The six bookes of a common-weale. VVritten by I. Bodin a famous lawyer, and a man of great experience in matters of state. Out of the French and Latine copies, done into English, by Richard Knolles

CHAP. VI. [ A] ¶ Of the mutuall duties of Magistrates among themselues, and of the power that one of them hath ouer an other.

IN euery well ordered Commonweale there be three degrees of* 1.1 Magistrates: The highest, which is of them which may be called soueraigne magistrats, and know none greater then themselues, but the soueraigne Maiestie onely: The middle sort which obey their superiours, and yet commaund others: And the lowest de∣gree of all, which is of them which haue no commaund at all [ B] ouer any other magistrats, but onely ouer particular men subiect to their iurisdiction. Now of soueraigne magistrats, some haue power to commaund all magistrats without exception, and other some acknowledge no superiour but the soueraigne Maiestie, and yet haue no power ouer all the rest of the magistrats which are placed in the middle & lowest degrees, but ouer such onely as are subiect vnto their iurisdiction. Of the first sort of soueraigne magistrates which haue power ouer all others, and that know none their superiours, but the soueraigne power, there are but verie few, and fewer at this present then in auntient time: for that it is by daily experi∣ence found, nothing to be more dangerous in a Commonweale, then for some one* 1.2 magistrat to be aboue the rest, who may lawfully commaund all the rest, aswell pri∣uate [ C] persons as magistrats, wanting himselfe but one step or degree to mount vnto the soueraigntie, and that especially if his soueraigne magistrate which hath such power bee alone, and without a companion, hauing all in his owne hand: as had sometime the Grand Prouost of the Empire, whom they called Praefectum Praetorio, who had commaund ouer all the Magistrates throughout the whole Empire, and might receiue the appeales from all the other magistrates and gouernours; but might not be appealed from himselfe, no not although the appeal were made euen vnto the Emperour himselfe, albeit that the first which were promoted to this dignitie and ho∣nour, were but captaines of the praetorian legions: as Seius Strabo the first that was pre∣ferred [ D] vnto this office vnder Augustus: and after that Seianus vnder Tiberius. Which honour the other succeeding Emperours thought good to bestow vpon such as of whose integritie, fidelitie, and deuotion towards them they had had good experience and proofe: such as they would in some sort to be their imperiall Lieutenants, vpon whom they for the most part discharged the mannaging of their greatest affaires, such as were by the Emperours themselues to haue beene discharged: as the hearing of im∣periall causes: the receiuing and dismissing of Embassadours: the hearing of appeales from the Magistrats of all prouinces; which great charge for that no man could well execute, except he were skilfull in the Lawes, the Emperours in steed of captaines of their legions, preferred lawyers to that honour. So did Otho the emperour promote Martian: Seuerus, Papinian: and Alexander, Vlpian. And at length vnder the Greek [ E] emperours, two great Prouosts of the empire were by the Emperours created, and at last three also, that the greatnes of their power so diuided might be lessened; and yet the honour thereof imparted to moe. Such soueraigne Magistrats were with our aun∣cestours: the Master of the Pallace: and he whom they called the Prince of Fraunce: and of late Henry duke of Aniou, king Charles his great Lieutenant: and the chiefe Bassa in the Turkes empire: and the great Edegnare or Diadare in Aegypt vnder the princi∣palitie of the Mamaluke Sultans. Yet in this they differ, that in the Turkish empire the Great Sultans children in the absence of their father commaund aboue all the Bas∣saes,

and had the preheminence and precedence before them: and in Aegypt the great [ F] Edegnare commaunded ouer all the rest of the Magistrates, excepting such onely as had the keeping of the castles & fortresses of the kingdom committed to their charge, ouer whom he had no commaund. Which manner and custome whether the Prin∣ces of the East tooke it from ours, or our Princes from them, we still keepe together with the Italians, Germaines, Spaniards, and most of other Nations also. Wherefore* 1.3 the soueraigne power to commaund ouer all Magistrats and officers without excepti∣on, ought not to be giuen to one alone, but in case of necessity; as when the Common∣weale cannot otherwise be preserued: and yet then not with the authoritie and coun∣tenance of a standing office, but by way of commission onely, such as were in auntient time graunted vnto the Roman Dictators, the Archo of the Thessalians, and Azym∣nets [ G] of the Lacedemonians: and now with vs are giuen vnto Protectors and Regents, in the absence, furie, or minoritie of soueraigne Princes. In the absence I say of the so∣ueraigne prince, for that in his presence all the power & commaund of magistrates and* 1.4 commissioners cease: For as the force and strength of all riuers and flouds is together with their names lost and swallowed vp when they once fall into the Sea; and as the other heauenly lights, as well the planets as other starres, lose their light in the presence of the Sunne, or as soone as he approacheth the horizon, in so much as that they seeme againe to render vnto him the whole light that they had before borowed of him▪ euen so likewise all the authoritie of the Senat, and all the commaund and power of Magi∣strats cease in the presence of the prince. So we see that he which deliuereth the soue∣raigne [ H] princes mind, whether it be in counsell, or in soueraigne court, before the states, or vnto the people, still vseth these wordes, So and so the king commaundeth, or saieth. But to the contrarie, if the prince be absent, the Chauncelour or President keeping the kings place aboue the other princes, pronounceth sentence or iudgement according to the opinion and mind of the Senat or Court wherein he sitteth, hauing ordinarie iu∣risdiction and power, and not in the name of the king. And for asmuch as William Poyet Chauncelour of Fraunce, and President of the great Counsell, in the absence of the king, oftentimes in iudgement vsed this forme of speech, The king saith so and so vnto you; he was therefore charged with treason, besides the other points of his accusa∣tion. Wherefore many are deceiued which thinke those lawes or Edicts which are [ I] published or ratified in the councell or court, in the presence of the prince, to be so pub∣lished or confirmed by the Court or Councell: seeing that the Court hath then the hands bound, and that it is none but the king that so commaundeth, the motion or consent of his Attourney, the prince himselfe being then present, seruing to no purpose at all. And in Popular estates, the greatest magistrats as well as the least, in token of their humilitie, laid downe their mases and other tokens of honour before the people, and so standing, spake vnto the people sitting: showing, that in their presence they had no power at all to commaund. So all the motions made by the magistrates of Rome, were by way of humble request, as in this forme, Velitis, Iubeatis, May it please [ K] you, or commaund: VVhereunto the people there present, giuing their consent with alowd voice, before the law Cassia Tabellaria, vsed these words, Omnes qui hic assident volumus, iubemusque, All we that here sit will and commaund. And after the lawes called Tabellarias, the letters A. and V. R. written in the tables, signified Antiquo, (or, I repeale the law) and Vti Rogas (or, as you request). And in like manner the people of Athens gaue their voyces sitting, the magistrat in the meane time speaking vnto them standing, so long as they had any thing to say vnto them.

But then might some man say, If it be so, that the magistrats had no power to com∣maund particular men, nor yet one another, in the presence of the people which had

the soueraigntie. VVhy did the Tribune of the people send his vsher vnto Appius [ A] Claudius the Consull, to commaund him to silence? And why did the Consull •…•…o re∣quite him with like, send his sergeant vnto him likewise, crying with a lowd voice, That the Tribune was no magistrat? VVhereunto I aunswere, that such contention and debate▪ oftentimes fell out amongst the magistrats, and especially betwixt the Consuls and the Tribunes: yet may we not thereof conclude, that either of them had any pow∣er to commaund the one the other, in the presence of the people, both their authorities then ceasing. So a controuersie arising betwixt the high court of Paris, and the court of Aids, for wearing of their purple robes, and accompanying the king, not farre from Henrie the second the French king, the president of the greater court of Paris sent a ser∣geant vnto the judges of the court of Aides, to forbid them to go any further: (and al∣beit [ B] that the king was not so nie as that he could heare such the presidents commaund) yet receiued he such aunswere from the judges, That hee had no such power to com∣maund ouer the court of Aids, and if he had, that yet he could not rightly there vse the same in the presence of the king.

But yet some man might obiect and say, That if the magistrats had no power to commaund in the presence of the prince, they were no more magistrats, neither should so great regard be had of their honours and dignities the prince being present, so as we see there is. VVhereunto mine aunswere is, That the magistrats by the presence of the prince loose nothing, but still continue in their offices, and so consequently in their dig∣nities and honours, their power to commaund being but suspended. As in like case [ C] the Dictator being created, all the magistrats continued in their estates and offices, howbeit that all their commaunding power was then holden in suspence: but so soone as the Dictators commission was expired, and he once out of his office, the magistrats againe commaunded by the same right they had before: which they could not haue done, if their magistracies and offices had so, & indeed bene from them taken. Which may serue for aunswere to that which might be alleaged of these words, which are of∣tentimes to be read in the writings of the auntient Romans, viz. Creaeto Dictatore ma∣gistratus abdi•…•…aht, Whereby it might seeme that the Dictator being created, the ma∣gistrats were out of office: which is not to be vnderstood of their offices, but of their power, as we haue before said, which was so for a while suspended. For otherwise the [ D] Dictator yeelding vp his office, the magistrats must haue sought for new power and authoritie from the people, their former power being before together with their office* 1.5 expired. And the reason is generall, that the power of the inferiour should be holden in suspence, in the presence of the superiour: for otherwise the subiect might command contrarie to the will of his lord, the seruant contrarie to the good liking of his master and the magistrat contrarie to the will and pleasure of his soueraigne prince•…•… o•…•… might at leastwise oppose himselfe against him, and by the vertue of his office forbid the in∣feriour persons to performe the commaunds of their superiours: which can in no wise be done, without ineuitable preiudice vnto the soueraigntie▪ except it be that the prince laying aside the soueraigntie of his person, goeth to see how his magistrats commaund; [ E] as the emperour Claudius ofttimes went openly to see the doings of his magistrats, and without disguising himselfe sat beneath them, foolishly giuing to them the more ho∣nourable place: or else in case tha•…•… the prince, his maiestie in a sort set aside, giue leaue to the magistrat to iudge of his cause. For the maxime of the law, which saith, That the magistrat of equall or greater power may bee iudged by his companion or fellow in office, or by his inferiour also, when he snbmitteth himselfe vnto his power, hath place not onely in priuat persons and magistrats, but euen in soueraigne princes also; whether it please them to submit themselues or their causes to the iudgement of

other princes, or of their owne subiects. And albeit that they may bee judges in their [ F] * 1.6 owne causes, vnto whome power is by God giuen to iudge, without beeing bound to the law, as Xenophon saith; yet neuerthesse it is much better beseeming their maiestie, and more indifferent also for them in their owne causes to abide the iudgement of their magistrats, than to become judges thereof themselues. But to the intent that the soue∣raigne maiestie of princes should not in any thing be impaired of the greatnesse there∣of, and yet that the brightnesse and glorie of the royall name should not dazle the eies of the judges, it was wisely in this realme ordained by our auncestors, That the king should not plead but by his atturney; and that in all publike causes wherein the king or Commonweale were priuatly interessed, the kings name should be still cancelled, and the matter pleaded but in the name of his attourney. Which thing the rest of the [ G] princes and others hauing territorial iurisdiction, haue afterwards imitated and follow∣ed. So Augustus the emperour writ vnto the lieutenants of his prouinces, That they should not suffer his name to be debased with being too common in their commissi∣ons, as Tranquillus reporteth. Yet is it by a certaine speciall custome by our auncestors receiued, that if the king will in priuat iudgements against priuat men, be restored, the kings attourney shall not in demaunding thereof hold his seat and place, but chaunge the same, least he should seeme to plead a publike and not a priuat cause. But whereas we haue said, the power of the magistrats to be suspended in the presence of the prince, belongeth vnto the whole princes familie, so long as they waite vppon the prince: for ouer them the ciuil magistrats haue no power, except such magistrats as the prince hath [ H] appointed for the executing of the iurisdiction of the court.

Yet a man might demaund, Whether the magistrat might forbid a subiect or pri∣uat* 1.7 man to come vnto the court, being within the iurisdiction of his territorie? Which is not without some difficultie: howbeit without entring into farther dispute, I say, that the magistrat banishing the guiltie subiect out of the territorie of his iurisdiction, where the prince may then be, secretly also forbiddeth him to approach the court, albeit that he cannot expresly forbid him to come vnto the princes court. Wherein the rule of Vlpian the lawyer taketh place, which saith, Expressa nocent, non expressa non nocent, Things expressed hurt, but things not expressed hurt not. And I remember how that [ I] it seemed a thing right strange vnto the court, and especially vnto the chauncellours of the houshold, that the Commissioners deputed by the prince, for the triall of the presi∣dent Allemand (who familiarly vsed my councell) hauing by their sentence condemned him, forbad him also to come within ten leagues of the court. Which thing the coun∣cell vnderstanding, decreed, That it was lawfull for no man but the prince only to make any such prohibition. And haply was the chiefe cause that the president (of whose councell I was) obtained of the king, to haue the iudgement reuersed. For it were not onely an hard and inhumane thing, to keepe the subiects from hauing accesse vnto the prince, to deliuer vnto him their petitions (as well agreeing with the lawes both of God and nature) but it should also be a thing much preiudiciall vnto the maiestie of a soue∣raigne [ K] prince, as I haue before said. And albeit that the superiour courts of this king∣dome haue vsed to banish men out of the realme, and so out of the bounds of their iuris∣diction, yet should such their iudgement take none effect, if the king in whose name the courts of Parliament giue iudgement, gaue them not commission so to do, and that his royall commaunds were not vnto such their sentences subscribed: So their decrees also in forme begin in the kings name.

Now as the presence of the Prince holdeth the power of all Magistrats in suspence,* 1.8 so is it also to be deemed of the power of the superiour magistrates or commissioners ouer the inferior. As a man may see in Fraunce, where the Presidents & Councelours,

euery one in his iurisdiction, and the Masters of Requestes in all seates of iustice, (ex∣cept [ A] the soueraigne courts) haue power to commaund the Seneschals, Bailiffes, Pro∣uosts, and other inferior magistrates, when they come into their prouinces, and sit in their places of justice, and there may iudge, ordaine, and commaund as superiours vnto their inferiours, and prohibit them to proceed any further, which is generall to all supe∣riour magistrats towards their inferiours, as saith the law: Iudicium soluitur, ventante eo qui iudicare iusserat, vel qui maius imperium in ea iurisdictione habet, The iudgement is stayed, he forbidding it which commaunded it, or he which hath greater power in the same iurisdiction. Where the word, Imperium, or power, signifieth not onely the power to commaund, or forbid, but euen the magistrat himselfe: As when Cicero saith: Maius imperium à minori rogari ius non est, Lawfull it is not, for the greater power to [ B] be examined by the lesse; he would say, that the magistrat or commissioner equall or superiour in power, is not bound to answere before his companion, or one lesse then himselfe, which is a Maxime of the auntients, which Messala the Lawyer decla∣reth by example, as thus: A minore imperto, maius, aut a maiore collega rogari iure non potest: quare neque Consules aut Praetores, Censoribus, neque Censores, Consulibus aut Praetoribus turbant, aut retinent auspicia, at Censores inter se; rursus Praetores Consu∣les{que} inter se, & vitiant et obtinent, The greater power cannot by right be examined by the lesse, or a fellow in office, by an other his fellow officer though greater then him selfe: wherefore neither the Consuls or Pretors trouble, or keepe the south-sayings from the Censors, neither the Censors from the Consuls or Pretors, but the Censors [ C] amongst themselues; and so againe the Pretors and Consuls among themselues, do one hinder an other, and so preuaile. And these be the words of Messala, which hee saith himselfe to haue writ out of the xiiij booke of C. Tuditanus, but hath failed in that which he saith after: Praetor etsi Collega Consulis est, neque Praetorem, neque Consu∣lem iure rogare potest, The Pretor although he be the Consuls companion, can by right examine neither the Pretor nor the Consul, which was happely done by the errour of him that write it: For he should haue said: Praetor etsi Collega Praetoris est, The Pre∣tor although he be the Pretors companion, and not, Consulis, or the Consuls: except we should salue the matter, in saying that the Consuls, Pretors, and Censors were all fellowes and companions: Quia soli ijsdem auspicijs, ijsdem comitijs, id est maioribus [ D] creabantur, caeteri magistratus minoribus auspicijs & comitijs, for that they alone were created and chosen, by the same diuinations and assemblies, that is to say the greater: whereas the other magistrats were chosen by the lesser, for otherwise the Latins neuer abused the word (Collega) in that sence; Besides that the Pretor was neuer the Con∣suls companion or fellow: but well to the contrarie, appeal might lawfully be made from the Pretor to the Consul. As we read that Aemylius Lepidus the Consul receiued a man appealing from the Pretor Orestes; and by a contrarie decree reuersed the Pre∣tors decree. So we read also that Luctatius the Consull tooke the triumph from Vale∣rius the Pretor, for that he being Consull was the generall of the armie, although he were that day from the armie wherein the victorie was got. That showeth also the [ E] power of the Consull to haue beene greater then the Pretors, for that the Consull had twelue Lictors, and the Pretors but two in the citie, and sixe at the most if they were sent into the prouinces, whom the Greekes therefore called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, for so it is by the law Lectoria prouided, which was made concerning the power of the Pretor of the citie; who was of all other Pretors the greatest: Praetor Vrbanus duos Lictores apud se habeto, isque ad supremum solis occasum ius inter ciues dicito, The Pretor (or Prouost) of the citie, let him haue with him two Lictors, and let him administer justice amongst the citizens vnto the going downe of the sunne. Wherefore let this stand for good,

not onely fellowes and companions in the same power, but also magistrats of like and [ F] equall power, not to haue power to examine one another, and therefore much lesse them which haue greater power than themselues.

But yet question may be, whether a companion or fellow in office, or one of lesser* 1.9 power, or he which is no fellow in office at all, yet hauing power in his owne iuris∣diction, may therein stay the acts or proceedings of his equall or superiour in authori∣tie? For oftentimes great cōtrouersies haue fallen amongst magistrats about such pre∣rogatiues. And the difference is right great betwixt commaundement, and empeach∣ment or opposition: for companions or fellowes in office haue no commaunding po∣wer one of them ouer an other, and yet neuerthelesse they may in publique actions one of them oppose themselues against an other, and so hinder one an others procee∣dings. [ G] * 1.10 As Piso the Pretor or judge betwixt straungers and the citisens of Rome, oft times troubled Verres the Pretor of the citie, sitting in iudgement of causes betwixt ci∣tisen and citisen: causing his tribunall seat to be brought neere vnto the tribunall seat of the Pretor of the citie, so to hinder the vniust and iniurious decrees of Verres; and so administred iustice vnto the citisens flying from the tribunall seat of the citie, vnto him, as by the law they might. And therefore Cicero in one of his lawes sayth: Magistra∣tus nec obedientem, & nociuum ci•…•…em, mulcta, verberibus, vinculis coerceto, nisi par ma∣iorue potestas prohibessit, Let the magistrat restraine the disobedient and hurtfull citisen, with fine, stripes, and bondes, except an equall or greater power forbid it to be done:* 1.11 neither sufficeth it to say prohibessit, or forbid it, for that the magistrat can do nothing [ H] in the presence of his companion equall in power with himselfe, without his expresse consent, or else that he submit himselfe vnto his power. As it appeareth in that which Paulus the lawyer saith: Apud eum cui par imperium est manumitti non posse, & Praeto∣rem apud Praetorem manumittere non posse, Before him which hath equall power (with himselfe) a man cannot manumize, and a Pretor before another Pretor cannot ma∣numize. Neither doth that saying of Vlpian contradict or impugne the same: Con∣sulem apud Consulem manumittere posse, which is, That one of the Consuls may manumize before the other Consul: seeing that that is to be vnderstood that he might not doe it vpon the same day that hee which did manumize or enfranchise had the bundels of rods and power to commaund; for that they both neuer had power vpon [ I] the same day, as saith Festus Pompeius, as is in many places to be seene, whether they were at vnitie betwixt themselues or not. And therefore Liuie surnamed the Salter, car∣ried away the triumph from Claudius Nero his fellow and companion in the Con∣sulship, for that he commaunded that day wherein the victorie was obtained (as saith Liuie) albeit that the battell were giuen against Hasdruball by consent of them both; For Lucius Caesar (as Festus Pompeius writeth) deemeth him to be called the greater Consul, which had the bundels of rods or maces; or him which was first made Consul; which Paulus himselfe confirmeth. And all this wisely, for if both of them should at once haue had the power, nothing could haue beene peaceable, nothing firme or [ K] sure in the great affaires of the Commonweale. Wherefore the Decemuiri beeing created at Rome for the reforming of the Commonweale, and making of the lawes of the xij Tables; it was added vnto the law, That they should by turnes haue the ma∣ces with the power to commaund. Now if any man aske the reason why a fellow in office may impeach or stay his fellow officer in his proceeding, if they both haue au∣thoritie and power at the same time: it is grounded vpon the reason generall, of all them which haue any thing in common, wherein he which forbiddeth hath most force, and his condition in that case is better than his which would proceed on further. Which reason preuaileth also, when question is of the force & power of laws, wherein

the force of the law which forbiddeth, is greater then of that which commaundeth. [ A]

But whereas we haue said Magistrats of like power or fellowes in office not to be* 1.12 bound to the power or commaund of their companions or fellowes, that is so true if that they both be in number equall: for in all Corporations and Colleges, they which are in number most, are also superiour in power: and therefore the lesse part of magi∣strats fellowes in office, cannot forbid the greater. But if all the Magistrats were of one mind and opinion, these words were wont to be written vpon their decrees and edicts, Pro Collegio, for the Colledge, (which shall in their place be expounded.) But if it be true that we haue said, why did then Messala say? Consulem ab omnibus magistratibus concionē auocare posse▪ ab eo neminem: deinde Praetorem ab alijs preterquàm a Consulibus: minores magistratus nusquam nec concionem nec comitatum auocasse, That the Consull [ B] might call the assemble of the people from al the Magistrats, but none might call them from him, and so next after him that the Pretors might call them from all others, excep∣ting from the Consuls: but that the lesser magistrats could no where call away, neither the assemblie nor sessions of the people. Wherof it followeth, that the impeachment & opposition of the lesser magistrats could not in any sort let or hinder the actions or commaunds of the greater. Whereunto I aunswere, that to call away belongeth to power and commaund, which opposition doth not. Now there is great difference, whether you commaund, or otherwise hinder any thing to be done, as we will here∣after more plainely declare. But first it is to be noted, that that which Messala saith is true in other magistrats, but not in the Tribunes of the people: whome wee haue [ C] showed to haue had the title of magistrats, with power to assemble and call together the common people, and to constraine the Consuls to giue place vnto their oppositi∣on, not so much by the power they had to commaund▪ as by imprisoning of their per∣sons, and seising of their goods: for if they commaunded any thing, and the magistrat refused or reiected their commands, they forthwith for such their contempt, comman∣ded them to be cast in prison: For so Seruilius the Senator directing his speech vnto the Tribunes, saith, Vos Tribunt plebis Senatus appellat, vt in tanto discrimine Reipublicae Dictatorem dicere Consules provestra potestate cogatis, Tribuni pro collegio pronuntiant, placere Consules Senatus dicto audientes esse, aut in vincula se duc•…•… iussuros, The Senat cal∣leth vpon you the Tribunes of the people, that in so great a daunger of the Common∣weale, [ D] you for the power you haue, would compell the Consuls to nominat a Dicta∣tor. The Tribunes in the name of the colledge of Tribunes pronounced that their pleasure was, that the Consuls should be obedient vnto the commaund of the Senat: threatning otherwise to commaund them to bee cast into bonds. And it was so farre from being lawfull for the Consuls to haue power to hinder the assemblies of the common people called together by the Tribunes, as that it was not in their power so much as to interpret them in speaking vnto the people, and that vppon paine of death by the law Icilia, if he that had so interpreted the Tribune in his oration or speech, pai∣ed not the fine or amercement imposed vpon him by the Tribune. As the Tribune Drusus well caused Philip the Consull to vnderstand, whome he made to be cast in pri∣son [ E] for interrupting him in his speech vnto the people.

That also which we haue said, the greater part of a companie, or colledge of magi∣strats* 1.13 to preuaile against the lesser, taketh not place amongst the Tribunes of the peo∣ple, one of the Tribunes voices being able of it selfe to stay all the proceedings, not of the Senat onely, but of all other the magistrats, yea & of the rest of his fellow Tribunes also: whereas to the contrarie, the acts of one Tribune alone, were of force, except some of his fellowes and companions openly opposed himselfe against the same. As is in Liuie to be seene, where he saith, The farmers of the publike demaine to haue beene

discharged by a decree published vnder the name but of one of the Tribunes only. And [ F] that the power of the greater part of the Tribunes might bee withstood by the fewer opposing themselues against them, it is manifest by that, that at such time as Appius the Censor by force held his power and Censorship longer than he should haue done, and the time thereof being now expired, contratie to the law Aemilia, Sempronius the Tri∣bune of the people in the open assemblie of the people, said vnto him, Ego te Appi in vincula duci iubebo nisi Aemiliae legi parueris, approbantibus sex Tribunis actionem colle∣gae, tres auxilio fuerunt summaque inuidia omnium or dinum solus Censuram gessit, I will commaund thee, O Appius (saith he) to be cast into bonds, except thou obey the law Aemilia; and six so of the Tribunes allowing & approuing the doing of their compani∣on and follow Tribunes, three others of them tooke part with Appius, and so hee alone [ G] held his Censorship, with the great enuie and hart-burning of all sorts of men. So like∣wise at such time as Cicero then Consull (the armie of Cateline beeing discomfited and ouerthrowne, by the conduct of C. Antonius the other Consull) bare all the sway in the citie, and had turned all the fauour of the people vnto himselfe alone, nine of the Tri∣bunes of the people to restraine such his immoderat power, were all of opinion to send for Pompey with his armie; and had so done, had not Cato one of the Tribunes of the people alone opposed himselfe in Ciceroes behalfe, and so hindered the proceeding of his fellow Tribunes. So when Scipio Africanus accused of extortion, was to haue bene cast in prison, he was saued onely by Sempronius one of the Tribunes, and father of the Gracchies, opposing himselfe against his fellowes. [ H]

But how (might some man say) could one Tribune alone let the actions and procee∣dings of the Senat, of the Consuls, yea and of all his companions and fellowes in office also? Yet most certaine it is that he might so do, if the other Tribunes preferred not a request against him vnto the people, to haue him put out of his office and authoritie. And therefore at the request of Tiberius Gracchus the Tribune, Marcus Octauius ano∣ther of the Tribunes, withstanding the profit of the people, and the enacting of the lawes for the diuision of lands, was of necessitie to be thrust out of his office of the Tribuneship, before the law Sempronia for the diuision of lands could bee established. And to that end tendeth that speech of the Tribune vnto the Senators, in Liuie, Faxo ne iuuet vox ista veto, qua collegas nostros tam laeti concinentes auditis, contemni iam Tri∣bunos [ I] plebis, quippe potestas Tribunitia suam ipsa vim frangat intercedendo, I shall make (saith he) that this word Veto, (or, I forbid) which you now so merrie heare our fel∣lowes together singing, shall helpe you nothing, the Tribunes of the people must now needs be contemned, for that the Tribunitial power doth weaken the power of itselfe, by opposing it selfe against it selfe. But this power and opposition of the Tribune, was ordained and prouided for the libertie of the people, and against force offered them, and not for the priuat profit of the Tribunes themselues: who if question were of any particular of theirs, whether it were in ciuill or criminall causes, were not in any thing respected, but suffered iudgement, as other men did, if some one or other of their fel∣lowes [ K] in office enterposed not themselues, and so letted the proceeding. As when Luci∣us Cotta one of the Tribunes of the people, being sued, would neither answere nor pay his creditors, Fiducia sacrosanctae potestatis, as bearing himselfe vpon the reputation and credit of the most sacred power of the Tribuneship; his companions in office openly denounced vnto him, That they would aid the creditors against him, except hee made them payment. Yet at length by little and little it was agreed, That the colledge or companie of Tribunes, should be also bound vnto the same lawes and customes that other colledges and companies were, viz. That decrees made by the consent of the greater part should bind the rest. As is easily to be gathered of that which Liuie saith,

Ex auctoritate Senatus latum est ad populum, ne quis templum arcemue iniussu Senatus, aut [ A] Tribunorum plebis maioris partis dedicaret, It was by the authoritie of the Senat pro∣pounded to the people, That no man without the commaund of the Senat, or of the greater part of the Tribunes of the people, should dedicat a temple or a castle. And af∣terwards by the law Attilia it was ordained, That the Pretor of the citie, and the grea∣ter part of the Tribunes of the people, might appoint tutors vnto women and father∣lesse children. Which custome grew into such force, as that the Senat commaunded Quintus Pompeius Rufus a Tribune of the people to be cast into prison, for that he be∣ing but one, went about to forbid an assemblie of the states to bee called. Whereas otherwise the wilfull rage of one furious Tribune might haue troubled the whole state of the Commonweale. And this was the cause why the Consull being about to assem∣ble [ B] the great estates of the people, by sound of trumpet caused an edict to bee proclai∣med, forbidding all magistrats lesser than himselfe, to haue regard vnto the Auspicia, that is to say, vnto the disposition of the ayre, or the flight of birds, for the coniecturing thereby, whether the thing which was then taken in hand, were agreeable with the wil and pleasure of their gods or not. For if it thundered or lightned neuer so little, or if the birds were seene to flie on the right hand, or if any of them there present fell of the falling sicknes, (which was therefore called Morbus comitialis) or if any other monster were borne, the assembly was accounted thereby polluted, and so the people presently broke vp and departed without any thing doing: the sooth-sayers thereby denouncing vnto them, That the gods were then angrie, and not well pleased with their doings. [ C] Which was the charge of the Augures or soothsayers so to denounce vnto them, but yet might not lawfully oppose themselus against that was to be done, as might the ma∣gistrats of equall power, or greater: but if the magistrats were inferiour vnto him that held the assembly of the estates, their opposing of themselues could not let the further proceeding of the superior magistrat, howbeit that such acts or proceedings were there∣by defectiue, and so subiect to reuocation. In such sort, as that Caius Figulus the Con∣sull with his companion, after he had bene chosen, taken his oath, and transported his armie euen into Spaine; yet was he neuerthelesse with his fellow Consull, by a de∣cree of the Senat, called backe againe home and enforced to giue vp their power and authoritie: For that the soothsayers had before declared vnto Tiberius Gracchus the [ D] Consull (then holding the great assemblies for the choyce of the Consuls) That the signes and tokens whereby they tooke their predictions were vnfortunat and contrary. Wherefore the lesser magistrats could not trouble the assemblies of the greater, or cal the people alreadie assembled from them, but such magistrats onely as were equall and of like power with them. But the Tribunes of the people although they might not in∣terrupt the assemblies of the greater magistrats, or cal the assembled people from them, yet might they by opposing of themselues hinder their other actions and proceedings: and in case that the magistrats would yet needs proceed contrarie to their oppositions, the Tribunes would then vse plaine force against them; so that ostentimes murthers were thereabouts committed. For so Asellius the Pretor, or Prouost of the citie, for fa∣uouring [ E] the debtors against their creditors, was as he was doing sacrifice slain by atu∣multuous company of the creditors, hauing for their leader one of the Tribunes of the people. In like sort Appius Saturninus Tribune of the people, slew Munius the Consul,* 1.14 in the verie assemblie of the people.

And as publike actions are troubled or letted by magistrats equal or greater in pow∣er than they by whome they are done, opposing themselues against them: so beeing once done, appeale is to be made from the lesser magistrats vnto the greater, sauing vn∣to euerie man his iurisdiction and power. Now if it bee not in the lesser magistrats

power to commaund the greater, or to stay his proceedings, much lesse can he vndoe [ F] what he hath alreadie done, reuerse his iudgements, or receiue appeales made from him, which are not lawfully to be admitted from the greater magistrats vnto their fel∣lowes or men equall in authoritie with themselues. But euen to the contrarie, if a ma∣gistrats deputie or lieutenant be preferred to like estate or degree with the magistrat whose deputie or lieutenant he is, his commission of deputation or lieutenancie cea∣seth, and the acts by him begun are interrupted and broken off. Wherefore if the equall or lesser magistrat, shall receiue one appealing from the equall or greater magi∣strat, an action of iniurie may be commenced against such a magistrat, as also against him who hath so appealed vnto the lesser magistrat, or fellow in office with him from whom he hath appealed. For so Caesar as then but Pretor, beeing accused before one [ G] of the Questors, as hauing an hand in the conspiracie of Cateline, caused both the accu∣ser and the Questor being both grieuously fined to bee cast in prison, and especially the Questor, for that he had suffered a greater magistrat than himselfe to be accused before him, as saith Suetonius. So the court of Paris by a seuere decree forbad the jud∣ges or magistrats of them which haue territoriall iurisdiction, to bind the kings magi∣strats or judges with their edicts or prohibitions: and that if they did otherwise, the kings magistrats or judges might by way of iustice proceed against them for so doing.

But here a man might doubt, Whether the inferiour or lesser magistrat, who may* 1.15 be commaunded by the superiour, may also be commaunded by the superiour magi∣strats lieutenant, or deputie? Which most haue thought to be a thing without doubt, [ H] considering that the lieutenants, or deputies, command nothing in their owne names, neither can do any thing but in the name of the magistrat whose place they hold, and vnto whome the inferiour magistrat oweth obedience. For otherwise if it were lawfull for the inferiour magistrats to disobey the lieutenants or deputies of their superiours, other particular men by the same reason might likewise withstand them, which were the way to ruinat & ouerthrow the whole estate of the Commonweal. Howbeit that it might also be said, that magistrats lieutenants erected in title of office haue power and authoritie by the law, and so also power to commaund in their owne names, and in that qualitie to constraine the inferiour magistrats to obey them. Yet neuerthelesse I say, that in that they are lieutenants or deputies vnto other the superiour magistrats, [ I] they cannot commaund or giue our commission in their owne names; which if they do, the inferiour magistrats are not bound to obey them: As was adiudged by a de∣cree of the parliament of Paris, at the suit of the Seneschal of Touraine against his lieu∣tenant, who published edicts and decrees in his owne name, which should haue bene set forth in the name of the Seneschall himselfe. Which was a thing without all doubt before the edict of king Charles the seuenth that the lieutenants should bee placed and displaced by the Seneschals: but the doubt arose after that they were by him erected in title of office, as hauing then their power from the king, and not from the Seneschals. But we must not thereupon presume, that the purpose and intent of the king therein, [ K] was to take away the power from the Seneschals or Bailifes (which could not be done but by an expresse edict for the suppressing of those offices) but contrariwise the erecti∣on of their lieutenants in the title of lieutenants, was much more to establish the ho∣nour of the Seneschals and Bailifes, and yet so to diminish their power. As first the Senators at Rome, and after that the emperours themselues, were woont to appoint lieutenants vnto the Proconsuls (or gouernours of their prouinces) who yet for all that had not their power to commaund from the Senat or the emperour, but from the Proconsuls or gouernours themselues. Wherefore the law saith, Apud legatum Proconsulis non est legis actio, that is to say, that he might do no exploit or act of iustice,

but in the name of another man: not for that▪ it was not lawfull for the Proconsuls [ A] lieutenants, as it was for the lieutenants of al other magistrats to manumise or enfran∣chise within the precinct and territorie of the prouince of those magistrats whose lieu∣tenants they were. Which the doctor Cuias hath denied, and in the auntient reading corrected these words, Ex quo prouinciam ingressus est: Which his correction if it were to be admitted, thereof should follow diuers ineuitable absurdities, these words (as hee would haue them) being left out: for so the lieutenants could not in the territorie of their magistrats, ordaine, decree, commaund, or do any thing; which is all that the law properly calleth Legis actiones, or the actions of the law; all which we read lieutenants to haue still done in their owne prouinces: and yet neuerthelesse the Maires, and Du∣umuirs, or Consuls of villages & townes, had power to manumise or enfranchise, and [ B] to appoint tutors by commission within their owne iurisdiction. Wherfore the execu∣tion or action of the law, is not in the magistrats lieutenāts or deputies, but in thē which so appointed the lieutenants or deputies. Yea the magistrat himselfe, who doth but exercise another mans iurisdiction, can in his owne name commaund nothing. Wher∣of it commeth, that a man cannot appeale from a lieutenant or deputie, vnto him whose lieutenant or deputie he is: for so appeale should be made from the same man to himselfe. Howbeit that the magistrat may examine the iniurie and wrong done to priuat men by his lieutenant or deputie; and that because the lieutenant or deputy hath not all the iurisdiction and power of the magistrat, whose lieutenant or deputie hee is: and yet lesse in auntient time, than at this present, when as the lieutenants of the Pro∣consuls [ C] or gouernours of countries, had no power to inflict corporall punishment vp∣on any. The princes lieutenants generall also in the wars, albeit that they haue a most high commaund and power ouer all souldiors, of what degree or condition soeuer, yet if any of the princes of the blood offend against the lawes militarie, the hearing and triall thereof belongeth not vnto the lieutenants generall, but vnto the soueraigne prince himselfe; or at least wise vnto the chapiter of the knights of the order, especial∣ly in case it concerne either honour, or life. And in much more strong tearmes, if que∣stion be of ecclesiasticall discipline, onely the bishops are not bound to aunswere before the archbishops officials, or vicars generall; as it was by a decree of the parliament of* 1.16 Paris, adiudged for the bishops of Troy, and Neuers: Whereby it was said, that they [ D] were not bound to obey, but onely vnto the archbishops in person themselues. But that which I haue said of the power of the superiour magistrats ouer the inferiour, is to bee vnderstood in their owne territorie, seat, and iurisdiction▪ out of which they are but as other priuat and particular men, without power or commaund.

But now the question might be asked, Whether that magistrats equall and fellows* 1.17 in authoritie and power, be also equall in honour and dignitie? Whereunto I aun∣swere, that honor and dignitie doth in nothing communicat with authoritie and pow∣er: yea oftentimes it chaunceth and commeth to passe, that hee which hath most ho∣nour, hath so much the lesse power: than which secret none is almost greater, or more profitable for the maintenance & preseruation of the Aristocraticall or Popular Com∣monweales, [ E] or that is in any place of the world better kept than in Venice. Of the Consuls he that was first chosen Consull, was also first named in all their publike acts and fastes, and so had the honour of precedence: but if they were both at once chosen, he that was the elder was in honour also aboue his fellow, vntill the law Pappia Poppe∣ia, which gaue the prerogatiue of honour vnto the married Consull: or if they were both married, then vnto him that had most children, which supplied the number of yeares. So amongst the Pretors, who were all of one colledge or companie, and their power all one; he which was called Vrbanus (or the Pretor of the citie) was in dignitie

and honour aboue the rest, and so called the Greatest Pretor, for that he was first of all [ F] chosen, and in the absence of the Consuls held their places, assembled the Senat, and called together the greatest estates, with such other like things belonging to the office of the Consuls. And amongst the ten Archontes of equall power in Athens, there was one, who yet in honour exceeding the rest, had the publike acts authorised in his name, and gaue himselfe names also vnto the Annales and publike acts and decrees, and was thereof called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. So amongst all the parliaments of Fraunce (beeing almost all of like power) the parliament of Paris hath the prerogatiue of honour aboue the rest, as more auntient; and by a certaine singular right is yet called the Court of the peeres of Fraunce, as hauing the triall and iudgement of the peeres, which none of the rest of the courts of parliament haue. And albeit that in the time of Charles the viij, the [ G] great Councell mannaged the affaires of state, yet so it is, that the king by expresse edict ordained and appointed, That in all edicts and mandats, wherein mention should bee made of the court of parliament, and of the great Councell, the Court of parlia∣ment of Paris should alwayes be set formost. So whereas the kings Attourneies are almost in number infinit, he of the parliament of Paris hath alwaies the prerogatiue of honour aboue all the rest of the kings Attourneies, who all are sworne vnto the jud∣ges of the soueraigne courts (wherein they are Attourneies) except the Attourney ge∣nerall of the Parliament of Paris, who is not to bee sworne but vnto the king onely. So wee see that the Constable of Fraunce, and the Chauncelor, albeit that they haue not power or commaund one of them aboue the other, but are equall in sit∣ting, [ H] and in going side by side, yet neuerthelesse the more honourable place is reserued vnto the Constable▪ which is on the right hand of the king, and the Chauncellor on the left: except some haply may say him to haue that place for to beare the kings sword vpon the kings right hand: yet besides that, at the consecration and coronation of the king, and other ceremonies wherein place of precedence is, the Constable goeth before the Chauncellour, and next vnto the Chauncellour followeth the Grand Maister of Fraunce. Which I would haue vnderstood to be of me so spoken, not as if my pur∣pose were to determine any thing of honours, but as an example by the way whereby to perceiue how much honour differeth from authoritie or power. [ I]

But forasmuch as we haue said, that magistrats equall in power, or which hold no∣thing* 1.18 one of them another, cannot be commaunded one of them by another; a man may doubt whether if amongst many princes or coequall lords, one offend, hee may be restrayned or corrected by the other princes or lords his equels? For why, iu∣risdiction is of it selfe by nature indiuisible: and lords of one and the same iurisdiction haue one of them as much power as the other; and euerie one of them hath entire power for all: which is not so amongst princes or magistrats which haue their charges or territories diuided, and which haue not any thing to commaund one of them the other; and much lesse when many magistrats in one bodie or colledge haue one and the same charge together; where no one of them hath of himselfe any [ K] power or commaund, except it be by commission from the whole colledge giuen him. Yet many there be which hold, that one of these lords may be restrained and corrected by the other lords his compeers and coequals, as hauing by his fault lost his iurisdiction and right, as it hath bene iudged in the court at Rome. Which iudgement may well be borne with, howbeit that the reason thereof is not good; for to say that hee offen∣ding hath thereby forthwith lost his power and iurisdiction, were to do execution be∣fore iudgement, and to spoile the lord or magistrat of his estate or place before he were heard. And albeit that the threats, penalties, edicts, and decrees, expressed and set down in the lawes, had the force of a thing alreadie iudged, as some haue thought them to

haue: yet so it is, that the fact in question is alwaies in iudgement to be tried, whether [ A] it were done or no; and in case it be confessed, yet before the execution, must the sen∣tence be pronounced by the mouth of the judge, who can haue no power ouer his compeere, who hath equall power and authoritie in the same territorie with himselfe, as we haue before declared, following therein the sounder opinion of the greater part of lawyers, not much regarding that others say, That euerie man is there to be iudged where he hath offended: which is so true, if there be no lawful cause which may hinder iudgement to be in the same place giuen. In a colledge or companie of magistrats, or* 1.19 judges, if the greater part of them agree in one, there is no doubt but that they may iudge or chastice any one, or the lesser part of their fellowes: as they did in the Senat of Rome, after the law which Adrian the emperour made for the iudging of Senators; [ B] and as they doe in all the courts of this realme. But betweene many equall lords or compeers of the same territorie, the reason is farre otherwise; for that euerie one of them hath himselfe the whole iurisdiction and power, nor cannot iudge but by turnes, one of them after another, neither haue more than one seat of iustice, in one and the same iurisdiction, but by the new grant of their patron or predominant lord. And in this, seruice differeth from iurisdiction; for that seruice suffereth it selfe to be at once & together enioyed of euerie one that hath right thereunto: but iurisdiction not so, as ma∣ny haue thought, hauing excepted dutchies, marquisats, and counties; which by the auntient lawes of fees are of an indiuisible nature. But it is neither for vs needfull, nei∣ther doth this place require vs by reasons to refute the opinion of them which affirme [ C] iurisdictions so to cleaue vnto the territories, as if they were indeed seruices; least in so doing we should passe without the bounds of our purpose. Sufficeth it in passing by, to say, Iurisdiction to hold so little of fee, as that the soueraigne prince selling or giuing a fee, of what nature soeuer it be, is not therefore to be reputed to haue giuen or sold the iurisdiction thereto belonging; as it hath ofttimes bene iudged, & at length because it should no more be doubted of, was by an edict of Philip the faire more straitly proui∣ded for: yea although the donation were by the soueraigne prince made to religious or deuout vses; which many (but without cause) haue excepted, the law being made generall. Seeing therefore that magistrats in power equall, or which hold not any thing one of them of another, cannot be commaunded or corrected one of them by [ D] another; much lesse can the equall lords or compeers of the same territorie and iuris∣diction commaund or reforme one another, but the superiour magistrat or predomi∣nant lord is to haue the hearing and determining of the matter. By our customes the superiour courts haue reserued vnto themselues, the controuersies of the kings magi∣strats and officers amongst themselues, concerning their power and iurisdiction. But if question be for the executing of the decrees or iudgements of one of them in the ter∣ritorie of another, it is to be done by honest request and leaue before obtained: how∣beit that by a new law, that custome is taken away out of this our Commonweale, and power giuen vnto pursiuants to put in execution all the magistrats commaunds, almost throughout all the kingdome. As for soueraigne princes, not subiect to the [ E] power or commaund of others, they must in such case, of necessitie vse requests one to another, for that they cannot be compelled by the command of any greater power, as magistrats may, who without any leaue asked, suffer the iudgements of other magi∣strats to be put into execution in their prouinces: or in case they refuse so to doe, are to be constrained by the superior powers. Which asking of leaue of the greater or equall power to execute or suffer iudgement giuen out of their territories, to bee executed therein, offering to do or suffer the like to be done in theirs, as occasion shall require, hath of all antiquitie beene obserued and kept. Howbeit it seemeth the Roman empire

yet florishing, that to put in execution a mandat or iudgement out of ones owne terri∣torie, [ F] it was needfull first to obtaine the Emperours letters of commaund, seeing that the law saith, Sententiam Romae dictam, possunt Praesides in prouincijs, si hoc iussi fuerint exequi, The Presidents in their prouinces may put in execution a sentence (or iudge∣ment) giuen at Rome, if they be thereunto commaunded: yet much more seemely it were by the good leaue of the magistrat to obtaine the same, than by force to extort it against his will. As in like cause the Emperour said vnto him which complayned of his companion, without hauing before spoken vnto him, Alloquere illum, ne rem iniu∣stam faciat, Speake vnto him, that he do thee not wrong: forasmuch as the princes commaund, or constraint of the superiours in such case, giueth occasions of quarrels and iealousies amongst Magistrats, seeing the decrees of their equals, or of their infe∣riours, [ G] against their wils to be put in execution in their owne territories: which oft times turne to the great hurt of the subiects, and dishonour of the Commonweale, one of the magistrats, or of such as are in authoritie, in dispite of the other discharging their cholerique passions vpon the poore innocents: As did the Consul Marcellus, who in* 1.20 despite of Caesar caused certeine of the citisens of Nouocome to be whipped, to make them to know (as he said) that Caesar had no power to giue vnto them the right and freedome of the citisens of Rome. But much greater is the poore subiects harmes if such contention and difference for power and authoritie, fall out amongst the greatest magistrats, or highest Courts. As I remember such a difference fell out betwixt the [ H] parliament of Paris, and of Burdeaux, about the execution of an arrest giuen in the parliament of Paris; which the parliament of Burdeaux vpon the princes commaund suffered to be executed within the iurisdiction thereof, but with condition, that if any opposition or appeale were in the doing thereof made, the parliament of Burdeaux should haue the hearing and disciding thereof. He which had the execution of the matter, willing to proceed farther, notwithstanding the opposition of the defendant, appeal was by the partie made vnto the parliament of Bourdeaux, whom the plaintife preuented in the parliament of Paris. This contention betwixt the two parliaments was by the king referred vnto the great Counsel; where it was decreed, That to receiue and heare the appeale belonged vnto the parliament of Paris; for that euery man ought [ I] of right to be the interpreter and expounder of his owne meaning: and as none but the prince may declare his lawes and commaundements, so it belongeth to the magistrat to declare the meaning of his owne sentence. Now here question was of the right meaning of a thing alreadie iudged, at such time as the partie guiltie offered his opposi∣tion vnto the officer, putting into execution the decrees of the higher Court, from which a man may not by the lawes appeale▪ vnto which opposition of the partie guil∣tie, if the officer giue not way, then it is vsuall to appeale, not so much from the sen∣tence of the higher Court, as from the iniurie of the officer which would not heare the opposition, which he must needes, except the Court haue commaunded the iudge∣ment thereof to be put in execution, notwithstanding any opposition. [ K]

But what if the Magistrat shall haue no respect or regard vnto the requestes or de∣crees* 1.21 of his equall, or of the inferiour magistrat, nor suffer their commaundements to be put in execution within his iurisdiction. Truely in this case he is to be thereunto by the superiour magistrats compelled: or if they be of the higher sort of magistrats which are at controuersie among themselues about their iurisdiction and power, they are by the princes authoritie to be enforced: for so these wordes of Vlpian the Lawier are to be vnderstood, Si hoc iussi fuerint, If they shall be so commaunded: viz. by the prince, (but not by the magistrats) at such time as the Presidents or gouernours of countries, euery one of them in his own prouince had the chiefest power and authoritie next vnto

the Prince, by whom onely they were to be commaunded. And whereas in the Edicts [ A] or lawes any thing is commaunded to be done, it is thus to be vnderstood, that euery Magistrat in his owne prouince is to be obeyed, for that the magistrat hath no power to commaund out of his owne territorie or iurisdiction. In auntient time the kings Pursuiuants or officers, if they were to put in execution the commaunds of the royall magistrats in the territorie of such lords as had therein territoriall iurisdiction, were first to aske them leaue; vntill that afterwards it was by the most strait decrees of the highest courts forbidden them so to doe, for that therein the soueraigne maiestie of the king seemed to be something empaired.

But yet it might be demaunded, whether the inferiour Magistrats might cause their* 1.22 commaunds to be put in execution, without the leaue of the superiour magistrat, vnto [ B] whom appeale was made? and that after the same appeale let fall, and the time past, appointed for the prosecuting thereof; which the Lawiers to no purpose call Fatalia, enduced thereunto by an old errour and inueterat fault of them which haue transla∣ted the Code, and authentiques out of Greeke into Latin, wherein for 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, they haue red 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, which is to say, fatall daies, for daies prefixed and of as∣signation: which the law of the twelue Tables called Statos d•…•…es, daies appointed; as in this law, Si status dies cum hoste, that is to say, If the day appointed with a straunger. Neither euer did lawier or man that could speak Latin, vse this forme of speaking, nei∣ther hath any of the Latins or Greeks called them for 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 or Fa∣tales. The Lawiers haue oftentimes diuided Dies sessionum, a diebus continuis, Daies [ C] * 1.23 of Session, from daies of Continuation. And if any thing were by the magistrat com∣maunded to be done within a certaine time, the Lawiers called it Statutum tempus, and edictum peremptorium, a time appointed, or edict peremptorie: but when the time wherein the sute ought to be determined is expired and past, or that the sute is let fall, we say, Litem mori, the sute to die; or instantiam perimi, the instance to be lost: as be∣fore, we say, Litem viuere, or, the suit to liue: but none of the Lawiers hath vsurped Fatalem diem, or Fatalia tempora, a fatall day, or fatall times. But all this errour is de∣riued of the chaunging of this one Greeke letter 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 into 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, for seeing that by the word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, or 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, the Greeks aswell as the Hebrewes signifie Fatum, or destinie, they must needes translate 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, fatalem diem, that is to say, a fatall day. Demosthenes [ D] oft times calleth it 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, which the Latins call statum diem; and we in our practise, praefixam, that is to say, an appointed, or prefixed day: for so Demosthenes saith against Media, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, & against Stephanus, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉: and sometimes also he saith, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, as to Nicostratus: and the later Greeks haue called it 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, & 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, but neuer called it 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. And so pope Synesius metaphorically calleth the last day of a mans life 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, because he would not call it 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, or Fatall; a word vnto Christian men and true religion straunge. Wherefore for Fatall daies of appeales, we shall more truely and better vse the tearmes of Appointed times, for so the lawyer calleth them. But that Iustinians lawes were written in Greeke before they were written in Latin, I suppose no man to [ E] doubt. And that the Theodosian and Hermogenian Codes, out of whome Iustinians Code was almost all compiled, were as well written in Greek as in Latin, it is plaine: and so the law Properandum to haue beene translated rather by a Greeke than by a Latinist, being altogether writ in the Greeke phrase, as namely calling the defendant fu∣gientem, or the partie flying away; which is the proper Greeke word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉▪ Neither ought it to seeme straunge, that the Greekes translated the Roman lawes, and euen Iu∣stinians Iustitutions into Greeke; seeing them to haue translated most of the writings of Thomas Aquinas, as also the latter bookes of Aristotles Metaphysikes out of Ara∣bike

into Greeke, the Greeke copie being before lost. But to returne againe from [ F] whence we haue digressed, and to resolue the propounded question; I say, that it is not needfull for the inferiour magistrat, the appeale being let fall, to haue leaue of the supe∣riour magistrat (vnto whome the appeale was made) for the putting in execution of their owne iudgements: as in the time of our auncestors, the manner was, by letters of iustice (as they tearmed them) which by a decree of Charles the seuenth, were vtterly abolished and taken away: sufficeth it the appeale being once giuen ouer before the iudge that gaue the sentence, to request, that the same may now be put in execution, ex∣cept the superiour magistrat vnto whome the partie condemned hath appealed, hath expresly before forbid the executionto be done. In which case it is needfull, that such prohibitiō be taken away, before the inferior magistrat proceed further. For otherwise [ G] it is not requisit, that the appeale should by the superiour magistrat be declared to be let fall or giuen ouer, that the sentence may be put in execution; for that the benefit of the appeale let fall, is obtained by the law, & not by vertue of the magistrats sentence. Nei∣ther is the honour or reputation of the superiour magistrats impaired by the inferiours, not hauing from them expresse prohibition: in reuerence & respect of whom, the infe∣riour magistrats ought to stay the execution, if the stay thereof bee not perilous vnto the Commonweale. In which case they may proceed, although it were in question of life, and afterwards write back their aunswere; whereas otherwise, in causes concer∣ning life and death, if the magistrat giue not way vnto the appeale, he himselfe is in dan∣ger of capitall punishment. Yea and in this case, the magistrat for not yeelding vnto the [ H] appeale, is guiltie of treason, albeit that question were but concerning the whipping of a citisen.

Now all that which we haue hitherto said concerning magistrats, and of the obedi∣ence that one of them oweth vnto another, is to be vnderstood of magistrats that be of the selfe same Commonweale. But what shal we then say of magistrats of diuers Com∣monweales? As if a man by the magistrats condemned in this kingdome shall flie into Greece, whether shall the Grand Signior of the Turkes, at the request of the French king, or of some other priuat man whome the matter doth concerne, cause the iudge∣ment to be put in execution, without further enquirie of the equitie of the cause? The [ I] like question whereunto I remember to haue hapned in the parliament of Paris, con∣cerning a French marchant condemned by default and contumacie at Venice, at the suit of a Venetian marchant; who came into Fraunce to demaund execution of the iudgement giuen in Venice, hauing before obtained letters of request frō the seigneurie to that purpose, as the vsuall manner & custome of soueraigne princes & lords in such cases is: For a mutual respect and care which all princes haue vnto iustice, wherof they hold their Scepters and Crownes. The French marchant excepteth against the Vene∣tian, and no regard being had to his exception, appealeth vnto the court of parlia∣ment. Where most were of opinion, that the sentence so giuen was to bee put in exe∣cution, without any farther examination, whether it were rightfully iudged or not: [ K] which otherwise might▪ seeme a wrong offered vnto the Seigneurie of Venice, which might vse the like circumstāce, & examine the iudgements of the magistrats of France, and also reuerse them, rather in reuenge of their wronged maiestie, than for the iniqui∣tie of the same. Yet for that the marchant was condemned by default, it was thought meet to haue it enquired, whether he had by couenant in this point submitted himselfe vnto the Venetian Seigneurie and iurisdiction or not? And then, whether the iudge∣ment were duely giuen, after certaine peremptorie edicts and appointed times, accor∣ding to the laws and customs of the Venetians? Which being found to be so, the court adiudged the sentence to be put in executiō. And this is the course in priuat iudgements.

Howbeit if question were of the honour, or life, not of one of our owne subiects only, [ A] but euen of a straunger flying vnto vs, the iudgement of a straunge magistrat is not to be put in execution, before the truth of the matter be againe of fresh and throughly examined and tried. Yea Adrian the emperour commaunded the gouernours of his prouinces, to vse 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 (for that word the law vseth) that is to say, to iudge againe of them which had beene condemned, by the justices of peace euen of the same Ro∣man empire. And that which I haue said, is right straitly obserued and kept in the Commonweales of the Swissers, of Geueue, of Venice, Lucque, and Genes, who cause the condemned straungers flying vnto them, to be againe of new tried, before they restore them vnto forrein princes, demaunding from them such their condemned* 1.24 subiects againe. For so all lawiers almost with one consent say; Soueraigne Princes [ B] not to be bound to restore Straungers flying vnto them, vnto their owne Princes de∣maunding them againe. Which is true that they are not bound in any ciuill obliga∣tion, from which all soueraigne princes are exempted: but they without any distincti∣on of the Law of nations or nature, altogether denie that a forrein subiect is to be re∣stored vnto his prince requiring him againe. Onely Baldus addeth this condition ther∣unto, Not to restore him to be right, so that the prince vnto whom the condemned or guiltie person is so fled, do vpon him iustice. But if they will confesse euery Prince by the lawes both of God and nature to be bound to doe iustice; they must also confesse that he is bound to restore another mans subiect vnto his owne natural prince, deman∣ding him: not onely for the more manifest trying out of the truth, and discouering of [ C] the conspirators their partakers, for which their personall presence and confrontation is most necessarie; but also for exemplarie punishment to be done, in the same places where the offences were committed: which of all other things seemeth most to be∣long vnto the profit to arise vnto the Commonweale by punishments, as examples of common reuenge, the death of the offender, being one of the least thing that in mat∣ter of iustice is to be sought after. And if Magistrats in the same Commonweale are by mutuall obligation bound to helpe one an other, and so the Commonwealth, (whereunto next vnto God we owe all our endeuours) for the prosecuting and puni∣shing of malefactors and offenders; why then should Princes be exempted from the* 1.25 like bond, so well agreeing with the lawes both of God and nature? Wherein the no∣table [ D] act of Mahomet (the second of that name) emperour of Constantinople, euen he which was surnamed the Great, is tight worthily commended; in that he caused the murtherer, who had most cruelly slaine Iulian de Medices in the Church before the Aultar, to be apprehended at Constantinople whether he was fled, and so bound hand and foote, to be restored to Laurence de Medices and the state of Florence, requesting of him: which he did not as respecting the power of the Florentines, being then but small, but as fearing the hand and power of the immortall and almightie God. And in this Realme the custome hath alwaies beene to restore the guiltie fugitiues vnto their owne Lords and Princes demaunding of them, except therein question be made of the maiestie, boundes, or state of the kingdome, which hath beene by their decrees [ E] determined. One of the parliament of Paris: Another of the court of Rome against the king of England, who demaunding his fugitiue subiect, was denyed him: And the third of the parliament of Tholouse: that of Rome being then grounded vpon the soueraigntie of the See of Rome ouer the realme of England. But out of tearmes of estate, and where question is but of publique punishment, there is no Prince which is not bound to restore another mans subiect vnto his Prince demaunding him, as hath beene solemnly iudged by the parliament of Bourdeaux: howbeit that the same hath beene also expresly articulated in diuers treaties of peace. As in the treatie which

the Swissers made with the emperour Charles the fift, as Duke of Millan, the vij arti∣cle [ F] caried an expresse clause, for the restoring of guiltie fugitiues. And for this cause king Henry the second, after he had by his Embassadour requested the Lords and peo∣ple of Geneua, to restore vnto him Baptista Didato an Italian, his Receiuer generall of Roan, who was thither fled with all the money of the receipt: which they being there∣to oftentimes requested, refused to doe: At length the king protested vnto the Lords of Berne, in whose protection the Seignorie of Geneua then was, that he would vse the law of Reprisall against them of Geneua; who before had resolued in their grand Councell of two hundred, in no wise to restore him: but afterwards being by an He∣rault sent from them of Berne, willed to deliuer him vnto the king, they chaunged that their former opinion for the detaining of him: So at length the robber of the cōmon. [ G] treasure was forsaken by them of Geneua, lest they in doing otherwise should haue stirred vp the displeasure of a most mighty king, or of the Swissers against them, as also seeme to haue opened a sanctuarie or place of refuge for the eues, and other such like wicked men. And this we haue gathered out of the letters of the French embassador to Anne Mommorancie Constable of Fraunce, so that they are to be blamed which otherwise either thinke or write. Wherefore I hold it to be an iniurie vnto the estate* 1.26 of another man, to detaine a guiltie fugitiue after he is demaunded to be againe vnto his owne prince restored; and much more if he should be so detained by the subiects among themselues. For which cause all the Tribes of Israel combined themselues a∣gainst the Tribe of Beniamin, which was so vtterly destroyed, except sixe hundred [ H] persons, for refusing to restore the guiltie persons demaunded of them. And for the* 1.27 same cause we find that the Hippotae were all destroyed, and their citie v•…•…terlie razed by the Thebaus; for that they chose rather to defend the murtherers of Phox the Baeo∣tian, and for them to take vp armes, then to restore them vnto the Thebans, demaun∣ding them. But if the Prince vnto whom the fugitiue is retired certeinly know him* 1.28 whom he hath so receiued, to be an innocent and guiltles man, and to be vniustly pur∣sued and sought after, as hauing but escaped the crueltie of a tyrant, it is not onely a shamefull and iniurious thing to betray the poore innocent and straunge man vnto the cruell tyrant: but he should rather for the miserable mans defence, and safegard of his life take vp armes, seeing that by the law of God, we ought not to restore a fugitiue [ I] * 1.29 seruant vnto his angry master, from whose furie he is fled into anothers mans house.

And thus much concerning Magistrats; and the obedience that they owe vnto Prin∣ces, and of the power that they haue ouer particular men, and of the respect that they ought to haue one of them towards an other. But to compare the Magistrats of aunti∣ent time, with ours now, belongeth not to this our purpose, considering that they are still in chaunge, howbeit that wee see them to be like in effect, although that they differ in names. As we read in the booke of the kings, where it is said, That Azarias the sonne of the high priest Tsadoc was neere vnto the person of Salomon to instruct him in matters concerning Religion; that Iosophat was chiefe of his councell, or his Chaun∣cellour; [ K] that Eliphore, and Aiah were his Secretaries for the estate; that Banaia was his Constable; and Azarias the sonne of Natan his Lieutenant generall ouer the go∣uernments of the twelue Tribes, which are and haue beene as it were like in all Mo∣narchies. So in like maner we see in the Turkish Empire, that the first and principall Bassa is Generall of the armie, as Constable or chiefe Mareschall; and Beglerbegs are gouernours generall of Prouinces; the Zanzacks are as more particular and inferiour gouernours; the two Cadilesquires are the Chauncelours, attendinding vnto the ad∣ministration of justice, the one in Asia, the other in Europe; the Sabbassaes and Cadies are the ordinarie magistrats and judges; the Mophti is the great Bishop. So in the

kingdomes of Thunes, of Fes, and of Maroch, the Munafide is as Chauncelour, the [ A] Admirall is Generall of the armie at Sea, a word or name which we haue borowed from the Arabians. So we see the charges and offices to be as it were like, although their names be diuers, as the Great Master of Ethiopia is called Bethudere, which is an Hebrew word, signifying Master of the houshold. But forasmuch as Magistrats in euery Commonweale are diuided into Corporations and Colledges, and that there are more Corporations and Colledges of priuat men than of Magistrats, let vs also say somewhat of such Corporations and Colledges.

Notes

• * 1.1

  Three degrees of Magistrats in euery well orde∣red Common∣weale.
• * 1.2

  Daungerous in a Commonweale to giue power to one Magistrat to command ouer all the rest.
• * 1.3

  Soueraign power to commaund o∣uer al magistrats not to be giuen to one alone, but in the most daun∣gerous times of the commonweal
• * 1.4

  In the presence of the soueraigne prince, all the power of the ma∣gistrats holden in suspence.
• * 1.5

  Why the power of the 〈10 words〉〈10 words〉 suspended.
• * 1.6

  Much more ho∣norable for soue∣raign princes to referr the hearing of their own cau∣ses vnto the ma∣gistrats than to iudge thereof themselues.
• * 1.7

  Whether a ma∣gistrat may for∣•…•… a subiect to come vnto the 〈◊〉〈◊〉 being as then within the iurisdiction of his territorie?
• * 1.8

  The power of the lesser magistrates to cease in the presence of the 〈◊〉〈◊〉.
• * 1.9

  Whether a com∣panion or fellow in office may stay the proceedings of his equall or superiour in au∣thoritie.
• * 1.10

  Fellowes in of∣fice although they haue no power one of them ouer an o∣ther, yet may they well hinder one an others proceedings, and why?
• * 1.11

  The Magistrat can do nothing in the presence of his compani∣on equall in po∣wer with himself without his ex∣presse consent.
• * 1.12

  Magistrats of like power, or fellows in office, bound to the power or com∣maund of their fellowes, being▪ In number more.
• * 1.13

  The opposition of one of the Tribunes of the people, sufficient to hinder the proceedings of all the magistrate in Rome, as also the proceedings of the rest of his fellow Tribunes.
• * 1.14

  Appeals to be still made from the lesser magi∣strats to the grea∣ter; and not from the greater to the lesser, or to any other, but equal in authoritie with them.
• * 1.15

  Whether the in∣feriour magistrat which may be commaunded by the superior, may also be comman∣ded by the supe∣riour magistrates Lieutenant or deputie.
• * 1.16

  The power of the superior ma∣gistrats ouer the inferior▪ extend∣eth not farther than their owne terri•…•…ory seat and iurisdiction.
• * 1.17

  Honour and dig∣nitie in nothing to communicate with authoritie and power.
• * 1.18

  Whether equall lords or cōpeeres of the same terri∣torie and iurisdi∣ction, may cha∣stice or reforme one another.
• * 1.19

  In a colledge or companie of ma∣gistrats or judges the greater part agreeing in one, may iudge or cha∣stice any one or the lesser part of their fellowes. A difference be∣twixt seruice and iurisdiction.
• * 1.20

  Contention be∣twixt great ma∣gistrats or courts, about their power and iurisdiction, al∣waies vnto the poore subiect hurtfull.
• * 1.21

  Wilful magi∣strats by the prince or their superiors to be enforced to suffer iustice to bee done within their iurisdiction
• * 1.22

  Whether the in∣feriour Magistrat be to haue leaue from the superi∣our, vnto whom appeale was made, to put his owne sentence in execution, the appeale being now let fall.
• * 1.23

  The errour of the word Fatales.
• * 1.24

  Whether soue∣raign princes be bound to restore straungers flying vnto them, vnto their owne prin∣ces demaunding them againe.
• * 1.25

  A notable 〈◊〉〈◊〉 of Mahomet the Great, first empe∣rour of th•…•… Turkes.
• * 1.26

  A guilty fugitiue is not by another prince to be de∣tained, but resto∣red after he is by his owne prince demaunded.
• * 1.27

  •…•…. Iudic. 20. cap.
• * 1.28

  A guilties and innocent fugi∣tiue tiue, is not to be restored vnto his angrie prince de∣manding of him.
• * 1.29

  Deut. 16. 〈◊〉〈◊〉 23.