Johannes Althusius: Politica - Hubertlerch.com - HubertLerch.com

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Althusius_0002 9/10/05 4:09 PM 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. http://oll.libertyfund.org/Home3/EBook.php?recordID=0002 Page 72 of 132
Althusius_0002 9/10/05 4:09 PM 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 http://oll.libertyfund.org/Home3/EBook.php?recordID=0002 Page 73 of 132
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Johannes Althusius: Politica - Hubertlerch.com - HubertLerch.com

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