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.]
[2] [fundamental law of the realm.]
[3] [ optimates: the chief men of the
realm;
those who hold the more powerful offices.
In some realms optimates are not merely
nobles,
but also leading burghers or their
representatives.]
[4] Cicero, The Republic, III, 27;
Augustine,
The City of God, II, 21. A more accurate
reference in Cicero for this notation
is
in I, 26 of the same work. The precise
quotation
used by Althusius, however, is found
in the
Augustine reference.]
[5] [ imperium (pl. imperia): sometimes
empire,
sometimes rule, and sometimes both
empire
and rule. In the universal public association,
it very often means empire, as it does
here.
However, in smaller associations, both
private
and public, the word means merely rule.
Throughout
this translation the word has usually
been
rendered “imperium” in order to convey
Althusius’
understanding of the centrality and
continuity
of the principle of rule in all associations.]
[6] “Then Samuel proclaimed the right
of
the realm (jus regni) among the people,
and
wrote it in a certain book.” I Samuel
10:25.
[7] [In the equivalent chapter (VI)
of the
edition of 1603, Althusius limited
the right
of sovereignty to the power of administration,
which he placed under the fundamental
right
or law of the realm. Here, of course,
it
is identified with this right or law.
Sovereignty
henceforth pertains to the people and
their
constitution, not merely to the chief
administrator
and his actions.]
[8] Fernando Vásquez Illustrium controversiarum,
I, 47; Bartolus, Commentarii (Digest
I, 1,
9; I, 4, 1; I, 1, 5; XII, 6, 64); Conrad
Lancellot, Templum omnium judicum,
I, 2;
Paul Castro, Commentaria (Digest I,
1, 5).
[9] Digest III, 4, 7, 1.
[10] See Francis Hotman, De antiquo
jure
regni Gallici, I, 19 and 23; Fernando
Vásquez,
Illustrium controversiarum, I, 47.
[11] However, Vásquez wrongly rejects
this
comparison.
[12] Roland a Valle, Consiliorum, I,
cons.
1, num. 138; Marc Antony Natta, Consilia,
cons. 636 and 640; Charles Dumoulin,
Consuetudines
Parisienses, tit. 1, art 8, glos 4,
num.
16 f.; Diego Covarruvias, Practicarum
quaestionium,
4.
[13] The Commonweale, I, 8. Jacob Bornitius
further develops his idea of sovereignty
in De majestate politica, I.
[14] See also Deuteronomy 17:18–20;
Joshua
1:7 f.; Psalm 119.
[15] Commentarii (Digest IV, 4, 38).
[16] The City of God, IV, 4.
[17] [Althusius seems to make no distinction
between lex divina et naturalis and
jus divinum
et naturale. ]
[18] Matthew 7:12; Luke 6:31.
[19] Jacob Bornitius, however, would
indiscriminately
subordinate the prince to civil law
to the
extent that such law can be analogically
accommodated to him. De majestate politica,
I, 10.
[20] The Commonweale, I, 7 and 8.
[21] Chapters XVIII and XIX.
[22] Illustrium controversiarum, I,
26 and
45.
[23] The City of God, XIX, 15. [XIX,
14 in
the Modern Library edition.]
[24] Timothy 2:2.
[25] Titus 2:12.
[26] Histories, VI, 47.
[27] [ communio: communication; sharing.]
[28] The rest of this chapter and the
whole
of Chapters X-XVII.]
[29] Chapter XVIII and following.
[30] [The rest of this chapter is devoted
to ecclesiastical communion, and Chapter
XXVII to secular communion. Ecclesiastical
matters will be discussed again in
Chapter
XXVIII, but therein as an element of
administration,
not as part of the discussion of communion.
Note also that Althusius uses “communication”
and “communion” interchangeably]
[31] Matthew 6:33.
[32] Psalm 111:10.
[33] Romans 14:1.
[34] Corinthians 8:9 f.; 11:20 ff.;
15:12
ff.
[35] Galatians 5:15,
[36] See Zachary Ursinus, Dispositiones,
II, in fine; Benedict Aretius, Problemata
theologica, I, loc. 9 and 58 f.
[37] Matthew 13:47.
[38] [Matthew 13:29.]
[39] II Timothy 2:20.
[40] Matthew 3:12.
[41] Matthew 22:1 ff.; Luke 14:16 ff.
[42] Matthew 25:1 f.
[43] Matthew 25:32 f.
[44] Problemata theologica, I, loc.
58.
[45] Luke 11:23.
[46] Chapter XXVIII.
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.
[2] [General right of sovereignty is
common
to all universal associations; special
right
of sovereignty is proper to each one
according
to its own requirements. The former,
which
is the common law (jus commune) as
it pertains
to the universal association, is discussed
in Chapter X; the latter, which is
the proper
law (jus proprium) of the same, is
discussed
in Chapters XI–XVII.]
[3] [law.]
[4] Clemency, I, 4. [Seneca, however,
ascribes
these attributes not to law as such,
but
to the emperor as the soul and intelligence
of the people.]
[5] Psalm 34:14; 37:27; Isaiah 1:16;
I Peter
2:11 f.; Romans 7:18 ff.
[6] [ Institutes I, 1, 3; Digest I,
1, 10,
1.]
[7] Matthew 22:39; 7:12; Leviticus
19; Luke
13:24.
[8] Deuteronomy 6–8; Exodus 21–22.
[9] Digest I, 1, 6.
[10] Institutes I, 2, 11.
[11] Laws, III.
[12] Politics 1292a 32.
[13] Digest I, 3, 1.
[14] Digest I, 3, 2. [Marcian in turn
attributes
this quotation to the Stoic philosopher
Chrysippus.]
[15] The Orator, I, 43. [The passage
from
Cicero more accurately states, “We
are taught
not by unending debates full of controversies,
but by the authority and bidding of
laws,
etc.” Italics are added to indicate
the words
omitted without acknowledgment by Althusius.]
[16] Romans 3:20.
[17] Deuteronomy 4:20; Psalm 119:104.
[18] [laws.]
[19] Dicaelogicae libri tres, I, 98.
[20] [At the conclusion of Althusius’
somewhat
parallel discussion in the Dicaeologica
of
the reasons for punishment, the reader
is
referred to Martin Bucer, De regno
Christi,
II, 60, which is a chapter on the management
and moderation of punishment.]
[21] Proverbs 22:8. See also II Thessalonians
1:6.
[22] Romans 2:7; 13:1–7; Proverbs 11:18,
21; Ezekiel 18:21–24; Hebrews 6:10;
Deuteronomy
28; Psalm 101.
[23] [the positive law of a commonwealth,
which may vary in part from commonwealth
to commonwealth, as distinguished from
divine
law (jus divinum), natural law (jus
naturale),
and the law of nations (jus gentium),
each
of which is general and binding upon
all
commonwealths.]
[24] Digest I, 1, 6.
[25] The second part pertains to the
protection
of the universal association. The first
part
is found in Chapters XI–XV; the second
part
in Chapters XVI–XVII.]
[26] [The first, second, and third
are discussed
in Chapter XI, the fourth in Chapters
XI–XIV,
and the fifth in Chapter XV.]
[27] Acts 12:20. See also Chronicles
2 and
19.
[28] [real duties: Chapters XI–XIII.]
[29] [personal duties: Chapter XIV.]
[30] [One of the conditions Althusius says
should be observed in levying taxes is that
they be imposed upon “those things that can
harm the poor people less,” and upon “those
less necessary things that are not used for
the everyday necessities of life.” ]
[31] [Chapters XII and XIII respectively.]
[32] [This is the fifth right involved in
the first part of the special and secular
right of sovereignty.]
[33] [The authors Althusius has drawn most
heavily upon in his discussion of the five
rights of the first part of the special and
secular right of sovereignty are the following:
Petrus Gregorius, De republica and Syntagma
juris universi; Henry Rosenthal, De feudis;
Andreas Gail, Practicarum observationum;
Jean Bodin, The Commonweale; Mark Antony
Natta, Consilia; Joachim Mynsinger, Centuriae;
Jacques Cujas, Commentarii (Code) and Observationum
et emendationum; Eberartus a Weyhe, De regni
subsidiis; William Budé, Commentarii (Digest
and Code); André Tiraqueau, De nobilitate.
].
[34] [Defense is discussed in Chapter XVI,
and the care of goods in Chapter XVII. In
addition, there is a brief section at the
end of the latter chapter devoted to counsel.]
[35] [This discussion of the just causes
of war is supported by numerous references
to the Old Testament, especially to passages
in Judges, I and II Samuel, and II Kings.
Beyond these, three writings are referred
to more than once: Diego Covarruvias, Regulae
peccatum, II, sect. 9; Peter Martyr, Commentarii
(I Samuel 30; Judges 11); Henry Bocer, De
jure belli, I, 17.]
[36] [In the armory, the granary, and the
archives.]
[37] [Code V, 59, 5, 2.]
XVIII The Ephors and Their Duties
We have thus far discussed the right of
communion in the universal association. [§
1] We now turn our attention to the administration
of this right. This is the activity by which
the rights (jura)1 of universal symbiotic
association are ordered, properly administered,
and dispensed by designated public ministers
of the realm for the welfare of its members,
both individually and collectively. Whence
it is called the jus ? ' ' ? ? ? ^ ' "
? 2 pertaining to the provision for proper
management, or the jus ? ^ ? " ^ ' "
? 3 pertaining to good ordering.
[§ 2] This administration is the bond by
which the commonwealth holds together, and
its vital spirit by which the various and
diverse human functions of the association
are directed, ordered, and referred to the
welfare of all. Whence it is evident that
such administration does not execute or perform
these functions, but only establishes, orders,
and directs them, which it does by ruling,
commanding, forbidding, and impeding.
[§ 3] These public ministers of the realm
are elected by the united and associated
bodies or members of the realm for the purpose
of properly and honestly attending to, administering,
governing, and conserving the body and rights
of this universal association. They are invested
with the necessary power and authority, and
are bound by oath of office to the realm.
[§ 4] Whence they are called custodians,
presiding officers, defenders of the commonwealth,
and prudent and diligent executors of right
and law
(jus et lex). Any such community (universitas)
can indeed constitute these administrators,
as Losaeus proves. 4
[§ 5] In the election and establishment
of these public ministers, some have the
task of electors, others of elected ministers.
Electors assign, confer, and entrust to suitable
ministers, according to certain laws and
conditions, the care, government, and administration
of the rights (jura)5 of the realm, and obligate
these ministers to the realm by oath of office.
[§ 6] Elected ministers undertake the care
and administration entrusted to them for
the utility and welfare of the association,
according to the law by which the administration
has been conferred. “He is a minister of
God to you for good.” 6 They are therefore
called rectors, governors, directors, administrators,
regents, pastors, leaders, deliverers, and
fathers, and are adorned with other honorific
titles.
[§ 7] It is evident that the power of administering
the commonwealth and its rights is entrusted
to the elected ministers and curators by
agreements made in the name of the whole
people, or by the body of the universal association.
These ministers are expected to do good and
not evil in their delegated administration
of the commonwealth, and to serve the utility
and welfare of the associated political body
by devoting to it all their intelligence,
zeal, labors, work, care, diligence, indeed
all their wealth, goods, strength, and resources,
and by not withholding them for pursuit of
their private advantage. … [§ 8] For the
commonwealth or realm does not exist for
the king, but the king and every other magistrate
exist for the realm and polity. 7 By nature
and circumstance the people is prior to,
more important than, and superior to its
governors, just as every constituting body
is prior and superior to what is constituted
by it. …
[§ 10] The people first associated itself
in a certain body with definite laws (leges),
and established for itself the necessary
and useful rights (jura) of this association.
Then, because the people itself cannot manage
the administration of these rights, it entrusted
their administration to ministers and rectors
elected by it. In so doing, the people transferred
to them the authority and power necessary
for the performance of this assignment, equipped
them with the sword for this purpose, and
put itself under their care and rule. “Because
the plebs began to experience difficulty
in meeting together, and the people even
more difficulty in so great a crowd of men,
necessity itself brought the care of the
commonwealth to the senate.” 8 [§ 11] Such
administrators and curators therefore represent
the whole people, and their actions are considered
to be actions of the community.
For this reason, the citizens and inhabitants
of the realm are collectively but not individually,
like a ward or minor, and the constituted
ministers are like a guardian in that they
bear and represent the person of the whole
people. [§ 12] Just as a ward, although he
is master of the things he has yielded to
a guardian for care and administration, cannot
act in any matter nor incur an obligation
without the authority and consent of the
guardian, so the people, without the authority
and consent of its administrators and rectors,
cannot administer the rights of the realm
(jura regni), although it is the master,
owner, and beneficiary of them. [§ 13] What
a guardian rightfully does regarding the
things and person of his wards, ministers
of a commonwealth for the most part perform
for the united inhabitants of the realm,
together with their goods and rights.
[§ 14] In relation to their ownership and
delegation of supreme right the united subjects
and members of a realm are masters of these
ministers and rectors; indeed, these administrators,
guardians, and rectors are servants and ministers
to these very members of the realm. [§ 15]
But in relation to the entrusted administration
that has been approved by the people—that
is, outside this delegating of right—the
individual inhabitants of a realm are themselves
servants and subjects of their administrators
and rectors. They serve them by performing
and carrying through with their entrusted
responsibility, and in so doing extend to
them their services, abilities, and obedience.
The administrators of these individual subjects
are called lords, guardians, and overseers,
who are expected, however, to regard their
subjects not as slaves and bonded servants,
but as brothers. 9 Before undertaking this
administration, and after relinquishing it,
such rectors and administrators are equal
and similar to other private men. Indeed,
as the rights of sovereignty (jus majestatis)
arise from the associated body, so they adhere
to it indivisibly and inseparably, nor can
they be transferred to another. Kings certainly
cannot make themselves equal to or greater
than the associated body. …
[§ 18] The rector and administrator of this
civil society and commonwealth cannot justly
and without tyranny be constituted by any
other than the commonwealth itself. For “by
natural law (jus naturale) all men are equal”
10 and subject to the jurisdiction of no
one, unless they subject themselves to another’s
imperium by their own consent and voluntary
act, and transfer to another their rights,
which no other person can claim for himself
without a just title received from their
owner. 11 In the beginning of the human race
there were neither imperia nor realms, nor
were there rectors of them. Later, however,
when necessity demanded, they were established
by the people itself. We see examples of
this in India and among the Ethiopians, as
historians report. For the people of Israel,
however, there was in this matter a special
procedure. For God marvelously governed this
people for about four hundred years, just
as if he himself were king. He led the people
first through Moses out of Egypt, then through
Joshua, and afterwards through a long series
of vigorous judges. [§ 19] Then, when the
people requested a king, he was indignant
and gave it Saul, who was designated and
chosen immediately by himself through the
service of a prophet. When he afterwards
rejected Saul because of his sons, he substituted
David in the same manner, and by his word
established the descendants of David in the
control of the realm. These actions, however,
were so performed by him that the consent
and approval of the people were not excluded
from the process of designating these kings
and putting them in control of the realm.
Rather the matter was so handled that the
kings were considered to be chosen by the
people as well, and to receive there from
the right of kingship (jus regis).
[§ 20] This can be discovered in sacred
history by anyone willing to inspect it,
and to study it with care. Indeed, it is
evident that the supremely good and great
God has assigned to the political community
this necessity and power of electing and
constituting. “You shall establish judges
and moderators in all your gates that the
Lord your God gave you through your tribes,
who shall judge the people with a righteous
judgment.” 12 “I will establish a king over
me.” 13 “So you shall establish a king over
you.” 14 This ordination of a political magistrate,
however, God ascribes in various places to
himself. “Through me kings rule, and framers
of laws discern what is just.” 15 “You shall
be subject to your lords, whether to the
king as the one who is pre-eminent, or to
leaders who are sent by him for the punishment
of evil-doers and the praise of the upright.”
16 “Let every person be subject to the governing
powers. For there is no power except from
God, and those powers that exist have been
ordained by God. Therefore anyone who opposes
such powers resists the ordination of God.”
17 From this it can be concluded that God
has formed in all peoples by the natural
law itself the free power of constituting
princes, kings, and magistrates for themselves.
This means that in the measure in which any
commonwealth that is divinely instructed
by the light of nature has civil power, it
can transfer this power to another or others
who, under the titles of kings, princes,
consuls, or other magistrates, assume the
direction of its common life.
[§ 21] Nature has also expressed in other
created things a certain likeness and image
of this political domination and government.
Just as the mind reveals and performs all
its actions in one physical body by the joining
together and concord of its members, and
unifies these members under one spirit, so
also one imperium under the power of one
person or a united group directs and rules
in the commonwealth for the convenience of
the members, declares laws, seeks the things
necessary for human society, communicates
concord and makes it firms and directs actions
and friendships by suitable rules that either
nature or necessity recommends should be
kept inviolate. When God as Lord of everything
created the world, he prescribed for all
creatures, even for trees, springs, rivers,
and other created things, princes appropriate
to their kind. [§ 22] Thus bees acknowledge
and follow their queen, cranes have a leader
of their order, and the whale acknowledges
his leader and rector. Moreover, for angels
God established a prince of angels, for birds
a bird, for beasts a beast, and for men a
man. And even in man the soul dominates in
the body and the mind in the appetite. It
is also necessary that in any combination
of elements one of them dominate. Therefore,
“to rule, to direct, to be subjected, to
be ruled, to be governed are agreeable to
the natural, divine, and human law”. … 18
[§ 25] The power of administering the rights
of the realm originates in the election of
these ministers and in their undertaking
the office entrusted to them. 19 [§ 26] The
administrators and rectors of the universal
symbiosis and realm represent the body of
the universal association, or the whole people
by whom they have been constituted. They
bear its person in those things they do in
the name of the commonwealth or realm. They
are held to be less in authority and power
than those by whom they have been constituted
and from whom they received their power.
For however much the imperium and right that
is conceded to another, it is always less
than the conceder has reserved to himself.
[§ 27] It also cannot be denied that the
power and strength of the whole is always
greater than that of one man, or the body
than that of a member thereof. On the other
hand, these administrators are rightly called
superior in authority and power to individual
members of the realm. [§ 28] The sole power
of administering and directing the body and
rights of this universal association according
to just laws is transferred to these administrators
and rectors by the members of this universal
association. [§ 29] Such governors by no
means have the ownership of these rights,
nor superiority in them. These rights remain
under the control of the political body of
this association. [§ 30] Whence the customary
formula in the decrees, orders, and rescripts
of the Emperor of the Germans is Uns und
dem heiligen Reich, 20 or In unser und des
heiligen Reichs statt. 21 Here in the word
Uns is indicated the dominion of protection
and general jurisdiction that the rector
has; in the words des Reichs statt is expressed
the dominion of the community. [§ 31] The
less the power of those who rule, the more
lasting and stable the imperium is and remains.
For power circumscribed by definite laws
does not exalt itself to the ruin of subjects,
is not dissolute, and does not degenerate
into tyranny.
[§ 32] An administration is said to be just,
legitimate, and salutary that seeks and obtains
the prosperity and advantages of the members
of the realm, both individually and collectively,
and that, on the other hand, averts all evils
and disadvantages to them, defends them against
violence and injuries, and undertakes all
actions of its administration according to
laws. … [§ 40] This power of administering
that these ministers and rectors established
by the universal association have is bound
to the utility and welfare of the subjects,
and is circumscribed both by fixed limits,
namely, by the laws of the Decalogue and
by the just opinion of the universal association.
Therefore, it is neither infinite nor absolute.…
[§ 41] Administrators are not permitted
to overstep these limits. Those who exceed
the boundaries of administration entrusted
to them cease being ministers of God and
of the universal association, and become
private persons to whom obedience is not
owed in those things in which they exceed
the limits of their power. … [§ 42] These
administrators exceed the limits and boundaries
of the power conceded to them, first, when
they command something to be done that is
prohibited by God in the first table of the
Decalogue, or to be omitted that is therein
commanded by God. They do so, secondly, when
they prohibit something that cannot be omitted,
or command something that cannot be committed,
without violating holy charity. The former
commands and prohibitions are called impious,
the latter wicked. The limits of their power
are transgressed, thirdly, when in the administration
entrusted to them they seek their personal
and private benefit rather than the common
utility and welfare of the universal association.
…
[§ 43] The reason for refusing obedience
to these administrators, as well as for denying
absolute power to them, is their general
and special vocation in which as Christian
men they promised otherwise to God in baptism,
which they are bound to fulfill. Moreover,
administrators do not themselves have such
great power, for no one gave them the power
and jurisdiction to commit sin. Nor did the
commonwealth, in constituting administrators
for itself, deprive itself of the means of
self-protection, and thus expose itself to
the plundering of administrators. Besides,
whatever power the people did not have it
could not transfer to its administrators.
Therefore, whatever power and right the administrators
did not receive from the people, they do
not have, they cannot exercise over the people,
nor ought they to be able to do so. Finally,
the wickedness of administrators cannot abolish
or diminish the imperium and might of God,
nor release the administrators from the same.
For the power and jurisdiction of God are
infinite. He created heaven and earth, and
is rightly lord and proprietor of them. [§
44] All who inhabit the earth are truly tenants,
vassals, lessees, clients, and beneficiaries
of his. “The earth is the Lord’s and the
fulness thereof, 22 and is so by the right
of creation and conservation. God is therefore
called “King of kings and Lord of lords.”
… 23
[§ 47] We require love and ability in these
administrators and directors. We require
love toward the association that is committed
to them so that all its hardships may be
lighter; and we require ability of governing
and administering so that the commonwealth
may not suffer damage by the deficiency of
administrative competence. An abundance of
good counselors, however, can serve as a
supplement in meeting this latter requirement.
[§ 48] Administrators of this universal
association are of two kinds: the ephors
and the supreme magistrate. 24 Ephors are
the representatives of the commonwealth or
universal association to whom, by the consent
of the people associated in a political body,
the supreme responsibility has been entrusted
for employing its power and right in constituting
the supreme magistrate and in assisting him
with aid and counsel in the activities of
the associated body. They also employ its
power and right in restraining and impeding
his freedom in undertakings that are wicked
and ruinous to the commonwealth, in containing
him within the limits of his office, and
finally in fully providing and caring for
the commonwealth that it not suffer anything
detrimental by the supreme magistrate’s private
attachments, hatreds, deeds, negligence,
or inactivity. 25
[§ 49] These ephors, by reason of their
excellence and the office entrusted to them,
are called by others patricians, elders,
princes, estates, first citizens of the realm,
officials of the realm, protectors of the
covenant entered into between the supreme
magistrate and the people, custodians and
defenders of justice and law (jus) to which
they subject the supreme magistrate and compel
him to obey, censors of the supreme magistrate,
inspectors, counselors of the realm, censors
of royal honor, and brothers of the supreme
magistrate.
[§ 50] From these things it is apparent
that ephors, as the critical supporters and
upholders of the universal society or realm,
are the means by which it is sustained and
conserved during times of interregnum and
peril, or when the magistrate is incapable
of exercising imperium, or when he abuses
his power, as Botero says. 26 They do this
in order that the commonwealth may not become
exposed to dangers, revolutions, tumults,
seditions, and treacheries, or occupied by
enemies. [§ 51] For the ephors establish
the head of the political body, and subject
the king or supreme magistrate to law (lex)
and justice. They establish the law, or God,
as lord and emperor when the king rejects
and throws off the yoke and imperium of law
and of God, and ceasing as a minister of
God, makes himself an instrument of the devil.
These ephors, together with the supreme magistrate,
are said to carry the weight and burden of
the people. 27
[§ 52] In the Golden Bull of Emperor Charles
IV the electors, who are the general ephors
of the German imperium and realm, are called
the bases and pillars of the German imperium,
and a part of the body of Caesar. … [§ 53]
Other realms also recognize such ephors,
and have been more enduring and fortunate
for that reason. Among them are the Persian,
Greek, Roman, French, British, Danish, and
Polish imperia.
[§ 54] It is the nature of polities that
they degenerate easily, nay, that they are
even transformed in nature and pass from
one type to another, unless custodians are
appointed in them by whom their administrators
and kings are curbed and held within limits,
and by whom the petulance, license, insolence,
luxury, and pride of kings are restrained.
Whence polities have often been freed from
their greatest dangers and disorders by these
ephors and orders. [§ 55] For the ephors
either abolish or overcome the wicked actions
or tyranny of the supreme magistrate. They
also compensate for his sloth by their own
vigilance and diligence, and fully provide
and make sure that the commonwealth does
not suffer anything to its detriment by the
actions of the king. Unless the ephors have
done all this, they themselves are held liable
and are rightly said to be betrayers of the
commonwealth, especially when they secretly
conspire or connive in the wicked and impious
actions of the king. 28
The ephors, by the communication of their
strength, abilities, labors and counsels,
make the king strong and wise. They defend
him against all perils and difficulties,
and conserve the healthy, well-ordered, and
well-guarded condition of the commonwealth.
If the prince engages in dissensions and
hostilities against them, from whom can he
expect aid, counsel, and defense? And furthermore,
how can an association and polity exist in
which private persons oppose themselves to
these orders, and reject their curators and
defenders? [§ 56] For the people has committed
itself to these ephors for safety, and transferred
all its actions to them, so that what the
ephors do is understood to be the action
of the entire people. The people does this
because of utility and necessity. For it
would be most difficult, as Diego Covarruvias
says, 29 to require individual votes of all
citizens and parts of a commonwealth. For
this reason it is agreed that the multitude
of the plebs so conducts its public transactions
through its optimates that these transactions
are accomplished safely and without tumults
or seditions in the commonwealth. The votes,
therefore, of these optimates are determined
according to the same law by which the consensus
of all citizens, which they represent, is
determined. And therefore it is rightly said
that “inhabitants are understood to decide
what these persons decide to whom the supreme
responsibility of the public weal has been
entrusted,” 30 and that what they do through
them is regarded as if it had been done by
them all and to pertain to all. 31
[§ 57] For this reason, Covarruvias says
that the seven princes of the Germans, upon
whom has been conferred the responsibility
for the election of the emperor of the Christian
world, jointly represent the people itself
and the Christian community that is governed
by this emperor. They employ its delegated
power, and act in its place in this election.
Whence it happens, he says, that the election
of the emperor belongs to the seven electors
as a collegium, not as individuals. … 32
[§ 59] These ephors are elected and constituted
by the consent of the entire people. This
consent is given by tribes, by centurial
or curial divisions, by individuals, or by
lot, according to the nature and custom of
each realm. In other words, ephors are constituted
by the votes of the entire people collected
through the centuries, tribes, or collegia
in which the people has been distributed,
or, as I say, through the votes and divisions
of individuals, or by lot. … Sometimes even
the prince, supreme magistrate, or optimates
have the power of electing an ephor, or of
substituting another in place of one who
has died. They do this by the favor and concession
of the people. 33 The nomination and establishment
of an ephor is correctly considered to be
among the royal functions when the administration
of this function has been conceded to the
prince by the people or universal association.
[§ 60] Those persons should be elected ephors
who have great might and wealth, because
it is in their interest that the commonwealth
be healthy, and they will act as custodians
of the public welfare with greater love,
concern, and care. A few should be elected
from the many. For nothing is more useful
in avoiding civil wars and factions of seditious
men than to take away from the multitude
the creation of magistrates and princes,
and to impart it to a very few.
[§ 61] These elected ephors pledge themselves
to care for the utility of the realm, commonwealth,
or universal association, and to perform
faithfully and diligently the functions of
the office entrusted to them.… [§ 62] The
collegium of ephors proceeds with all things
according to the regular procedure of office,
and decides these things through majority
vote. And therefore the election of the magistrate
pertains to it as a collegium, not as individuals.
The greater and more powerful part of the
people prevails in electing the king. By
this means the collegium, not individual
members of the collegium, represents the
universal association or polity. This collegium
has greater power and authority than the
supreme magistrate, as all the sounder political
theorists, jurists, and theologians teach.
[§ 63] The duties of these ephors are principally
contained under five headings. The first
duty is that they constitute the general
and supreme magistrate. The second is that
they contain him within the limits and bounds
of his office, and serve as custodians, defenders,
and vindicators of liberty and other rights
that the people has not transferred to the
supreme magistrate, but reserved to itself.
The third is that in time of interregnum,
or of an incapacitated administration of
the commonwealth, the ephors become a trustee
for the supreme magistrate and undertake
the administration of the commonwealth until
another supreme magistrate is elected. The
fourth is that they remove a tyrannical supreme
magistrate. The fifth is that they defend
the supreme magistrate and his rights. Each
and all of these duties are considered to
be entrusted to the ephors for execution,
who are not able to fulfill their office
except by them.
[§ 64] The first duty of the ephors is to
constitute the supreme magistrate and rector
of the universal association. For this task
the ephors have received public power and
authority from the united people of the universal
association that they may elect such a rector
and administrator in its name. This matter
is discussed more filly in the next chapter.
[§ 65] The second duty of the ephors is
that they contain the supreme magistrate
and general administrator that they have
constituted within the prescribed and accepted
limits of his universal administration. They
do this in order that the commonwealth or
universal association may not suffer anything
detrimental, and that its rights and even
those of the king or supreme magistrate,
are not violated or diminished, but may always
remain unharmed, well ordered, and well protected.
Peter Heige says that for this reason requests
for the alleviation of oppressions, and complaints
concerning violation of the imperial rights
(jus imperii), are frequently brought to
the ephors. 34 Nothing is as apt for conserving
the imperial right (jus imperii)35 as constraint
of power brought about by others, by which
such power is contained within its boundaries.
For great power cannot contain itself within
boundaries without some coercion and constraint
entrusted to others.
[§ 66] For this purpose the ephors have
the power of helping the general and supreme
magistrate by counsel and aid, and of admonishing
and correcting him when he violates the Decalogue
of divine law, or the sovereign rights and
laws of the realm. Therefore, they have received
the right of the sword (jus gladii) for the
sake of discharging this required responsibility.
… 36
[§ 68] Whence it is said to be the duty
of the ephors to oppose unjust decrees of
the supreme magistrate, to mitigate them
by their counsels, and to impede them when
they are contrary to the common welfare and
laws of the universal association. Without
the ephors’ approval, an enactment or general
decree of the supreme magistrate is not valid.
So great is the authority and power of these
ephors in the French realm that the official
letters of the king have no authority unless
they are countersigned by the secretary of
the realm, nor his rescripts unless they
are signed and sealed by the chancellor of
the realm. Other matters concerning the realm
take effect only when the ephors or optimates
of the realm have been consulted and approve.
[§ 69] Whence it is evident that Jean Bodin
greatly errs in attributing absolute and
all-encompassing power to the king of France,
and in hardly recognizing the optimates.
37 He thinks that when optimates have power,
the sovereignty and power of the king are
either destroyed or shared with colleagues.
Peter Heige calls attention to this error.
38 Indeed, jurists state that a prince who
harms his subjects, and who does not maintain
them inviolate, is not maintained by his
contract with them. 39
Even should the king or emperor concede
kingly functions to dukes and counts of the
imperium, or to the vassals and optimates
of the realm, imperial superiority and pre-eminence
are understood to be reserved to him. [§
70] Whence it is that such optimates can
by no means be considered colleagues of the
king, or of equal power with him. 40 For
only special and restricted power and administration
have been given to these optimates. Indeed,
the king or supreme magistrate has general
power, sovereignty, and pre-eminence over
individual optimates, and everything else
depends upon his power and administration.
However great may be the imperium that is
assigned to another, it is always less than
what the conceder has reserved to himself,
as is the common judgment of the jurists.
[§ 71] The supreme ruler cannot constitute
an equal to himself. 41 The whole has greater
power than one man, and whatever anyone has
more than other men, he has received it from
the whole. Nor can the power of the king
be said to be diminished because ephors and
optimates exercise some power, as the hand
is not weaker because it has been divided
into fingers, but is more agile in action.
[§ 72] So power is more useful when deployed
among a large number, and the affairs of
the commonwealth are more readily expedited
when communicated among many.
[§ 73] Moreover, these ephors as a whole
are superior to the supreme magistrate to
the extent that, representing the people,
they collectively do something in its name;
individually and separately, however, they
are inferiors of this magistrate. [§ 74]
The supreme prince is bound by oath to the
commonwealth as an officer of it, and is
less than the entire commonwealth or realm
itself. Julius Caesar bears witness that
the ruling arrangements of the kings of France
in his time were such that the people when
rightly convoked had no less authority over
the king than the king had over the people.
42 So the synod is superior to its bishop,
the council to a pope, the chapter to its
agent, and the community (universitas) to
its syndic. [§ 75] To these ephors, rather
than to the supreme magistrate, the supreme
power of the commonwealth has first been
entrusted by the people. Therefore, because
the power was first conferred upon such ephors,
it could not afterwards be given by the people
to any magistrate. …
[§ 83] We see in the power and authority
conceded to these few ephors for defending
the rights of the people or universal association
that the people has not transferred these
rights to the supreme magistrate, but has
reserved them to itself. For the universal
association entrusted to its ephors the care
and defense of these rights against all violators,
disturbers, and plunderers, even against
the supreme magistrate himself. The Dutch
Wars of Independence offer examples of this
care and defense by ephors during forty years
of conflict against the King of Spain. [§
84] Whence the office of these ephors is
not only to judge whether the supreme magistrate
has performed his responsibility or not,
but also to resist and impede the tyranny
of a supreme magistrate who abuses the rights
of sovereignty, and violates or wishes to
take away the authority (jus) of the body
of the commonwealth. So the theologians and
jurists assert. 43 “For we have no fellowship
with a tyrant, but only the greatest parting
of ways. Nor is it contrary to nature to
depose [ … ] a man whom it is morally right
to destroy. 44 The Digest says that he has
not committed a crime who has killed a tyrant.
… 45 [§ 85] Ephors resisting the tyranny
of a supreme magistrate who misuses the rights
of sovereignty, or endeavors to plunder or
deprive a universal association of its authority,
are not thereby said to abandon the communion
of the realm and the rights thereof, but
rather to condemn their abuse and to avoid
approval and communication of the sins of
the supreme magistrate. …
[§ 86] The third duty of these optimates
is to constitute themselves guardians, trustees,
and administrators of the realm upon the
supreme magistrate’s captivity, death, madness,
imbecility, minority, prodigality, or other
disorder and impediment rendering him incapable
or harmful in administration. 46 So Hotman
demonstrates from historical materials that
in France trustees were appointed by the
estates of the realm for kings who were mad,
underage, or in any other manner incapacitated
for governing the realm. 47 Many examples
of this are mustered by Froissart. 48 René
Choppin says that today in France a regent
is appointed by the king or estates of the
realm for a widow and mother of the royal
ward, which regency is ended when the royal
ward has attained the age of fourteen. 49
But in my judgment this arrangement, which
stems from the Salic law barring a female
from the administration of the realm, is
unfortunate. … Such a trustee is assigned
from the ephors (1) when the king is unable
to defend the realm, (2) when he is negligent,
(3) when he is incorrigibly profligate, (4)
when he is unable to administer justice or
maintain peace, (5) when he is out of his
mind, and (6) when he is unfit in any other
manner whatever.
[§ 87] It is part of this duty that in time
of interregnum these same ephors are the
rectors and administrators of the realm and
universal association. They have the right
of administering and of acting in place of
the supreme rector and general magistrate
until a new one shall have been elected and
constituted. So in German polity when a Caesar
dies and there is interregnum, the power
of administering the imperium is assigned
to two of the seven imperial electors—namely,
to the electors of the Palatinate and of
Saxony—who act in place of the emperor in
certain of his functions, as the Golden Bull
of Emperor Charles IV holds. 50 In other
polities these functions are entrusted for
the most part to all the ephors, or to the
principal one among them. …
[§ 88] The fourth duty of the optimates
is to resist a supreme magistrate who abuses
the rights of sovereignty, and to discharge
and remove him when he scorns and violates
the rights and laws of the realm, and practices
tyranny. When, how, and with what considerations
this ought to be done, we will discuss later.
51
[§ 89] The fifth duty of the ephors consists
in the defense of the supreme magistrate
and his rights against the ambitions, conspiracies,
and plots of subjects, against the pride
of nobles, the factions and seditions of
the mighty, against those who act improperly
towards the supreme magistrate’s royal power,
weakening or impeding it, depriving him of
it, or inflicting force and violence upon
him. …
[§ 90] This right that we have said the
ephors have as ephors in the administration
of the whole realm differs greatly from the
right they have as dukes, princes, and counts
in the administration of particular provinces
and regions. [§ 91] The former is general,
the latter special and restricted. It is
to be observed that the duty of the ephors
is to take care that the supreme magistrate
not degenerate by doing or omitting something
contrary to his office. So also the duty
of the supreme magistrate is to take care
that none of the ephors misuses his limited
imperium to the ruin of his subjects or the
realm. This mutual watchfulness, censure,
and correction between the king and the estates
or ephors keeps the condition of the realm
sound, in good repair, and well protected,
and frees the realm from all dangers, evils
and inconveniences. …
[§ 92] William Barclay attempts to deprive
the ephors and the realm of this right that
we have said is appropriate to the ephors
over against the supreme magistrate. 52 He
considers this right to be entirely yielded
and transferred, nay, even alienated, by
the people to the king. I will repeat his
arguments, and refute them in a few words,
before I turn to a discussion of types of
ephors. The power of a guardian or trustee,
he says, is greater than that of a ward or
minor. Therefore, the power of the king,
who is the trustee of a commonwealth, is
greater than that of the ward or of the ephors
representing the people. Against this I reply
according to the rule that greater is the
authority and power of the proprietor who
constitutes a trustee for his things and
affairs than of the constituted trustee.
Therefore, greater is the authority and power
of the ephors and the people who constitute
the king than of the constituted king. This
is most true. Even if against this rule a
guardian or trustee has greater authority
and power than the ward or minor, this happens
because of a defect in the volition and judgment
of the ward, who in this period of his life
cannot have a proper and adequate volition.
However, as soon as he reaches a proper age,
he assumes and maintains this authority and
power, just as any proprietor maintains the
direction of his own things.
Thus the guardian bears the person of the
ward, and integrates it in those actions
of life pertaining to the administration
of the ward’s person and things. In considering
and examining the nature of care, guardianship,
and any other administration for another,
we are compelled to acknowledge that these
types of administration manifest a certain
service and ministry, which are exhibited
and performed by such administrators for
wards needing their works, aid, and counsel.
Accordingly, such administrators are what
they are by reason of the wards, minors,
and others whose affairs they administer;
wards, minors, and others are not what they
are by reason of their administrators.
Moreover, in searching out the source and
cause of administration, we discover that
they proceed from the commission of the proprietor.
The person who commissions or enjoins another
with the oversight of his things resembles
one who summons or approves; the person who
undertakes such administration resembles
one who obeys, serves, and performs his duty
toward another. I ask precisely whose authority
and power is greater, the person who commissions
and enjoins, or the person who is commissioned
and who ministers and undertakes the administration?
[§ 93] Barclay, however, says that those
who constitute others under themselves are
known to be greater and more powerful than
the ones constituted. So Potiphar in constituting
Joseph, Nebuchadnezzar in setting up Daniel,
and Darius in establishing prefects under
himself are each rightly called greater in
authority and power than those they constituted.
53 Doubtless, he continues, the people constitutes
a king above itself, not under itself. “I
will constitute a king over me.” 54 “We will
have a king over us.” 55 “But constitute
a king over us.” 56 “You shall appoint a
king over Israel.” 57 Whence to be over (praeesse)
and to be subjected (subjici), Barclay says
are opposites that cannot be attributed to
the same king at the same time in the same
relationship and with reference to the same
interpretation, which is the nature and true
meaning of opposites.
Barclay presses this argument vigorously.
But he does so wrongly. For the king is constituted
over affairs that belong to another, namely,
over the affairs of the people and the universal
association, the administration, direction,
government, and care of which have been granted
to him. He certainly is not constituted over
the proprietary right
(jus proprietatis) in these affairs. An
example is that of a guardian or trustee
who is constituted over the affairs of his
ward or minor, or of a servant, minister,
or overseer whom the proprietor constitutes
over his affairs, and who nevertheless does
not for this reason have greater authority
and power than the proprietor who does the
constituting. So the people or universal
association constitutes the king over its
affairs as director, governor, and trustee,
but notwithstanding under itself. This is
to say that the people has committed to the
king, under definite conditions and restrictions,
power and authority to rule it, and has retained
to itself, under definite conditions, power
and authority over a degenerate king. [§
94] This direction and administration of
the king is not plenary, absolute, and unrestricted
to the detriment and ruin of subjects, but
is limited and circumscribed for their welfare
by definite laws. When a king, rector, or
governor oversteps these laws, he can no
longer be said to be constituted over the
affairs of the people, nor can the subjects
be said to be under (subesse) him. The subjects
individually are ordinarily under the king;
collectively they are above the king, who
administers the affairs not of individuals,
but of the whole body. He who administers
tyrannically does not so much care for and
direct as destroy. Therefore, the king is
over and the king is subjected.
He is over individuals in order to administer
rightly to which extent he is the executor,
preserver, and minister of law. Properly
speaking, therefore, law is thus over everyone.
It is the superior above all, and each and
every man recognizes it as the superior.
[§ 95] The king who governs the commonwealth
according to law is over and superior to
the commonwealth so far as he governs by
the rule of law (praescriptum legis) presiding
as the superior. Therefore, if he governs
against the rule of law, he becomes punishable
by the law, and ceases to be superior. In
this unfortunate event, he begins to be under
the executors of law. Whence it happens that
when he exercises tyranny, he is under the
united body. When he abuses his power, he
ceases to be king and a public person, and
becomes a private person. If in any way he
proceeds and acts notoriously or wickedly,
any one may resist him, as we have said above.
58
[§ 96] Furthermore, Barclay says an equal
cannot have imperium over an equal. Therefore,
a magistrate is not bound by the decrees
of his predecessors. Indeed, I say that God,
the law of nature and of nations, and the
ephors of the realm are all greater than
the king, and hold imperium over him. In
addition, the obligation that the prince
takes upon himself at the time of his initiation
binds him. And he cannot be said to be equal
who was not a prince when his predecessor
was living. … 59
[§ 98] It is not absurd or contrary to nature
that a king as the greater is subjected even
to an inferior. For he who is greater or
equal to another can be subjected to the
jurisdiction of the other. Litigating parties
can thus submit themselves to the decision
of inferiors, 60 and inferiors can judge
in the case of superiors. 61 So Caesar has
the elector of the Palatinate as judge in
cases that others bring against him, as the
Golden Bull of Charles IV teaches. The king
of France is under the judgment of the Parliament
of Paris, and the princes of the German imperium
are under the judgments of other princes,
of counts, or even of their counselors. 62
Bartolus asserts that a king also can be
subjected to someone less than himself or
to his equal. 63 Therefore, these persons—
Caesar, king, and prince—are over (praeesse)
in one relationship and are under (subesse)
in another, but not over and under in the
same relationship; they are, nevertheless,
over and under at the same time and with
reference to the same interpretation. [§
99] The king is over and rules in those things
for which he receives the power of ruling
and governing, not in those things that have
been reserved to the power and judgment of
the ephors. He is over when he governs and
administers lawfully, justly, and piously;
that is, he ceases to be the administrator
when he does not care what happens, but loses,
squanders, and destroys, and ceases to be
a living law, just as a pastor ceases to
be a pastor who flays, divides, and loses
his sheep.
Barclay continues by developing his argument
from examples. Thus he says cardinals constitute
a pope above them, priests a bishop above
them, and monks an abbot above them. Whence
the former are inferior in power and authority,
and the latter are superior. The former are
devoid of the imperium and power that the
latter have. [§ 100] But I say that such
persons—the pope, bishop, abbot, or anyone
else—can be removed for just reasons by those
who constituted them, and can be deprived
of their power. For what if such a pope,
bishop, or abbot should become a heretic,
or in any manner become unfit or untrustworthy
in office? Canonical laws (jura canonica)
pronounce such persons to be restrained from
the authority and administration of the office
entrusted to them. 64 And often such persons
have been deprived of their office, as history
bears witness and practical experience teaches.
[§ 101] For who, to the detriment of the
church and to the damage and loss of man’s
salvation, would long endure such unfit men,
heretics, schismatics, sorcerers, incapacitated
persons, those who live a shameful life and
provide not at all for the functions of their
office, or those who do not tend their sheep
but flay them? If they lose their mind or
develop another disorder of soul or body,
so that henceforth they become altogether
unfit or incapacitated, will not the church
be committed to the government of other ministers?
Or does the church so fall into their power,
care, and protection that while they are
living its government never can be committed
to another? Or in emergencies is the order,
authority, and power of one man—of a pope,
bishop, or abbot—greater and stronger than
that of the church, the cardinals, or the
monks? Or is the power of one greater than
the power of many? No one will maintain this.
Or in these emergencies is the right of one
pope, bishop, or abbot greater, stronger,
and in better condition than that of all
the cardinals and monks of the entire church?
Nor will anyone affirm this. For whatever
the right, power, and authority such ecclesiastical
overseers have, it is not their property,
nor do they derive it from themselves. Rather
they have received it from the church, the
collegium of cardinals, and the chapter of
monks. Those who die or lay aside their office
resign this right, power, and authority into
the hands of the church, collegium, or chapter
by which they were constituted. They restore
this right to its owners, so that these overseers
are considered to be nothing more than usufructuaries
of it, and the collegia indeed to be its
proprietors. [§ 102] Whence it is that the
right of these overseers is temporal. On
the other hand, the right of the collegia
is permanent and immortal to the extent that
these collegia, because of their constant
succession of persons in place of those who
depart, are considered to be immortal.
When we consider the office and administration
of kings, we find that their nature and constitution
are not unlike those of ecclesiastical overseers.
[§ 103] The right of a king consists in the
faithful and diligent care and administration
of the commonwealth entrusted to him by the
people. For this reason the people transfers
to him as much authority and power as it
judges necessary. By the communication, sharing,
and contribution of individual persons from
the people, the king becomes rich and powerful.
By their counsel he becomes wise. By the
aid of his subjects he excels in strength,
vigor, and might. If the people denies these
to the king, he again becomes weak, poor,
needy, and a private person. The king holds,
uses, and enjoys these riches—and this might,
wisdom, and authority—as a usufructuary.
When the king dies, or is denied the regal
throne by any legitimate means, these rights
of the king, as we have said, return to the
people as to their proprietor. The people
then reassigns them as it thinks wise for
the good of the commonwealth. [§ 104] Therefore,
the right of the king is one thing, and the
right of the people is another. The former
is temporal and personal; the latter is permanent.
The former is the lesser; the latter is the
greater. The former is a precarium given
by contract to the commissioned king, and
undertaken by him; the latter is an incommunicable
property.
[§ 105] Moreover, Barclay says that as the
husband who is constituted over his wife
is her superior, so the king is superior
to the commonwealth and realm. But I say
that the superiority and power the husband
has over his wife he derives from the marriage.
And this is only for a time and with a condition,
namely, that it lasts as long as the marriage
endures, that is, as long as the marriage
is not dissolved by adultery, desertion,
or death. When the marriage is dissolved,
every marital power he exercises over his
wife is ended. Of equal seriousness with
desertion is the intolerable cruelty of a
husband that makes it impossible to live
with him. Because of incurable cruelty, and
its hazard to life and health, theologians
concede a dissolution of marriage, and defend
divorce by the authority of sacred scripture.
65 Is there not equal reason for conceding
divorce between a king and a commonwealth
because of the intolerable and incurable
tyranny of a king by which all honest cohabitation
and association with him are destroyed? No
bond is considered to be stricter than that
of matrimony, which is ordained by divine
authority to be indissoluble. However, for
the previously mentioned causes it is dissolved.
Cannot the bond between magistrate and subjects
likewise be dissolved for equally serious
reasons?
[§ 106] All power is limited by definite
boundaries and laws. No power is absolute,
infinite, unbridled, arbitrary, and lawless.
Every power is bound to laws, right, and
equity. Likewise, every civil power that
is constituted by legitimate means can be
terminated and abolished.
Barclay is likewise wrong when he says that
all functions of the commonwealth are entrusted
to the king. 66 For the function of electing,
constituting, and defending a king, the function
of resisting tyranny, and many other functions
that I have listed in this chapter as entrusted
to the ephors cannot be committed to the
king.
Thus far we have spoken of the office of
the ephors, and we have refuted the things
that have been alleged against their power
by Barclay. We will now speak of the types
of ephors. [§ 107] Ephors are permanent (rendered
hereditary by the consent of the universal
association), or temporal. Permanent ephors
have their responsibility so assigned to
them that they may even transfer it to their
heirs. Temporary ephors, on the other hand,
perform this office for a prescribed time
only, after which they lay it aside. …
[§ 108] Such ephors and estates, or orders
of the realm, are also of two kinds. Some
are ecclesiastical, and others are secular.
Ecclesiastical ephors are those who have
been constituted from among ecclesiastical
persons, and bear the responsibility for
ecclesiastical things. [§ 109] Secular ephors
are those who have the knowledge and care
of public things. These latter are, in turn,
either nobles or commoners. Nobles are chosen
from the order of the nobility; commoners
are selected from the remaining persons of
the villages, towns, and cities of the realm.
All these ephors and orders of the realm
are distributed among two species. Some are
general, and others special. [§ 110] General
ephors are those to whom is entrusted the
guardianship, care, and inspection of the
whole realm and of all its provinces. Such
are imperial senators, counselors, syndics,
chancellors of the realm, and so forth.
Such general optimates and ephors in the
Israeli realm were the seventy elders. “And
the Lord said to Moses, ‘Gather for me seventy
men of the elders of Israel, whom you know
to be the elders of the people and officers
over them; and bring them to the tent of
meeting, and let them take their stand there
with you. And I will come down and talk with
you there; and I will take some of the spirit
that is upon you and put it upon them; and
they shall bear the burden of the people
with you, that you may not bear it yourself
alone.’ ” 67
In the Roman imperium there first were in
the democracy the tribunes of the people
who checked the consular power so that the
consuls might not abuse the imperium, nor
become accustomed to excessive boldness or
savagery. Later in the Roman monarchy the
general ephors were the senators of Rome,
as Xenophon, Aristotle, Plutarch, and others
have testified. 68
In the German polity such general ephors
are the electors, or the seven men of the
imperium, of which three are ecclesiastical
and four secular. The ecclesiastical are
the archbishop of Mainz, who is also the
arch-chancellor of the imperium, the archbishop
of Cologne, and the archbishop of Treves.
The secular ephors are the king of Bohemia,
the prince of the Rhenish Palatinate, the
duke of Saxony, and the duke of Brandenburg.
The Palatinate elector, in accord with the
Golden Bull of Emperor Charles IV, is the
judge from among them in cases instituted
against the emperor. Likewise, he and the
Saxon prince are trustees and vicars of the
imperium in time of interregnum. The archbishop
and elector of Mainz, as the arch-chancellor
of the German imperium, has the right of
calling together the electoral colleagues
in this collegium of electors, of proposing
matters to them, and of soliciting their
judgments.
Philip Honorius and other historians agree
that in the French realm there are three
orders; the ecclesiastical order, the nobility,
and the commons. … 69 The general optimates
of France are the chancellor of France, the
French princes born with royal blood from
their fathers, the major courtiers, who today
are called equestrian counts, marshals, admirals,
the keeper of the seal, quaestors, and others
accepted by the Parisian senate. … 70
[§ 111] Special ephors are those that undertake
the guardianship and care of a province,
region, or certain part of the realm. They
recognize the supreme magistrate or commonwealth
as their immediate superior, and are inscribed
on the roles of the imperium. Such are dukes,
princes, margraves, counts, barons, castellans,
nobles of the realm, imperial cities (as
they are called in Germany), and others that
are named according to the province entrusted
to them. They recognize the commonwealth
or universal association, of which they are
ephors, as their immediate superior, as I
have said. There may be some dukes, counts,
nobles, and cities that are mediately under
the supreme magistrate of the commonwealth,
but immediately under other princes, dukes,
or counts as intermediate magistrates who
are themselves ephors, estates, or orders
of the commonwealth or realm. But these counts
and cities that are subject only mediately
to the commonwealth are not estates or orders
of the realm. 71
[§ 112] A special ephor has the same right
and power in the province entrusted to his
care and protection that the supreme magistrate
has in the whole realm. He exercises in his
territory those things that have been reserved
to the emperor under the sign of the imperial
crown. … 72
[§ 113] It is advisable that these general
and special orders, and particularly the
special ones among them, be bound together
by definite procedures and structures, that
they depend one upon the other, and that
each need the aid and counsel of the other.
Each order should also be kept within its
own boundaries so that it cannot injure another,
and should have definite remedies by which
it can be protected against wrongs from another.
It should have these remedies so that the
ambition of the ecclesiastical order, the
insolence of the nobility, and the license
of the commons may be restrained, and that
injuries of one order to another may be prevented.
Whence there arises a certain interdependent
and sober plan for governing the commonwealth—so
greatly praised by philosophers—that is the
preserver of public tranquillity and the
bond of human society. …
[§ 123] If to the contrary in a realm or
universal association there are no ephors
(who nevertheless in my judgment are most
necessary for properly constituting a commonwealth,
for reasons I have stated at the beginning
of this chapter), then these duties that
otherwise have been entrusted to ephors are
arranged for by the consent of the entire
people, proposed or obtained by tribes, by
curial or centurial divisions, or individually,
so that no prescription or encroachment contrary
to liberty or to the right of the realm (jus
regni)73 can be undertaken by the magistrate.
[§ 124] And if there are encroachments for
a season, they take nothing away from the
right of the people, but only add to the
wrongs of the king, as Junius Brutus learnedly
explains. 74 If the people, circumvented
by fraud, or constrained by fear and force,
has sold itself to be reduced to slavery,
it has a proper claim to complete restitution,
as Buchanan correctly asserts. 75 Indeed,
if a people is conquered in war, placed under
a yoke, and received into the society of
one commonwealth by the victorious people,
then it also uses the same right (jus)76
as its conqueror. And if by chance the people
has consented to wicked conditions by the
constraint of excessive fear, these are to
be considered invalid. 77 But if these conditions
are harsh and yet not repugnant to the natural
law (jus naturale), they are to be observed.
78
Moreover, by the negligence, perfidy, deceit,
fraud, or betrayal of ephors and optimates,
or by their conspiracy or collusion with
a prince, nothing is taken away from the
right of a people, and nothing is added to
the license of a tyrant. For it is wicked
and absurd to affirm that ephors are able
to transfer to a tyrant what they themselves
have never possessed, and that they can disperse
and alienate these rights of the associated
body to the disadvantage of the universal
association. They would thereby set themselves
in opposition to the fundamental laws of
the realm—to which the supreme magistrate
swore allegiance—that infuse spirit and soul
into the commonwealth and that distinguish
and separate the commonwealth from a band
of robbers and evil men. Thus they would
act from the assumption that the right and
ownership of the commonwealth is under the
control of the ephors rather than the people.
We have already spoken against and refuted
this assumption.
Endnotes
[1] [laws.]
[2] [the principle and practice of administration.]
[3] [the principle and practice of ordering
something well.]
[4] De jure universitatum, I, 3.
[5] [laws.]
[6] Romans 13:4.
[7] See Fernando Vásquez, Illustrium controversiarum,
I, 1; I, 42; I, 44. [The following discussion
refers to Vásquez and to Diego Covarruvias
more than to any other writers. Three books
by Covarruvias are employed: Practicatum
quaestionium; Regulae peccatum; and Variarum
resolutionum. ]
[8] Digest I, 2, 2, 9.
[9] See John 8:33, where the Jews pride
themselves that they have never been slaves
of anyone. See also Deuteronomy 1:16; 17:20;
I Kings 4:5, 9:22; I Chronicles 13:1 f.;
28:2.
[10] Digest L, 17, 32.
[11] See I Peter 2:13, where the magistracy
is called a human institution that is to
be properly obeyed.
[12] Deuteronomy 16:18.
[13] Deuteronomy 17:14.
[14] Deuteronomy 17:15. See also II Samuel
5:3; I Kings 1:34, 40; 6; 12:1 f.
[15] Proverbs 8:15.
[16] I Peter 2:13 f.
[17] Romans 13:1 f.
[18] [Petrus Gregorius, De republica, VI,
1, 1. See page 25, footnote 32. ]
[19] See Lupold of Bebenburg, De jure regni
et imperii, I, 6 and 16.
[20] [ourselves and the holy realm.]
[21] [in our and the holy realm’s behalf.]
[22] Psalm 24:1.
[23] [I Timothy 6:15].
[24] [The remainder of this chapter is devoted
to the ephors, and the next two chapters
to the commissioning of the supreme magistrate
by the ephors. Following thereafter are eighteen
chapters devoted to administration by the
supreme magistrate, and one concluding chapter
on types of rule.]
[25] The ephors are mentioned by Althusius
even in his major work on law, wherein is
assigned to them the responsibility for taking
legal action against those who abuse public
power, or against tyrants. Dicaeologica,
III, 16, 6.]
[26] Practical Politics, IV, 3. [Botero,
however, does not consider ephors to be an
unmixed blessing, as he says in this chapter
cited by Althusius. They are good insofar
as they provide stability and continuity
in a realm during times of emergency; they
are bad insofar as they weaken the power
of the king and provide a force in being
for potential mutiny.]
[27] [Althusius refers to the following
biblical passage here and at several other
points in this discussion of the ephors:
“And the Lord said to Moses, ‘Gather for
me seventy men of the elders of Israel, whom
you know to be the elders of the people and
officers over them; and bring them to the
meeting tent, and let them take their stand
there with you. And I will come down and
talk with you there; and I will take some
of the spirit which is upon you and put it
on them; and they shall bear the burden of
the people with you, that you may not bear
it yourself alone.’ ” Numbers 11:16 f. R.
S. V]
[28] Emmanuel Meteren cites examples and
arguments from the Belgian polity. A General
History of the Netherlands, XIV.
[29] Practicarum quaestionum, 1, 4.
[30] Digest L, 1, 14.
[31] Digest L, 1, 19; L, 17, 160.
[32] Variurum resolutionum, III, 1, 4. Lupold
of Bebenburg demonstrates the means by which
this is best done. See his De jure regni
et imperii, I, 6.
[33] Moses constituted seventy elders by
the mandate of God. Numbers 11:24 f.
[34] Quaestiones juris, I, quest. 3, num.
1 f. and 73; I, quest. 4, num. 50.
[35] [the imperial right, law, and power;
in a more general sense as applying to any
association, the right, responsibility, and
structure of rule.]
[36] [Althusius refers to the following
writers for support for this position: Junius
Brutus, Defence of Liberty Against Tyrants,
quest. 3; Francis Hotman, De antiquo jure
regni Gallici, I, 12 f.; Georg Obrecht, De
bello, thes. 161; Zachary Ursinus, Dispositiones,
III, 44 and ult.; Lambert Daneau, Politices
christianae, VI, 2 and 3; Otto Cassman, Doctrinae
et vitae politicae, 10; David Parry, Commentarius
(Romans 13); Juan de Mariana, The King and
His Education, I, 8; Emnmanuel Meteren, A
General History of the Netherlands, XIV and
XX.]
[37] [ The Commonweale, I, 8.]
[38] Questiones juris, I, quest. 2, num.
22 f.
[39] Henry de Suge, Summa aurea (Decretals
I, 33, 12); Nicolaus Tudeschi, Commentaria
(Decretals II, 1, 13); Vincent Cabot, Variarum
juris, II, 12.
[40] [A distinction is implied by Althusius
between the optimates as inferior administrators
of the realm, and the same optimates as ephors
of the realm. In the one role, they are not
“colleagues of the king, or of equal power
with him”; in the other role, they are collectively
“censors of the supreme magistrate,” and
superior in power to him.]
[41] Henry Rosenthal, De feudis, I, 5, 10.
[42] The Gallic War, V and VII. [ See especially
V, 11; VII, 14 and 15.]
[43] Among the theologians are Zachary Ursinus,
Exercitationes theologicae, II, exer. 44;
Lambert Daneau, Politices christianae, VI,
3; III, 6; John Calvin, Institutes of the
Christian Religion, IV, 20, 24 f.; Peter
Martyr Vermigli, Commentarii (Judges 3);
David Parry, Commentarius (Romans 13); William
Rose, De justa reipublicae christianae auctoritate,
2; Juan de Mariana, The King and His Education,
I, 7.
Among the jurists are Francis Hotman, De
antiquo jure regni Gallici, I, 2; Francis
Zoannet, De tripartitione defensionis, III,
num. 28 f. and 95 f.; Fernando Vásquez, Illustrium
controversiarum, I, preface, num. 102 f.;
Edigio Bossi, De principe et ejus privilegiis,
num. 55 f.; Charles Dumoulin, Consuetudines
Parisienses, tit. 1, art. 1, glos. 7, num.
9; Tobias Paurmeister, De jurisdictione,
I, 21, 19 and 42; Paris de Puteo, De syndicatu,
3, rub. “de excessibus regis”; Prospero Farinacci,
De crimine laesae majestatis, quest.
112, num. 24; [Nicolas Barnaud], Dialogi
in Gallorum, dial. 2; [Theodore Beza], Concerning
the Rights of Rulers; Junius Brutus, Defence
of Liberty Against Tyrants.
[44] Cicero, Duties, III, 6. [The words
omitted by Althusius are “if you can.” ]
[45] Digest XI, 7, 35. [This passage from
the Digest paraphrased by Althusius does
not actually mention a tyrant, but rather
anyone who comes forward “to destroy the
fatherland.” ]
[46] See examples in II Kings 10:5–7; 12;
15:5; I Kings 22:47.
[47] De antiquo jure regni Gallici.
[48] Chronicles, I, 107 and 171; II, 58
and 60; III, 134; IV, 44. [Froissart probably
did not himself divide his four books into
chapters. The many manuscripts from which
printed editions were later made divided
the books variously into chapters, and even
rearranged and abridged some materials. Consequently,
it is impossible to obtain complete accuracy
in chapter citation from the Chronicles unless
one knows precisely which of the numerous
manuscripts and printed editions was used.
Nevertheless, the point Althusius is making
would seem to find support from historical
incidents reported in the following book
and chapter divisions of the English translation
by Thomas Johnes: I,
170 and 171; II, 57 and 59; III, 135; IV,
45.]
[49] De dominio regis, III, tit. 5.
[50] [This edict or constitution was issued
in 1356. It fixed the method of holding elections
and coronations in the Holy Roman Empire,
and assigned duties and privileges therein
to specified electors.]
[51] Chapter XXXVIII.
[52] The Kingdom and the Regal Power, IV,
10; VI.
[53] [These examples from the Bible came
originally from Junius Brutus, whom Barclay
was attempting to refute along with George
Buchanan, Jean Boucher, “and other monarchomachs.”
The passage in Brutus is the following: “Now
seeing that the people choose and establish
their kings, it follows that the whole body
of the people is above the king; for it is
a thing most evident, that he who is established
by another, is accounted under him who has
established him, and he who receives his
authority from another, is less than he from
whom he derives his power. Potiphar the Egyptian
sets Joseph over all his house; Nebuchadnezzar,
Daniel over the province of Babylon; Darius
the six score governors over the kingdom.
It is commonly said that masters establish
their servants, kings their officers. In
like manner also, the people establish the
king as administrator of the commonwealth.”
Defence of Liberty Against Tyrants, quest.
3.
The nature of Barclay’s refutation of Brutus
is to observe that “examples of this sort
do not sufficiently suit the conclusion.
… For the examples plainly demonstrate that
you mean this conclusion about those who
constitute others under themselves, as Potiphar
Joseph, Nebuchadnezzar Daniel, and Darius
prefects under himself. But your discussion
before was about a king whom a people set
up, not indeed under itself, as Pharaoh or
Potiphar set up Joseph, and the others that
you mention, but plainly above itself and
promised that it would obey him. Have you
ever learned that it has been handed down
to memory that any nation set up a king under
itself?” Thus the significance of the four
biblical passages that follow, which Barclay
first produced and Althusius reproduced.
The Kingdom and the Regal Power, IV, 10.]
[54] Deuteronomy 17:14.
[55] I Samuel 8:19.
[56] I Samuel 10:19.
[57] I Kings19:16.
[58] [This right of resistance receives
further definition and limitation in Chapter
XXXVIII.]
[59] [Althusius neglects to develop this
idea at this point, but apparently had in
mind his belief that while rulers change
and are mortal, the people is immortal. In
a similar vein, Junius Brutus wrote that
“The commonwealth never dies, although kings
be taken out of this life one after another:
for as the continual running of the water
gives the river a perpetual being, so the
alternative rotation of birth and death renders
the people immortal.” Defence of Liberty
Against Tyrants, quest. 3.]
[60] Digest II, 1, 14. [ “It is accepted
in our system of justice that if anyone submits
himself to the jurisdiction of someone of
inferior or equal rank, the latter can administer
justice for and against him.” ]
[61] Digest V, 8, 6. [ “Indeed, it is said
that the son of a family can be the arbiter
in a matter relating to his father, and it
seems proper to many that he can also be
the judge.” ]
[62] Matthew Stephani, De jurisdictione,
II, pt. 2, num. 3.
[63] Commentarii (Code III, 13).
[64] Conrad Lancellot, Templum omnium judicum,
II.
[65] Theodore Beza, De divortiis et repudiis.
[No other theologian is mentioned by Althusius
in this connection.]
[66] The Kingdom and the Regal Power, IV,
25.
[67] Numbers 11:16 f. [R. S. V.]
[68] [Presumably the testimony of these
writers refers to various periods of Roman
history, and not merely to the monarchical
period. Or was Althusius simply careless
at this point in his historical attributions?
He also mentions in this connection the sixteenth-century
historian Alexander ab Alexandro, Genialium
dierum, I, 3; IV 6; V 2; VI, 24.]
[69] Thesauri politici, II, apos. 54.
[70] [Here follow brief discussion of ephors
in England, Poland, Belgium, and ancient
Sparta, and even briefer mention of them
in Hungary, Sweden, Denmark, Spain, ancient
Babylon, and ancient Philistia. The historical
sources acknowledged by Althusius are Sir
Thomas Smith, De republica Anglorum, II;
Martin Cromerus, De republica Polonici, II;
Lodovico Guicciardini, Omnium Belgii descriptio;
Niels Krag, De republica Lacedaemoniorum;
Daniel 3:3 f. and 27; 5; 6; Esther 1; 3;
4; I Samuel 5:8, 11; 6:4, 12.]
[71] See Chapter VIII, and Matthew Stephani,
De jurisdictione, II, pt. 1, chap. 4.
[72] Does Althusius mean “have not been
reserved to the emperor”?]
[73] [law of the realm.]
[74] Defence of Liberty Against Tyrants,
quest. 3.
[75] The Rights of the Crown in Scotland.
[ See also the Roman law titles “De in integrum
restitutionibus—Concerning Complete Restitution,”
and “Quod metus causa gestum erit—Where an
Act Was Performed Because of Fear.” Digest
IV, 1 and 2.]
[76] [legal order.]
[77] The author [Theodore Beza] of Concerning
the Right of Rulers, quest. 6. For examples
of wicked conditions, see I Samuel 11:2;
I Maccabees 1:55 [1:54?].
[78] See the example of the Gibeonites.
Joshua 9:25–27. |
Evans Experientialism 
