The six books of a common-weale

LEt vs then say in continuing of our purpose, that it is not enough to maintaine, that a Monarchy is the best estate of a Commonweal, & which in it hath the least inconuenience; except wee also (as we said) add thereunto, a Monarchy Roiall. Neither yet sufficeth it to say, that the Royall Monarchy is most excellent, if we should not also shew that unto the absolute perfection thereof it ought to be fast knit together by an Aristocratique and Popular kind of government: that is to say, by an Harmonicall mixture of Iustice, composed of[*](That a Royall Monarchy ought to be knit together with a certains kind of mixture of the Aristocratike & Popular government, the royalty yet sanding whole and pure, without any mixture of those estates.) Iustice Distributiue, or Geometricall; and Commutatiue, or Arithmeticall: which are proper unto the estates Aristocratique, and Popular. In which doing, the estate of the Monarchy shall be simple, and yet the government so compound and mixt, without any confusion at all of the three kind of Estates, or Commonweales. For wee have before shewed, that there is great difference betwixt the mingling, or rather confounding of the three estates of Commonweales in one (a thing altogether impossible) and the making of the government of a Monarchy, to bee Aristocratique and Popular. For as amongst Monarchies, the Royall Monarchy so gouerned (as I have said) is the most commendable: euen so amongst kingdomes, that which holdeth most, or commeth neerest unto this Harmonicall Iustice, is of others the most perfect. Which things for that they may seeme obscure, neither are to my remembrance by any mans writings declared; I must endeuor my selfe that they may by manifest and plaine demonstration be vnderstood. Iustice therefore I say to be The right diuision of rewards [*](The definition of Iustice.) and punishments, and of that which of right unto every man belongeth; which the Hebrewes by a straunge word call Credata: for the difference betwixt this and the other Iustice giuen unto men by God, whereby we are iustified, which they call Tsedaca. For that by these, as by most certaine guides, wee must enter into this most religious and stately temple of Iustice. But this equall diuision which we seeke for, can in no wise be accomplished, or performed, but by a moderat mixture, and confusion of equalitie, and similitude together, which is the true proportion Harmonicall, and whereof no man hath as yet spoken.

Plato hauing presupposed the best forme of a Commonweale, to be that which was composed of a Tyrannicall and Popular estate: in framing the same, is contrarie unto himselfe, hauing established a Commonweale not onely Popular, but altogether also Popularly gouerned; giuing unto the whole assembly of his citisens, the power to make, and to abrogat lawes, to place and displace all manner of officers, to determine of peace and warre, to iudge of the goods, the life, and honour, of every particular man in soueraigntie: which is indeed the true Popular estate, and Popularly also gouerned. And albeit that he had so (as we say) formed his Commonweale, yet neuerthelesse hee said▪ That the Commonweale could neuer be happie, if it were not by Geometricall proportion gouerned; saying that God (whome euerie wise lawmaker ought to imitat) in the government of the world alwayes vseth Geometricall proportion. The same Plato hauing also (as some say) oftentimes in his mouth these three words, ---

---, which is to say, God alwayes to be playing the Geometritian: which words indeed sauour well of Plato his stile, howbeit that they be not in all his works to be found.

Now certaine it is, that Distributiue, or Geometricall Iustice, is most contrarie unto the Popular estate and government by Plato set downe: the people still seeking after nothing more, than for equalitie in all things; a thing proper unto Commutatiue, or Arithmeticall Iustice. Which was the cause for which Xenophon (Plato his companion,[*](Plato couertly by Xenophon reproued, for appointing his Commonweale to be gouerned by Geometricall Proportion.) and both of them iealous one of anothers glory) being of opinion, That Commonweales ought to be framed, and the lawes administred according unto Arithmeticall proportion and equalitie, bringeth in Cyrus yet a boy, corrected and chastised, for that he being chosen king, had chaunged but the seruants garments, appointing better apparell unto them of the better sort, and meaner unto them of the meaner sort: as hauing therein regard unto decencie, and the proportion Geometricall. After which chastisement, Cyrus is by his maister taught, to giue unto every man that which vnto him belongeth, and to remember that he was a Persian borne, and was therefore to vse the Persian lawes and customes, which gaue unto every man that which was unto him proper: and not the manners and fashions of the Medes, who thought it meet, that to be unto every man giuen, which was decent and convenient for him. Which writings of Xenophon, Plato hauing read, and knowing right well that it was himselfe, and not Cyrus, which had bene corrected; forthwith reproued the Cyropaedia, without naming of any partie. This diuersitie of opinions, betwixt Xenophon and Plato (famous among the Greeks) was the cause of two great factions, the one of the Nobilitie and richer sort, who held for Geometricall Iustice, and the Aristocraticall estate; the other of the baser and poorer sort, who maintained Commutatiue or Arithmeticall Iustice, and therefore wished to haue had all estates and Commonweales Popular. Now of these two factions arise a third, which was of opinion, That in euerie Commonweale Arithmeticall Iustice was to be kept in iust equalitie, when question was of the goods of any one in particular, or for the recompensing of offences and forfeitures: but if question were of common rewards to be bestowed out of the common treasure, or for the diuision of countries conquered, or for the inflicting of common punishments, that then Distributiue, or Geometricall Iustice, was to be obserued and kept, hauing regard unto the good or euill deserts, and the qualitie or calling of every man: insomuch that these men used two proportions, and yet for all that diuersly, sometime the one and sometime the other: as Aristotle said it ought to be done, but yet not naming either Plato or Xenophon, who yet had both first touched this string.

But as for Harmonicall Iustice, not one of the auntient writers either Greekes or[*](Harmonicall Iustice of all others the best.) Latines, neither yet any other, euer made mention, whether it were for the distribution of Iustice, or for the government of the Commonweale: which for all that is of the rest the most diuine, and most excellent and best fitting a Royall estate; gouerned in part Aristocratically, and in part Popularly. But forasmuch as this point we heare speake of, euill vnderstood, draweth after it a number of errours, whether it be in making of laws, or in the interpretation of them, or in all sorts of iudgements; and to the end also that euerie man may vnderstand, that this third opinion of Aristotle can no more be maintained than the other; it is needfull for vs to borrow the principles of the Mathematitians, and the Lawyers resolutions. For why, it seemeth that the Lawyers for not regarding the Mathematitians, and Philosophers, as not hauing iudicial experience, have not declared or manifested this point, which is of right great consequence (as I have said) and that as well for the administration of Iustice, as for the maintaining of the affaires of state, as also of the whole Commonweale in generall.

Now the Geometricall proportion is that which is made of an vnequall excesse of [*](Three kinds of proportion▪ Proportion Geometricall, 3, 9, 27, 81. Proportion Arithmeticall, 3, 9, 15, 21, 27. Proportion Harmonicall, 3, 4, 6, 8, 12.) like magnitudes among themselves: but the Arithmeticall proportion is every way both in progression, and excesse equall: and the Harmonicall proportion is of them both, by a wonderfull cunning (confused and combined together) made, and yet is unto them both vnlike: the first of these proportions is semblable, the second is equall, & the third is in part equall, and in part semblable; as is to be seene by the examples in the margent set: where the proportion is treble of 3 to 9, and of 9 to 27, and of 27 to 81: and the proportion Arithmeticall following, beginneth of the same number of 3, and the same difference of 3 to 9: but the difference of 9 to 15 is not like, but yet equall: for betwixt these numbers there are alwayes six differing. And the proportion Harmonicall beginneth of 3 also, but the differences are not alwayes alike, neither altogether equall also, but therein is both the one and the other sweetly mixt and combind together▪ as may well by Mathematicall demonstrations be vnderstood, whereinto it is not needfull for vs further at this time to enter: howbeit that certaine markes of them manifest enough, are in the auntient Roman lawes to be found; and by numbers in Geometricall proportion set downe and reported. But the difference of the Geometricall[*](The difference betwixt Geometricall and Arithmeticall proportion.) and Arithmetical proportion, is in this to be noted, That in the proportion Arithmeticall are alwayes the selfe same reasons, and the differences equall: whereas in the Geometricall proportion they are alwayes semblable, but not the selfe same, neither yet equall: except a man would say, that things semblable are also equall; which were nothing else, but improperly to speake: so as Solon did, who to gaine the hearts both of the nobilitie, and of the people of Athens, promised to make them lawes equall for all sorts of men: wherein the nobilitie and better sort of the people thought him to have meant the Geometricall equalitie; and the common people, the Arithmeticall; and so to have bene all equall: Which was the cause that both the one and the other by common consent made choyce of him for their lawmaker. Wherefore the Geometricall[*](The Geometrical government of an estate.) government of an estate is, when like are ioyned with like: as for example, by the laws of the twelue Tables, the Patricij, or Nobilitie, was forbidden to marrie with the comminaltie, and order taken, that noble men should marrie none but noble women: and they of the baser sort such also as were of like condition with themselves, slaues also marrying with slaues, as differing from both the other sort. Which law is also yet inuiolably kept among the Rhagusians. So were to be deemed also, if the law were, that princes should not marrie but with priuces, the rich with the rich, the poore with the poore, and slaues with slaues, by a Geometricall proportion. But if it were by law[*](The government of an estate by Arithmeticall proportion.) prouided, that marriages should be made by lot; that law would bee unto the people most acceptable and pleasing, to make all equall: for that so the noble and rich ladies should by lot oftentimes fall unto the poore and baser sort of men; the slaue might marrie the prince, the base artificer might have to wife a woman honourably descended, most vnlike to his estate: So that by lot should the Popular equalitie bee preserued, agreeing with the Arithmeticall proportion: but the wealth and dignitie of the nobilitie and richer sort be quite ouerthrowne. And that is it for which Euripides saith, A[*](The government according unto the Geometricall or Arithmeticall proportion hurtfull, the one unto the common people, and the other unto the nobility: whereas the Harmonicall government preserueth both the one and the other.) lawfull equalitie to be most agreeable unto mans nature, ---. But both these formes of government according to either Arithmeticall, or Geometricall proportion, draw after them diuers inconueniences: For in the one the poorer and vulgar sort are cast downe, and in the other the nobilitie and richer sort are contemned and disgraced. Whereas the Harmonicall manner of government, with a most sweet consent, preserueth both (so much as possibly is) not confounding all sorts of people hand over head together. And not to go out of the example by vs propounded of marriages, he that would keepe the Harmonicall government, should not require in the marriages of the nobilitie, the noble descent too farre fet both on the one [*](The wonderfull curiositie of the Germans, in the marriage of the nobilitie.) side and the other: as many of the Germans most daungerously doe, who most curiously search out their great great grandfathers fathers, of like nobilitie on both sides, to ioyne together their nobilitie in marriage: which is too farre to remoue and seperat the nobilitie, not from the baser sort onely, but euen from it selfe also; considering that they content not themselves, that the gentleman be noble by the father onely, as it sufficeth in the kingdome of Polonia, by the decree of Alexander king of Polonia: or by the father, and the grandfather, as is sufficient in this realme, by a law of king Frances the 1: or by father, and mother, and grandfather, on both sides, as is set downe by the new decrees of the knights of Sauoy: but they will that the right gentleman shew that hee is descended of two hundred and threescore noble persons, if the interpretation that many giue of a right gentleman be true: Some others will have seuen degrees of nobilitie to suffice, deriued from the fathers and mothers side without disparagement. But such lawes are daungerous, and full of seditions: and for this cause the law concerning marriages, which Appius the Decemuir is said to have put into the Twelue Tables, was at the motion of Canuleius the Tribune as daungerous, repealed: for that thereby the subiects loue was rent in sunder, and the citie by seditions ouerthrowne: which tumults and seditions the law being once abrogated, and alliances made betwixt the nobilitie and the comminaltie, upon the sudden ceased: howbeit that noble women have seldome married from the nobilitie, but noble men have oftentimes married with meane women: for that nobilitie is still to bee obtained from the father. And indeed it best [*](Harmonical proportion good to be in marriage obserued, and so likewise in the government of the whole Commonweale.) agreeth with Harmonicall proportion, if a rich base woman marrie with a poore gentleman; or a poore gentlewoman with a rich common person: and she that in beauty and feature excelleth, unto him which hath some one or other rare perfection of the mind: in which matches they better agree, than if they were in all respects equall: as amongst marchants there is no partnership or societie better, or more assured, than when the rich lazie marchant is partner with the poore industrious man; for that there is betwixt them both equalitie, and similitude: equalitie, in that both the one and the other have in them some good thing: and similitude, in that they both two have in them some defect or want. And this is it for which the auntient Greekes aptly fained, Loue to have bene begotten of Porus and Penia, that is to say, of Plentie and Pouertie, loue growing betwixt them two: so as in song the Meane betwixt the Base and the Treble, maketh a sweet and melodious consent and harmonie. For why, it is by nature to all men engrafied, for them still to loue most, the thing themselves want most: so commonly the foule seeketh after the faire; the poore, the rich; the coward, the valiant: whereas if the rich and noble should likewise marrie with the noble and rich, they should one of them make lesse account and reckoning of the other, for that one of them little wanted the others helpe. For as the maister of a feast ought not without discretion to place his guests hand over head, as they first came into the house, without any respect had of their age, sexe, or condition: so also ought he not to set all his best guests in the highest and most honourable places: neither all the wise men together with the wise, neither old men with old men, nor young men with young men, women with women, nor fools with fooles: following therein the Geometricall proportion, which seeketh after nothing else but the semblablenesse of things; a thing of it selfe foolish and vnpleasant. But the wisest maister of a feast will place and enterlace quiet men betwixt[*](Harmonical proportion declared by the order to be kept in a feast.) quarrellers, wise men amongst fooles; that so they may by their talke in some sort as with a medicine be cured: so betwixt cauillers shall he set a quiet man, and unto an old babler ioyne a still and silent man, so to giue him occasion to speake, and teach the other to speake lesse: by a poore man he shall place a rich, that so hee may extend his bountie unto him, and he againe for the same of the other receiue thanks: so amongst seuere and tetricall men, he shall mingle others of a more civill and courteous disposition; in which doing he shall not onely auoid the enuie and heart-burning of such as might complaine themselves to be placed in too low places, or not in such order as they desired (a thing hardly to be auoided where question is of degree and place;) but also of such a most beautifull harmonicall, and orderly placing, shal arise a most sweet consent, as wel of every one of the guests with other, as also of them altogether. Which beautifulnesse of Harmonicall order, he which will with Geometricall semblablenesse, or Arithmeticall confusion, inuert or trouble, he shall so take from out of the feast all the profit, all the sweetnesse, and loue, which should still be amongst guests. And for this[*](Scipio blamed for hauing used the Geometricall proportion in the placing of the Senators in the Theater.) cause men say, Scipio Africanus to have bene blamed by the wiser sort of men, and such as saw farthest into matters of state, for that hee first of all others had made lawes concerning the Theatre, giuing therein the first places unto the Senators, and so in the beholding of the playes separating them from the people; when as by the space of 558 yeares before, euen from the foundation of the citie, the Senators had indifferently together with the poore stood to behold the playes: which sepation so made, much alieanated the one of them from the other, and was the cause of many great and daungerous tumults and broyles afterwards in that Commonweale. Neither is it enough that the lawes and magistrats constraine the subiects for feare of punishment to forbeare to wrong one another, and so to live in peace; but they must also bring to passe, that although there were no lawes at all, yet they should be at unitie among themselves, and one of them still loue another. For that the foundation of marriages, as all other humane[*](Loue the foundation of all humane societies, not to be preserued by Geometricall, or Arithmeticall, but by Harmonical proportion of iustice) societies, which are almost innumerable, resteth in loue and friendship, which cannot long continue without that Harmonical & mutual concord which I have alreadie spoke of: and which cannot possibly either by Geometrical or Arithmeticall Iustice & gouernmēt be done, for that the proportion both of the one & of the other, is for most part disioyned a---d separat: wheras the nature of the Harmonicall proportion alwaies vniteth together the extreams, by reason that it hath accord both with the one and with the other: as by the examples propounded we are taught.

Now the equall government and by proportion Arithmeticall, is naturall vnto Popular [*](The equall government of Arithmeticall proportion▪ bst fitteth Popular estates.) estates, who would that men still should equally diuide estates, honours, offices, benefits, common treasures, countries conquered: and if lawes be to be made, or officers ordained, or that iudgement be to be giuen of life and death, their desire is, that all the people should thereunto be called, and that the voice of the greatest foole and bedlem should be of as great weight and force, as the voyce of the wisest man: in briefe, the more popular sort thinke it best, that all should be cast into lot and weight: as the auntient Greekes, who in three words set forth the true Popular estates, ---, which is to say, All by lot and ballance: or else to measure all things by a most right rule, and every way with Arithmeticall proportion equall. Which for that it is most stearne and inflexible, is after our phrase called Right, and to do iustice, is said, To do Right: which maner of speech seemeth to have bene taken from the Hebrews, who call their bookes of Law and Iustice, ---, that is to say, The Booke of Right, or as the Chaldean interpretor translateth it, The Booke of Rightnesse: either for that the way of vertue and iustice hath no windings or turnings, nor suffereth vs this way or that way to turne out of the right way; or else for that it is the selfe same unto all men, without respect of any mans person, not to bee moued with loue or hatred towards any man. Such an one as many have though Policletus his rule to have bene, so straight and hard, as that it might more easily be broken than bowed either unto the one side or the other: unto the patterne & straightnesse whereof all artificers directed their rules. Such

is also the forme of a Popular government, when all goeth by lot, and by strait and immutable lawes, without any iust and indifferent interpretation, without any priuilege or acception of person: in such sort, as that the nobles are subiect euen unto the selfe same punishments that the baser sort are; the fines and penalties being alike uppon the rich and upon the poore, and the like reward appointed for the strong, and for the weake, for the captaine, and for the souldiour.

But now to the contrarie, the Aristocratike government according to Geometricall[*](The Geometrical proportion best to agree with the Aristocraticall) proportion, is like unto the Lesbian rule, which being made of lead, was euerie way so pliant and flexible, as that it might be unto every stone so aptly fitted and applied, as that no part (so much as possible was) might thereof be lost: wheras others, who were woont to apply the stone unto the straight rule, oftentimes lost much thereof. So say some, that judges ought in iudgement to apply the lawes unto the causes in question before them, and according to the varietie of the persons, times, & places, so to decline from that inflexible straightnesse. Howbeit in mine opinion▪ as it is impossible for a rule so pliant every way, as was the Libian Rule, to keepe the name of a rule: so must also the strength and name of the law perish, which the judge may at his pleasure every way turne like a nose of waxe, and so become the master and moderator of the law, whereof indeed ---e ought to be but the upright minister.

Wherefore a little to decline from that inflexible straightnesse of Polycletus his rule, as also from the vncertaine pliantnesse of the Lesbian rule, that is to say, from the Arithmeticall, and Geometricall proportion of government of estates; a certaine third kind of rule is by vs to be deuised, not so stiffe, but that it may bee easily bowed when need shall be, and yet forthwith become also straight againe: that is to say, Harmonicall Iustice: which I thinke may well bee done, if wee shall conclude and shut up the government of estate within those foure tearmes which wee have before combined, viz. the Law, Equitie, the Execution of the law, and the Office or Dutie of the[*](The Law. 4. The Execution of the Law. 8.) [*](Equitie. 6. The Office of the Iudge. 2.) Magistrat or Iudge: whether it be in the administration of iustice, or the government of the estate: which have amongst themselves the same proportion which these foure numbers haue, viz. 4, 6, 8, 12. For what the proportion is of 4 to 6, the same the proportion is of 8 to 12: and againe the same reason is of 4 to 8, that there is of 6 to 12. So the Law also hath respect unto Equitie; as hath the Execution of the Law, unto the Dutie of the Magistrat: or els contrariwise, For Execution serueth unto the Law, as doth the Dutie of the Magistrat unto Equitie. But if you shall transpose these numbers before set in Harmonicall proportion, and so make the Magistrat superiour unto Equitie; and the Execution of the Law, to be aboue the Law it selfe; both the Harmonie of the Commonweale, and musicall consent thereof, shall perish. As for Geometricall proportion, the tearmes thereof being transposed, is yet alwayes like unto it selfe, whether it be in continuall proportion, as in these foure numbers, 2, 4, 8, 16; or in proportion disioyned, as 2, 4, 3, 6: conuert the order of the numbers, and say, 6, 3, 4, 2, or 3, 2, 4, 6; or in what order soeuer you shall place them, there shall alwayes be the same proportion of the first unto the second, which is of the third unto the fourth; and againe of the first unto the third, which is of the second unto the fourth. And albeit that a continuat proportion is more pleasing than that which ariseth of divided numbers, yet maketh it of it selfe no consent; as for example, 2, 4, 8, 16: and much lesse if it consist of Arithmeticall proportions, whether that they be divided in this sort, 2, 4, 5, 7, or els ioyned as 2, 4, 6, 8: both which proportions as farre differ from Harmonicall proportion, as[*](Geometricall or Arithmeticall government alone, n fit meane o maintaine a Commonweale.) doth warme water from that which is most cold, or else scaulding hoat. And so in like case may we say, that if the prince, or the nobilitie, or the people, all together hauing the soueraigntie, whether it be in a Monarchy, in an Aristocratike, or Popular estate, gouerne

themselves without any law, leauing all unto the discretion of the magistrats, or else of themselves distribute the rewards and punishments, according to the greatnes, qualitie, or desert, of every man; howbeit that this manner of government might seeme in apparance faire and good, as not hauing therein either fraud or favour (a thing for all that impossible:) yet for all that could not this maner of government be of any continuance, or assurance, for that it hath not in it any bond wherewith to bind the greater unto the lesser, nor by consequence any accord at all: and much lesse shall it have of suretie, if all be gouerned by equalitie and immutable lawes, without applying of the equitie thereof according unto the particular varietie of the places, of the times, and of the persons: if all honours and rewards shall be giuen to all men indifferently, by Arithmeticall proportion alike, without respect of honour, person, or desert: in which state of a Commonweale all the glorie of vertue must needes decay and perish. Wherefore as two simple medicines in the extremitie of heat & cold, and so in operation and power[*](A fit comparison) most vnlike one of them unto the other, are of themselves apart unto men deadly &[*](Harmonicall Iustice compounded of Arithmeticall and Geometrical proportion of government, best for the preseruation of a Commonweale.) daungerous; and yet being compound & tempered one of them with the other, make oftentimes a right wholesome and soueraigne medicine: so also these two proportions of Arithmeticall and Geometricall government, the one gouerning by law onely, and the other by discretion without any law at all, do ruinat and destroy estates and Commonweales: but being by Harmonicall proportion compounded and combined together, serue well to preserue and maintaine the same.

Wherefore Aristotle is deceiued, in deeming the Commonweale then to be happy,[*](Lawes necessarie for the good government of a Commonweale, although the prince be neuer so wise or vertuous.) when it shall chaunce to have a prince of so great vertue and wisdome, as that hee both can and will with greatest equitie, gouerne his subiects without lawes. For why, the law is not made for the prince, but for the subiects in generall, and especially for the magistrats; who have their eyes oft times so blinded with favour, hatred, or corruption, as that they cannot so much as see any small glympse of the beautie of equitie, law and iustice.

And albeit that the magistrats were angels, or that they could not in any sort bee misseled or deceiued, yet neuerthelesse were it needfull to have laws, wherewith as with a certaine candle, the ignorant might be directed in the thickest darknesse of mens actions; and the wicked for feare of punishment also terrified. For albeit that the eternall law of things honest and dishonest be in the hearts of every one of vs, by the immortall God written, yet were no penalties so in mens minds by God registred, whereby the wicked might be from their iniurious and wicked life reclaimed. Wherefore the same immortall and most mightie God, who hath euen naturally engrafted in vs the knowledge of right and wrong, with his owne mouth published his laws, and thereunto annexed also penalties: before which lawes no penalties were appointed, neither any law maker so much as once before remembred or spoken of. For proofe whereof let it be, that neither Orpheus, nor Homer, nor Musaeus, the most auntient Greeke writers; neither[*](No mention of law, before the law of God was giuen.) any other which were before Moyses (who was more auntient than all the Paynim gods) in all their workes so much as once vse the word Law: kings by their hand, their word, and soueraigne power, commaunding all things.

The first occasion of making of lawes, was the chaunging of Monarchies into Popular[*](The first occasion of the making of lawes▪) and Aristocratique Commonweales: which they first did at Athens, in the time of Draco, and afterward of Solon: and in Lacedemonia, in the time of Lycurgus, who tooke from the two kings the soueraignty. Whose examples the other cities of Greece and Italie set before themselves to behold and imitate, viz. The Dorians, the Ionians, the Cretensians, the Locrensians, they of Elis, Crotona, Tarentum, and Rome, with diuers other townes in Italie: in which cities the people were euer at variance and discord

with the nobilitie; the poorer sort still seeking to be equall with the noble and richer: [*](Laws hatefull unto the rich and mightie.) which could not possibly be, but by the equalitie of lawes; which lawes they of the richer on the contrarie side vtterly reiected, seeking by all meanes to be therefrom free & priuileged: as they who with their wealth & power defended the Commonweale; and therefore thought it reason in honours and preferments, to bee aboue them of the inferiour sort: who indeed hauing so got the great estates and principall charges in the Commonweale, alwayes favoured the richer sort, and them that were like unto themselves, still contemning and oppressing the poore. Whereof proceeded the hard speeches and complaints of them of the meaner sort: which that they might in the citie of Rome have some end, Terentius Arsa Tribune of the people, in the absence of the Consuls, blaming the pride of the Senators before the people, bitterly inueyed against the power of the Consuls; alleaging, That for one lord now there were two, with an immoderat and infinit power, who themselves loosed and discharged from all feare of lawes, turned all the penalties thereof upon the poore people. Which their insolencie that it might not still endure, he said, He would publish a law for the creating of five men, for to appoint lawes concerning the power of the Consuls, who from thenceforth should not vse further power, than that which the people should giue them over themselves, and not to have their lust and insolencie any more for law. Six yeres was this law with great contention and strife betwixt the nobilitie and people debated, and at length in the behalfe of the people established. But here it shall not bee amisse out of Liuie to set downe the very speeches and complaints of the nobilitie, accounting it better to live under the soueraigne power of a king without law, than to live in subiection unto the law, Regem hominem esse à quo impetres vbi ius, vbi iniuria opus sit, esse gratiae locum, esse beneficio, & irasci, & ignoscere posse, inter amicum & inimicum discrimen nosce, leges rem surdam & inexor abilem esse, salubriorem melior emque inopi quàm potenti; nihil laxamenti nec veniae habere simodum excesseris: periculosum esse in tot humanis erroribus sola innocentia viuere: The king (they said) to be a man of whom thou maiest obtaine something where need is, in right or wrong: favour to bee able to doe something with him, as desert also, who knew both how to bee angry, and to grant pardon: as also to put a difference betwixt a friend and a foe: as for the law it to bee but a deafe and inexorable thing, whholsomer and better for the begger than the gentleman; to have no release nor mercie, if thou shalt once transgresse the same: it to be a very daungerous thing in so many mens frailties, to live only upon a mans innocencie: Thus much Liuie. After that the lawes of the Twelue Tables were made, where amongst others there was one very popular, and quite contrarie unto the commaund and power of the nobilitie, and was this, Priuilegia nisi commitijs centuriatis ne irroganto: qui secus faxit, Capital esto, Let no priuileges be graunted but in the great assemblies of the estates: who so shall otherwise do, let him die the death. By which strict lawes the judges and magistrats for a time so gouerned the people, as that there was no place left for pardon or arbitrarie iudgement, to be giuen according unto equitie and conscience without law. As it also happened, after that king Frauncis the first had subdued Sauoy, the new Gouernours and Magistrats oftentimes gaue iudgement contrarie unto the custome of the countrey, and written law, hauing more regard unto the equitie[*](Nothing more contrary unto the minds & proceedings of favourable or corrupt judges, than to have their iudgements bound unto the strictnesse of the law.) of causes, than unto the law. For which cause the estates of the countrey by their ambassadours requested of the king, That from thenceforth it should not bee lawfull for the Gouernours or Iudges, to iudge according unto arbitrarie equitie: which was no other thing, than to bind them unto the strict lawes, without turning either this way or that way, than which nothing can be more contrary unto the minds and proceedings of favourable or corrupt judges. And therefore Charondas the Carthaginensian lawgiuer (a man very popular) forbid the magistrats in any thing, to depart from the words of the law, how vniust soeuer they seemed for to be. Francis Conan Maister of the Requests, being commaunded to heare the aforesaid ambassadour of the Sauoyans, writeth himselfe to have greatly maruelled, that they should request so vnreasonable a thing: as viz. That it should not be lawfull for their magistrats to iudge according to the equitie of the cause, but the strictnesse of the law: and reprehendeth also D. Faber, for saying, That in this realm there are none but the soueraigne courts, which can iudge according to the equitie of the cause: saying moreouer, That he himselfe doubted not so to do, when as yet he was the least judge in Fraunce. Howbeit that the ambassadors thought their judges by the strict obseruing of the lawes, to bee better kept within the compasse of their duties, if the colour of equitie being taken away, they should still [*](The good conncell of Accursius unto vnlearned judges.) iudge according to the very law. Accursius not so elegantly as aptly unto that he meant it, willed the vnlearned judges, strictly to stand upon the very words of the law: like vnskilfull riders, who doubting to be able to sit the horse they are mounted uppon, for feare of falling hold fast by the saddle.

But for the better understanding and explaining of this matter, it is to be considered, that the word Equitie is diuersly taken. For Equitie referred unto a soueraigne prince, is as much as for him to declare or expound, or correct the law: but referred unto a magistrat or iudge, is nothing else, but for him to asswage and mitigat the rigor of the law: or as occasion shall require aggrauat the too much ---enitie thereof: or else to supply the defect thereof when as it hath not sufficiently prouided for the present case offered, that so the purport and meaning of the law saued, the health and welfare both of the lawes and Commonweale may be respected and prouided for. In which sence not the soueraigne[*](How euen the meanest judges may have power to iudge according to the equitie of the cause without law.) courts onely, but euen the least judges of all have power to iudge & pronounce sentence according unto the equitie of the cause; whether it be by vertue of their office, or that the proceeding before them is by way of request; or that the prince hath sent them some commission, or other letters of iustice for such their proceeding, which they may either accept or reiect: following therein the lawes of our kings, and the clause of the letters carrying these words, So farre forth as shall seeme right and iust: or that the prince by his expresse rescript or edict committeth any thing unto their conscience by these words, Wherewith wee charge their conscience: as oft times wee see those things which for the infinit varietie of causes, cannot by lawes be prouided for, to bee by the prince committed unto the religion and conscience of the magistrats, without any exception of such judges or magistrats: in which case the least judges have as much power as the greatest: and yet neuerthelesse they cannot (as may the soueraigne courts) frustrat appeales, neither quite and cleane absolue and discharge the accused, but onely vntill they be commaunded againe to make their appearance in iudgement, after the manner and forme of the Lacedemonians (as saith Plutarch) when they are any way attainted of crime: neither can they also releeue, or hold for well releeued, a man appealing[*](Many things in iudgements lawfull for the greater magistrats or judges, which are not lawfull for the lesser.) from a judge royall: nor other such like thing. Neither is it any noueltie, many things to be in iudgement lawfull for the greater magistrats or judges, which are not lawfull for the lesser: when as in the Pandects of the Hebrewes we read it to have bene lawfull onely for the court of the wise and graue Senators (which they properly call Hacanim, and corruptly Sanadrim) to iudge of causes according unto equitie: but not for the other lesser judges also.[*](The judgebound unto the verie words of the law, is not yet therby embarred to vse the equitie of the law or yet the resonable exposition therof)

But now whereas by the orders and customes of all the cities of Italie, it is prouided, That the Iudges may not swarue from the very words of the law, excludeth not thereby either the equitie, or yet the reasonable exposition of the law: as Alexander the most famous lawyer of his time, according to the opinion of Bartholus, aunswered: who in

that respect put no difference betwixt the great magistrat and the little. For that to say truely, the law without equitie, is as a bodie without a soule, for that it concerning but things in generall, leaueth the particular circumstances, which are infinit, to be by equalitie sought out according to the exigence of the places, times, and persons: whereunto it behoueth the magistrat or judge so to apply the laws, whether it be in tearmes of iustice, or in matter of estate, as that thereof ensue neither any inconuenience nor absurditie[*](That the magistrat ought not to breake the law although it seem unto him hard.) whatsoeuer. Howbeit yet that the magistrat must not so farre bend the law, as to breake the same, although that it seeme to be right hard: whereas it is of it selfe cleere enough. For so saith Vlpian, Dura lex est: sic tamen scripta, An hard law it is (saith he) but yet so it is written. A hard law he called it, but yet not an vniust law: for why, it is not lawfull rashly to blame the law, of iniustice. But yet it is another thing, if the law cannot without iniurie be applied unto the particular matter that is in question: for that in this case (as the lawyer sayth) the law is by the decree of the magistrat to be qualified and moderated. But when he saith the Magistrat, he sufficieutly sheweth that it belongeth not unto the other particular judges so to do, but onely unto the Pretor, as graunted unto him by the Pretorian law, at the institution of his office: whereby power was giuen him to supply, expound, and correct the lawes.

But forasmuch as that greatly concerned the rights of soueraigntie, princes afterwards[*](To whome it belongeth to correct the law.) (the Popular estate being taken away) reserued unto themselves the expounding and correcting of the laws, especially in cases doubtful, arising betwixt the Law and Equitie; about the true understanding and exposition of the law. And therefore the judges and gouernours of prouinces, in auntient time doubting of the law, still demaunded the emperours aduise and opinion, when as the case presented, exceeded the tearmes of equitie arising of the law: or that which seemed vnto them iust, was contrarie unto the positiue law: in which case if the prince were so farre off, as that his exposition was not in time convenient to be had; and that to delay the cause, seemed unto the estate daungerous; the magistrats were then to follow the very words of the law. For that it belongeth not vnto the magistrat to iudge of the law (as saith a certaine auntient Doctor) but onely to iudge according unto the law: and for that in doing otherwise, he shall incurre the note of common infamie. And to this purpose I remember that Bartholemew, one of the Presidents of the enquiries in the parliament of Thoulouze, in that the councellors of his chamber, his fellow judges, would have giuen iudgement contrarie unto the law: he hauing caused all the rest of the judges of the other courts to bee assembled, by an edict then made at the request of the kings subiects, compelled the iudges his fellowes, in their iudgements to follow the law: Which law when it should seeme unto the court vniust, they should then for the amending thereof, have recourse unto the king, as in such case had bene accustomed: it being not lawfull for the judges sworne unto the lawes, of their owne authoritie to depart therefrom, seemed they unto them neuer so iniust or iniurious. Whereby it appeareth the magistrat to stand as it were in the middle betwixt the law and the equitie thereof: but yet to bee himselfe in the power of the law, so as is equitie in the power of the magistrat: yet so as nothing [*](The magistrat to be in the power of the law, so as is equitie in the power of the magistrat.) be by him deceitfully done, or in preiudice of the law. For why, it beseemeth the iudge alwayes to performe the dutie of a good and innocent upright man. For where I say that cases forgotten by the lawmaker, and which for the infinit varietie of them, cannot be in the lawes comprised, are in the discretion of the magistrat, it is yet still to bee referred unto equitie, and that the judge ought still to be (as we said) an upright and iust man, not in any thing vsing fraud, deceit, or extortion. Wherein Alexander the most famous lawyer seemeth unto me to have bene deceiued, in saying, That the judge which hath the arbitrarie power to iudge according to his owne mind, may if hee so

please iudge vniustly: an opinion contrarie unto the law both of God and nature, and of all other lawyers also reiected: who are all of aduise, That a judge hauing arbitrary power to iudge according to his owne good liking, is not to be fined, howbeit that he have vniustly iudged: prouided that he have therein done nothing by fraud or deceit. And by the law of Luitprand king of the Lombards, it is set downe, That the magistrat shall pay fortie shillings for a fine, if he iudge contrarie unto the law, the one halfe unto the king, & the other halfe unto the partie: but if he shal vniustly iudge in that belongeth unto his place and office without law; he is not therefore to be fined: prouided yet that he have therein done nothing fraudulently or deceitfully: as is yet also obserued and kept in all the courts and benches of this realme. Howbeit that the auntient Romans thus held not themselves content, but caused their judges to sweare, Not to iudge contrarie unto their owne conscience: and still before that they pronounced sentence, the Cryer with a lowd voyce cried out unto them, Ne se paterentur sui dissimiles esse, That they would not suffer themselves to be vnlike themselves; as saith Cassiodore. And in like case the judges of Greece were sworne to iudge according unto the lawes: and in case there were neither law nor decree, concerning the matter in question before them, that then they should ---udge according unto equitie, vsing these words, ---. Whereunto that saying of Seneca alludeth, Melior videtur conditio bonae causae si ad iudicem quàm si ad ar bitrum quis mittatur: quia illum formula includit, & certos ter minos ponit: huius libera, & nullis astricta vinculis religio, & detrahere aliquid potest & adijcere, & sententiam suam non prout lex aut iustitia suadet: sed prout humanit as aut misericordia impulit regere, The estate of a good cause (saith he) seemeth better, if it be referred unto a judge, rather than to an arbitrator: for that the prescript forme of law encloseth him in, and prescribeth unto him certaine limits and bounds; whereas the others free conscience, and bound to no bonds, may both detract and add something, and moderat his sentence, not as law and iustice shall require, but euen as courtesie and pitie shall lead him. Which so great a power the wise lawmakers would neuer have left vnto[*](Why so many things are by the wise lawmakers left unto the conscience and discretion of the judge.) the judges, had it bene possible to have comprehended all things in lawes: as some have bene bold to say, That there is no case which is not contained in the Roman law: a thing as impossible, as to number the sand of the sea, or to comprehend that which is in greatnesse infinit, in that which is it selfe contained within a most little compasse, or as it were within most strait bounds shut up. And therefore the court of parliament at Paris, fearing least men should draw into the consequence of lawes, the decrees that it should make; caused it to be registred, That if there were any notable doubt, or that the matter so deserued, their decree or sentence should not bee drawne into consequence, or be in any wise preiudiciall, but that it might bee lawfull in like case to iudge otherwise: & that for the infinit varietie of things doubtfull: wherby sometimes it commeth[*](How it commeth to passe, that euen contrarie or most vnlike iudgemēts may be giuen of the same or verie like cases, and yet both iust.) to passe euen contrarie, or most vnlike iudgements to bee giuen euen of the selfe same or verie like cases, and yet both most iust: as sometimes it chaunceth two trauellers comming from diuers countries, to ariue at the same place, by wayes altogether contrarie. Neither ought the judges or lawmakers to ioyne their reasons unto their iudgements or lawes, a thing both daungerous and foolish, as giuing thereby occasion unto the subiects, to forge therof new suits and delaies, or exceptions of error, or otherwise[*](That the reasons of lawes and iudgements ought not to bee vnto them ioined) to deceiue the lawes. And that is it for which the auntient lawes and decrees were most briefly set downe, and as it were but in three words, which so cut off all the deceits that could against the same lawes be imagined or deuised. Wherefore it is a most pernitious thing, to gather together the decrees or iudgements of any court, to publish the same, with out hauing red them in the records themselves, or knowing the reasons that induced the court to make the decree, which the judges oftentimes cause to bee recorded apart from the sentence or iudgement, least any should be thereby deceiued. Howbeit that it is a thing of it selfe also verie daungerous, to iudge by example and not by lawes, such iudgements being still to be chaunged euen by the least and lightest varietie and chaunge of the circumstances, of the persons, or of the places, or of the times: which infinit varieties can in no lawes, no tables, no pandects, no bookes, be they neuer so many or so great, be all of them contained or comprehended. And albeit that Solon was wrongfully blamed for making so few lawes, yet Lycurgus neuerthelesse made[*](Few laws made by the auncient lawmakers.) fewer, yea so few as that he forbad them to be at all written, so to have them the better remembred; leauing most part of causes vnto the discretion of the magistrats. As did also Sir Thomas Moore Chauncelour of England, leauing in his Vtopia all penalties, excepting the punishment for adulterie, unto the discretion of the magistrats: than which nothing can (as many thinke) be better or more profitably deuised, so that the magistrats and judges be still chosen not for their wealth and substance but for their vertue and knowledge. For it is most apparant euen to euerie mans eye, that the moe lawes there bee, the more suites there are about the interpretation thereof.[*](Moe lawes, moe suits, and moe fees.)

Wherefore Plato in his bookes of Lawes, forbiddeth lawes to bee written concerning the execution of the law, or concerning iurisdiction, traffique, occupations, iniuries, customes, tributes, or shipping. Which although we cannot altogether be without, yet might we of such laws cut off a great part. Which is also in this realme of Fraunce to be seene, which hath in it moe laws and customes than all the neighbor nations; and so also moe suites than all the rest of Europe beside: which began then especially to encrease, when as first king Charls the seuenth (as I suppose) and other kings after him, to the imitation of Iustinian, commanded heapes of lawes to be written, with a whole traine of reasons for the making of the same: contrarie unto the auntient manner of the lawes and wise lawmakers: as if his purpose had bene rather to persuade than to command lawes. And this is it for which a certaine craftie corrupt judge (whom I remember to have bene banished for his infamous and bad life) seeing a new edict or law (whereafter he still gaped) brought to be confirmed, commonly said, Behold ten thousand crownes in fees, or as some others say, Behold moe suites and heapes of gold.[*](The Frenchmen much giuen to suits in law.) For why, the Frenchmen are so sharpe witted in raising of suits, as that there is no point of the law, no sillable, no letter, out of which they cannot wrest either true or at least wise probable arguments and reasons, for the furthering of suites, and troubling euen of the best judges of the world. Howbeit the iust and upright judge, which shall not bee constrained to sell by retaile what others have bought in grosse, may with a right few and good lawes gouerne a whole Commonweale: as was in Lacedemonia, and other flourishing Commonweales to be seene, who but with a few lawes right well maintained themselves; others in the meane time with their Codes and Pandects beeing in few yeares destroyed, troubled with seditions, or with immortall suites and delaies. For we oftentimes see suites of an hundred yeares old, as that of the Countie de Rais, which hath bene so well maintained, as that the originall parties and the beginners thereof are dead, and the suite yet alive: Not vnlike that old woman Ptolomais, of whome Suidas speaketh, who so long, and with such obstinacie of mind and delayes maintained her suite, that she died before that it could be ended.

Now certaine it is, that of the multitude of laws, with their reasons annexed vnto[*](The cause of the multitude of suits in Fraunce) them, and in this realme published since the time of Charles the seuenth, is come the heape of suites; not so many being to be found in a thousand yeres before, as have bene within this hundred or sixscore yeares, and yet all forsooth full of reasons: howbeit that there is not one reason set downe in all the lawes of Solon, Draco, Lycurgus, Numa, [*](No reasons annexed unto the untient lawes.) nor in the Twelue Tables, neither yet commonly in the law of God it selfe. And howbeit

that some may say, That the infinit multitude of people which aboundeth in this realme, may helpe to encrease the multitude of suits: so it is▪ that there were a great many moe in the time of Caesar, and yet moe than there was then about five hundred yeares before, as he himselfe writeth in the sixt booke of his Commentaries. And Iosephus in the Oration of Agrippa, sayth, That there were aboue three hundred nations in Gaule: And yet neuerthelesse Cicero writing unto Trebatius the lawyer (then one of Caesars lieutenants) meerely saith, him to have gained but a few in France to his occupation. Wherefore they which have brought in such a multitude of lawes, as thinking thereby to cut up all deceit by the roots, and so to restraine suits: in so doing imitat Hercules, who hauing cut of one of Hydraies heads, see seuen others forthwith to arise thereof. For euen so one doubt or suit being by law cut off▪ wee see seuen others of new sprung up, of that heape of words and reasons without reason heaped together in persuading of the law: it being indeed a thing impossible in all the bookes of the world to comprehend all the cases which may happen, and ten thousand suites arising upon every reason of the law giuen. So that Seneca thereof said well, Nihil mihi videtur frigidus quàm lex cum prologo: iubeat lex, non suadeat, Nothing (saith he) seemeth unto me more cold, than a law with a prologue: let the law commaund, and not persuade: except the reason of the law be from it inseparable. And howbeit that the Decemuiri,[*](By lawes to prouide for all inconueniences, a thing impossible▪) or Ten Commissioners, appointed by the Romans to reforme the lawes, and to establish new, had twelue tables comprehended whatsoeuer could by mans wit bee foreseene: saying and thinking also them to have therein comprised all occurrents that might happen: yet shortly after they found themselves farre from their account, and so many things to be wanting in those their laws, as that they were enforced to giue power to the Prouost of the citie, to amend the lawes, to heape lawes upon lawes, to abrogat the greater part of the lawes of the twelue tables: and in briefe to leaue unto the magistrats discretion the greater part of the iudgements concerning mens particular causes or interest. And howbeit also, that in respect of publike causes, they did what they might to have shut up the judges within the barres and bonds of the lawes, yet so it was, that in fine they seeing the inconueniences which continually fell out in all matters, in seeking to doe equall iustice to all men, according to the Arithmeticall proportion, were constrained (after that the Popular estate was chaunged into a Monarchy) to make a great Prouost in the citie of Rome, to whom they gaue power accordingly to iudge of all the crimes committed in Rome, and within fortie leagues round about the citie: which power was also giuen unto the Proconsuls, and other gouernours of prouinces every one of them within the compasse of his owne iurisdiction. Now he which extraordinarily iudgeth of offences, is not in his iudgements bound or subiect unto the lawes, but may giue such iudgement as shall seeme unto himselfe good; prouided yet that he therein exceed not measure, as saith the law: which measure consisteth in the Harmonicall proportion which we have before spoken of.

Yet such extraordinarie power by the prince giuen unto the magistrats, whether it [*](Many degrees of extraordinary power, by the prince granted unto the magistrat.) be for iudgement, or for mannaging of wars, or for the gouerning of a citie, or for any thing else doing, hath many degrees: for either his power is giuen him next unto the prince, greater than which none can be: or else power is giuen him by vertue of his office, so that he may iudge as he seeth cause, or else may iudge in such sort as might the prince himselfe; which power little differeth from the highest, and such as can in no wise by the highest magistrat unto another magistrat or Commissioner be giuen. But if in the princes rescript or commission it be contained, That the appointed magistrat shall iudge of the cause in question according as reason, equitie, religion, or wisedome, shall lead him, or some other such meane of speech, in all these cases it is certaine, that his

power is stil limited and referred unto the iudgement of an honest man, and the tearms of equitie: whereunto the prince himselfe ought to referre all his owne iudgements also. Wherein many are deceiued, which thinke it lawfull for the prince to iudge according to his conscience; but not for the subiect, except it be in matters and causes criminall: in which case they are of opinion, that the magistrat may as well as the prince iudge according to his conscience: which if it be right in the one, why is it not right in the other? and if it be wrong in the one, why should it not be so in the other? when as[*](Not lawful for any man in iudgement to swarue from equitie and conscience.) indeed it is lawfull for no man in iudgement to swarue from equitie and conscience, and that iniurie like an Ape is alwayes like unto it selfe, filthy still, whether it bee clothed in purple, or in a pied coat. And in iudging it is one thing to bee freed from the law, and another to be freed from conscience.

But if the varietie of a fact in question be not knowne but unto the prince himself, or[*](Whether a prince or magistrat may be iudge of a fact the truth thereof beeing unto none other knowne but unto themselves alone.) magistrat alone; neither the one nor the other can therein be iudge, but witnesses onely: as Azo (the great lawyer) answered unto the Gouernour of Bolonia Lagrasse, who without any other witnesse had seene a murder done, telling him, That hee could not in that case be iudge. Which selfe same aunswere was also giuen unto king Henry the second of Fraunce, by the judges who were extraordinarily appointed to iudge of diuers causes at Melun, where the king hauing himself taken an Italian (one with whom he was familiarly acquainted) in a fact deseruing death, committed him to prison; who soone wearie of his imprisonment, preferred a request unto the judges, That for asmuch as he was not conuict of any crime, neither yet so much as by any man accused, hee might therefore as reason would, be discharged and set at libertie. Whereupon Cotellus chiefe judge of the court, with three other of the judges went unto the king, to vnderstand of him what occasion he had for the imprisonmēt of the man, or what he had to lay unto his charge? Whom the king commaunded to bee forthwith condemned, for that he himselfe had taken him in such a fact as well deserued death, which yet hee would not discouer. Wherunto the chiefe judge aunswered, Nos iurati sumus, nisi sceleris conuictum, & ex animi nostri sententia damnaturos esse neminem, We are sworne (said he) to condemne no man except he be of some capitall crime conuict, and according to our conscience. With which aunswere the king (otherwise a most curteous and gentle prince) much moued, for that the judges seemed to doubt of his fidelitie and credit, deepely swore, That hee himselfe had taken the villaine in a fact deseruing death. Wherefore Anne Montmorancie Great Constable of Fraunce, perceiuing the judges to be bound by their oath, to iudge but according unto the laws, and that in performing the kings command they should rather seeme manquellers and murderers, than upright judges: taking the king a little aside, persuaded him to deferre the execution of the man vntill night, least the people might hap to be troubled with the nouelty of the matter. And so the guiltie partie the night following was by the commaundement of the king thrust into a sacke, and in the riuer drowned. Yea the same king also in a civill cause, serued but as a witnesse in the great suit about the inheritance of George of Amboise, where he was before the judges sworne as a priuat man, and his testimonie accounted but for one. Wherefore Paulus Tertius was not without cause blamed, for that he being Pope, had caused a certaine gentleman to be put to death, who had confessed unto him (being then a Cardinall) a secret murder by him done: which thing yet the same gentleman afterward constantly denied him to have either said or done. Howbeit it were much better and more indifferent, the prince or the magistrat to iudge according unto their consciences in civill, than in criminall causes: for that in the one, question is but of mens good; wheras in the other still mens fame, yea oftentimes their lives, and whole estates is in daunger: wherein the proofes ought to bee more cleerer

than the day it selfe.

But yet the difference is right great, and much it concerneth, whether the magistrats in their iudgements be bound unto the lawes or not, or else be altogether from the laws loose & free: for that in the one, question is onely of fact; but in the other, of law, equitie, and reason, and especially when question is of matter of great importance or consequence, and wherein the law is to be expounded: which in auntient time was giuen in[*](The exposition of the law, to whom it was by the law of God reserued.) Rome unto the Great Prouost, as we have before said; but by the law of God was reserued unto the High Priest; or unto him that was by God chosen to bee soueraigne judge of the people: or in their absence unto the Leuites. Which power in the latter times of the Iewes Commonweale (and about two hundred yeares before Christ, under the latter princes of the house of the Asmoneans) was by custome, but not by law, giuen unto the Senat of the wise Sages. As amongst the Celts our auncestours, the Priests and Druides, for that they were the makers of the sacrifices, and keepers of the holy rites, were made also the keepers and guarders of Iustice, as of all other things the most sacred. The president or chiefe of which Druides (as Ammianus reporteth) still carried about his necke a pretious stone, hanging downe unto his breast, with the picture of Truth engrauen in it. Which most auntient custome of the Hebrewes, and of[*](The exposition of the lawes, and the deciding of most high and difficult causes both in Asia and Afrike, reserued unto the Mahotan Priest.) the Aegyptians, euen yet continueth in all Asia, and in the greater part of Affrike also, viz. That the Priests should have Iustice in their hand, and the▪ Great Bishop the exposition of the Lawes, and the deciding of the most high and difficult causes. So the Great Bishops, whome the Turkes call their Muphti, hath himselfe alone the expounding or declaring of the doubts arising of the obscure lawes, especially when question is betwixt the written Law and Equitie it selfe. Which exposition of such doubtfull lawes, the Roman emperours reserued unto themselves, as proper unto the soueraigntie of their imperiall maiestie. So the Persian kings had also their Muphti, as the sanctuarie both of their publike and priuat lawes, who was still resiant in the great citie of Tauris. So had the Tartars theirs in the famous citie of Samarcand: and the kings of Afrike euerie one of them their Great Bishops also: who at Athens were called Nemophylaces, and in other places Thesmothetae. Whereby it is to be vnderstood, that such masters and interpretors of equitie when law ---aileth, ought still to be most wise and upright men, as also in most high authoritie and power placed.

And now verily if the lawes of Arithmeticall Iustice might take place but euen in[*](Arithmeticall Iustice vnfit to bee used euen in priuat iudgements.) priuat iudgements onely, as when question is of the exchange of things, then no doubt should in such priuat iudgements be seene, but all the question should consist in fact only: so that no place should be left for the opinion of the judges, neither yet for equitie, things being holden and shut up within most strict and strait lawes: which wee said could not be done, and if it could, yet will we forthwith shew the same to bee most vnfit and absurd. But yet first let vs shew, that publike iudgements neither can nor ought to[*](Geometricall pro portion of iustice in publike or penall iudgements, not to be admitted.) be handled or made according to the Geometricall lawes or proportion of Iustice. Which neuer to have bene before done, is manifest by all the lawes which carry with them amercements or fines, which are to be found in the laws of Draco, Solon, or of the Twelue Tables: as also by the lawes and customes of the auntient Saliens, Ripuaries, Saxons, English, and French men, where almost all the penalties are pecuniarie, and the same fines most often indifferently set downe as well for the rich as for the poore, according unto equall Arithmeticall Iustice. All which lawes were to be repealed if pecuniarie amercements and fines were according to the opinion of Plato, after the Geometricall proportion of Iustice, to be of the offendors exacted. These words also, Ne magistratibus mulctam poenamue lenire liceas, That it should not bee lawfull for the magistrat to mitigat the fine or penaltie: a clause most commonly annexed unto all penall

edicts and laws; were to no purpose, but to be quite omitted, & the matter left unto the discretion of the magistrat, at his pleasure to aggrauat or ease the fine or penaltie. Yea that law common unto al nations, whereby it is prouided, That the partie condemned not hauing wherewith to pay the fine due for the fault by him committed, should satisfie [*](An obiection against Arithmeticall proportion in exacting of fines.) the same with corporall punishment to be inflicted upon him, were also to bee abrogated and taken away.

But here perhaps some man will obiect & say, It to bee great iniustice to condemne a poore man in a fine of 65 crownes, for a foolish rash appeale by him made unto any the higher courts (as the maner with vs is) and yet to exact no greater fine for the same offence of the richest of all. For why, Geometricall proportion of Iustice, which exacteth sixtie crownes for a fine, of him which is in all but worth an hundred crownes, requireth threescore thousand crownes of him which is worth an hundred thousand crownes. For that the like Geometricall proportion is of threescore to an hundred, that is of threescore thousand to an hundred thousand. Thus we see the rich man by Geometricall proportion of Iustice, to be much more grieuously fined than the poore: and so contrariwise the Arithmeticall proportion of Iustice, in the imposing of penalties and fines, to be the meanes for the rich to vndoe the poore, and all under the colour of iustice. Which inconueniences our auncestors foreseeing, by laws gaue leaue unto the judges, beside the ordinarie fines, to impose extraordinarie fines also upon offendors, if the weightinesse of the cause so require: which maner of proceeding the antient Greeks also vsed, calling this extraordinarie manner of amercement or fine, ---, as Demosthenes writeth, and which is yet used by the Roman lawes: which draweth[*](Harmonical proportion of iustice best.) very neere unto the true Harmonical Iustice, if by the same lawes it were permitted unto the judges, or at leastwise unto the soueraigne courts to deminish also the fine, hauing regard unto the equalitie and condition of the poore and simple, as they alwayes do in the parliament at Roan. And whereas the receiuers of the fines requested of the the king, That it might bee lawfull for the judges to encrease, but not to diminish the fines imposed upon such as should rashly appeale▪ Liso---res the President, and D, Amours the kings Attourney, were deputed & sent from the parliament at Roan unto the king, to make him acquainted with diuers things concerning the demaine, & generall reformation of Normandie (wherein I then was a partie for the king) and amongst other things, to request him, That it might please his maiestie, not to constraine them to condemne all such as should rashly appeale unto the superiour courts, in the selfe same fine of threescore pound Paris: which vnto me seemed a thing vnreasonable, hauing also in antient time before bin done, by an edict of the emperor Claudius. In which doing the true Harmonicall Iustice should be obserued and kept, which in part equall, in part semblable, are alike; there should be an equalitie betwixt men of the middle sort of wealth, according to the Arithmeticall proportion of Iustice: and a Geometricall proportion also betwixt the great lords and the poorer sort: Whereof the former should in this case be left unto the disposing of the law, and the other unto the conscience and discretion of the judges. For there is nothing more vniust, than the perpetuall equalitie of [*](Nothing more vniust, than the perpetuall equalitie of fines and punishments.) fines and punishments. For proofe whereof let the law but lately made by king Charls the ninth concerning apparell, serue for an example: whereby a fine of 1000 crownes was imposed upon all such as should either much or little transgresse the same, without respect of any the offenders abilitie, age, or condition: with prohibition for the judges in any sort to mitigat or lessen the same. Which law concerning all men in generall, and yet made by Arithmeticall proportion of Iustice, was shortly after by the iniquie of it selfe rent in sunder, and by the magistrats themselves, as well as by other priuat men neglected. Whereas the law of Philip the Faire concerning apparell was much

more iust and indifferent, as neere approaching vnto Harmonicall Iustice: and appointing diuers punishments, according to the diuersitie of the offendors; as unto a Duke, an Earle, a Baron, and a Bishop, a fine of an hundred pound, the Banaret fiftie pound, the Knight and pettie Landlard fortie, Deanes, Archdeacons, Abbats, & other clarkes, hauing dignities or ecclesiasticall preferments, 25 pound: unto the other lay men offending, of what estate soeuer they were, if they were worth a thousand pound, was appointed a fine of twentie five dound: and if they were worth lesse, they were to pay an hundred shillings: the other clearkes without dignitie or promotion, were they secular or religious that offended against the law, paid the fine of an hundred shillings, as did the others, Wherein we see vnequall punishments appointed for persons vnequall, following therein Geometricall Iustice: and yet for all that we see also equall punishments for persons vnequall, following therein Arithmeticall Iustice: and both the one and the other so mixt together, as that thereof ariseth also that Harmonicall Iustice which we so much seeke after. The same proportion is obserued in the law, allowing of every mans apparell and attire also: as where it is said, That no woman citisen should weare a chaine: also that no bourgesse or common person of either sexe, should weare any gold or pretious stones, neither girdles of gold, nor any crowne of gold or siluer, or any rich furres; which is not forbidden the nobilitie, and yet in them also there is some difference: as in that it is said, That the Duke, the Countie, the Baron, which hath six thousand pound land, may make themselves foure new sutes of apparell in a yeare, but no more; and their wiues as many: and gownemen, and clearkes, which have no dignities nor preferments, should not make them gownes of cloath aboue sixt---ene shillings the elne Paris; & for their followers not aboue twelue shillings. Many other such like articles there were, and yet was there no mention neither more nor lesse either of silke or veluet, or other such like thing. So that hee which would in[*](Geometrical proportion of iustice not possible to be kept in the making of penall lawes.) penall lawes particularly keepe Geometricall Iustice, in setting downe the penalties according to the equalitie of the offences, and abilitie of the offenders, shall neuer make penall law: For that the varietie of persons, of facts, of time, and place, is infinit and incomprehensible; and such as should alwaies present unto the judges, cases stil much vnlike one of them unto another. So also the perpetuall equalitie of penalties according [*](Arithmeticall equalitie in the appointing of penalties, vnreasonable and vniust.) to Arithmeticall proportion, is as vniust and vnreasonable, as if a Physitian should prescribe the same medicine to all diseases: as is to bee seene by the lawes of the Romans concerning the charges to be bestowed at feasts & banquets: wherby the morsels were equally cut unto all euen alike, and the penaltie also equall without respect of rich or poore, of noble or base: amongst whome yet it had bene no hard matter to haue kept the Geometricall proportion, as neerest unto true iustice, every mans wealth beeing with them enrolled in the Censors bookes: whereas with vs at this present it were a thing most hard, or rather impossible so to do▪ as hauing no Censors, by whom mens wealth might be reasonably knowne. But the Popular estate of the Roman Commonweale still sought after the Arithmeticall equalitie of lawes and penalties. Which equalitie the estate being chaunged into a Monarchie, the princes by little and little changed, and so moderated the penalties before upon the nobilitie imposed; as is by the rescript of Antoninus Pius vnto the gouernour of one of the prouinces to be seene: who had in hold a noble gentleman conuict before him, for murdering of his wife by him taken in adulterie: wherein he willed him to moderat the penaltie of the law Cornelia; and if the murtherer were of base condition, to banish him for euer, but if hee were of any dignitie or reputation, that then it should suffice to banish him for a time.

Now it is a notable difference in termes of iustice, that the qualitie and condition of the person should in iudgment deliver him from death, who should otherwise have

bene condemned: for the murtherer sayth the law, ought to be put to death, i--- hee be [*](The qualitie and condition of the person to be in the making o penall lawes, and inflicting of punishments much respected.) not a man of some dignitie and honour. And the Law Viscellia willeth that the stealers of beasts, if they bee slaues, should be cast unto the wild beasts; but if they were freemen, they should be beheaded, or condemned into the mynes: but if they were of any nobilitie, it should then suffice to banish them for a time. In like sort also, that the burners of villages or houses should bee giuen unto the beasts, if they were men of base condition: but if they were of any noble house, then to be beheaded, or els confined. And generally, the slaues were euer more seuerely punished, than were men by state and condition free: for these were neuer beaten with rods, or with small cudgels, whereas the slaues were still beaten with clubs, or els whipt with whips made of small coards. Howbeit that Plato sayth, That the free Citisen ought to bee with greater seueritie punished, than the slaue; for that as (sayth he) the slaue is not so well taught as is hee: which his opinion sauoreth indeed of a Philosopher, rather than of a Iudge or of a Lawyer; yea the law of God delivereth from death the master, who in too seuere correcting of his slaues, shall by chaunce kill him. And therfore it ought not to seeme strange, if the father were by the people of Rome openly stoned, for whipping his son with whippes as a slaue, as Valerius writeth. And indeed amongst free borne men, the Citisen is lesse to be punished than the stranger, the noble lesse than the base, the magistrat lesse than the priuat man, the graue and modest lesse than the vicious and dissolute, and the souldier lesse than the countreyman. Wee must not (sayeth Labeo the Lawyer) suffer a base fellow to enter an action of fraud against a man of honour and dignitie: neither an obscure and loose prodigall man against a modest man of good government; yea the auntient Romans neuer condemned any Decurion, or Captain of ten men (for what fault soeuer hee had committed) into the mynes, or to the gallowes. The night theefe sayth the law, if hee shall with weapon stand upon his defence, is to be condemned into the mynes; but men of reputation and qualitie offending, to bee onely for a time banished, and souldiers with disgrace cassiered. Neither[*](Geometricall pr potion of punishing, common almost unto all people.) must wee thinke this Geometricall manner of punishing to haue bene proper unto the Romans, or to any other people in particular onely, but to have beene common almost unto all other people also, as namely unto the French, the Saliens, the English, and the Ripuaries: and yet must wee doe as doe the barbarous Indians, which for the same offences set downe most grieuous punishments as well for the noble as the base, without any proportion at all; and yet in the manner of the executing thereof make great difference: for of the baser sort they cut off their noses and eares, and for the same offence cut off the noble mens haires, or the sleeues of their garments: a common custome amongst the Persians, where they whipped the garments of the condemned, and in stead of the hayre of their heads, pluckt off the wooll of their caps.

Neither are wee to stay uppon the opinion of Aristotle, who would Geometricall[*](Aristotle his opinion concerning the execution of Geometricall and Arithmeticall Iustice, reiected.) iustice to take place in bestowing of rewards, and diuiding of spoyles: but Arithmeticall iustice equally to bee executed in the inflicting of punishments, which is not onely to ouerthrow the principles of Philosophy, which will that things contrarie, as reward and punishment, should be ordered by the same rules, but also the resolution of all the greatest Lawyers and Law-makers that euer were: with whom also the Canonists,[*](Nobilitie in penalties to be inflicted, favoured euen for the vertues of their auncestors: and the iniuries vnto them done, more seuerely punished) the Orators, the Historiographers, and Poets in opinion agree, and have alwaies more easily punished the noble than the baser sort: (howbeit that the most easie punishment of all may unto a noble man seeme most great) that so others may bee the more enflamed vnto vertue, and the loue of true nobilitie, when as they shall vnderstand the remembrance of the infinit rewards of the vertue of most famous men, and

such as have well deserued of the Commonweale being also dead, yet still to redound unto their posteritie. But here I measure nobilitie by vertue, & not by mony, the flowre of youth, the princes favour, or euill meanes whatsoeuer obtained. The auntient nobilitie of M. Aemilius Scaurus (as saith Valerius) saued his life euen in flourishing time of the Popular estate: which respect of nobilitie was yet much better kept after the change of the estate; for then they began by little and little to behead the nobilitie with a sword, after the manner of the Northerne people, in stead that the Romans before used the hatchet in the execution of all sorts of men. And for that the Centurion sent to execute Papinian (the most famous lawier, Traian the emperours neere kinsman, and before proclaimed the defendor both of the emperours and of the empire) had with an hatchet cut off his head, he was therefore sharply reproued by the emperour Caracalla, telling him, That he ought to have executed his command with a sword, as which had lesse paine, and also lesse infamie. Wherein Gouean the lawyer was deceiued, who writeth more griefe to have bene in the execution with the sword, than with the hatchet, Men die (saith Seneca) more easily with no kind of death, than being beheaded with the sword. And by the same reason and proportion of Iustice, hee that wrongeth a noble man is more grieuously to be punished, than hee which wrongeth a common person; & he which doth iniurie unto a citisen, than he which doth iniurie unto a stranger. For in the lawes of the Salians, if a Saxon or Frizlander had any way wronged a free borne Salian, he was almost foure times more grieuously fined, than if a Salian had wronged a Saxon or a Frizlander. So also by the lawes of Alphonsus the tenth, king of Castile, a wrong done unto a noble man was fined at five hundred shillings, and a wrong done unto a common person at three hundred. And by the like law of Charles the Great, he that had slaine a subdeacon was fined at three hundred shillings, if a deacon at foure hundred shillings, if a priest▪at five hundred, if a bishop at nine hundred: which penalties (the authoritie of the bishops being encreased) were doubled. I here speake not of the equitie or iniquitie of these lawes, but vse them onely as examples, to shew that Arithmeticall Iustice by the lawes of many nations, neither hath had, neither yet ought to have place, when question is of fines and punishments; and that men of honour, and of marke, ought more easily to be punished, and their iniuries more seuerely revenged, than those done to the common sort: wherat they yet oftentimes grudge & murmute, and thinke themselves to be therein greatly wronged. Yea Andrew Riccee a Polonian writeth it to be a great iniustice, That the nobilitie offending are not punished with the same punishment that the common people are; the rich as the poore, the citisen as the straunger, without any respect of degree or persons: than which nothing could bee more absurdly written, of him which would take upon him to reforme the lawes and customes of his owne countrey and Commonweale. The like complaint was against N. Memmius Maister of the Requests in court, for that he being by the king appointed judge in the triall of Vlmeus the president, had suffered the man conuicted of most capitall crimes to escape the punishment thereunto due, and yet had condemned his clearke to be hanged, who had but done his maisters commaundement: Which king Francis understanding, merirly said, theeves by a wicked consent to releeue one another. Howbeit that Memmius a man most famous not onely in his issue, but also for his wealth, honours, vertue, and deepe knowledge in the law, is releeued euen by the equitie of his sentence; whereby he depriued the said president of all his honours and goods, and afterward hauing caused him to bee most shamefully set uppon the pillorie naked, and marked in the face with an hoat yron, to bee banished. But for that his clearke and domesticall seruant, and minister of such his villanies, was but a base and obscure fellow, hauing neither goods nor office to loose, neither much regard of his good name, he could not otherwise worthily be punished than by death, hauing so well deserued the same. Whereas had he bene his slaue, he had bene more to have bene favoured, for that then he must of necessitie have obeyed his maister. Neihad the president bene so grieuously punished, had he not being a judge, unto his most base and corrupt dealings ioyned also most shamefull forgerie and extortion, and that in the administration of iustice, which he had as then in keeping. For this prerogative hath alwayes by our auncestours bene reserued unto the nobles, and such as otherwise are in honourable place, That being for any offence or crime condemned to die, they should not therefore be hanged, for the infamie of the punishment: wherein all writers agree. Howbeit that concerning other punishments they are not all of one opinion, Seneca (as we said) accounting heading for the easiest: and the Hebrewes in their Pandects, in the [*](Hanging the most shamefull death, heading the easiest, stoning the most grieuous.) Title of Punishments, appointing stoning for the most grieuous, the second burning, the third beheading, and the fourth strangling. Howbeit that they deeme him most infamous, and by the law of God accursed, which is hanged on the tree.

and in this Bartholus (the famous lawyer) is deceiued, saying, That the manner and custome in France, was to hang the noble or gentlemen condemned: and that that punishment was not there accounted villanous or infamous, seeing that in his time (which was in the raigne of Philip the Long, about the yeare of our Lord 1318) the nobilitie of Fraunce was as famous and as honourable, as the nobilitie of any place of the world. Yet true it is, that the noble man which is a traytor vnto his prince, deserueth to be hanged; so to be more grieuously punished than the base companion, who offendeth not [*](Noble man for treason against their soueraigne prince, why to be more seuerely punished than other meaner persons.) so much as he, as not so straitly bound to preserue the life and estate of his prince. For the more a man is obliged and bound in fidelitie unto his prince, the more grieuously he is be punished aboue the common person: Viri fortes (saith Cicero speaking of Catilin the rebell) acerbioribus supplicijs ciuem pernitiosum quàm acer bissimum hostem coercendum putant, Worthy men (saith he) iudge the daungerous citisen to bee with greater punishment chastised, than the cruellest enemie that is. And therefore Liuie saith, the fugitiue traytors during the Carthaginensian warre, to have beene more seuerely punished, than the fugitiue slaues: and the Roman traytors more sharply than the Latines, who were then still beheaded, but the Roman traytors hanged. Howbeit that in all other offences the Romans were more easily punished than others. For Scipio Africanus (saith Florius) caused the Roman souldiour not keeping his ranke, to bee beaten with a vine, but other souldiors with a trunchion or cudgell of other sadder wood: the vine (as saith Plinie) being the dishonour of the punishment.

Yet whereas we said, That the punishment of noble men ought to bee more easie than the punishment of the base and obscurer sort, that so others might bee the more stirred up unto vertue; it is a common opinion, and almost of euerie man receiued: but not yet altogether true. For that in right Geometricall proportion, the noble man for[*](The noble man for his offence hauing lost his honour and reputation, to be as grieuously punished, as the common person that is whipt.) his offence hauing lost his honour and reputation, is as grieuously indeed punished, as is the base companion that is whipt, who cannot indeed of the honour and reputation which he hath not, loose any thing: as children and women are no lesse hurt with a soft ferula, than are the strong with cudgels or whips. And therefore Scipio commaunding the Roman souldiors to be beaten with the vine, euen for the same cause for which he commaunded the Latine souldiors to be beaten with cudgels, followed therein the equalitie, or rather the Geometricall proportion of punishment. For which cause Galba the emperour caused the Gibbet to be painted white, and set higher than the rest, to lessen the paine of a citisen of Rome, complayning that hee should bee hanged as other theeves were: howbeit that he had poisoned his pupill. So if a Physitian or an Apothecarie shall poyson a man, he is more grieuously to be punished than if another man

had done it. And so in the same proportion of iustice, the judge which doth iniurie, the [*](He which offendeh in his owne vocation, or in such things as wherewith he is put in trust, to be therefore more seuerely punished than other offending in the same.) priest which committeth sacrilege, the notarie or register which committeth forgerie, the goldsmith which coyneth false money, the guardian which rauisheth his pupill, the prince which breaketh his faith and league; and generally whosoeuer offendeth in his owne vocation, and in such things as whereof he is himselfe a keeper, ought to bee therefore the more grieuously punished than others: for that his offence is therein the more grieuous. And therefore Metius the Dictator of the Albans, was by the commaundement of Tullus Hostilius, with foure horses drawne in peeces, for hauing broken his faith with the Romans. And Solon hauing caused his lawes to be published, and sworne by all the Athenians, appointed the Areopagits to be the keepers and interpretors thereof; and if they should breake the same, to pay therefore a statue of gold of the weight of themselves. Now had Aristotle himselfe neuer so little a while bene a judge, or looked into the lawes of his countrey, he would neuer have written, That the equal Arithmeticall Iustice were to be obserued and kept in the inflicting of punishments: but that in all things, and especially in matters of punishments, the Geometricall proportion of Iustice were much better and more tollerable; as neerer unto the Harmonicall Iustice which we seeke after, being partaker of both. Neither by this Harmonicall[*](Harmonicall Iustice to be indeed unto all men indifferent, howbeit that at the first shew it seeme more favourable unto some than unto others.) proportion is more favour shewed unto the noble than unto the base, howbeit that unto many it seeme contrarie. For proofe whereof, let it be, that a rich man and a poore being guiltie of the selfe same crime, the rich man is in shew more grieuously fined than the poore: howbeit that in truth the one is not more heauily fined than the other, but both of them indifferently according to their wealth and abilitie. There is with vs a most auntient law extant, whereby the poore common persons which make resistance against the magistrat commaunding them to be apprehended, are fined at threescore shillings; but the noble man at a thousand and two hundred. And for that money is[*](Fines oftentimes to be changed, according unto the varietie of times and places.) more plentie in one place than in another, and in this our age than in antient time, wise lawmakers have bene constrained to chaunge their pecuniarie punishments or fines, according to the varietie of times & places. In the flourishing time of the Roman Commonweal, & namely under Traian the emperor (who is reported to have extended the bounds of that great empire farthest) he was by the law accounted a poore man, which was not worth fiftie [*](A crowne was then as much worth as the Roe noble is now. Who was by the auntient Roman lawes to be accounted a poore man.) crownes, that is to say a crowne of gold. Which decision of the Romans, the Hebrewes in their Pandects following, have forbidden all them that are so much worth to begge. The customes of Fraunce in many places, call him a poore man, who with two or three witnesses of his owne parish, hath sworne himselfe to be poore.

But when the lawes of the Twelue Tables were made, the pouertie of men was so great, as that he was accounted a right rich man, which was worth a pound of gold. And therefore the Decemuiri by those lawes set downe a fine of twentie five Asses, or small peeces of brasse, for him which should with his fist giue any man a blow uppon the face: which was an heauie penaltie (as the world then went) for that it was by Arithmeticall proportion indifferently exacted of all men alike. But after that mens wealth encreased, one Neratius a rich fellow (as the time then was) and most insolent[*](The insolency of Neratius, the cause why the lawes of iniuries were changed in Rome.) withall, tooke a pleasure to giue such as he thought good, as he met them in the streets, a good and sound buffet or box; on the eare and so by and by commaunded a slaue, which carried a bagge full of such small coyne after him, to pay unto him whome hee had so strucken twentie five of those small brasen peeces, the ---ine set downe in the xii Tables: which was the cause that the law was abrogated, and order taken, that from thenceforth every man should esteeme the iniurie unto himselfe done yet with power still reserued unto the magistrat, to do therein as should seeme unto him reasonable.

Whereby it was then plainely perceiued and knowne Arithmeticall proportion not to be good in the imposing of penalties and fines. So also by the auntient customes of the Normans, he that strucke a common person with his fist, was fined at a shilling; but he that strucke him with his open hand, was to pay the fine of fi---e shillings: but were he a gentleman that had receiued such iniurie, he was not to redresse the same by law, but by force of armes and combat: whereby it oftentimes came to passe, that hee which had before receiued the iniurie, was also in the quarrel slaine, without any punishment therfore, and that by the sufferance of the law. The like we may say of the Athenian law, which condemned him in an hundred crownes fine, which should presume to cause a galliard to be daunced in the Theatre: which Demades the Orator well knowing,[*](Demades at Athens wilfully transgreseth the law, and paith the fine.) yet to make his playes which he gaue unto the people more gratious, amongst the musitians brought in also upon the stage a dauncing trull there to daunce; yet before she entred, paying the aforesaid fine of an hundred crownes by the law set downe, which was indeed nothing else but a mockerie of the law, and a cause for others also to tread both it and the rest under foot. VVhich inconueniences the Polonians to auoid (for that almost all the penalties of their lawes are fines in money) alwaies ioyne unto their lawes these or like words, Lex haec quia poenalis est annua esto, This law for that it is penall let it be but for a yeare in force.

But beside these chaunges of penalties and fines, some others have beene constrained[*](Penalties & fines sometimes changed into corporall and capitall punishments, and why.) to chaunge such pecuniarie penalties or fines into corporall, yea euen into capitall punishments also: and that especially when the countrey groweth rich, so that men begin to contemne the fines, or that the offence groweth too common: in which cases the Hebrew lawyers are of opinion, That the penalties of the lawes are to bee encreased, and punishment with rigour executed. And therefore the law of the Britons appointeth theeves to be hanged, yeelding therefore this reason, Ne eorum a---geatur multitudo, Least the multitude of them should be encreased. An vniust law indeed, and the reason thereof foolish; and such a law as by the antiquitie of it selfe is almost growne out of vse, for that it hath no distinction either of place, or of the equalitie of the persons offending, or of the age, or of the sexe, or of the time, or of the felonie committed; but punisheth all felons alike. When as in all executions of punishments, the lighter offences are the more lightly to be punished, yea and oftentimes also pardoned: as only in respect of age, the indifferent and equall law would that men should in all iudgements pardon youth, or at leastwise more easily punish it. So ought the judges also[*](Why women are more favourably to be punished than men.) more favourably to chastise women than men: either for that their passions are more vehement than men, or that for want of reason, discretion, and learning, they are lesse able to gouerne their affections: or for that they be more tender and daintie, and therefore have the sharper feeling of punishment than men. Which beeing so, a man may deeme the law of the Venetians vniust, which for the first felonie committed, condemneth[*](The iniquitie of the Venetian law in the punishing of women.) the woman to be whipt, and marked with an hoat yron; and after that her hand cut off: and for the second offence, to have her nose and lips cut off: whereas the man by the same law, and for like fact, is to lose but one of his eyes and his hand. By which law women, contrarie unto equitie, are more seuerely punished than men: & the means whereby to get their liuing being taken from them, they both have more occasion to steale than before whilest they had their limmes. Wherefore better it were according to Arithmeticall Iustice (howbeit that in matters of penalties it be vniust) to punish them both alike: or else according to Geometrical Iustice, which commeth much neerer unto the true Harmonicall Iustice, which hath regard in particular to all the circumstances concurring. But that law and judge is verie vn---ust, which more seuerely punisheth the tender and feeble, young folkes or women, the sickly or old, than the

strong and lustie. And in briefe all lawes carrying with them penalties certaine, and [*](All lawes carrying with them penalties certain, which may not y the judge or magistrat be in some sort moderated or aggrauated, to be vniust.) such as it is not lawfull for the magistrat according to the exigence of the cause, to moderat or aggrauat, are vniust. Wherein euen the wisest and best experienced may well be deceiued, if they have not this Harmonicall Iustice still before their eyes. For where is there in the world so great wisedome, so great iustice, such a number of learned law yers, as in the court of parliament at Paris? who yet without any restriction or limitation at all, published a law against falsi---iers and forgers, made by king Francis the first, whereby capitall punishment was appointed for forgerie, whether it were in civill or criminall causes, without distinction of forgers, ---udges, clearkes, notaries, souldiours, or plaine countrey men. Which law for all that by the wise conniuence of that court is since growne out of vse: howbeit that the penaltie thereunto annexed yet remaineth to terrifie forgers withall: whome for all that the court punisheth with arbitrarie punishment, according to discretion, and not according to the rigour of the law, in such sort as that scarcely one of fiftie is condemned to die. For why, the same court shortly after perceiued the intollerable inconueniences and absurdities which that law drew after it, punishing with death him that had falsified but the least scedule of an hundred shillings, as well as him that had falsified the decrees of the court, or the kings seale, or borne false witnesse to condemne the innocent; as also for a meere civill cause, where question were but of fiue shillings: and all without regard or difference of persons. Neither is the law of Venice any better or upright, which appointeth no lesse punishment for falsifying and forgerie, than the cutting out of the tongue: without any distinction of the manner of the forgerie, or respect of the degree, sexe, or age of the offendor, or other circumstances whatsoeuer. But the law of Milan sauoureth more of equitie and Harmonicall Iustice: for it willeth, That he which forgeth or falsifieth an act, or beareth false witnesse in a matter which exceedeth not twentie crownes, shall for the first time be condemned in foure times the value, and three dayes shamefully to bee carried about with a paper myter upon his head: and for the second time to have his hand cut off: and for the third time to be burnt. But if the cause exceeded twentie crownes, and so unto the summe of five hundred, that then he should for the first time have his hand cut off, and for the second time be burnt. But if so be that the matter exceeded five hundred crownes, that then the judge for the first time might deale with him according to his discretion, but that for the second offence the forger should be burnt. Wherein both the Geometricall & Arithmeticall proportion of iustice are in some sort mixt, as in the measure and proportioning of the fine: but without any regard of sexe, age, or condition, which it beseemed a lawmaker especially to have marked. The law of God (of all[*](The false witne▪ how he is by the law of od to b punished.) other lawes the best) commaundeth the man conuict of false witnesse bearing, to endure so much losse himselfe, as he would have done hurt unto the other: as if he would by his false witnesse take from another man an hundred crownes, hee should bee forced himselfe to pay the selfe same summe: or if hee went about by his false testimonie to take away another mans life, that he himselfelfe should therefore loose his owne life: as for the rest they were referred unto the conscience of the judges. Neither is it enough for this equalitie of punishment to aunswere as did Draco the Athenian lawgiuer, who being asked, Why he appointed death as well for stealing of an apple, as for killing of ones father: aunswered, That he would have appointed a more grieuous punishment for killing of a mans father, if he had knowne any punishment worse than death. But Lycurgus left all kind of punishment, yea and that concerned every man else as well in publike as in priuat iudgements, unto the discretion of the magistrats: whom he doubted not to excell in all fidelitie and integritie, so long as they should keepe his lawes and customes: but yet haply fearing that in restraining of the magistrats power unto the strait bonds of lawes and penalties, should so fall into such absurdities and difficulties of iudgements, as we have before spoke of: and wherewith they are i--- Popular estates, but especially in Italie, much troubled. By the law of the Venetians hee that shall so strike any man, as that he shall draw blood of him, is therefore to pay twentie five pound: but if he kill him, he is therefore to be hanged. Which law if it might every where take place, how many men should we find like unto Neratius, who uppon such a price would soundly buffe--- and bastinado such as they liked not of, as they met them. But how much more wisely did the emperour Adrian in like case take order, appointing[*](The wise law of Adrian the emperour.) him that went about to kill a man, although indeed he killed him not, to bee therefore worthy of death: and yet that he which had indeed slaine a man, without any purpose so to have done, should be therefore acquited. For that offences are to be weighed [*](Offences how they are to be weighed and punished.) according to the will and purpose of the offendor, and not according to the euent of the fact: howbeit that the purpose and endeuor is more easily to be punished, than the effect and deed it selfe; and the conceit of a villanie lesse than the villanie it selfe done: wherein all the diuines with the lawyers agree. Howbeit that in truth hee more greeuously offendeth against almightie God, which persuadeth another man to do a villanie, than he which doth it: for that beside the wickednesse first by himselfe conceiued, he leaueth also the lively impression thereof engrauen as it were in another mans hart: whereas he which of himselfe doth amisse, carried headlong with the force of lust or anger, seemeth scarcely to have bene willing to have done it: and hee which hath against her will enforced an honest woman, whome hee could not otherwise persuade, yet leaueth her soule and spirit pure and cleane. But judges doe one way punish and[*](Iudges and Philosophers diuersly do consider offences.) consider of offences, and Philosophers another: they punish such offences and transgressions onely as are sensibly to be seene, and which a man may as it were with his finger touch, and such as trouble the common rest and quiet: but these men (viz. the Philosophers) enter euen into the most secret thoughts & cogitations of mens minds: wherein Sir Thomas Moore, sometime Chauncellour of England, is also deceiued, who maketh the intent equall to the effect: and the will unto the deed done.

But if an offence be not onely intended, but effected also, and so the effect ioyned[*](Arithmeticall Iustice not to be used in the punishing of offences) unto the intent; we must not in the punishing thereof vse Arithmeticall proportion of iustice: as in the law of Milan, hee that shall without the citie steale the value of a crowne or more, is therefore to be put to death; but if lesse, the punishment is left unto the discretion of the judges: and yet for all that in this realme he is punished with death as a theefe which hath by the high way robbed any man, whether hee had money or none: as I have indeed seene one hanged for taking but eighteene pence from a traueller by the high way. The Roman lawes commaund notable theeves and robbers to be hanged, and so left hanging upon the gibbet: which then was accounted the most grieuous punishment: but they then by the word Latro, vnderstood him whom we cal an Assasin, or Murtherer, which killeth men upon the high way: but as for him which but robbeth passengers, the law calleth him Grassatorem, and willeth him also to bee condemned to death, but yet not hanged as the murtherer. Which wee have here the more precisely set downe, to note the errour of Accursius and some other the learned lawyers, who call him also Latronem, or a robber, whome the Latines call Furem, or a theefe; making them as it were all one: and hauing in part therein giuen occasion for men to punish theeves with more grieuous punishment than haply were meet and convenient, viz. with death.

The like absurditie is seene almost in all the lawes of Italie: as in that of Venice concerning[*](The vnreasonable law of the Venetians for the punishing of thef.) theft, which willeth to put out one of his eies which shal steale any thing worth aboue five pound, unto ten; and from ten unto twentie, to put out one of his eyes, and

to cut off one of his hands: and from twentie vnto thirtie to put out both his eyes, and from thirtie to fortie to loose his eies & an hand: but if he shall steale aboue the summe of fortie pounds, then to be punished with death. An vnreasonable law truly, not onely for the rigour and hardnesse thereof, and the confused manner of the persons so to be equally punished, but euen in this respect also, that he which hauing the meanes out of a great masse of gold, to steale a thousand pounds, and yet contenteth himselfe with fiftie, shall therefore be punished with death: and hee that breaketh an emptie chest, with an intent to have taken away a great summe of money if he could, shall yet escape vnpunished. The same punishments almost are also set downe by the law of Parma. Yet hath it oftentimes seemed unto me a thing right straunge, why some which vse so seuere punishment against theeves, yet punished murders but by fines in money. For we see plainely, that the paine of death is too cruell to revenge a simple felonie, and yet not sufficient to restraine the same: and yet the punishment of him that doth both rob[*](Equalitie of punishment for vnequall offences, the occasion to has the greater offences committed.) and kill, to be but like: in which doing he hath more suretie to commit the murther, as also more hope to conceale the same. So that where the punishment for theft and murder is alike, there it is more saftetie to kill a man, than simply to rob or steale. And yet more straunge and absurd are the lawes of the Polonians, the Danes, the Swedens, and Moscouits, and especially the law of Casimir the Great, king of Polonia, which for[*](An vnreasonable law for the punishing of murder.) the fine of thirtie crownes, acquiteth one gentleman that hath slaine another: and if he haue maimed him of an arme or of a legge, then to bee acquited for fifteene crownes. But if a base fellow shall kill a gentleman, the fine is double, and if he shall kill a base or common person, the fine is but ten crownes, without any other corporall punishment, although he had laine in wait to kill him. Which impunitie for the killing of men being suffered, or rather by law allowed, innumerable murders thereof ensued. Howbeit that afterwards the kingdome encreasing in wealth, the penaltie of the law was doubled in the raigne of Sigismund the first, and order taken, that the murderer beeing apprehended, should beside the fine be also kept prisoner in the common gaile for a yere and six weekes. But that which was in that law worst of all, and the head of all mischiefe, was, that after three yeares the offendor might prescribe against the murder by him committed, whatsoeuer it were: neither could the lord which had slaine his vassall farmer (whome they call K---eton) be therefore either civilly or criminally called into question or sued. For a like edict or law made at Milan (at such time as the Torresans held that Seigneurie) whereby it was decreed, That a gentleman might for a certaine fine be acquited for the killing of a base or common person: the common people therwith enraged, rise up all in a mutinie, & hauing driuen out the nobilitie possessed themselves of the Seigneurie. As for the author of the law Napus Tarresan, he by them cast in prison, there miserably died eaten up with lice, and that worthily, for hauing therein so much contemned the law of God, which forbiddeth to have pitie upon the wilfull murderer, commaunding him to be drawne euen from his sacred alter and put to death: yet leauing unto the discretion of the magistrat the manner of his execution, according to the greatnesse of the murder committed; to the end that the equalitie of capitall[*](Hainou offences to deserue more grieuous punishments.) punishment common to all murderers by Arithmeticall proportion of iustice, should so by Geometricall proportion be moderated, hauing respect unto the circumstances of the place, of the time, and of the persons, which are infinit. For men right well knowe, that he which wilfully killeth a man (as lying in wait for him) is more grieuously to be punished, than he which killeth a man in his rage and choler: and hee which killeth by night, more than he which killeth by day: and he which poysoneth a man, more than he which killeth him with the sword: and the murderer by the high way worse than those: as also he that shhall kill a man in a sacred place, more than in a prophane: and before his prince, more than in any other place: (which is the onely irremissible case, by the laws of Polonia) & he that shal kill the magistrat executing of his office, more than if he were a priuat man: and he that shall kill his father, more than he which shall kill the magistrat: and he which shall kill his prince, more than all the rest. Of which varietie of cases ariseth an incredible varietie of capitall punishments to bee upon the offendors inflicted. The same we may say also of such persons as are still under the guard and protection of other men, of whome they cannot possibly be aware; as the pupill of his tutor, the wife of her husband, the sicke patient of his physitian; the guest of his hoast, betwixt all whome faith is much more required: in which cases the murderers are still more grieuously to be punished. As in like case the breakers of houses, and they which by ladders clime into houses by night, deserue to be more seuerely punished, than such as shall steale in, the doores standing wide open. And therefore in Tartarie and Moscouie the least theft of all is punished with death: for that there are but few townes and houses for them to keepe themselves and their goods in. And in the West Indies, before the comming of the Spaniards, the theefe was still alive upon a sharpe stake impaled, for whatsoeuer theft it was. For why, all their gardens and grounds are bounded about but with a thrid, beyond which to passe was accounted a great crime: and yet greater than that it was to breake the thrid; and that in secret also than openly and in every mans sight. Howbeit that in other crimes, as whooredome, adulterie, incest, and such other like, the offences publikely committed, are more seuerely[*](Open offences to be openly punished.) to be punished, than such as are secret done: for that the euill example and scandall thereof, is worse than the offence it selfe. Wherein both the diuines and layers all agree.

All these circumstances, with a million of others like of diuers sorts, cannot all after one fashion be cut, or by the selfe same law be iudged, according to the vnequall equalitie of Arithmeticall Iustice: neither can they in speciall lawes and articles bee all comprehended, were the volume of the law neuer so great: so as is in Geometricall Iustice requisit, which leaueth all unto the magistrats discretion, without any law at all. And yet for all that is this Geometricall Iustice lesse vniust than the other, which leaueth nothing vnto the power and authoritie of the judge, more than the examination of the fact, and the numbring of a sort of beanes, as at Athens: or of tables of diuers colours, [*](Arithmeticall equalitie in the administration of iustice, and the punishing of offences, the cause of great iniustice▪) with letters of absolution or condemnation set upon them, as at Rome: or of certaine balles and lots, as at Venice: without any power to iudge at all. For why, it is the law, and not the judge, which appointeth the same punishment for all: of which equalitie of iustice ariseth the greatest iniustice, some such being condemned, as deserued much lesse than the penaltie of the law being equal vnto all: and some others againe acquited, which deserued ten times more: besides that, sometimes also diuers most vnlike crimes some great, some lesse, and some almost none at all, are under one law passed, and so with the selfe same paine punished. As by seuen articles of the Salique law, robbers, poisoners, adulterers, burners of houses, and such as have slaine or sold a natural French man, or have digged up the bodie of the dead, are all condemned in the selfe same fine of two hundred shillings. Which law altogether ouerthroweth the foundation of iustice, grounded especially upon that, That the punishment should still bee equall unto the offence done. Which the auntients declared by this word, ---, that is to say, The law of Retribution, or of equall punishment: which first written in the law of[*](That the punishment ought to be equall unto the offence done.) God, set downe in the lawes of Solon, transcript into the lawes of the Twelue Tables, commaunded by the Pythagorians, practised by the Greeke and Latine cities, and for the antiquitie thereof reuerent; is yet by Fauorinus, Aristotle, and many others, without iust cause impugned; they too grossely taking these words of the law, Atooth for

a tooth, a hand for a hand, and an eye for an eye. For who is so simple, as to think, that he [*](How the words of the law, A tooth for a tooth, a hand for a hand, and an eye for an eye, are to be vnderstood.) which hath malitiously put out his eye which had but one, to suffer the like if but one eye be therefore taken from him also? Wherefore hee is to bee quite depriued of his sight, that is to say, requited with like; which cannot be, but by putting out of both his eyes: except the blind man may otherwise be satisfied. As was decreed by the people of Locris, at the request of one which had but one eye, which his enemie threatned to put out, upon the penaltie therefore to loose another of his owne. Wherefore then to render like for like, is to make him also starke blind, who had made another man blind. So that to requite like with like, is indeed nothing els, but to punish offences with punishments aunswerable unto them: that is to say, great offences with great punishments, meane with meane, and so little offences also lightly: which they also meant, when they said, A hand for a hand, a tooth for a tooth, and an eye for an eye. And so the auntient Hebrewes, the best interpretors of God his law, have vnderstood it, expounded it, and also practised it: as is in their Pandects to be seene, in the Title of Penalties. Yea Rabi Kanan denieth the law of like punishment to have any where in the cities of the Hebrewes taken place, in such sort, as that he should have an eye put out, which had put out another mans eye: but the estimation of the eye put out, was vsually by the discretion of the judges in money valued. For proofe whereof let it be, that before the law of like punishment, there was a [*](Exod. 21.) law, wherby it was ordained, That if two men fighting, one of them should hurt another, but not yet unto death, hee which had done the hurt, should pay the Physitians for the healing thereof. But to what end should he so pay the Physitian, if he which did the hurt were in like sort to be himselfe wounded? It should also thereof folow more absurdly, that many delicat and tender persons, in receiuing of such wounds as he had giuen to others, should thereof themselves die and perish. Besides that also, he which had the harme done him, hauing lost his hand wherewith he should get his liuing, if the others hand were also to be for the same cut off; he so wanting his hand wherewith to get his liuing, might haply so starue. Wherfore such a literall exposition of the law of like punishment, by Aristotle and Fauorin deuised, is but vaine and deceitfull. But Aristotle who so much blameth the law of like[*](Arithmeticall proportion of iustice not indifferent in punishing of persons of con dition and qualitie farre vnequall.) punishment, is himselfe in such errours entangled as he sought to eschew. For he saith, That in punishing of him which hath deceiued his companion, or committed adultery, we are not to respect whether he were an honest man, or an euill liver before or not; but to punish the offence with Arithmeticall equalitie, or Commutatiue Iustice, as hee tearmeth it. But what indifferent equalitie shall that be of the same punishment, if it shall by Arithmeticall proportion be inflicted upon persons of qualitie and condition so farre vnlike? Or what Shoomaker is so ignorant or foolish, as to shape one fashioned shoo, or of the same last, to every mans foot? Creditors also in time equall, but in the[*](Arithmetical proportion of iustice not to be admitted euen in meere civill cau.) summe of their debt vnequall, are of the goods of their broken debtor to bee paid by proportion Geometricall: as if thirtie crownes bee made of the goods of the broken debtor; he of the two creditors to whome there is but an hundred crownes due, shall receiue ten crownes; whereas the other creditor to whome there is two hundred due, shall receiue twentie: who if they were by Arithmeticall proportion to be paid, should each of them receiue fifteene. And yet in this case question is but of a meere civill particular cause resting in exchaunge; which in the opinion of Aristotle, is alwaies by Arithmeticall proportion to be ordered: which is not onely in this case here propounded[*](Aistotle impugned for saying, no regard ought to be had, whether the offendor wee before the offence committed, good or bad.) false, but euen in all other also, wherein question is of that which unto every man properly belongeth, as we shall forthwith declare. Yet where Aristotle saith in punishing of offences no regard ought to be had, whether the offendor were before good or bad: it sufficiently sheweth him to have had no knowledge of the order and manner of iudgements, or of iudiciall proceedings. For why, nothing is more diligently enquired after by the judges, than what the former life of the partie accused hath bene. Neither is it any new matter, when as the Persians, long before Aristotles time, not only enquired after the whole lives of them which were accused (as yet they still doe) but if their good deserts were greater than their offences, they fully acquited them also: as Xenophon writeth. And for the same cause the theefe taken in the third theft, is almost every where condemned to die, howbeit that the third theft be much les---e than the first: and so he also which hath the more often offended, is more seuerely to be punished than he which hath more seldome gone astray. Wherein Aristotle is againe deceiued, in that he deemeth a stolne thing ought by Arithmeticall proportion to bee made euen with particular interest of him from whome it was taken or stolne. Whereas the lawes of Solon, the lawes of the Twelue Tables, and the emperours by their lawes, condemne him which hath stolne any thing, to restore the double or the treble, yea and sometime foure fold the worth of the thing stolne, beside the perpetuall infamie thereof ensuing. Yea the law of God willeth, That for an oxe stolne, restitution should bee made ---iue ---old unto him from whom he was so stolne: both for that a more profitable beast is not by God giuen unto man, as also for the necessitie there is to leaue such beasts oft times in the field: where they roaming up and downe, have for their more assurance the greater penaltie set upon them being stolne: and hereunto some other people have ioyned corporall punishment, yea euen unto the paine of death.

And not to speake of criminall causes onely, but of meere civill causes also, one in the [*](Arithmeticall Iustice to faile euen in meere civill causes.) selfe same fact gaineth the cause, & in another place looseth the same: one hath interest for his debt, and another hath nothing: and amongst them which shall in the same case have interest, some one shall pay ten times so much as another: which for that they bee matters common unto all such as have any experience in iudiciall causes, there need not many examples; one therefore shall suffice for the manifesting of the matter. A Lapidarie breaketh a diamond which he by couenant should have enchased in a ring; he is bound to pay the price of the stone be it neuer so great, yea although hee therein haue used no fraud or deceit, but euen for that onely that he tooke it upon him to do it as a workeman: whereas yet had he bene a man of another condition or occupation, hee should not have paid the price of the pretious stone so broken, except hee had before taken the daunger thereof uppon him, or by fraud or deceit broken the stone.

Now all the lawes both auntient and new, with the common course and experience[*](Harmonicall Iustice to hue place when question is bu of priua mens right and interest as well as when question is of penalti and fies.) of iudgements, teach vs that Harmonicall proportion of iustice ought as well to take place when question is but of priuat mens right and interest, and so in pure civill causes, as well as when question is of penalties and fines: as also that Arithmeticall equalitie and proportion is therein most of all vniust. And therefore Iustinian the emperor publishing the law concerning vsurie, ordained, That the nobilitie should not take aboue five in the hundred, the marchants eight in the hundred, corporations and colledges ten, and the rest six in the hundred: and particularly that none should exact of the husbandman aboue fiue in the hundred. Which law let it seeme in Aristotle his iudgement vniust, yet doth it carrie a good shew of that Harmonicall Iustice which wee seeke after, tempered of Arithmeticall and Geometricall proportion: Arithmeticall equalitie being therein obserued amongst the noble men, who are all under one article comprised, the great, the meaner, and the least: the marchants in another both rich and poore: and the countrey men in another article, howbeit that they much differ one of them from another: and the rest of the sub---ects all in another article beeing of diuers qualities and conditions also: And then the Geometricall proportion shewing it selfe betwixt the nobilitie and the marchants, betwixt the marchants and the colledges, and

againe a certaine of the other subiects compared among themselves, and with their superiours. And this proportion of Harmonicall Iustice is also in some sort kept, and yet cut somewhat short by the law of Orleans, established by Charles the ninth at the request of the people: whereby the debtor condemned for money too long detained, is bound to pay after eight in the hundred interest unto marchants, and unto other lesse; but vnto husbandmen, persons hired, and all sorts of labourers, the double of the money due: both the chiefe points of which law is now growne out of vse, howbeit that it was with the greatest consent of the courts published. For why, that which concerneth every priuat mans right and interest, consisteth in matter of fact, & not in matter of law; as Paulus the lawyer most wisely aunswered, which his one reason hath euen by the root ouerthrowne all the long discourses of all the interpretors, so diuers and so vnlike themselves, concerning every priuat mans right and interest: all which Iustinian the emperour had thought himselfe to have beene able to have comprehended vnder[*](That which toucheth every priuat mans right & how farre it concerneth him, is not possible to be set downe in law, but better to be left unto the discretion of the judge.) one law. And therefore that which toucheth every priuat mans right and interest how farre it concerneth him, is by our lawes wisely left unto the discretion of the judges, for that it can no more certainly by positiue law be defined or set downe, than can the great Ocean sea into a small chanell be enclosed or shut up. But yet the inequalitie is much greater in the law of Venice, which forbiddeth to take interest either in commodities or in money, aboue six in the hundred: which although it be a thing tollerable, and is called of the Latines Vsura ciuilis, or, civill interest: yet is that law not so long agoe made, now againe growne out of vse, and not either publikely or priuatly kept: for that it in every respect containing Arithmeticall equalitie, regardeth not the most vnlike condition and qualitie of persons.

And howbeit that in the particular contracts and conuentions, and exchaunge of[*](Arithmetical proportion of iustice not alwayes obserued euen in particular contracts and conuentions, wherein it is yet best of all to be liked.) things, that Arithmeticall proportion of equalitie be best to be liked; yet is it not euen therein alwayes obserued and kept, the very countrey men and labourers, by a certaine naturall reason well deeming, that they ought oftentimes to take lesse for their hier of the poore than of the rich, howbeit that they take as great paines for the one as for the other. So the Surgeon which taketh of the rich man five hundred crownes to cut him of the stone, haply taketh of the poore porter no more but fiue: and yet for all that in effect taketh ten times more of the poore man than of the rich: For the rich man being worth fiftie thousand crownes, so payeth but the hundred part of his goods, whereas the poore man being but worth fiftie crownes, paieth fiue, the tenth part of his substance. Whereas if we should exactly keepe the Geometricall or Arithmeticall proportion alone, the patient should die of the stone, and the Surgion for lacke of worke starue: whereas now by keeping the Harmonicall mediocritie, it goeth well with them both, the poore man cured with the rich, and the Surgion so gaining wealth, and the other their health. After which proportion euen the judges themselves haue used to esteeme their paines, and therefore to demaund their honourable fees: which we see to have alwayes bene lawfull for them to doe, so that therein they exceed not measure. As I remember it to have happened unto a certaine Prouost of Paris, whose name I will [*](Harmonicall proportion to be used by the iudges euen in taking of their fees.) easily passe ouer, who for adiudging the lawful possession of a litigious benefice, hauing for his owne fees set downe thirtie crownes, whereas his duetie was but three, and appeale therefore by the partie grieued made unto the higher court; was thither sent for; where he being by Ranconet President of the court hardly charged for the wrong by him done: aunswered, That it was a good fat benefice that he had giuen sentence for: and that forasmuch as he did many such things for poore men without any fee at all, that it was but right and reason that the richer when they came should make him an amends therefore in paying of him deeper fees. Whereunto the President pleasantly▪

said, Him in so doing to serue them as his Taylor did him, who tooke of him twice as much for the making of him a veluet gowne, as he did for making of him one of cloth. So the law of Milan, which appointeth, That the judge may for his fee take the hundred part of the value of the suit, so that hee exceed not two hundred crownes, would seeme unto Ranconet vniust: every corrupt judge so without any proportion at all, extorting from all men, what he saw good. For that such the suit may be for a slight matter but often crowns, as that therein oftentimes more paines is to be taken by the ---udge than in a suit of ten thousand crownes: the marchant so still gaining by the rich, what he looseth by the poore.

Wherefore both in making of lawes, and in deciding of causes, and in the whole[*](Arithmetical proportion most necessarie to be obserued in the whole government of the Commonweale.) government of the Commonweale, we must still so much as possible is, obserue and keepe that Harmonicall proportion, if we will at all maintaine equitie & iustice: wher--- as otherwise it will be right hard for vs in the administration of iustice, not to doe great wrong. As doth the law of inheritance, which adiudgeth all unto the eldest, whether he be noble or base; of auntient time used by Lycurgus in the inheritances of the Lacedemonians, and with vs in the countrey of Caux. Lesse vniust, and yet vniust too, is the law which giueth all the noble mans inheritance unto his eldest son; and an annuitie of the third or of the fift part unto the younger brethren, for them to have during their, lives as they doe at Amboise and Aniou; and yet dealing therein more favourably with the women, who hold that unto themselves in proprietie, which the yonger brethren have but for tearme of life. Neither is the custome of the Germans much lesse vniust, who hauing abrogated the old law, where of Tacitus maketh mention, diuide the inheritance equally amongst their sonnes, making the eldest and the youngest both equall in the succession of their inheritance, according vnto Arithmeticall proportion, without any difference of persons at all. But how much more uprightly and iustly hath the law of God dealt herein? which following the Harmonicall proportion[*](Harmonical proportion of iustice euen by the law of God obserued in the conferring of inheritance, & inflicting of punishments.) of iustice, giueth onely unto the sonnes the land, and unto the daughters part of the mouables, or money to marry them with; to the end the houses should not by them be dismembred: and amongst the males allotteth two parts unto the eldest, and to the rest euerie one of them a part: and the father dying without heires male, the same law commaundeth the women to diuide the inheritance indifferently amongst them, and yet to marrie with the next of their house or tribe, that the land might not bee carried out of their stocke and kindred. Wherein Geometricall proportion is to be seene betwixt the eldest and the rest, as also betwixt the males and the females: and Arithmeticall equalitie betwixt the younger brethren, as amongst the daughters also. So when it is said by the law of God, That he which hath deserued to bee chastised or beaten, shall be punished according to the fault by him committed; yet is it by the same law forbidden to giue him aboue fortie stripes. Which law is made according to Harmonicall iustice: For why, it is left unto the discretion of the judge, after such a proportion, to iudge unto fortie stripes, according unto the equalitie of the persons and of the offences committed: Wherein the Arithmeticall equalitie is also seene, in that it is forbidden the magistrat to exceed fortie stripes, the certain number by the law appointed. Wherin he that hath the more offended, and yet hath not deserued death, is no more punished in this respect of fortie stripes, than he which hath lesse offended. Whereof the law yeeldeth this reason, least the partie condemned, lamed with many stripes, should so become vnprofitable both unto himselfe and the Commonweale. For that it might have bene obiected, That he which more grieuously offended, was the more grieuously also to have bene punished, euen aboue the said number of fortie stripes: howbeit that indeed it is better to stay within a measure, than through too much seueritie to do

any thing vniustly, which unto vs is a certaine argument drawne from the law of God, That the true iustice, and the fairest government, is that which is by Harmonicall proportion maintained.[*](The Aristocratique and Popular estates, not to be maintained by Geometricall or Arithmeticall iustice, without a mixture of Harmonicall iustice also.)

And albeit that the Popular estate more willingly embraceth the equall lawes and Arithmeticall Iustice: and the Aristocratike estate contrariwise loueth better the Geometricall proportion of iustice: yet so it is, that both the one and the other are for the preseruation of themselves constrained to intermingle with themselves the Harmonicall proportion. Whereas otherwise the Aristocraticall Seignorie excluding the common people farre from al estates, offices, and dignities, not making them in any sort partakers of the spoyles of their enemies, nor of the countries conquered from them; it cannot be that the estate can so long stand, but that the common people beeing neuer so little moued, or neuer so small occasion presented, shall reuolt, and so chaunge the estate, as I have by many examples here before declared. And therefore the Venetian Seignorie, which is the most true Aristocratie (if euer there were any) gouerneth it selfe Aristocratically, bestowing the great honours, dignities, benefices, and magistracies, uppon the Venetian gentlemen; and the meaner offices which have no power belonging vnto them, upon the common people: following therein the Geometricall proportion of the great to the great, and of the little to the little. And yet to content the common people, the Seignorie hath left unto them the estate of the Chauncellour, which is one of the most worthy and most honourable places in the citie, and perpetuall also: and more than that, the offices of the Secretaries of the estate also, which are places verie honourable. Yea moreover an iniurie done by a Venetian gentleman unto the least inhabitant of the citie, is right seuerely corrected and punished: and so a great sweetnesse and libertie of life giuen unto all, which sauoureth more of popular libertie than of Aristocraticall government. And that more is, the creation of their magistrats is made part by choyce, and part by lot: the one proper unto the the Aristocratique government,[*](The estate of Venice Aristocratique, and the government for most part Harmonicall.) and the other unto the Popular estate: so that a man may well say, that the estate of that Seignorie is pure and simply Aristocratique, and yet somewhat gouerned by Proportion Harmonicall, which hath made this Commonweale so faire and flourishing.

Now we have oftentimes said, and must yet againe say (for that many have uppon [*](That the estate of a Commonweale may be of one sort, and yet the maner of government of another.) this rocke suffered shipwracke) that the estate of a Commonweale may oftentimes be the same with the government thereof, but yet more often quite different from the same. For the estate may be Popular, and yet the government Aristocraticall: as in Rome after the kings were driuen out (wee said) the estate of that Commonweale to have bene Popular, for that then all the soueraigne rights were in the power of the whole people in generall; and yet the manner of the government of that citie and Commonweale to have bene from the Popular government most farre different. For that the Senators alone enioyed the great benefices, honours, dignities, and places of commaund: all the wayes and entrances thereunto being by the nobilitie holden fast stopt up against the comminaltie, yea and that so straitly, as that it was not lawfull or permitted for any of the common sort to marrie with any of the nobilitie; either for any noble woman to marrie but with some one of the nobilitie, but the noble still marrying with the noble, & the base with such as themselves were: and the chiefe and principall voyces which were giuen in their greatest assemblies of estate, and most regarded, were still taken by their wealth and yeares. So that the estate being then Popular, and the manner of the government Aristocraticall, according to Geometricall proportion, the people oftentimes reuolted from the nobilitie: neither was the estate euer quiet from civill tumults and seditions, vntill that the common people had by little and little

got to be partakers also in the greatest benefices, honours, offices, and places of commaund, that were in the Commonweale: and that it was permitted them also to allie themselves in marriage with the nobilitie, as also to have their voyces as well as they. And so long as this Harmonical government (that is to say intermingled with the Aristocratique and Popular estate) continued, the Senat yet bearing the greater sway, so long that Commonweale flourished both in armes and lawes; but after that the government (through the ambition of the Tribunes) became altogether Popular, and as the heauier weight in a ballance ouerweighed the lighter, all then went to wracke: no otherwise than as when the sweet harmonie of musicke being dissolued, and the harmonicall numbers altered into numbers of proportion altogether equall and like, therof followeth a most great vnpleasant and foule discord: the like whereof there raised amongst the citisens neuer ceased, vntill that the estate was quite thereby chaunged, and indeed vtterly ouerthrowne. So may wee also iudge of all other Commonweales; neither have wee thereof any better 'example than of the popular estates of the Swissers, which the more that they are popularly gouerned, the harder they are to be maintained, as the mountayne Cantons, and the Grisons: whereas the Cantons of Berne, Basil, and Zuricke, which are gouerned more Aristocratically, and yet hold the Harmonicall meane betwixt the Aristocratike & Popular government, are a great deale the more pleasing, and more tractable, and more assured in greatnes, power, arms and lawes.

Now as the Aristocraticall estate founded uppon Geometricall proportion, and gouerned [*](The Royall estate Harmonically gouerned, to be the fairest, the happiest, and most perfect.) also aristocratically, giueth vnto the nobilitie and richer sort the estates and honours: and the Popular estate contrariewise grounded uppon Arithmeticall proportion, and gouerned popularly, equally deuideth the monies, spoyles, conquests, offices, honours, and preferments unto all alike, without any difference or respect of the great or of the little, of the noble or of the base and common person: So the royall estate also by a necessarie consequence framed unto the harmonicall proportion, if it be royally ordered and gouerned, that is to say, Harmonically; there is no doubt but that of all other estates it is the fayrest, the happiest, and most perfect. But here I speake not of a lordly monarchie, where the Monarch, though a naturall prince borne, holdeth all his subiects vnderfoot as slaues, disposing of their goods as of his owne: and yet much lesse of a tyrannicall monarchie, where the Monarch being no naturall Lord, abuseth neuerthelesse the subiects and their goods at his pleasure, as if they were his verie slaues; and yet worse also when he maketh them slaues vnto his owne cruelties. But my speech and meaning is of a lawfull King, whether he be so by election, for his vertue and religion, by voyce chosen, so as was Numa; or by diuine lot, as was Saul; or that he have by strong hand and force of armes, as a conquerour got his kingdome, as have many; or that hee have it by a lawfull and orderly succession, as have all (except some few) who with no lesse loue and care favoureth and defendeth his subiects, than if they were his owne children. And yet such a King may neuerthelesse if he will, gouerne his kingdome popularly and by equall Arithmeticall proportion, calling all his subiects indifferently without respect of persons vnto all honours and preferments whatsoeuer, without making choyce of their deserts or sufficiencie, whether it be that they be chosen by lot or by order one of them after another: howbeit that there bee[*](A Royall estate, and yet gouerned Popularly and according to Arithmeticall proportion.) few or rather no such monarchies indeed. So the King may also gouerne his estate or kingdome Aristocratically, bestowing the honorable estates and charges therein with the distribution of punishmehts and rewards by Geometricall proportion, making still choice of the nobilitie of some, and of the riches of others, still reiecting the base poorer sort, and yet without any regard had unto the deserts or vertues of them whom

he so preferred; but onely unto him that is best monyed or most noble. Both which [*](A Royall estate gouerned Aristocratically, and according to Geometricall proportion.) manner of governments, howbeit that they bee euill and blameworthy, yet is this Aristocratique and Geometricall proportion of government much more tollerable and more sure, than is that popular and turbulent government, scarcely any where to bee found, as neerer approching unto the sweet Harmonicall government. For it may be, that the king to assure his estate against the insurrection of the base common people, may have need to strengthen himself with the nobilitie, which come neerer unto his qualitie and condition, than doth the base artificers and common sort of people, unto whom he cannot descend, neither with them wel have any societie at all, if he will in any good sort maintaine the maiestie of his royal estate and soueraigntie, as it seemeth he must of necessitie do, if he shall make them partakers of the most honourable charges of his estate and kingdome. But such an Aristocratique kind of government is also euill and dangerous, not unto the common peaple only, but euen unto the nobilitie & prince also: who may so stil stand in feare of the discontented vulgar sort, which is alwayes farre in number moe than is the nobilitie or the rich: and hauing got some seditious leader, and so taking up of armes, becommeth the stronger part, and so sometimes reuolting from their prince, driueth out the nobilitie, and fortifie themselves against their princes power: as it happened among the Swissers, and in other auntient Commonweales by vs before noted. The reason whereof is euident, for that the common people is not bound by any good accord either with the prince, or with the nobilitie, no more than these three numbers 4, 6, 7: where the first maketh good accord with the second, that is to say, a fift: but the third maketh a discord, the most irkesome and vnpleasant that may bee, marring wholly the sweet consent of the two first, for that it hath not any Harmonicall proportion either unto the first or unto the second, neither unto both together.

But it may be, and commonly so is, that the prince giueth all the greatest honours[*](Geometrical proportion in distributing of offices, not good.) and preferments unto the nobilitie and great lords, and unto the meaner and baser sort of the people the lesser and meaner offices onely; as to be clearkes, sergeants, notaries, pettie receiuers, and such other meane officers of townes, or of some small iurisdictions. Wherein he shall so keepe the Geometricall proportion, and Aristocraticall government. Which manner of government for all that is yet faultie, howbeit that it be more tollerable than the former Popular Arithmeticall government, as hauing in it some equall and semblable proportion: For as the office of the Constable is proper unto a great Lord, so is also the office of a Sergeant unto a poore base fellow. But forasmuch as there is no sociable bond betwixt the prince and the porter; so also is there not any similitude betwixt the office of the Great Constable and of a Sergeant: no more than there is amongst these foure numbers disposed by proportion Geometricall disiunct, 3, 6, 5, 10: where the two first have the same reason that the two last haue, and the reason of the first unto third, is that of the second vnto the fourth: yet the reason of the second unto the third is discordant and different from the others, and so disioyneth the extreames, which so maketh an absurd and foolish discord. And so also are the orders of citisens and subiects, disioyned one of them from another, so that no fast or sure band can bee found amongst them. For that the nobilitie thinketh it an indignitie for them to bee busied with the small offices of the comminaltie: and the common people againe take it in euill part themselves to be excluded from the greatest honours of the nobilitie. As in Rome it was not otherwise lawfull for any of the nobility, whom they called Patricij, to sue for the Tribuneship, but that first he must renounce his nobilitie, & become a commoner: for as then the Consulship belonged

onely unto the nobilie, and the Tribuneship unto the comminaltie. Which power once granted unto the people, they forthwith let their weapons fal, and all the sedition & tumults before common betwixt them and the nobilitie ceased: For why, the common sort thought themselves now equall with the best, wherin the welfare of that citie consisted: whereas otherwise the force of the furious multitude could by no violence have bin withstood. For what the proportiō was of the Consulship unto the Tribuneship, the same the proportion was of one of the nobilitie unto a commoner: & againe, the same respect was of a noble man unto the Consulship, that was of a commoner unto the Tribuneship, in Geometricall similitude. But forasmuch as it was not lawfull neither for a noble man to obtaine the Tribuneship, neither for a commoner to enioy the Consulship, the people was disioyned from the nobilitie, and a perpetuall discord betwixt the Consuls and the Tribunes still troubled the citie: in such sort, as in these numbers thus placed is to be seene, 2, 4, 9, 18: wherein are found two eights by Geometricall proportion disiunct, and which yet mixed together make the most hard discord that is possible, by reason of the disproportion which is betwixt 4 and 9, which is intollerable, and marreth all the harmonie. So was there also almost a perpetuall discord[*](The reasons why the Consuls and Tribunes were alwayes at discord in Rome.) betwixt the nobilitie & the people, vntill that the Consulship, the Censorship, the Pretorship, and the chiefe Benefices, excepting some few, were communicated unto the people also. Whereas might it with the same moderation have beene lawfull for the nobilitie to have obtained the Tribuneship also, yet so as that the number of the commoners in that societie of the Tribunes might yet still have bene the greater, and the nobles not enforced to renouce their nobilitie: no doubt but that the estate so Harmonically gouerned had bene much the more assured, better ordered, and of much longer continuance than it was, by reason of the sweet agreement of the citisens among themselves, and that Harmonicall mixture of the offices and places of authoritie and commaund in the estate and Commonweale: as in these foure numbers by Harmonicall proportion conioyned, is plainely to be seene, 4, 6, 8, 12: where the proportion of the first number unto the second, and of the third unto the fourth, is a Diapente, or a fift: and againe the proportion of the first unto the third, and of the second unto the fourth, is a Diapason, or an eight: and the proportion of the second unto the third, a Diatessaron, or a fourth: which with a continuall proportion ioyning the first with the last, and the middle to both, and so indeed all to all, bringeth forth a most sweet & pleasant harmonie. But it was so farre off, that gentlemen of auntient houses were in Rome receiued into the Tribuneship (if they first renounced not their nobilitie, and caused themselves to be adopted by some base commoner) as it was for the base commoners to aspire unto the Consulship: which they neuer did, except they had before obtained the greatest honours of the field, as did Marius; or else by their eloquence, as did Cicero; or by both together, as did Cato the Censor. Which yet was a matter of such difficultie, as that Cicero boasteth of himselfe vnto the people, That hee was the first new man (now they then called him a new man, who the first of his house and familie had obtained honours) who of them of his ranke had obtained to be Consull: and that the people under his conduct had cut in sunder and for euer after laid open for vertue that honourable place, which the nobilitie had before with strong garrisons holden, and by all meanes shut up. So that it ought not to seeme strange if the Commonweale were then troubled with the seditions of the people, when as in such a multitude of the common sort, so few of them euen in Cicero his time aspired unto those so great honours, the nobilitie of great and auntient houses commonly still enioying of them.[*](The Royal estate gouerned Hrmo nically, the srest and most perfect.)

Wherefore it becommeth a good gouernor in a Popular or Aristocratique estate, and especially a wise king in his kingdome, to vse Harmonicall proportion in the government

thereof, sweetly intermingling the nobilitie with the comminaltie, the rich with the poore; & yet neuerthelesse with such discretion, as that the nobilitie still have a certaine preheminence aboue the base comminaltie. For why, it is good reason that the gentleman excelling in deeds of armes and martiall prowesse, or in the knowledge of the law, as wel as the base common person, should in the administration of iustice, or in the mannaging of the wars, be preferred before him. As also that the rich in all other respects equall vnto the poore, should be preferred unto such places and estates as have more honour than profit: and the poore man contrariwise to enioy those offices and roomes which have more profit than honour: both of them so resting reasonably contented, he which is rich enough seeking but after honour, and the poore man after his profit. For which cause and consideration, the wise Roman Proconsull Titus Flaminius taking order for the Thessalian Commonweale, left the government and soueraigntie of the townes and cities by him conquered, unto them of the richer sort and of best abilitie: wisely deeming, that they would be more carefull for the preseruation and keeping of them, than would the poore, who hauing not much to loose, had no great interest therein. Now if two or three magistrats were to bee chosen, it were better to ioyne a noble man with a commoner, a rich man with a poore, a young man with an old; than two noblemen, or two rich men, or two poore men, or two young men together; who oftentimes fall out into quarrels betwixt themselves, and so hinder one another in their charges: as commonly it happeneth betwixt equals. Besides that, of such a coniunction of magistrats of diuers state and condition (as wee now speake of) should arise this great profit, That every one of such magistrats would seeke to maintaine[*](Iustice better administred by magistrats of diuers sort & condition, than by men all of one estate and degree.) the prerogative & right of them of their owne estate and such as themselves were: As in our soueraigne courts, and in other corporations and societies also, by our customes composed of men of all sorts, we see iustice and right to bee commonly better, and more uprightly unto every man administred, than if they wholly consisted of noble men, or of commoners, or of clergie men, or of any one estate alone.

But now in civill societies there is no meane better to bind and combine the little ones with the great, the base with the noble, the poore with the rich, than by communicating of the offices, estates, dignities, and preferments, vnto all men, as well the base as the noble, according unto every mans vertues and deserts, as wee have before declared. Which deserts both now are & euer were of most diuers sort & condition: so that he which would stil giue the honorable charges and preferments of the estate unto vertuous and religious men onely, should vttterly ouerthrow the whole Commonweale:[*](Diuers sorts of deserts, and that vertuous men onely are not to be preferred unto the honourable places and charges of the Commonweale.) for that such vertuous and deuout men are alwayes in number much fewer than the euill and wicked, by whome they might easily be ouercome and thrust out of their government. Whereas in coupling the poore vertuous men (as I have said) sometime with the noble, and sometime with the rich, howbeit that they were deuoid of vertue; yet so neuerthelesse they should feele themselves honoured, in being so ioined with the vertuous, mounted vnto honourable place. In which doing all the nobilitie shall on the one side reioyce to see euen bare nobilitie rspected, and a place for it left in the Commonweale, together with men excelling in vertue and knowledge: and all the baser fort of the common people on the other side rauished with an incredible pleasure to feelethemselves all honoured, as indeed they are, when they shall see a poore Physitians sonne Chauncellour of a great kingdome; or a poore souldior to become at length Great Constable: as was seene in the person of Michael D' l' Hospitall, and Bertrand Guescheling: who both of them, with many others, for their noble vertues were worthily exalted euen unto the highest degrees of honours. But all the subiects grieue and take it in euill part, when as men neither for the honour of their house, nor for any

their vertues noble, but rather for their loose and lewd lives infamous, shall be placed in the highest degree of honour and command: not for that I thinke it necessarie the vnworthy[*](Vnworthy persons not alwayes to be excluded from certaine offices and places of commaund in the Cōmonweale.) citisens or subiects to be altogether kept from all offices & places of command (a thing which can in no wise be) but that euen they such vnworthy persons may bee sometimes capable also of certaine offices; prouided alwayes that they bee in number but few, that their ignorance or wickednesse may not take any great effect in the estate wherein they are. For we must not onely giue the purse unto the trustiest, armes unto the most valiant, iudgement unto the most upright, censure unto the most entire, labor unto the strongest, government unto wisest, priesthood vnto the deuourest, as Geometricall Iustice requireth (howbeit that it were impossible so to doe, for the scarcetie of good and vertuous men:) but we must also, to make an harmonie of one of them with another, mingle them which have wherewith in some sort to supply that which wanteth in the other. For otherwise there shall be no more harmonie than if one should separat the concords of musique which are in themselves good, but yet would make no good consent if they were not bound together: for that the default of the one is supplied by the other. In which doing, the wise prince shall set his subiects in a most sweet quiet, bound together with an indissoluble bond one of them unto another, together with himselfe, and the Commonweale. As is in the foure first numbers to bee seene: which God hath in Harmonicall proportion disposed to show unto vs, that the Royal estate is Harmonicall, and also to be Harmonically gouerned. For two to three maketh a fift; three to foure, a fourth; two to foure, an eight; and againe afterwards, one to two, maketh an eight; one to three, a twelft, holding the fift and the eight; & one to foure, a double eight, or Diapason: which containeth the whole ground and compasse of all tunes and concords of musicke, beyond which he which will passe unto fiue, shall in so doing marre the harmonie, and make an intollerable discord. So may one say of a point to a line, as also of the plaine superficies, and of the solid bodie also of any thing. Now the soueraigne prince is exalted aboue all his subiects, and exempt out of the ranke of them: whose maiestie suffereth no more diuision than doth the unitie it selfe, which is not set nor accounted among the numbers, howbeit that they all from it take both their force and power. But the three estates stand[*](The order of the three estates in a well ordered Commonweale.) orderly disposed as they are, and as they alwayes have yet beene in every well ordered Commonweale, viz. the Ecclesiasticall order first for the dignitie which it beareth: & the prerogative of the ministerie and function thereof towards God, being yet composed both of noble and of base. Then after them follow the Martiall men, in whose protection all the rest of the subiects in some sort rest: which order and estate is also composed both of the noble and vnnoble. And in the third and last, are set the common people of all sorts and vocations, as schollers, marchants, artificers, and labourers: euerie one of which estates hauing part and interest into the offices and honourable charges of the Commonweale, with great respect and regard still to bee had unto the merits and deserts, as also vnto the qualitie of the persons, there may therof be formed a pleasant harmonie of all the subiects among themselves; as also of them altogether[*](The well ordered Commonweale in some sort figure deuen in the nature of man himselfe.) with their soueraigne prince. Which is also declared, and in some sort figured euen in the nature of man himselfe, being the verie true image of a well ordered Commonweale: and that not in his bodie onely, which still hath but one head, and all the rest of the members aptly fitted thereunto; but euen in his mind also, wherein understanding holdeth the chiefe place, Reason the next, the Angrie Power desitous of revenge, the third, and brutist lust and desire the last. Whereof the mind or understanding like unto the unitie in numbers indiuisible, pure, and simple, is of it selfe free from all concretion, and from all the other faculties of the soule apart separated and divided: the angry power with desire of revenge resting in the heart, representeth the souldiors and other martiall men: and sensuall lust and desire resting in the liver under the midriffe, be---okeneth the common people. And as from the liver (the fountaine of bloud) the other members are all nourished, so husbandmen, marchants, and artificers doe giue unto the rest of the subiects nourishment. And as many men for lacke of understanding live like beast, smoued with that only which is present and before them, without mounting any higher unto the contemplation of things intellectuall and diuine, whom the sacred scriptures call also beasts: euen so also the Aristocratique and popular Commonweales [*](Ionas the last, and Psal. 49.) without understanding, that is to say, without a prince, are in some sort able to maintaine and defend themselves, though not long: being indeed about to become much more happie if they had a soueraigue prince, which with his authoritie and power might (as doth the understanding) reconcile all the parts, and so vnite and bind them fast in happinesse together: for why no government is more happie or blessed, than where the reasonable soule of man is gouerned by wisedome, anger and desire of revenge by true valour, lust by temperance; and that understanding bearing the rule, and as it were holding the reines, guideth the chariot, whereafter all the rest follow whether soeuer he will lead them: for so all honestie, all the lustre of vertue and dutie shall every where flourish. But when the power and commaund of understanding beaten downe and quite ouerthrowne, anger as a mutinous and vnruly souldior, and intemperat lust as a turbulent and seditious people, shall take upon them the gouernement, and so inuading the state, shake wisedome and understanding, and thrust it out of place: every Commonweale must needs euen like the powers of the soule and mind needs so fall into all manner of reproch and filthinesse of vices. So that nothing is more like unto a well gouerned Commonweale, than that most faire and fit comparison of the soule and the powers thereof, there being therein so established a most Harmonicall proportion of iustice, which giueth to euerie part of the soule that which vnto it of right belongeth. The like whereof we may say also of the three estates of a Commonweale, guided by Wisedome, Fortitude, & Temperance: which th---ee morall vertues vnited together, and with their king, that is to say, the intellectuall and contemplatiue vertue, there is thereby established a most faire and Harmonicall forme of a Commonweale. For that as of unitie dependeth the vnion of all numbers, which haue[*](One soueraigne prince alwayes most necessarie in a Commonweale) no power but from it: so also is one soueraigne prince in euerie Commonweale necessarie, from the power of whome all others orderly depend. But as there cannot bee good musicke wherein there is not some discord, which must of necessitie be intermingled[*](That the bad are to be mingled with the good, for the making of a good Harmonicall proportion in a Cōmonweale) to giue the better grace vnto the Harmonie (which the good Musitian doth, to make the consent of the fourth, the fift, and the eight, the more pleasing and tunable, some discord running before which may make the consent much more sweet unto the eare; as do also cunning cookes, who to giue the better tast unto their good meates, serue in therewith certaine dishes of sharpe and vnsauerie sauces; and as the cunning painter, to grace his picture, and to giue a better show unto his brighter colours, still shadoweth the same with blacke, or some other darke colour (for that the nature of all things in the world is such, as to loose their grace, if they tast not sometime of disgrace; and that pleasure alwayes continuing becommeth vnsauorie, daungerous and vnpleasant): So also is it necessarie that there should be some fooles amongst wise men, some vnworthy of their charge amongst men of great experience, and some euill and vitious men amongst the good and vertuous, to giue them the greater lustre, and to make the difference knowne (euen by the pointing of the finger, and the sight of the eye) betwixt vertue and vice, knowledge and ignorance. For when sools, vitious, and wicked men, are contemned & despised, then the wise, vertuous, and good men, receiue the true reward and guerdon for their vertue, which is honour. And it seemeth the antient Greekes in their fables, to have aptly shadowed forth vnto vs that which wee have spoken of these three kinds of Iustice, giuing unto Themis three daughters, viz. ---: that is to say, upright Law, Equitie, and Peace: which are referred[*](The three daughters of Themis to represent the three proportions of Iustice.) unto the three formes of Iustice, Arithmeticall, Geometricall, and Harmonicall: howbeit that peace which shadoweth forth Harmonicall Iustice, is the onely scope and summe of all the lawes and iudgements, as also of the true Royall government: so as is Harmonicall Iustice the end both of Arithmeticall and Geometricall government also.

But these things thus declared, it remaineth for vs to know (as the chiefe point of[*](The world to bee made and gouerned also by Marmonicall, and not by Geometricall proportion, contrarie to the opinion of Plato.) this our present discourse) Whether it be true that Plato saith, God to gouerne this world by Geometricall proportion: For that he hath taken it as a ground, to shew that a well ordered Commonweale ought (to the imitation of the world) to be gouerned by Geometricall Iustice: Which I have shewed to be contrarie, by the nature of the unitie, Harmonically referred unto the three first numbers: as also by the intellectuall power, compared unto the three other powers of the soule: and by a point compared to a line, a plaine superficies, or other solid bodie. But let vs goe farther, for if Plato had looked neerer into the wonderfull Fabrike of the world, hee should have marked that which hee forgot in his Timeo, viz. The Great God of nature to have Harmonically composed this world of Matter and Forme, of which the one is maintained by the helpe of the other, and that by the proportion of equalitie and similitude combined & bound together. And for that the Matter was to no vse without the Forme, and that the forme could have no being without the matter, neither in the whole vniuersall, neither yet in the parts thereof: he made the world equall to the one, and semblable to the other: equall unto the matter whereof it is made, for that it comprehendeth all: and semblable or like unto the forme, in such sort as is the Harmonicall proportion composed of the Arithmeticall and Geometricall proportions equall to the one, and semblable to the other, being one of them separate from another vnperfect.

And as the Pythagorians sacrificed the great sacrifice Hecatombe, not for the sustendure of the right angle, which dependeth of the two sides (as many thinke) but for hauing in the selfesame figure found the equalitie and similitude of two other figures, the third figure being equall unto the first, and like unto the second: so do we also owe the immortall euerlasting sacrifice of praise and thanksgiuing unto almightie God, for that he hath by an admirable bond of Harmonie, bound together this world of matter and forme, equall to the one, and like to the other: equall indeed to the matter, so that there is nothing thereof wanting, or yet superfluous: but yet like unto that euerlasting forme, which he the most wise workeman had in his mind before conceiued, before he made that so great and excellent a worke: as we read in the holy * Scripture.[*](en. 1.)

And as for the motion or mouing of the celestiall Spheres, wee see that God hath made one motion equall, which is the swift motion of the superiour Sphere: and another vnequall, which is the motion of the Planets (contrarie unto the former:) and the third the motion of Trepidation, which containeth and bindeth together both the one and the other. And so if we should enter into the particular nature of other worldly

creatures also, we should find a perpetuall Harmonicall bond, which vniteth the extreames by indissoluble meanes, taking yet part both of the one and of the other.[*](The Harmonical bond wherewith the world and the parts thereof are indissolubly bound and vnited together.) Which coherence is neither agreeable unto Arithmeticall nor Geometricall, but euen proper unto the Harmonicall proportion onely: wherein the sweetnesse of the consent consisteth in tunes aptly mixt together: and the harsh discord, when as the tunes are such as cannot fitly be mingled together. So we see the earth and stones to be as it were ioyned together by clay and chaulke, as in meane betwixt both: and so betwixt the stones and mettals, the Marcasites, the Calamites, and other diuers kinds of minerall stones to grow: So stones and plants also to be ioyned together by diuers kinds of Corall, which are as it were stonie plants, yet hauing in them life, and growing uppon roots: Betwixt plants and liuing creatures, the Zoophytes, or Plantbeasts, which have feeling and motion, but yet take life by the roots whereby they grow. And againe betwixt the creatures which live by land onely, and those which live by water onely, are those which they call Amphibia, or creatures liuing by land and water both, as doth the Beuer, the Otter, the Tortoise, and such like: as betwixt the fishes and the fouls are a certaine kind of flying fishes: So betwixt men and beasts, are to bee seene Apes and Munkies; except we shall with Plato agree, who placed a woman in the middle betwixt a man and a beast. And so betwixt beasts and angels God hath placed man, who is in part mortall, and in part immortall: binding also this elementarie world, with the heauens or the celestiall world, by the aethereall region. And as a discord sometimes (as we said) giueth grace unto the sweetest Harmonie▪ so God also hath here in this world mingled the bad with the good, and placed vertues in the middest of vices, bringing forth also certaine monsters in nature, and suffering the eclipses and defects of the celestiall lights: as also the Surd reasons in Geometricall demonstrations: to the end that there of might arise the greater good, and that by such meanes the power and beautie of Gods workes might be the better knowne, which might otherwise have beene hid and folded up in most thicke and obscure darkenesse. And therefore it is, that God hauing hardened Pharaoes heart, which the wise Hebrewes expound to be the enemie of God and Nature, saith thus unto him, Excitaui ego te vt demonstrarem in te ipso potentiae meae vim ac decus, vt toto terrarum or be gesta mea omnium vna commemoratione praedicarentur, I have stirred thee up (saith he) that I might in thee declare the force & glorie of my power, that so all my acts might with one report of all men bee praised throughout the whole world. And these things truely belong unto the most true report of the things then done in Aegypt: but there lieth hidden therein a more diuine meaning than that, concerning the great Pharao, the worker and father of all mischiefe, whome the sacred Scriptures declare by the name of Leuiathan: and yet in this all the diuines agree, this of all others the greatest enemie of God and man, to bee still by the becke, word, and power of God, kept in and restrained: and all the force and power of those mischiefes and euils by him and his wrought (which we so much both fret and maruell at, and without which the power of the good should neither bee, neither yet be at all perceiued) to be shut up within the bounds of this elementarie world: and aboue the same to be nothing but that which is holy and cleane from all filth and wickednesse; in such sort, as that that little staine of euils here shall much more profit than hurt. Whereof Augustine speaking, saith well, Qui Deum immortalem vllum mali dedecus perpessurum negat, nisi maius bonum consequi certo sciret, Who denieth that the immortall God would euer suffer any euill or wickednesse to bee done, but that hee most certainly knoweth a greater good to ensue thereof. Wherefore as of Treble and Base voyces is made a most sweet and melodious Harmonie, so also of vices and vertues, of the different qualities of the elements, of the contrarie motions of the celestiall Spheres, and of the Sympathies and Antipathies of things, by indissoluble meanes bound together, is composed the Harmonie of the whole world, and of all the parts thereof: So also a well ordered Commonweale is composed of good and bad, of the rich and of the poore, of wisemen and of fools, of the strong and of the weake, allied by them which are in the meane betwixt both: which so by a wonderfull disagreeing concord, ioyne the highest with the lowest, and so all to all, yet so as that the good are still stronger than the bad; so as hee the most wise workeman of all others, and gouernour of the world hath by his eternall law decreed. And as he himselfe being of an infinit force and power ruleth over the angels, so also the angels over men, men over beasts, the soule over the the bodie, the man over the woman, reason over affection: and so every good thing commaunding over that which is worse, with a certaine combining of powers keepeth all things under most right and lawful commands.[*](Almightie God in the gouernmēt of the world, to be of all worldly princes imitated in the government of their estates and kingdomes.) Wherefore what the unitie is in numbers, the understanding in the powers of the soule, and the center in a circle: so likewise in this world that most mightie king, in unitie simple, in nature indiuisible, in puritie most holy, exalted farre aboue the Fabrike of the celestiall Spheres, ioyning this elementarie world with the celestiall and intelligible heauens; with a certaine secure care preserueth from distruction this triple world, bound together with a most sweet and Harmonicall consent: unto the imitation of whome, euerie good prince which wisheth his Kingdome and Commonweale not in safetie onely, but euen good and blessed also, is to frame and conforme himselfe.