The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• A Note On the Text
• Acknowledgments
• The Present State of Germany
• Pufendorf’s Preface to the First Edition of 1667 1
• Preface to the Second Edition (1706) 1
• A Letter of Monsieur Mézeray Concerning the Manuscript On the State of the German Empire, Written to a Bookseller of Paris. 1
• To the Reader
• Chapter I: Of the Origine of the German Empire.
• Chapter II: Of the Members of Which the Present German Empire Is Composed .
• Chapter III: Of the Origine of the States of the Empire, and By What Degrees [ Stages ] They Arrived to That Power They Now Have.
• Chapter IV: Of the Head of the German Empire, the Emperor; and of the Election and the Electors .
• Chapter V: Of the Power of the Emperor, As It Now Stands Limited By Treaties; and the Laws and Customs of the Empire; and the Rights of the States of Germany.
• Chapter VI: Of the Form of the German Empire. 1
• Chapter VII: Of the Strength and Diseases of the German Empire.
• Chapter VIII: [of the German State-interest.] a

CHAPTER VI

Of the Form of the German Empire.1

Of the Form of the German Empire.1. |[As the Health of Natural Bodies, and the Strength and Ability of Artificial Composures results from the Harmony of their Parts and their Connexion or Union with one another; so also Moral Bodies or Societies are to be esteemed strong or weak, as the Parts of which they are composed, are found well or ill formed and united together, and consequently as the intire form or whole of them are elegantly or irregularly and disorderly [monstrously] formed and united]|.a It will appear sufficiently in what has been already said, that [the Government, State, or Empire of Germany hath something of Irregularity in it],b which will not suffer us to bring it under any of the simple [or regular]⁺ forms of Government, as they are usually described by the Masters of Politicks<, as anyone can see who has compared that state with kingdoms and aristocracies that are generally acknowledged as such>:

We must therefore the more accurately enquire what its true form is, |[because the far greatest part of the German Writers have made gross and foolish Mistakes]|,a through their Ignorance in Politicks, and |[senceless transcribing one another without any Prudence or Consideration, by which they have multiplied their Books]|.b <136> I must therefore here bespeak [beg] the Pardon of my Reader, if by the subject of my enquiry I am forced to use more School-Subtilties or Distinctions than will please those [that love not that sort of Learning],c because without them it is not possible to make a true Representation of, or pass a solid Judgment on the present State of Germany. The Truth is, a few words would satisfie all wise men, if the Follies of some [other] men that have had the good fortune to be approved [by many], had not made it at once necessary and troublesome to confute and expose them.

All the Hereditary States are Monarchies.2. |[As to the several parts [or Estates] of this Empire, separately taken or considered, there is no difficulty]|.d For all the Secular Principalities which go by Inheritance, the Ecclesiastick, which pass by Election, and the Earldoms, they are all administred and governed like Monarchies, but with this difference however, that in some places the Princes are absolute, <except where they are bound by the common laws of the Empire,> and in others they are limited by certain Pacts, or Agreement with their Provincial States [or Orders, as they are called]<, and by their [the latter’s] privileges>. Amongst theThe Free Cities are Commonwealths. free Imperial Cities, some are under an Aristocratical Regiment, the principal management of Affairs being in their Senates, into which their Principal Citizens are elected [adoptantur] by the Suffrage or Voices of the Senate [Senators themselves]; and here the Senate [is no way subject to the People; nor]a bound to give any account to them of their Administration of the Publick Affairs. In other places [the Populace is uppermost, and the Form democratical],b <137> and here the Senate is filled by the choice [vote] of the [Tribes or Companies],c and they have also a Power to call the Senate to account.

The Form of the whole Body is neither of these, but an irregular System.3. But then {the German} Writers are by no means agreed what Form belongs to the whole Body of the German Empire, which is an infallible sign of an irregular Form, |[and no less also of the Ignorance of these]|d Authors, who [with small Abilities and little Learning, have pretended too hastily to write of what they did not understand].e

Yet I do not remember I ever saw one Author that did say, it was a Democrasie. Yet some [have had so little wit as]f to say, none were parts [citizens] of this State, but those that had a Right to vote in the Diet; in this, without doubt, blindly following Aristotle, who defines a Citizen to be one that has a Right to deliberate and vote in the Commonwealth Affairs. Now, if we could grant this, then it [the German Empire] would [undoubtedly] be a Democrasie, [because all its Parts are composed of the States only],g who have every one of them a Right to debate and vote in the Diet, and the Emperor [is the Prince or Head of the State].h But he that should extend that [Aristotelian] Definition further than the [popular Cities of Greece, for whom only it was made],i would certainly be guilty of very great Absurdities: For, who [can think that Freemen (and Gentlemen too) who have great Estates and Families of their own, and live in Kingdoms or Commonwealths, are not to be accounted Members(iv) of <138> their Government],a though they are admitted to no share of the Government? or, Who in a Kingdom can think the King the only Member [citizen], or in an Aristocracy would esteem none such but the Senators?

Many pretend the Empire is an Aristocrasie.4. The greatest part of those who pretend to exquisite [astute] Knowledge in Politicks, and a great love of the German Liberty, pretend it is [meer]bAristocrasie; these maintain their said Opinion by these following Arguments.

(1.)c There is no reason (say they) that any man should be removed from this Opinion by the outside appearance of things which seem to represent to us a Monarchy, viz. The proud Flourishes of great Titles, and the usual Forms of Address; much of which is owing to the Genius of the German Tongue, which abounds in [such vain, insignificant, luxuriant Expressions],d and [the rest proceed from the ancient form of Government, (which was indeed Monarchical) though the present is nothing less].e For they in truth are in possession of the Supreme Authority, who [have the right to] dispatch the greatest Affairs of the State as they themselves think fit, by what Title soever they are call’d.

(2.) That it is not at all contrary to the nature of an Aristocrasie, to have an Head a little higher than the rest, who may be the Director of their Councils, and the President of their Senate, and on that Score be of greater Authority than the rest.

(3.) That the form of any State ought to be distinguished from the manner of its Administration;2 which <139> distinction is to be thus explicated: That it sometimes happeneth, that one State [respublica] imitates the manner of Administration proper to, or very like, that of another Form of Government [state], or [which at least may have]a some signs of it. Thus, if a King [that is a real Monarch,]⁺ thinks fit to consult [an assembly of] his People, or a Senate of them, the first of these will seem to have something of a Democrasie, and the latter of an Aristocrasie, and yet, after all, the Form is a real Monarchy, and nothing else; [for]b these Conventions of the People or Senate are nothing but an Assembly of Counsellors, and the King has no necessary dependance on them. And on the contrary, in a Democrasie or Aristocrasie, the principal Magistrate or [Prince of the Senate],c who has the [Office of consulting]d the Senate or Assembly in all publick Affairs, of executing the Laws, and enforcing their Decrees, and in whose Name the publick Acts and Decrees are made; will indeed be a lively Figure [simulacrum] of a Monarch, but yet still the Supreme Authority will nevertheless still reside in the People or [Senate].e

There are some indeed who oppose this distinction chiefly on this ground; Because the Form is the beginning or first mover of Operations [principle of actions], [and they]f must of necessity follow the nature of their efficient Cause. Now [(say they)]⁺ the Form of a State is as it were the Fountain from whence all the Operations pertaining to the Administration of that State flow, and therefore it is impossible the Form should <140> differ from the Administration. To this others reply, That we ought to distinguish in these Cases between what one doth in his own Name or Right, and what he doth in anothers. In the first of these there can be no difference between the Form [of a state] and the Manner of [its] Administration; in the latter it is not impossible for [a man to seem to be what he really is not]:a

The thing [in short]b is thus; The different Forms of States [or Governments]⁺result or spring from the different Subject, to whom the Supreme Power is committed or annexed, as it is a single Person, or a Council [or Senate, consisting of a few men, or of all the People];cbut then, what Ministers are employed by them that have that [supreme] Power in the executing of it, is nothing to the purpose, or all one.d I might say also, that Axiom on which the Argument resteth, is only true in natural Agents, but cannot rightly be applied (as it is here) to free Agents, who can govern their Actions as they please themselves.3

The German Empire is no Aristocrasie.5. But then, {though these things may thus with Subtilty enough be disputed in the Schools, yet} no wise man will thereby be perswaded to think the German Empire is an Aristocrasie, especially if he has any competent degree of Civil or Politick Experience and Knowledge, because the Essence of an Aristocrasie lies in the committing the Supreme Authority to a fixed [standing] and perpetual Senate [or Council]⁺, which has a Right to deliberate, consult on, and determine all the publick Concerns and Affairs <141> of that State, committing only the daily and [emergent]e Affairs to some Magistrates, who are to execute the same, and are bound to give an account of their Actions to that Senate: But then there is no such Senate in Germany. For the Chambers of Spire and Vienna do only judge of |[Appeals]|;f and the Diet is not holden as a settled [standing] and perpetual Senate, which has the Sovereign Authority, and is to direct all the publick Affairs of a State, ought to be; but has ever been call’d [only] upon [particular and emergent]a Causes.

|[There are some so weak [simple-minded], as to conclude the German Empire is infallibly an Aristocrasie, only because in the Diet [comitia] things pass by a majority of Votes]|;b for[, as is well known,] in many Kingdoms there are Parliaments or Assemblies [comitia] of the States, which are of the same nature with the Diets of Germany, and in them too the [majority of Voices prevails],c |[and yet they are Monarchies and not Aristocrasies; as for example, England, Sweden, and Scotland]|.d What is more usual, [as well,] than for [a System of States, which are united only by a strict League and Combination, to hold their Assemblies, Diets, or Parliaments? And thus]e have all of them |[as much Power over the Members of their States, as]|f the Diet[s] of Germany have over the States [of the Empire], that compose it<, especially if we look more at the effect of that power than at its character>. The Society [associations] of the Amphyctyones and Achaeans in old times, and [the Diets of the Cantons in Switzerland, and the Grisons,4 and the Assemblies of the United Provinces, in their States-General at the Hague],a in latter times, are <142> [full and clear]⁺ Instances of this.

And[, furthermore,] true Aristocrasies have all of them this in common, viz. That no one [in the Senate]⁺ is superiour to the whole Senate; and [they all of them are bound as much to obey the Decree of the major part of the Senate, as any other Subject; and the Senate has a Power of Life and Death over all the Members of it, which is by no means true of the Diet of Germany]b <, and he who denies it knows nothing of Germany or any other states [respublicas]>: And in an Aristocrasie the Senators [optimates] have their private Estates [patrimonium], which commonly are [much] greater than [those of the private Subjects],c yet [not only the publick Revenues, but]⁺ the private Estates of the Senators are as much subject to the Laws and Decrees of the [whole] Senate, as the [Estates of private men]:d But in Germany, if you remove out of the Computation that which belongs to the [several Members of the State],e there will be nothing left [for the Diet or Body to dispose of]:f |[And it would be a great abatement of the German Liberty to assert the Diet there has the same Authority over the Estates of its Members, that the [whole] Senate of the most Serene Republick of Venice has over those of its Senators]|.g

As to that famous Speechh of Albert Archbishop of Mentz, when the Electors were considering whether they should elect Charles V. or Francis I. That the [Government of France was too Monarchical],aand that the Princes of Germany did rather incline to an Aristocrasie, which they ought carefully to preserve. This may easily be thus answered: |[There is no reason <143> to suppose that Prelate had any exact knowledge of Politicks]|,b and the sence of what he said is true [clear], though he has ill expressed himself, viz. “That if the German Princes were desirous to continue in the same condition they then were, they were to avoid the Empire or Government of a King of France, whose great design it ever was, to reduce the [Nobility]c of their own Kingdom under the Laws of an Absolute [exact] Monarchy, and would, without all doubt, endeavour to do the same thing [in Germany].”d

The German Empire no Regular Monarchy.6. It remains now, that we consider whether it [the German state] may be taken into the List or Number of Monarchies or Kingdoms. Of these there are two sorts, the Absolute and the Limited. In the first, the whole Soveraign Power is in the hands of the Monarch, (by what Title soever he is call’d) and he governs all the publick Affairs [as he himself pleaseth].e But in the latter the King is bound up by certain Laws in the exercise of the Soveraign Power. All those that have not exactly considered the Difference between these two Species of Monarchies, [have committed great Errors, whilst, because the Emperor has not an Absolute Soveraignty, they falsly conclude, that he has not a Limited neither].f

Now, he that can think the Emperor is an Absolute Monarch, [is wonderful silly],g and the Arguments that are brought for it, deserve rather to be hissed at than answered seriously. It is full [just] as absurd to fetch an Argument to prove <144> the German Emperor absolute, from the Visions of Daniel,5 as from the Books of the Civil [Roman] Law. That the Emperor has no Superiour but God, and the Sword gives him no more Absolute Authority over the Princes of Germany, than it gives to the State of Hollanda over the other Six, who may as truly say this as he. |[As to the empty Titles, (as for example, that he is by all the States and Princes stiled their most merciful Lord, and that in the conclusion of their Letters [and elsewhere] they promise much in the Matter of Loyalty and Obedience to him) the Genius of the Age, [and] the Stile of the [Times]b are responsable for them, and [there is no more to be expected from them than from]c other Expressions of Honour and Respect, in which the most unwilling to act is the most forward to promise what he never means to perform. That Plenitude and Perfection of Power which the Secretaries and Clerks [typically] ascribe to the Emperor, in their Letters and [the dedicatory prefaces that adorn] Decrees, is a meer Jargon of insignificant words.]|d The States do indeed swear Allegiance to the Emperor, but with a saving of their own Liberties and Rights. And I have already sufficiently shewn what Power is thereby reserved and secured to them [him]. But to use any more words in so plain a case, [were not only needless but foolish].a

That it is no Limited Monarch[y].7. The Opinion of those who have ascribed to the Emperor a Supreme Regal Power, but limited and restrained within the Bounds of certain Laws, has seemed <145> the most probable of all other[s] to the greatest part of men. And you shall also frequently hear this Opinion defended and stoutly maintained in the Schools of Germany: [So far as we know,] the first that appeared openly against this Opinion was a nameless Author, under the feigned Title ofHippolithus a Lapide considered and confuted.Hippolithus a Lapide,6 [in the heat of the Imperial and Swedish War].b This Writer saith many things of unquestionable veracity, which no modest man can deny; but then it is no less apparent, his implacable Hatred to the House of Austria has in other things mis-led and deceived him. {The prohibiting the reading of this Book was the only thing that gave it Reputation [pretium], and made Learned men [inquisitive after it; so that it was read with unusual Application and Care]:c Yet however, I should [would] never have mention’d it, but that I find many still [so fond of it, that they still think it an invaluable Treasure],d and that all those that have pretended to answer it, have rather trifled with the Subject, or basely flattered the Emperor, than destroyed his [Lapide’s] Reasons.}

This Author [has well and clearly proved, that the Emperor has not a Supreme and Regal Authority over the Princes and States of Germany];a but then is strangely [quite] absurd, when he makes the Emperor subject to the States, and [gives him nothing but the naked Dignity of a subordinate Magistrate, that wears a great many proud Titles precariously bestowed upon him];b as if whereever the Monarchy is not Absolute, it must presently <146> degenerate into an Aristocrasie, and a Prince must presently [necessarily] acknowledge all those to be his Superiors whom he could not command and govern as he pleased. He that observes this one Mistake, will be able [by it to unravel and disbowel all his weak Arguments]:c And yet, besides this, he mingles [in] many other silly [useless] Fallacies, of which I shall mention [only] some few to expose his Folly.

To prove that the Soveraign Majesty is [alwaies]⁺ in the Princes [Estates], he alledgeth [somewhere], That it is [also] in them when the Imperial Throne is vacant. But who knows not that? In all other Kingdoms, during the Interregnum, the Soveraign Power returns into the hands of the People, or of their Representatives the States, which yet they can retain no longer, than till they have made a new King:7 Nor doth a man presently make every one his Master [superior], to whom he willingly gives an account of his Actions: It is one thing to give an account to a Superiour, who can punish me if [I have not performed my Duty to his satisfaction],d and quite another thing to do it to one who expects it according to an Agreement [pact] to that purpose made between us; and it is yet [less, when I do it to preserve my own Reputation, and without any other Motive or Reason].e Thus Kings, when they begin a War, endeavour to satisfie all the World in the Justice of their Cause [by means of public manifestos].8 Thus one Companion or Partner [ally] gives the other, and a Guardian gives the Pupil when he comes <147> to Age an account of his Administration [activities]. Nor is he [immediately] anothers Master and Superiour, who can remove him from his Office [position]; for [that a man may by Compact and Agreement be preferred to the management of their common Concerns],a so that neither of these may have any [direct and true Authority or Soveraignty]b over the other, and so when he doth not please the other Party, and for that cause is deposed or turn’d out of his Administration [office], it [has no other effect or cause]c than the breaking off the Bargain made with him [someone], because he has not performed his part of the Contract, and satisfied the Conditions [legibus] of the Covenant. And yet perhaps a man might [deservedly] doubt whether all that was done in the Cases of Henry IV. and Adolph of Nassaw,9 were legally and regularly done{, but that it is notorious [well known] the [most] Reverend Bishops of those Ages were the principal Agents in those Affairs}.

What he so largely [extensively] argues [from the Power of the Diet]d are true, as to the matter of Fact, but nothing to his purpose for which he alledgeth them. For though the Emperor can in truth do nothing against the Consent of the States, yet I think it is as true, that no man ever heard the States pretended to do any thing without the Consent of the Emperor. [To be sure,] the Electors, in their Capitular, do prescribe to the Emperor what he shall, and what he shall not do; [however,] not by force of any Authority [imperii] they have[, or pretend to have]⁺ over him, but by way of Contract: So that if the Emperor <148> should pretend to enjoin any thing contrary to his Covenants [agreements] with them, they may safely and lawfully [impune] not obey him in those Instances: But then, this springs from the [common] nature of all Contracts [pacts], and not from any Authority [potestas] the Electors have over the Emperor.

That is more probable yet [that]a he alledgeth from Ancient Custom and the Golden Bull, viz. That if the Emperor should happen to be [legally] complained of, in certain particulars, he shall be bound to answer the Complaint before the Count Palatine of the Rhine. And it is well known, that the Three Spiritual Electors cited [summoned] Albert I. Emperor,10 before Rudolph Count Palatine to plead his Cause and defend himself; but then, [when they had so great a Criminal to contest with, they relied more on their Swords and Armies, than on their Counsel or Judge].b But then, since the Date of the Golden Bull, there is not one Example to be found of any such [Suit commenc’d against the Emperor],c that I have read of. The Rise [origin] of that Authority which the Count Palatine has, did, without doubt, spring from his Office, which in ancient time, as [Mayor of the Palace],d he exercised in the King’s Court: For[, here,] as he exercised a real Jurisdiction over the other Courtiers, so if any thing was demanded of the King, which was doubted of, it was wont to be referr’d to the Examination of the Count Palatine, to [by] whose Sentence the King stood, not because he owned [acknowledged] the Count [(who was his Servant and Subject)]⁺ for his Superior, <149> but because when he once knew the Petitioner had [a] Right to what he asked, [it was beneath a King to do him wrong]:e As we have known many Princes in Germany, and elsewhere, who when they doubted of any Debt demanded of them, <or in other matters where others have made a rights claim against them,> have answered the Claim in their own Courts. And yet it is not [by any means] to be supposed that these Courts [have any Authority over their Princes, or could force them to pay those Debts],a if the Reverence they [bear to Justice, the Publick, and their own Private Conscience, and the desire they naturally have to preserve a good Reputation in the World, did not much more powerfully move them to pay them, than the Authority of these Courts, which are managed by their Subjects and Servants].b And I believe the States [of Germany think they]⁺ are happy enough in this Priviledge, That the Emperor can exact nothing of them against their wills; and that the Wisest of them would disclaim the Invidious Liberty of [commanding]c their own Emperor [besides].

The Arguments of those that pretend it is a Limited Monarchy, answered.8. Doubtless the Emperor would with great facility compound [settle] the Dispute with our Hippolitus, [and obtain his Leave to continue a Prince still,]⁺ and not be reduced by him to the mean condition of a Subject: But they [are not so easily baffled, who allow the Emperor to be a Soveraign, but Limited King, and ascribe unto the States great Liberties, but tempered too by Laws],d and so place Germany in the List of Limited Monarchies. {For, as for those who <150> prate of mixed forms of Government, they can never disintangle themselves [from the Objections brought against them]⁺, for that not only all kinds of mixture can produce nothing at last but [a monstrous deformed Government],e but it is also certain none of the Notions of that kind will at all fit Germany, in which the whole Supreme Power is not undividedly in the hands of many [several], nor are the Parts of it divided between divers Persons or Colleges here.}a

But to return to our former [Limited] Monarchists, They pretend [explain] that [the Capitulars made with the Emperors when they are chosen],b are not at all inconsistent with the nature of a Limited Monarchy; as for instance: That he is bound to administer the Government [state] according to the Fundamental Laws, and to require [seek] the Consent of the States [in their Diet,]⁺ for those things that are of the greatest moment: That he cannot enact new Laws without their Consent, nor change any thing in the matters of Religion, nor make War or Peace, or enter Leagues, without the Approbation of [his Subjects]:c That he must determine their [his subjects’] Controversies [only] in certain known Courts[, and by Stated Laws and Methods]⁺. [And whereas the Princes and]d States swear Fidelity both to the Empire and the Emperor, this they think may be thus explained: That they [the Estates] will obey the Emperor as far as he shall employ their Assistance and Treasures [goods] to the Publick Good, and as far as is expressed in the Laws [of the kingdom]; and that [as to <151> the rest of the States, they will live like good Neighbours and true Fellow-Subjects].e

Two Arguments against This.But still at last there are two things that will not suffer us to reckon Germany amongst the Limited Monarchies: First, In [every Limitted]f Kingdom, though the King is bound up by some certain Laws in the management of its Government, yet after all, he so far excells all his Subjects [citizens], that none of them dares presume to compare his Liberty or his Rights with the Power [authority] of his Prince [king]; and therefore all the Nobility [leading men] depend on the Will of the King, and are responsable to him for their Actions. Now, that it is otherwise in Germany, is known to all the World. For none of the German Princes or States will acknowledg, that the Dominions which are under them are more the Emperor’s than they are theirs, or that they are bound in the Administration [governance] of them to have [respect more to the Service of the Emperor, or the People, than to their own Personal Profit and Advantage].a But on the contrary, every one of them is so far [a Soveraign, that he makes War upon his Neighbours at home or abroad, and entereth into Leagues with his Neighbours or Foreigners],b without ever consulting the Emperor; [and every one of them that]c can trust to his own Forces, or those of his Allies{, [that is, he] looks upon the Reverence he owes to the Emperor, as a meer empty piece of Pageantry}.

To conclude [Next], every King, how Limited soever he may otherwise be, must still have sufficient <152> Power left to command all the Forces of his whole Kingdom, and direct them as he thinks fit, so that the last Resort may be to him; and the said Forces [must] be united in him as their Head, for the procuring the Common Good, so [in such a way] that they may seem all of them [jointly] to be, as it were, [animated and]⁺ governed by one Soul.11 Now he that can see or find this in Germany, must be [wonderfully quick-sighted].d For there he that is call’d their King [head], has no Revenues from the Empire, <at least regular ones,> but is forced to live by his own Juice [resources], there being no common Treasure; nor are there any common [military] Forces, but every Prince and State disposeth of the Forces [men] and Revenues in his own Territories, as he or they think fit, and only contributes to the Publick some small matter [amount], and that after tedious Delays, and much humble Attendance and Courtship for it. All which things have been [fully and clearly proved]a in the Chapter before this, and are found evidently true in the [Actions of these Princes].b

<Finally, quite a few authors class Germany among mixed states, but no matter how much they twist and turn, they can in no way extricate themselves [from the problems this presents]. What Aristotle, the author of that doctrine about mixtures, has transmitted about the mixing or respective balancing of aristocratic and democratic forms of state, does not apply to Germany, as anyone with the leisure to examine Aristotle himself will acknowledge. Nor do any of the kinds of mixture discussed by more recent authors, since the entire sovereignty does not belong undividedly to several parties, nor are its parts distributed among different persons or colleges. Those, however, who assert that Germany comprises a mixture of monarchy and aristocracy because the more powerful rights of sovereignty [maiestatis] are shared with the Estates, err in supposing that the Estates of the Empire have the character of a true aristocratic senate, which the thing itself shows to be otherwise.>

That it is an irregular System of Soveraign States.9. There is now nothing left for us to say, but that Germany is an Irregular Body{, and like some mis-shapen Monster},c if[, at least,] it be measured by the common Rules of Politicks and Civil Prudence<, and that nothing similar to it, in my opinion, exists anywhere else on the whole globe>. [So that in]d length of time, by the Lazy easiness [negligent indulgence] of the Emperors, the Ambition of the Princes, and the Turbulence [importunity] of the Clergy or Churchmen, <as well as factions among the Estates and the civil wars springing therefrom,> from a Regular Kingdom it [has] sunk and degenerated [to that degree],e that it is not now so much as a Limited Kingdom, (tho’ <153> the outward Shews and Appearances would seem to insinuate so much) nor[, exactly,] is it a Body or System of [many Soveraign States and Princes],f knit and united in a League, but something [(without a Name)]⁺ that fluctates between these two. This Irregularity [in its Constitution [makeup] affords the matter of an inextricable and incurable Disease, and many internal Convulsions, whilst the Emperor is alwaies labouring to reduce it to the condition of a Regular Empire, Kingdom, or Monarchy; and the States on the other side are restlesly acquiring to themselves a full and perfect Liberty].a But then, as it is the nature of all Degenerations [of states], [when they have deviated far from their original condition,] that they go forward in their Degeneracy and Corruption with great Facility, [(it being a down-hill motion) but]b they can hardly, and with much difficulty, be reduced to the[ir] pristine or ancient state [form]. For, as a Stone laid on the edge of a Precipice or Downfall, is with the smallest Thrust thrown [all the way] down to the bottom, but it is not to be replaced again at the top without great and almost insuperable difficulty: So now Germany, without great Commotions, and the utmost Confusion of all things, can never be reformed or reduced to the Laws of a Just [perfect] and Regular Kingdom, but it tends naturally [of itself] to the state [condition] of a Confederate System.

Nay, if you take away the mutual [Bond or Tie]c between the Emperor and the States, [(I suppose he means their Oaths)]⁺Germany would then truly be a [body or] System of States [allies], united in an unequal League, because <154> those that are called the States, are still bound to [promote and] reverence the [Imperial Majesty, as their Head]d <, not only as someone decked out with the symbols of royalty, but also as one who exceeds the rest in authority and a certain prerogative of power>. [For a Free State, we may take for our Example of this,]a the League between the Romans and the Latin People, before the latter were reduced [by the former] into the condition of meer |[Subjects. So [also] the Generalship of Agamemnon, in the Warlike Expedition of the Greeks against the Trojans, was [of the same nature]:b [And]c it commonly comes to pass, in length of time, that he that is the Superiour in these Leagues, if he has much the advantage of his Allies in point of Power, by degrees he sinks them into the condition of meer Subjects, and so treats them.

Thus the best account [designation] we can possibly give of the Present State of Germany, is to say, That it comes very near a System of [many Soveraign]dStates, in which one Prince or General [leader] of the League excells the rest of the Confederates, and is cloathed with the [Ornaments of a Soveraign Prince];ebut then this Body is attack’d by furious Diseases; of which I shall treat in the next Chapter.]|f <155>

[1 ]This chapter of the work evoked the most response and immediately generated numerous criticisms and refutations.

[a ]Rather: Insofar as the health and aptitude [habilitas] of natural bodies, and those of artificial ones, results from an appropriate harmony and connection among their parts; so also . . . / e.p.: Insofar as there are three kinds of bodies: natural, moral, and artificial, each of which is composed of different parts, so, depending on whether these parts are properly arranged and fitted to one another, or disposed in an orderly fashion, or not, those bodies are deemed healthy or regular, or the opposite. / See On the Law of Nature and of Nations, I.1, on moral entities; and VII.5, as well as Pufendorf, De rebus gestis Philippi Amyntae filio (Heidelberg, 1664), §3, on regular and irregular forms of the state. Note, also, that the e.p. does not use the controversial term monstrosum in connection with irregularity. [Ed.]

[b ]Rather: the German state [Germanorum Republica] contains [latitare] something

[a ]E.p.: the more carelessly the topic has been treated by most writers

[b ]Rather: because most among them refer to the careless compilation of others’ opinions as a “new book” / e.p.: their practice of following without examination what others have handed down / See Pufendorf’s 1667 preface, pp. 3–4. [Ed.]

[c ]Rather: with [more] discerning ears

[d ]E.p.: Now, nothing prevents us from inquiring into the different forms of the Empire’s individual parts, or the Orders [Ordines], when separately considered, for even if they cannot be regarded as perfect states [civitatibus], they are far from provinces strictly speaking, and their princes far from [mere] governors of provinces

[a ]Rather: can in no way be reduced to order by the people; and is not

[b ]Rather: a democracy is in effect

[c ]Rather: masses [tribuum] / In ancient Rome, the whole body of citizens apart from senators and knights (equites). [Ed.]

[d ]E.p.: one differing greatly from the well-worn principles of ordinary political science, or of the ignorance of many

[e ]Rather: , have rushed to comment on public law [jure publico] with little or no knowledge of civil affairs

[f ]Rather: wish

[g ]Rather: whose only citizens are the Estates

[h ]Rather: would be princeps in the proper sense / There is a play on the meaning of princeps as “prince” and—what is relevant here—as “chief”or first citizen. [Ed.]

[i ]Rather: citizens dwelling in the Greek democracies

[(iv) ]Cives.

[a ]Rather: will deny the name of citizens to free men [liberis hominibus] and patriarchs [patribus familias] living in a kingdom or aristocracy,

[b ]Rather: a true and simple

[c ]Parentheses added to distinguish internal numeration from section numbers. [Ed.]

[d ]Rather: empty expressions of honor

[e ]Rather: some are left over from the ancient form of government [republica], from which the contemporary [moderna] form differs greatly

[2 ]Pufendorf made this distinction in On the Law of Nature and of Nations, VII.5.1.

[a ]Rather: that it has at least

[b ]Rather: if, in fact,

[c ]Rather: princeps, properly speaking / See §3 and note h, p. 161, in this chapter. [Ed.]

[d ]Rather: sole or chief right to direct [referendi]

[e ]Rather: council of aristocrats [concilium Optimatium]

[f ]Rather: they [i.e., actions, operations]

[a ]Rather: the administration to have a different appearance

[b ]Rather: , however, / Pufendorf is not summarizing but presenting an opposing view. [Ed.]

[c ]Rather: consisting of all or few

[d ]Bohun’s italics. [Ed.]

[3 ]This paragraph is a good example of Pufendorf’s distinction between natural and moral entities and also of the stated need to use scholastic (Aristotelian) concepts in the analysis. See On the Law of Nature and of Nations, I.1, on the distinction between natural and moral entities.

[e ]Rather: particular [singularium]

[f ]E.p.: cases and judicial matters

[a ]Rather: special [peculiares]

[b ]E.p.: Indeed, even if the Diet, which has lasted so many years since 1663, were to continue in perpetuity, which seems useful for Germany, it will by no means have the character of an Aristocratic senate / Even after 1663, the permanence of the diet (Reichstag) was merely de facto, not de jure, since it could have been ended at any time by common agreement (Monzambano, Über die Verfassung, trans. Breßlau, 101, note 3). [Ed.]

[c ]Rather: votes are counted

[d ]Rather: the kingdoms of England,Sweden, and Scotland being a sufficient example of this. / e.p.: but the right to call them into session lies with the King, and the Estates themselves do not have the right to determine how often, and about what, they convene

[e ]Rather: allies firmly united by a treaty into a systematic structure, as it were, to have frequent gatherings or Diets, which

[f ]Rather: as much Power over the allies as / e.p.: a greater or lesser power, as stipulated by the rules of the particular association [societas], sometimes not much less than that which

[4 ]Grisons, or Graubünden, is the largest canton of Switzerland; Bohun apparently uses the name for Swiss cantons in general.

[a ]Rather: of Switzerland and the Belgian federation / On the Amphyctionic and Achaean Leagues, see V.28, note 24, p. 157. [Ed.]

[b ]Rather: that individual senators are no less fully bound than other citizens to obey the senate as a whole, which exercises a right of life and death over them and the latter alike, something quite far removed from the liberty of the German Estates

[c ]Rather: the fortunes of the remaining citizens

[d ]Rather: other goods contained in the state [civitas] beside them

[e ]Rather: individual Estates

[f ]Rather: that belongs to the whole

[g ]Rather: And one is bound to have trouble if he dares to assert in their presence that the joint Estates have the same power over the goods of individuals, that the whole Senate . . . / e.p.: And one is bound to be mocked if he dares to assert that the joint . . . individuals, that a Senate has in any true aristocracy [for democratia (Ed.)]

[h ]In 1519. [Ed.]

[a ]Rather: latter inclined toward monarchy

[b ]E.p.: It would be pedantic to require of such a Prelate that he scrupulously form his ordinary speech according the rules of exact philosophy

[c ]Rather: leading men [procerum]

[d ]Rather: to the German princes

[e ]Rather: according to his own judgment / “Judgment” implies less arbitrariness than “pleaseth.” [Ed.]

[f ]Rather: are greatly deluded in believing that the considerations whereby the Emperor is denied an absolute power do not leave him even a limited one

[g ]Rather: must have been born a ram [vervecum,Hammel] in his native country [patria] / This graphic expression, suggesting stubborn dullness or stupidity, was meant to insult, and was so perceived by Pufendorf’s critics. [Ed.]

[5 ]Daniel 7:2–3 refers to four great beasts emerging from the sea, an image later interpreted as the Babylonian, Median/Persian, Greek, and Roman Empires. Seventeenth-century divine right theorists like Dietrich (Theodor) Reinking(k) (1590–1664) used the passage to argue for a supposed transfer of sovereignty (translatio imperii) from the Roman to the German Empire. The latter claim was also known as the “Lotharian Legend” because of the associated assertion that Emperor Lothar III had introduced Roman law into Germany in 1135. By challenging this theory in his De origine iuris Germanici (1643) (i.e., by showing that Roman law had been gradually introduced into Germany through jurists beginning in the fifteenth century), Conring not only undermined imperial claims but also deprived them, through the link with Daniel, of their eschatological or religious dimension.

[a ]Perhaps a reference to Holland’s special role among the Dutch provinces, or simply used as an example for any province. [Ed.]

[b ]Rather: Court [curia]

[c ]Rather: they have no more effect than

[d ]E.p.: The titles, formulas, and courtly style, with which secretaries typically embellish letters and the dedicatory prefaces [carmina] of decrees, far exceed the effect [vim] of the matter itself.

[a ]Rather: would be tiresome [putidum]

[6 ]This was the pseudonym of Bogislaw Philipp Chemnitz (1605–78), whose Dissertatio de ratione status in imperio nostro Romano-Germanico (Freystadt, 1640, 1647), was aggressively anti-Hapsburg. The son of a Rostock professor, Chemnitz entered the service of Sweden under Gustavus Adolphus. After serving in the army, he was appointed Swedish state historian (the post assumed by Pufendorf in 1678) by Oxenstierna in 1644, and ennobled by Queen Christina in 1648 (Verfassung des deutschen Reiches, ed. Denzer, 1994, 191, note 6; Verfassung des deutschen Reiches, trans. Dove, 143, note 35). This rest of this section interacts silently with Chemnitz’s work.

[b ]Rather: at the peak of the war between the Emperor and the Swedes

[c ]Rather: eager to read it

[d ]Rather: , who think it has some value

[a ]Rather: correctly reduces the Emperor’s supreme and regal power in favor of the Estates

[b ]Rather: leaves him [only] the dignity of a bare magistrate, and that as a favor because of his many proud titles

[c ]Rather: to disable most of his arguments [rationes] with little difficulty

[7 ]Pufendorf considers that the state does not dissolve into a precivil condition during an interregnum, because he makes the distinction between the contract of association and the contract of submission, which are conflated by Hobbes. See On the Law of Nature and of Nations, VII.2.7–12.

[d ]Rather: that account is not satisfactory

[e ]Rather: something else, when I fear another’s estimation [of me]

[8 ]Pufendorf wrote some of these himself, particularly his Discussio quorundam scriptorum Brandeburgicorum (1675), which defended Sweden’s unprovoked attack on Brandenburg, in 1674, in terms of its treaty obligations to France during the Dutch War (1672–78). This work is contained in Pufendorf, Kleine Vorträge und Schriften, 281–336.

[a ]Rather: a number of people may put someone in charge of their common affairs by means of a pact

[b ]Rather: Sovereignty, properly speaking,

[c ]Rather: is no different

[9 ]Henry IV was deposed in 1105 (see IV.6 and note c on p. 105; and III.6, note 9, on p. 89) and Adolf of Nassau (1250–98) in 1298.

[d ]Rather: about the Diets

[a ]Rather: , what

[10 ]Albert I (1255–1308), eldest son of Rudolph of Hapsburg, became emperor after the deposition of Adolf of Nassau (in 1298).

[b ]Rather: military might [arma] smiled more upon so great a criminal than upon the accusors and the judge / That is, he was too strong to be held accountable. [Ed.]

[c ]Rather: judicial proceeding enacted before the Count Palatine

[d ]Rather: head of the household [maior domus]

[e ]Rather: he could not but fulfill his own obligation

[a ]Rather: can compel those princes, or punish them

[b ]Rather: have for right [juris], conscience, and public esteem did not move them to pay the debt

[c ]Rather: being able to command

[d ]Rather: have a weightier case, who think it possible under some compromise to attribute both monarchical authority to the Emperor and liberty to the Estates

[e ]Rather: some monster of a state [monstrum aliquod civitatis] / The doctrine of respublica mixta is already criticized in De rebus gestis Philippi Amyntae filio (Heidelberg, 1664), §15, where Pufendorf says that it tends to create a new concept for every abnormality, even nonessential ones. [Ed.]

[a ]Mixture theorists are distinguished here from limited monarchy theorists. The e.p. places a revised version of these remarks about mixed states [rerumpublicarum] at the very end of this section, on p. 176. [Ed.]

[b ]Rather: the things prescribed to the Emperor by the Capitulars

[c ]Rather: the Estates

[d ]Rather: The fact that the

[e ]Rather: they will conduct themselves as agreeable and loyal fellow citizens toward the remaining members of the Empire

[f ]Rather: a true

[a ]Rather: more regard for the Emperor’s advantage than for their own

[b ]Rather: focused on his own concerns, that he does not hesitate to make war on, or treaties with other Estates or outsiders,

[c ]Rather: if he

[11 ]On the sovereign’s relation to the state as a sort of ensoulment, see On the Law of Nature and of Nations, VII.4.12 and VII.5.13.

[d ]Rather: a lynx / Famed as a sharp-sighted animal since antiquity. [Ed.]

[a ]Rather: described at length / In V, above. [Ed.]

[b ]Rather: actual course of affairs

[c ]monstro simile / The most controversial expression in the whole work. [Ed.]

[d ]Rather: In

[e ]Rather: into such a badly ordered form

[f ]Rather: several states

[a ]Rather: affords a perpetual occasion for deadly disease and internal convulsions, with the Emperor on one side struggling to bring the Empire back under the laws of a kingdom, and the Estates on the other striving for a full liberty / e.p.: . . . the Estates on the other eagerly seeking to preserve their acquired liberty / In the first edition, the estates are seeking to increase their liberty; in the more Hapsburg-friendly e.p., they are trying only to maintain the liberty they already have. [Ed.]

[b ]Rather: as if spontaneously seeking the other extreme,

[c ]Rather: struggle / Making Bohun’s clarificatory parenthesis unnecessary. [Ed.]

[d ]Rather: Emperor [Caesarem]

[a ]Rather: As an example of an association [societas] of free states [civitatum], we may take

[b ]Rather: based on a military alliance

[c ]Rather: Although

[d ]Rather: several

[e ]Rather: symbols of royalty

[f ]E.p.: Subjects or, finally, endowed with Roman citizenship.

And that irregularity will be readily acknowledged by anyone who has compared Germany’s structure and received mode of governance with the structure and administration of kingdoms, aristocracies, and systems [of states] that everyone admits and acknowledges as such. Add to this what I have said about the matter in the special treatise De republica irregulari [Frankfurt, 1669] and in De jure naturae et gentium [Lund, 1672, lib. VII. cap. 5, §14 ff.]. / See p. xiv, note 15, in the introduction. [Ed.]