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XIX - Johannes Althusius, Politica [1614]

Edition used:

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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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


XIX

§ 1So much for the ephors of the universal association. We turn now to its supreme magistrate. The supreme magistrate is he who, having been constituted according to the laws (leges) of the universal association for its welfare and utility, administers its rights (jura) and commands compliance with them. § 2Although the rights of the universal association belong to the body of the universal association, or to the members of the realm, by reason of ownership and proprietorship, they also relate to its supreme magistrate to whom they have been entrusted by the body of the commonwealth by reason of administration and exercise. …

§ 4The magistrate is called supreme because he exercises not his own power, but that of another, namely, the supreme power of the realm of which he is the minister. Or he is so called in relation to inferior and intermediate magistrates who are appointed by and depend upon this supreme power, and for whom he prescribes general laws. Whence he is said to have supereminence over all other superiors.1 Moreover, he is called supreme in relation to individuals. But he is not supreme in relation to his subjects collectively, nor to law, to which he is himself subject. …

§ 5Three matters are henceforth to be considered; the constituting, the administration, and the types of the supreme magistrate.2§ 6The constituting of the supreme magistrate is the process by which he assumes the imperium and administration of the realm conferred by the body of the universal association, and by which the members of the realm obligate themselves to obey him. Or it is the process by which the people and the supreme magistrate enter into a covenant concerning certain laws and conditions that set forth the form and manner of imperium and subjection, and faithfully extend and accept oaths from each other to this effect.

§ 7There is no doubt that this covenant, or contractual mandate (contractum mandati) entered into with the supreme magistrate, obligates both of the contracting parties, so much so that it is permitted to neither magistrate nor subjects to revoke or dishonor it. However, in this reciprocal contract between the supreme magistrate as the mandatory, or promiser, and the universal association as the mandator, the obligation of the magistrate comes first, as is customary in a contractual mandate. By it he binds himself to the body of the universal association to administer the realm or commonwealth according to laws prescribed by God, right reason, and the body of the commonwealth.3 According to the nature of a mandate, the obligation of the people, or members of the realm, follows. By it the people in turn binds itself in obedience and compliance to the supreme magistrate who administers the commonwealth according to the prescribed laws.

The supreme magistrate exercises as much authority (jus) as has been explicitly conceded to him by the associated members or bodies of the realm. And what has not been given to him must be considered to have been left under the control of the people or universal association. § 8Such is the nature of the contractual mandate. The less the power of those who rule, the more secure and stable the imperium remains. For power is secure that places a control upon force, that rules willing subjects, and that is circumscribed by laws, so that it does not become haughty and engage in excesses to the ruin of the subjects, nor degenerate into tyranny. … § 9Absolute power, or what is called the plenitude of power, cannot be given to the supreme magistrate. § 10For first, he who employs a plenitude of power breaks through the restraints by which human society has been contained. Secondly, by absolute power justice is destroyed, and when justice is taken away realms become bands of robbers, as Augustine says.4 Thirdly such absolute power regards not the utility and welfare of subjects, but private pleasure. Power, however, is established for the utility of those who are ruled, not of those who rule, and the utility of the people or subjects does not in the least require unlimited power. Adequate provision has been made for them by laws. § 11Finally, absolute power is wicked and prohibited. For we cannot do what can only be done injuriously. Thus even almighty God is said not to be able to do what is evil and contrary to his nature.5 The precepts of natural law (jus naturale) are to “live honorably, injure no one, and render to each his due.” 6 Law is also an obligation by which both prince and subjects are bound. … 7

§ 14The forms and limits of this mandate are the Decalogue, the fundamental laws of the realm, and those conditions prescribed for the supreme magistrate in his election and to which he swears allegiance when elected.

§ 15Wherefore Fernando Vásquez and Lambert Daneau rightly say, and refute those who disagree, that the people is prior in time and more worthy by nature than its magistrate, and has constituted him.8 And so no realm or commonwealth has ever been founded or instituted except by contract entered into one with the other, by covenants agreed upon between subjects and their future prince, and by an established mutual obligation that both should religiously observe. When this obligation is dishonored, the power of the prince loses its strength and is ended. § 16Whence it follows that the people can exist without a magistrate, but a magistrate cannot exist without a people, and that the people creates the magistrate rather than the contrary. § 17Therefore, kings are constituted by the people for the sake of the people, and are its ministers to whom the safety of the commonwealth has been entrusted. The magistrate or prince is mortal and an individual person; the realm or community (universitas) is immortal. § 18Upon the death of the king, the right of the realm returns to the estates and orders of the realm.

There are many precepts, examples, and rational evidences of this constituting a supreme magistrate by such a covenant or contract between the supreme magistrate and the ephors who represent the entire people of the associated bodies. … 9

§ 23This covenant or constitution by which the supreme magistrate is constituted by the ephors with the consent of the associated bodies has two parts. The first is the committing of the realm and its administration to a governor; the second is the promising of obedience and compliance by the people.10§ 24The committing of the realm is the process by which the ephors, in the name of the people or associated body, confer and entrust the administration of the realm to the supreme magistrate.11 This is accomplished by two actions, namely the election of the supreme magistrate, and his inauguration or initiation. …

§ 25The election, which is called ἀ ρ χ α ι ρ ε σ ὶ α by the Greeks, is the process by which the ephors or magnates of the realm choose and designate, according to the laws and customs of the commonwealth, the supreme magistrate of the associated bodies or realm, and—invoking the name of God—offer and entrust to him, under fixed conditions and laws, the care and administration of the realm in accord with the established order of piety and justice. … § 27The estates or ephors of the realm united together exercise this right of electing collectively, not individually, unless certain ones among them hold this right by the common consent of all. … § 29In this election conducted in the name of the associated people as the mandator, certain laws and conditions concerning subjection, and the form and manner of the future imperium, are proposed to the prospective magistrate as the mandatory. If he accepts these laws, and swears to the people to observe them, the election is considered firm and settled. This agreement entered into between magistrate and people is known as a mutually binding obligation. …

§ 30The conditions and laws of subjection, or the form, manner, and limits of the entrusted imperium, are customarily defined in certain articles that are publicly read and proposed by one of the ephors to the magistrate to be elected. Then this ephor asks whether the magistrate is willing to abide by these articles in the administration of the realm, and solemnly binds his assurances by a written oath. …

§ 33But if no laws or conditions have been expressed in the election, and the people has subjected itself to such a magistrate without them, then whatever things are holy, fair, and just, and are contained in the Decalogue, are considered to have been expressed, and the people is considered in the election to have subjected itself to the imperium of the magistrate according to them.12 Indeed, there is no instance in which a people has conferred upon a prince the unrestrained licence to bring about its own ruin.13 For a people when questioned could have doubtlessly responded that it had granted no power to accomplish its own ruin. … 14

§ 35If the people or commonwealth has conferred all its right and imperium upon the supreme magistrate, as it is said in the Digest,15 or yields to him supreme power free from laws and without any reservation, exception, or condition, then the general wording is to be closely interpreted according to the subject matter—to the extent that the subject matter manifestly permits—so that whatever is the nature of imperium or reign, such is to be the interpretation of this general wording. The nature of magistracy and imperium is that they regard the utility of subjects, not the benefit of the one who exercises the imperium, and they administer the commonwealth according to right reason and justice. For, as Augustine says, when justice is taken away, what are realms other than large bands of robbers?16 And so absolute power and the jurisdiction of sinning cannot be given to the supreme magistrate. Therefore, even a concession made with the most general wording is to be interpreted in support of the welfare and utility of the conceding people. For the mind of the conceding people was surely that which restricts and limits the general wording. § 36Indeed, the people in constituting a prince by no means intended to elect a tyrant to the ruin of itself, or to lose the capacity to protect itself. For a prince can easily degenerate into a tyrant or do what is contrary to nature, so that the power of the one may then be greater than the power of the whole. So even in a general mandate or concession, things are not included that anyone would not have conceded in a special mandate, especially those things that tend toward the ruin of the conceder, the destruction of human society, and the violation of divine law.

I add that no one can renounce the right of defense against violence and injury. And the power of correcting an errant king, which the ephors have, has not been transferred to the king and cannot be so transferred. Nor can the supreme right in a commonwealth be transferred, because it is by nature incommunicable, and remains with the body of the universal association. § 37Moreover, there is no power for evil or for inflicting injury. There is only power for good and for giving support, and thus for the utility and welfare of subjects. Therefore, the power that the people has, not a power that the people does not have, is considered to be given by this general wording. … 17

§ 39The laws and conditions by which Charles V swore allegiance when elected emperor are recorded by Jean Sleidan.18

“1. He (Caesar) shall defend the Christian commonwealth, the pope, and the Roman church, of which he shall be the protector.

2. He shall administer law (jus) fairly, and seek peace.

3. He shall not only confirm all the laws (leges) of the imperium, and especially what they call the Golden Bull, but with the counsel of the electors he shall also amplify these laws when there is need to do so.

4. He shall convene a senate chosen from Germans in the imperium, which will oversee the commonwealth.

5. He shall not in the least rescind or diminish the rights, privileges, and dignities of princes and orders of the imperium.

6. He shall permit the electors, when there is need, to convene among themselves and to deliberate concerning the commonwealth; and he shall not place any impediment whatever before them, nor shall he annoy them.

7. He shall abolish leagues of the nobility and of the masses, or societies entered into against princes, and prohibit them by law so that they may not arise later.

8. He shall make no league or covenant with foreign nations concerning things pertaining to the imperium, except with the consent of the seven electors.

9. He shall neither sell nor pledge the properties of the imperium nor impair them in any other manner; and as soon as he can he shall recover those lands that have been occupied by other nations, and those goods that have been removed from the imperium, but without injury to those who by right or privilege depend upon them.

10. If he or any member of his family possesses something not legitimately acquired that belongs to the imperium, he shall restore it when requested to do so by the seven electors.

11. He shall cultivate peace and friendship with neighboring and other kings; and he shall not undertake any war on behalf of the affairs of the imperium, either within or beyond the boundaries of the imperium, without the consent of all orders, and especially of the seven electors.

12. He shall bring no foreign soldier into Germany except with their consent; however, when he or the imperium is assaulted in war, it is permitted to him to do so, as it would be to any defenders.

13. He shall summon no assembly of the imperium, nor demand any tax or tribute, except by the consent of the electors.

14. There shall be no assembly beyond the boundaries of the imperium.

15. He shall not place foreigners in charge of public affairs, but Germans selected from the nobility; and all documents shall be prepared either in Latin or the language of the people.

16. He shall summon no estate to a court of law outside the boundaries of the imperium.

17. Because many things happen at Rome against the agreements entered into with popes in former times, he shall arrange with the pope that there be no injury to the imperial privileges and liberty.

18. He shall form a plan with the electors by which the merchant monopolies so greatly damaging to Germany may be restrained, and he shall carry the plan through to its conclusion.

19. He shall impose no duty or tax upon imported goods unless the electors consent, nor shall he lessen by letters of recommendation the tax of electors who are near the Rhine,

20. If he has reason for action against any order, he shall proceed by law, and he shall apply no force against those who place themselves under the judgment of law; [ … ] 19

21. He shall confer upon no one the goods of the imperium that have been accidentally vacated, but shall restore them to the public patrimony.

22. If he acquires a foreign province with the support of the orders, he shall add it to the imperium; and if he recovers some public property by his own strength and virtue, he shall restore it to the commonwealth.

23. He shall ratify what the electors of the Palatinate and Saxony have performed in their public capacity during the time of interregnum.

24. He shall not scheme to make the dignity of the imperium hereditary and proper to his family, but shall permit the free and unimpaired power of election to the seven electors, according to the law (lex) of Charles IV and the prescript of pontifical law (jus); and if anything shall have been done to the contrary, it shall have no effect.

25. As soon as he shall be able, he shall come to Germany for the inauguration.” …

§ 49In the election of the supreme magistrate, the highest concern must be had for the fundamental law of the realm (lex fundamentalis regni). For under this law the universal association has been constituted in the realm. This law serves as the foundation, so to speak, of the realm and is sustained by the common consent and approval of the members of the realm. By this law all the members of the realm have been brought together under one head and united in one body. It is indeed called the lodestone (columna) of the realm.

This fundamental law is nothing other than certain covenants (pacta) by which many cities and provinces come together and agree to establish and defend one and the same commonwealth by common work, counsel, and aid. When common consent is withdrawn from these covenants and stipulations, the commonwealth ceases to exist, unless these laws are rejected and terminated by common consent, and new ones established, without harm to the commonwealth or impairment to its rights of sovereignty. Lambert Daneau sets forth an important difference between these fundamental laws and the rights of sovereignty.20 A commonwealth or realm can be constituted and continue to endure, he says, without these fundamental laws. But without rights of sovereignty no commonwealth can be established or, if already established, conserved and passed on to posterity. …

§ 70The election of the supreme magistrate is in accord with either of two types. One is entirely free, and the other is restricted to persons of a certain origin from whom the choice is to be made. For rulers are to be elected either from all persons or from men of a certain kind, namely, from the nobility or from a certain family.

§ 71The entirely free election is one that rests upon the free choice of the ephors who do the electing.21§ 72In this unrestricted election, it is allowed to change the earlier polity, or to annul it and to establish another and new one. For the people, or body of the associated communities, retains for itself the free power to establish and change the commonwealth. The people is not obligated to anyone concerning the succession and continuation of imperium and administration, but upon the death of the last supreme magistrate as administrator of the commonwealth, it regains its authority (jus) undiminished, which it can transfer to any other person whatever according to its own preference.22§ 73However, an atheist, an impious or wicked man, or one who is a stranger to true and orthodox religion should not be elected. Nor should a man from an ignoble or servile station in life. Nor should a bastard, for reasons provided by Petrus Gregorius.23 Nor should one who is given to drunkenness, or inclined to vices and crimes. Nor should one who is unappreciative toward a good predecessor. But concerning the election of a woman, see my earlier comments24 as well as those later in this chapter.

There should be a regard for piety and virtue in the election to this indispensable office, however much at other times some men have been elected because of wealth, as historical examples testify,25 others because of force and might, others by plots and stratagems, others by promises made and broken, and still others by lot. Such elections, however, are not without the consent of the people, and they are rightly permitted when neither regard for piety and virtue, nor counsel concerning them, can be exercised.

§ 74The restricted election is one that has been limited by the agreement of the people and realm, or universal association, to persons of a certain origin. By established law, the right to be elected has been obtained for these persons, and it cannot later be withdrawn or transferred to another against their will, without injury and violation of trust. § 75And so in this election a change in the polity once established and accepted by the people is not permitted to the ephors or to the people. The reason is that the people has obligated itself to certain persons, to whom it promised to continue the administration of this polity, and gave its word to them, which it is not later permitted to break. And this obligation passes over into the fundamental law of the commonwealth. The right of succession even attaches itself to the descendants of the first supreme magistrate while still in the loins of their parents, so far as they are not incapable of ruling because of defect or other disabilities. Therefore, they ought not to be rejected and excluded from imperium. … This restricted election, which leads political theorists to refer to a successive realm, is preferred by many to the free election.26 For by this procedure every occasion is cut off for factions and conspiracies, which the ambition to exercise domination often excites, and many perils are averted that would ordinarily happen in a time of interregnum. The occurrence of much confusion and disturbance that accompanies an interregnum is also avoided, and imperium is continued without interruption. When, however, the persons become extinct to whom this election is limited, then this restricted election becomes a free one.

The restricted election, by which they call a realm hereditary or successive, is either of two kinds. It may be limited to a certain nation and the nobles thereof, or to the heirs of the deceased supreme magistrate. § 76In an election restricted to a certain nation, it is permitted to elect a supreme magistrate only from those having their origin within the realm. So among the Jews it was not permitted by the fundamental law of the realm to establish a king unless he came from an Israelite family. For this reason the female Athaliah, a foreign-born queen, was cast down from the imperium.27 So it is established in a fundamental law of the German imperium that no one who is not from the German nation may be elected emperor and caesar.

§ 77An election restricted to the heirs of the deceased magistrate is in turn limited either to any heirs whatever, even foreign ones, or else to his family and blood relatives. … An election of the first kind, namely, one that is limited to testamentary heirs, even foreigners, is servile and pernicious. … § 78An election of the other kind, namely, one that is restricted to the family and offspring, is also twofold. It is either limited to persons of both masculine and feminine sex, or to masculine heirs only. In the former, living masculine agnates of the deceased exclude females who are even closer in degree of relationship. But if no such males are living, females related by blood to the deceased are admitted. Vincent Cabot disagrees.28 He considers it to be general in all realms in which females are able to succeed to the supreme magistracy that women who are descendant from the deceased in a straight line are to be preferred to men related in a lateral line, which he confirms by the opinion of Spaniards. But the previous judgment is approved by Jean Bodin,29 and more nearly agrees with Mosaic law.30 It also has greater regard for the commonwealth because it keeps the government thereof in the family of the deceased, and does not transfer this government to another family.31 Such is the example of the Jewish polity, which is the best of all. … 32

§ 80In the election restricted to male heirs of the same family and clan, which excludes females as ineligible, the closest living males of the same family as that of the deceased are elected to the administration of the realm. § 81So according to the fundamental law of the Jewish polity, kings from the family of David were elected continuously until the fall of Jerusalem under Nebuchadnezzar. … § 83In this election according to hereditary succession carried out in keeping with the fundamental laws of the realm, the first-born (primogenitus) from a legitimate matrimony is preferred, and the others are excluded. However, the first-born should make provision for his brothers that they may be able to maintain themselves decently. …

§ 85This first-born is to be elected even if he is deaf, mute, of a different religion, or in any other manner awkward for ruling. … For once such a law of primogeniture has been established, the people has obligated itself to the supreme magistrate and to his descendants, and has even elected his descendants who are still in the loins of the parent. This promise once made cannot be withdrawn without a violation of trust and justice. … § 87 Wherefore, if a prince of a different religion is called to administer the realm, then the orders will undertake to instruct him in the true and orthodox religion. If this cannot be done, they will require him to grant the exercise of pure religion to the remaining members of the realm, as we see done in the German, Polish, French, English, and Swiss polities. …

§ 90Election by the people is not excluded, however, in these hereditary realms. … The reason is that the person elected receives the realm not from his dead father, but from the universal association. This practice is customarily even more useful and favorable to the magistrate than it is pleasing to the people and worthy of respect to outsiders. For because of it obedience can much less be denied to him. Whence I consider it best that even in this case the people and members of the realm shall have reserved to themselves the election, so that they shall be permitted to choose the one from the many children of the deceased magistrate, or from his entire family, that they have judged best fitted for the administration of the realm. …

§ 92The inauguration of the magistrate, which is also called a coronation, is the process by which he who has been elected by the magnates, after he has executed an oath that he will administer the realm according to the prescribed laws, is publicly confirmed and proclaimed magistrate in the presence of the people and with the invocation of the name of God. Thus he is inducted and put into possession of the realm, with the granting and handing over to him of the insignia and customary symbols by which the administration of the realm is represented. And, with the favorable and joyful acclamation of the people, he is greeted as supreme magistrate. § 93The inauguration, therefore, is a renewal of the preceding election, and a solemn confirmation for stabilizing the authority of the magistrate and for making his person known to each and all. The inauguration, to be sure, does not add anything to the newly elected supreme magistrate. …

§ 98These supreme magistrates bear and represent the person of the entire realm, of all subjects thereof, and of God from whom all power derives. They bear, as it were, the form of divine might, majesty, glory, imperium, clemency, providence, care, protection, and government. For this reason they use in their titles, “We by the grace of God,” and other similar formulas. … § 101Such an elected and inaugurated supreme magistrate does not need the approval and confirmation of the pope. … 33

[1 ] So Joshua was constituted supreme prefect by Pharaoh (Genesis 41:43 f.), Daniel was called supreme among his colleagues (Daniel 2:48; 5:29), and some priests were said to be supreme (Matthew 27:1, 6, 12, 20; Acts 7:1).

[2 ] [Chapters XIX–XX, XXI–XXXVIII, and XXXIX respectively.]

[3 ] “Let him not turn aside from this precept.” Deuteronomy 17:20. “To be instituted for the utility of the realm.” II Samuel 23:3.

[4 ] [ The City of God, IV, 4.]

[5 ] Friedrich Pruckmann, De regalibus, 3, 51; Aymon Cravetta, Consiliorum, I, cons. 241.

[6 ] Digest I, 1, 10, 1.]

[7 ] Digest I, 3, 1; Code I, 14, 4.

[8 ]Illustrium controversiarum, I, preface, num. 108; I, 1; Politices christianae, I, 4. See Genesis 36, where the chiefs are listed last among the descendants of Esau.

[9 ] [Here follows an extended discussion of these precepts, examples, and rational evidences. Although this discussion adds nothing new to what has already been said, it nevertheless illustrates Althusius’ use of theology, history, and philosophy respectively in support of his political theories. Precepts are passages from the Bible setting forth God’s ordination of rulership as arising from the people or as being for the good of the people. (Deuteronomy 16:18; 17:14–20; Romans 13:1, 5.) Examples are alluded to from the histories of Israel, Sparta, Persia, Rome, Germany, France, England, Denmark, Sweden, Spain, Portugal, and Belgium. Rational evidences are, for the most part, the same arguments for rulership that Althusius employed in Chapter I, which arguments draw heavily upon Cicero and Petrus Gregorius.]

[10 ] [Chapters XIX and XX respectively.]

[11 ] A community (universitas) can elect and constitute its own curators and administrators. Digest III, 4, 6, 1; I, 2, 13 and 22; Nicolaus Losaeus, De jure universitatum, I, 3.

[12 ]See Francis Hotman, Franco-gallia, 6, 25; George Buchanan, The Rights of the Crown in Scotland; Fernando Vásquez, Illustrium controversiarum, I, 1; Junius Brutus, Defence of Liberty Against Tyrants, quest. 1–3.

[13 ] Code I, 55, 4.

[14 ] Alberico Gentili unreasonably dissents from this position in De potestate regis absoluta. I have responded to his arguments in Chapter XXXVIII.

[15 ] I, 4. 1.

[16 ] [ The City of God, IV, 4.]

[17 ]See Friedrich Pruckmann, De regalibus, 3; Fernando Vásquez, Illustrium controversiarum, I, 2; I, 3; I, 15; I, 26; I, 43; Marius Salomonius, De principatu, V. The following writers unreasonably dissent: Alberico Gentili, De potestate regis absoluta; Jean Bodin, The Commonweale, I, 8; William Barclay, The Kingdom and the Regal Power, III, 4; IV, 2.

[18 ]De statu religionis et reipublicae, I, ann. 1519. [This reproduction of material from Sleidan is retained in this translation to provide an historical illustration of what Althusius has in mind when he writes about fundamental laws of a realm. This German illustration should be sufficient for the purpose, however, and it therefore seems unnecessary to retain the comparable material that follows on the fundamental laws of France, England, Spain, Sweden, Poland, and Brabant.]

[19 ] [The unacknowledged—and perhaps inadvertent—omission from this law and condition as found in Sleidan reads as follows: “and he shall punish no one without a hearing, but proceed therein by due process of law (jus).” ]

[20 ]Politices christianae, III, 6.

[21 ] You will find examples of this in Petrus Gregorius, De republica, VII, 15; Vincent Cabot, Variarum juris, I, 8 and 10; I Samuel 8; 16; II Samuel 5:3 f.; Judges 11:10 ff.; I Chronicles 29:22–24. The kings of Poland and Denmark are so elected, so far as I have been able to gather from historical writing.

[22 ] Vincent Cabot musters examples of this. Variarum juris, I, 10. But he is in error when he says that if no arrangement has been prescribed, then the king has free disposition concerning the realm, a statement that he himself contradicts at another place. I, 14.

[23 ]De republica, VII, 8.

[24 ]

[25 ] Petrus Gregorius records them. De republica, VII, 13–19.

[26 ] Jean Bodin, The Commonweale, VI, 4; Petrus Gregorius, De republica, VII, 4 f. and 15; Eberartus a Weyhe and Justus Lipsius [no references provided].

[27 ] II Kings 11.

[28 ]Variarum juris, I, 15.

[29 ] [ The Commonweale, IV, 1.]

[30 ] Numbers 27.

[31 ] [Althusius apparently fears that the marriage of a female supreme magistrate, or of a female in the line of succession to the supreme magistracy, may introduce a foreign influence and royal house into the realm.]

[32 ] Deuteronomy 17. [ See especially verse 15.]

[33 ] Lupold of Bebenburg, De jure regni et imperii, I, 8.