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

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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. …
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[§ 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.
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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.
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But if these conditions are harsh and yet not repugnant to the natural law ( jus naturale), they are to be
observed.
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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]
[2]
[3]
[laws.]
[the principle and practice of administration.]
[the principle and practice of ordering something well.]
[4] De jure universitatum, I, 3.
[5]
[laws.]
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