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

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Althusius_0002 9/10/05 4:09 PM fundamentalis regni). For under this law the universal association has been constituted in the realm. This law serves as the foundation, so to speak, of the realm and is sustained by the common consent and approval of the members of the realm. By this law all the members of the realm have been brought together under one head and united in one body. It is indeed called the lodestone ( columna) of the realm. This fundamental law is nothing other than certain covenants ( pacta) by which many cities and provinces come together and agree to establish and defend one and the same commonwealth by common work, counsel, and aid. When common consent is withdrawn from these covenants and stipulations, the commonwealth ceases to exist, unless these laws are rejected and terminated by common consent, and new ones established, without harm to the commonwealth or impairment to its rights of sovereignty. Lambert Daneau sets forth an important difference between these fundamental laws and the rights of sovereignty. 20 A commonwealth or realm can be constituted and continue to endure, he says, without these fundamental laws. But without rights of sovereignty no commonwealth can be established or, if already established, conserved and passed on to posterity. … [§ 70] The election of the supreme magistrate is in accord with either of two types. One is entirely free, and the other is restricted to persons of a certain origin from whom the choice is to be made. For rulers are to be elected either from all persons or from men of a certain kind, namely, from the nobility or from a certain family. [§ 71] The entirely free election is one that rests upon the free choice of the ephors who do the electing. 21 [§ 72] In this unrestricted election, it is allowed to change the earlier polity, or to annul it and to establish another and new one. For the people, or body of the associated communities, retains for itself the free power to establish and change the commonwealth. The people is not obligated to anyone concerning the succession and continuation of imperium and administration, but upon the death of the last supreme magistrate as administrator of the commonwealth, it regains its authority ( jus) undiminished, which it can transfer to any other person whatever according to its own preference. 22 [§ 73] However, an atheist, an impious or wicked man, or one who is a stranger to true and orthodox religion should not be elected. Nor should a man from an ignoble or servile station in life. Nor should a bastard, for reasons provided by Petrus Gregorius. 23 Nor should one who is given to drunkenness, or inclined to vices and crimes. Nor should one who is unappreciative toward a good predecessor. But concerning the election of a woman, see my earlier comments 24 as well as those later in this chapter. There should be a regard for piety and virtue in the election to this indispensable office, however much at other times some men have been elected because of wealth, as historical examples testify, 25 others because of force and might, others by plots and stratagems, others by promises made and broken, and still others by lot. Such elections, however, are not without the consent of the people, and they are rightly permitted when neither regard for piety and virtue, nor counsel concerning them, can be exercised. [§ 74] The restricted election is one that has been limited by the agreement of the people and realm, or universal association, to persons of a certain origin. By established law, the right to be elected has been obtained for these persons, and it cannot later be withdrawn or transferred to another against their will, without injury and violation of trust. [§ 75] And so in this election a change in the polity once established and accepted by the people is not permitted to the ephors or to the people. The reason is that the people has obligated itself to certain persons, to whom it promised to continue the administration of this polity, and gave its word to them, which it is not later permitted to break. And this obligation passes over into the fundamental law of the commonwealth. The right of succession even attaches itself to the descendants of the first supreme magistrate while still in the loins of their parents, so far as they are not incapable of ruling because of defect or other disabilities. Therefore, they ought not to be rejected and excluded from imperium. … This restricted election, which leads political theorists to refer to a successive realm, is preferred by many to the free election. 26 For by this procedure every occasion is cut off for factions and conspiracies, which the ambition to exercise domination often excites, and many perils are averted that would ordinarily happen in a time of interregnum. The occurrence of much confusion and disturbance that accompanies an interregnum is also avoided, and imperium is continued without interruption. When, however, the persons become extinct to whom this election is limited, then this restricted election becomes a free one. The restricted election, by which they call a realm hereditary or successive, is either of two kinds. It may be limited to a certain nation and the nobles thereof, or to the heirs of the deceased supreme magistrate. [§ 76] In an election restricted to a certain nation, it is permitted to elect a supreme magistrate only from those having their origin within the realm. So among the Jews it http://oll.libertyfund.org/Home3/EBook.php?recordID=0002 Page 84 of 132
Althusius_0002 9/10/05 4:09 PM was not permitted by the fundamental law of the realm to establish a king unless he came from an Israelite family. For this reason the female Athaliah, a foreign-born queen, was cast down from the imperium. 27 So it is established in a fundamental law of the German imperium that no one who is not from the German nation may be elected emperor and caesar. [§ 77] An election restricted to the heirs of the deceased magistrate is in turn limited either to any heirs whatever, even foreign ones, or else to his family and blood relatives. … An election of the first kind, namely, one that is limited to testamentary heirs, even foreigners, is servile and pernicious. … [§ 78] An election of the other kind, namely, one that is restricted to the family and offspring, is also twofold. It is either limited to persons of both masculine and feminine sex, or to masculine heirs only. In the former, living masculine agnates of the deceased exclude females who are even closer in degree of relationship. But if no such males are living, females related by blood to the deceased are admitted. Vincent Cabot disagrees. 28 He considers it to be general in all realms in which females are able to succeed to the supreme magistracy that women who are descendant from the deceased in a straight line are to be preferred to men related in a lateral line, which he confirms by the opinion of Spaniards. But the previous judgment is approved by Jean Bodin, 29 and more nearly agrees with Mosaic law. 30 It also has greater regard for the commonwealth because it keeps the government thereof in the family of the deceased, and does not transfer this government to another family. 31 Such is the example of the Jewish polity, which is the best of all. … 32 [§ 80] In the election restricted to male heirs of the same family and clan, which excludes females as ineligible, the closest living males of the same family as that of the deceased are elected to the administration of the realm. [§ 81] So according to the fundamental law of the Jewish polity, kings from the family of David were elected continuously until the fall of Jerusalem under Nebuchadnezzar. … [§ 83] In this election according to hereditary succession carried out in keeping with the fundamental laws of the realm, the first-born ( primogenitus) from a legitimate matrimony is preferred, and the others are excluded. However, the first-born should make provision for his brothers that they may be able to maintain themselves decently. … [§ 85] This first-born is to be elected even if he is deaf, mute, of a different religion, or in any other manner awkward for ruling. … For once such a law of primogeniture has been established, the people has obligated itself to the supreme magistrate and to his descendants, and has even elected his descendants who are still in the loins of the parent. This promise once made cannot be withdrawn without a violation of trust and justice. … [§ 87] Wherefore, if a prince of a different religion is called to administer the realm, then the orders will undertake to instruct him in the true and orthodox religion. If this cannot be done, they will require him to grant the exercise of pure religion to the remaining members of the realm, as we see done in the German, Polish, French, English, and Swiss polities. … [§ 90] Election by the people is not excluded, however, in these hereditary realms. … The reason is that the person elected receives the realm not from his dead father, but from the universal association. This practice is customarily even more useful and favorable to the magistrate than it is pleasing to the people and worthy of respect to outsiders. For because of it obedience can much less be denied to him. Whence I consider it best that even in this case the people and members of the realm shall have reserved to themselves the election, so that they shall be permitted to choose the one from the many children of the deceased magistrate, or from his entire family, that they have judged best fitted for the administration of the realm. … [§ 92] THE INAUGURATION OF THE MAGISTRATE, which is also called a coronation, is the process by which he who has been elected by the magnates, after he has executed an oath that he will administer the realm according to the prescribed laws, is publicly confirmed and proclaimed magistrate in the presence of the people and with the invocation of the name of God. Thus he is inducted and put into possession of the realm, with the granting and handing over to him of the insignia and customary symbols by which the administration of the realm is represented. And, with the favorable and joyful acclamation of the people, he is greeted as supreme magistrate. [§ 93] The inauguration, therefore, is a renewal of the preceding election, and a solemn confirmation for stabilizing the authority of the magistrate and for making his person known to each and all. The inauguration, to be sure, does not add anything to the newly elected supreme magistrate. … [§ 98] These supreme magistrates bear and represent the person of the entire realm, of all subjects thereof, and of God from whom all power derives. They bear, as it were, the form of divine might, majesty, glory, imperium, clemency, providence, care, protection, and government. For this reason they use in their titles, “We by the grace of God,” and other similar formulas. … [§ 101] Such an elected and inaugurated supreme magistrate does not need the approval and confirmation of the pope. … 33 XX http://oll.libertyfund.org/Home3/EBook.php?recordID=0002 Page 85 of 132
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Johannes Althusius: Politica - Hubertlerch.com - HubertLerch.com

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