto the peeres, and to the kings Attourney generall an act of such their protestation. So also when question was for the triall of the marquesse of Salusse, under the raigne of Francis the first, it was by lively reasons, and by the authoritie of the lawes both of God and man maintained, That the French king could not in that iudgement be assistant, seeing it concerned the confiscation of the marquisat: and albeit that the kings Attourney generall vrging the matter, the king was at the iudgement present, yet gaue hee not sentence, whereby the marquesse was himselfe condemned, and his goods most iustly confiscat, yet that iudgement for al that seemeth unto many but extorted, and the other princes rested therewith much discontented. So also Alexander the Great would neuer
Now to say as some men do obiect and say, That if the prince in person himselfe[*](A vaine obiection for the shortning of suits, if the prince himselfe in person take upon him the administration of iustice.) should take upon him the administration of iustice, men should have a good and quicke dispatch of their suits; and that such numbers of appeales, such exceptions and petitions, with other long delaies of iustice, should be so quite cut off; deserueth not so much as aunswere. For who is he which knoweth not at what great charge he must bee, how many circumstances and delayes, how many windings and turnings, how many repulses and griefes he must endure that hath any suit in court? Neither is it to be thought, Iudgements to be so much the better, by how much they are the shorter. For albeit that Thucidides (the most famous of them that were of his time, of the councel of the Areopagi in Athens) seemeth to have beene in the same opinion that some others were, viz. That offences once committed, were forthwith to be punished; yet I verily suppose the opinion of Plutarch, yea of the Hebrewes themselves to bee the truer: for these thinke it necessarie for him that will iudge aright, to vse delaies in publike iudgements. But he in that little booke which he wrot of the slow vengeance of God, plainly[*](The quicker iustice not alwayes the better.) teacheth men to be warned by almightie God, if they will be the true imitators of his iustice, to proceed but slowly and by little and little in the triall of capitall causes, whether it be that the truth of the matter may the better appeare, or for the drawing of some profit from the offendors before their death, or to draw them to repentance, or for their more griuous punishment (for that the punishment is the greater the longer that it hangeth over ones head) or the better or more iustly to iudge of another mans life, being withall in question. For right hard it is for a judge pressed with choller and desire of revenge, hasted by some, and thrust forward by others, to doe good iustice, what knowledge or feare soeuer hee have to iudge amisse: and what shall then the prince doe, who hath neither the one nor the other? The iudgements of the inferiour magistrats are corrected by the superiour, by way of appeale: but if the prince himselfe shall take upon him to iudge, who shall reforme his decrees? For he that in the former iudgement hath not sufficiently declared his matter unto the judge, or by ouersight let some thing passe; if yet he may appeale, all may wel be amended: but if the prince himselfe shall once giue iudgement, the gate is then after sentence shut up, and no place left for appeale, or how to amend the errour. Which we say to restraine a prince from intermedling with iudgements, except he be a man of great wisedome, or vse therein the[*](Causes worthy & well beseeming the princes hearing & deciding.) assistance of his wise and learned councellors; and the causes such as may seeme worthy the princes hearing and iudgement: following therein the councell of Iethro, who seeing Moyses troubled from morning to night in doing iustice to all men, and in all causes, You kill your selfe (said he) with taking so much paine; chuse mee out of the wisest and most discreet men of the people to ease your selfe upon; and if there be any thing high or difficult to iudge, it sufficeth that you take upon you the hearing thereof, leauing the rest unto the other magistrats and judges to heare and determine. Which counsell of his father in law Moyses followed. So likewise wee read, that Romulus hauing committed unto the Senat and the magistrats, the ordinarie administration of iustice, reserued unto himselfe onely the hearing of matters of greatest importance. And albeit that the Roman emperours afterwards would have their iudgements to extend something farther, yet was the emperours iurisdiction for the hearing of matters still shut up and included within certaine bounds: which for all that the princes flatterers, or
Wherefore with greater reason ought a prince, when as he commeth to an enter[*](That princes ought seldome to come to an enteruiew of their persons.) view with another strange prince (which he ought but most seldome to doe) to shew himselfe in such sort, as that there be nothing in his attire, and much lesse in his countenance or behauiour and speech to be discommended. And that is it for which Philip Comines speaking of the enterview of princes, sayth, That they ought to shun it so much as they may: for that their presence alwaies diminisheth their fame, and the opinion conceiued of their persons, causeth them to bee the lesse esteemed: a thing yet more to be feared towards the strangers than towards the subiects.
Now that which I have said, It not to be fit for soueraigntie, or for soueraigne princes to entermeddle with iudgements; ought yet more to be obserued in a popular estate,[*](The people vfie to iudge of matters.) for the great difficulties in assembling of the people, and to cause them to vnderstand reason; and then after that they have vnderstood it, to induce them well to iudge thereof, their iudgements being oft times peruerted by seditious declamations or factions: which was the greatest occasion of the civill warres amongst the Romans, vntill that Sylla the Dictator had remitted the hearing of all causes unto the magistrats, excepting the offence of treason, and that in the highest degree.
But yet besides the inconueniences by vs before noted, nothing hath euer bene more[*](That the Senat or Magistrats are not to be depriued of their authoritie & power to have the sam giuen to the prince.) daungerous, or more ruinated Commonweales, than to translate the authoritie of the Senat or commaund of the magistrats, unto the prince or the people. For that the lesse the power of the soueraigntie is (the true markes of maiestie thereunto still reserued) the more it is assured; as well said Theopompus king of Lacedemonia, who hauing encreased the power of the Senat, and appointed five Ephori in title of office, as Tribunes of the people: and being therefore by his wife reproued, for that in so doing hee had much diminished his owne power: So have I also (said he) much more assured the same for the time to come. For hard it is for high and stately buildings long to stand, except they be upholden and staid by most strong shores, and rest upon most sure foundations; all which consisteth in the Senat or councell, & in the good duties of the magistrats. In which thing the Venetians, as they haue done many things wisely, so have they done in nothing more than in that, that they which have the soueraigntie, intermedle not with iudgements onely, but not so much as with any other thing els, which may wel by the magistrats or the Senat be dispatched: Which haply hath bene one of the chiefe meanes wherby that state hath bene so long preserued, considering that there neither is, nor euer was any Cōmonweal, where they which have the soueraigntie troble themselves lesse with that which belongeth unto the councel or the magistrats. The Great Councel of the nobilitie, or gentlemen, wherin the whole maiestie of that Commonweal resteth, is neuer assembled but for the creating of new magistrats, or enacting of lawes, all the rest of the affaires of the estate being to be dispatched by the Senat, and the councell of the Ten, and of the Seuen men; and matters of iurisdiction by the other magistrats. Which if it be a thing commendable, and well appointed in Aristocratike estates, with better reason ought it to take place in Popular estates, Where the moe heads there be, the lesse wit there is, and so the worse resolution also. Neither like I of Xenophon that most famous mans opinion, who speaking of the Athenian Commonweale, saith, That the more popular that the lawes are, the better they maintaine a Democratie, or Popular estate, When as (saith hee) the people hath the hearing of all matters, and that all passeth by lot and voyce: which thing indeed doth vtterly ouerthrow all Popular Commonweales. As in Athens, when as by the persuasion of Pericles, the hearing and deciding of matters, and the mannaging of the state, was taken
But the best kind of Commonweale is that, wherein the soueraigne holdeth what[*](The best ordered Commonwealth) concerneth his maiestie, the Senat maintaineth the authoritie thereof, the magistrats execute their power, and iustice hath her ordinarie course. Whereas otherwise if the prince or the people shall take upon themselves the authoritie of the Senat, or the commaunds, offices, or iurisdictions of the magistrats; it is much to be feared, least that they destitute of all helpe, shall at the length be spoyled of their owne soueraigne maiestie also. And in mine opinion they shamefully erre, which thinke themselves to encrease the princes wealth and power, when they show unto him his Clawes, giuing him to vnderstand, that his will his countenance, and his looke, ought to be as an edict, a decree, and a law; to the end that there should be none of his subiects which should presume to take upon them the hearing or deciding of any matter, which might not bee againe by him reuersed and chaunged: so as did the tyrant Caligula, who would not that the[*](The foolish saying of Caligula.) lawyers should so much as giue their councell and opinions, when as he said, Paciam vt nihil respondeant nisi Eccum, that is to say, That is he to whome it alone belongeth to giue his opinion; meaning by himselfe: but by the word Eccum, which is, Behold the man; alluding to the word Aequum, which is, That which is right and iust. But this opinion by little and little crept into princes minds, breeding in them an incredible desire of oppression and tyrannie.