Evans Experientialism
 Evans Experientialism
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POLITICA (1614) | ||||
| JOHANNES ALTHUSIUS (1557–1638) In Three Web Pages - Page Three Chapters Nine to Eighteen Johannes Althusius was born in Diedenshausen in Westphalia in 1557. Beyond a record of his birth, little is known about his early life. Upon receiving his doctorate in both civil and ecclesiastical law at Basle in 1586, he accepted a position on the faculty of law at the Reformed Academy at Herborn. The greatest achievement of his Herborn years was the publication of the Politica in 1603. Its success was instrumental in securing for Althusius an offer to become municipal magistrate of Emden in East Friesland, which was among the first cities in Germany to embrace the Reformed articles of faith. Althusius accepted the offer in 1604 and exercised an influence comparable to that of Calvin in Geneva; he guided the city without interruption until his death in 1638. | ||||
| IX Political Sovereignty and Ecclesiastical
Communication [§ 1] Now that we have discussed particular
and minor public associations, we turn to
the universal1 and major public association.
In this association many cities and provinces
obligate themselves to hold, organize, use,
and defend, through their common energies
and expenditures, the right of the realm
(jus regni)2 in the mutual communication
of things and services. [§ 2] For without
these supports, and the right of communication,
a pious and just life cannot be established,
fostered, and preserved in universal social
life.
[§ 3] Whence this mixed society, constituted
partly from private, natural, necessary,
and voluntary societies, partly from public
societies, is called a universal association.
It is a polity in the fullest sense, an imperium,
realm, commonwealth, and people united in
one body by the agreement of many symbiotic
associations and particular bodies, and brought
together under one right. For families, cities,
and provinces existed by nature prior to
realms, and gave birth to them.
Many writers distinguish between a realm
(regnum) and a commonwealth (republica),
relating the former to a monarchical king
and the latter to polyarchical optimates.3
But in my judgment this distinction is not
a good one. [§ 4] For ownership of a realm
belongs to the people, and administration
of it to the king. Thus Cicero, as cited
by Augustine, says “a commonwealth is the
weal of the people, although it may be well
and justly ruled either by a king, by a few
optimates, or by the whole people.” 4 Indeed,
any polity whatever, including a city, can
be called a commonwealth, such as the Athenian,
Spartan, Hebrew, and Roman commonwealths,
of which many have not been without their
kings. …
[§ 5] We will discuss, first, the members
of a realm and, then, its right. The members
of a realm, or of this universal symbiotic
association, are not, I say, individual men,
families, or collegia, as in a private or
a particular public association. Instead,
members are many cities, provinces, and regions
agreeing among themselves on a single body
constituted by mutual union and communication.
Individual persons from these group members
are called natives, inhabitants of the realm,
and sons and daughters of the realm. They
are to be distinguished from foreigners and
strangers, who have no claim upon the right
or the realm. It can be said that individual
citizens, families, and collegia are not
members of a realm just as boards, nails,
and pegs are not considered parts of a ship,
nor rocks, beams, and cement parts of a house.
On the other hand, cities, urban communities,
and provinces are members of a realm, just
as prow, stern, and keel are members of a
ship, and roof, walls, and floor are essential
parts of a house. …
[§ 7] The bond of this body and association
is consensus, together with trust extended
and accepted among the members of the commonwealth.
The bond is, in other words, a tacit or expressed
promise to communicate things, mutual services,
aid, counsel and the same common laws (jura)
to the extent that the utility and necessity
of universal social life in a realm shall
require. Even the reluctant are compelled
to comply with this communication. However,
this does not prevent separate provinces
of the same realm from using different special
laws. Plato rightly said that this trust
is the foundation of human society, while
lack of trust is its plague, and that trust
is the bond of concord among the different
members of a commonwealth. For the promise
of so many different men and orders has as
its purpose that the diverse actions of the
individual parts be referred to the utility
and communion of one commonwealth, and that
inferiors be held together with superiors
by a certain fairness in the law (jus). …
[§ 9] The more populous the association,
the safer and more fortunate it is. Therefore
the depopulation of a city and realm is understood
to be among the more severe punishments.
It is useful and necessary to have an abundance
of citizens both in time of war and in time
of peace. In time of war a large number can
better restrain and hold out against external
force. A small number is more easily and
quickly diminished and ruined by a baneful
misfortune. … In time of peace a large number
of people augments the public treasury by
their taxes, tolls, fines, business, commerce,
and goods. …
[§ 10] On the other hand, a commonwealth
or region overflowing with an excess of people
is not free from disadvantages, and is exposed
to many corruptions. For by such an excess
of men all things are more easily consumed
and exhausted, a great scarcity of things
develops, and poverty occurs. Nor can so
many be ruled easily and well. Nor can concord,
good order, and proper discipline be preserved
as easily among many persons. They overflow
with sycophants, with wealth and corruption,
until wealth is preferred among them to virtue,
bribes to justice, timidity to courage, and
evil to good. Just as iron by its nature
produces rust by which it is gradually corroded,
and just as ripe fruit produces worms by
which it is gradually consumed, so also large,
populous, and mighty imperia 5 manifest many
corruptions by which they are gradually worn
down. Experience testifies that might leads
to over-confidence, over-confidence to folly,
folly to contempt, contempt to the weakening
of authority, and so to the loss of imperium.
Might also leads to wealth, wealth to the
pursuit of sensual pleasures, and so to everything
corrupt. When the might of a commonwealth
grows, fortitude and virtue decline. Thus
the Roman imperium was in its highest state
of authority and dignity under Augustus.
Under Tiberius, however, the pursuit of sensual
pleasures began, and virtue was stilled by
lust. Under Caligula, Claudius, and Nero
virtue was utterly destroyed. For a while,
first under Vespasian and then under Trajan
and Anthony Pius, virtue again came forth,
and with it came imperial grandeur. However,
soon afterwards under Domitian, who followed
Vespasian and Titus, and under Commodus,
who followed Trajan and Anthony Pius, virtue
once more gave way, and with it the imperial
glory.
[§ 11] From these considerations one may
conclude that a commonwealth of medium size
is best and steadiest. Such a commonwealth
can resist external force, and is not dominated
by the corruptions I have discussed. It also
labors less under misguided affections, commotions,
avarice, and ambition. As it is forced to
be suspicious of the might of its neighbors,
so it also is forced to be more cautious.
The Roman commonwealth is an example. When
it was of medium size, it was free from many
corruptions. When it grew to a great size,
however, with greater might and a larger
population, as in the time of Marius, Sulla,
Pompey, and Julius Caesar, it abounded with
corruptions so much that it was thrown into
great calamities. But the Venetian commonwealth,
because it remains of medium size and vigorously
resists willful corruptions by the severity
of its laws, has endured for the longest
time, as one was also able to say of the
city of Sparta.
[§ 12] Such are the members of the realm.
Its right is the means by which the members,
in order to establish good order and the
supplying of provisions throughout the territory
of the realm, are associated and bound to
each other as one people in one body and
under one head.6 [§ 13] This right of the
realm (jus regni) is also called the right
of sovereignty (jus majestatis).7 It is,
in other words, the right of a major state
or power as contrasted with the right that
is attributed to a city or a province. …
[§ 15] What we call this right of the realm
has as its purpose good order, proper discipline,
and the supplying of provisions in the universal
association. Towards these purposes it directs
the actions of each and all of its members,
and prescribes appropriate duties for them.
Therefore, the universal power of ruling
(potestas imperandi universalis) is called
that which recognizes no ally, nor any superior
or equal to itself. And this supreme right
of universal jurisdiction is the form and
substantial essence of sovereignty (majestas)
or, as we have called it, of a major state.
When this right is taken away sovereignty
perishes. …
[§ 16] The people, or the associated members
of the realm, have the power (potestas) of
establishing this right of the realm and
of binding themselves to it. So Vásquez demonstrates
from Bartolus and other authorities.8 And
in this power of disposing, prescribing,
ordaining, administering, and constituting
everything necessary and useful for the universal
association is contained the bond, soul,
and vital spirit of the realm, and its autonomy,
greatness, size, and authority. Without this
power no realm or universal symbiotic life
can exist. [§ 17] Therefore, as long as this
right thrives in the realm and rules the
political body, so long does the realm live
and prosper. But if this right is taken away,
the entire symbiotic life perishes, or becomes
a band of robbers and a gang of evil men,
or disintegrates into many different realms
or provinces.
[§ 18] This right of the realm, or right
of sovereignty, does not belong to individual
members, but to all members joined together
and to the entire associated body of the
realm. For as universal association can be
constituted not by one member, but by all
the members together, so the right is said
to be the property not of individual members,
but of the members jointly. Therefore, “what
is owed to the whole (universitas) is not
owed to individuals, and what the whole owes
individuals do not owe.” 9 Whence it follows
that the use and ownership of this right
belong neither to one person nor to individual
members, but to the members of the realm
jointly. By their common consent, they are
able to establish and set in order matters
pertaining to it. And what they have once
set in order is to be maintained and followed,
unless something else pleases the common
will.10 For as the whole body is related
to the individual citizens, and can rule,
restrain, and direct each member, so the
people rules each citizen.11
[§ 19] This power of the realm (potestas
regni), or of the associated bodies, is always
one power and never many just as one soul
and not many rules in the physical body.
The administrators of this power can be many,
so that individuals can each take on a share
of the function of governing, but not the
plenitude of power. And these individuals
are not themselves in control of the supreme
power. Instead they all jointly acknowledge
such a power in the consent and concord of
the associated bodies. Whence jurists have
declared the rights of sovereignty and of
the realm (jura majestatis et regni) to be
indivisible, incommunicable, and interconnected,
so that whoever holds one holds them all.12
Otherwise two superior entities would be
established in one imperium. But a superior
entity can have no equal or greater superior.
And imperium and obedience cannot be mingled.
These rights can, however, be lawfully delegated,
so that in their administration someone other
than their owner may perform the duties of
a supreme magistrate.
[§ 20] Bodin disagrees with our judgment
by which supreme power is attributed to the
realm or universal association. He says that
the right of sovereignty, which we have called
the right of the realm, is a supreme and
perpetual power limited neither by law (lex)
nor by time.13 I recognize neither of these
two attributes of the right of sovereignty,
in the sense Bodin intends them, as genuine.
For this right of sovereignty is not the
supreme power; neither is it perpetual or
above law. [§ 21] It is not supreme because
all human power acknowledges divine and natural
law (lex divina et naturalis) as superior.
Note the argument of Romans 13: the minister
of God is for your good. If he is the minister
of God, he can do nothing contrary to the
commandment given by his Lord.14 Indeed,
an absolute and supreme power standing above
all laws is called tyrannical. Bartolus says,
“great is Caesar, but greater is the truth.”
15 Augustine says, “when justice is taken
away, what are realms except great bands
of robbers?” 16 On this point, however, not
even Bodin disagrees with us. For he does
not release the power he calls supreme from
the imperium of divine and natural law (jus
divinum et naturale ).17
Our question, therefore, concerns civil law
and right (civilis lex et jus). Should he
who is said to have supreme power subordinate
his imperium and high office to civil law
as well? Bodin says no, and many others agree
with him. In the judgment of these men there
is supreme power above civil law and not
limited by it. This is a judgment I would
not hold. To liberate power from civil law
is to release it to a certain degree from
the bonds of natural and divine law (lex
naturalis et divina). For there is no civil
law, nor can there be any, in which something
of natural and divine immutable equity has
not been mixed. If it departs entirely from
the judgment of natural and divine law (jus
naturale et divinum), it is not to be called
law (lex). It is entirely unworthy of this
name, and can obligate no one against natural
and divine equity. Therefore, if a general
civil law enacted by a prince is fair and
just, who can free him from the obligations
of this very law? On the contrary, it should
be the judgment of the supreme legislator
that whatever we wish men to do to us, we
should do those things to them.18 But insofar
as this civil law departs in certain respects
from natural equity, I will grant that he
who has supreme power, and does not recognize
any superior except God, together with natural
equity and justice, is not bound by this
law, especially in applying punishment to
himself.19
[§ 22] If law (lex), and freedom from law
by a supreme power, are accepted in this
sense, I concede to the judgment of Bodin,
Petrus Gregorius, Cujas, Doneau, Duaren,
and other jurists. But by no means can this
supreme power be attributed to a king or
optimates, as Bodin most ardently endeavors
to defend. Rather it is to be attributed
rightfully only to the body of a universal
association, namely, to a commonwealth or
realm, and as belonging to it. From this
body, after God, every legitimate power flows
to those we call kings or optimates. Therefore,
the king, prince, and optimates recognize
this associated body as their superior, by
which they are constituted, removed, exiled,
and deprived of authority. … [§ 23] For however
great is the power that is conceded to another,
it is always less than the power of the one
who makes the concession, and in it the pre-eminence
and superiority of the conceded is understood
to be reserved. Whence it is shown that the
king does not have a supreme and perpetual
power above the law, and consequently neither
are the rights of sovereignty his own property,
although he may have the administration and
exercise of them by concession from the associated
body. And only so far are the rights of sovereignty
ceded and handed over to another that they
never become his own property.
[§ 24] Bodin defends the opposite position
by distinguishing between the sovereignty
of the realm and of the ruler.20 But if sovereignty
is therefore twofold, of the realm and of
the king, as Bodin says, I ask which is greater
and superior to the other? It cannot be denied
that the greater is that which constitutes
the other and is immortal in its foundation,
and that this is the people. Nor can it be
denied that the lesser is that which appears
as one person, and dies with him. The king
represents the people not the people the
king, as we explain later.21 And greater
is the power and strength of many than of
one. Whence the supreme monarch is required
to give an account of his administration,
is not permitted for his own pleasure to
alienate or diminish the provinces, cities,
or towns of his realm, and can even be deposed.
…
[§ 25] We must now define this supreme power.
We attribute it by right of sovereignty to
the associated political body, which claims
it for itself alone. In our judgment, it
is derived from the purpose and scope of
the universal association, namely, from the
utility and necessity of human social life.
According to this position, therefore, the
nature and character of imperium and power
will be that they regard and care for the
genuine utility and advantage of subjects.
Vásquez demonstrates this when he says that
there is no power for evil, but only for
good, none for doing harm or for ruling in
the interest of pleasure or self-aggrandizement,
but only for considering and supporting the
genuine utility of subjects.22 Whence Augustine
says that to rule is nothing other than to
serve the utility of others, as parents rule
their children, and a man his wife.23 … [§
27] Universal power is called pre-eminent,
primary, and supreme not because it is above
law or absolute, but in respect to particular
and special subordinate power that depends
upon it, arises and flows from it, returns
in time to it, and is furthermore bound to
definite places. Such is the power that is
given to universal administrators, and to
special heads of provinces as their deputies,
delegates, administrators, procurators, and
ministers. All have only the use and exercise
of power for the benefit of others, not the
ownership of it.
[§ 28] This right of the realm (jus regni)
is twofold. It pertains both to the welfare
of the soul and to the care of the body.
Religion, by recognizing and worshiping God,
seeks the welfare of the soul. The care of
this life seeks the welfare of the body.
Prayers are to be poured forth “for kings
and all who are in high positions, that under
them we may lead a peaceful and quiet life
in all piety and respectfulness.” 24 We are
trained “to renounce all impiety and worldly
desires, and to live temperately, justly,
and piously in the present world.” 25 We
should live temperately toward ourselves,
justly toward our neighbor, and piously toward
God. Piety is to be understood according
to the first table of the Decalogue, and
justice according to the second. Polybius
says that the desirable and stable condition
of a commonwealth is one in which holy and
blameless life is lived in private, and justice
and clemency flourish in public.26
[§ 29] Each part of this right of the realm
about which we have spoken consists of universal
symbiotic communion27 and of its administration.
We will first discuss this universal communion,28
and later its administration.29 [§ 30] Universal
symbiotic communion is the process by which
the members of a realm or universal association
communicate everything necessary and useful
to it, and remove and do away with everything
to the contrary. And therefore this right
of the realm pertaining to symbiosis and
communion can be described as living lawfully,
as nourishing life, and as sharing something
in common.
[§ 31] Universal symbiotic communion is both
ecclesiastical and secular. Corresponding
to the former are religion and piety, which
pertain to the welfare and eternal life of
the soul, the entire first table of the Decalogue.
Corresponding to the latter is justice, which
concerns the use of the body and of this
life, and the rendering to each his due,
the second table of the Decalogue. In the
former, everything is to be referred immediately
to the glory of God; in the latter, to the
utility and welfare of the people associated
in one body. [§ 32] These are the two foundations
of every good association. Whenever a turning
away from them has begun, the happiness of
a realm or universal association is diminished.
…
[§ 33] Ecclesiastical communion of the realm30
is the process by which those means that
pertain to the public organizing and conserving
of the kingdom of Christ (regnum Christi)
are established, undertaken, and communicated
according to his will throughout the territory
of this universal association. This is done
to the eternal glory of God and for the welfare
of the realm. [§ 34] Whence the ecclesiastical
and sacerdotal right of sovereignty of the
realm is called the business of Jehovah.
Within the boundaries of the realm, this
right guides the enjoyment of a pious life
by which we acknowledge and worship God in
the present world. …
[§ 35] This sacerdotal or ecclesiastical
right is properly instituted in the territory
of the realm when the same public and uncorrupted
worship of God is established, practiced,
and conserved according to the will of God
in the individual cities and provinces or
members of the realm, and when the general
care of it is expressed by the universal
association. [§ 36] This care is expressed,
first and foremost, by the public introduction,
establishment, and conservation of religion
and uncorrupted worship of God, as they are
approved by sacred writings, in the territory
of the realm, and in all the cities and provinces
thereof. “Seek first the kingdom of God.”
31 “For the fear of the Lord is the beginning
of understanding.” 32 All members, both individually
and collectively, are obligated to the profession
of this religion and divine worship. … [§
37] The true and pure religion and worship
of God are to be established not by a majority
of the citizens, nor by the weight or vote
of men, but by the Word of God alone, according
to their agreement with faith.
[§ 38] Public schools provide for the conserving
of true religion and the passing of it on
to later generations, for informing the life
and customs of citizens, and for acquiring
knowledge of the liberal arts. Schools are
to be opened in the cities and provinces
of the commonwealth in order that professors
and instructors of liberal arts may publicly
teach, that they may distribute prizes and
honors for merit, and that they may confer
upon their scholars the insignia of the master,
the licentiate, and the doctor. In these
schools the seeds of piety and virtue are
adroitly poured into the youth from sacred
writings and the more human liberal arts,
so that good citizens may go forth as pious,
manly, just and temperate persons. … [§ 39]
Moreover, these schools are the custodians
of the keys of science and doctrine, by which
the resolution of all doubt is sought and
the way of salvation is disclosed. Whatever
the quality of rulers and citizens the school
produces, of such is the commonwealth and
church constituted. …
[§ 41] Also pertaining to the conservation
of religion, of divine worship, and of the
church is their defense against all disturbers
and scorners. Whence arises the right and
power of restoring the uncorrupted worship
of God, of expelling from the territory those
alien to uncorrupted religion, and of compelling
the citizens and inhabitants of the realm,
by public ordinances and even by external
force, to worship God. … On the other hand,
the worshipers of the true God are to be
defended and protected in the realm, even
if they are few in number and there are many
who profess another religion. …
[§ 42] Nevertheless, a schism should not
be made, nor a separation from the church
be granted, merely because of some error,
sacramental reason, or other cause, provided
the foundation of the true religion is retained
and other human opinions merely added to
it. … “Welcome the man who is weak in faith.”
33 The Apostle Paul recognized as brothers
those who came close to idolatry, profaned
the supper of the Lord, and erred concerning
the resurrection.34 “If you bite and devour
one another, watch out that you are not in
turn consumed by one another.” 35 Christ
suffered disciples who were weak, sinful,
crude, inexperienced, and erratic.36 The
Gospel collects in its net not only good
fishes, but others also.37 It further advises
that tares not be rooted out from good seeds.38
“In a great house there are vessels of gold
and of clay, and some perform with honor
and others with dishonor.” 39 The church
is likened to a granary in which there are
both grain and chaff,40 to a banquet in which
both good and evil feast together,41 to the
ten virgins,42 and to a sheepfold in which
there are both sheep and goats.43
[§ 43] Moderation should be observed, as
Benedict Aretius says. The problem is to
be handled in one way for authors of schisms
and those who have openly separated themselves,
and in another way for those who have been
misled by a jealous piety and a certain simple
ardor. It is indeed handled very badly when
we demand a decision on all opinions in even
the most minute matters, and, unless this
decision is subscribed to in all particulars,
we give way to thunderbolts, factions, sects,
curses, even to prisons and deaths. For no
mode of thought has ever come forth as so
perfect that the judgment of all learned
men would subscribe to it. Aretius concludes
that if the principal articles of faith are
preserved, nothing should stand in the way
of disagreement on opinions in other Christian
matters.44
[§ 44] To be sure, persons are not to be
suffered who are openly and publicly atheists,
who take action against the magistrate, who
promote unnecessary wars, who support shameful
acts in public, and who deny, break, or call
into doubt the articles necessary for salvation.
[§ 45] It is not permitted that everyone
should be free to enjoy his religion in total
opposition to the Christian faith. For as
God is one, so there is one formula for rightly
worshiping him, which he has set forth for
us, and outside of which it is not possible
to please him. There is no communion of light
with darkness, of Christ with Satan. And
if Jehovah is your God, why do you not follow
him? God wills that violators of orthodox
religion be severely punished. He makes the
magistrate the defender of his cause, and
commends to him the protection and defense
of the pious. … For this kind of liberty
fights with faith and renders it uncertain.
Many faiths, and many diverse churches, introduce
idolatry and impiety. Moreover, diversity
destroys unity. “Whoever is not with me is
against me.” 45 To what extent a magistrate
in good conscience can tolerate men who stray
from true religion in his realm will be discussed
later.46
Endnotes [1] [ universalis: inclusive of all other
associations within a given large area,
and
recognizing no superior to itself sovereign
in its own territory.] [42] Matthew 25:1 f.
X–XVII Secular Communication X [§ 1] Now that we have discussed the ecclesiastical
aspect of symbiotic communion in the universal
association, we turn to its secular counterpart.
Secular and political communion in the universal
realm is the process by which the necessary
and convenient means for carrying on a common
life of justice together are communicated
among the members of the realm. This communion
is the practice of those things that relate
to the use of this life or the public affairs
of the realm. Whence arises the secular right
of sovereignty (jus majestatis), and the
employment of a king. This secular right
of the realm (jus regni), or right of sovereignty,
guides the life of justice organized in universal
symbiosis according to the second table of
the Decalogue. This right trains us how to
live justly in the present world, as the
Apostle says,1 and so involves the practice
of the second table of the Decalogue.
[§ 2] This secular right of sovereignty is
both general and special.2 The general and
secular right prescribes for members of the
association the method and form for living
and acting justly in each and all affairs
of this symbiosis. Therefore, the various
affairs of this universal association are
to be tested by and accommodated to this
right.
We must here consider both the promulgation
and the execution of the general right (jus).3
[§ 3] Promulgation of this right is the process
by which it is publicly announced and accepted
as the rule and norm of all just actions
in universal symbiosis. …
[§ 4] This law and right (lex et jus) is
the rule of things to be done and to be omitted
by members of the realm individually and
collectively, and is prescribed for the conservation
of the life of justice and the universal
association. It is called by Seneca the bond
that holds the commonwealth together, and
a vital spirit that the city breathes, which
if withdrawn leaves the city as nothing in
itself except a burden and a prey.4 This
right is the guiding light of civil life,
the scale of justice, the preserver of liberty,
a bulwark of public peace and discipline,
a refuge for the weak, a bridle for the powerful,
and a norm and straightener of imperium.
It can be called the public command of the
people, as well as the promise and assurance
by the people that they will perform what
is permitted and avoid what is not permitted.
It is also the precept by which political
life is instituted and cultivated according
to a prescribed manner in the realm, and
by which duties to the fellow citizen or
neighbor are performed and things forbidden
are omitted. Whence in Psalms and other places
of sacred scripture we find many times the
notion, “Do good and abstain from evil.”
5 Hence the precepts of the Decalogue are
both affirmative and negative, a commanding
and prohibiting, mandates and interdicts.
[§ 5] Therefore, when we know the things
that are to be vouchsafed by us to our neighbor,
it is easy to determine the things to be
omitted and avoided.
[§ 6] Those that are to be vouchsafed to
our neighbor in this civil and social life—which
rightly are owed to him and are his so that
he possesses them as his own—are, first,
his natural life, including the liberty and
safety of his own body. The opposite of these
are terror, murder, injury, wounds, beatings,
compulsion, slavery, fetters, and coercion.
Secondly, the neighbor possesses his reputation,
good name, honor, and dignity, which are
called the “second self” of man. Opposed
to them are insult, ill repute, and contempt.
And here I also include chastity of body,
the contrary of which is any kind of uncleanness
and fornication. Also pertaining to this
category are the right of family, and the
right of citizenship that belongs to some.
Thirdly, a man has external goods that he
uses and enjoys, opposed to which are the
corruption, damage, and impairing of his
goods in any form, as well as their plundering
or robbery, and any violation of their possession
or artificial impediment to their use.
[§ 7] The laws of the Decalogue prescribe
the duties vouchsafed to our neighbor. By
acting according to them, we may live an
honorable life, not injuring others, and
rendering to each his due.6 Above all, we
vouchsafe and do to our neighbor what we
wish to be done to ourselves.7 Thus we render
to him honor, authority, dignity, preeminence,
and, indeed, the right of family; nor do
we, on the contrary, despise him or hold
him in contempt, the fifth precept of the
Decalogue. His life is to be defended and
conserved, and his body may not be injured,
hurt, struck, or treated in any inhumane
way whatever, nor may the liberty and use
of his body be diminished or taken away,
the sixth precept. His chastity is to be
left intact, free from fornication, and may
not be taken away in any manner whatever,
the seventh precept. His goods and their
possession, use, and ownership are to be
conserved, and they may not be injured, diminished,
or taken away, the eighth precept. His reputation
and good name are to be protected, and they
may not be taken away, injured, or reduced
by insults, lies, or slander, the ninth precept.
And so one may not covet those things that
belong to another, either by deliberation
or by passion, but everything our neighbor
possesses he is to use and enjoy he from
the passion of our concupiscence and perverse
desire.
[§ 8] Other laws (leges) are prescribed for
the inhabitants of the realm both individually
and collectively. By them the moral law (lex
moralis) of the Decalogue is explained, and
adapted to the varying circumstances of place,
time, persons, and thing present within the
commonwealth. So Moses, after the promulgation
of the Decalogue, added many laws by which
the Decalogue was explained and adapted to
Jewish commonwealth.8 Such laws, because
of circumstances, can therefore differ in
certain respects from the moral law, either
by adding something to it or taking something
away from it.9 But they ought not to be at
all contrary to natural law (jus naturale),
or to moral equity.10 As men cannot live
without mutual society, so no society can
be secure or lasting without laws (leges),
as Plato says.11 Aristotle says no commonwealth
can exist where the laws do not exercise
imperium.12 For what God is in the world,
the navigator in a ship, the driver in a
chariot, the director in a chorus, the commander
in an army, so law (lex) is in the city.
Without law, neither house nor city nor commonwealth
nor the world itself can endure. According
to Papinian, “law is a common precept, a
decree of prudent men, a restraint against
crimes committed voluntarily or in ignorance,
and a common obligation of the commonweale.”
13 According to Marcian, “law is the queen
of all things human and divine. It should
also be the watchman of both the good and
the bad, the prince and leader of them, and
accordingly the measure of things just and
unjust, as well as of those living beings
that are civil by nature. It is the preceptress
of what ought to be done, and the restrainer
of what should not be done.” 14 “We are taught
[ … ] by the authority and bidding of laws,”
says Cicero, “to control our passions, to
bridle our every lust, to defend what is
ours, and to keep our minds, eyes, and hands
from whatever belongs to another.” 15 “Through
the law comes knowledge of things to be done
and to be omitted,” 16 and in it is our wisdom.17
[§ 9] The power of interpreting and explaining
law is the means by which, in reference to
those matters that are uncertain, clarification
is provided from the system of law and the
nature of the problem. This is done through
the broad consideration of things, persons,
time, place, and other circumstances. Thus
the established rights (jura)18 are accommodated
to men’s power of comprehension.
[§ 10] The execution of law (lex) pertains
to the preserving of external public discipline.
It is the responsibility (jus) of distributing
what is merited, the responsibility and power
of punishing delinquents and of rewarding
doers of good. From another perspective it
is the administration of justice. …
[§ 11] The power of punishing delinquents
involves the life, body, name, and goods
of evildoers in proportion to the crime and
its circumstances. … It is publicly useful
to the human association to punish delinquents.
First, the delinquent is corrected by the
punishment imposed, and led to greater maturity.
Secondly, the harm done to the injured party
may be repaired by the penalty imposed, so
that the injured party need not become carried
away in the vindication of the injury. Whence
penalties are called reins and whips for
the wicked, preservers and defenders of the
upright. Thirdly a penalty is also imposed
as a warning to others, that they may be
deterred from transgressions by the fear
of punishment such an example evokes. Thereby
social life is not thrown into disorder,
and other persons are not infected by crime.
Fear of becoming delinquent leads to the
control of inordinate desire, which I have
discussed elsewhere.19 For as bolts of lightning
strike to the hazard of a few and the fear
of all, so punishments scare more persons
than those who are actually punished for
evil. When punishment comes to one person,
fear comes to others subject to punishment
for the same crime. Whence punishments are
called remedies by which the illnesses of
a commonwealth are overcome and cured. Fourthly
a penalty consisting in a fine, or public
appropriation of goods, is turned to the
use of the realm. For when through crime
a commonwealth is injured, it is fair that
the penalty be applied to what has suffered
by evildoing. Whence the collection of penalties
is relevant (to the conservation of peace,
discipline, and public tranquillity in a
realm and commonwealth. For impunity in transgressing
is a great inducement to transgression, a
mother of injury and insolence, a root of
impudence, a wet-nurse of sin, and a license
that renders everything the worse. Fifthly,
the wrath of God is mitigated by the expiatory
act of punishment, and we obtain his benediction.
… 20
[§ 12] Corresponding to this power of punishing
is the right of conferring rewards. For as
punishment deters men from vices, so rewarding
them inspires, fosters, and conserves the
love of virtue and good works. And thus it
is fair that “he who sows iniquity will reap
trouble.” 21 On the other hand, it is not
wrong that he who seeks virtue and goodness
receives reward and glory for his good works.22
XI [§ 1] Special and secular right of sovereignty
indicates and prescribes the particular means
for meeting the needs and wants of all symbiotes
of this association, for promoting advantages
for them, and for avoiding disadvantages.
For as each member of the body was created
and constituted for its duty, and yet each
and every member has the same end, namely
the conservation of the whole body, so each
of us has been ordained to his proper and
individual role in life, but nevertheless
all of us to the glory of God and the welfare
of our neighbor. [§ 2] This special right
should be equitable, good, useful, and adapted
to place, time, and persons. Whence it is
called civil law (jus civile),23 and is said
to be peculiar to each polity.24
[§ 3] This special right is twofold. The
first part is devoted to the arrangement
established for procuring the material necessities
of life.25 It informs the procedure for communicating
advantages and upholding responsibilities
in those things that have been agreed upon
in the universal association for the supply
of necessities and supports. [§ 4] This part
of the special right of the realm consists
in (1) commercial regulations, (2) a monetary
system, (3) a common language, (4) public
duties in the realm, and (5) privileges and
the conferring of titles of nobility.26
[§ 5] First, the right and responsibility
for regulating public commerce, contracts,
and business on land and water belongs to
the universal association. The free use and
exercise of these functions in the territory
of the realm depends upon permission, prescription,
and current laws. It is called public trade.
… [§ 7] Without commerce we cannot live conveniently
in this social life. For there are many things
we need and without which no man can live
with comfort. We can also be underprivileged
in many things that are for our good, even
to the extent of great inconvenience to us.
Just as the human body cannot be healthy
without the mutual communication of offices
performed by its members, so the body of
the commonwealth cannot be healthy without
commerce. The necessity and utility of this
life have therefore contrived a plan and
procedure for exchanging goods, so that you
can give and communicate to another what
he needs and of which he cannot be deprived,
any more than can you, without discomfort,
and on the other hand receive from him what
is necessary and useful to yourself. Indeed,
peace and concord are often acquired through
commercial pursuits. “They asked for peace
because their country was nourished from
the country of the king.” 27 …
[§ 13] The second right is of money or the
right of striking and engraving coins, which
is established in material publicly selected
by the supreme magistrate with the approval
of the people or realm. … [§ 14] For if there
is no fixed valuation of gold, silver, and
money among men and neighboring peoples,
commercial activity cannot be maintained.
It follows that an uncertain monetary system
throws everything into disorder, and makes
intercourse and commerce with other peoples
difficult. …
[§ 16] The third right is the maintenance
of a language, and of the same idiom of it,
in the territory. The use of speech is truly
necessary for men in social life, for without
it no society can endure, nor can the communion
of right. …
[§ 17] The fourth right is the power and
responsibility for assigning and distributing
duties that arise in the universal association.
[§ 18] A duty is an oflice imposed upon a
citizen or inhabitant in a territory of the
realm that he bears for the benefit of the
associated body by its agreement and permission.
… Such duties are of two types: real and
personal. [§ 20] A double necessity is imposed
upon the citizen, namely, to contribute things
for the utility of the commonwealth,28 and
to provide services for rightly administering
and conserving the commonwealth.29 …
[§ 23] Real duties are performed by the payment
and collection of a tax. They accompany the
possession of things, and are levied with
reference to these things in relation to
their value. Thus the inhabitant, after a
declaration and appraisal of his possessions,
pays something from them that is turned over
to the use of the commonwealth. … 30
XII [§ 1] There are two types of tax collections.
[§ 2] One is ordinary and the other extraordinary.31
An ordinary collection is one that by provision
of law has a fixed regular payment recurring
one or more times each year. It is made from
the goods that the possessor and inhabitant
holds in the territory of the magistrate
who makes the collection, and is devoted
to the ordinary and everyday use and business
of the republic. …
XIII [§ 1] An extraordinary collection or contribution
is one that is declared and imposed because
of the occurrence of a public necessity at
a time when the public treasury composed
of funds from ordinary collections is depleted.
It is imposed principally upon persons, but
in view of the things they have in greater
or lesser measure. It prevails for a fixed
time until the necessity for it has ceased.
…
XIV [§ 1] Personal public duties of the realm
or universal association are those performed
in the administration of its public affair
by the labor and industry of remunerated
persons for the common welfare and utility
of the associated bodies. The administrators
of these affairs are called general officials
of the polity. … [§ 2] As real duties bring
together and communicate things and money
for the conservation and defense of the universal
association, so personal services communicate
assistance, help, counsel, industry, and
labor by which the benefit and utility of
the association are promoted, necessities
obtained, and all inconveniences avoided.
Whence the supreme necessity and utility
of these public duties of the realm become
apparent. They are the bonds and nerves by
which so great a conjunction of diverse bodies
is held together and conserved, and without
which it is at once dissolved and ruined.
Hence we observe the worth and excellence
of these public duties that accommodate even
real duties to the uses of the universal
association. Those who perform these duties
are of two kinds. [§ 3] Some are ministers
of the realm or universal association, and
others are ministers of the supreme magistrate.
…
XV [§ 1] The granting of privileges 32 is the
exemption for just and commendable reason
of an inhabitant of the realm from the performance
of some duty that other commonwealth citizens
are expected to perform and communicate.
[§ 2] A community (universitas) cannot ordinarily
grant immunity from taxes except in general
council. Such a privilege is either personal
or real. [§ 3] A personal privilege inolves
only the person to whom it is granted, and
does not extend beyond his person and property
to his servants, family, and so forth. [§
4] A real privilege, on the contrary, embraces
heirs, children, wife, and other related
persons. … [§ 13] It is to be observed that
in cases of great and extreme necessity confronting
the commonwealth all immunities and privileges
cease and are annulled. For the private and
special benefit and good of the citizen should
not be preferred to the public utility and
necessity of the commonwealth. … [§ 14] Also
pertaining to this right is the conferring
of titles and privileges of nobility upon
certain persons, such as the titles of dukes,
princes, counts, and barons. These persons
can be deprived of their privileges and rights
and divested of their titles.33
XVI [§ 1] We have thus far spoken of the first
part of special right of sovereignty, namely,
the right established to procure the material
necessities of life. We turn now to the second
part, which pertains to the protection of
the universal association and symbiosis.
By this right everything necessary for avoiding
or removing all difficulties, impediments,
and obstacles to the universal association,
and for avoiding any troubles, dangers, evils,
and injuries to any distressed or needy member
of the universal association, is offered
with mutual feeling and concern by each and
all members thereof. This second and latter
right, therefore, is principally concerned
with the arrangement established for protection
and defense.
[§ 2] This right of protection consists in
(1) aid and (2) counsel. Aid is the assistance
and prompt support provided by the communication
of things and services to a distressed and
needy member of this universal association.
It consists, first, in defense and, then,
in the care of goods belonging to the universal
association. … 34
[§ 4] Defense is threefold. It is the safeguarding
of the associated individual members when
one of them—a province, city, village, or
town—suffers violence and injury, or requires
the commonwealth’s support for its basic
interests and needs. It is, furthermore,
the guaranty of free passage and public security
against those who disturb, plunder, or restrict
commercial activity in the territory of the
associated body. It is, finally, the conduct
of war. … [§ 17] Just cause for waging war
occurs when all other remedies have first
been exhausted and peace or justice cannot
otherwise be obtained. There are seven just
causes for declaring and waging war. The
first cause is the recovery of things taken
away through violence by another people.
The second cause is the defense against violence
inflicted by another, and the repulsion of
it. The third cause is the necessity for
preserving liberty, privileges, rights, peace,
and tranquillity, and for defending true
religion. The fourth cause occurs when a
foreign people deny peaceful transit through
its province without good reason. The fifth
cause occurs when subjects rise up against
their prince and lord, do not fulfill their
pledged word, and are not willing to obey
him, although they have been admonished many
times. The sixth reason is contumacy, which
occurs when any prince, lord, or city has
so contemptuously and repeatedly scorned
the decisions of courts that justice cannot
otherwise be administered and defended. The
seventh just cause of war occurs when agreements
are not implemented by the other party, when
he does not keep his promises, and when tyranny
is practiced upon subjects. … 35
XVII [§ 2] The 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.
[§ 3] The 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 [§ 14] The care
and inspection of immovable goods belonging
to the realm are committed to designated
curators by the will and agreement of the
universal association. … [§ 15] Such goods
are navigable rivers of the realm, harbors,
public roads, public pastures, and so forth.
…
[§ 24] The 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. [§ 25] In 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. … [§
26] Such confederation with a foreign people
or another body is either complete or partial.
[§ 27] A 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. … [§ 30] A 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. [§ 31] Therefore, 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. …
[§ 54] The 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.
…
[§ 55] So 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. [§ 56] These 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.
[§ 57] This 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. [§ 58] The 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. …
[§ 60] There 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. …
Endnotes [1] Titus 2:12. |
