The six books of a common-weale (1.8)

MAiestie or Soueraigntie is the most high, absolute, and perpetuall[*] power over the citisens and subiects in a Commonweale: which the Latines cal Maiestatem, the Greeks ⋯, & ⋯, and ⋯; the Italians Segnoria, and the Hebrewes ⋯, that is to say, The greatest power to commaund. For maiestie (as Festus saith) is so called of mightinesse.

For so here it behoueth first to define what maiestie or Soueraigntie is, which neither lawyer nor politicall philosopher hath yet defined: although it be the principall and most necessarie point for the understanding of the nature of a Commonweale. And forasmuch as wee have before defined a Commonweale to be the right government of many families, and of things common amongst them, with a most high & perpetuall power: it resteth to be declared, what is to be vnderstood by the name of a most high and perpetuall power. We[*] have said that this power ought to be perpetuall, for that it may bee, that that absolute power over the subiects may be giuen to one or many, for a short or certaine time, which expired, they are no more than subiects themselves: so that whilest they are in their puissant authoritie, they cannot call themselves Soueraigne princes, seeing that they are but men put in trust, and keepers of this soueraigne power, vntill it shall please the people or the prince that gaue it them to recall it; who alwaies remained seased thereof. For as they which lend or pawne unto another man their goods, remaine still the lords and owners thereof: so it is also with them, who giue unto others power and authoritie to iudge and commaund, be it for a certaine time limitted, or so great and long time as shall please them; they themselves neuerthelesse continuing still seased of the power and iurisdiction, which the other exercise but by way of loane or borrowing. And that is it for which the law saith, That the gouernour of a countrey, or lieutenant of a prince, his time once expired, giueth up his power, as but one put in trust, and therein defended by the power of another. And in that respect there is no difference betwixt the great officer and the lesser: for otherwise if the high and absolute power graunted by a prince to his lieutenant, should of right be called Soueraigntie, he might vse the same against his prince, to whome nothing was left but the bare name of a prince, standing but for a cipher: so should the subiect commaund his Soueraigne, the seruant his maister, than which nothing could be more absurd: considering that in all power graunted unto magistrats, or priuat men, the person of the prince is alwaies to be excepted; who neuer giueth so much power unto another, but that hee alwayes keepeth more unto himselfe; neither is euer to be thought so depriued of his soueraigne power, but that he may take unto himself the examination and deciding of such things as he hath committed unto his magistrats or officers, whether it be by the way of preuention, concurrence, or euocation: from whome he may also take the power giuen them by vertue of their commission or institution, or suffer them to hold it so long as shall please him. These grounds thus laid, as the foundations of Soueraigntie, wee conclude, that neither the Roman Dictator, nor the Harmoste of Lacedemonia, nor the Esmynaet of Salonick, nor he whom they cal the Archus of Malta, nor the antient Baily of Florence, (when it was gouerned by a popular state) neither the Regents or Viceroyes of kingdoms, nor any other officers or magistrats whatsoeuer, unto whom the highest, but yet not the perpetual power, is by the princes or peoples grant committed, can be accounted to have the same in Soueraignty. And albeit that the antient Dictators had all power giuen them in best sort that might be (which the antient Latines called Optima Lege) so that from them it was not lawfull to appeale and upon whose creation all offices were suspended; vntill such time as that the Tribunes were ordayned as keepers of the peoples libertie, who continued in their charge notwithstanding the creation of the Dictator, who had free power to oppose themselves against him; so that if appeale were made from the Dictatour, the Tribunes might assemble the people, appointing the parties to bring forth the causes of their appeale, & the Dictator to stay his iudgement; as when Papirius Cursor the Dictator, condemned Fabius Max the first, to death; and Fabius Max the second had in like manner condemned M⋯nutius, both Colonels of the horsemen, for that they had fought with the enemie contrarie to the commaund of the Dictator; they were yet both by appeale and iudgement of the people acquited. For so saith Liuie, Then the father of Fabius said, I call [*] upon the Tribunes, and appeale unto the people, which can do more than thy Dictatorship [*] whereunto king Tullus Hostilius gaue place. Wherby it appeareth that the Dictator was neither soueraigne prince, nor magistrat, as many have supposed; neither had any thing more than a simple commission for the making of wa⋯e the repressing of sedition, the reforming of the state on instituting of new officers. So that Soueraigntie is not limited either in power, charge, or time certaine. And namely the ten commissioners established for the reforming of customes and lawes; albeit than they had absolute power, from which there was no appeale to be made, and that all offices were suspended, during the time of their commission; yet had they not for all that any Soueraigntie; for their commission being fulfilled, their power also expired; as did that of the Dictators. So ⋯ hauing vanquished the enemie, forth with discharged himselfe of the Dictatorship, which he had not had but fifteene dayes, Seruilius in eight dayes, Mamercus in one day. And the Dictator was also named, not by the Senat, or the people, neither by the magistrats, or request made unto the people; nor by any laws which were alwayes necessarie to the creating of officers, but by an interrex, or a king created for a time, borne of honourable blood: for why, it was not enough for him to be a noble Senator onely, that should name the Dictator. Now if one should say, that Sylla was by the law Valeria made Dictator for threescore yeares: I will aunswere as Cicero did, That it was neither Dictatorship nor law, but a most cruell tyrannie; whereof for all that he discharged himselfe the fourth yere after he was made Dictator, when as he with the blood of the citisens had quenched the flames of the civill warres; hauing yet still in the meane time reserued unto the Tribunes their free power to oppose themselves against his authoritie. And although Caesar fortie yeares after had inuaded the perpetuall Dictatorship together with the libertie of the people, yet left hee unto the Tribunes of the people, their power to oppose themselves against his proceedings: but when as before, Pompeius being Consull, the verie name of the Dictatorship was taken out of the Commonweale, and Caesar, contrarie to the law of Pompeius, had procured himselfe by the law Seruia, to be created Dictator, hee was by the conspiracie of the Senators slaine in the middest of the Senat. But let vs graunt an absolute power without appeale or controlement, to be graunted by the people to one or many to mannage their estate and entire government: shall wee therefore say him or them to[*] have the state of Soueraigntie, when as hee onely is to bee called absolute soueraigne, who next unto God acknowledgeth none greaterthan himself? wherefore I say no soueraigntie to be in them, but in the people, of whom they have a borrowed power, or power for a certaine time, which once expired; they are bound to yeeld up their authoritie. Neither is the people to be thought to have depriued it selfe of the power thereof although it have giuen an absolute power to one or moe for a certaine time: and much more if the power (be it giuen) be reuocable at the pleasure of the people, without any limitation of time: For both the one and the other hold nothing of themselves, but are to giue account of their doings unto the prince, or the people of whome they had the power so to commaund: whereas the prince or people themselves, in whome the Soueraigntie resteth, are to giue account unto none, but to the immortall God alone.

But what if such absolute power as we have spoken of, be giuen to one or moe for nine or ten yeares? as in auntient time in Athens the people made one of the citisens[*] their soueraigne, whome they called Archon. I say neuerthelesse that hee was no

prince, neither that the Soueraigntie of the state rested in him: albeit that hee was a soueraigne magistrat, but yet countable of his actions unto the people, his time beeing expired. Yet might one say, What if that high & absolute power which we have spoken of, were giuen to one or moe for a yere, with condition not to giue any account at[*] all for their doings For to the Cnidiens every yeare chose ⋯ of their cirisens, whome they called Amymones, that is to say, Men without imputation, with such soueraignty of power, as that they might not be called to account for any thing that they had done, neither during the ⋯ of their charge, nor after that the same was expired: I say yet for althat, that the soueraigntie of the state was not in them seeing that they were bound at the yeares end to restore againe unto the people, the authoritie they were put in trust withall; the Soueraigntie still remaining with the people, and the execution thereof with the Amymones, whome a man might well call soueraigne magistrats, but not simple Soueraignes: For the one was the prince, the other the subiect; the one the lord, the other the seruant; the one the proprietarie and seised of the Soueraigntie, the other neither proprietarie nor possessed thereof, neither holding any thing thereof, but as a feoffer or keeper in trust.

The same we may say of the Regents of Fraunce, created for the infancie, furie, or[*] absence of the king, whether the edicts, mandats, and letters pattents, be signed and sealed

with the signe and seale of the Regents, and in their name (as they did before the law of Charles the fift the French king) or els that it be done in the name of the king, and the mandats sealed with his seale: for in that there is little or no difference at all: seeing that whatsoeuer is done by the atturney, the lord allowing the same, may well be thought to be done by the lord himselfe. Now the Regent is the true protectour of the king and of his kingdome: for so the good countie Theobald called himself Procuratorem regni Francorum, that is to say, Protectour of the kingdome of Fraunce. So when a prince giueth absolute power to a Regent, or to a Senat, in his presence, or in his absence, to gouerne in his name; albeit that the edicts or letters of commaund go in his or their name, yet is it alwaies the king that speaketh or commaundeth. So we see[*] that the Senat of Milan or Naples, in the absence of the king of Spaine hath absolute power to dispatch all mandates in his name: As a man may see by the decree of the emperour Charles the fift in these words. Senatus Mediolanensis potestatem habeat constitutiones principis confirmandi, infirmandi, tollendi, dispensandi, contra statuta, habilitationes, prerogationes, restitutiones faciendi, &c. A Senatu ne prouocari possit, &c. Et quicquid faciet, parem vim habeat vt si à principe factum ac decretum esset: Non tamen possit delictorum veniam tribuere, aut liter as salui conductus reis criminum dare. That is to say, The Senat of Milan hath power to confirme the constitutions of the prince, as also to infirme the same, to disanull them, to dispense with them contrarie to the statutes, to make enablements, prerogatives, and restitutions, &c. No appeale shall be made from the Senat, &c. And whatsoeuer it shall doe, shall have like force as if it were done or decreed by the prince: yet may it not graunt pardon for offences committed, or giue letters of safe conduct unto parties conuicted. This power almost infinit, is not giuen unto the Senat of Milan and Naples, in any thing to diminish the maiestie of the king of Spaine, but altogether to the contrarie, to ease him of his care and paines: ioyne hereunto also, that this power how great soeuer it be, is to be reuoked at the pleasure of him that gaue it.

But suppose that such great power be giuen to a kings lieutenant, or the gouernour[*] of a countrey for tearme of his life, is not that a soueraigne and perpetuall power? For otherwise if we should interpret that onely to be a perpetuall power which shall neuer haue end, there should be at all no soueraigntie, but in the Aristocraticall and

popular state, which neuer dieth except it be vtterly rooted out. Or if we vnderstand the word, Perpetuall, in a monarch for him and his heires, there should be few perpetuall soueraigne monarches, seeing there bee but few that be hereditarie; so that they which come to the crowne by way of election, should not be soueraignes: wherefore we must vnderstand the word Perpetuall, for the tearme of the life of him that hath the power. Now if the soueraigne and annuall onely, or which hath a certaine prefixed and limited time to rule, chance to continue his government so giuen him, beyond the appointed time; that must either be by the good liking of him that gaue the power, or els by force: if by force, it is called tyrannie; and yet neuerthelesse the tyrant is a soueraigne: as the violent possession of an intruder is in nature a possession, although it be contrarie to the law, and they which had the possession before are so thereof disseised: but if such a magistrat continue his soueraigne power by the good liking of the superiour that gaue it him, wee will not therefore say that hee is a soueraigne prince, seeing that he holdeth nothing but by sufferance; and that a great deale the lesse, if the time be not limited, for in that he hath nothing but by commission during pleasure: and he that so holdeth his power, is neither lord nor possessor therof. Men know right well, that there was neuer greater power giuen to magistrat next unto his prince, than[*] that which was of late yeares graunted to Henrie of Fraunce, duke of Aniou, by king Charles the ninth his brother, for it was most great and perpetuall, without any exception of the regall power: yet for all that one cannot say that it was soueraigne, inasmuch as he was called Leiutenant General for the king, So long as it shall stand with our good pleasure, ioyned unto it in his letters patents: which wel declareth a power but during pleasure. Which power of lieutenancie (as of all other magistracies) ceaseth in the presence of the prince.

But what shall we then say of him to whom the people have giuen absolute power[*] so long as he liveth? in this case we must distinguish: If such absolute power bee giuen him purely and simply without the name of a magistrat, gouernour, or lieutenant, or other forme of deputation; it is certaine that such an one is, and may call himselfe a Soueraigne Monarch: for so the people hath voluntarily disseised and dispoyled it selfe of

the soueraigne power, to sease and inuest another therein; hauing on him, and uppon him transported all the power, authoritie, prerogatives, and soueraignties thereof: as if a man should by pure gift deliver unto another man the proprietie and possession that unto him belongeth: in which case such a perfect donation admitteth no conditions. In which sort the regall law is by the lawyer said to have bene made in these words,[*] Cum populus ei & in eum omnem potestatem contulit: when as the people conferred unto him, and on him all their power. But if the people shall giue all their power unto any one so long as he liveth, by the name of a magistrat, lieutenant, or gouernour, or onely to discharge themselves of the exercise of their power: in this case he is not to be accounted any soueraigne, but a plaine officer, or leiutenant, regent, gouernour, or guerdon and keeper of another mans power. For as the magistrat, although hee make a perpetuall lieutenant, and hath no care of his own iurisdiction, leauing the entire exercise thereof unto his lieutenant, yet for all that, it is not in the person of the lieutenant that the power lyeth to commaund, or iudge, neither the exercise and force of the law: but if he passe beyond the power unto him giuen, it is to none effect; if his doings bee not ratified, liked, and approued by him that hath giuen the power. And for this cause king Iohn of Fraunce, led prisoner into England, after his returne thence, solemnly ratified all the acts of Charles the Dolphin, his eldest sonne, made regent in his absence, to strengthen and confirme the same, so farre as should be convenient and needfull. Be it then that a man either by commission, or institution, or by delegation, for a certaine time, or for euer, exercise the power of another man: he that so exerciseth this power, is not therefore a soueraigne, although that by his letters of commission or deputation he be not called a protector, lieutenant, regent, or gouernour: no not, albeit that such power be giuen him by the customs and lawes of the countrey, which should be much[*] stronger than election. As by an auntient law amongst the Scots, the entire government of the kingdome was committed unto him that was neerest of blood unto the king in his minoritie, or under the age of xxv yeares, yet with charge that all things should be done in the kings name: which law was long ago abrogated, for the danger might grow unto the young king, by his nigh kinsmen affecting the kingdome: for which, Caesar thought it lawfull for a man to become villanous.

Now let vs prosecute the other part of our propounded definition, and show what these words, Absolute power, signifie. For we said that unto Maiestie, or Soueraigntie[*] belongeth an absolute power, not subiect to any law. For the people or the lords of a Commonweale, may purely & simply giue the soueraigne and perpetuall power to any one, to dispose of the goods and lives, and of all the state at his pleasure: and so afterward to leaue it to whome he list: like as the proprietarie or owner may purely and simply giue his owne goods, without any other cause to be expressed, than of his owne meere bountie; which is indeed the true donation, which no more receiueth condition,

being once accomplished and perfected: as for the other donations, which carrie with them charge and condition, are not indeed true donations. So also the chiefe power giuen unto a prince with charge and condition, is not properly soueraigntie, nor power absolute; except that such charge or condition annexed unto the soueraigntie at the creation of a prince, be directly comprehended within the lawes of God and nature. As it is at the inuesting of the Tartar king. For the great king of Tartarie beeing dead, the prince and the people to whome the right of the election belongeth, make choice[*] of one of the kinsmen of the dead king, which they thinke best of (prouided that he be either his sonne or his nephew) and hauing placed him in a throne of gold, the bishop (after a solemne song sung according to the manner of their auncestours) turning his speech unto the king, in the name of the people, saith thus, Wee pray thee, and charge thee to raigne over vs: to whom the king aunswereth, If you will have me so to doe, you must be readie to performe whatsoeuer I commaund; whomsoeuer I appoint to be slaine, you shall slay him presently, and into my hand you shall commit the whole estate of the kingdome: whereunto the people aunswere, Bee it so: after which the king continuing his speech, saith, My word shall be my sword: whereunto the people giueth a great applause. This done, he is taken out of his high throne, and set upon the ground upon a bare boord, unto whome the bishop againe turning his speech, saith, Looke up unto heauen and acknowledge almightie God, the king of the whole world: and behold also this table whereon thou sittest below: if thou rule well, thou shalt have althings according to thy harts desire; but if thou forget thy dutie and calling, thou shalt be cast headlong downe from thy high seat, and dispotled of thy regall power and wealth, bee brought so low, as that thou shalt not have so much as this boord left thee to sit upon. This said, hee is lifted up on high, and by all the people proclaimed king of the Tartars. This so great a power giuen by the people unto the king, may wel be called absolute and soueraigne, for that it hath no condition annexed thereunto, other than is by the law of God and nature commaunded.

The same or like forme of inuesting we may also see to have bene sometimes vsed in[*] realmes and principalities, descending by succession. But the like is not to that of Carinthia, where yet at this present neere unto the citie of St. Vitus, in a meddow is to be seene a marble stone, whereunto a countrey pesant unto whom that office of right belonged,

stept up, hauing upon his right hand a blacke cow, and on his left a leane euill fauored mare, and all the people about him; towards whome he that is to be created duke commeth marching, with a great number of lords, all apparelled in red, and his ensignes displayed before him; all in good and seemely order, except the new duke himselfe, who is apparrelled like a poore shepheard, with a sheephooke in his hand: whome the clowne upon the stone seeing comming, crieth alowd in the Sclauonian tongue, Who is that (saith he) that commeth marching so proudly? whereunto the people aunswere, That it is their prince: then demaundeth he, Is he a iust iudge? seeketh hee the good of his countrey? is he free borne? is he worthie of that honour? and withall religious? Hee is, saith the people, and so shall hereafter be. Then the peasant giuing the duke a little blow on the eare, goeth downe from the stone, and is for euer after free from all publique charges: so the duke mounting the stone, and brandishing his sword, promiseth unto the people, To be a good and a iust man: and in that habit goeth to heare masse; which in solemne manner done, he putting off his shepheards apparrell, and attired like a prince, goeth up to the stone againe, and there receiueth the homage and oath of fidelitie of his vassals and subiects. True it is, that in auntient [*] time the duke of Carinthia was the emperours greatest Huntsman: but since that the empire fell into the house of Austria, wherunto that dukedome belonged, both the name of the Great Huntsman, and the old maner of inuesting the duke grew out of vse, and the duchies of Carinthia, Stiria, and Croatia, with the counties of Cilia, and Tirol, remaine annexed unto the dukedome of Austria.

As for those things which are reported concerning the inuesting of the king of Arragon,[*] they are long since growne out of vse; but this wee haue heard them to have wont to bee done: The great magistrat of Arragon, whome they call the Chief Iustice, thus said unto the king: We which are unto thee in vertue nothing inferiour, and in power greater than thy self, create thee our king; yet with this condition, that one amongst vs shall still have more power and commaund than thy selfe. Wherein he is deceiued that so writeth, the king to have bene then chosen of the people; a thing that neuer was there done. For Sanctius the Great by force of armes draue the Moores out

of the kingdome of Arragon, after they had seuen hundred yeares possessed the same: after which time his posteritie of both Sexes, held that kingdome by inheritance. And also Peter Belluga, who most exactly writ of the kingdome of Arragon, denieth the people to have any right in chusing the king; but when the line of the king vtterly saileth. That were also a new and more absurd thing, that the king of Arragon should have lesse power than the states of Arragon, seeing that the same author Belluga saith, That the states might not assemble themselves without the kings expresse commaundement; neither being assembled, might depart without leaue giuen them from the king. That were also more absurd and ridiculous, that such speech should bee used by the magistrat, unto him that was now crowned, sacred, and receiued a king by right of succession, who also placed and displaced the same great magistrat whensoeuer hee list. For the same author writeth, Martin Didato the greatest magistrat, to have beene placed in that office by the queen of Aragon, in the absence of Alphonsus her husband, king of Arragon and Sicilia; and also by her againe discharged of the same office. And albeit that by sufference of the king, that great magistrat or justice of Arragon, determineth of the processe and controuersies betwixt the king and his people: as it is also in England sometime by the high court of Parliament, and sometime by the magistrat, whome they call the Lord Chiefe Iustice of England, and by all the judges of this [*] realme, and in all places: yet neuerthelesse so it is, that the great justice of Arragon, and all the estates remaine in full subiection to the king, who is no wayes bound to follow their aduice, neither to consent to their requests, (as saith the same doctor) which is generall to all estates of a monarchie, as saith Oldard, speaking of the kings of Fraunce and Spaine, Who have (saith he) absolute power. Yet true it is, that none of these doctours tell vs, what absolute power is. For if wee shall say, that hee onely hath absolute power, which is subiect unto no law; there should then bee no soueraigne prince in the world, seeing that all princes of the earth are subiect unto the lawes of God, of nature, and of nations.

So to the contrarie it may be, that some one subiect may be dispensed withall, and[*] absolued from all the laws, ordinances, and customes of his Commonweale, and commaundement of the magistrat; and yet be neither prince, nor soueraigne. Example

we have of Pompey the great, who was dispensed withall from the lawes for five yeres, by expresse decree of the people, published at the request of of Gabinius the Tribune, at such time as extraordinarie power was giuen him to make warre against the pirats: neither is it any new thing or straunge thing to dispence with a subiect for his obedience to the lawes, seeing that the Senat sometimes so dispenced without the consent of the people: vntill the law Cornelia published at the request of a Tribune, whereby it was ordained, That no person should be exempted out of the power of the laws, nor dispenced withall by the Senat, if he had not at the least the consent of two hundred Senators. For by the law of the twelue tables, it was forbidden upon paine of death to graunt any priueledge but by the great assemblies of the people; but that law was euill executed, being still infringed by the Senat. Yet he that is so exempted from one law, or moe, or all lawes, is for all that alwaies in the subiection and obeysance of them which have the soueraigntie: yea although he bee for euer absolued from all the lawes of his countrey. As Augustus, who although he was the prince of the people of Rome, that is to say, the chiefe in that Commonweale, yet faigning himselfe to be inferiour to the people in generall, he oftentimes propounded questions unto the people, as if the people, and not Augustus, should make the lawes: and at the chusing of magistrats, would shake the citisens by the hands, that so hee might commend them that stood for the offices unto the people. But it behoueth him that is a soueraigne not to be in any sort subiect to the commaund of another: which thing Tiberius wisely meaning in these words, reasoned in the Senat concerning the right of soueraigntie, saying that The reason of his doings were no otherwise to be manifested, than in that it was to be giuen [*] to none: whose office it is to giue laws unto his subiects, to abrogat laws vnprofitable, and in their stead to establish other: which hee cannot do that is himselfe subiect unto lawes, or to others which have commaund over him. And that is it for which the law saith, That the prince is acquitted from the power of the lawes: and this word the Law, in the Latine importeth the commaundement of him which hath the soueraigntie. Wee also see that unto all edicts and decrees there is annexed this clause, Notwithstanding all edicts and ordinances whereunto we haue derogated, and do derogat by these presents: a clause which hath alwaies bene ioyned unto the antient lawes, were the law published by the present prince, or by his predecessours. For it is certaine, that[*] the lawes, ordinances, letters pattents, priueleges, and grants of princes, have no force, but during their life, if they be not rati⋯by the expresse consent, or at least by sufferance of the prince following, who had knowledge there of, and especially of the priueleges. As when Bartolus was sent ambassadour unto Charles the fourth, the German emperour, for the confirmation of the priueleges of the citie of Perouze, hee obtained the same, yet with condition, That they should so long have force, vntill they were reuoked by the succeeding emperours: vnto whom for all that, no preiudice could have bene done, although that clause had not bene put to: which was the cause that Michael Del Hospital chauncelour of Fraunce, constantly refused, yea euen at the request of the queene, to seale the priuileges by Charles the ix. graunted unto St. Maur des Fossez, for that they carried with them a perpetuall enfranchisment and immunitie from taxes, which is contrarie to the nature of personall priueledges, and tended to the diminishing of the power of his successours, and could not be giuen vnto corporations or colleges, which live for euer, but for the life of the prince that graunted them onely, although the word (perpetuall) were thereunto adioyned. Which for all that if they were graunted unto corporations or colleges, by a popular or Aristocraticall state, must needs bee for euer, or at leastwise so long as that popular or Aristocraticall state should continue. And for this cause Tiberius the emperour, successour to Augustus, would not that the priueledges graunted by the dead emperours, should bee of any effect, if their successors had not confirmed them: when as before the priueleges granted by princes, if they were not limited unto a time certaine, were accounted as giuen for euer. Wee also see in this [*] realme, that at the comming of new kings, colleges and corporations require to have their priueleges, power, and iurisdiction confirmed; yea the verie parliaments and soueraigne courts, as well as other particular officers.

If then the soueraigne prince be exempted from the lawes of his predecessors, much lesse should he be bound unto the lawes and ordinances he maketh himselfe: for a

man may well receiue a law from another man, but impossible it is in nature for to giue [*] a law unto himselfe, no more than it is to commaund a mans selfe in a matter depending of his owne will: For as the law saith, Nulla obligatio consistere potest, quae a voluntate promittentis statum capit, There can be no obligation, which taketh state from the meere will of him that promiseth the same: which is a necessarie reason to proue euidently that a king or soueraigne prince cannot be subiect to his owne lawes. And as the Pope can neuer bind his owne hands (as the Canonists say;) so neither can a soueraigne prince bind his owne hands, albeit that he would. Wee see also in the end of all edicts and lawes, these words, Quia sic nobis placuit, Because it hath so pleased vs: to giue vs to vnderstand, that the lawes of a soueraigne prince, although they be grounded upon good and lively reasons, depend neuerthelesse upon nothing but his meere and franke good will. But as for the lawes of God and nature, all princes and people[*] of the world are unto them subiect: neither is it in their power to impugne them, if will not be guiltie of high treason to the diuine maiestie, making warte against God; under the greatnesse of whome all monarches of the world ought to beare the yoke, and to bow their heads in all feare and reuerence. Wherefore in that wee said the soueraigne power in a Commonweale to be free from all lawes, concerneth nothing the lawes of God and nature. For amongst the Popes, [*] hee that of all others best knew the lawes of maiestie or soueraigntie, and had almost brought under him the power of all the Christian emperours and princes, said him to be indeed a soueraigne that was able to derogat from the ordinary right (which is as I vnderstand it, from the laws of his countrey) but not from the lawes of God or nature.

But further question maybe, Whether a prince bee a subiect to the lawes of his[*] countrey, that he hath sworne to keepe, or not? wherein wee must distinguish. If the prince sweare unto himselfe, That he will keepe his law: hee is no more bound to his law, than by the oath made unto himselfe: For the subiects themselves are not any way bound by oath, which they make in their mutuall conuentions, if the couenants be such as from which they may by law shrinke, although they be both honest and reasonable. But if a soueraigne prince promise by oath to keep the lawes which he or his predecessours have made, he is bound to keepe them, if the prince unto whome hee hath so giuen his word have therein any intrest; yea although he have not sworne at

al: But if the prince to whom the promise was made have therin no intrest, neither the promise nor the oath can bind him that made the promise. The like we say, if promise be made by a soueraigne prince unto his subiects, or before hee bee chosen; for in that case there is no difference, as many thinke: not for that the prince is bound to his laws, or by his predecessours; but to the iust conuentions and promises that hee hath made, be it by oath, or without any oath at all; as should a priuat man bee: and for the same causes that a priuat man may be releeued from his vniust and vnreasonable promise, as for that it was too grieuous, or for that he was by deceit or fraud circumuented; or induced thereinto by errour, or force, or iust feare; or by some great hurt: euen for the same causes the prince may be restored in that which toucheth the diminishing of his maiesty, if he be a soueraigne prince. And so our maxime resteth, That the prince is not subiect to his lawes, nor to the lawes of his predecessours: but well to his owne iust and reasonable conuentions, and in the obseruation whereof the subiects in generall or particular have intrest. Wherein we see many to be deceiued, which make a confusion of lawes, and of a princes contracts, which they call also lawes: as well as he which calleth a princes contracts pactionarie lawes; as they tearme them in the state of Arragon, when the king maketh any law at the request of the people, and receiueth therefore any money or subsidie; then the Arragonians say that the king is unto that law bound, but not so unto other lawes: and yet neuerthelesse they confesse that the prince may derogat from the same, the cause of the law ceasing: which to bee true, as it may by reason and authoritie be confirmed, so was there no need of money, or of oath, to bind the soueraigne prince, if it concerned his subiects (to whome he had promised) to[*] have the law kept. For the word of a prince ought to bee as an Oracle; which looseth his dignitie, if his subiects have so euill an opinion of him, as not to beleeue him except he sweare; or else to be so couetous, as not to regard his promise except therefore he receiue money. And yet neuerthelesse the maxime of right still standeth in force, That the soueraigne prince may derogat unto the lawes that hee hath promised and sworne to keepe, if the equitie thereof ceased, and that of himself without consent[*] of his subiects: yet true it is, that a generall obscure or doubtfull derogation, in this case sufficeth not, but that there must bee a derogation in words speciall. But if there bee no probable cause of abrogating the law he hath promised to keepe, he shall do against the dutie of a good prince, if he shall go about to abrogat such a law: and yet for al that is he not bound unto the couenants and oathes of his predecessours, further than standeth with his profit, except he be their heire. And for this cause the states of Arragon complained to king Alphonsus, for that he for gaine had altered and chaunged the money of Arragon, to the great preiudice of the subiects, and marchants straungers, contrarie to the promise made by Iames the first, king of Arragon, in the yeare 1265, in the moneth of August, and confirmed by king Peter, in the yeare 1336, who swore unto the estates neuer to chaunge the money; in recompence wherof the people had promised every one of them every seuen yeares to pay unto him a maruedie, if they were in goods worth fifteene maruadies. Now the kingdome of Arragon discendeth by inheritance unto the heires, both males and females; but the effect of the contract betwixt the prince and the people ceasing, as the subsidie for which the kings of Arragon had made that order which I have said, the king was no more bound to keepe his promise: then were the people to pay the subsidie upon them imposed.

We must not then confound the lawes and the contracts of soueraigne princes, for[*] that the law dependeth of the will and pleasure of him that hath the soueraigntie, who may bind all his subiects, but cannot bind himselfe: but the contract betwixt the prince and his subiects is mutual, which reciprocally bindeth both parties, so that the one partie

may not start therefrom, to the preiudice, or without the consent of the other. In which case the prince hath nothing aboue the subiect, but that the equitie of the law which he hath sworne to keepe, ceasing, he is no more bound to the keeping thereof, by his oath or promise, as we have before said: which the subiects cannot do among themselves, if they bee not by the prince releeued. The soueraigne princes also wel aduised,[*] will neuer take oath to keepe the lawes of their predecessours; for otherwise they are not soueraignes. But then might some man say, Why doth the German emperour, who hath a preheminence aboue all other Christian kings, before he be crowned sweare betwixt the hands of the archbishop of Cullen, to keepe the laws of the empire, the golden Bul, to establish iustice, to revenge the pope, to keepe the catholike faith, to defend the widdowes, the fatherlesse, and poore? Which forme of oath, wherewith the emperour Charles the fift bound himselfe when he was crowned, cardinall Caietan is said to have sent unto the pope, whose legat he then was in Germanie. Whereunto I aunswere, that the emperour is subiect unto the states of the empire; neither taketh upon him the soueraigntie over the princes electours, nor over the estates; as we shall in due place declare. And if a man say, That the kings of the Epirots in auntient time swore, that they should raigne well and orderly according to the lawes and customs of the countrey, and the subiects also on their part swore to defend and maintaine their king, according to the lawes and customes of their countrey: I say yet notwithstanding all these oathes, that the soueraigne prince might derogat from the lawes, or frustrat and disanull the same, the reason and equitie of them ceasing. The oath also of our kings, which is the fairest and shortest that can be, containeth nothing in it concerning the keeping of the lawes and customes of the countrey or predecessours. The words I will set downe, as they be taken word for word out of the librarie of Rheims, out of an auntient booke, which thus beginneth Iuliani ad Erigium Regem Anno 1058 Henrico Regnante 32 iiij. Calend. Iunij. Ego Philippus Deo propiciante mox futurus Rex [*] Francorum, in die ordinationis meae promitto coram Deo & sanctis eius, quod vnicuique de nobis commissis canonicum priuilegium, & debitam legem atque iustitiam conseruabo, & defensionem adi⋯uante Domino quantum potero exhibebo: sicut Rex in suo regno vnicuique Episcopo & Ecclesiae sibi commisse per rectum exhibere debet: populo quoque nobis credito, me dispensationem legum in suo iure consistentem, nostra auctoritate concessurum. viz. The booke of Iulian Erigius, Anno 1058, in the xxxij. yeare of the raigne of Henrie the first, the fourth of the calends of Iune. I Philip, by the grace of God forthwith to become king of Fraunce, on the day of my inuesting, doe promise before God and his Saints, that I will keepe canonicall priueledge, with due administration of law and iustice, to euerie one committed to our charge: and by the help of God to the vttermost of my power defend them, in such manner as a king in his kingdome ought of right to giue unto euerie bishop & church committed unto him: & by our authoritie to grant unto the people committed unto vs, the execution of the lawes remaining in force. I know that which is found in the librarie of the Beauuais is like unto this, and the oath of the same Philip the first: but I have seene another in a little auntient booke in the Abbay of S. Allier in Auergne, in these words; Ie iure au nom de Deiu tout puissant, & promets de gouuerner bien et deuement les subiects commis en ma garde, & faire de tout mon pouuoir iudgement, iustice, et misericorde: I sweare by the name of the Almighty God, and promise well and duly to gouerne my subiects committed to my charge: and with all my power to doe them iudgement, iustice, and mercie. Which seemeth to have bene taken from the prophet Hieremie, where he saith, I am the great eternall [*] God, which do iudgement, iustice, and mercie; and in which things I take singular pleasure. Which formes of oathes shew plainely unto the eye, that the oathes contained in the booke lately printed and published by the title of Sacre Du Roy, are much changed and altred from the auntient forme. But both in the one and the other oath, a man may see that there is not any bond for the soueraigne prince to keepe the lawes, more than so farre as right and iustice requireth. Neither is it to be found that the auntient kings of the Hebrewes tooke any oath: no not they which were anointed by Samuel, Helias and others. But some take a more precise oath, such as is the oath of Henry the 3 king of Fraunce, and of Polonia. Ego Henricus Rex Poloniae, &c. Iuro Deo omnipotenti, quòd omnia iura, libertates, priuilegia publica & priuata iuri communi non contraria, Ecclesijs, [*] principibus, Baronibus, nobilibus, ciuibus, incolis, per meos praedecessores Reges, & quoscumque principes Dominos, Regni Poloniae iustè concessa, & quae in interregno decreta sunt seruabo, iusque omnibus incolis more maiorum reddam. Ac si quidem (quod absit) Sacramentum meum violauero nullam nobis incolae Regni obedientiam praestare tenebuntur, &c. sic Deus adiuuet. viz. I Henrie king of Polonia, &c. Sweare unto almightie God, that I will keepe all the lawes, liberties, publick and priuat priueleges, not contrarie to the common law, iustly graunted unto churches, princes, barrons, noble men citisens, or inhabitants, by the kings my predecessours, or whatsoeuer other princes, lords of the kingdome of Polonia: as also all such things as were decreed in the time of the vacancie of the kingdome: and that I will administer iustice unto all the inhabitants of this kingdome, after the manner of our auneestours: And if I shall violat this mine oath (which God forbid) then the inhabitants of this kingdom shall be bound to yeeld unto vs no obedience, &c. And so God helpe vs. But this forme of oath sauoureth not of royall maiestie, but the condition of a meaner prince, such an one as (amongst others) is chiefe in a Commonweale.

But touching the lawes which concerne the state of the realme, and the establishing thereof; forasmuch as they are annexed & vnited to the crowne, the prince cannot derogat[*] from them, such as is the law Salique: & albeit that he so do, the successor may alwaies disanull that which hath bene done unto the preiudice of the laws royall; upon which the soueraigne maiestie is stayed & grounded. Yet might one say, That Henry the 5, king of England & France, marying Katherine of France, sister to Charles the 7,

took an oath to keep the high court of parliament in the liberties & soueraigntie therof; and to cause iustice to be administred in the realme, according unto the customes and lawes thereof. See the words of the decree agreed upon for to make him successour unto the crowne of Fraunce, the xxj of May, in the yeare 1420. I say they caused him to take such an oath, for that he was a straunger come to a new kingdome; from which the lawfull inheritour was excluded by a decree of the Parliament of Paris, giuen for default and conrumacie; for the murther committed uppon the person of Iohn duke of Burgoigne, which was by sound of trumpet pronounced at the marble table in the presence of the princes. But as for generall and particular lawes and customs, which concerne not the establishing of the state of the realme, but the right of men in priuat, they have not used to have bene with vs otherwise chaunged, but after generall assemblie of the three estates of Fraunce well and duly made; or of every bailiwike in particular: not for that it is necessarie for the king to rest on their aduice, or that hee[*] may not do the contrarie to that they demaund, if naturall reason and iustice so require. And in that the greatnesse and maiestie of a true soueraigne prince, is to bee knowne; when the estates of all the people assembled together, in all humilitie present their requests and supplications to their prince., without hauing any power in any thing to commaund or determine, or to giue voice, but that that which it pleaseth the king to like or dislike of, to commaund or forbid, is holden for law, for an edict and ordinance. Wherein they which have written of the dutie of magistrats, & other such like books, have deceiued themselves, in maintaining that the power of the people is greater than the prince; a thing which oft times causeth the true subiects to reuolt from the obedience which they owe unto their soueraigne prince, & ministreth matter of great troubles in Commonweals. Of which their opinion, there is neither reason nor ground, except the king be captiue, furious, or in his infancie, and so needeth to have a protector or lieutenant appointed him by the suffrages of the people. For otherwise if the king should be subiect unto the assemblies and decrees of the people, hee should neither bee king nor soueraigne; and the Commonwealth neither realme not monarchie, but a mee⋯ Aristocratie of many lords in power equall, where the greater part commaundeth the lesse in generall, and every one in particular: and wherein the edicts and lawes are not to be published in the name of him that ruleth, but in the name and authoritie of the states, as in an Aristocraticall Seignorie, where hee that is chiefe hath no power, but oweth obeysance unto the commaundements of the seignorie: unto who me yet they all and euerie one of them faigne themselves to owe their faith and obedience: which are al things so absurd, as hard it is to say which is furthest from reason. So when Charles the eight, the French king, being then but about xiiij. yeres old, held a parliament at Tours, although the power of the parliament was neuer before[*] no⋯ after so great as in those times, yet Relli, then speaker for the people, turning himselfe unto the king, thus beginneth his oration, which is yet in print extant. Most high, most mightie, and most Christian king, our naturall and onely lord, we your humble and obedient subiects, &c. Which are come hither by your commaund, in all humilitie reuerence and subiection present our selues before you, &c. And have giuen mee in charge from all this noble assemblie, to declare unto you the good will and hartie desire they have with a most firme resolution and purpose to serue, obey, and aid you in all your affaires, commaundements and pleasures. In briefe, all that his oration and speech is nothing els but a declaration of all their good wils towards the king, and of their humble obedience and loialtie. The like speech almost we see was also used in the parliament at Orleans unto king Charles the ninth, when he was yet but scarce eleuen yeares old. Neither are the parliaments of Spaine otherwise holden, but that euen a greater obedience & a greater loialtie of all the people in generall, is giuen unto the king, as is to bee seene in the acts of the parliament holden at Toledo by king Philip, in the yeare 1552, when he was yet scarce full xxv yeares old. The aunswers also of the king of Spaine unto the[*] requests and humble supplications of his people, are giuen in these words, We will; or else, We decree and ordaine; and such other like aunsweres, importing the refusall or consent of the prince: yea the subsidie that the subiects pay unto the king of Spaine, they call seruice. Wherby it appeareth them to be deceiued, which say that the kings of Arragon cannot derogat from the priueledges of the states, by reason of the priueleges giuen them by king Iames, in the yeare 1260, and confirmed in the yeare 1320. For as the priueleges was of no force after the death of the king, without the confirmation of his successours: so also the same confirmation of the rest of the kings following was necessarie, for that by the law no man can raigne over his equals. And albeit that in the parliaments of England, which have commonly bene holden euerie third yeare; there the states seeme to have a verie great libertie (as the Northerne people almost all breath thereafter) yet so it is, that in effect they proceed not, but by way of supplications and requests unto the king. As in the parliament of England, holden in October,[*] 1566, when the estates by a common consent had resolued (as they gaue the queene to vnderstand) not to entreat of any thing, vntill she had first appointed who should succeed he⋯ in the crowne: She gaue them no other aunswere, But that they were not to make her graue before she were dead. All whose resolutions were to no purpose without her good liking: neither did she in that any thing that they required. Now also the estates of England are neuer otherwise assembled (no more than they are in this realme of Fraunce, or Spaine) than by parliament writs, and expresse commandements proceeding from the king. Which showeth verie well that the estates have no power of themselves to determine, commaund, or decree any thing; seeing that they cannot so much as assemble themselves; neither beeing assembled, depar, without expresse commaundement from the king. Yet this may seeme one speciall thing that the laws made by the king of England, at the request of the states, cannot bee againe repealed, but by calling a parliament of the estates: Which is much vsed and ordinarily done, as I have vnderstood by M. Dale, the English ambassadour, an honourable gentleman [*] and a man of good understanding, who yet assured me, that the king receiued or reiected the law as seemed best vnto himself: and stucke not to dispose therof at his pleasure, and contrarie to the will of the estates: as wee see Henry the eight to haue alwaies used his soueraigne power, and with his onely word to have disanulled the decrees of parliament albeit that the kings of England are not otherwise crowned, but that they must sweare inuiolatly to keepe the lawes and customes of the land: which how that oath is to be vnderstood, I referre you to that which wee have before reported. But here might some obiect and say That the estates of England suffer not any extraordinary charges and subsidies to be laid upon them, if it be not first agreed upon and consented unto in the high court of parliament: for so it is prouided by an auntient law of Edward the first, king of England, wherewith the people as with a buckler hath bene oftentimes seene to defend it selfe against the prince. Whereunto mine aunswere is, That other kings have in this point no more power than the kings of England: for that it is not in the power of any prince in the world, at his pleasure to rayse taxes upon the people, no more than to take another mans goods from him; as Philip Commines wisely shewed in the parliament holden at Tours, as weread in his Comentaries: and yet neuerthelesse if the necessitie of the Commonweale be such as cannot stay for the calling of a parliament, in that case the prince ought not to expect the assemblie of the states, neither the consent of the people; of whose good foresiight and wisedome, next unto God, the health & welfare of the whole state dependeth: but concerning all sorts of taxes and tributes, more shall be said in place convenient. True it is, that the kings of England, since the time of Henrie the first (as we read in Polidore) have as it were alwaies accustomed every third yeare to demaund of the people an extraordinarie subsidie, which is for the most part graunted. As in the parliament holden in Aprill, in the yeare 1570, the queene of England by the consent of the estates, drew from them five hundred thousand crownes (as the like whereof is sometime also used to bee done in Spaine) from which manner of tribute she had now many yeares before abstained. Now here might some obiect also, That the estates of England have power to condemne,[*] as king Henrie the sixt was condemned by the estates, to be kept prisoner in the Towre of London. I say that that was done by the ordinarie judges of England, the lords spirituall and temporall of the upper house, at the request of them of the neather house; who presented also a bill of request to the upper house, in the yeare 1571, tending to the end, that the earles of Northumberland, and Westmerland, & other conspiratours, might be declared to have incurred the paines contained in the lawes of the land, made against them that were guiltie of treason. Which showeth well that the estates in bodie together have neither power nor iurisdiction, but that the power is with the judges of the upper house, as should be, if the parliament of Paris assisted by the prince and peers, should be from the estates in bodie together seperated, to iudge of themselves of great matters.

But yet there remaineth another difficultie to resolue upon, concerning the aforesaid estates of England, who seemed to have power to commaund, resolue, and decide of the affaires of state. For queene Marie hauing assembled them for the passing of the articles of agreement concerning the mar⋯iage with king Philip: after many disputes and difficulties proposed, in fine, the conclusion of the treatie was made the second day of Aprill in the yeare 1554, in forme of a decree conceiued in the name of the estates, in these words: The articles aforesaid, and that which dependeth thereof, seene and considered of, by the estates assembled in parliament, holden at the palace of Westminster, it hath bene said, That concerning the disposition and collation of all benefices and offices, they are reserued unto the queene; as also of all the fruits, profits,

rents, reuenews of her countries, lands, and seignories, the queene, as sole and alone shall enioy the royaltie and soueraignetie of her said realmes, countries, lands, and subiects, absolute, after the consummation of the mariage; so that the said prince shall not pretend by the way of the courtesie of England, any claime to the crowne or soueraigntie of the realme, nor to any other rights, preheminences, or authorities: That all mandats and letters pattents shal passe under the name of the said prince and queene iointly: which letters signed with the hand of the queene alone, and sealed with the great seale, shall be auailable: but being not signed by the said queene, shall be void and to none effect. I have willingly set downe the ratification at large, to show that the soueraigntie wholly without diuision belonged unto the kings of England, and that the estates had but the view thereof: For the ratification of the estates, no more than of a court, a parliament, a corporation, or colledge, sufficeth not to show the power to commaund, but rather their consent to strengthen the acts, which gtherwise might have bene called into some doubt, after the death of the queene: or in her life time by the magistrats and officers of the realme, opposing themselves against her. Wherfore we conclude the maiestie of a prince to be in nothing altered or diminished by the calling together or presence of the states: but to the contrarie his maiestie thereby to bee much the greater, & the more honorable, seeing all his people to acknowledge him for their soueraigne: albeit that in such assemblies, princes not willing to reiect their subiects, graunt, and passe many things, whereunto they would not otherwise yeeld their consent, if they were not ouercome by the requests, prayers, and iust grieuances of the people, anfflicted and vexed oftentimes without the knowledge of the prince, who yeeldeth many things unto them all, which he would deny unto them in particular; or at leastwise not so easily graunt them: either for that the voyces of euerie one in particular, are lesse heard, than of al together: or for that the prince at other times commonly vseth to see but by other mens eyes and to heare but by other mens eares and reports: whereas in parliament hee seeth and heareth his people himselfe, and so enforced with shame, the feare of religion, or his owne good disposition, admitteth their iust requests.

So wee see the principall point of soueraigne maiestie, and absolute power, to consist[*] principally in giuing laws unto the subiects in generall, without their consent. And not to speake of straunge countries, we have oftentimes seene in this realme of Fraunce[*] certaine generall customs abolished by the edicts of our kings, without the assembling or consent of the estates: when the iniustice of the same is plainely to be seene; as the custome of this realme, commonly used in every place, concerning the succession of mothers unto the goods of their children, hath bene chaunged without assembling of the estates, either in generall or particular. Which chaunging of customes is no new thing, for since the time of Philip the faire, the custome generall in this realme, which suffered not him that was ouerthrowne in sute, to be condemned in charges also, was

disanulled by edict, without assembling the estates. And the generall custome which forbad to receiue the testimonie of women in civill causes; was abolished by the edict of Charles the sixt, without calling together of the estates. For it behoueth that the soueraigne prince should have the lawes in his power, to chaunge and amend them, according as the case shall require; as saith the lawyer Sextus Cecilius: euen as the master pilot ought to have the helme alwaies in his hand, at discretion to turne it as the wether or occsion requireth: for otherwise the ship might oftentimes perish before hee could take aduice of them whome he did carrie. Which is a thing necessarie, not onely unto a soueraigne prince, but sometimes unto a magistrat also, the necessitie of the Commonweale so requiring, as we have said of Pompee, and of the Decemuiri. And for that cause Augustus after he had ouerthrowne Marcus Antonius at Actium, was by the Senat absolued from the power of the lawes, albeit that he as then was but chiefe of the Commonweale, and no soueraigne prince, as we shall in due place declare. And after that Vespatian the emperour was also exempted from the power of the lawes, not by the Senat onely, but onely by the expresse law of the people as many thinke, and as yet it is to be found engrauen in marble in Rome: which the lawyer calleth the law Royall, howbeit that it hath no great probabilitie, that the people which long time before had lost al their power, should giue it to him that was stronger than themselves.

Now if it be profitable that the soueraigne prince, for the good government of an estate, should haue the power of the laws under him; then it is more expedient for the gouernour in an Aristocraticall estate; and necessarie for the people in their popular estate: for the monarch is divided from the people; and in the Aristocraticall state, the lords or gouernours are divided from the commonaltie and vulgar people; in such sort as that in both the one & other Commonweal, there are two parties, that is to wit, he or they that hold the soueraigntie on the one part, and the people on the other; which causeth the difficulties which are betwixt them for the rights of soueraigntie, which cease in the popular estate. For if the prince or lords which hold the estate be bound to obserue the laws, as many think they are, and that they cannot make any law without the consent of the people, or of the Senat; it cannot also bee againe by law repealed, without the consent of the one or of the other: which can take no place in a popular estate, seeing that the people make but one bodie, and cannot bind it selfe unto it selfe. But, Why then (will some say) did the people of Rome sweare to keepe the lawes? That was first begun by Saturnius the Tribune of the people, that so hee might the more straitly bind the Senators to the lawes by him made: which Dio Nicaeus writeth to have bene afterward done in all lawes. But it is one thing to bind all together, and to bind euerie one in particular: for so al the citisens particularly swore to the obseruation of the lawes, but not all together; for that every one of them in particular was bound unto the power of them all in generall. But an oath could not be giuen by them all: for why, the people in generall is a certaine vniuersall bodie, in power and nature divided from every man in particular. Then againe to say truly, an oath cannot bee[*] made but by the lesser to the greater, but in a popular estate nothing can bee greater than the whole body of the people themselves. But in a monarchie it is otherwise, where euerie one in particular, and all the people in generall, and (as it were) in one bodie, must sweare to the obseruation of the lawes, and their faithfull alleageance to one soueraigne monarch; who next unto God (of whome he holdeth his scepter & power) is bound to no man. For an oath carrieth alwaies with it reuerence unto whom, or in whose name it is made, as still giuen unto a superiour: and therefore the vassall giueth his oath unto his lord, but receiueth none from him againe, although that they be mutually bound the one of them unto the other.

But if it be so, that a soueraigne prince next under God, is not by oath bound unto any, why did Traian the emperor standing upright, before the Consul sitting, solemnly sweare to the keeping of the lawes? That seemeth to have beene so done by him for two causes, the one, for that hauing gotten the Consulship, together with his principalitie, he swore as the Consuls did at their entrance into their Consulship; as also al the new magistrats did the first of Ianuarie, after they had sacrificed in the Capitoll: The other reason was, for that the Roman emperours at the first had not any soueraigne power, but were onely called princes, that is to say, the chiefe men in the Commonweale; which fo⋯ me of a Commonweale, is called a principalitie, and not a monarchy:[*] but a principalitie is called a certaine forme of an Aristocratie, wherein one is in honor

dignitie and place, aboue the rest: as amongst the Venetians: For the Roman emperour or prince, at the first was in honour aboue the rest, but not in power: howbeit that in truth the greatest part of the Roman emperors were indeed tyrants. Which is well to be vnderstood, for that which happened in the raigne of Caligula the cruell tyrant,[*] who hauing bid certaine forten kings and allies of the people of Rome to supper, and question there at the table arising about their honour and greatnesse; hee to stay their strife, rapt out this verse, taken out of Homers Iliades;

⋯.

And it missed but a little (as saith Suetonius) but that hee had euen then chaunged[*] his principalitie into a monarchie, and set a crowne upon his owne head. For in a principalitie the prince or chiefe magistrat, who is aboue the rest, is yet no soueraigne; as we shall hereafter show in the Commonweals of the Venetians, and of the Germans. And albeit that many of the Roman emperors, had taken upon them the soueraigntie, and by diuers sleights wrested from the people their libertie; yet neuerthelesse it was no[*] maruell if Traian, one of the best princes that euer lived in the world, swore (as is aforesaid)

to keep the laws, although he in the name of a soueraigne prince were exempted; to the end by his own example to moue his subiects to the more carefull obseruing of them: but neuer one of the emperours before him so swore to the obseruing of the lawes. And therefore Plinie the younger, who in a pannegiricall oration, set forth the praises of that most worthy prince, speaking of the oath of Traian, crieth out in this sort, A great noueltie (saith he) and neuer before heard of, hee sweareth by whome wee sweare. And after that in the declination of the empire, Theodoric desirous to gaine the favour of the Senat and people of Rome, followed the example of Traian, as wee read in Cassiodore, Ecce Traiani nostri clarum seculis reparamus exemplum; iurat vobis per quem iuratis, Behold (saith he) we renew the example of our Traian, famous through all ages; he sweareth unto you, by whome you your selues sweare. And like it is, that other princes have used the same custome, of taking the like oath at their coronation, although they have the soueraigntie by the right of succession. True it is, that the kings of the Northerne people take such oathes as derogat from their soueraigntie: As for example, the nobilitie of Denmarke withstood the coronation of Frederick, in the moneth of August, in the yeare 1559, vntil that he had solemnly sworne that he should not put any noble man to death, or confiscat his goods, vntill he were iudged by the Senat; and that all noble men should have iurisdiction & power of life & death over their subiects, without appeale; and that the king should haue no part in their fines or confiscation of their goods; and also that the king should not giue any office without consent of the counsell: which are all arguments, that the king of Denmarke is no absolute soueraigne. But this oath was first drawne out of the mouth of Frederick this mans grandfather, at such time as he made warre against Christierne king of Denmark (who was driuen out of his kingdome, and after long banishment returning, at length died in prison, wherein he had lived twentie five yeares) and was afterward confirmed by Christierne father of Frederick, who tooke the same oath. And to the end hee should not violat, or breake the same, the nobility to that purpose treated a league with the towne of Lubec, and Sigismundus Augustus king of Polonia, who also himselfe seemes not to have much more power over his owne subiects than hath the king of Denmarke over his.

But of two things the one must be: that is to wit, the prince that sweareth to keepe[*] the lawes of his countrey, must either not have the soueraigntie; or els become a periured man, if he shall abrogat but one law, contrarie unto his oath: whereas it is not only profitable that a soueraigne prince should sometimes abrogat some such lawes, but also necessarie for him to alter or correct them, as the infinit varietie of places, times, and persons shall require. Or if wee shall say the prince to be still a soueraigne, and yet neuerthelesse with such condition, as that he can make no law without the aduice of his counsell or people; he must also be dispensed with by his subiects, for the oath that

he hath made for the inuiolat obseruation of the laws; & the subiects againe which are obliged & bound unto the lawes, be it in particular, or in generall, have also need to be dispensed withall by their prince, for feare they should bee periured: so shall it come to passe that the maiestie of the Commonweale enclining now to this side, now to that side, sometimes the prince, sometimes the people bearing sway; shall have no certaintie to rest upon: which are notable absurdities, & altogether incompatible with the maiestie of absolute soueraigntie, & contrarie both to law & reason. And yet we see many, euen them that thinke themselves to see more in the matter than others, which maintaine it to be most necessarie, that princes should be bound by oath to keep the laws & customs of their country. In which doing they weaken & ouerthrow all the rights of soueraign maiesty, which ought to be most sacred & holy, & confound the soueraigntie of one soueraigne monarch, with an Aristocratie, or Democratie: whereby it commeth to passe, that many princes, seeing that power to be taken from them, which properly belongeth unto them, & that men would make them subiect to the laws of their country, dispense in the end, not only with those their country laws, but euen with the laws of God & nature, making account of them all alike, as if they were bound to neither, but of both discharged. But to make all this matter more plaine to be vnderstood,[*] we will by examples make manifest that before said. Wee read it thrice repeated in Dan. that by the customs of the Medes & Persians, the laws by their kings made, were immutable & irreuocable; & albeit that the king of the Medes would have exempted the Prophet Daniel, from the punishment of death, which by the edict which hee had broken was to haue bene inflicted upon him; yet was he by the princes forbidden so to doe, who shewed him, that the edict by him made could not by the law of their countrey be reuoked: wherunto when the king euen against his will (as should seeme) had assented, Daniel was accordingly condemned unto the beasts, and so cast unto the hungrie lions. If then the greatest monarch upon earth could not derogat from the lawes by himselfe made; the grounds of maiestie and soueraigntie by vs before laid, must needs faile: and that not onely in a monarchie, but in a popular state also: as was that of Athens, whereof Thucydides speaking, showeth that the warre of Peloponesus [*] began for a law made by the Athenians, whereby the Megariens were forbidden to come into the port of Athens; wherein the Megariens complained unto their allies and friends themselves to be wronged and the lawes of nations violated: whereupon the Lacedemonians sent their ambassadours to Athens, to request the Athenians, that that law might be againe repealed. Wherunto Pericles then in greatest grace & authoritie with the people, aunswered the ambassodours, That by the expresse lawes of their auncestours, the lawes once made and confirmed by the people, and so hanged up uppon the common pillar, might neuer be taken away. Which if it were so the people was bound not to their owne lawes onely, but euen to the lawes of their predecessours also. And that more is, Theodosius the emperour would not that the lawes by himself made, should be of any force, except they were confirmed by the generall decree of the whole Senat. In like maner also by the decree of Lewes the eleuenth, the French king, concerning the institution of knights of the order, in the eight article, it is expresly said, That the king shall vndertake no warre, nor other thing whatsoeuer of great importance, concerning the high estate of the commonweale, without knowledge thereof giuen unto the knights of the order, so to have and vse their aduice and counsell. And for that cause, as I suppose, the edicts of our kings are of none effect, vntill they be read, published, verified, and registred in parliament, with the consent of the great Atturney generall, and the approbation of the court. And in England it is by[*] auntient custome receiued, that lawes concerning the state of the Commonweale should take no place, except they were authorised by the Estates assembled in the high court of Parliament.

These reasons, although they seeme probable, yet are they not sufficient to proue the rule concerning Soueraignetie, before by vs set downe, not to be true: For, as for[*] that which was obiected concerning the law of the Medes, and authoritie of the king in abrogating of the lawes; it is manifest that it was false, and by the courtiers his enemies deuised against the life of Daniel: who grieuing to see a man for his wisdome and royall discent honourable, and yet a stranger, to be in greater grace and favour with the king than themselves, and exalted in their countrey in degree next unto the king, made that false allegation of the strength of their lawes against him, with whose accusation the king deceiued, or els to proue if Daniels God could saue him from death, caused

him to be cast unto the hungrie lyons. But hauing in him seene the wonderfull power and mercie of God towards his seruants, he gaue Daniels enemies to bee deuoured of the same lyons: wherein the end well shewed, the king to have beene aboue the lawes of his countrey. In like sort Darius Memnon at the request of a young Iewish ladie reuoked[*] the decree whereby he had appointed all the nation of the Iewes to be vtterly rooted out. As for that which Pericles answered unto the ambassadours of the Lacedemonians, he therein respected not so much the truth, as the shew thereof, that so taking occasion of warre, which he sought after, he might frustrate the accusations of his aduersaries, and danger of the law, as Timaeus and Theopompus haue truly written, and Plutarch hath not denied. And that was it for which hee said to the Lacedemonian ambassadours, That the edicts once hanged upon the pillars, might not be taken away: which his sophistication the ambassadours returned unto him againe, with a Lacedemonian quip, saying, That they desired not to have the edict taken away from the pillar, but onely the table turned. For if the lawes of the Athenians had bene immutable, why had they such varietie, and infinit multitude of lawes, which they were wont to establish at the continuall motion of their magistrats, & to abrogat the old, that so the new might take place? But that Pericles therin abused the Lacedemonian ambassadors, it is manifest by the oration of Demosthenes against Leptines, who had preferred a request unto the people, to the end that by a perpetuall and irreuocable edict it might from that time forward bee forbidden upon paine of death, to present any request vnto the people for the obtaining of any priueledge or exemption, and the like paine to bee inflicted upon him that should so much as speake for repealing that edict. Wherein Demosthenes hardly withstood Leptines, & so wrought the matter, that his request was receiued, hauing manifestly showed the people by consenting to this law, to be dispoiled not onely of the prerogative that it had to graunt exemptions and priueledges to such as should well deserue of them, but also of the power to abrogat lawes by them made, if the necessitie of the Commonweale should so require. They had also a popular action, concerning the breaking of lawes, which was commenced against them that would have the people to passe any edict contrarie to the lawes before receiued; as one may see in all the orations of Demosthenes: but yet that neuer letted, but that the new and profitable lawes were still preferred before the old vniust lawes. And in like case the generall edict, wherein it was decred, That the offendors fine once adiudged and set downe by the people, might not in any wise bee forgiuen or abated; was yet many times reuoked, and that once in favour of Pericles himselfe, and another time in favour of Cleomides and Demosthenes, who by di⋯ers iudgements of the people, had bene euerie one of them condemned in a fine of[*] thirtie thousand crownes. They say also in this realme of Fraunce, the fine once being paid, be it right or be it wrong, is neuer[*] againe to be restored: and yet we see oftentimes the contrarie, and the same to bee againe recouered. It is then a formalitie which is and hath alwaies beene in euerie Commonweale, that the law makers to giue unto their lawes the greater weight and authoritie, ioyne thereunto these words of course, Edicto perpetuo & irreuocabili sancimus, &c. By a perpetuall and irreuocable decree we ordaine. And with vs in the beginning[*] of every law, Vniuersis praesentibus & futuris: which words are added to the eternall memorie of posteritie, least the law should by any be infringed. And the more to shew the difference of the lawes, such as be made for perpetuitie, are with vs sealed with greene waxe, and strings of greene and purple silke: whereas unto the temporary Edicts are put neither strings of silke, nor greene waxe, but yellow onely. And yet for all this, there is no law which is perpetuall, no more than were those of the Greekes and Romanes, who in making their lawes, commonly used to ioyne thereunto this clause, Vt nec per Senatum, nec per populum, lex infirmari possit: That the law might not either by the Senate or the people bee weakened: which wordes if they imported a perpetuitie, why did the people almost in the same moment that it had established a law, againe abrogate the same. Concerning which matter, Cicero writing unto his friend Atticus: Thou knowest (sayth he) the Tribune Claudius to haue decreed that his law should hardly, or not at all, by the Senate or the people be infringed. But it is sufficiently knowne that regard was neuer had unto this clause: Vt nec per Senatum nec per populum lex infirmari possit: for otherwise (sayth he) one should neuer see law repealed, seeing that there is no law which carieth not this clause with it: from which men yet doe ordinarily derogate. Thus much he. Which is yet more plainely to be vnderstood out of the Oration of Fabius Ambustus against the intercession of the Tribunes of the people, who maintained, that the people could not chuse both the Consuls of the nobilitie, for that by a law before made it was ordained, That one of the Consuls should be still chosen out of the people: Fabius alledged the law of the twelue Tables in these words, Quod postremum iussit populus id ratum esto, What the people shall last decree, let that stand for good.

So we see the Medes, the Persians, the Greeks, the Latines, to have used the same forme and cautions, for the establishing of their edicts and lawes, that our kings doe: who unto the lawes by them made, oftentimes ioyne this clause: Without that therefrom can by vs, or our successors be derogated. Or els, without regard hauing unto any derogation,

which from this present we have declared to be of none effect. And yet no man can so make a law unto himselfe, but that he may depart therefrom, as we have before said. Wherefore the repeales and derogations of the former edicts and lawes, are almost alwaie subiect unto the latter edicts and derogations. And therefore Solon did wisely, who would not bind the Athenians to keep his lawes for euer, but contented himselfe to have them kept for an hundred yeares: and yet neuerthelesse hee yet liuing,[*] and present, suffered (though against his will) the greatest part of them to bee chaunged.

But that publication or approbation of lawes in the assembly of the Estates or parliament, is with vs of great power and importance for the keeping of the lawes; not

that the Soueraigne prince is bound to any such approbation, or cannot of himselfe make a law without the authoritie or consent of the States or the people: but yet it is a courteous part to do it by the good liking of the Senat, as saith Theodosius, which[*] Baldus enterpreted not to be a thing so much of necessitie, as of courtesie: as that is also a speech well beseeming soueraigne maiestie, for a prince to professe himself bound unto the lawes of himselfe that raigneth. And certainely there is nothing better, or more beseeming a prince, than by his deeds and life to confirme those lawes which hee himselfe hath made: for that is of greatest force, for the honour and obedience of the subiects towards their prince: as contrariwise nothing is more daungerous for the contempt both of the prince and of the lawes than without iust cause to breake or infringe that which thou hast commaunded: as an auntient Roman Senatour said, Leuius est, & vanius, sua decreta tollere quam aliorum, It is more lightnesse and vanitie[*] to take away a mans owne decrees, than the decrees of other men. But it is one thing for a man so to doe willingly and of his owne accord, and another thing to bee bound by bond or oath so to do it.

But what if a prince by law forbid to kill or to steale, is hee not bound to obay his[*] owne lawes? I say that this law is not his, but the law of God and nature, whereunto all princes are more straitly bound than their subiects: in such sort as that they cannot be from the same exempted, either by the Senat, or the people, but that they must bee

enforced to make their appearance before the tribunall seat of almightie God: For God taketh a straiter account of princes than of others, as the maister of wisdome Salomon himselfe a king, hath most truly written. Whereunto well agreeth that saying of Marcus Aurelius, who for his desire of knowledge, was called the Philosopher: The magistrats are iudges over priuat men, princes iudge the magistrats, and God the princes. This is the opinion of 2 great princes, esteemed of all other the wisest; unto whom we wil ioine the third, Antigonus king of Asia, who hearing a flatterer say, that al things were lawfull for kings: Yea, said he, forbarbarous kings and tyrants. The first that used this kind of flatrerie, was Anaxarchus towards Alexander the Great, whome hee made to beleeue, That the goddesse Iustice, was still at the right hand of Iupiter, to shew that princes could do nothing but that was right and iust: Of which their iustice he shortly after made proofe, for being fallen into the hands of the king of Cyprus, he was by h⋯s commaundement with hammers beaten to death uppon an anuill. But how much more truely did Seneca say to the contrarie, Caesaricum omnia licent, propter hoc minus licet, When all things are unto Caesar lawfull, euen for that are they lesse lawfull. And therefore they that generally say, that princes are not subiect unto lawes, nor to their owne conuentions, if they except not the lawes of God and nature, and the iust contracts and conuentions made with them, they do great wrong both unto God and nature, in that they make not the speciall exemption to appeare; as men say in matters of priueleges. So Dionisius the tyrant of Sicilie, said to his mother, That he could dispence with the lawes and customes of Syracusa, but not with the lawes of nature. For as the contracts and testaments of priuat men, cannnot derogat from the decrees of the magistrats, nor the decrees of the magistrats from the auntient customes, nor the auntient customes from the generall lawes of a soueraigne prince: no more also can the lawes of soueraigne princes alter or chaunge the lawes of God and nature. Wherefore the Roman magistrats did notably, who unto the end of all their requests & laws which they propounded unto the good liking of the people, commonly annexed this clause, Si quid ius non esset E. E. L. N. R. eius ea lege nihilem rogaretur, that is to say, That if any thing were therein contained that was not iust and reasonable, they by that law requested nothing. But of all others they are most absurd, which say, That a soueraigne prince can decree nothing against the lawes of God and nature, without most apparant reason. For what apparant reason can there be diuised, for which wee ought to breake the lawes of God? And hereof proceed such paradoxes as this, That he whome the Pope hath dispensed withall for the lawes of God, is sufficiently assured before God: which how true it is let others iudge.

There resteth yet another obiection, by them obiected which with more reason[*] examine matters. If princes (say they) be bound unto the lawss of nature, that is to say, of upright reason: and that civill lawes be (in all things) agreeable unto right and reason,

it must needs thereof follow, that the prince is also bound unto the ciuil laws. And to that end they alleage that saying of Pacutius unto Theodosius the emperour, Tantum tibi licet quantum per leges licebit, So much is lawfull for thee to do, as thou maiest by law doe. For the plainer aunswering of which doubt, we must thus distinguish: That[*] the lawes of a soueraigne prince, whereof question is made, concerne either that which is publick, or priuat, or common to both: and generally when question is, it is either of that which is profitable and not honest, or of that which is honest and not profitable, or is both profitable and honest; or els of that which is neither of both. And that I call honest, which is agreeing unto the equitie of nature; unto which naturall equitie it is manifest all princes to be bound, seeing that which nature teacheth, is altogether comprehended in the law of nature, whereunto every prince is bound to obey: neither is such a law to bee called a ciuile law, albeit that the prince cause it to bee published, but rather the law of nature. And with so much the more reason, when the law is both honest and profitable. But if that which is by law commaunded, bee neither honest nor profitable, although of such things there ought to be no law; yet may the prince bind his subiects unto those lawes, whereunto he is not himselfe bound, if they have no dishonour or dishonestie ioyned with them. For there bee some things honest, some things dishonest, and some in a meane betwixt both. But if profit repugne against honestie, it is good reason that honestie should take place. As Aristides the iust, to whom Themistocles was commanded to communicat his deuice, aunswered, That the counsell of Themistocles was profitable to the Commonweale; but yet in his iudgement dishonest: the Athenians hearing so much, enquired no farther after the matter, but decreed that his profitable counsell to be reiected. But here when we reason of a Commonweale, we must speake according to the common manner; which our speech is not to be examined according to the subtiltie of Philosophers: for they set downe, nothing to be profitable which is not honest, neither anything to bee honest which is not iust: but that old custome is growne out of vse, so that of necessitie we must make a difference betwixt things honest, and things profitable. But if that which the prince by his law commaundeth, be not honourable, but profitable, he himselfe is not by that law bound, although his subiects be, so that nothing bee therein contained contrarie to the lawes of God and nature: and such lawes the prince may at his pleasure abrogat, or from them derogat, and instead of them make others, either more or lesse profitable: for things honest, iust, and profitable, haue their degrees of more and lesse. If then it be lawfull for a prince amongst lawes profitable, to make choice of them that be more profitable; so also amongst lawes iust and honest, he may chuse out them that be most upright and honest, albeit that some therby receiue profit, and some others losse; prouided that the profit be publicke, and the losse particular: and yet if the prince shall otherwise decree, it is not lawfull for the subiect to breake the laws of his prince, under the colour of honestie, or iustice: as if the prince in time of famine, forbid the carrying out of victuals (a thing not only profitable to the Commonweale, but oft times also iust and reasonable) he ought not to giue leaue to some few to carry thē out, to the preiudice of the common state, & of other marchants in particular; for under the colour of profit that these flatterers and scrapers carrie things, many good marchants suffer losse, and all the subiects in generall are famished: and yet neuerthelesse the famine and dearth ceasing, it is not yet lawfull for the subiect to transgresse the edicts of his prince, and to carrie out victuals, vntill the law forbidding the same, be by the prince abrogated, no not though there seeme neuer so great occasions for the transgressing of the law: as that now the citie is full of victuall, and all other things necessarie; and that the law of nature persuadeth vs to giue reliefe vnto distressed strangers, in letting them have part of such good things as it hath pleased God to send encrease of more in one countrey than in another: for as much as the power of the law that forbiddeth, is greater than the apparant equitie, the show whereof euerie man might pretend to his desires, except the prohibition in the law be directly against the lawes of God and nature.

But so sometimes things fall out, as that the law may be good, iust, and reasonable,[*] and yet the prince to be no way subiect or bound thereunto: as if he should forbid all his subiects, except his guard and garrison souldiors, upon paine of death to carrie weapon, so to take away the feares of murders and seditions; he in this case ought not to be subiect to his owne law, but to the contrarie, to be well armed for the defence of the good, and punishment of the euill. The same we may say of other edicts and lawes

also, which concerne but some part of the subiects; which edicts and lawes are called priueleges, and are iust in respect of certaine persons, or for a certaine time, or place; or for the varietie of punishments which depend alwaies of the lawes; albeit that the forbidding of offences is proceeding from the lawes of God and nature. unto which edicts and lawes the princes are not any way bound, further than the naturall iustice of the same hath place; which ceasing, the prince is no more therunto bound, vntill the prince have abrogated the same. For it is not onely a law of nature, but also oftentimes repeated amongst the lawes of God, That we should be obedient unto the lawes and ordinances of such princes as it hath pleased God to set to rule and raigne over vs, if their lawes and decrees be not directly repugnant unto the lawes of God and nature, whereunto all princes are as well bound as their subiects. For as the vassall oweth his oath of fidelitie vnto his lord towards & against al men, except his soueraigne prince; so the subiect oweth his obedience to his soueraigne prince, towards and against all, the maiestie of God excepted, who is the absolute soueraigne of all the princes in the world.

Out of this resolution we may draw another rule of estate, that is to wit, that the soueraigne[*] prince is bound unto the contracts by him made, bee it with his subiect, or with a straunger: for seeing he is the warrant to his subiects of the mutuall conuentions and obligations that they have one of them against another: of how much more reason is he the debter of iustice in his owne fact, and so bound to keepe the faith and

promises by himselfe giuen and made to others? As the court of parliament at Paris writ backe unto king Charles the ix, in the moneth of March, in the yeare 1563, That his maiestie alone could not breake the contract made betwixt him and the clergie, without the consent of the clergie; and that for this reason, For that he was himselfe the debtor of iustice, and so bound to giue euerie man his right. Which putteth mee in remembrance of a resolution concerning the upright dealing of princes, worthy to be engrauen in letters of gold, in their lodgings and pallaces; which is, That it ought to bee accounted amongst things which by chaunce seldome happen, if a prince fayle of his promise; [*] and that it is not otherwise to be presumed. For that of his promise there is a double bond; the one for the naturall equitie thereof: for what can be more agreeing unto naturall equitie, than to have iust promise kept? The other, for the honour of the prince himselfe, who is bound to keepe his promise, although it be unto his losse; for that he is the formall warrant to all his subiects, of the faith that they have amongst[*] them; as also for that there is no more detestable crime in a prince, than to bee false of his oath and promise. And that is it for which the soueraigne prince ought alwaies in iustice to bee lesse respected or releeued than his subiects, when question is of his promise. For if a prince have once bestowed an honour or an office upon a man, it is deemed, that he may not without iust cause take it againe away from him; but a particular subiect may: and so it is ordinarily iudged. And wheras by the law the patron might without cause take his fee from his vestall; yet was it not lawfull for the prince so to doe. Whereby it is well to be perceiued, the doctors of the Canon law to erre, and to be deceiued, who deny a prince to be bound to his owne conuentions or agreements, otherwise than with a naturall bond: for that say they, every bond is proper unto the civill law; which their errour is to be remoued: For who can doubt, but that the bond is of the same nature with the couenant? Wherefore if the couenant be naturall, and common to all nations, the bonds and actions arising thereof must needs consequently be of the same nature also. But no couenant almost, neither any obligation or bond can be deuised, which is not common both unto the law of nature and nations. But let vs graunt some couenants to proceed from the meere civill law; yet [*] who dare to deny a prince to be more straitly bound euen unto such civill couenants, and promises, than are the priuat subiects themselves? yea and that in so strait a maner as that he cannot with all the absolute power he hath derogat from the same? For so almost all the learned lawyers are of opinion and accord. And what maruell? seeing God himself is bound unto his promises. For so he plainly protesteth with the prophet Hieremie, Call together unto me (saith he) all the people of the earth, that they may iudge betwixt me and my people, if there be any thing that I ought to have done, which I haue not done. Let vs noth therefore call into question those things wherof many doctors have doubted. As whether a prince be bound unto the couenants which he hath made with his subiects? whereat we need not to maruell, seeing that out of the same fountaine is sprung, that no lesse straunge position: that a prince may of right, without any iust cause enrich himselfe with another mans losse: an opinion repugnant unto the lawes both of God and nature. But how much more uprightly was it of late iudged in the court of Paris, that the prince might giue his intrest unto the partie condemned; but not the intrest of another man. And that in confiscations creditours are by right first to be preferred, The same court also by another decree determined, That the prince might derogat from the civill lawes, so that it were done without preiudice to any particular mens right: which is to confirme the resolutions which wee before have set downe, concerning the absolute soueraignetie. And Philip of Valois, by two testaments which he made in the yeare 1347, and 1350, (which are in the treasurie of France in a coffer, intituled The testaments of kings, number 289) ioyneth a clause derogatorie unto the lawes of his countrey, from which he protested himselfe to be discharged, as not vnto them bound. The like protestations he also vsed, when hee gaue unto the queene his wife certaine treasure, and priuat lands, contrarie unto the lawes: with aswel his prodigall gift, as also that his derogation from the lawes of his countrey, are yet extant in the publick records. Howbeit that Augustus the emperor thought it not good for himselfe in like case to vse the like libertie in his Commonweale, but being willing to giue unto his wife Liuia, that which he could not by reason of the law Voconia, hee requested to be dispensed with all from that law by the Senat (although that it was not needfull for him so to have done, considering that he was long time before in all other things dispensed with from the lawes) to the intent the better to assure his gift, for that he was not a soueraigne prince, as we have before showed. For otherwise hee had not bene any way bound so to doe; as it was in most strong tearmes iudged by a decree in the court of Paris, in the case of Philip the second, the French king, That he was not bound unto the customes of the ciuil law, at such time as they which were next of kindred would have redeemed of him the countie of Guynes: howbeit that many both thinke and write, the prince to be bound to that law: for that they thinke that law to be common to all nations, and not proper to any citie: and yet then the which law the Romans themselves (in some cases) thought nothing more vnreasonable. But our ancestours [*] would not have euen their subiects bound unto the Roman lawes; as we see in the auntient records, that Philip the faire, erecting the parliament of Paris and Monpellier declared, That they should not be bound unto the Roman laws. And in the erection of Vniuersities, the kings have alwaies declared, That their purpose was to have the civill and canon laws in them publickly professed and taught, to make vse therof at their discretion, but not that the subiects should be any way bound therunto, least they should seeme to derogat from the lawes of their owne country by aduancing the laws of straungers. And for the same cause Alaricus king of the Gothes, forbad upon pain of death, any man to allege the Roman lawes contrarie to his decrees and ordinances. Which M. Charles du Moulin (my companion, and ornament of all lawyers) mistaking, is therefore with him verie angrie, and in reproach calleth him therefore barbarous: howbeit that nothing was therein by Alaricus decreed or done, but that which euerie wise prince would of good right have decreed and done: for subiects will so long both remember, and hope for the government of strangers, as they are gouerned by their lawes. The like edict there is of king Charles the faire, and an old decree of the court of Paris, whereby we are expresly forbidden to alleage the laws of the Romans, against the lawes and customes of our auncestours. Yea the kings of Spaine also have upon capitall paine forbidden any man to alleage the Roman laws, in confirmation of their owne laws, (as Oldrad writeth.) And albeit that there were nothing in the lawes and customes of their countrey which differed from the Roman lawes, yet such is the force of that edict, that all men may vnderstand that the judges in deciding of the subiects causes, were not bound unto the Roman lawes: & therfore much lesse the prince himselfe, who thought it a thing daungerous to have his judges bound unto straunge lawes. And worthy he is to be accounted a traitor, that dare to oppose straunge lawes and straunge decrees against the lawes of his owne prince. In which doings when the[*] Spaniards did too much offend, Stephen king of Spaine forbad the Roman lawes to be at all taught in Spaine as Polycrates writeth: which was more straitly prouided for by king Alphonsus the tenth, who commaunded the magistrats and judges to come unto the prince himselfe, as often as there was nothing written in the lawes of their countrey concerning the matter in question. Wherein Baldus is mistaken, when hee writeth the Italians to bee bound to the Roman lawes; but the French no otherwise than so farre as they should seeme unto them to agree with equitie and reason. For the one are as little bound as the other; howbeit that Italie, Spaine, the countries of Prouince, Sauoy, Languedoc, and Lyonnois, vse the Roman lawes more than other people: and that Frederike Barbarussa the emperour, caused the books of the Roman laws to be published and taught: the greatest part whereof have yet no place in Italie, and much lesse in Germanie. But there is much difference betwixt a right, and a law: for a right still without commaund respecteth nothing but that which is good and upright; but a law importeth a commaundement. For the law is nothing els but the commaundement of a soueraigne, vsing of his soueraigne power. Wherefore then as a soueraigne is not bound unto the laws of the Greeks, nor of any other stranger whatsoeuer he be, no more is he bound unto the Roman laws, more than that they are conformable[*] unto the law of nature; which is the law whereunto (saith Pindarus) all kings and princes are subiect. From which we are not to excepteither the pope or the emperour (as some pernitious flatterers do) saying, That those two viz. the pope and the emperour, may of right without cause take unto themselves the goods of their subiects.[*] Which opinion the Canonists themselves, the interpretors of the popes law detest, as contrarie to the law of God: whereunto for all that they ioine this euill limitation, in saying, That they may yet do it of their most high and absolute power and authority, as they tearme it: which is as much as if they should say it to bee lawfull for them to rob and spoyle their subiects, oppressed by force of armes: which law, the more mightie vse against them that be weaker than themselves, which the Germans most rightly call, The law of theeves and robbers. But pope Innocent the iiij himself, most skilfull in both the lawes, saith that most high and absolute power, to bee able but to derogat from the ordinarie law whereas they would have such absolute and soueraigne power to extend to the abrogating of the lawes of God and nature. For what is more religiously by Gods lawes forbidden, than to rob and spoyle other men of their goods? what thing do we read more often repeated, than to keepe our hands from other mens things? yea we are by the most holy Decalogue commaunded, not so much as to desire that which is another mans. Now certainly it is a greater offence to infect princes with this doctrine, than it is to rob and steale. For pouertie commonly causeth theeves to seeke after other mens goods: but they that maintaine such opinions, show the lion his clawes, and arme the prince so instructed, to pretend unto his outrages, this goodly show of Law and Iustice: who by nature naught, & made worse by instruction: so prouing to be a tyrant, maketh no question most shamefully to confound and breake all the lawes both of God and man: and afterward enflamed with corrupt desires and affections, which altogether weaken the more noble parts of the mind, hee quickly breaketh out from couetousnesse to vniust confiscations, from lust to adulterie, from wrath to murder. So that as thunder is indeed before the lightning, although it be latter heard: so also an euill prince, corrupted with these pernitious & pestilent opinions, peruetting iustice, causeth the fine to runne before the accusation, and the condemnation before the iudgement. Howbeit it is an in congruitie in law, to say that[*] a prince can do any thing which is not agreeing with honestie; seeing that his power ought alwaies to be measured with the foot of iustice. For so said Plinie the younger unto Traian the emperour, Vt enim foelicitatis est posse quantum velis: sic magnitudinis velle quantum possis, As it is (saith he) in thy happinesse to be able to doe what thou wilt; so beseemeth it thy greatnesse, to will what thou maist. Whereof may be gathered, that a prince can do nothing that is fowle or vniust. It is also euill done, to say, that a soueraigne prince hath power by violence to take away another mans goods, to rob, to commit adulterie, or to do euill, seeing that so to doe, is rather an impotencie, or feeblenes, proceeding from a weake mind ouercome with impotent lust and desire, rather than any soueraignty. Now then if a soueraigne prince may not remoue the bounds which almightie God (of whom he is the liuing & breathing image) hath prefined unto the euerlasting lawes of nature: neither may he take from another man that[*] which is his, without iust cause, whether it be by buying, by exchaunge, by confiscation, by league with friends, or peace made with enemies, if it cannot otherwise bee concluded than by priuat mens losse; whose goods princes oftentimes permit the enemies to enioy, for the generall welfare of the subiects and of the Commonweale: howbeit that many be not of this opinion, but would that euerie man should keepe his owne; and that no publick diminution should be made of any priuat mans goods, or that if publicke necessitie so required, it were againe to bee made goodby the whole state: which opinion I like well of, if conveniently it might so be done. But forasmuch as the welfare of priuat men, and all the goods of the subiects are contained in the health of our country, it beseemeth priuat men without grudging to forgiue unto the Commonwealth, not onely their priuat displeasures, and iniuries receiued from their enemies, but to yeeld also for the health of the Commonweale, their goods. For peace hath for the most part some hard measure in it, which is againe recompenced with the publique profit: and this law doth all people vse, that in conclusions of peace, not only publick things are recompensed with publike, and priuat things with priuat; but both with the mutuall profits and detriments of both. And yet I see many great maisters of both lawes, both to be, & to have bene of opinion, that in those leagues wherein it is excepted, that no question should be made of the losse on both sides receiued, such exception should be void, neither to be any thing preiudiciall unto priuat men: howbeit that we vse it otherwise; for in the peace of Peronne, made for the deliverance of Lewes the xj the French king, prisoner unto Charles earle of Burgundie, it was in one article prouided, That Seigneur de Torci should not execute the sentence of the[*] court of Paris against the lord of Saneuses. And therefore is Thrasibulus (and that not vnworthily) commended, that hauing ouerthrowne and driuen thirtie tyrants out of the citie of Athens, he caused the law of forgetfulnesse to be proclaimed. Wherein was contained the forgetting of all priuat iniuries and losses receiued in the late civill warre: which was also afterwards proclaimed in Rome, after that Caesar was s⋯aine in the Senat, at the treatie made betwixt the conspirators on the one side, and Caesars partakers on the other. Yet is it by all meanes to be enduoured, that mens harmes receiued, should be recompensed with other mens profits, and so as neere as may bee every man to have his owne, which if it cannot be done without tumult and civill warres, we must defend the possessors of other mens things, although they hold them wrongfully, vntill the right honours may be satisfied out of the common treasure: or if the common treasure be exhausted, to borrow money to content them. As did Aratus, who hauing restored his countrey to liberrie, after it had for the space of fiftie yeares bene oppressed with tyranny, restored also sixe hundred banished men, whose lands & goods had bene by the tyrant confiscated. Yet would hee not the possessors of those lands, which the tyrants had vniustly taken from those citisens, to be spoyled therof: for that much thereof was lawfully bought and sold, and much of it holden in dowrie, so that it could not be done without a most daungerous turmoile in the state. Wherefore he bound all the citisens by oath, That they should keep peace and amitie vntill such time as he returning out of Aegypt, should then take order for all things. For hauing there borrowed threescore thousand crownes of K. Ptolemaeus Philadelphus, he returned into his countrey, and pri⋯ing the land, so wrought the matter, that some made choice to take money and leaue the land; and other some thought it better to take mony themselves, than to recouer againe that which had beene before their owne. Wherefore these causes that I have said ceasing, the prince cannot take nor giue another mans goods, without the consent of the owner. And in all gifts, grants, immunities, and priueledges, this clause is still annexed, Sauing alwaies our owne right: and the right of other men: Which clause added unto the inuestiture of the dutchie of Milan, which Maximilian the emperour made to king Lewes the xij, was the occasion of new warres, for the right which the Sforces pretended to the dutchie, which the emperour could not nor would not giue away. And this clause although it be left out, is yet supposed to be still put in: for that euen the emperour would he neuer so faine, can no otherwise giue or graunt any other thing to any bodie. For that which the common people commonly saith, All to be the princes, is to be vnderstood concerning power and soueraigntie,[*] the proprietie and possession of euerie mans things yet reserued to himselfe. For so saith Seneca, Ad reges potestas omnium pertinet, ad singulos proprietas, unto kings belongeth the power of all things, and unto particular men the proprietie. And a little after, Omnia rex imperio possidet singuli dominio, The king in power possesseth all[*] things: and priuat men as owners. And for this cause our kings by the lawes and decrees of Court, are bound to void their hands of such lands as are fallen unto them by way of confiscation (if they be not simplie and without meane holden of the crowne) to the end that the patrons of them that were proscribed, should loose nothing of their right in the lands confiscated. And if the king be debtor to any priuat man his subiect, he is therefore oft times sued, condemned, and enforced to pay the debt. But that straungers aswell as subiects, and all posteritie may know of what integritie our kings have bene, and with what moderation they have borne themselves towards their subiects, let this be for example, That the king himselfe in the yere 1266, was by the iudgement of the court of Paris, condemned to pay unto the curat, the tyth of the fruits euen of his garden of pleasure. So when another of our kings had by the negligence of his aduocat, made default of appearence at his day; hee by ordinarie course requested to have that negligent ouersight pardoned: which the kings request the court of Paris denied, as appeareth by the decree of the court, in the yeare 1419. But no such strict proceeding is used against priuat men, who alwaies in such case are againe restored into the state they before were. And albeit that subiects under xxv yeares old, almost in all priuat iudgements vse to be againe restored into the state they were, by the priuelege of their age; yet our kings although but children, are neuer so restored by the benefit of their age, but in all iudgements are deemed to bee of full age. And yet the Commonweale neuerthelesse is alwaies reputed to be in minoritie: which is to aunswere them which are of opinion, That the Commonweale ought not to be restored; in that they confound the patrimonie of the prince, with the Commonweale, which is alwaies in a monarchie divided: but all one in a popular or an Aristocraticall state. With this stoutnesse of courage the magistrats bare themselves towards our kings, & with this moderation also did our kings reuerence iustice, preferring still in all sutes the Commonweale before priuat men, and priuat men before princes. There is also extant in the records of the court of Paris, a iudgement giuen against king Charls the seuenth, wherein he was condemned to suffer a wood of his to bee cut downe which hee had neere unto the citie of Paris, for the publike vse in generall, and the vse of euerie one of the citisens in particular: and that more was, the price thereof was set downe for him in the decree, whereunto a priuat subiect could hardly have bene driuen. Then was it plainely to be seene how much a king differed from a tyrant: for when this Charls the vij had driuen the English forces out of the hart of Fraunce, and easily taken the citie of Paris (which confederated with the English, had wrested the scepter out of this kings hand) he was so farre from reuenging of his receiued iniuries, that hee vsed the citisens most curteously, and showed himselfe more obedient unto the judges than priuat men have used to be. When at the same time Philip Maria, duke of Milan, hauing oppressed the Commonweale with taxes and tributes, embarred also his ports and riuers, in such sort as that none of the citisens without his leaue could passe or trauell thereby, but that first they must therefore pay money.

Thus we have hitherto showed in what sort a soueraigne is subiect unto the lawes[*] and conuentions by him made with his subiects: Now it resteth for vs to see whether he be subiect unto the contracts and promises of the kings his predecessours; and whether

such his obliging be compatible with soueraigne maiestie or not. Which in few words to discusse, passing over a multitude of nice questions which might bee made in this matter: I say that a prince is bound unto the couenants of his auncestors as well as other priuat heirs, if his kingdome come unto him by inheritance, or bee giuen him by testament being not next of kinne: as Ptolemee king of Cyrene, Nicomedes king of Bithynia, Attalus king of Asia, and Eumenes king of Pergame, by their wils appointed the people of Rome to inherit their kingdomes. But what if a kingdome be by will giuen unto the next of kinne? as Henry the eight by his will left the kingdome of England to his son Edward the sixt: and substituted unto him his sister Mary, and unto her Elizabeth her sister, who all successiuely enioyed the kingdome. In this case wee must distinguish, whether the appointed heire will accept the state in the qualitie of an heire by testament appointed; or renouncing the succession of the testator, demaundeth the crowne by vertue of the custome and law of his countrey. For in the former case the successour is bound unto all the hereditary obligations and actions of his predecessors, as if he were a priuat inheritour: but in the second case, he is not bound vnto the dome of his predecessour, albeit that his predecessour were thereto sworne. For neither the oath nor the obligation of the dead predecessour, bindeth the successour in the law, more than so farre as the obligation made by the testatour tendeth to the good of the Commonweale, and so farre he is bound. And therefore king Lewes the xij, when he was demaunded the artillerie lent unto Charles the eight, answered, That he was none of Charles his heire. So of late king Francis the second, to like effect writ his letters unto the lords of the Swissers, demaunding of him his fathers debts, the copie whereof taken out of the records, bearing date the xix of Ianuarie 1559, I have here set downe as followeth, viz. Although that we be not bound to pay the debts of our most honourable [*] Lord, and dead father: for that we have not taken upon vs this crowne by right of inheritance as his heire, but by the royall law and custome generally obserued euen from the first institution thereof, which bindeth vs not, but onely to the obseruing of such confederations and treaties, passed and made by the kings our predecessors, with other forren princes and Commonweales, for the good and profit of this crowne. Neuerthelesse desiring to discharge the credit and conscience of the said our dead lord and father, wee are resolued to discharge his lawfull debts, &c. Onely this requesting you, to moderat the interest, in such sort as you have vsed, according to the lawes and customes of your countrey, and that no greater be of vs exacted. Which his request the Swissers by their common decree approued, so that whereas before they had taken of our people so deepe intrest, as every sixt yeare came almost to as much as the principall, (which is twice so much as they doe in Fraunce) they brought it downe to a third part, which commeth to so much as the principal but in twentie yeares. But that our kings were not bound unto the bonds of their predecessours, the court of Paris determined, viz. In the yeare 1256. Wherefore they are greatly deceiued, which receiue as from an oracle the formall and conceiued words of the oath which the bishops of Rheims have at their pleasure not long since deuised, which our kings at their coronation now vse. For after that the archbishop of Rheims hath set the crowne upon the kings head, the twelue peers of Fraunce putting to their hands, he saith unto him these words, Stay you here (saith he) and the kingdome which you have before vntill now holden by succession from your father, now from henceforth hold as the true heyre thereof, put into your hands by the power of almightie God, and by the iust deliverie thereof, which we the bishops and other the seruants of God here presently make unto you. An honest speech if it were true. But I thinke no man doubteth, but that the king euen before his consecration enioyeth both the possession and proprietie of the kingdome, not by inheritance or his fathers right, and much lesse by the bountie of the bishops or peers, but by the royall law and custome of the realme, as was long since decreed by [*] a decree of the French men, That no man should thinke the power of the king to depend of the pleasure of the bishops: not for that the Senat euer doubted of the power of the king before his coronation; but that those vaine quirkes of the bishops might be vtterly refelled. For it is an old prouerbe with vs, That the king[*] doth neuer die, but that so soone as he is dead, the next male of his stocke is seised of the kingdome, and in possession thereof before he be crowned, which is not conferred unto him by succession of his father, but by vertue of the law of the land; least the succession of the kingdome should be vncertaine, then which nothing can be more daungerous in a Commonweale. Wherefore let vs this hold, that the king which is by lawfull right called unto his kingdome, is so farre bound unto the couenants and promises of the kings his predecessours, as is for the good of the Commonweale: and so much the more, if the contracts were made by the consent and good liking of the people ingenerall, or of the states, or high court of parliament: which it is not onely seemely for a king to keepe, but also necessarie, although it be hurtfull unto the Commonweale, considering that it concerneth the faith and obligation of his subiects. But if the soueraigne prince hath contracted either with strangers, or with his subiects, for such things as concerne the Commonweale, without the consent of them wee have before said, if any great harme redound unto the Commonweale by such contract, it is not reason the lawfull successour to be therunto bound: and much lesse if hee have obtained the kingdome by election: For that he holdeth nothing from his predecessor, as he should doe if he held his state by resignation, for then he should be bound unto the contracts and promises of his predecessours, except it were expresly otherwise excepted. But by what right soeuer the prince shal have receiued his kingdome, whether it be by law, by testament, by election, or by lot, it is reason that the successours should performe all such contracts of his predecessor, as redounded to the profit of the Commonweale: for otherwise it should be lawfull for him contrarie to the law of nature, by fraud and indirect meanes to draw his owne profit out of others harmes: but it much concerneth a Commonweale, so much as in it lieth, to preserue and keepe the publike faith, least in the extreame daungers thereof, all the meanes for the reliefe thereof should be shut up. And thus are to bee vnderstood, those things which the court of Paris decreed in the yeares 1256, and 1294, viz. The king not to be bound unto the couenants and agreements of the former kings his predecessours: their opinion being reiected, which say, That a soueraigne prince is to be thrust out of his kingdome, if he performe not the testament of the former prince his predecessor: without putting the difference of princely successions, by vs before put, but vtterly confounding the succession of princes.

But what needeth (might some man say) this distinction in succession of princes? seeing that all princes are bound and subiect unto the lawes of nations, whereof contracts and testaments do depend. Which is not so if wee speake of all contracts and testaments

in generall: but admit that to be true, yet there of it followeth not, that a prince is more bound unto the laws of nations, than unto his owne: and that so far as they agree with the laws of God and nature: wherunto all that we haue said concerning the obliging of princes, is to be referred. For as for the laws of nations, if they be any of them vniust, the prince may abrogat them by the law of his realme, & forbid his subiects to vse the same: as we said before of seruitude and slaues: which by a daungerous example, by the law almost of all nations brought into Commonweales, were againe by the wholsome decrees of many princes well agreeing with the lawes of nature taken away: which being said of one thing, may also be extended unto other things of like condition: prouided alwaies, that nothing be done contrarie to the lawes of God and nature. For if iustice be the end of the law, and the law is the worke of the prince, and the prince is the lively image of almightie God; it must needes follow, that the law of the prince should be framed unto the modell of the law of God.