Jean Bodin: Six Books of the Commonwealth: Book 3

BOOK III[1]

The Council [CHAPTER I]

A COUNCIL is the legal assembly of the councillors of state, whose function it is to advise the sovereign in the commonwealth ... Not that a council is necessary to the continued existence of the commonwealth. A prince may be so wise and experienced that he is his own best councillor, and he may dispense with advice from anyone else, whether friend or foreigner. Antigonus, King of Asia, Louis XI of France, and the Emperor Charles V were of this sort. They followed the example of Julius Caesar, who confided in no one about his plans, his expeditions, or even the day he had fixed on for battle. Yet all these men accomplished great things, though assailed by many and powerful enemies. They were the more dreaded in that their designs being unknown, they were put into execution before the enemy had wind of them. Their subjects were kept in good order, ready to execute the commands of their prince the moment he lifted a finger. The state therefore flourished like a healthy body in which all the members obey the head without having any part in its deliberations.

But there are some who have doubted, without much reason to my mind, whether it is better to have a foolish prince who is well-advised or a wise man who eschews good counsel, though those who claimed to be wisest rejected the alternatives as unreal. They argued that in the first place, if the prince is as wise as supposed, he has no great need of counsel, and without it he enjoys the advantage of keeping secret his designs, which being made public would be about as effective as an exploded mine. In fact wise princes order things so well that they habitually talk most about what they are least concerned to accomplish. On the other hand how is it possible for a stupid prince to secure good counsel, when the choice of a council rests with him in the first place, and the ability to recognize worth and act upon good advice is itself a mark of knowledge of men and of affairs?

But since the gift of wisdom is vouchsafed only to the very few, and we are bound in obedience to all such princes as it pleases God to bestow upon us, the best thing we can hope for is that he may have wise counsel. It is much less dangerous to have a bad prince who is well-advised than a good one who is ill-advised, as the Emperor Alexander observed. The prince should be guided by the advice of his council in small matters as well as great. Nothing gives more authority to the laws, or to the commands of the prince, the people, or the ruling class as the case may be, than the knowledge that they proceed from good counsel ... Where subjects see edicts and mandates issued contrary to the advice of the council, they tend to treat them with contempt. From contempt of the law springs contempt of the magistrates. Open rebellion against the prince follows, and the whole commonwealth is brought to ruin. Hieronymus, King of Sicily, lost his throne, and was put to a cruel death together with all his family for having despised his council and refused to consult them... For this reason Louis XI caused his son Charles to be brought up practically without education, as Philippe de Comines's History shows, to force him to be guided by his council. Louis well knew that those who have a good conceit of themselves rely entirely on their own judgement, a failing which had brought Louis himself to the brink of destruction, as he afterwards confessed. ...

The council must necessarily be small in numbers in view of the rare qualities requisite in a councillor. It is true however that in popular and aristocratic commonwealths it has been necessary, in order to avoid disturbances, to appease the appetites of ambitious persons. In Athens, for example, by the ordinance of Solon, four hundred councillors were chosen by lot every fourth year. Later the number was increased ... But it is not really desirable that the size of the council should be determined according to the number of citizens, nor to satisfy the vanity of ignorant persons, still less to draw profit from such appointments. It should be chosen solely with regard to the virtue and wisdom of those who merit such a responsibility. If it is not possible otherwise to appease the ambition of those who enjoy political power in aristocracies and democracies, and political necessity demands the opening of the council to the multitude, then let eligibility be confined to those who have held responsible offices. ...

But one should not take such action unless there is no other way of avoiding popular disturbances. Apart from the obvious danger of the publicity which attends the communication of important matters to so many people, opportunity is given to the factions to create disorder ... It is moreover very difficult to assemble a very large council in the required numbers and to secure any agreement among them, and meanwhile the state is in great danger, and the opportunity for successful action is lost. ...

A council is instituted to advise those who exercise sovereign authority in the commonwealth. I say 'advise' because the council in any well-ordered commonwealth should have no power of action, nor of issuing commands, nor of putting into execution the policies it advises. All such matters should be referred to those who exercise sovereign authority. It is of course true that there are commonwealths in which such powers are in fact exercised by the council. But I hold that in a well-ordered commonwealth such powers ought not to be permitted. They cannot be admitted without a considerable diminution of sovereignty, more dangerous to a monarchy even than to an aristocracy or popular state. The majesty of a prince is best displayed when he can, and his prudence when he knows how to, weigh and appraise the advice of his council, and decide according to the opinion of the wiser part, rather than the opinion of the greater part. It may be objected that it is not fitting that high courts and officers of state should have power to command, and issue commissions in their own name, while the council, which judges the differences between them, should be denied such powers. But the answer is that high courts and officers of state have power to command in virtue of their institution, and their powers are delimited and defined in the edicts establishing their offices. There was never a council in any well-ordered commonwealth which had power to command by the terms of its institution. Therefore neither in Spain, England, or France do you find that the council is legally instituted as a college, with its powers defined by law in some statute, as is necessarily the case for the institution of all magistracies, as we shall show. If it is objected that the council has the power to revise the judgements of high courts and supreme magistrates, and that one cannot argue therefore that it has no power of action, I would point out that the privy council in doing this is not acting independently, but under a royal commission, as judges extraordinary in a matter of justice. ...

It may be questioned whether the council in a popular or aristocratic state has not more power than under a monarchy, having regard to the difference there is between one ruler and many, a prince and the people, a king and a multitude of men. We read of the Romans, whose republic was admittedly the most nourishing and well-ordered that has ever existed, that the Senate had the power to manage the finances, which is one of the undoubted attributes of sovereignty. It could also appoint lieutenants and governors of provinces, award triumphs, and consider matters of religion ... Notwithstanding all this, I still say that the council in a democracy or an aristocracy should have no function but to deliberate and advise. Power to act ought to be reserved to those who have sovereign authority. Whatever can be said about the powers of the Roman Senate, they were only a matter of dignity, authority, and counsel, and not of authority. The Roman people could, whenever it saw fit, confirm or reject the decrees of the Senate. The Senate had no power of command, or even of executing its own orders... If then in a popular state the council has no ordinary power of commanding, save on sufferance, still less has it such powers in an aristocracy or a monarchy. In a monarchy especially, the king is much more jealous of invasions of his authority than are a people.

The reason why the council in a commonwealth ought not to have power to give effect to its own advice is that, if it had, sovereignty would he in the council, and the councillors would rule, having power to manage the affairs of state and order all things according to their own good pleasure. This could not be without the diminution or even destruction of the sovereign majesty, though sovereignty is of so high and sacred a character that no subject of whatever degree can have any part in it, great or small. For this reason the Great Council at Venice, which in that state is the sovereign power, forbad the Ten, who were extending their activities beyond the limits prescribed, upon pain of treason to take any action, or even to dictate letters which they call definitive, without having recourse to the Signory, pending the assembly of the Great Council. ...

Officers of State and Holders of Commissions [CHAPTERS II AND III]

AN officer is the public person who has an ordinary charge defined by law. The holder of a commission is the public person who has an extraordinary charge defined in the terms of the commission. In each case there are two grades of persons, those who have power to issue orders, or magistrates, and those subordinate officials who can only take cognizance of the facts, or execute orders. There are other sorts of public persons who are neither officers nor holders of commissions, such as popes, bishops, and ministers of religion generally. They are holders of benefices rather than offices. This class of public persons must on no account be confused with the former, for their business is with divine matters, whereas officers and holders of commissions are only concerned with human affairs. Moreover their functions are not determined by edicts, or any laws of the state, as are those of officers.

Let us consider the accuracy of these definitions before entering into a more particular discussion of the various categories of persons. Neither the jurists, nor anyone else who has written about politics, has adequately defined, or even described, what an office is, and what the holder of a commission or a magistrate is. But it is very necessary to have a clear understanding of their functions, seeing that they form one of the principal parts of the commonwealth, for it cannot subsist without them. ...

The description of an officer as a public person is not disputed, since the difference between an officer and a private individual is simply that one has a public charge and the other has not. I have said that he has an ordinary charge to distinguish him from the holder of a commission. The latter has an extraordinary public charge occasioned by some particular circumstance. Such were in ancient times dictators, and members of commissions set up by the people, on the request of the magistrates, to inform about crimes. I have said that ordinary charges are defined by edict, for there is no way of creating an office to which a specific function is attached save by edict or explicit enactment. This principle was always observed in the ancient commonwealths of the Greeks and the Romans, and is even more strictly followed today. To this end princes are in the habit of requiring edicts establishing the humblest offices to be published both in high courts and inferior courts... An office, once created, is set up in perpetuity, even though the holder of it is only appointed for one year at a time. For whatever the term prescribed for the holder of it, an office remains, once it is established by law, until another law to the contrary effect abolishes it... I have said that it is an ordinary charge set up by law because the mandates of the Roman people, setting up commissions with extraordinary charges, were also given the name of laws, and the duties, the term, and the scope were determined by them. The commissions under which the Roman people from time to time set up a dictatorship are an example. The Lex Gabinia gave Pompey supreme command within the shores, and over the coast towns of the Mediterranean for the term of five years for the purpose of putting an end to piracy. ...

It is of the very nature of commissions that there are no conditions relating to time, place, and function included in their terms of appointment, which cannot be revoked at will. In point of fact a time limit is seldom set in monarchical states. But in popular states and aristocracies there generally is for fear of the commissioners acquiring sufficient power to destroy liberty. This happened with the Decemvirate in Rome ... The Florentines suffered in the same way. They set up a commission of ten, and gave them absolute power for four or five years to order the Republic, all other magistracies being suspended. But no term within which the reordering of the Republic was to be effected was fixed. This gave an opportunity to a clique to monopolize the government indefinitely though they went through the form of resigning.[2] The suspension of all the ordinary magistracies gives too much power to a commission, and cannot be done without grave danger to the commonwealth, save in a monarchy. ...

The distinction between an office and a commission can briefly be expressed in this way, that an office is like a lease which the proprietor cannot terminate till its term is expired; a commission is held at will, a precarious loan that the lender can call in any time he chooses ... A commission is terminated by the death of the grantor, or his express revocation, or when the holder succeeds to any office which makes him the equal of the grantor ... This is not the case with officers. Their offices are not terminated by the death of the prince, though they hold them on sufferance, and are, as it were, suspended till they receive letters of reappointment, or are confirmed in their offices by the new prince. For this reason, on the death of Louis XI, the Parlement of Paris, in obedience to a judgement of the court given in October 1381, ruled that all officials should remain at their posts till the will of the new king should be known. ...

There is another difference between an officer and a commissioner besides the fact that one has an ordinary and the other an extraordinary charge, and that is that the authority of an officer is the more extensive and takes precedence. For this reason edicts and ordinances leave much to the good faith and discretion of the magistrates, so that they can apply and interpret the laws equitably, and take into consideration the circumstances of the case. But commissioners on the other hand are strictly bound by the precise terms of their commission, even in affairs of state. Ambassadors and envoys, appointed to negotiate between princes, cannot go a step beyond their instructions unless some clause is added (as is often the case with diplomatic charges) allowing them, when they see how matters stand, to adjust or abate the terms as prudence and discretion dictate. But this never extends to the principal clauses and concessions of treaties, but only to minor matters of less importance. ...

The magistrate is the officer in the commonwealth who has the power to command obedience. We must first however explain that the institution of commissioners is older than that of officers. It is certain that the earliest commonwealths were governed by the sovereign authority of the prince in person, without the assistance of laws. The word, the sign, the will of the prince was law. Princes gave charges in peace and in war to whomsoever they wished, and revoked these charges at their absolute good pleasure. Public servants depended directly on the plenary authority of the prince, and were not secured by either laws or customs. Josephus in his second book against Appion, wishing to prove the illustrious antiquity of the Hebrew race, and of its laws, points out that the word law does not appear in Homer at all. This supports the case for supposing that the earliest commonwealths only knew commissions, since an officer is necessarily established by an express law. This would seem to compromise the sovereign power of the prince. For this reason the kings and princes who have been most jealous of their authority have adopted the expedient of including in all letters of appointment an ancient clause, reminiscent of the original despotic monarchs, that the office is held 'during our good pleasure'. It is true that in France, though it was once strictly observed, it has no meaning in fact since the ordinance of Louis XI.[3] But in Spain, England, Denmark, Sweden, Germany, and Poland, and all the Italian states, it is still strictly observed. Secretaries never omit it, and its appearance is another argument in favour of supposing that all public charges were originally executed by commissioners.

There is as much confusion among writers on the subject between the terms magistrate and officer as there is between officers and holders of a commission. Every magistrate is an officer, but every officer is not a magistrate, but only those who have power to command obedience ... Public persons who have an ordinary charge defined by law, which does not carry with it power to command obedience, are simple officers, the kind of persons the last Emperors call officiales. ...

In every commonwealth there are three things to be observed about the appointment of officers and magistrates; who appoints, who is eligible for appointment, and the method of selection. In the first case, it is always the sovereign who appoints. Who is eligible is also determined by the sovereign, but as a general rule he keeps to the laws which he himself has made, fixing qualifications. This is more especially the case in aristocracies and popular states. In the one case magistrates are chosen from the nobles, or the wealthy, or those who are most experienced in the matters with which their office is concerned. In the other case they are open to all conditions of citizens. As to the method of selection, it can be either by election, by lot, or a combination of the two. ...

Magistrates can also be divided into three grades. The first are what might be called sovereign magistrates, because they owe obedience to none but the sovereign himself. The second are the intermediate magistrates who owe obedience to the sovereign magistrates, but themselves have subordinates under them. The third are those inferior magistrates who owe obedience to both ranks of superior magistrates, but themselves can only command private citizens. Let us consider them in order.

The Magistrate [CHAPTERS IV AND V]

AFTER the sovereign, the magistrate is the chief personage in the commonwealth, for upon him the sovereign devolves his authority and his power of commanding obedience. We must therefore consider what obedience is due from the magistrate to the prince, since this is his first duty. Unlike the sovereign who knows no superior, but sees all his subjects obedient to his power, or the private citizen who has no official right to use compulsion against anyone, the magistrate is many personages of different quality, bearing, appearance, and mode of action in one. To fulfil his role he must know how to obey his sovereign, defer to those magistrates who are his superiors, honour his equals, command those subject to him, defend the weak, hold fast against the strong, do justice to all. ...

But before one can properly consider the obedience due from the magistrate to his sovereign, one must consider the form that the commands of the sovereign can take. For the prince issues orders of various sorts. There are general and perpetual edicts, binding on all sorts and conditions of his subjects whatsoever; or there are laws relating to certain persons, or certain circumstances, by way of provision; there are grants of exemption in favour of a single person, or a small group of such; or there are grants of privilege which do not involve any suspension of the law; there are grants of offices and commissions; there are the orders that declare war, publish peace, raise the army, or equip a fleet; there are levies of taxes, aids, subsidies, new imposts, and loans; there are the despatches issued to ambassadors instructing them to felicitate or condole with foreign princes, and treat of marriages, alliances, and such like matters; there are letters of execution for the expediting of justice, the restitution of minors, the remission of sentences, or pardon of offences and such like matters ... All these various kinds of orders can be reduced to two types, mandates and letters of justice. ...[4]

In letters of justice the prince leaves it to the discretion of the magistrate to whom the letters are addressed to act on them or not as his conscience and the demands of equity dictate. This is not the case with mandates, which leave nothing to the discretion of the executor, unless it be sometimes verification of the facts alone, but without any choice as to the execution of his instructions. It can therefore be said of letters of justice that though they proceed from the prince, they do not impose any command or compulsion on the magistrate to whom they are addressed. On the contrary, by the ordinance of Charles VII and Philip IV, judges are expressly forbidden to apply them if they are inequitable ... The question therefore as to how far the magistrate is bound to obey them does not arise.

Mandates on the other hand raise a difficulty, since they require the magistrate to enquire into the facts without giving him any discretionary power of action. What is he to do if, having informed himself of the facts, as directed, he sees that to act in the way commanded would involve a notable injustice? Sometimes princes accompany unjust mandates by particular letters close, praying the magistrate to execute them. In letters patent prayers are often accompanied by commands, 'We pray and at the same time command you that...' In acting thus, the prince derogates from his authority if the command is of public benefit, and from the law of God and of nature if it is unjust. A magistrate ought never to be entreated to do his duty, or dissuaded from doing a thing which is unjust and dishonest, as Cato said. Moreover command is incompatible with entreaty.

The difficulty may be settled in this way. If his instructions give him cognizance neither of the facts nor of the rights of the case, but simply require him to execute an order, he has no option but to obey, except the letters be notoriously null and void, or contrary to the laws of nature, such as was Pharaoh's and Agrippa's commands to slaughter the innocents, or in our own day those of the Marquis Albert to rob and despoil the poor.[5] If the subject of a particular lord or justice is not under any obligation to obey the lord or the magistrate who exceeds his jurisdiction and invades the sphere of another, even if the thing commanded be just and honourable, still less is the magistrate bound to obey orders from his prince which are unjust and dishonourable. In such a case the prince oversteps the sacred bounds of the laws of God and of nature. ...

If however the orders of the prince are not contrary to the divine and natural law, he must execute them, even if they are contrary to the law of nations, for the law of nations can be modified by the civil laws of any particular state, provided natural justice and equity to which the prince is bound is not infringed, but public or particular utility only is in question. Though we have stated that the prince ought to keep the oath which he has sworn, if he is constrained by oath, and even when not so, he ought to keep the laws of the commonwealth over which he is sovereign, one cannot conclude therefore that if the prince should fail in his duty in this or that respect, the magistrate need not obey him. It is not for the magistrate to take cognizance, or contravene in any particular the will of the prince in regard to positive laws, since the prince is free to disregard them. But if the magistrate is aware that the prince is setting aside a just and useful provision for one that is less so, he can delay execution of the edict or mandate till he has made representations. He can do this not once, but two or three times. But if, notwithstanding these remonstrances, the prince insists on obedience, then the magistrate must give it effect from the time of the original instruction if delay is dangerous. ...

It may be argued that a magistrate should refuse obedience to a mandate that he thinks is against natural justice, even if, in fact, it is not so. For the principles of what is called natural justice and natural reason are not so clear that there can be no uncertainty about them. The most famous jurists have disagreed about them, and the legal systems of different peoples run counter to one another, the laws of one rewarding acts which are punishable under another. One can find any number of examples, and it would take an infinity of time to make a full list. But I would answer that one should never do anything that one thought even doubtfully just, and much less anything that one was persuaded was of its very nature unjust, even though the prince commanded it. But if it is a question simply of justice according to the law, the magistrate ought to execute the sovereign's commands, even though he considers them legally inequitable. Therefore in order to secure that those rules which have been resolved upon as laws shall not be the subject of dispute, magistrates in all commonwealths are required to take an oath to observe the laws and ordinances. ...

There are those who question whether a magistrate ought not to resign his office rather than act upon an edict, a commission, or a mandate which he thinks against justice and natural reason, even if, when challenged, the majority, contrary to the opinion of the rest, consider it to be just. Rational and sound principles, it is argued, imply a well-regulated mind, and that is only found in those few who have wisdom and understanding. But I hold that in such cases it is not permissible for the magistrate to resign his office, unless allowed to do so by the sovereign. He is bound to obey the orders of his prince if, the justice of those orders having been called in question, the majority of the magistrates responsible for their execution are agreed on accepting them. Otherwise, if a magistrate were allowed to resign his charge rather than accept an edict approved by the others a dangerous, precedent would be created for all subjects to question and disobey the edicts of the prince, and it would be open to everyone in a place of trust to expose the commonwealth to danger, and leave it like a ship without a navigator in a tempest, on some pretext of justice which probably is the idle fancy of an eccentric, or of one merely concerned to think differently from the rest. One of the most laudable ordinances of Louis XII was that which required that when the Judges were divided by two or three opinions, the minority must range themselves on the side of the larger party, or parties, in order that a decision might be reached. There was some difficulty in getting the edict registered, for it seemed strange to the court that the consciences of Judges should be constrained in matters committed to their prudence and integrity. Nevertheless having considered the frequent difficulties that arose from the variety of opinions among the Judges, to the prejudice of justice and prevention of any delivering of judgement, the court verified an ordinance, which after some passage of time was recognized to be both just and useful. ...

There is however a great difference between edicts and ordinances which have become law, and those which are being submitted for registration. All magistrates, on their appointment, swear to keep the laws, and if they do otherwise, in addition to the legal penalties they incur, they suffer dishonour as perjured. But magistrates are free to examine edicts and mandates which are not already law, but submitted for registration, and can remonstrate to the prince before proceeding to verify them, as I have explained above. They can do this when the interest of a private citizen only is at stake. Even more can they do so when it is a question of profit or loss to the whole commonwealth. It is of much greater service to the commonwealth, and much more befitting the dignity of a magistrate, to resign his office than to help to establish an iniquitous law.[6] ... The constancy and firmness of magistrates has often enough saved the honour of the prince and preserved the dignity of the commonwealth.

The mandates which are of greatest consequence to the public welfare are those granting privileges, dispensations, exemptions, and immunities. The magistrate ought therefore to be particularly vigilant in examining them, especially in popular states, where inequalities caused by grants of privileges bring about popular disturbances which often lead to the downfall of the commonwealth ... There is no need to enter into a discussion of the vexed question of privilege at this point. It is sufficient in passing to warn the magistrate to pay close attention to letters granting privileges, and examine carefully the claims of the person to whom the prince is making the grant. It is well known that often enough the prince has never set eyes on those who extract privileges from him. There is no ruse or stratagem which has not been tried in order to defeat the laws and abuse the goodwill of the prince and his officers. ...

Once the magistrate has remonstrated with the prince about the truth of the facts and the import of his orders, he is quit of his duty, and must obey if he is nevertheless required to. Otherwise the majesty of a sovereign prince would be a sham and at the mercy of the magistrates. But what is to be feared is not so much that the sovereign majesty of the prince will be diminished, as that first the lesser magistrates, and then the people as a whole, will be encouraged to disobey the prince. This leads inevitably to the downfall of the state. If anyone says to me that the prince ought never to command anything which is iniquitous, I agree, and would add, he ought never, if possible, to command anything which might be considered reprehensible or open to criticism. If he knows that the opinion of the magistracy is against him in any matter, he should avoid putting constraint upon its members. For in such circumstances an ignorant people is moved to contempt for the laws, and to the habit of disobedience, seeing them established only by compulsion.

But supposing the prince does indeed fail in his duty, and command something which is contrary to the public good and the justice of the laws, but not contrary to the law of God and of nature, what ought the magistrate to do? If the humblest magistrate ought to be obeyed even when he commands something inequitable, how much more should the sovereign prince be obeyed, since all magistracies derive from him? The laws, founded on the experience of wise men, repeat over and over again that one should obey the magistrate whether he commands what is just or unjust... Have we not all seen subjects arm themselves against their sovereign prince, following the example of disobedient magistrates who have refused to register or execute the laws? The cry is always raised, this edict is damaging to the common good, and we ought not to, and cannot register it. It is good that a protest should be made. But should the will of the prince remain firm and immutable, is one justified in hazarding the safety of the state? Should one allow oneself to be compelled? Is it not better to resign one's office? On the other hand is there anything more dangerous or more wicked than disobedience and contempt of the subject for his sovereign? It is our opinion that it is better to submit obediently to the majesty of the prince, than by refusing to carry out his orders, give an example of rebellion to the subject, bearing in mind always the qualifications we have already made. These principles hold good especially when it is a question of the honour of God which is, and ought to be, of more moment to the subject than the goods, the life, the honour of all the princes of this world ... But it is also necessary to beware of opening the door to rebellion on the pretext of conscience, or an ill-founded doctrine. So much for the obedience due from the magistrate to the sovereign. Let us now consider his powers over private citizens.

We have said that the magistrate is the officer who commands in the name of the commonwealth. The right of command belongs to him who has authority to constrain those who do not wish to obey his orders, or who disobey his provisions, and who can suspend his own prohibitions. When we say that the force of law lies in the fact that it commands and prohibits, permits, and punishes, we are speaking of the magistrate rather than the law, which is silent. The magistrate is the life of the law because he accomplishes these things. The commands and prohibitions of the law would be useless were it not for the penalties for contravention, and the magistrate who gives them effect.

Properly speaking the law is only concerned with prohibitions and the punishment of those who disobey, for a command implies a prohibition of any breach of that command. Law is not permission, for permission suspends prohibitions, and therefore carries with it no penalty or threat of punishment, without which there can be no law, seeing that law signifies nothing else than the command of the sovereign, as we have shown. But whatever penalties and threats of punishment may be attached to the law, they never follow in fact on an act of disobedience save through the agency of the magistrate. The force of all laws is therefore vested in those with power to command, whether it be the sovereign prince or the magistrate, for they alone can constrain the subject to obey, and actually punish him if he does not do so. Thus are those commands executed which Demosthenes calls the nerves of the commonwealth.

I have said that the magistrate has a public power of commanding, to differentiate his authority from domestic power. I have said he has power to constrain, to distinguish him from those who have only cognizance of causes, who can judge, and pass sentence, and cite before them, but who have no power of compulsion, or of executing their own judgements and injunctions. Such were the ancient pontiffs, and in our times the bishops. In ancient times commissioners appointed by the magistrates had cognizance of the causes committed to them and could pass sentence, and even summon parties before them. But they had no power of compulsion, and they had to submit their sentences to the magistrates for confirmation or rejection as seemed good to them ... Nowadays by our statutes and ordinances, the commissions issued to judges give them powers of compulsion, and they can execute their own sentences by means of their serjeants and other public persons, under commissions sealed with their seals. Bishops, having no such powers, report their sentences to the magistrates for execution. ...

The simplest kind of constraint that can be imposed by those who have powers of compulsion is seizure of body or goods. It is no good being able to summon an accused person, pass judgement on him, and impose a fine, unless one can seize the person or the goods of the convicted man who will not obey ... The magistrate has power to convict or acquit, and take cognizance some of matters concerning property, others concerning property and honour, and yet others of property, honour, and corporal pains exclusive or inclusive of the death penalty, with or without appeal from their decisions. The highest degree of compulsion is power of life and death, that is of condemning to death, or of pardoning those who have incurred this sentence. This is the highest attribute of sovereignty, proper to the majesty of a prince, and inherent in him to the exclusion of all other public persons.

It follows that there are two sorts of public persons with a right to command. One is the sovereign right which is absolute, unlimited, and above the law, the magistrates and all citizens. The other is the legal right, subject to the laws and the sovereign. This is proper to the magistrate, and those who have extraordinary powers conferred on them by commission. These persons can exercise the right only until their office is revoked or their commission expired. The prince after God recognizes no superior whatsoever. The magistrate, under God, holds his powers of the prince and exercises them subject to the prince and the laws. The citizen, under God, is each according to his degree subject to the prince, his laws, and his magistrates, each in his proper sphere. I should add that I comprehend under the name of magistrate all those who have rights of jurisdiction annexed to their fiefs, for these rights they hold of the prince just as does any other magistrate. Only sovereign princes have an absolute right to command, in the sense that they alone can use the phrase 'I ordain that ... '. The will of the magistrate, and of all others who have power to command is subject to the will of the sovereign, to which they are strictly bound, for he can revise, amend, or revoke his orders at will. Therefore the magistrates can never, either individually or collectively use the phrases 'for such is our good pleasure', or 'on pain of death' in the commissions they issue. Only the sovereign can do this in his ordinances.

This raises an important question which has never been properly determined, and that is whether the power of the sword is peculiar to the prince and inseparable from his sovereignty, so that the magistrate has only the right of execution of high justice, or whether such power is proper to the magistrate because communicated to him by the prince. ...

But this point cannot be settled unless two other questions are resolved. First whether an office belongs to the commonwealth, to the sovereign, to him who holds it, or is common to the public and the subject; second whether the power which is delegated by the institution of a magistrate belongs to him to whom it is given in virtue of his office, or whether it belongs to the person of the prince, but is exercised by the magistrate, or is common to the prince and the magistrate. The first question presents no difficulty. All magistracies, jurisdictions, and offices whatsoever belong to the commonwealth (except in a despotic monarchy) and the provision only belongs to the sovereign. They cannot be appropriated by individuals except by the grant of the sovereign, the consent of the estates, or confirmed by long undisputed enjoyment, as is the case with the duchies, marquisates, counties and other feudal jurisdictions which were in ancient times commissions which could be revoked at will by the sovereign, but were subsequently granted for a man's life, and then to his heirs, male and then female, till they have become a form of patrimony in many kingdoms. The power of the sword and other feudal jurisdictions are now without doubt the property of the holders once they have rendered faith and homage, sworn to hold of the sovereign, saving always the right of appeal and other sovereign rights. ...

Although the powers of the marshals are only given them for the prosecution of war, nevertheless military discipline carries with it the power of the sword, although this is not expressly laid down by statute, and has nothing in common with the powers legally vested in police and other magistrates ... In all commonwealths the power of the sword belongs to marshals and captains in chief, without limitation, or restriction to any given form of procedure, or the ascription of given penalties to given crimes and misdemeanours. All is left to their judgement and discretion. They therefore cannot be regarded as simple executors of the law, for there is no law governing their modes of action. One must therefore conclude that in their case the power of the sword is transferred to them in person. ...

This point cleared up, we can proceed to the next. It follows that the powers granted to a magistrate by his institution to an office are proper to that office, since the office is not his personal property ... One can lay down as a general rule that whenever and in as much as magistrates or commissioners are obliged by laws and ordinances to use the powers committed to them in a strictly prescribed manner, whether in matters of procedure, or in the sentences they must inflict without power of increasing or modifying them, they are the simple executioners and ministers of the prince and the laws. No authority properly belongs to them whether it be a matter of police, or justice, or war, or diplomacy. But where they are allowed to use their own judgement and discretion, power and authority properly belongs to them. There are two principal considerations that magistrates in all commonwealths should have before their eyes, and those are the law and equity. That is to say there is always the question of how the law is to be executed, and of the function of the magistrate in relation to it. The word judgement should be confined to that which is ordained by the magistrate under the terms of the law. The word decree only refers to that which is based on the principles of equity and not law. For this reason the decisions of the prince are called decrees and not judgements, since the sovereign is not subject to the law. It is an error then to use the term decree for anything else than a sentence of the council proceeding from deliberations undertaken at the prince's instance, a sentence of the prince himself, or an order of a magistrate to which neither law nor custom binds him.

There is the same relation between equity and the function of the magistrate as there is between law and its execution. In the cases in which the magistrates are not bound by rigid rules of law they resemble arbitrators in a matter of right. Where they are strictly bound by the letter of the law they resemble judges appointed to take cognizance of the facts simply without power of adjudicating on the justice of the cause. In the one case their position is servile, in the other honourable, because in the one case they are bound by the law and in the other not. In the one case they are only concerned with determining the facts, in the other with determining what is right, so that in the former case the decision rests with the law, and not with them as in the latter case. By way of underlining this difference, the law allows no appeal from a sentence in which the magistrate has no option but to apply the letter of the law, except an appeal against conviction. But one can appeal against a sentence which depends on the discretion of the magistrate. The penalty inflicted by the law however is inflicted by the sovereign, from whom there is no appeal.

In ancient times it was usual to bind the hands of magistrates, governors, ambassadors, and generals in the field by compelling them by the strict letter of the law in what they undertook, the forms they used, and the penalties they inflicted, without power of addition or subtraction of any sort. Today the tendency is all the other way. There is hardly a state in which pains and penalties do not depend upon the consideration and arbitrament of the magistrate. In all civil cases he has complete discretion, without being bound in any way by the pains ascribed by Roman law or by decisions recorded in the courts. The Emperor Justinian caused a great deal of confusion by attempting to embody these latter in a code strictly binding on magistrates in the execution of their functions. But judges and jurists alike wished to do what they considered just, and that was often incompatible with ancient rules. In the end it was found necessary to leave all to the conscience and good faith of the judges, owing to the variety of circumstances, of places, and persons. This variety cannot be comprehended in any law or ordinance. And although there are still certain pains and penalties which are required by law to be inflicted without qualification in certain cases, nevertheless the magistrates do not keep to the restrictions. An example is the edict against coining published by King Francis I, inflicting the death penalty in cases either civil or criminal. The very parlements, bailiffs, and seneschals who registered it without demur do not keep it. They have found by time and experience that the edict is inequitable. The infinite variety of circumstances do not permit of uniform treatment. ...

The magistrate, when not in court or exercising his magisterial function, is no more than any other private citizen, and if he does anyone a wrong, he may be resisted and legal redress sought. But when exercising his function in his official resort, and not exceeding his powers, there can be no doubt that he must be obeyed whether he does that which is right or wrong, for so says the law. If he exceeds his sphere or his competence one is not bound to obey if the excess is notorious. The remedy is the appeal. If there is no possibility of appeal, or if the magistrate persists without deferring to his superior, then one must distinguish between the wrong that is irreparable and that which can be remedied. If the latter, the injured person has no right of offering any sort of resistance. If the former, for instance if it is a question of life or limb and the magistrate persists in proceeding to execute judgement without permitting appeal, in that case one can resist, not so much in order to defy the magistrate, as to defend the life of one in danger, provided always the action is disinterested. It is never permissible to resist the magistrate in the confiscation of property, even if he is exceeding his powers, and will not allow an appeal. One can proceed to appeal, or petition, or to bring an action against him, or by some other means. But there is no law human or divine that permits one to take the law into one's own hands, and use force against the magistrate, as some have argued. This opens the way to rebels to trouble the commonwealth. For if it is permitted to the subject to seek redress against the magistrate by force, by parity of argument one could similarly resist the sovereign prince, and trample the laws underfoot altogether. ...

Not only is it not permissible to offend or injure the magistrates by word or deed, but they should be honoured and reverenced as those to whom God has given power ... The magistrate on his side should merit respect for his justice, his prudence, and devotion, so that subjects should have sufficient occasion to honour him. He should not prejudice the honour of the commonwealth by his own unworthiness, for a fault committed by a magistrate is doubly reprehensible. By a provision in his laws Solon allowed the magistrate who was drunk in the exercise of his duties to be put to death. This illustrates how strongly vice was reprobated, and a good reputation expected in a magistrate. Many magistrates seek to avoid criticism by severity in judgement. Others seek popularity by pardoning freely. But the law condemns both excesses. Many of those who have discretionary powers of punishment not precisely defined by law make the mistake of thinking that equity supposes a greater leniency than the rigour of the law requires, imagining that equity does not spring from strict justice but from mercy. But equity is not to be identified with either justice or mercy, but is a balance which can incline either way. If the crime is greater than the penalties of the law cover, the magistrate with discretionary powers should increase them. If the misdemeanour is a light one, he should mitigate them. He should not aim at the reputation of a merciful magistrate; for this is a fault more to be avoided than a reputation for severity. For severity, though it is blameworthy, maintains the subject in obedience to the laws, and the sovereign who has instituted them. That is why the law of God expressly forbids the exercise of mercy towards the poor in giving judgement. ...

Concerning Corporate Associations, Guilds, Estates,[7] and Communities [CHAPTER VII][8]

HAVING discussed the family and its members, sovereign power, and magistrates, let us now consider corporate associations and guilds, beginning with their origins, proceeding to their powers and privileges, and concluding by deciding whether their existence is indispensable to the commonwealth. The difference between the family and a corporate association or guild, and the latter and the commonwealth, is the difference between the part and the whole. A community of a number of heads of households, or of a village, a town or a province can subsist without there being any commonwealth, and the family without there being any guild. But a group of families bound together by mutual trust forms a corporate association or community, and a group of corporate associations and communities bound together by sovereign power forms a commonwealth. The family is a natural community, the guild a civil one. The commonwealth is, in addition, a community governed by sovereign power, but it can be so small as to include no other civil communities or guilds, but to consist only of family groups. The word community is common to the family, the guild, and the commonwealth. The word corporate association properly speaking refers to a group of families, or a group of guilds, or a mixed group of both families and guilds.

The origin of all corporate associations and guilds is rooted in the family. As the principal stem put forth branches, so it was necessary to found separate households, hamlets, and villages, so that the family spread over a whole neighbourhood. But with the increase in numbers, it became no longer possible for them all to inhabit and find sustenance in a single place, and they were compelled to spread abroad. Gradually the villages grew into towns, each with its separate interests and distinct locality. As these communities were originally without laws, without magistrates, and without sovereign rulers, quarrels easily arose over such things as ownership of some spring or well. We find evidence of this in the Scriptures, and how the stronger party drove its weaker neighbours from their houses and villages. This led to the towns first surrounding themselves with ditches and then walls, and to men associating together, some for the defence of their homes and families, others to attack those in possession, and rob, despoil, and destroy them. The activities which were held in the greatest esteem among primitive men, says Plutarch, were the massacre, slaughter, and ruin of their fellows, and the reduction of them to slavery. We read also in Thucydides that conditions were the same throughout Greece only a little before his day, and brigandage was not in the least contemned. ...

This licence and impunity in preying upon one another compelled men, who knew neither rulers nor magistrates, to join together as friends for mutual defence one against another, and institute communities and brotherhoods ... A society or a community is rooted in mutual affection, that sacred flame which first springs into life with love between husband and wife, then between parents and children, then between brothers and their kindred, till it includes all those belonging to or allied to the family group. But it would have nickered out had it not been kept alight and fed by alliances, communities, corporate associations, and guilds, instituted by all sorts of people who knew no form of commonwealth, and were ignorant of the nature of sovereign power. This is illustrated in the book of Judges, where we read that the Hebrews were long without princes or magistrates, each living as he chose according to his own good pleasure, in perfect freedom. But they were bound together into communities of families and of tribes, and when harassed by their enemies, gatherings of the tribes met and chose a leader, whom God had inspired, to whom they gave sovereign authority. Many families and tribes thus united together by a sovereign power formed a commonwealth.

The first princes and lawgivers, not yet having discovered how to keep their subjects in the paths of justice, founded fraternities, guilds, and communities, for the parts and members of the body politic being thereby brought into agreement among themselves, it would be easier to regulate the commonwealth as a whole. Numa, the King and lawgiver of the Romans, established fraternities and guilds for all crafts, and to each fraternity appointed a patron, priests, and special sacrifices. Later a fraternity of merchants was founded, with Mercury as its patron, after the example of Solon, who permitted fraternities to be instituted for any sort of purpose, with power to make such statutes as they wished, provided they did not conflict with public law and custom. Lycurgus not only permitted, but strictly enjoined the setting up of such communities for both general and particular ends, and required all subjects to gather themselves into guilds of fifteen persons each for the purpose of common meals. These the Greeks called philitia because of the sworn friendship the members entertained for one another. In Italy similar guilds were called sodalitia because of the unity, intercourse and friendship, which bound together those who were in the habit of eating and drinking together. If differences arose amongst the associates, they composed them themselves, realizing that mutual trust is the foundation of any society, and much more necessary to men than justice. Justice is never pitiful. Involving as it does strict exaction of rights, it often makes enemies of friends. But mutual affection leads men to make concessions, and this secures that natural justice shall prevail. The sole end of all laws divine and human is to foster love among men, and between men and God, and this is best secured by intercourse and daily association ... Nowadays this is better observed among the Swiss than any other people in the world. In every town the fraternities and craft guilds have their guildhalls where they hold frequent banquets and festive meetings. The smallest village never lacks a communal hall for such purposes. Disputes are normally settled amicably, and the sentence recorded in chalk on the table at which they have eaten. As well as artisans and merchants, priests and bishops had their guilds and fraternities, and philosophers too, especially the Pythagoreans who lived together in common for the most part.

So much for the origin and growth of corporate associations and communities, which in course of time have come to be regulated by laws, statutes, and customs, in all commonwealths. In order the easier to explain this last development, one can say that all corporate associations and guilds are instituted for the purpose of religion; or police, which includes the administration of justice and the distribution of obligations; or to regulate the food supply and the merchants who handle it, and the crafts necessary to the commonwealth; or for discipline. A guild can be confined to a single craft or profession, or type of merchandise or kind of jurisdiction. Or many guilds can form a single corporate association, such as a guild for all crafts, merchants dealing in all sorts of commodities, all branches of learning, or all the magistrates. Or many guilds can become a general community or university. And not only guilds and communities, but all the inhabitants of a village, a district or a province have the right of association, and can, together with the guilds and communities, assemble as Estates. Each of these can have its particular regulations, statutes, and privileges.

We can therefore say that a corporate association or a guild is a legal right of communal organization, subject to sovereign power. The word legal implies that it is authorized by the sovereign, for without his permission no guild can be instituted. It also implies there is a constitution of the guild, determining the time, place, and form of meeting, and the business it is competent to transact. The word communal signifies that there can be no college where there is no common bond, though it is not necessary that everything should be in common. It is enough if there is an assembly open to all colleagues, a common trustee, or a common purse. It is not necessary that there should be a common life. Some people have called it a guild when three or more persons live together and share their goods in common. But this is a double error. In the first place such a group is not a guild, but parties to a contract for the sharing of property. In the second place colleagues of a guild live in their own houses apart, as do fraternities of craftsmen.

There are no restrictions as to the number that may form a guild, save that it must be more than three. By colleagues, I mean those who are equal in respect of communal rights, each having a deliberative voice. But the guild, or the prince, can choose one of the colleagues to rule, correct, and punish each individual among his colleagues. Bishops and abbots have power to chastise canons and monks. But if the head of the guild has such power over the whole body considered collectively, it is not properly speaking a guild, but rather a form of the family, like the colleges of young scholars where none of the bursars have a deliberative voice. If some of the bursars have collegiate rights and a deliberative voice in the assembly, then it is a college even though the rest of the young scholars are subject to the power and correction of a principal. ...

The person chosen by the guild or the prince to have authority over all his colleagues individually has two characters, one in relation to each of the others, and one in relation to the guild as a whole. He is called the principal, the bishop, the abbot, the prior, the president as the case may be, having authority to command each of the others. But in relation to the guild as a whole he is just one of the colleagues, though he has precedence over the rest. That is why these distinctions are preserved in the terminology used, bishop, canons and chapter, abbot, monks, and convent, principal, bursars, and college. One of the greatest of the jurists[9] was in error on this point when he said that the philosophers use college for the persons who make it up. But no philosopher has said this, for college is a legal concept. The whole revenue and privileges of a college may be vested in one person, all the others having died. The college survives legally and its property cannot be seized for the fisc, nor by private persons until the college has been dissolved by the authority of the sovereign. ...

The origin and definition of a guild and a community having been demonstrated, its authority in general must be considered. These general matters cannot be ascertained from articles of incorporation, statutes, and particular privileges, for they are infinite in number, being diverse for the diversity of communities. The first corporate associations and guilds in any commonwealth, and those which are most influential, are the colleges of judges and magistrates. Not only have they authority over the minority of the college considered collectively, and over each in particular, but also over persons who are not members of the college, but subject to its jurisdiction. The peculiarity of colleges of this type by comparison with all others is that whereas guilds are established in general to regulate what is common, colleges of judges and magistrates are instituted chiefly for the purpose of regulating the affairs of outside persons, and even other colleges, and correcting them if they do anything contrary to their laws and statutes.

An upright man should be concerned first to be just in himself, before he starts administering justice to others, whence the Hebrews had a proverb that charity begins at home if it is to be true charity. Colleges of judges therefore should first establish a just order within their own ranks, before dispensing it to other people. It is therefore pertinent to consider whether it is better that colleges of magistrates should punish their own members, or submit the case to outsiders. To be brief, one must make a distinction. If the college is one of vicious men, the correction of their own vices should not be left to them. But if they are upright men there is no doubt that colleagues are better judged by the college than by other judges. There are imponderable values in each college which cannot be properly understood nor judged except by the members of that body. Moreover this reinforces the bond of union among the colleagues. For this reason the Emperor Adrian permitted a Roman senator only to be tried by the Senate. For the same reason civil suits between merchants, and suits concerning matters of trade have been very wisely conceded to the guilds and colleges of merchants, first throughout Italy and then in France. They decide summarily the disputes which arise out of contracts, which have peculiarities not found in other kinds of suits. As to other corporate associations and guilds, although they are not instituted for the purpose of justice or command, they nearly always have a limited power of coercion under their statutes and privileges. At times they even have unlimited powers, and correction is left to the prudence and discretion of the guild or its head. Such power should be exercised with the moderation that a father shows his son ... Canonists ascribe to abbots jurisdiction over their religious to the exclusion of the bishop, and this has been confirmed by a judgement of the Parlement of Paris. Monks cannot be brought before the magistrate even for what they did before entering religion. But this must be understood to refer to light and youthful follies only, otherwise a way would be opened for robbers and murderers to retire into such communities, in preference to the forests, to escape punishment. ...

As to the regulation of matters of individual interest to its members, in my opinion a guild cannot do anything without the consent of all the colleagues, as in the case of arbitrations. In all communities the express consent of each is required in all matters of common interest which concern all considered separately as individuals. But if it is a question of what is common to all considered collectively, then, if the greater part are agreed, they can oblige the rest, provided that what is to be ordained is not contrary to the statutes of the college as established by the sovereign, or by its founder and authorized by the sovereign. The ordinances of the commonwealth, and the statutes of the college not being slighted, the college can make regulations relating to the affairs of the community which bind both the minority as a whole, and each of the colleagues individually, provided that two thirds of the total number are present in the assembly, even if not agreed. But the majority considered as a corporate whole, still more the entire college, cannot be bound by their own statutes, any more than can the prince by his own law, the testator by his own will, or private individuals by their contracts, since they can be dissolved by common consent. Thus two thirds of the guild can repeal an ordinance made by the whole guild. This is a general rule applying to all communities, corporate associations, and guilds.

But in an assembly of estates made up of several corporate associations such as the Diets of the Empire, and the Estates of other commonwealths, which are composed of the three orders of clergy, nobles, and people, two of them cannot do anything to the prejudice of the third. Bodin, deputy for the third estate at Blois,[10] protested against the other two estates, with many forceful arguments, that the appointment of a body of thirty-six judges to examine the bills of recommendation presented by the Estates was prejudicial to the interests of the kingdom.

Whereupon the Archbishop of Lyons, president of the estate of the clergy, argued that the estate of the clergy and of the nobility had already settled the matter by so resolving. Bodin protested that from earliest times each of the three estates had jealously guarded its right not to be liable to coercion against its will by the other two. This principle had been accepted without question at the Estates of Orleans, and was the established practice in the Estates of the Empire, of England, and of Spain. He therefore prayed the other two orders to forgive him if he opposed the proposal, since he represented the interest of the third estate. This led forthwith to the matter being debated, and the estate of the nobility and the estate of the clergy changed their minds. That same day the king said in the presence of the Bishop of Angers and other seigneurs that Bodin had made the Estates dance to his tune. ...

To sum up on the subject of the powers of corporate associations and legitimate communities, the law of Solon is accepted on principle in all commonwealths, and approved by both jurists and canonists, that corporate associations and legitimate communities can establish such ordinances as they think in their best interests, provided they do not derogate from the statutes of the college, imposed or authorized by the king, or run counter to the ordinances of the commonwealth ... I do not agree however with those who say that a guild can make regulations, but cannot attach penalties to the breach of them. An ordinance has no force if there is no punishment for ignoring it, or if he who made the ordinance cannot compel its observation by penalties. We have any number of examples of craft guilds, legally incorporated, that have certain powers of coercion, of inspection of workshops and warehouses, and of seizure or confiscation of anything made contrary to the regulations, though the magistrate always has cognizance if they are resisted in so doing. ...

Let us now consider how an offending community can be punished... The acts of the majority of colleagues, or inhabitants of a town, agreed upon in their legally constituted assemblies, are the acts of the whole community or town. That is why in such a case the whole community is punished. Rebellions of towns, and insurrections of whole communities are punished by deprivation of privileges, of the right of association, by fines, imposts, enslavement, and other penalties according to the gravity of the case. But no such punishment should be inflicted unless the rebellion, or other crime, was committed by the will of the community, and agreed to in their formal assembly, as was decided by an order of the Court of the Parlement regarding the commune of Corbeil. Nevertheless if the penalty is corporal, even though the whole community should be convicted, only those who have consented should suffer it. But if the thing is done by some one particular person on the advice and with the will of the rest, they can each and all be prosecuted, and the punishment of one does not acquit the rest.

It may be argued that there seems little appearance of justice in punishing a whole community when the greater part were innocent of the offence. The alternative is however worse, and that is when victims are selected by lot, and the innocent run the same risk with the guilty that the choice will fall on them. This happened when the Roman army was decimated for having behaved with cowardice in the face of the enemy. The lot frequently fell on the bravest and most valiant, but they were executed for cowardice along with the rest. This incident was cited by the Senator Cassius when persuading the Senate to put four hundred slaves to death because one of their number had murdered their master. It is not, it is true, a solution of a problem to point out that the alternative action is worse. But one of the first principles of justice in action is that of avoiding among many inconveniences that which is the worst. When it is a question of crimes, it is of the first importance that they should not go unpunished. ...

The prince who suffers seditions and rebellions of the communities of his realm, whether towns or provinces, to go unpunished, gives encouragement to others to follow suit. Those who practice a remorseless cruelty, on the other hand, put the whole state in peril. He earns the reputation of a just prince, and preserves his state, who takes the middle course and only punishes the leaders of a rebellion. This was what Charles of France, afterwards King of Naples, did. Sent to chastise the inhabitants of Montpellier, he deprived them of their communal rights, consuls, and local jurisdiction, ordered the walls to be razed and the bells dismantled, and imposed a fine of one hundred and twenty thousand gold francs. Some writers say that one half of the property of the inhabitants was confiscated, and six hundred burghers executed by drowning, hanging, or burning. In effect however the matter was managed with more moderation and only the guilty were executed. Yet there had not been at Montpellier any assembly of the inhabitants, nor a deliberate conspiracy of the whole body. Even when all the inhabitants of a city have severally and collectively debated and decided upon a rebellion or a conspiracy, the wise prince will not punish them all, for fear of putting the whole state in danger. ...

It remains to be decided whether a commonwealth can dispense with associations and guilds. We have shown how men led by a sociable and companionable instinct, proceed to the foundation of communities of various kinds, estates, corporate associations, and guilds, till finally they achieve a commonwealth. After God, such communities have no surer foundation than friendship and goodwill among men, the which cannot endure unless fostered by associations, whether of estates, fraternities, corporate associations, or guilds. So to ask whether communities and corporate associations are necessary to the commonwealth, is to ask if the commonwealth can subsist without fellowship, which even the world itself cannot do.

I insist on this point because there have been those who think that corporate associations and guilds ought to be prohibited, forgetting that the family and the commonwealth itself are nothing but communities. It is an error that men of the best minds very often fall into, Because of some inconvenience attendant on a particular custom or ordinance, they want to abolish the whole thing, without considering what good it would do. I confess that the existence of ill-regulated communities entails a swarm of factions, seditions, cabals, monopolies leading at times to the total ruin of the commonwealth. Instead of mutual fellowship and charitable goodwill, one sees plots and conspiracies of one against another hatched. What is worse, under the veil of religion there have been societies practising a wicked and execrable impiety. There is no better example than the fraternity of the bacchanals in Rome. More than seven thousand persons were accused, convicted, and many executed or banished for the abominable misdeeds which they committed in the name of religion. This led to the suppression of the fraternities of the bacchanals throughout Italy by order of the Senate, confirmed by the people. A law was published forbidding sacrifices henceforth save in public. Long before this a Greek sage had argued with the Athenians that sacrifices under cover of darkness were extraordinarily suspect. It is much more conducive to the welfare of the commonwealth either to permit the public assembly of societies which claim religion as their purpose, or to prohibit them altogether, than to permit them to function as secret societies. For any sort of plot can be initiated in such secret sessions, and fostered till it infects the whole commonwealth. This is what happened at Münster where the Anabaptists multiplied in secret to such an extent that they invaded the whole state of Westphalia. ...

Therefore in answer to the question whether it is a good thing to have Estates and colleges, or whether the commonwealth can well dispense with them, I hold that there is nothing that contributes more to the security of popular states and the ruin of tyrannies; for these two types of commonwealth, contrary in themselves, owe their preservation or destruction to contrary conditions. Similarly aristocracies and rightly ordered monarchies are preserved by a moderate provision of Estates, corporate associations, and well-regulated communities. Popular states therefore encourage all forms of guilds and corporate associations, as did Solon when he set up a popular state in Athens. But the tyrant tries to eradicate them altogether, knowing full well that unity and bonds of friendship among his subjects spells his inevitable ruin. The good King Numa was the first to institute guilds of craftsmen. Tarquin the Proud was the first to suppress them and prohibit assemblies of the people. He even tried to get rid of the Senate by compassing the death of individual senators without making any new nominations. But immediately he was expelled popular assemblies were restored, the ranks of the Senate filled, the suppressed craft guilds revived. This policy was continued until they had reached a total of about five hundred, and had become so powerful as practically to rule the state, when the Senate abolished them. Nevertheless Claudius the Tribune, who renounced his title to nobility, and got himself adopted by a simple merchant, in order to qualify for the Tribune's office, restored and enlarged the guilds and fraternities in order to balance the nobles by the people. But the moment Caesar was made dictator he abolished them to enhance his own power and overthrow theirs. Once Augustus was secure in power however he restored them by express edict. Nero the tyrant suppressed them again. For tyrants have always hated popular associations and alliances. ...

But a just monarchy has no more secure foundations than the support of popular Estates and the communities of the realm. For whenever there is occasion to raise money, assemble the armed forces, or defend the state against the enemy, these things can hardly be compassed except by means of Estates-Generals, or Estates of each province, town or community. Even those who wish to abolish Estates haven't any recourse save to them in times of necessity, for once assembled to gether the people find the will and the strength for the defence and safety of their princes. This is especially so when an Estates-General of all the people is assembled in the presence of the sovereign. Matters touching the whole body of the commonwealth, and each of its members are there made public. There the just complaints and grievances of poor subjects, which otherwise would never reach the prince's ears, are heard and attended to. There the frauds, depredations, and usurpations committed in the prince's name, but entirely without his knowledge, are discovered. It is extraordinary what satisfaction subjects get from seeing their prince preside in their assemblies, how proud they are to appear in his presence. If he hears their complaints and receives their petitions, even though he must frequently refuse them, they are exalted by the mere fact of having had access to their prince. This practice of holding Estates is better observed in Spain than anywhere else in the world, for they meet every two or three years. This is also the case in England, for the people will not give up their control of taxation, so Parliament must meet. ...

I have said that moderation, which is in all situations a virtue, ought to be observed with regard to all kinds of associations and guilds in aristocracies and royal monarchies. To abolish all such societies is to embark on a barbarous tyranny and so ruin the state. But it is also dangerous to permit all sorts of assemblies and fraternities whatsoever. They are often a cover for conspiracies and illicit monopolies, of which we have had only too many examples. This is the reason why it has been found necessary from time to time to abolish fraternities by express edict, though such edicts have been very ill-observed. It is better however to get rid of abuses only, rather than root out good and bad alike. ...


1. Though this book is devoted to an analysis of the types of public functionaries characteristic of the commonwealth as such, Bodin has France in mind all through as his model, and so assumes a certain familiarity in the reader with French institutions. For elucidation of much of what he says in this book and elsewhere see R. Doucet, Les institutions de la France au XVIe siècle, 1948; and A. Esmein, Cours élémentaire d'histoire du droit français, 1892, etc.

2. There were many occasions when such a balm was set up in Florence. Bodin probably has in mind the one set up in 1434 under cover of which the Medici established their political dominance in the following 50 years.

3. After the war of the Public Weal, by an Ordinance of October 21st, 1467, the King pledged himself to fill no office 'unless vacant by death, voluntary resignation, or by forfeiture previously adjudged after sentence in a court of law'. In effect this made officers of the crown irremovable. It was however frequently violated, and only when offices in general became purchasable, under Francis I, were their holders secure.

4. Lettres de justice were designed to mitigate the rigour and rigidity of the customary law in civil cases. They were issued when parties in civil suits wished, for instance, to appeal against a judgement, or plead hardship in the strict application of the law, or contest the validity of a deed on grounds of some irregularity. They were directive, not compulsive, empowering the judge to admit the plea, but leaving the decision to him. Mandement was a term of much more general application, covering all orders indicating the king's will in the matter. For instance, the letters patent communicating to the élus the amount to be raised in taxation in their several districts were mandements. So also were the letters permitting members of the privileged orders to buy salt free of gabelle. The claim had to be verified by the Chambre des Comtes. Most important, to Bodin's mind, were the mandements bestowing any kind of royal gift or grant. They required verification as to the facts by the college of the four Trésoriers de France.

5. The terrible Albert Alcibiades of Brandenburg-Culmbach. He took advantage of the revolt of the Lutheran Princes against Charles V in 1552 to wage his private war of aggression on the Bishops of Franconia, which was distinguished for the ferocity with which he devastated the countryside.

6. Bodin was thinking of the custom requiring the registration of royal edicts by the Parlement of Paris. (In his time the Parlement offered considerable resistance, especially to edicts concerning religion.) Hence for him legal responsibility for consent belongs not to the Estates representing the three orders, but to the Colleges of Judges who administer the law.

7. The terms are, corps, colleges, états, communautés.

8. Chapter VI is concerned with the relations of the different grades of officials to one another. But it adds nothing in principle to Bodin's account of the nature of magistracy.

9. There is a marginal reference to Bartolus.

10. These Estates met in December-January 1576-77, a few months after the publication of the Six books of the Commonwealth. The passage was added in all editions after 1577. The point of the measure was to secure that the proposals of the Estates should be embodied in the forthcoming Ordinance. But the third estate feared its interests would be swamped. Bodin moreover objected on principle to dictation by the Estates to the king.


Next | Previous | Contents | Text Version

























More To Explore