historical and political thought in the seventeenth - RePub - Erasmus ...

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Chapter 5. Times of trouble. Taking a stand
to another and can even take place without a legal document (ab intestato). It is
a succession by means of ‘passing on’ (successio per transmissionem). 21
A legal principate (legitimus principatus), on the contrary, is not the prince’s
possession. The prince has the right of usufructus, the right of profit and enjoyment.
He does not own the principate, he only governs it (administrare). 22 The
legal principate is characterised by the fact that the succession is per remotionem,
by the force of a treaty. 23 The successor succeeds by the right of kinship or by
the right of being first born, primogenitur. When the bloodline of a ruling family
dies out the people or their magistrates have the right to elect someone new,
because succession in a legal principate is accorded by right or custom ‘on the
strenght of mutual consent and first distribution’. 24
Thus, in a legal principate the succession of the prince is constituted legally,
‘by the force of law’; it does not depend on the will of its former ruler. 25 The
most common form of legal succession is ‘succession in line’ (successio linealis):
‘that form of succession by which, via the closest blood relatives of him, of
whose family the people, providence, and the laws of the ancestors once have
approved, the state inevitably stays in the hands of that same family, as long
as it is kept under those conditions that once has been agreed upon.’ 26 This
form of succession can originate from the people or from a prince. 27
21 Ibidem, p. 9. ‘In illo Patrimoniali successio est, quae dicitur, Successio per transmissionem, seu
patrimonialis haereditaria ex testamento, vel ab intestato.’
22 Ibidem, p. 10. ‘Sequitur, uni familiae, & in ea proximis, ad principatum quaesito jure, principatum
non in patrimonio, dominio aut proprietate principis esse sed jure quasi usufructuario, vel potius
tanquam administratorem possidere.’
23 Ibidem, p. 9. ‘In hoc autem legitimo, successio, quae dicitur Successio per remotionem, seu linealis
legitima, vi contractus & legis, à defuncti jure aut dispositione non dependens.’
24 Ibidem, p. 11. ‘Non ex dispositione eius, cui succeditur, sed legis et consuetudinis, vi pacti et
primae concessionis proximo cuiqui debita.’
25 Ibidem, p. 8. ‘Ex hujus igitur legis, quae proximum succedere voluit, praescripto, non arbitrio
ejus, qui proxime gessit principatum, aut testamentali iure fit, ut proximus necessario succedat.’ The
prince as a minister, whose rule and rights are grounded upon ‘mutual consent’ and ‘first contribution’
are important features of what Howell Lloyd has called ‘constitutionalism’, a term that ‘signifies
advocacy of a system of checks upon the exercise of political power. Such a system is commonly taken
to involve the rule of law, a separation of legislative from executive and from judicial power, and representative
institutions to safeguard the individual and collective rights of a people who, while governed,
are nonetheless sovereign.’ In this chapter, but especially in chapter 8, we will see that Boxhorn indeed
adhered to many characteristics of this ‘constitutionalism’, although we have to keep in mind that, just
as Lloyd himself acknowledges, the term ‘had no currency in the political thought of the late fifteenth
and sixteenth centuries’. Howell A. Lloyd, “Constitutionalism”, in Burns (ed.), The Cambridge History of
Political Thought, pp. 254-63.
26 Ibidem, p. 7. ‘Illa [successio linealis-JN] hic nobis est, legitimus capessendi imperii modus, quo
per sanguine proximos illi, in cujus familiam ut regnaturam populus ac providentia & leges majorum
semel consensere, in eâdem, quamdiu superest, iis, in quas conventum est, legibus, imperium necessario
continuatur.’
27 In the Institutiones politicae Boxhorn explains that succession is the product of ‘election’ or ‘occupation’.
Election is typical of the people; occupation is typical of princes and aristocrats, who do so
against the people. Boxhorn, Institutiones politicae, I.3, pp. 17-18. See chapter 8.