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

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

Now we have before declared the definition of a Magistrat by the yonger lawiers, and by Aristotle himselfe set downe, to be in no wise to be allowed or maintained:Aristotle by the author impugned. who call none but him a Magistrat which hath a deliberatiue voice in iudgement, and in the priuie counsell, with power to commaund; and principally saith hee to commaund: for in his sixt booke de Republica, seeing the number of officers to be infinite, whom he calleth all , a name proper unto Magistrats hauing commaund in the commonweale: he findeth himselfe therein much entangled, for that he seeth others also besides them necessarie for the ornament and glorie of the Commonweale: and then after them all the Magistrats ministers, as Sargeants, Vshers, Secretaries, Notaries, all whom he calleth by the common name of Magistrats: euen as he doth them which have power to commaund: and so passing on further, saith, such ministers to have also power to commaund, . And yet for all that in an other place lib. 3. Politia. he maketh question, whether that the Iudges and Orators are to be called Magistrats: whereunto he aunswereth, that a man may say them to be no magistrats, hauing no part of the commaund of the Commonweale; And therefore Cato Vticensis chastising the Registers, Comptrollers, and Receiuers, you ought (saith he) to remember your vocation, and that you are but ministers, and not Magistrats, as Plutarke reporteth. As for Preachers and Orators whom he calleth , if so it be that they have no commaund or ordinarie power, it is right certein that they are no magistrats at all: but yet often times they are also Magistrats, I meane such as in Popular and Aristocratique estates and Commonweales have power to perswade or disswade the people, to or from such things as they thought to be for them vnprofitable or disprofitable, whom they called Rhetoras. Howbeit that in Athens every particular man, (so that he were fiftie yeres old) had of himselfe power to speake; and the rest by the magistrats leaue: whereas in Rome it was not lawfull for any man to deliver any speech unto the people, but by the leaue of the chiefe Magistrat in the assemblie. And as for the doubt that he maketh of Iudges, as whether they be Magistrats or not, the resolution is easie, if we will graunt the diuision of judges set downe by Iustinian the emperour to be good: which is, that some of them be Magistrats, and some of them be not. We must therefore now confesse, that amongst them which have publique and ordinarie charge; that is to say, of Officers, some of them are Magistrats, (viz. such as have power to commaund) and some of them not, (as hauing no such commaundingWhich officer be also magistrats. power) but seruing onely as the magistrats ministers: which diuision seemeth unto vs necessarie for the auoyding of such businesse as might arise of a diuision of it selfe imperfect. Wherefore we have said that such publique persons as have an ordinarie charge limitted unto them by lawes, or by edicts, without any commaund at all, to be simple officers, whom the Emperours of latter times often times in their lawes call officiales, being indeed but ministers unto the magistrats. The auntient Doctors of the law have for most part followed the opinion of Accursius, who set downe neither any definition nor distinction of Officers; nor of Commissioners, nor of Magistrats; but simply saith, That there are foure sorts of Magistrats, viz. them whom they called Illustres, the Spectabiles, the Clarissimos, and the Perfestissimos, to whom he giueth all commaund. All which are rather honorable qualities and titles attributed unto the magistrats and Officers, according to the conditions of their persons. Howbeit that in this diuision of them also according to their titles and qualities, he hath left out the Patricij, who were of greater reputation and dignitie than the rest: as also the Augustales, who were superiours unto the Clarissimos: for why Iustinian the emperour appointeth these degrees of honour, the Patricij, Illustres, Spectabiles, Clarissimi, Acurs and Bartholus censured. siue Speciosi, and the Perfectissimi, all which honors and titles were giuen aswell vnto priuate men as unto magistrats. But as for that which Bartholus saith, That there are some which have honour without charge; as Counties and Marquises, unto whom for all that he attributeth power to commaund, and the administration of justice, it deserueth not aunswer; for that he therein is most manifestly contrarie vnto himselfe. So also is there small probabilitie in that he saith, Scholmasters as magistrats to have iurisdiction over their schollers, and power to establish lawes and ordinances: for so domesticall power and the discipline of families should be also altogether confounded with the publique iurisdiction, which we have before shewed to be a thing impossible. Alexander Imolensis the greatest lawier of his time, hath touched much neerer the true definition of a Magistrate: in that he saith, None to be Magistrats but they which are ordinarie judges; And yet is not this enough: for why they are such magistrats as have power to commaund, and yet have not any ordinarie iurisdiction: as the Censors, and the Tribunes of the people. And so to the contrarie some there be (which being no magistrats) have an ordinarie iurisdiction, but without any commaunding power, without Pursiuant or Sargeant, as had in auncient time, and now also in every place the Bishops, who have the hearing and determining of all sacred and religious things, and yet were neuerthelesse no magistrats. The Bishops saith Lentulus are judges of Religion, and the Senat are judges of the law. So one may see neither the auntient nor late writers to haue handled this point, or yet so much as touched the difficulties or differences of Officers, Magistrats, and Commissioners, as the matter well deserued. And albeit that the true definitions of Magistrats, officers, and commissioners be not to be found in the papers and writings of Lawyers, yet are the same to be gathered from them, and from the discourse of good histories. For Vlpian writeth it to be lawfull for all magistrats, excepting the Duumuiri, by inflicting of iudiciall pains to defend their iurisdiction: which extendeth not onely unto the imposing of fines upon the offendors, but euen to the attaching of their goods and bodies, and casting of them into prison. And yet it appeareth (may some say) that Vlpian hauing excepted these Duumuiri (who were in like power that the Sherifes were in townes without any iurisdiction at all) yet neuerthelesse accounteth them in the number of Magistrats▪ and seemeth also to say, these Duumuiri to have also had iurisdiction: For otherwise in vaine were they excepted, if they had not such authoritie and power. And yet the same lawyer in another place saith, these Duumuiri to have had no iurisdiction nor the hearing of any causes whatsoeuer, but were onely to receiue needfull cautions, and to deliver possession: which sauoured more (as saith he) of power than of iurisdiction. And yet in this case (saith he) they were but simply the Praetors deputies, who in their absence gaue them this commission, for preuenting gf the daunger which might in the meane time happen, if men of necessitie must be driuen to runne still unto the Praetors: who in like case also afterwards gaue them power to appoint tutors unto the poorer sort of orphanes for the preseruation of their goods. Whereby it is euident them to have had no iurisdiction or power by vertue of their owne magistracie, but onely part of the Praetors iurisdiction, and that also by leaue and sufferance. But they which have nothing but such deputed or precarie iurisdiction, can of right call nothing thereof their owne: Wherefore whether the power of the Duumuiri consisted onely in hauing power to commaund, or in iurisdiction, it was vndoubtedly but by leaue and sufferance: whereby it is to be vnderstood, these Duumuiri not properly to have bene at all magistrats. But they which have power to commaund, together with iurisdiction, may call men before them, attache them, and with penall iudgement defend their iurisdiction, & also put their iudgements in execution: wheras they which have power only to command without any iurisdiction, may well cause a man to be apprehended, but not proceed further. And in that some are deceiued, who for that by the old law Alteria Tarpeia power was giuen to all magistrats, to impose fines unto the summe of threescore six shillings, therefore suppose all magistrats to have had iudiciall power also. For if the fine were by the magistrat imposed for publike iudgement sake (as by a Tribune of the people,) it was lawfull for the partie that was so fined either to pay the fine, without further examination of the matter, or to appeale unto the people, and so to trie the cause of his fine, as is in Liuie oft times to bee seene: which was done by the law Icilia. For why the fine of it selfe inflicted not any infamie upon the partie so fined, but for the publike crimes sake: as the punishment of beating with staues impaired not any mans reputation, but the cause wherefore he was so beaten. But if a fine were set upon him that had not obeyed the magistrat sending for him, or for not aunswering being asked, or for any other cause, not impairing his credit; it was lawfull for the magistrat by taking of distresse to exact the fine, without appeale: For that by the law Tarpeia, there was a certaine stint and measure for fines appointed and set downe unto the magistrat, that so the disobedient citisens might without any trouble of the state be kept in order, and their insolencie restrained.

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

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

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

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

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

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

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

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

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

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

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

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

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