The Online Library of Liberty

A project of Liberty Fund, Inc.

• Translator’s Introduction
• Note On the Liberty Fund Edition
• Preface to the First Edition (1603)
• Preface to the Third Edition (1614)
• I: The General Elements of Politics
• Ii-iii: the Family
• Ii
• Iii
• IV: The Collegium
• V-vi: the City
• V
• Vi
• Vii-viii: the Province
• Vii
• Viii
• IX: Political Sovereignty and Ecclesiastical Communication
• X–xvii: Secular Communication
• X
• Xi
• Xii
• Xiii
• Xiv
• Xv
• Xvi
• Xvii
• XVIII: The Ephors and Their Duties
• Xix–xx: the Constituting of the Supreme Magistrate
• Xix
• Xx
• Xxi–xxvii: Political Prudence In the Administration of the Commonwealth
• Xxi
• Xxii
• Xxiii
• Xxiv
• Xxv
• Xxvi
• Xxvii
• XXVIII: Ecclesiastical Administration
• Xxix–xxxvii: Secular Administration
• Xxix
• Xxx
• Xxxi
• Xxxii
• Xxxiii
• Xxxiv
• Xxxv
• Xxxvi
• Xxxvii
• XXXVIII: Tyranny and Its Remedies
• XXXIX: Types of Supreme Magistrate
• Collation of This Translation With the 1614 Edition
• The Writings of Johannes Althusius

XXIX

§ 1We have completed our discussion of the ecclesiastical administration of the magistrate, and turn now to secular or civil administration. Secular administration is the process by which the magistrate rightly and faithfully attends to the civil functions of the second table of the Decalogue. These pertain to the establishment and conservation of good order, proper discipline, and self-sufficiency in the commonwealth, and to the extension of the advantages and aids of this life and the avoidance of disadvantages. …

§ 2In this administration of justice the magistrate should always and regularly observe that moderation is exercised, and that the right of each member of the commonwealth is conserved, neither diminished nor increased to the detriment of another. The imperium of the king ought not to be so enlarged that the liberty of the people is suppressed. Nor should the orders and estates be so amplified that they treat the king with contempt and violate the populace. Nor should popular license be permitted to the extent that it reduces respect for the king or upsets the affairs of the commonwealth.

§ 3The responsibility of the magistrate in this civil administration of the functions of the realm is twofold. It pertains, first, to the general right (jus generale), and concerns the management of the necessary means for conserving justice, peace, tranquillity, and discipline in the commonwealth. It pertains, secondly, to the special right (jus speciale), and concerns the management of the means necessary for procuring advantages for the social life.1 General right, in turn, involves (1) the enactment and execution of useful laws, and the administration of justice, or ν ο μ ο θ ε σ ´ ι α and δ ι κ α ι ο δ ο σ ´ ι α,2 and (2) the endeavor to preserve concord. … 3

§ 4The enactment of law is the process by which the magistrate, with the consent of the optimates and estates of his imperium and realm, legislates what is fair, useful, and necessary to the commonwealth.4 The magistrate shall especially see that the customs, temperament, and ancient rights of the nation are respected, and that new laws are accommodated to them. Moderation is thus to be exercised in writing new laws and edicts, and the wishes of those who must maintain these laws—that is, of the optimates and counselors of the realm—are to be ascertained. In the time of the monarchy, the Roman emperors enacted laws with the counsel of the senate, and in the time of the democracy laws were enacted through the classes and centurial divisions, a proposed law having been made public for seventeen days. So today general laws are produced in councils. It would be a sign of indiscretion and foolish arrogance for one man or a few to presume so much upon themselves that they considered themselves to be able to produce laws sufficiently suitable to a nation without its consent and the united judgments and counsels of many persons.5

§ 5The magistrate should enact law that is equitable and useful. Equity makes law efficacious, august, and inviolable. Utility calls forth and retains an appreciation and respect for law. …

§ 9The magistrate shall interpret the fundamental laws of the realm in keeping with the counsel of the ephors, and shall not abolish, annul, or reject something in them except with the expressed judgment, will, and command of the ephors. Much less shall he change, overthrow, or abolish laws concerning the legitimate worship of God once it has been introduced into the realm. Rather shall he strengthen true religion and its practice, not according to the mandates of men, but the Word of God. Finally he shall uphold and defend the fundamental laws of the realm by force and arms, if necessary, even if he shall thereby be pitted with one part of the realm against another, albeit a majority. …

§ 14Law should be accurately and precisely executed. For law without execution is like a bell without a clapper. It would be as if the magistrate were mute or dead. And commonwealths thrive only so long as good laws, which are the soul of a commonwealth, are respected in them. The magistrate has been constituted for the sake of executing law, and in this sense he is a living law. …

§ 15There are two species of the execution of law: the administration of justice, and censorship.6 The administration of justice consists in rendering to each his due according to corrective or distributive justice. Corrective justice presupposes equality or arithmetic proportion. Distributive justice, on the other hand, observes geometric proportion in its assignment of punishments and rewards. … 7§ 18The magistrate shall apply punishments to evildoers who offend against the first or second table of the Decalogue in order that others who witness them may become apprehensive and be deterred from evildoing by the fear of punishment. Thus the desire and courage to sin are lessened in others. … § 19He shall distribute rewards to the upright who properly deserve them in order that the love and desire for virtue may be stimulated, nourished, and retained among others. When honors and rewards are granted to the unworthy, renown is not esteemed and dies, and there is no stimulus to virtue. But reward is the food, nourishment, and incentive of virtue. The desire to do good and to receive renown is implanted by nature in man, for the sake of which he will attempt the most demanding things. And rivalry in virtue is nourished by the example of honor to another, so that rewards accomplish much more than punishments. …

§ 29The administration of justice is twofold. One part of it takes place between the magistrate and the subjects. The other occurs between one subject and another. The first part holds that the people should give to the magistrate what they owe him, and on the other hand, that the magistrate should render to the people what he owes them. The subjects owe everything to the magistrate that is necessary for the administration of justice, for the defense of the subjects against violence and injury, for the removal of perils and disadvantages to the fatherland, and for the promotion of its benefits. The second part contains those things that pertain to the guardianship of subjects. By removing abuse, circumventing deceit, and punishing evildoers, conflicts are resolved. § 30The magistrate himself ought to judge conflicts and controversies between his subjects, and to appoint other pious and honest men as judges. As far as he is able, he should become acquainted in his own person with these conflicts, and judge them according to the properly acknowledged processes of law. … § 39Other judges should be appointed by the supreme magistrate for less important cases in the administration of justice, and should be given the power and jurisdiction necessary for the fulfillment of their responsibilities. …

§ 49It is useful to make court proceedings public because greater respect is thereby produced for their decisions, and those persons who are in similar situations become apprehensive when instructed by such examples and learn from them not to stir up controversy. Judges also are afraid to render corrupt decisions as long as they know public censure may be brought to bear. … § 56The power of appealing freely to the superior magistrate from these intermediary and inferior judges ought to be granted persons who consider themselves to have been unfairly treated in a judgment against their right. § 57The supreme magistrate should therefore establish a supreme tribunal and consistory for appellate cases. Cases that are said to be wrongly decided are accepted, examined, and ruled upon in this appellate tribunal by a number of judges from the various estates and orders of the realm. From this tribunal there is no power of appeal. This superior tribunal is said to belong not so much to the supreme magistrate as to the entire realm. For in it the king and ephors, or estates and orders of the entire realm, deliver judgments in the name of the realm, or learned and pious men judge in their name. …

[1 ] [General right is discussed in Chapters XXIX–XXXI and special right in Chapters XXXII–XXXVI. The latter refers to provisions for commerce, a monetary system, an official language, special duties and privileges, public security, councils of the realm, and military matters.]

[2 ] [the making of law and the administration of justice.]

[3 ] [Chapters XXIX–XXX and XXXI respectively.]

[4 ] In Psalm 108:9 Judah is called a legislator because of the power entrusted to it of making and administering laws for the realm. [The Tremellius–Junius translation of the Old Testament from the Hebrew into Latin (Frankfort on the Main, 1579) renders the last line of Psalm 108:9 (108:8 in the R.S.V.) as “Judah is my legislator.” ]

[5 ]See Innocent Gentillet, Against Nicholas Machiavell, III, theor. 22; Junius Brutus, Defence of Liberty Against Tyrants, quest. 1 and 3.

[6 ] [Althusius devotes the rest of Chapter XXIX to the administration of justice, and the whole of Chapter XXX to censorship.]

[7 ] [Aristotle, Ethics, 1130^b30–1132^b20.]