Commonwealth

particular line of action. Even Aristotle thought that kings should be
elected, and stigmatized as barbarians all those peoples who are ruled
by hereditary kings. ...
But all elective monarchies are constantly menaced by the danger of a
relapse into anarchy on the death of each king. The state is left
without a ruler or regular government, and is in imminent danger of
destruction, just as a ship without a master is liable to be wrecked by
the first wind that blows. During such an interregnum, thieves and
murderers are encouraged to rob and kill as they please, having little
fear of punishment. This is the usual state of affairs, for instance, on
the death of a Pope ... As to the civil wars of the Romans, and in more
recent times of the Germans, incidental to the elections to the Empire,
their histories are full of nothing else. Anyone may read therein the
hideous story of looted cities, and of whole provinces pillaged and
ravaged by one side or the other.
There is another disadvantage, and that is the danger that the public
domain will be converted to private ownership. This has happened to the
temporalities of the Holy See, and to the Empire. Elected rulers,
knowing they cannot pass on their position to their sons, endow them

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from the public resources by gifts or sales ... Charles IV not being
able to find the hundred thousand crowns promised to each Elector, sold
them imperial rights to procure the election of his son as Emperor, the
same who was shortly after dethroned by those same Electors.
There is another factor to be considered. A man of mean extraction,
suddenly advanced to the first rank of honour, thinks himself a god on
earth. As the wise Hebrew remarked, no ruler is more unendurable than
the slave turned master. Moreover the love of a father for his son is so
strong that he would subvert heaven and earth, if he could, if he might
thereby leave the crown to his son.
But these are not the most serious difficulties. In the choice of a
prince, the election must fall either on a foreigner or a native. In an
elective monarchy each aspires to the crown, and among so many equals
serious factions cannot be avoided, and these divide the whole
population into mutually hostile camps. Even if the candidates are not
equal in ability, or in resources, they consider themselves to be so,
and are reluctant to obey one of themselves. Tacitus says that the
ruling class in Armenia would not choose a native king, and in Poland
recently the senate disqualified all natives of the country from
competing, as I learned from Baron Horbort, one of the thirteen
ambassadors from Poland[3]... As for foreign princes, they alw ays
endeavour, as far as they are able, to subvert the laws, customs, and
religion of the country. For this reason God forbad His people to choose
an alien ruler. Wherever there is an election, and the way is open to a
number of competitors, if recourse is had to force, it is always the
most unscrupulous and cunning, or the boldest who is willing to risk
everything for the chance of success, who prevails. If by any chance an
honest man is elected, his life is in perpetual danger from each of his
powerful rivals. During the three hundred and sixty years that the crown
in Germany has been elective, eight or nine Emperors have been killed or
poisoned, as was W illiam of Holland, Rudolf, Albert, Henry VII,
Frederick II, Louis of Bavaria, and Charles IV, not counting those who
have been shamefully ousted from the im perial throne. ...
Therefore even if it were possible that good and virtuous princes were
invariably elected, the difficulty of securing this, and the dangers

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that threaten on all sides, should be sufficient to deter men from
allowing monarchy to become elective, so long as it is possible to
observe a rule of succession ... Any law of succession however will not
do equally well. It must be that of primogeniture in the male line, the
right of the first born son to bear his father's name, to the
succession. The order of nature requires that the eldest should come
next after his father, and the rest follow each in order. The eldest is
therefore to be preferred to the others. One may regard this as a law of
nature, and it has been commonly observed among practically all peoples.
... 
I have said that the crown ought to descend in the male line, seeing
that gynecocracy is directly contrary to the laws of nature. Nature has
endowed men with strength, foresight, pugnacity, authority, but has
deprived w omen of these qualities. M oreover the law of God explicitly
enjoins that the woman should be subject, not only in matters concerning
law and government, but within each particular family. The most terrible
of maledictions uttered against the enemy was that they might have women
to rule over them. Even the civil law forbids to women all charges and
offices proper to men, such as judging, pleading, and such-like acts.
This is not only because of their lack of prudence, but also because
vigorous action is contrary to the sex, and to the natural modesty and
reserve of w omen. ...
But dangerous as elections to the crown are, for the reasons we have
already given, should there be a failure of heirs male, this expedient
is to be preferred to the succession of women, for that means outright
gynecocracy in defiance of natural law. Should the sovereign princess
marry, as she must do to secure the succession, she must marry either a
subject or a foreigner. If a subject, it is a great abasement for a
princess to marry one other servants, seeing that the greatest sovereign
princes in the world have found all sorts of difficulties follow
marriage to a subject. There is besides the risk of the envy and
jealousy of great and powerful nobles, in the contempt they always feel
for men of inferior station, if she insists on marrying the man of her
preference ... On the other hand no foreign prince who tries to rule
over an alien people can be secure of his life unless he lives behind
fortifications, and goes about strictly guarded. But if he thus has

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control of the armed forces he can control the state, and in order then
to make himself the more secure, he is tempted to advance his own
compatriots. This is a thing which no nation in the world will endure.
We have a thousand examples, among them that of William of Sicily. In
1268 the people of Naples were so enraged that a Frenchman should be
promoted to the office of chancellor that they conspired to kill, and in
fact did kill every Frenchmen in either Naples or Sicily. If the
foreigners are not the stronger party, they get their throats cut on the
slightest provocation by patriots. ...
If natural law is violated by gynecocracy, so are the civil law and the
law of nations, and to an even greater degree. By them the woman is
required to follow her husband though he have neither lands nor
possessions. In this opinion canonists, doctors of civil law, and
theologians are all agreed. The woman is bound in obedience to her
husband, her dowry is his by right, as are likewise all properties
accruing to her ... Nevertheless under the marriage treaty between
Philip of Castile and Mary, Queen of England, contrary principles were
laid down, although many are of opinion that when a foreigner marries a
queen, the rights and revenues of the kingdom belong to him, although
the kingdom , and sovereign authority over it inheres in the queen ...
Such are the inconveniences and absurdities attendant on gynecocracy.
...
The most excellent conclusion possible to this whole work is a
discussion of justice, since such is the foundation of all
commonwealths. It is of such importance that Plato called his book on
the Republic a discussion of right or justice. It is to be observed that
he spoke as a philosopher rather than as a legislator or a jurist.
Concerning Distributive, Commutative, and Harmonic justice, and their
Relation to the Aristocratic, Popular and Monarchical States [CHAPTER
VI] 
THE nearer a kingdom approaches to realizing harmonic justice, the
nearer it is to perfection. By justice I mean the proper distribution of
rewards and punishments, and of those advantages due to each individual
as a matter of right. This distribution must be based partly on the

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principle of equality and partly on that of similarity, which properly
conjoined issue in harmonic justice[4] ... But neither the Greeks, the
Romans, nor anyone since has considered it either in relation to the
administration of the law, or the government of the commonwealth. Yet it
is the most perfect form of justice, and proper to a royal monarchy,
governed in part through popular, in part through aristocratic
institutions. ...
Geometric or distributive proportion is based on the principle of
similarity, arithmetic or commutative proportion on the principle of
equality. Harmonic is a fusion of the two which nevertheless does not
resemble either ... Government by distributive proportion unites like to
like. This is illustrated by the marriage laws of the Twelve Tables,
under which nobles were required to marry nobles, commoners, commoners.
This rule is still strictly followed in Ragusa. By this principle
princes should only marry princesses, wealthy men rich wives, poor men
poor ones, and slaves slaves. If however marriages were arranged by
casting lots, a slave might marry a king. Poor and humble people w ould
not ask anything better, for they want to make things more equal. But
these two principles of government both involve many disadvantages, for
by the one the poor are oppressed, and by the other the nobles slighted.
The harmonic principle however unites the two. Still keeping to the
example of the marriage laws, one would not insist that noblemen of four
quarterings should only marry those of a like descent, as is still the
case in some places in Germany... It is better if the rich burgess
marries a poor noblewoman, or a poor gentleman a rich commoner, the man
with some grace of mind a wife with some grace of body. This is to be
preferred to marriages between people quite alike in all respects. We
see the same thing in business, for the most successful partnerships are
those between a rich sleeping partner and a poor man of ability to run
the business. There is both equality and similarity between them.
Equality in that each has some contribution to make, similarity in that
each lacks some indispensable attribute. ...
An egalitarian order, based on the principle of commutative justice, is
natural to popular states. It is agreed that estates, honours, offices,
benefices, booty, and confiscated lands ought to be equally divided, and
that when laws are to be made, officers appointed, or a matter of life

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and death determined, everyone is called upon to take part, the most
foolish and irresponsible having exactly the same importance and
influence as the wisest... In popular states everything is decided by
lot, and regulated by fixed and invariable laws, not susceptible of any
equitable interpretation, nor admitting any privilege or exception of
persons, so that nobles are liable to the same punishments as commoners,
fines imposed on the rich are the same as those imposed on the poor, and
the same rewards are bestowed upon the able and the feeble, upon the
commander of an army and the private soldier.
On the other hand aristocracies are regulated by the principle of
distributive justice ... and it is agreed that the execution of the law
ought to be adapted to the circumstances of each case. It is however
impossible that a so-called law can really be regarded as such if it is
indefinitely flexible. A law is not properly speaking a law if it is as
malleable as wax, and the man who should obey it can mould it as he
wills. In order therefore to avoid on the one hand the unmitigated
rigidity of the commutative principle, and the variability and
uncertainty of the distributive on the other, one needs to find a third
principle which is not so rigid that it cannot be modified if
circumstances require it. One must, in fact, aim at the principle of
harmonic justice, which combines harmoniously law, equity, the execution
of the law, and the function of the magistrate, both in the
administration of justice, and in the governance of the state. In the
series 4, 6, 8,12, there is the same ratio between 4 and 6 as there is
between 8 and 12, and also between 4 and 8 as there is between 6 and 12.
Similarly there is the same relation between law and equity as there is
between the execution of the law and the function of the magistrate, and
also between law and its execution as there is between equity and the
function of the magistrate....
If we apply this to the commonwealth, whether sovereign power is vested
in a prince, the nobles, or the entire people, and the state be a
monarchy, an aristocracy or a popular state, if it is governed without
law and all is left to the discretion of the magistrates to distribute
pains and penalties according to the importance and status of each
individual, such a state could be neither stable nor durable, even
though it had a fair appearance because all was managed without fraud or

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favour, a thing impossible in itself. There would be no bond of union
between the great and the humble, and therefore no harmony between them.
There is even less stability where a principle of strict equality is
observed, and all matters are regulated by immutable laws, without any
means of equitable adjustment to suit the requirements of time, place,
and persons. Just as two simple substances, qualitatively extreme
opposites, may be each in themselves lethal, yet combined and tempered
the one by the other produce a health-giving medicine, so the two
opposed principles of commutative and distributive justice are in
themselves destructive of commonwealths, but combined as harmonic
justice supply the means of their preservation.
Aristotle was therefore wrong in maintaining that that state was happy
which was governed by so good a ruler that he was never swayed by
prejudice or passion, for in such a case, he said, there would be no
need of laws. But laws are not for those w ho exercise sovereign power,
as we have already shown. They are intended in the first place as a
guide to magistrates, who are frequently so bunded by passion, by
intrigues, or by ignorance, that they have no conception at all of the
beauty of justice. Even were they very angels, incapable of any fault,
the subject still has need of the law to illumine a path for him amid
the dark promptings of his heart. Wicked men need it to prevent them
excusing their misdeeds on the grounds of real or pretended ignorance.
Again, if for no other reason, the law is required to fix punishments,
for knowledge of what is the appropriate punishment is not rooted in
conscience as is knowledge of what are those actions forbidden by
natural law....
The first occasion of m en making laws was w hen primitive monarchies were
converted to popular states, as happened in Athens in the time of Dracon
and Solon, and in Sparta when Lycurgus broke the power of the two kings.
The common people demanded equality with the rich and the noble, and
this could only be achieved through equalizing laws. The rich on the
other hand insisted on their privileges. Because the burden of
maintaining the commonwealth fell on them, they considered that the rich
should be advanced in proportion to the size of their estates and the
importance of their charges. Therefore the Tribune Terentius Arsa
proposed a law to the people requiring the magistrates for the future to

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be guided in their actions by certain fixed rules. The nobles opposed
the measure, which to them spelt ruin, and w ould have preferred to
restore the monarchy. The matter was disputed for six years, but in the
end the commons defeated the nobles. The Twelve Tables w ere therefore
published, including a provision that no privilege was to be granted
anyone, on pain of death, at least without the consent of the popular
assembly. Under these laws the magistrates were required to govern by
strict rules which did not permit of any exercise of discretion, or
appeal to equity....
It is important to notice however that the word equity can be used
diversely. Equity in a ruler is the power to declare or to correct the
law. In a magistrate it is the pow er of applying it by relaxing its
rigour or stiffening its leniency when there is need, and by supplying
its defects where its provisions are inadequate to a given case ... In
this respect the most humble judges have the same kind of discretion as
the most exalted, but neither of them can do what a sovereign court can,
that is to say reverse a judgement on appeal, or exempt an accused
person entirely from paying the penalty under the law. They can only act
within their terms of reference ... But to speak truly, law without
equity is like a body without a soul, seeing that the law can only lay
down general rules, while equity is dependent on the circumstances of