Front Page Titles (by Subject) XVII - Politica
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XVII - Johannes Althusius, Politica 
Politica. An Abridged Translation of Politics Methodically Set Forth and Illustrated with Sacred and Profane Examples, ed. and Trans. Frederick S. Carney. Foreword by Daniel J. Elazar (Indianapolis: 1995 Liberty Fund).
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§ 2The care of goods of the commonwealth or associated body is twofold. First, it is the diligent and faithful conservation of those things necessary and useful to the commonwealth. Secondly, it is their augmentation and extension. This conservation is either of movable or immovable goods of the commonwealth. § 3The care and management of movable goods centers in the treasury and other buildings. Monies are managed in the treasury; other goods, namely armaments, grain reserves, and documents and chronicles are provided for in other buildings. … 36§ 14The care and inspection of immovable goods belonging to the realm are committed to designated curators by the will and agreement of the universal association. … § 15Such goods are navigable rivers of the realm, harbors, public roads, public pastures, and so forth. …
§ 24The augmentation and extension of the goods of the associated body is accomplished through confederation or association with others, or through other legitimate means and titles. § 25In such a confederation other realms, provinces, cities, villages, or towns are received into and associated with the communion and society of the one body. By their admission, the body of the universal association is extended, and made stronger and more secure. This cannot be done, however, without the consent and authority of the body and its administrators. … § 26Such confederation with a foreign people or another body is either complete or partial. § 27A complete confederation is one in which a foreign realm, province, or any other universal association, together with its inhabitants, are fully and integrally coopted and admitted into the right and communion of the realm by a communicating of its fundamental laws and right of sovereignty. To the extent that they coalesce and are united into one and the same body they become members of that one and same body. … § 30A partial confederation is one in which various realms or provinces, while reserving their rights of sovereignty, solemnly obligate themselves one to the other by a treaty or covenant made preferably for a fixed period of time. Such a partial confederation is for the purpose of conducting mutual defense against enemies, for extending trust and cultivating peace and friendship among themselves, and for holding common friends and enemies, with a sharing of expenses. A commonwealth ought to be cautious in contracting and covenanting such treaties that it not be carried along by them into unjust or disastrous activities, nor destroyed by the downfall of a confederating ally. § 31Therefore, it ought to ponder the might of the confederating ally, his faithfullness and constancy in previous transactions, the similarity of his customs to one’s own, and the equity and honesty of the agreement among the confederates. …
§ 54The universal association is also augmented by legitimate occasions and titles other than by confederation, as by testamentary succession … by donations and gifts of others, by legitimate war, by purchase, and by the marriage of the administrators of the commonwealth. …
§ 55So much for the communication of aid. We turn now to the communication of counsel, which is performed by the members of an associated body in ecumenical and general councils within the universal association. § 56These general ecumenical councils of the realm or associated body are meetings of its assembled members in which the utility and advantage of the commonwealth are considered, as well as common and special remedies for meeting common and particular evils, and something is decided for the common welfare by the communication of counsel. The difficult, grave, and arduous affairs of the realm or commonwealth are examined and determined in these general councils and assemblies of the entire universal association. These matters are the affairs and situations of interest to the entire imperium, or polity, and its members, such as those concerning the fundamental laws of the polity, the rights of sovereignty, the imposition of taxes and contributions, and other things that require the common deliberation and consent of the entire polity.
§ 57This council or assembly is therefore the epitome of the realm or polity. All public affairs of the realm are referred to it and, after examination and discussion by the members of the realm, decided by it. § 58The right of examining, deliberating, and coming to conclusions belongs to individual members of the realm or commonwealth. The right of deciding rests indeed in the judgments and votes of a majority of the members. …
§ 60There are five reasons for these councils. First, it is equitable that what touches all ought to be acted upon by all.37 And what requires the faculties, strength, aid, and enthusiasm of all ought also to be done with their common consent. When the people has not been excluded from the handling of public affairs, there is less ill-will should a poorly launched project fail, and the people’s benevolence and favor are retained. Second, a project can be examined better by many persons, and whatever is needed can more easily be supplied by many because they know more and can be deceived less. Third, there are some affairs that cannot be handled except by the people in such assemblies. Fourth, those who have great might can be contained and corrected in office by the fear of these assemblies in which the complaints of all are freely heard. Fifth, by this means the liberty reserved to the people flourishes, and public administrators are compelled to render account of their administration, and to recognize the people, or the universal association, as their master by whom they have been constituted. …
The Ephors and Their Duties
We have thus far discussed the right of communion in the universal association. § 1We now turn our attention to the administration of this right. This is the activity by which the rights (jura)1 of universal symbiotic association are ordered, properly administered, and dispensed by designated public ministers of the realm for the welfare of its members, both individually and collectively. Whence it is called the jus ἐ π ι μ ε λ η τ ι κ ὸ ν 2 pertaining to the provision for proper management, or the jus ε ὐ τ α κ τ ι κ ὸ ν 3 pertaining to good ordering.
§ 2This administration is the bond by which the commonwealth holds together, and its vital spirit by which the various and diverse human functions of the association are directed, ordered, and referred to the welfare of all. Whence it is evident that such administration does not execute or perform these functions, but only establishes, orders, and directs them, which it does by ruling, commanding, forbidding, and impeding.
§ 3These public ministers of the realm are elected by the united and associated bodies or members of the realm for the purpose of properly and honestly attending to, administering, governing, and conserving the body and rights of this universal association. They are invested with the necessary power and authority, and are bound by oath of office to the realm. § 4Whence they are called custodians, presiding officers, defenders of the commonwealth, and prudent and diligent executors of right and law (jus et lex). Any such community (universitas) can indeed constitute these administrators, as Losaeus proves.4
§ 5In the election and establishment of these public ministers, some have the task of electors, others of elected ministers. Electors assign, confer, and entrust to suitable ministers, according to certain laws and conditions, the care, government, and administration of the rights (jura)5 of the realm, and obligate these ministers to the realm by oath of office. § 6Elected ministers undertake the care and administration entrusted to them for the utility and welfare of the association, according to the law by which the administration has been conferred. “He is a minister of God to you for good.” 6 They are therefore called rectors, governors, directors, administrators, regents, pastors, leaders, deliverers, and fathers, and are adorned with other honorific titles.
§ 7It is evident that the power of administering the commonwealth and its rights is entrusted to the elected ministers and curators by agreements made in the name of the whole people, or by the body of the universal association. These ministers are expected to do good and not evil in their delegated administration of the commonwealth, and to serve the utility and welfare of the associated political body by devoting to it all their intelligence, zeal, labors, work, care, diligence, indeed all their wealth, goods, strength, and resources, and by not withholding them for pursuit of their private advantage. … § 8For the commonwealth or realm does not exist for the king, but the king and every other magistrate exist for the realm and polity.7 By nature and circumstance the people is prior to, more important than, and superior to its governors, just as every constituting body is prior and superior to what is constituted by it. …
§ 10The people first associated itself in a certain body with definite laws (leges), and established for itself the necessary and useful rights (jura) of this association. Then, because the people itself cannot manage the administration of these rights, it entrusted their administration to ministers and rectors elected by it. In so doing, the people transferred to them the authority and power necessary for the performance of this assignment, equipped them with the sword for this purpose, and put itself under their care and rule. “Because the plebs began to experience difficulty in meeting together, and the people even more difficulty in so great a crowd of men, necessity itself brought the care of the commonwealth to the senate.” 8§ 11Such administrators and curators therefore represent the whole people, and their actions are considered to be actions of the community.
For this reason, the citizens and inhabitants of the realm are collectively but not individually, like a ward or minor, and the constituted ministers are like a guardian in that they bear and represent the person of the whole people. § 12Just as a ward, although he is master of the things he has yielded to a guardian for care and administration, cannot act in any matter nor incur an obligation without the authority and consent of the guardian, so the people, without the authority and consent of its administrators and rectors, cannot administer the rights of the realm (jura regni), although it is the master, owner, and beneficiary of them. § 13What a guardian rightfully does regarding the things and person of his wards, ministers of a commonwealth for the most part perform for the united inhabitants of the realm, together with their goods and rights.
§ 14In relation to their ownership and delegation of supreme right the united subjects and members of a realm are masters of these ministers and rectors; indeed, these administrators, guardians, and rectors are servants and ministers to these very members of the realm. § 15But in relation to the entrusted administration that has been approved by the people—that is, outside this delegating of right—the individual inhabitants of a realm are themselves servants and subjects of their administrators and rectors. They serve them by performing and carrying through with their entrusted responsibility, and in so doing extend to them their services, abilities, and obedience.
The administrators of these individual subjects are called lords, guardians, and overseers, who are expected, however, to regard their subjects not as slaves and bonded servants, but as brothers.9 Before undertaking this administration, and after relinquishing it, such rectors and administrators are equal and similar to other private men. Indeed, as the rights of sovereignty (jus majestatis) arise from the associated body, so they adhere to it indivisibly and inseparably, nor can they be transferred to another. Kings certainly cannot make themselves equal to or greater than the associated body. …
§ 18The rector and administrator of this civil society and commonwealth cannot justly and without tyranny be constituted by any other than the commonwealth itself. For “by natural law (jus naturale) all men are equal” 10 and subject to the jurisdiction of no one, unless they subject themselves to another’s imperium by their own consent and voluntary act, and transfer to another their rights, which no other person can claim for himself without a just title received from their owner.11 In the beginning of the human race there were neither imperia nor realms, nor were there rectors of them. Later, however, when necessity demanded, they were established by the people itself. We see examples of this in India and among the Ethiopians, as historians report. For the people of Israel, however, there was in this matter a special procedure. For God marvelously governed this people for about four hundred years, just as if he himself were king. He led the people first through Moses out of Egypt, then through Joshua, and afterwards through a long series of vigorous judges. § 19Then, when the people requested a king, he was indignant and gave it Saul, who was designated and chosen immediately by himself through the service of a prophet. When he afterwards rejected Saul because of his sons, he substituted David in the same manner, and by his word established the descendants of David in the control of the realm. These actions, however, were so performed by him that the consent and approval of the people were not excluded from the process of designating these kings and putting them in control of the realm. Rather the matter was so handled that the kings were considered to be chosen by the people as well, and to receive there from the right of kingship (jus regis).
§ 20This can be discovered in sacred history by anyone willing to inspect it, and to study it with care. Indeed, it is evident that the supremely good and great God has assigned to the political community this necessity and power of electing and constituting. “You shall establish judges and moderators in all your gates that the Lord your God gave you through your tribes, who shall judge the people with a righteous judgment.” 12 “I will establish a king over me.” 13 “So you shall establish a king over you.” 14 This ordination of a political magistrate, however, God ascribes in various places to himself. “Through me kings rule, and framers of laws discern what is just.” 15 “You shall be subject to your lords, whether to the king as the one who is pre-eminent, or to leaders who are sent by him for the punishment of evil-doers and the praise of the upright.” 16 “Let every person be subject to the governing powers. For there is no power except from God, and those powers that exist have been ordained by God. Therefore anyone who opposes such powers resists the ordination of God.” 17 From this it can be concluded that God has formed in all peoples by the natural law itself the free power of constituting princes, kings, and magistrates for themselves. This means that in the measure in which any commonwealth that is divinely instructed by the light of nature has civil power, it can transfer this power to another or others who, under the titles of kings, princes, consuls, or other magistrates, assume the direction of its common life.
§ 21Nature has also expressed in other created things a certain likeness and image of this political domination and government. Just as the mind reveals and performs all its actions in one physical body by the joining together and concord of its members, and unifies these members under one spirit, so also one imperium under the power of one person or a united group directs and rules in the commonwealth for the convenience of the members, declares laws, seeks the things necessary for human society, communicates concord and makes it firms and directs actions and friendships by suitable rules that either nature or necessity recommends should be kept inviolate. When God as Lord of everything created the world, he prescribed for all creatures, even for trees, springs, rivers, and other created things, princes appropriate to their kind. § 22Thus bees acknowledge and follow their queen, cranes have a leader of their order, and the whale acknowledges his leader and rector. Moreover, for angels God established a prince of angels, for birds a bird, for beasts a beast, and for men a man. And even in man the soul dominates in the body and the mind in the appetite. It is also necessary that in any combination of elements one of them dominate. Therefore, “to rule, to direct, to be subjected, to be ruled, to be governed are agreeable to the natural, divine, and human law”. … 18
§ 25The power of administering the rights of the realm originates in the election of these ministers and in their undertaking the office entrusted to them.19§ 26The administrators and rectors of the universal symbiosis and realm represent the body of the universal association, or the whole people by whom they have been constituted. They bear its person in those things they do in the name of the commonwealth or realm. They are held to be less in authority and power than those by whom they have been constituted and from whom they received their power. For however much the imperium and right that is conceded to another, it is always less than the conceder has reserved to himself. § 27It also cannot be denied that the power and strength of the whole is always greater than that of one man, or the body than that of a member thereof. On the other hand, these administrators are rightly called superior in authority and power to individual members of the realm. § 28The sole power of administering and directing the body and rights of this universal association according to just laws is transferred to these administrators and rectors by the members of this universal association. § 29Such governors by no means have the ownership of these rights, nor superiority in them. These rights remain under the control of the political body of this association. § 30Whence the customary formula in the decrees, orders, and rescripts of the Emperor of the Germans is Uns und dem heiligen Reich,20or In unser und des heiligen Reichs statt.21 Here in the word Uns is indicated the dominion of protection and general jurisdiction that the rector has; in the words des Reichs statt is expressed the dominion of the community. § 31The less the power of those who rule, the more lasting and stable the imperium is and remains. For power circumscribed by definite laws does not exalt itself to the ruin of subjects, is not dissolute, and does not degenerate into tyranny.
§ 32An administration is said to be just, legitimate, and salutary that seeks and obtains the prosperity and advantages of the members of the realm, both individually and collectively, and that, on the other hand, averts all evils and disadvantages to them, defends them against violence and injuries, and undertakes all actions of its administration according to laws. … § 40This power of administering that these ministers and rectors established by the universal association have is bound to the utility and welfare of the subjects, and is circumscribed both by fixed limits, namely, by the laws of the Decalogue and by the just opinion of the universal association. Therefore, it is neither infinite nor absolute.…
§ 41Administrators are not permitted to overstep these limits. Those who exceed the boundaries of administration entrusted to them cease being ministers of God and of the universal association, and become private persons to whom obedience is not owed in those things in which they exceed the limits of their power. … § 42These administrators exceed the limits and boundaries of the power conceded to them, first, when they command something to be done that is prohibited by God in the first table of the Decalogue, or to be omitted that is therein commanded by God. They do so, secondly, when they prohibit something that cannot be omitted, or command something that cannot be committed, without violating holy charity. The former commands and prohibitions are called impious, the latter wicked. The limits of their power are transgressed, thirdly, when in the administration entrusted to them they seek their personal and private benefit rather than the common utility and welfare of the universal association. …
§ 43The reason for refusing obedience to these administrators, as well as for denying absolute power to them, is their general and special vocation in which as Christian men they promised otherwise to God in baptism, which they are bound to fulfill. Moreover, administrators do not themselves have such great power, for no one gave them the power and jurisdiction to commit sin. Nor did the commonwealth, in constituting administrators for itself, deprive itself of the means of self-protection, and thus expose itself to the plundering of administrators. Besides, whatever power the people did not have it could not transfer to its administrators. Therefore, whatever power and right the administrators did not receive from the people, they do not have, they cannot exercise over the people, nor ought they to be able to do so. Finally, the wickedness of administrators cannot abolish or diminish the imperium and might of God, nor release the administrators from the same. For the power and jurisdiction of God are infinite. He created heaven and earth, and is rightly lord and proprietor of them. § 44All who inhabit the earth are truly tenants, vassals, lessees, clients, and beneficiaries of his. “The earth is the Lord’s and the fulness thereof,22 and is so by the right of creation and conservation. God is therefore called “King of kings and Lord of lords.” … 23
§ 47We require love and ability in these administrators and directors. We require love toward the association that is committed to them so that all its hardships may be lighter; and we require ability of governing and administering so that the commonwealth may not suffer damage by the deficiency of administrative competence. An abundance of good counselors, however, can serve as a supplement in meeting this latter requirement.
§ 48Administrators of this universal association are of two kinds: the ephors and the supreme magistrate.24 Ephors are the representatives of the commonwealth or universal association to whom, by the consent of the people associated in a political body, the supreme responsibility has been entrusted for employing its power and right in constituting the supreme magistrate and in assisting him with aid and counsel in the activities of the associated body. They also employ its power and right in restraining and impeding his freedom in undertakings that are wicked and ruinous to the commonwealth, in containing him within the limits of his office, and finally in fully providing and caring for the commonwealth that it not suffer anything detrimental by the supreme magistrate’s private attachments, hatreds, deeds, negligence, or inactivity.25
§ 49These ephors, by reason of their excellence and the office entrusted to them, are called by others patricians, elders, princes, estates, first citizens of the realm, officials of the realm, protectors of the covenant entered into between the supreme magistrate and the people, custodians and defenders of justice and law (jus) to which they subject the supreme magistrate and compel him to obey, censors of the supreme magistrate, inspectors, counselors of the realm, censors of royal honor, and brothers of the supreme magistrate.
§ 50From these things it is apparent that ephors, as the critical supporters and upholders of the universal society or realm, are the means by which it is sustained and conserved during times of interregnum and peril, or when the magistrate is incapable of exercising imperium, or when he abuses his power, as Botero says.26 They do this in order that the commonwealth may not become exposed to dangers, revolutions, tumults, seditions, and treacheries, or occupied by enemies. § 51For the ephors establish the head of the political body, and subject the king or supreme magistrate to law (lex) and justice. They establish the law, or God, as lord and emperor when the king rejects and throws off the yoke and imperium of law and of God, and ceasing as a minister of God, makes himself an instrument of the devil. These ephors, together with the supreme magistrate, are said to carry the weight and burden of the people.27
§ 52In the Golden Bull of Emperor Charles IV the electors, who are the general ephors of the German imperium and realm, are called the bases and pillars of the German imperium, and a part of the body of Caesar. … § 53Other realms also recognize such ephors, and have been more enduring and fortunate for that reason. Among them are the Persian, Greek, Roman, French, British, Danish, and Polish imperia.
§ 54It is the nature of polities that they degenerate easily, nay, that they are even transformed in nature and pass from one type to another, unless custodians are appointed in them by whom their administrators and kings are curbed and held within limits, and by whom the petulance, license, insolence, luxury, and pride of kings are restrained. Whence polities have often been freed from their greatest dangers and disorders by these ephors and orders. § 55For the ephors either abolish or overcome the wicked actions or tyranny of the supreme magistrate. They also compensate for his sloth by their own vigilance and diligence, and fully provide and make sure that the commonwealth does not suffer anything to its detriment by the actions of the king. Unless the ephors have done all this, they themselves are held liable and are rightly said to be betrayers of the commonwealth, especially when they secretly conspire or connive in the wicked and impious actions of the king.28
The ephors, by the communication of their strength, abilities, labors and counsels, make the king strong and wise. They defend him against all perils and difficulties, and conserve the healthy, well-ordered, and well-guarded condition of the commonwealth. If the prince engages in dissensions and hostilities against them, from whom can he expect aid, counsel, and defense? And furthermore, how can an association and polity exist in which private persons oppose themselves to these orders, and reject their curators and defenders? § 56For the people has committed itself to these ephors for safety, and transferred all its actions to them, so that what the ephors do is understood to be the action of the entire people. The people does this because of utility and necessity. For it would be most difficult, as Diego Covarruvias says,29 to require individual votes of all citizens and parts of a commonwealth. For this reason it is agreed that the multitude of the plebs so conducts its public transactions through its optimates that these transactions are accomplished safely and without tumults or seditions in the commonwealth. The votes, therefore, of these optimates are determined according to the same law by which the consensus of all citizens, which they represent, is determined. And therefore it is rightly said that “inhabitants are understood to decide what these persons decide to whom the supreme responsibility of the public weal has been entrusted,” 30 and that what they do through them is regarded as if it had been done by them all and to pertain to all.31
§ 57For this reason, Covarruvias says that the seven princes of the Germans, upon whom has been conferred the responsibility for the election of the emperor of the Christian world, jointly represent the people itself and the Christian community that is governed by this emperor. They employ its delegated power, and act in its place in this election. Whence it happens, he says, that the election of the emperor belongs to the seven electors as a collegium, not as individuals. … 32
§ 59These ephors are elected and constituted by the consent of the entire people. This consent is given by tribes, by centurial or curial divisions, by individuals, or by lot, according to the nature and custom of each realm. In other words, ephors are constituted by the votes of the entire people collected through the centuries, tribes, or collegia in which the people has been distributed, or, as I say, through the votes and divisions of individuals, or by lot. … Sometimes even the prince, supreme magistrate, or optimates have the power of electing an ephor, or of substituting another in place of one who has died. They do this by the favor and concession of the people.33 The nomination and establishment of an ephor is correctly considered to be among the royal functions when the administration of this function has been conceded to the prince by the people or universal association.
§ 60Those persons should be elected ephors who have great might and wealth, because it is in their interest that the commonwealth be healthy, and they will act as custodians of the public welfare with greater love, concern, and care. A few should be elected from the many. For nothing is more useful in avoiding civil wars and factions of seditious men than to take away from the multitude the creation of magistrates and princes, and to impart it to a very few.
§ 61These elected ephors pledge themselves to care for the utility of the realm, commonwealth, or universal association, and to perform faithfully and diligently the functions of the office entrusted to them.… § 62The collegium of ephors proceeds with all things according to the regular procedure of office, and decides these things through majority vote. And therefore the election of the magistrate pertains to it as a collegium, not as individuals. The greater and more powerful part of the people prevails in electing the king. By this means the collegium, not individual members of the collegium, represents the universal association or polity. This collegium has greater power and authority than the supreme magistrate, as all the sounder political theorists, jurists, and theologians teach.
§ 63The duties of these ephors are principally contained under five headings. The first duty is that they constitute the general and supreme magistrate. The second is that they contain him within the limits and bounds of his office, and serve as custodians, defenders, and vindicators of liberty and other rights that the people has not transferred to the supreme magistrate, but reserved to itself. The third is that in time of interregnum, or of an incapacitated administration of the commonwealth, the ephors become a trustee for the supreme magistrate and undertake the administration of the commonwealth until another supreme magistrate is elected. The fourth is that they remove a tyrannical supreme magistrate. The fifth is that they defend the supreme magistrate and his rights. Each and all of these duties are considered to be entrusted to the ephors for execution, who are not able to fulfill their office except by them.
§ 64The first duty of the ephors is to constitute the supreme magistrate and rector of the universal association. For this task the ephors have received public power and authority from the united people of the universal association that they may elect such a rector and administrator in its name. This matter is discussed more filly in the next chapter.
§ 65The second duty of the ephors is that they contain the supreme magistrate and general administrator that they have constituted within the prescribed and accepted limits of his universal administration. They do this in order that the commonwealth or universal association may not suffer anything detrimental, and that its rights and even those of the king or supreme magistrate, are not violated or diminished, but may always remain unharmed, well ordered, and well protected. Peter Heige says that for this reason requests for the alleviation of oppressions, and complaints concerning violation of the imperial rights (jus imperii), are frequently brought to the ephors.34 Nothing is as apt for conserving the imperial right (jus imperii)35 as constraint of power brought about by others, by which such power is contained within its boundaries. For great power cannot contain itself within boundaries without some coercion and constraint entrusted to others.
§ 66For this purpose the ephors have the power of helping the general and supreme magistrate by counsel and aid, and of admonishing and correcting him when he violates the Decalogue of divine law, or the sovereign rights and laws of the realm. Therefore, they have received the right of the sword (jus gladii) for the sake of discharging this required responsibility. … 36
§ 68Whence it is said to be the duty of the ephors to oppose unjust decrees of the supreme magistrate, to mitigate them by their counsels, and to impede them when they are contrary to the common welfare and laws of the universal association. Without the ephors’ approval, an enactment or general decree of the supreme magistrate is not valid. So great is the authority and power of these ephors in the French realm that the official letters of the king have no authority unless they are countersigned by the secretary of the realm, nor his rescripts unless they are signed and sealed by the chancellor of the realm. Other matters concerning the realm take effect only when the ephors or optimates of the realm have been consulted and approve. § 69Whence it is evident that Jean Bodin greatly errs in attributing absolute and all-encompassing power to the king of France, and in hardly recognizing the optimates.37 He thinks that when optimates have power, the sovereignty and power of the king are either destroyed or shared with colleagues. Peter Heige calls attention to this error.38 Indeed, jurists state that a prince who harms his subjects, and who does not maintain them inviolate, is not maintained by his contract with them.39
Even should the king or emperor concede kingly functions to dukes and counts of the imperium, or to the vassals and optimates of the realm, imperial superiority and pre-eminence are understood to be reserved to him. § 70Whence it is that such optimates can by no means be considered colleagues of the king, or of equal power with him.40 For only special and restricted power and administration have been given to these optimates. Indeed, the king or supreme magistrate has general power, sovereignty, and pre-eminence over individual optimates, and everything else depends upon his power and administration. However great may be the imperium that is assigned to another, it is always less than what the conceder has reserved to himself, as is the common judgment of the jurists. § 71The supreme ruler cannot constitute an equal to himself.41 The whole has greater power than one man, and whatever anyone has more than other men, he has received it from the whole. Nor can the power of the king be said to be diminished because ephors and optimates exercise some power, as the hand is not weaker because it has been divided into fingers, but is more agile in action. § 72So power is more useful when deployed among a large number, and the affairs of the commonwealth are more readily expedited when communicated among many.
§ 73Moreover, these ephors as a whole are superior to the supreme magistrate to the extent that, representing the people, they collectively do something in its name; individually and separately, however, they are inferiors of this magistrate. § 74The supreme prince is bound by oath to the commonwealth as an officer of it, and is less than the entire commonwealth or realm itself. Julius Caesar bears witness that the ruling arrangements of the kings of France in his time were such that the people when rightly convoked had no less authority over the king than the king had over the people.42 So the synod is superior to its bishop, the council to a pope, the chapter to its agent, and the community (universitas) to its syndic. § 75To these ephors, rather than to the supreme magistrate, the supreme power of the commonwealth has first been entrusted by the people. Therefore, because the power was first conferred upon such ephors, it could not afterwards be given by the people to any magistrate. …
§ 83We see in the power and authority conceded to these few ephors for defending the rights of the people or universal association that the people has not transferred these rights to the supreme magistrate, but has reserved them to itself. For the universal association entrusted to its ephors the care and defense of these rights against all violators, disturbers, and plunderers, even against the supreme magistrate himself. The Dutch Wars of Independence offer examples of this care and defense by ephors during forty years of conflict against the King of Spain. § 84Whence the office of these ephors is not only to judge whether the supreme magistrate has performed his responsibility or not, but also to resist and impede the tyranny of a supreme magistrate who abuses the rights of sovereignty, and violates or wishes to take away the authority (jus) of the body of the commonwealth. So the theologians and jurists assert.43 “For we have no fellowship with a tyrant, but only the greatest parting of ways. Nor is it contrary to nature to depose [ … ] a man whom it is morally right to destroy.44 The Digest says that he has not committed a crime who has killed a tyrant. … 45§ 85Ephors resisting the tyranny of a supreme magistrate who misuses the rights of sovereignty, or endeavors to plunder or deprive a universal association of its authority, are not thereby said to abandon the communion of the realm and the rights thereof, but rather to condemn their abuse and to avoid approval and communication of the sins of the supreme magistrate. …
§ 86The third duty of these optimates is to constitute themselves guardians, trustees, and administrators of the realm upon the supreme magistrate’s captivity, death, madness, imbecility, minority, prodigality, or other disorder and impediment rendering him incapable or harmful in administration.46 So Hotman demonstrates from historical materials that in France trustees were appointed by the estates of the realm for kings who were mad, underage, or in any other manner incapacitated for governing the realm.47 Many examples of this are mustered by Froissart.48 René Choppin says that today in France a regent is appointed by the king or estates of the realm for a widow and mother of the royal ward, which regency is ended when the royal ward has attained the age of fourteen.49 But in my judgment this arrangement, which stems from the Salic law barring a female from the administration of the realm, is unfortunate. … Such a trustee is assigned from the ephors (1) when the king is unable to defend the realm, (2) when he is negligent, (3) when he is incorrigibly profligate, (4) when he is unable to administer justice or maintain peace, (5) when he is out of his mind, and (6) when he is unfit in any other manner whatever.
§ 87It is part of this duty that in time of interregnum these same ephors are the rectors and administrators of the realm and universal association. They have the right of administering and of acting in place of the supreme rector and general magistrate until a new one shall have been elected and constituted. So in German polity when a Caesar dies and there is interregnum, the power of administering the imperium is assigned to two of the seven imperial electors—namely, to the electors of the Palatinate and of Saxony—who act in place of the emperor in certain of his functions, as the Golden Bull of Emperor Charles IV holds.50 In other polities these functions are entrusted for the most part to all the ephors, or to the principal one among them. …
§ 88The fourth duty of the optimates is to resist a supreme magistrate who abuses the rights of sovereignty, and to discharge and remove him when he scorns and violates the rights and laws of the realm, and practices tyranny. When, how, and with what considerations this ought to be done, we will discuss later.51
§ 89The fifth duty of the ephors consists in the defense of the supreme magistrate and his rights against the ambitions, conspiracies, and plots of subjects, against the pride of nobles, the factions and seditions of the mighty, against those who act improperly towards the supreme magistrate’s royal power, weakening or impeding it, depriving him of it, or inflicting force and violence upon him. …
§ 90This right that we have said the ephors have as ephors in the administration of the whole realm differs greatly from the right they have as dukes, princes, and counts in the administration of particular provinces and regions. § 91The former is general, the latter special and restricted. It is to be observed that the duty of the ephors is to take care that the supreme magistrate not degenerate by doing or omitting something contrary to his office. So also the duty of the supreme magistrate is to take care that none of the ephors misuses his limited imperium to the ruin of his subjects or the realm. This mutual watchfulness, censure, and correction between the king and the estates or ephors keeps the condition of the realm sound, in good repair, and well protected, and frees the realm from all dangers, evils and inconveniences. …
§ 92William Barclay attempts to deprive the ephors and the realm of this right that we have said is appropriate to the ephors over against the supreme magistrate.52 He considers this right to be entirely yielded and transferred, nay, even alienated, by the people to the king. I will repeat his arguments, and refute them in a few words, before I turn to a discussion of types of ephors. The power of a guardian or trustee, he says, is greater than that of a ward or minor. Therefore, the power of the king, who is the trustee of a commonwealth, is greater than that of the ward or of the ephors representing the people. Against this I reply according to the rule that greater is the authority and power of the proprietor who constitutes a trustee for his things and affairs than of the constituted trustee. Therefore, greater is the authority and power of the ephors and the people who constitute the king than of the constituted king. This is most true. Even if against this rule a guardian or trustee has greater authority and power than the ward or minor, this happens because of a defect in the volition and judgment of the ward, who in this period of his life cannot have a proper and adequate volition. However, as soon as he reaches a proper age, he assumes and maintains this authority and power, just as any proprietor maintains the direction of his own things.
Thus the guardian bears the person of the ward, and integrates it in those actions of life pertaining to the administration of the ward’s person and things. In considering and examining the nature of care, guardianship, and any other administration for another, we are compelled to acknowledge that these types of administration manifest a certain service and ministry, which are exhibited and performed by such administrators for wards needing their works, aid, and counsel. Accordingly, such administrators are what they are by reason of the wards, minors, and others whose affairs they administer; wards, minors, and others are not what they are by reason of their administrators.
Moreover, in searching out the source and cause of administration, we discover that they proceed from the commission of the proprietor. The person who commissions or enjoins another with the oversight of his things resembles one who summons or approves; the person who undertakes such administration resembles one who obeys, serves, and performs his duty toward another. I ask precisely whose authority and power is greater, the person who commissions and enjoins, or the person who is commissioned and who ministers and undertakes the administration?
§ 93Barclay, however, says that those who constitute others under themselves are known to be greater and more powerful than the ones constituted. So Potiphar in constituting Joseph, Nebuchadnezzar in setting up Daniel, and Darius in establishing prefects under himself are each rightly called greater in authority and power than those they constituted.53 Doubtless, he continues, the people constitutes a king above itself, not under itself. “I will constitute a king over me.” 54 “We will have a king over us.” 55 “But constitute a king over us.” 56 “You shall appoint a king over Israel.” 57 Whence to be over (praeesse) and to be subjected (subjici), Barclay says are opposites that cannot be attributed to the same king at the same time in the same relationship and with reference to the same interpretation, which is the nature and true meaning of opposites.
Barclay presses this argument vigorously. But he does so wrongly. For the king is constituted over affairs that belong to another, namely, over the affairs of the people and the universal association, the administration, direction, government, and care of which have been granted to him. He certainly is not constituted over the proprietary right (jus proprietatis) in these affairs. An example is that of a guardian or trustee who is constituted over the affairs of his ward or minor, or of a servant, minister, or overseer whom the proprietor constitutes over his affairs, and who nevertheless does not for this reason have greater authority and power than the proprietor who does the constituting. So the people or universal association constitutes the king over its affairs as director, governor, and trustee, but notwithstanding under itself. This is to say that the people has committed to the king, under definite conditions and restrictions, power and authority to rule it, and has retained to itself, under definite conditions, power and authority over a degenerate king. § 94This direction and administration of the king is not plenary, absolute, and unrestricted to the detriment and ruin of subjects, but is limited and circumscribed for their welfare by definite laws. When a king, rector, or governor oversteps these laws, he can no longer be said to be constituted over the affairs of the people, nor can the subjects be said to be under (subesse) him. The subjects individually are ordinarily under the king; collectively they are above the king, who administers the affairs not of individuals, but of the whole body. He who administers tyrannically does not so much care for and direct as destroy. Therefore, the king is over and the king is subjected.
He is over individuals in order to administer rightly to which extent he is the executor, preserver, and minister of law. Properly speaking, therefore, law is thus over everyone. It is the superior above all, and each and every man recognizes it as the superior. § 95The king who governs the commonwealth according to law is over and superior to the commonwealth so far as he governs by the rule of law (praescriptum legis) presiding as the superior. Therefore, if he governs against the rule of law, he becomes punishable by the law, and ceases to be superior. In this unfortunate event, he begins to be under the executors of law. Whence it happens that when he exercises tyranny, he is under the united body. When he abuses his power, he ceases to be king and a public person, and becomes a private person. If in any way he proceeds and acts notoriously or wickedly, any one may resist him, as we have said above.58
§ 96Furthermore, Barclay says an equal cannot have imperium over an equal. Therefore, a magistrate is not bound by the decrees of his predecessors. Indeed, I say that God, the law of nature and of nations, and the ephors of the realm are all greater than the king, and hold imperium over him. In addition, the obligation that the prince takes upon himself at the time of his initiation binds him. And he cannot be said to be equal who was not a prince when his predecessor was living. … 59
§ 98It is not absurd or contrary to nature that a king as the greater is subjected even to an inferior. For he who is greater or equal to another can be subjected to the jurisdiction of the other. Litigating parties can thus submit themselves to the decision of inferiors,60 and inferiors can judge in the case of superiors.61 So Caesar has the elector of the Palatinate as judge in cases that others bring against him, as the Golden Bull of Charles IV teaches. The king of France is under the judgment of the Parliament of Paris, and the princes of the German imperium are under the judgments of other princes, of counts, or even of their counselors.62 Bartolus asserts that a king also can be subjected to someone less than himself or to his equal.63 Therefore, these persons— Caesar, king, and prince—are over (praeesse) in one relationship and are under (subesse) in another, but not over and under in the same relationship; they are, nevertheless, over and under at the same time and with reference to the same interpretation. § 99The king is over and rules in those things for which he receives the power of ruling and governing, not in those things that have been reserved to the power and judgment of the ephors. He is over when he governs and administers lawfully, justly, and piously; that is, he ceases to be the administrator when he does not care what happens, but loses, squanders, and destroys, and ceases to be a living law, just as a pastor ceases to be a pastor who flays, divides, and loses his sheep.
Barclay continues by developing his argument from examples. Thus he says cardinals constitute a pope above them, priests a bishop above them, and monks an abbot above them. Whence the former are inferior in power and authority, and the latter are superior. The former are devoid of the imperium and power that the latter have. § 100But I say that such persons—the pope, bishop, abbot, or anyone else—can be removed for just reasons by those who constituted them, and can be deprived of their power. For what if such a pope, bishop, or abbot should become a heretic, or in any manner become unfit or untrustworthy in office? Canonical laws (jura canonica) pronounce such persons to be restrained from the authority and administration of the office entrusted to them.64 And often such persons have been deprived of their office, as history bears witness and practical experience teaches. § 101For who, to the detriment of the church and to the damage and loss of man’s salvation, would long endure such unfit men, heretics, schismatics, sorcerers, incapacitated persons, those who live a shameful life and provide not at all for the functions of their office, or those who do not tend their sheep but flay them? If they lose their mind or develop another disorder of soul or body, so that henceforth they become altogether unfit or incapacitated, will not the church be committed to the government of other ministers? Or does the church so fall into their power, care, and protection that while they are living its government never can be committed to another? Or in emergencies is the order, authority, and power of one man—of a pope, bishop, or abbot—greater and stronger than that of the church, the cardinals, or the monks? Or is the power of one greater than the power of many? No one will maintain this. Or in these emergencies is the right of one pope, bishop, or abbot greater, stronger, and in better condition than that of all the cardinals and monks of the entire church? Nor will anyone affirm this. For whatever the right, power, and authority such ecclesiastical overseers have, it is not their property, nor do they derive it from themselves. Rather they have received it from the church, the collegium of cardinals, and the chapter of monks. Those who die or lay aside their office resign this right, power, and authority into the hands of the church, collegium, or chapter by which they were constituted. They restore this right to its owners, so that these overseers are considered to be nothing more than usufructuaries of it, and the collegia indeed to be its proprietors. § 102Whence it is that the right of these overseers is temporal. On the other hand, the right of the collegia is permanent and immortal to the extent that these collegia, because of their constant succession of persons in place of those who depart, are considered to be immortal.
When we consider the office and administration of kings, we find that their nature and constitution are not unlike those of ecclesiastical overseers. § 103The right of a king consists in the faithful and diligent care and administration of the commonwealth entrusted to him by the people. For this reason the people transfers to him as much authority and power as it judges necessary. By the communication, sharing, and contribution of individual persons from the people, the king becomes rich and powerful. By their counsel he becomes wise. By the aid of his subjects he excels in strength, vigor, and might. If the people denies these to the king, he again becomes weak, poor, needy, and a private person. The king holds, uses, and enjoys these riches—and this might, wisdom, and authority—as a usufructuary. When the king dies, or is denied the regal throne by any legitimate means, these rights of the king, as we have said, return to the people as to their proprietor. The people then reassigns them as it thinks wise for the good of the commonwealth. § 104Therefore, the right of the king is one thing, and the right of the people is another. The former is temporal and personal; the latter is permanent. The former is the lesser; the latter is the greater. The former is a precarium given by contract to the commissioned king, and undertaken by him; the latter is an incommunicable property.
§ 105Moreover, Barclay says that as the husband who is constituted over his wife is her superior, so the king is superior to the commonwealth and realm. But I say that the superiority and power the husband has over his wife he derives from the marriage. And this is only for a time and with a condition, namely, that it lasts as long as the marriage endures, that is, as long as the marriage is not dissolved by adultery, desertion, or death. When the marriage is dissolved, every marital power he exercises over his wife is ended. Of equal seriousness with desertion is the intolerable cruelty of a husband that makes it impossible to live with him. Because of incurable cruelty, and its hazard to life and health, theologians concede a dissolution of marriage, and defend divorce by the authority of sacred scripture.65 Is there not equal reason for conceding divorce between a king and a commonwealth because of the intolerable and incurable tyranny of a king by which all honest cohabitation and association with him are destroyed? No bond is considered to be stricter than that of matrimony, which is ordained by divine authority to be indissoluble. However, for the previously mentioned causes it is dissolved. Cannot the bond between magistrate and subjects likewise be dissolved for equally serious reasons?
§ 106All power is limited by definite boundaries and laws. No power is absolute, infinite, unbridled, arbitrary, and lawless. Every power is bound to laws, right, and equity. Likewise, every civil power that is constituted by legitimate means can be terminated and abolished.
Barclay is likewise wrong when he says that all functions of the commonwealth are entrusted to the king.66 For the function of electing, constituting, and defending a king, the function of resisting tyranny, and many other functions that I have listed in this chapter as entrusted to the ephors cannot be committed to the king.
Thus far we have spoken of the office of the ephors, and we have refuted the things that have been alleged against their power by Barclay. We will now speak of the types of ephors. § 107Ephors are permanent (rendered hereditary by the consent of the universal association), or temporal. Permanent ephors have their responsibility so assigned to them that they may even transfer it to their heirs. Temporary ephors, on the other hand, perform this office for a prescribed time only, after which they lay it aside. …
§ 108Such ephors and estates, or orders of the realm, are also of two kinds. Some are ecclesiastical, and others are secular. Ecclesiastical ephors are those who have been constituted from among ecclesiastical persons, and bear the responsibility for ecclesiastical things. § 109Secular ephors are those who have the knowledge and care of public things. These latter are, in turn, either nobles or commoners. Nobles are chosen from the order of the nobility; commoners are selected from the remaining persons of the villages, towns, and cities of the realm.
All these ephors and orders of the realm are distributed among two species. Some are general, and others special. § 110General ephors are those to whom is entrusted the guardianship, care, and inspection of the whole realm and of all its provinces. Such are imperial senators, counselors, syndics, chancellors of the realm, and so forth.
Such general optimates and ephors in the Israeli realm were the seventy elders. “And the Lord said to Moses, ‘Gather for me seventy men of the elders of Israel, whom you know to be the elders of the people and officers over them; and bring them to the tent of meeting, and let them take their stand there with you. And I will come down and talk with you there; and I will take some of the spirit that is upon you and put it upon them; and they shall bear the burden of the people with you, that you may not bear it yourself alone.’ ” 67
In the Roman imperium there first were in the democracy the tribunes of the people who checked the consular power so that the consuls might not abuse the imperium, nor become accustomed to excessive boldness or savagery. Later in the Roman monarchy the general ephors were the senators of Rome, as Xenophon, Aristotle, Plutarch, and others have testified.68
In the German polity such general ephors are the electors, or the seven men of the imperium, of which three are ecclesiastical and four secular. The ecclesiastical are the archbishop of Mainz, who is also the arch-chancellor of the imperium, the archbishop of Cologne, and the archbishop of Treves. The secular ephors are the king of Bohemia, the prince of the Rhenish Palatinate, the duke of Saxony, and the duke of Brandenburg. The Palatinate elector, in accord with the Golden Bull of Emperor Charles IV, is the judge from among them in cases instituted against the emperor. Likewise, he and the Saxon prince are trustees and vicars of the imperium in time of interregnum. The archbishop and elector of Mainz, as the arch-chancellor of the German imperium, has the right of calling together the electoral colleagues in this collegium of electors, of proposing matters to them, and of soliciting their judgments.
Philip Honorius and other historians agree that in the French realm there are three orders; the ecclesiastical order, the nobility, and the commons. … 69 The general optimates of France are the chancellor of France, the French princes born with royal blood from their fathers, the major courtiers, who today are called equestrian counts, marshals, admirals, the keeper of the seal, quaestors, and others accepted by the Parisian senate. … 70
§ 111Special ephors are those that undertake the guardianship and care of a province, region, or certain part of the realm. They recognize the supreme magistrate or commonwealth as their immediate superior, and are inscribed on the roles of the imperium. Such are dukes, princes, margraves, counts, barons, castellans, nobles of the realm, imperial cities (as they are called in Germany), and others that are named according to the province entrusted to them. They recognize the commonwealth or universal association, of which they are ephors, as their immediate superior, as I have said. There may be some dukes, counts, nobles, and cities that are mediately under the supreme magistrate of the commonwealth, but immediately under other princes, dukes, or counts as intermediate magistrates who are themselves ephors, estates, or orders of the commonwealth or realm. But these counts and cities that are subject only mediately to the commonwealth are not estates or orders of the realm.71
§ 112A special ephor has the same right and power in the province entrusted to his care and protection that the supreme magistrate has in the whole realm. He exercises in his territory those things that have been reserved to the emperor under the sign of the imperial crown. … 72
§ 113It is advisable that these general and special orders, and particularly the special ones among them, be bound together by definite procedures and structures, that they depend one upon the other, and that each need the aid and counsel of the other. Each order should also be kept within its own boundaries so that it cannot injure another, and should have definite remedies by which it can be protected against wrongs from another. It should have these remedies so that the ambition of the ecclesiastical order, the insolence of the nobility, and the license of the commons may be restrained, and that injuries of one order to another may be prevented. Whence there arises a certain interdependent and sober plan for governing the commonwealth—so greatly praised by philosophers—that is the preserver of public tranquillity and the bond of human society. …
§ 123If to the contrary in a realm or universal association there are no ephors (who nevertheless in my judgment are most necessary for properly constituting a commonwealth, for reasons I have stated at the beginning of this chapter), then these duties that otherwise have been entrusted to ephors are arranged for by the consent of the entire people, proposed or obtained by tribes, by curial or centurial divisions, or individually, so that no prescription or encroachment contrary to liberty or to the right of the realm (jus regni)73 can be undertaken by the magistrate. § 124And if there are encroachments for a season, they take nothing away from the right of the people, but only add to the wrongs of the king, as Junius Brutus learnedly explains.74 If the people, circumvented by fraud, or constrained by fear and force, has sold itself to be reduced to slavery, it has a proper claim to complete restitution, as Buchanan correctly asserts.75 Indeed, if a people is conquered in war, placed under a yoke, and received into the society of one commonwealth by the victorious people, then it also uses the same right (jus)76 as its conqueror. And if by chance the people has consented to wicked conditions by the constraint of excessive fear, these are to be considered invalid.77 But if these conditions are harsh and yet not repugnant to the natural law (jus naturale), they are to be observed.78
Moreover, by the negligence, perfidy, deceit, fraud, or betrayal of ephors and optimates, or by their conspiracy or collusion with a prince, nothing is taken away from the right of a people, and nothing is added to the license of a tyrant. For it is wicked and absurd to affirm that ephors are able to transfer to a tyrant what they themselves have never possessed, and that they can disperse and alienate these rights of the associated body to the disadvantage of the universal association. They would thereby set themselves in opposition to the fundamental laws of the realm—to which the supreme magistrate swore allegiance—that infuse spirit and soul into the commonwealth and that distinguish and separate the commonwealth from a band of robbers and evil men. Thus they would act from the assumption that the right and ownership of the commonwealth is under the control of the ephors rather than the people. We have already spoken against and refuted this assumption.
The Constituting of the Supreme Magistrate
[36 ] [In the armory, the granary, and the archives.]
[37 ] [Code V, 59, 5, 2.]
[1 ] [laws.]
[2 ] [the principle and practice of administration.]
[3 ] [the principle and practice of ordering something well.]
[4 ]De jure universitatum, I, 3.
[5 ] [laws.]
[6 ] Romans 13:4.
[7 ]See Fernando Vásquez, Illustrium controversiarum, I, 1; I, 42; I, 44. [The following discussion refers to Vásquez and to Diego Covarruvias more than to any other writers. Three books by Covarruvias are employed: Practicatum quaestionium; Regulae peccatum; and Variarum resolutionum. ]
[8 ] Digest I, 2, 2, 9.
[9 ]See John 8:33, where the Jews pride themselves that they have never been slaves of anyone. See also Deuteronomy 1:16; 17:20; I Kings 4:5, 9:22; I Chronicles 13:1 f.; 28:2.
[10 ] Digest L, 17, 32.
[11 ]See I Peter 2:13, where the magistracy is called a human institution that is to be properly obeyed.
[12 ] Deuteronomy 16:18.
[13 ] Deuteronomy 17:14.
[14 ] Deuteronomy 17:15. See also II Samuel 5:3; I Kings 1:34, 40; 6; 12:1 f.
[15 ] Proverbs 8:15.
[16 ] I Peter 2:13 f.
[17 ] Romans 13:1 f.
[18 ] [Petrus Gregorius, De republica, VI, 1, 1. See ]
[19 ]See Lupold of Bebenburg, De jure regni et imperii, I, 6 and 16.
[20 ] [ourselves and the holy realm.]
[21 ] [in our and the holy realm’s behalf.]
[22 ] Psalm 24:1.
[23 ] [I Timothy 6:15].
[24 ] [The remainder of this chapter is devoted to the ephors, and the next two chapters to the commissioning of the supreme magistrate by the ephors. Following thereafter are eighteen chapters devoted to administration by the supreme magistrate, and one concluding chapter on types of rule.]
[25 ] The ephors are mentioned by Althusius even in his major work on law, wherein is assigned to them the responsibility for taking legal action against those who abuse public power, or against tyrants. Dicaeologica, III, 16, 6.]
[26 ]Practical Politics, IV, 3. [Botero, however, does not consider ephors to be an unmixed blessing, as he says in this chapter cited by Althusius. They are good insofar as they provide stability and continuity in a realm during times of emergency; they are bad insofar as they weaken the power of the king and provide a force in being for potential mutiny.]
[27 ] [Althusius refers to the following biblical passage here and at several other points in this discussion of the ephors: “And the Lord said to Moses, ‘Gather for me seventy men of the elders of Israel, whom you know to be the elders of the people and officers over them; and bring them to the meeting tent, and let them take their stand there with you. And I will come down and talk with you there; and I will take some of the spirit which is upon you and put it on them; and they shall bear the burden of the people with you, that you may not bear it yourself alone.’ ” Numbers 11:16 f. R.S.V]
[28 ] Emmanuel Meteren cites examples and arguments from the Belgian polity. A General History of the Netherlands, XIV.
[29 ]Practicarum quaestionum, 1, 4.
[30 ] Digest L, 1, 14.
[31 ] Digest L, 1, 19; L, 17, 160.
[32 ]Variurum resolutionum, III, 1, 4. Lupold of Bebenburg demonstrates the means by which this is best done. See his De jure regni et imperii, I, 6.
[33 ] Moses constituted seventy elders by the mandate of God. Numbers 11:24 f.
[34 ]Quaestiones juris, I, quest. 3, num. 1 f. and 73; I, quest. 4, num. 50.
[35 ] [the imperial right, law, and power; in a more general sense as applying to any association, the right, responsibility, and structure of rule.]
[36 ] [Althusius refers to the following writers for support for this position: Junius Brutus, Defence of Liberty Against Tyrants, quest. 3; Francis Hotman, De antiquo jure regni Gallici, I, 12 f.; Georg Obrecht, De bello, thes. 161; Zachary Ursinus, Dispositiones, III, 44 and ult.; Lambert Daneau, Politices christianae, VI, 2 and 3; Otto Cassman, Doctrinae et vitae politicae, 10; David Parry, Commentarius (Romans 13); Juan de Mariana, The King and His Education, I, 8; Emnmanuel Meteren, A General History of the Netherlands, XIV and XX.]
[37 ] [ The Commonweale, I, 8.]
[38 ]Questiones juris, I, quest. 2, num. 22 f.
[39 ] Henry de Suge, Summa aurea (Decretals I, 33, 12); Nicolaus Tudeschi, Commentaria (Decretals II, 1, 13); Vincent Cabot, Variarum juris, II, 12.
[40 ] [A distinction is implied by Althusius between the optimates as inferior administrators of the realm, and the same optimates as ephors of the realm. In the one role, they are not “colleagues of the king, or of equal power with him”; in the other role, they are collectively “censors of the supreme magistrate,” and superior in power to him.]
[41 ] Henry Rosenthal, De feudis, I, 5, 10.
[42 ]The Gallic War, V and VII. [ See especially V, 11; VII, 14 and 15.]
[43 ] Among the theologians are Zachary Ursinus, Exercitationes theologicae, II, exer. 44; Lambert Daneau, Politices christianae, VI, 3; III, 6; John Calvin, Institutes of the Christian Religion, IV, 20, 24 f.; Peter Martyr Vermigli, Commentarii (Judges 3); David Parry, Commentarius (Romans 13); William Rose, De justa reipublicae christianae auctoritate, 2; Juan de Mariana, The King and His Education, I, 7.
Among the jurists are Francis Hotman, De antiquo jure regni Gallici, I, 2; Francis Zoannet, De tripartitione defensionis, III, num. 28 f. and 95 f.; Fernando Vásquez, Illustrium controversiarum, I, preface, num. 102 f.; Edigio Bossi, De principe et ejus privilegiis, num. 55 f.; Charles Dumoulin, Consuetudines Parisienses, tit. 1, art. 1, glos. 7, num. 9; Tobias Paurmeister, De jurisdictione, I, 21, 19 and 42; Paris de Puteo, De syndicatu, 3, rub. “de excessibus regis”; Prospero Farinacci, De crimine laesae majestatis, quest. 112, num. 24; [Nicolas Barnaud], Dialogi in Gallorum, dial. 2; [Theodore Beza], Concerning the Rights of Rulers; Junius Brutus, Defence of Liberty Against Tyrants.
[44 ] Cicero, Duties, III, 6. [The words omitted by Althusius are “if you can.” ]
[45 ] Digest XI, 7, 35. [This passage from the Digest paraphrased by Althusius does not actually mention a tyrant, but rather anyone who comes forward “to destroy the fatherland.” ]
[46 ]See examples in II Kings 10:5–7; 12; 15:5; I Kings 22:47.
[47 ]De antiquo jure regni Gallici.
[48 ] Chronicles, I, 107 and 171; II, 58 and 60; III, 134; IV, 44. [Froissart probably did not himself divide his four books into chapters. The many manuscripts from which printed editions were later made divided the books variously into chapters, and even rearranged and abridged some materials. Consequently, it is impossible to obtain complete accuracy in chapter citation from the Chronicles unless one knows precisely which of the numerous manuscripts and printed editions was used. Nevertheless, the point Althusius is making would seem to find support from historical incidents reported in the following book and chapter divisions of the English translation by Thomas Johnes: I, 170 and 171; II, 57 and 59; III, 135; IV, 45.]
[49 ]De dominio regis, III, tit. 5.
[50 ] [This edict or constitution was issued in 1356. It fixed the method of holding elections and coronations in the Holy Roman Empire, and assigned duties and privileges therein to specified electors.]
[51 ] Chapter XXXVIII.
[52 ]The Kingdom and the Regal Power, IV, 10; VI.
[53 ] [These examples from the Bible came originally from Junius Brutus, whom Barclay was attempting to refute along with George Buchanan, Jean Boucher, “and other monarchomachs.” The passage in Brutus is the following: “Now seeing that the people choose and establish their kings, it follows that the whole body of the people is above the king; for it is a thing most evident, that he who is established by another, is accounted under him who has established him, and he who receives his authority from another, is less than he from whom he derives his power. Potiphar the Egyptian sets Joseph over all his house; Nebuchadnezzar, Daniel over the province of Babylon; Darius the six score governors over the kingdom. It is commonly said that masters establish their servants, kings their officers. In like manner also, the people establish the king as administrator of the commonwealth.” Defence of Liberty Against Tyrants, quest. 3.
The nature of Barclay’s refutation of Brutus is to observe that “examples of this sort do not sufficiently suit the conclusion. … For the examples plainly demonstrate that you mean this conclusion about those who constitute others under themselves, as Potiphar Joseph, Nebuchadnezzar Daniel, and Darius prefects under himself. But your discussion before was about a king whom a people set up, not indeed under itself, as Pharaoh or Potiphar set up Joseph, and the others that you mention, but plainly above itself and promised that it would obey him. Have you ever learned that it has been handed down to memory that any nation set up a king under itself?” Thus the significance of the four biblical passages that follow, which Barclay first produced and Althusius reproduced. The Kingdom and the Regal Power, IV, 10.]
[54 ] Deuteronomy 17:14.
[55 ] I Samuel 8:19.
[56 ] I Samuel 10:19.
[57 ] I Kings19:16.
[58 ] [This right of resistance receives further definition and limitation in Chapter XXXVIII.]
[59 ] [Althusius neglects to develop this idea at this point, but apparently had in mind his belief that while rulers change and are mortal, the people is immortal. In a similar vein, Junius Brutus wrote that “The commonwealth never dies, although kings be taken out of this life one after another: for as the continual running of the water gives the river a perpetual being, so the alternative rotation of birth and death renders the people immortal.” Defence of Liberty Against Tyrants, quest. 3.]
[60 ] Digest II, 1, 14. [ “It is accepted in our system of justice that if anyone submits himself to the jurisdiction of someone of inferior or equal rank, the latter can administer justice for and against him.” ]
[61 ] Digest V, 8, 6. [ “Indeed, it is said that the son of a family can be the arbiter in a matter relating to his father, and it seems proper to many that he can also be the judge.” ]
[62 ] Matthew Stephani, De jurisdictione, II, pt. 2, num. 3.
[63 ]Commentarii (Code III, 13).
[64 ] Conrad Lancellot, Templum omnium judicum, II.
[65 ] Theodore Beza, De divortiis et repudiis. [No other theologian is mentioned by Althusius in this connection.]
[66 ]The Kingdom and the Regal Power, IV, 25.
[67 ] Numbers 11:16 f. [R.S.V.]
[68 ] [Presumably the testimony of these writers refers to various periods of Roman history, and not merely to the monarchical period. Or was Althusius simply careless at this point in his historical attributions? He also mentions in this connection the sixteenth-century historian Alexander ab Alexandro, Genialium dierum, I, 3; IV 6; V 2; VI, 24.]
[69 ]Thesauri politici, II, apos. 54.
[70 ] [Here follow brief discussion of ephors in England, Poland, Belgium, and ancient Sparta, and even briefer mention of them in Hungary, Sweden, Denmark, Spain, ancient Babylon, and ancient Philistia. The historical sources acknowledged by Althusius are Sir Thomas Smith, De republica Anglorum, II; Martin Cromerus, De republica Polonici, II; Lodovico Guicciardini, Omnium Belgii descriptio; Niels Krag, De republica Lacedaemoniorum; Daniel 3:3 f. and 27; 5; 6; Esther 1; 3; 4; I Samuel 5:8, 11; 6:4, 12.]
[71 ]See Chapter VIII, and Matthew Stephani, De jurisdictione, II, pt. 1, chap. 4.
[72 ] Does Althusius mean “have not been reserved to the emperor”?]
[73 ] [law of the realm.]
[74 ]Defence of Liberty Against Tyrants, quest. 3.
[75 ]The Rights of the Crown in Scotland. [ See also the Roman law titles “De in integrum restitutionibus—Concerning Complete Restitution,” and “Quod metus causa gestum erit—Where an Act Was Performed Because of Fear.” Digest IV, 1 and 2.]
[76 ] [legal order.]
[77 ] The author [Theodore Beza] of Concerning the Right of Rulers, quest. 6. For examples of wicked conditions, see I Samuel 11:2; I Maccabees 1:55 [1:54?].
[78 ]See the example of the Gibeonites. Joshua 9:25–27.