Policie vnveiled vvherein may be learned, the order of true policie in kingdomes, and common-wealths: the matters of justice, and government; the addresses, maxims, and reasons of state: the science of governing well a people: and where the subject may learne true obedience unto their kings, princes, and soveraignes. Written in Spanish, and translated into English by I.M. of Magdalen Hall in Oxford.

CHAP. XXI.

Of the Parts of Iustice in common, and in particular of Iustice commutatiue.

TO the end that we may proceede with more distinction and clearenesse in this Chapter,* 1.1 we are to presuppose with Diuus Thomas, and others, that Iustice may be sayd to be in Common two manner of wayes. First of all vnder this generall name of Iustice,* 1.2 is com∣prehended all kinde of vertue, & there∣of in this sense, saith the Philosopher, that Iustitia est omnis. virtus; Iustice includeth in it selfe all sortes of vertues what∣soeuer so that a iust Man, and a vertuous man is all one. And in this sense Christ conceiu'd it, when he said, Nisi a∣bu••d••uerit Iustitia; Except your righteousnesse exceede, &c. And in another place; Attendite ne iustitiam vestram faciatis coram hominibu••. Take heede that yee doe not boast your righteousnesse before men, to be seene of them. Of iustice, considered thus in the generall, we will not now treate of in this place; for in rigour and strictnesse, this is not true iustice, though it haue some similitude therewith. Now Iustice is taken after another manner for a particular virtue. To wit, that, which is one of the foure Cardinall vertues, which hath for it's obiect and end (as we shall tell you by and by) to giue vnto euery man that which is his right and his due. Of this (which is properly Iustice) do we here meane to treate; of whose Excellencies, all bookes are full, and whereof, the Ancients said; That it is a celestiall and diuine vertue, seated by God, in the mindes of men. Vlpian saith; That it is, Constans et perpetua voluntas, quae

tribuit cuique suum;* 1.3 A constant and perpetuall Will, attri∣buting to euery man his owne. Plato he goes a little farther; adding, that it is, singulare, et vnicum donum, &c. The onely singular gift, & the greatest good, that God communicated vnto Mortalls here vpon earth. For, from thence ariseth Peace & Concord. This is it's worke, & the end it pretendeth; Ac∣cording to that of Esay;* 1.4 Opus iustitiae pax. And the worke of iustice shalbe peace, euen the worke of Iustice and quiet∣nesse, and assurance for euer. And God himselfe, the Au∣thor, Cause, & fountain of Iustice, the first Title, & name that he tooke, when he created the world, before that hee had created Angels, men, and Beastes, was that of Iudge. Wher∣by we are to vnderstand, that there was a Iudge, and Iustice in the world, before any other thing was created. For, to haue created a world, without a Iudge, or iustice to gouerne it, and to punish humane excesses and disorders, had beene to make a denne of Thiefes, and Robbers. For all Kingdomes and Common-wealths, without Iustice (saith Saint Austen) had beene nothing else, but so many Armies,* 1.5 of Out-Lawes, Rebells, and high-way Robbers. Remota Iustitia, quid sunt regna, nisi magna latroicinia. Take away Iustice, and what are kingdomes, but Latroci∣nations, all kind of theft's, spoyles, and rogueries? Certaine it is, that the first Iudge, and Minister of Iustice, that was in the world, was God himselfe, who appointed Lawes, and Precepts, who did rule and gouerne without Kings, or other their substitutes, till Noahs time; who was the first Gouernour of his people, to whom he gaue order that he should liue in iustice and righteousnesse; doing the like afterwards to Moses, and after him, to his annoynted Kings. And therefore Esay stiles him Legislatorem, a Law-giuer. Dominu•• Legifer noster; The Lord is our Iudge, the Lord is our Law-giuer, the Lord is our King, he will saue vs. &c. And then in those dayes, by the sole power & hand of their Kings, was Iustice administred; And they

were called Iudges, because they did iudge according to the Lawes;* 1.6 And they tooke this name from Iustice it selfe. Iudex dictus est, quasi ius dicens populo: non ergò est Iudex, si iustitia in eo non est: He is called Iudge, of iudging the people vprightly: And he is no Iudge, if Iustice be not in him. His Obiect is Ius, or that which is iust and lawfull. And his office, to offend no man; to doe right vnto all, to giue euery one that, which is his; and what of right belongs vnto him. This Iustice hath power to determine, how, how much, and when, the good are to be rewarded and the bad punished; it is the harmonie of all good go∣uernment, and whereby the world is sustained; and where∣with as with meate and drinke, the life of man is preser∣ued. And if Iustice should faile, the world would present∣ly returne to that Chaos, and confusion, wherein it was at the first. And for that this Vertue, is so necessary for mans life,* 1.7 Saint Austen saith, that your ancient Kings did build and consecrate a Temple thereunto. And that on the high Altar, there were ingrauen certaine Letters, which spake thus: Iustice, that is vpright, and free from loue, or hatred, is the strongest chaine, that a Kingdome hath. Which suteth with that, which one of the seuentie Interpreters told King Ptolomy (as Aristeas reporteth it) who being demanded by him,* 1.8 how he might sustaine himselfe in his Kingdome, and hold concord and good correspondencie with so great a multitude and varietie of men, as were therein, replyed: By preseruing Iustice, and giuing to euery one what was fitting, and not otherwise. And this is so manifest a truth, that Plutarch affirmeth; That not Iupiter himselfe, though the greatest of the Pagan Gods, could be a good Gouernor without Iustice.* 1.9 In it (saith S. Ambrose) is found the Concordancie of all vertues & without it, there is neither consonancy, nor harmony. It is the Mistresse of Mans life, the extirper of Vice, the mother of peace, the defence of the Kingdome, the treasure of a Common-wealth, the ioy of

men,* 1.10 the com••ort of the poore, the cure of the sicke, and the medicine of the soule. Cicero, calls her the Queene and Lady of the Vertues:* 1.11 Plutarke would haue her to be in respect of the rest, as the Sunne amongst the Starres. Firmaianus affirmeth,* 1.12 that shee is the mother of them all. And as the Mother is before the Daughters; So Iustice hath the precedencie of all other Vertues. Scotus,* 1.13 surnamed the Subtile, together with Anselmus say;* 1.14 that if betweene Gods iustice and merc••e, there were any precedencie, Iustice would haue the prime place. In fine, it is the foundation and ground of all other vertues, and by which all ought to bee regulated and ordered. And we cannot ind••are it more, then in saying; That if Iustice should fayle, all the Vertues would fayle. And if that onely be kept, there will be li••le neede of the other. So said King Agesilaus. And it is Aristotles Tonent;* 1.15 That if Iustice were publickly and truly administred, Fortitude, and other the Vertues, would be superfluous. For one not iniurying another, all would be peace, loue, and charitie. And it is a vertue very natu∣rall vnto Man, who, in his owne nature, abhorreth Vice, and loueth goodnesse, and what is honest. And therefore amongst other things that are controuerted,* 1.16 Cicero saith, that there is not any thing more certaine to be knowne, then that Man was borne for to doe Iustice. It is she that ordaines things for the common good, and the good of our neighbour. And by how much the common is greater then the particular; So much doth this Vertue exceede o∣thers, that are ordayned to a particular person, or a mans owne selfe. Finally, it is very necessary for the conseruati∣on of the body,* 1.17 and the Saluation of the Soule. Diuus Thomas, and others, whose names I silence say; That 24. Vertues side, and take part with her, which they tearme Ad••utrices, Helpers, which doe serue and accompany her in all her Actions. And making vse of them, as of Coun∣saylours, and Aduisers, she determines what is iust, the

good which is to be followed, and the ill which is to be auoided, there being nothing, that hath not neede of it's fauour,* 1.18 and helpe. For, (according to Saint Gregory) it hath foure most potent opposites, which make the rod of Iustice to bow, and turne crooked, and to falsifie the tongue and beame of the ballance. To wit; Hatred, Fauour, Feare and Interest. Now Iustice is diuided into two parts, which are, the honour of God, and the loue of our neighbour. Aristotle, did likewise consider two other parts of Iustice. One common, which is ordayned for the Common-wealth, and the other particular which is instituted for our neighbour. Which by another name, they call Equitie, which man vsing with reason, dea'es so with others, as he would be dealt withall himselfe, vpon the Common, which imbraceth &* 1.19 includeth all the rest, Patritius founded his Common-wealth; And Pla••o his, vpon the particular. O∣thers diuide it into foure parts, or species, into Diuine, Na∣turall, Ciuill, and Iudiciall. Which the Schoolmen do define and declare at large, vnto whom I remit the Reader. But lay∣ing aside these diuisions,* 1.20 which make not for our purpose, the most proper and essentiall diuision of Iustice, is into Com∣mutatiue, and Distributiue. Which (as Diuus Thomas saith) are the partes Subi••ctiuae or subiectiue parts of this Iustice; that is to say, it's essential Species. And therefore we will treate of these two, and that very briefly. And first in the first place of the Commutatiue, and in the second of the distributiue.

Iustice Commutatiue, Contractiue, or Venditiue, (for all these names your Authors giue it, for the matter of Com∣mutations,* 1.21 Contracts and Sales, wherein it is exercised, is considered betwixt two, party and party, which are a part of that whole body of the Common-wealth, which giue, and take, betweene themselues, by way of Contract, or Sale. It's end, and obiect, is equalitie, and proportion, betweene that, which is giuen; and that, which is receiued; with∣out respect vnto the persons which buy, and sell, but to that

which is contracted, solde, or commutated, that there may be an equalitie and proportion had, betwixt that, which is giuen, and taken. And when in this there is a defection, it is contrary to Commutatiue Iustice. The distributiue, is considered betweene the whole, and it's parts. The Medium of this Vertue, doth not consist in the equaltie of thing to thing, but of the things to the persons; for, as one person surpasseth another, so the thing, which is giuen to such a person, exceedeth that part, which is giuen to another per∣son. So that there is an equalitie of proportion betweene that, which is more, and that which is lesse; but not an equalitie of quantitie, to wit; So much to the one, as to the other. For those, which in a Common-wealth, are not e∣quall in dignitie, and desert, ought not equally to enioy the Common goods thereof, when they are reparted and diuided by the hand of distributiue Iustice; As we shall shew you by and by, when we come to speake of the Com∣mutatiue, which treates of equalizing and according that, whch mens disordinate appetites, and boundlesse couetous∣nesse doth disconcerte, and put out of order, euery one being desirous to vsurpe that for himselfe, which of right appertaines, and belongs to another, whence arise your cose∣nages and deceits in humane Contracts, and whence doe resulte those contentions, dissensions, and sutes in Law. And to occurre and meete with these inconueniences, from the Alcalde of the poorest Village, to the highest and su∣premest Tribunall, those pretenders may appeale, if they cannot obtaine Iustice in those inferiour Courts. And therefore in Castile, in the Counsell Royal it is called by way of excellencie, Conseiode Iusticia The Counsel of Iustice. And in all well ordred Monarchies and Common-wealths,* 1.22 there is euermore carefull prouision made for this necessitie,* 1.23 dis∣persing in diuers Tribunalls, the fittest men for admini∣string Iustice, as we haue formerly related of that great Law-giuer Moses. And in the second booke of the Chro.

it is said of King Iehos••phat, that he appointed Audiences, and Tribunalls in all the principall Cities of his kingdome, and those euer at their very gates and entrance, that the Negociants and suitors might the more easily meete with the Ministers of Iustice (for this is the chiefest prouision, which a King should make for kis Kingdome) indearing to them all the faithfull administration thereof, and that with such graue words, and such effectuall reasons, that they deserue to be written in golden Letters vpon all the seates & Tribunalls of your Iudges.* 1.24 Videte, quid faciatis; non enim hominis exercetis iudicium, sed Domini; Et quodcunque in∣dicaueritis, in vos redundabit. Sit timor domini vobiscum, & cum diligentia cuncta facite; non est enim apud dominum deum nostrum iniquitas, nec personarum acceptio, nec cupido munerum: Take heede what ye doe, for yee execute not the iudgement of man, but of the Lord; and he will be with yee in the cause and iudgement. Wherefore now let the feare of the Lord be vpon yee. Take heede, and doe it; for there is no iniquitie with the Lord our God; neither respect of persons, nor receiuing of reward. The first thing that he admonisheth them of, is; Videte, quid faciat••s. Take heede, what yee doe Looke well about yee, and haue an eye to what ye doe. Heare, see, and consider, take time and leysure, be not ouer-hasty in sentencing a sute, till yee haue studied the case well and throughly, and are able as well to satisfie others, as your selues. Vsing that care and circumspection,* 1.25 as did that iust man Iob. Causam, quam nesoiebam, diligentissime inuestigabam. When I knew not the cause, I sought it out diligently; As if his life had lyen vpon it. Alciat saith; That the Tribunes had at the gates of their houses the Image of a King, sitting in his throane, hauing hands, but no eyes; And certaine Statuas about him, seeming to be Iudges, hauing eyes, but no hands; Whereby they declared the Office of a King, and the duty of Iudges, painting him with hands, and them without

them; but with as many eyes as that fabulous Argos had; or like vnto those Mysticall beastes,* 1.26 which Saint Iohn saw full of eyes within, and on euery side. To shew that they should study, see, and examine causes, and all whatsoeuer passeth in the Common-wealth, and to informe the King thereof; who, is to haue hands, and Armes, courage, and power, for execution.

Againe, that good King puts them in minde that it is not mans, but Gods Office that they take in hand, whose proper Office is to iudge: And therefore in the Scripture, your Iudges are called Gods. And since that they are his Lieuetenants, let them labour for to doe Iustice, as God himselfe doth. For I must be so bold as to tell them, that there is a reuiewing of the businesse, and a place of Appea∣ling in the supreme Counsell of his diuine Iustice. And there the Party pretending doth not deposite his thousand and fiue hundred ducats, but the Iudge, who lyes at stake for it, and if he shall Iudge amisse, he is to pay all costes and charges, and sute of Courte. Quodounque iudicaue∣ritis, (sayth that good King) in vos redundabit. What∣soeuer yee shall iudge it shall light vpon your selfes. He threatneth that, which God deliuereth in the booke of Wisedome to the Kings and Iudges of the earth: Audite ergo Roges, & intelligite Iudices terrae: Heare me, yee that rule and gouerne the world, and yee that glory in the multi∣tude of nations that are subiect vnto you, & vnderstand, that the power that yee haue is from God, and that he is to make a Quaere, and inquire of your Actions and thoughts. And for that being his Ministers, ye haue not iudged according to his will,* 1.27 nor kept his lawes, nor done Iustice, Horrendae & citò apparebit vobis: Horibly, and sodainly will he ap∣peare vnto you. He that is most low shall finde mercie with him, but the mighty, shall be mightily tormented. All these are the wordes of the wisedome of Salomon and which are not to escape the memorie of Kings, and their

Ministers. And Iehosophat, as a remedie vnto all; prescri∣beth vnto his Iudges and Counsellours, one good Coun∣sayle, and sound aduise, which is this; That in all the sen∣tences they shall pronounce, that they set before their eyes the feare of God.* 1.28 For, (as both Saint Chrysostome and S. Austin affirme) it is easie for him to swarue from Iustice, who feareth not God in what he doth. As likewise, that they should dispatch businesses with diligence. For there are some, that indeauour to eternize sutes. And why they doe so, God, & the world knowes. Bribery and Corruption are the Remo∣ras, that stop the course of Iustice, and the cause, that sutes are so long depending before they be brought to a conclusi∣on; to the confusion and vndoing of those that follow them, who are faine, by deferring, to deferring, and putting ouer from hearing to hearing, to sell their very clothes from their backs to wage Law. And when at last with much adoe, they haue sentence past on their side, they are neuer a whit the better for it, but is conuerted into gall and bitternesse, for that his sute hath cost him seuentimes more, then it was worth.* 1.29 To such Iudges as these, suteth that of the Prophet Amos: Conuertistis in amaritudinem, Iudicium; & fructum iustitiae in Absinthium: Yee haue turned iudgement into gall, and the fruit of righteousnesse into worme-wood. Furthermore, saith that good King; Consider that yee oc∣cupie Gods place, who wrongeth no man, nor is an Accep∣ter of Persons. Yee must administer Iustice equally to all, giuing to euery one, that which is his, and of right belongs vnto him, without any other humane respect. For Iustice acknowledgeth neither Father nor Mother nor friend, but meere Truth. Cleon tooke leaue of his friends, when he was made a Iudge. And Themistocles refused Magistracie, saying That he would not possesse that place, where his friends could not be in better condition with him, then his foes. Lastly, he tels them, that he would not haue them to be coue∣tous, nor receiuers of rewards. And therfore are they pictu'rd without hands, because they should not haue the faculty and

gift of taking.* 1.30 Non accipies personam, nec munera. It is Moses his Aduise in Deuteronomy. Wrest not thou the Law, nor respect any person, neither take reward. For the reward blin∣deth the eyes of the wise, & peruerteth the words of the Iust. Iustice should be like vnto the sunne, whose light costes vs nothing, and is neither bought, nor solde. Non licet indi••i (saith Saint Austin) vendere iustum indicium: It becomes not a iudge, to sell iust iudgement: All this appertaineth to Com∣mutatiue Iustice; And to that obligation likewise which kings haue to cumply with whatsoeuer bargaines or contracts haue bin formally made, without acceptation of persons, for he is not to regard them, but the truth. To this Iustice, apper∣taineth likewise, the giuing, and paying of soldiers, their re∣ward, and their pay: For they doe tacitely make a contract with their Prince to serue him in that Ministry for so many Ducatts a month; And this is due vnto them in all Iustice & right. For otherwise, there should not be an equalitie, be∣tweene a Souldiers paines and his pay. Nor ought hee to put them off with delayes, remitting the remuneration of their seruice to other Ministers, seeing that they serue them in their owne persons, and that the obligation is reciprocall. And therefore a certaine bolde Soldier tolde Augustus Caesar, who thought he had done him a great fauour in recommen∣ding him by a fauourit of his to those of the Counsel of warr, that they might heare him, and doe him Iustice; Sir (said he) when your Honor and Authoritie ran so much hazard, and your person put to great perill, did I depute another in my place to fight for me? And therewith all vnbuttoning his dublet, be shew'd him the wounds which he had receiued in his body in his defence. By which he obliged him to heare his cause himselfe, & to giue present order that he should be well and truly payd. And when they in the seruice of their king, shall do more then they are bound vnto▪ a••some which vnder-go braue and noble attempts, ieoparding their fifes in such kinde of desperate enterprises, howbeit commutatiue

Iustice obligeth not to giue them more then their ordinary pay, yet in a iust gratification, it is required of Kings, that they should reward and honour them, according to the qualitie of their persons, and seruices. For a Qiust King, ought not to leaue any seruice vnrewarded nor any fault vnpunished. For Prae∣mium, & P••na, Reward, and Punishment, are those two Plummets, which keepe the clock of the Common-wealth in good Order.

But to giue a conclusion to this first part, I say; That Iustice ought to be in all, and with all, all equall and compleat. And for this cause she is called Flos, a flower. Giuing vs thereby to vnderstand, that to all she should be Florida, fresh and flou∣rishing. Not being like a dry rotten sticke to some, and full of sweetenesse to others. And as in a tree, after the flower fol∣lowes the fruit; So likewise is to be conceiued, that in kings and Iudges, this Vertue is not true, if it consist onely in the leafe and the flower, and doe not come to beare fruit. And therefore in the sacred Scripture, those that doe not as well in deede, as in shew, truly & vprightly administer ••ustice, are called Hypocrites; for that they haue no more of Kings and Iudges, then the bare name, & Title. They ought to be Vina Lex, and Ius anim••tum; the very life and soule of the Law, that Men may come vnto them, not as to a Man, but as to e∣quitie, and iustice it selfe. They must haue their plummet & their Lines runne euen and Ieuell towards all: Their Vare, or rod of Iustice, must not be too short for some, & too long for other some. Let Right strike the stroake, & let no man be deny'd Iustice. For this is to be Kings, and Iudges; this, to be common fathers to all poore and rich, great & small, meane and mighty.* 1.31 Audite illos (saith God) et quod iustum est, iudi∣cate, siue Ciuis illesit, siue perigrinus, nulla erit distantia perso∣narum, ita paruum audietis, vt magnum, nec accipietis cuius∣quam personam quia dei iudicium est. Heare the controuersies betweene your brethren, and iudge righteously betweene e∣uery man and his brother, and the stranger that is with him.

Yee shall haue no respect of person in iudgement, but shall heare the small as well as the great; ye shall not feare the face of man, for the Iudgement is Gods.

Notes

• * 1.1

  D. Tho. 1. p. q. 21 artic. 1 &. ••. 2 q. 61. art. 3. So••o de Iustitiae. & iust lib. 3. Arist: 5. Ethic. cap: 2. 1.
• * 1.2

  Mat. 5. 20. & 6. & 1.
• * 1.3

  Lib. 1. 〈◊〉〈◊〉 De Iust. & i••:
• * 1.4

  Esay 32. 17.
• * 1.5

  Aug. lib. 4. de ciuit. Dei. cap. 14.
• * 1.6

  Isidor. lib. Etymol.
• * 1.7

  Aug. de Doctr. Christ.
• * 1.8

  Aristeas in Hist.
• * 1.9

  Ambr. lib. 2. in Lu••. Aug. lib. de 〈…〉〈…〉.
• * 1.10

  Cirero. lib. 3•• de Officijs.
• * 1.11

  Plut in Moral. lib de Doctr. prim.
• * 1.12

  Lact. Tirm: lib. 3 cap. 22. & lib. lib 5. cap 5.
• * 1.13

  Scot lib. 4. 〈◊〉〈◊〉 46. q. 3.
• * 1.14

  Anselm: in Prosolog. Plutarc. in Ag••. 〈◊〉〈◊〉.
• * 1.15

  Arist: 3. Top. cap. 2. 1,
• * 1.16

  Cicero lib. 1. de Leg▪
• * 1.17

  S. Tho 2. 2. 7. So. Art. 1.
• * 1.18

  Gregor. 6. qua. tuor modus. 11. q. 3. de re iud. in 6. cap. 1.
• * 1.19

  Patri. de Reg. lib. 8. Tit. 2.
• * 1.20

  ••colastici cum D. Tho. 2. 2▪ q 80 art. 1.
• * 1.21

  Arist. 10. Met: Tit. 11.
• * 1.22

  Exod. 18.
• * 1.23

  Deut. 1.
• * 1.24

  2 Ch••on. 19. 6.
• * 1.25

  Iob. 29. 16.
• * 1.26

  Apoc. 4. 7.
• * 1.27

  Wisd. 6. 5.
• * 1.28

  Chrys. in Serm. 〈◊〉〈◊〉 Bapt. Aug. ad fratres in Erem ser. 35.
• * 1.29

  Amos 6. 12.
• * 1.30

  Deut. 16. 19.
• * 1.31

  Deut. 1. 16.