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

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Althusius_0002 9/10/05 4:09 PM realm united together exercise this right of electing collectively, not individually, unless certain ones among them hold this right by the common consent of all. … [§ 29] In this election conducted in the name of the associated people as the mandator, certain laws and conditions concerning subjection, and the form and manner of the future imperium, are proposed to the prospective magistrate as the mandatory. If he accepts these laws, and swears to the people to observe them, the election is considered firm and settled. This agreement entered into between magistrate and people is known as a mutually binding obligation. … [§ 30] The conditions and laws of subjection, or the form, manner, and limits of the entrusted imperium, are customarily defined in certain articles that are publicly read and proposed by one of the ephors to the magistrate to be elected. Then this ephor asks whether the magistrate is willing to abide by these articles in the administration of the realm, and solemnly binds his assurances by a written oath. … [§ 33] But if no laws or conditions have been expressed in the election, and the people has subjected itself to such a magistrate without them, then whatever things are holy, fair, and just, and are contained in the Decalogue, are considered to have been expressed, and the people is considered in the election to have subjected itself to the imperium of the magistrate according to them. 12 Indeed, there is no instance in which a people has conferred upon a prince the unrestrained licence to bring about its own ruin. 13 For a people when questioned could have doubtlessly responded that it had granted no power to accomplish its own ruin. … 14 [§ 35] If the people or commonwealth has conferred all its right and imperium upon the supreme magistrate, as it is said in the Digest, 15 or yields to him supreme power free from laws and without any reservation, exception, or condition, then the general wording is to be closely interpreted according to the subject matter—to the extent that the subject matter manifestly permits—so that whatever is the nature of imperium or reign, such is to be the interpretation of this general wording. The nature of magistracy and imperium is that they regard the utility of subjects, not the benefit of the one who exercises the imperium, and they administer the commonwealth according to right reason and justice. For, as Augustine says, when justice is taken away, what are realms other than large bands of robbers? 16 And so absolute power and the jurisdiction of sinning cannot be given to the supreme magistrate. Therefore, even a concession made with the most general wording is to be interpreted in support of the welfare and utility of the conceding people. For the mind of the conceding people was surely that which restricts and limits the general wording. [§ 36] Indeed, the people in constituting a prince by no means intended to elect a tyrant to the ruin of itself, or to lose the capacity to protect itself. For a prince can easily degenerate into a tyrant or do what is contrary to nature, so that the power of the one may then be greater than the power of the whole. So even in a general mandate or concession, things are not included that anyone would not have conceded in a special mandate, especially those things that tend toward the ruin of the conceder, the destruction of human society, and the violation of divine law. I add that no one can renounce the right of defense against violence and injury. And the power of correcting an errant king, which the ephors have, has not been transferred to the king and cannot be so transferred. Nor can the supreme right in a commonwealth be transferred, because it is by nature incommunicable, and remains with the body of the universal association. [§ 37] Moreover, there is no power for evil or for inflicting injury. There is only power for good and for giving support, and thus for the utility and welfare of subjects. Therefore, the power that the people has, not a power that the people does not have, is considered to be given by this general wording. … 17 [§ 39] The laws and conditions by which Charles V swore allegiance when elected emperor are recorded by Jean Sleidan. 18 “1. He (Caesar) shall defend the Christian commonwealth, the pope, and the Roman church, of which he shall be the protector. 2. He shall administer law ( jus) fairly, and seek peace. 3. He shall not only confirm all the laws ( leges) of the imperium, and especially what they call the Golden Bull, but with the counsel of the electors he shall also amplify these laws when there is need to do so. 4. He shall convene a senate chosen from Germans in the imperium, which will oversee the commonwealth. 5. He shall not in the least rescind or diminish the rights, privileges, and dignities of princes and orders of the imperium. 6. He shall permit the electors, when there is need, to convene among themselves and to deliberate concerning the http://oll.libertyfund.org/Home3/EBook.php?recordID=0002 Page 82 of 132
Althusius_0002 9/10/05 4:09 PM commonwealth; and he shall not place any impediment whatever before them, nor shall he annoy them. 7. He shall abolish leagues of the nobility and of the masses, or societies entered into against princes, and prohibit them by law so that they may not arise later. 8. He shall make no league or covenant with foreign nations concerning things pertaining to the imperium, except with the consent of the seven electors. 9. He shall neither sell nor pledge the properties of the imperium nor impair them in any other manner; and as soon as he can he shall recover those lands that have been occupied by other nations, and those goods that have been removed from the imperium, but without injury to those who by right or privilege depend upon them. 10. If he or any member of his family possesses something not legitimately acquired that belongs to the imperium, he shall restore it when requested to do so by the seven electors. 11. He shall cultivate peace and friendship with neighboring and other kings; and he shall not undertake any war on behalf of the affairs of the imperium, either within or beyond the boundaries of the imperium, without the consent of all orders, and especially of the seven electors. 12. He shall bring no foreign soldier into Germany except with their consent; however, when he or the imperium is assaulted in war, it is permitted to him to do so, as it would be to any defenders. 13. He shall summon no assembly of the imperium, nor demand any tax or tribute, except by the consent of the electors. 14. There shall be no assembly beyond the boundaries of the imperium. 15. He shall not place foreigners in charge of public affairs, but Germans selected from the nobility; and all documents shall be prepared either in Latin or the language of the people. 16. He shall summon no estate to a court of law outside the boundaries of the imperium. 17. Because many things happen at Rome against the agreements entered into with popes in former times, he shall arrange with the pope that there be no injury to the imperial privileges and liberty. 18. He shall form a plan with the electors by which the merchant monopolies so greatly damaging to Germany may be restrained, and he shall carry the plan through to its conclusion. 19. He shall impose no duty or tax upon imported goods unless the electors consent, nor shall he lessen by letters of recommendation the tax of electors who are near the Rhine, 20. If he has reason for action against any order, he shall proceed by law, and he shall apply no force against those who place themselves under the judgment of law; [ … ] 19 21. He shall confer upon no one the goods of the imperium that have been accidentally vacated, but shall restore them to the public patrimony. 22. If he acquires a foreign province with the support of the orders, he shall add it to the imperium; and if he recovers some public property by his own strength and virtue, he shall restore it to the commonwealth. 23. He shall ratify what the electors of the Palatinate and Saxony have performed in their public capacity during the time of interregnum. 24. He shall not scheme to make the dignity of the imperium hereditary and proper to his family, but shall permit the free and unimpaired power of election to the seven electors, according to the law ( lex) of Charles IV and the prescript of pontifical law ( jus); and if anything shall have been done to the contrary, it shall have no effect. 25. As soon as he shall be able, he shall come to Germany for the inauguration.” … [§ 49] In the election of the supreme magistrate, the highest concern must be had for the fundamental law of the realm ( lex http://oll.libertyfund.org/Home3/EBook.php?recordID=0002 Page 83 of 132
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Johannes Althusius: Politica - Hubertlerch.com - HubertLerch.com

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