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

Chapter 5. Times of trouble. Taking a stand
A legal mode of succession has two great advantages. First, the insecurities
and irregularities of elections are avoided. Second, succession also avoids that
those ‘majestic states should depend on the will of a human being, who is
frequently driven into opposite positions by his passions, or on a hereditary,
patrimonial right that someone can steal or take away’. 28 A legal mode of succession
prevents a principate from being divided, and from this, weakened
and disintegrated by the pleasure of the prince (ab libitu principis). This preservation
of territorial unity is in the interest of the people, because they will
be more efficiently governed and better protected when they are living in a
large, undivided principatus that is governed by one single authority that can
use all the resources the principatus has to offer on the people’s behalf. ‘Therefore’,
Boxhorn concludes, ‘it is not without reason that it has been said, that
the common good and the prosperity of all turns upon this right [of primogeniture-JN].’
29 Thus, the particular importance of the right of primogeniture
consists of the fact that it helps to preserve territorial unity, which, on its turn,
serves the common good. This is precisely the same link that is made in the
Golden Bull of emperor Charles IV (1316-1378); and it is with a reference to
this Golden Bull that the claim of Charles I Louis to the electorate of the Palatinate
is defended in the original disputation. 30
The right of primogeniture, as an eternal law of the realm or as a common
law, binds both the prince and his subjects. The prince can alienate his own
rights by free consent. This, however, does not invalidate the rights of his lawful
successor. ‘Because the law of the realm, against which the prince can do
nothing, wants that the administration of the realm begins and continues in
that same order.’ 31 In a hereditary principality this law of the realm remains
binding even when the prince has forfeited his rights to rule by the crimes he
has committed. In such a case the person next in line automatically succeeds
28 Boxhorn, De successione et iure primogenitorum, p. 7. ‘… & ne augusta imperia vel ab arbitrio
hominis, quem identidem transversum affectus agunt, vel à jure haereditario patrimoniali, quod auferri
& adimi potest …’
29 Ibidem, p. 11. ‘Quare et publicum bonum ac commodum in hoc jure versari, haud temere asseritur.’
30 Boxhorn, Emblemata politica: accedunt dissertationes politicae de Romanorum Imperio et quaedamaliae,
XVII.14, p. 370. Decreed in 1356 at a Reichstag in Nuremberg, the Golden Bull would fix the election of
the king of the Holy Roman Empire, and regulate its procedures for 400 years. According to article seven
of the Golden Bull, the secular electorate (titulus et officium) and its privileges (ius, vox et potestas) fall to
the first-born male heir (filium ( suum primogenitum legitimum laicum laicum)
Why? ‘Pro bono commune’, because
in this way a quarrel among the male heirs about who it is that owns the privileges that are connected
to the electorate can be avoided. Article 25 states that the dukeships of the electors (kurfürstendom) is
indivisible. The electorate and its privileges were inextricably bound up with the dukeship. See Die Golden
Bulle Kaiser Karls IV vom Jahre 1356. Text Herausgegeben von der Deutschen Akademie der Wissenschaften
zu Berlin zentralinstitut fur geschichte. Bearbeiten von Wolfgang D. Fritz. (Hermann Bohlaus;
Weimar, 1972), pp. 60-62, 82-83.
31 Boxhorn, De successione et iure primogenitorum, p. 15. ‘Lex enim regni, contra quam non integrum
est principi quicquam facere, eo ordine regni iniri et continuari voluit administrationem.’
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