CHAPTER IV

THE COLLEGIUM

This completes the discussion of the natural association. We turn now to the civil association, which is a body organized by assembled persons according to their own pleasure and will to serve a common utility and necessity in human life. That is to say, they agree among themselves by common consent on a manner of ruling and obeying for the utility both of the whole body and of its individuals.^[1]

This society by its nature is transitory and can be discontinued. It need not last as long as the lifetime of a man, but can be disbanded honourably and in good faith by the mutual agreement of those who have come together, however much it may have been necessary and useful for social life on another occasion. For this reason it is called a spontaneous and merely voluntary society, granted that a certain necessity can be said to have brought it into existence. For in the early times of the world, when the human race was increasing and, though one family, yet dispersing itself — since all persons could no longer be expected to live together in one place and family — necessity drove diverse and separate dwellings, hamlets, and villages to stand together, and at length to erect towns and cities in different places. Accordingly, 'when the head of the family goes out of his house, in which he exercises domestic imperium, and joins the heads of other families to pursue business matters, he then loses the name of head and master of the family, and becomes an ally and citizen. In a sense, he leaves the family in order that he may enter the city and attend therein to public instead of domestic concerns.'^[2]

This is therefore a civil association. In it three or more men of the same trade, training, or profession are united for the purpose of holding in common such things they jointly profess as duty, way of life, or craft. Such an association is called a collegium,^[3] or as it were, a gathering, society, federation, sodality, synagogue, convention, or synod. It is said to be a private association by contrast with the public association.^[4] The persons who unite in order to constitute a collegium are called colleagues, associates, or even brothers. A minimum of three persons is required to organize a collegium, because among two persons there is no third person to overcome dissension. This is so even though two persons may be called colleagues so far as the power and equality of office is concerned. Fewer than three, however, are able to conserve a collegium.^[5]

Whoever among the colleagues is superior and set over the others is called the leader of the collegium, the rector or director of the common property and functions. He is elected by common consent of the colleagues, and is provided with administrative power over property and functions pertaining to the collegium. For this reason he exercises coercive power over the colleagues individually, but not over the group itself. Therefore the president of a collegium is superior to the individual colleague but inferior to the united colleagues, or to the collegium over which he presides and whose pleasure he must serve....

We will consider first the communication of the colleagues, and their symbiotic right (jus symbioticum) in this private and civil association, then the various types of the collegium. Communication among the colleagues is the activity by which an individual helps his colleague, and so upholds the plan of social life set forth in covenanted agreements. These covenants and laws (pacta et leges) of the colleagues are described in their corporate books, which we call Zunftbücher. Such communication pertains to (1) things, (2) services, (3) right, and (4) mutual benevolence.

The communication of things centres in mutual contributions of the colleagues to the collegium, and in acquisitions from other sources made according to its law. These things include the building of the collegium in which the colleagues meet and deliberate on their corporate business, as well as the money, income, drinking cups, seals, coffers, books, corporate records, and other things useful and necessary to the collegium assessed from the individual members or given from some other source to the collegium. The common purpose requires that all colleagues be considered participants within a common legal structure, not as separate individuals but as one body. So it is that what the collegium owes is not owed by the individuals separately, and what is owed to the collegium is not owed to the individuals separately....^[6]

The communication of services is determined by mutual agreement among the colleagues. The communication of skilled services consists, for the most part, in promoting the duties, business, and advantages of a craft, profession, or vocation, and in averting disadvantages. This is done according to the manner that has been tacitly or explicitly agreed upon by the colleagues. In this connection, the collegium bestows its approval on apprentices who have passed an appointed examination in the art, craft, or trade that the collegium professes.

Some services are more or less uniform and equally performed among the colleagues. Others, however, are dissimilar and unequal in character, and are the responsibility not of all colleagues, but either of some among them or of the one who serves as leader of the collegium. Among the latter services are the right and responsibility of calling the colleagues into session,^[7] of proposing the things that are to be deliberated upon, of conducting the voting, of opening letters to the collegium from outside sources, of maintaining the seal, coffer, privileges, and other goods of the collegium, and of adjourning its meetings. There may be further services required by the nature and order of the functions and activities for which the collegium was organized. If so, they are either distributed on a changing and rotating basis among the colleagues, or assigned to the common procurator or syndic of the collegium by the common consent of the colleagues.

The colleagues are recorded in the register of the collegium according to the law and convention they have agreed upon. But if there is no such law or convention, 'the status of each is to be observed so that they may be recorded in that order in which each of them has enjoyed the highest distinction. [...] In rendering opinions, also, the same order is to be respected that is observed in recording their names in the register.'^[8]

The communication of right among the colleagues is achieved when they live, are ruled, and are obligated in their collegium by the same right and laws (jus et leges), and are even punished for proper cause according to them, provided this is done without infringing upon the magistrate or usurping an alien jurisdiction. The problem of when a collegium or community (universitas)^[9] is able to establish its own statutes is discussed by Losaeus.^[10] Certainly the colleagues may establish statutes obligating them in whatever pertains to the administration of their goods, to their craft and profession, and to their private business. Their jurisdiction, however, must not infringe on the public jurisdiction, nor extend to those matters that are rightfully prohibited.

The common right (jus commune)^[11] of the collegium or the colleagues, which is customarily described in the corporate books, is either received from and maintained by the common consent of the colleagues, or is conceded and granted to them by special privilege of the superior magistrate.

A majority of all assembled colleagues binds the minority by its vote in those matters common to all colleagues, or pertaining jointly and wholly to the colleagues as a united group, but not in matters separately affecting individual colleagues outside the corporate fellowship. So in those matters that are to be done necessarily by the collegium, a majority is certainly sufficient, provided that in making decisions two-thirds of the collegium is present. The reason is that what is common to everyone is not my private concern alone.... However, in matters common to all one by one, or pertaining to colleagues as individuals, a majority does not prevail. In this case, 'what touches all ought also to be approved by all'.^[12] Even one person is able to object. The reason is that in this case what is common to everyone is also my private concern. In these things that are merely voluntary nothing ought to be done unless all consent, not separately and at different times, but corporately and unanimously....^[13]

The colleagues, on the basis of this right (jus)^[14] that is accepted by their common consent, can be fined whenever they commit anything against the laws (leges) of the collegium. Whence it comes about that one of the colleagues may exercise coercion over individuals, but not over the group itself. These fines are paid into the common chest or treasury of the collegium.

Mutual benevolence is that affection and love of individuals toward their colleagues because of which they harmoniously will and 'nill' on behalf of the common utility. This benevolence is nourished, sustained, and conserved by public banquets, entertainments, and love feasts.

The types of collegia vary according to the circumstance of persons, crafts and functions. Today there are collegia of bakers, tailors, builders, merchants, coiners of money, as well as philosophers, theologians, government officials, and others that every city needs for the proper functioning of its social life. Some of these collegia are ecclesiastical and sacred, instituted for the sake of divine things; others are secular and profane, instituted for the sake of human things. The first are collegia of theologians and philosophers. The second are collegia of magistrates and judges, and of various craftsmen, merchants, and rural folk. The collegia of magistrates are of particular importance because by their public power (jus potestatis) they set bounds for each and every other collegium....^[15]

At the present time in many places the people of a provincial city, realm, or polity, by reason of their occupation or kind and diversity of organized life, are customarily distributed in three orders, estates, or larger general collegia (generalia majora collegia). The first is of clergymen, the second of nobility, and the third of the people or plebs, including scholastic men, farmers, merchants, and craftsmen. Such general collegia and bodies contain within them smaller special collegia (specialia minora collegia). Such are the particularly important collegia of judges and magistrates, the collegia of ministers of the church, and the collegia of various workers and merchants necessary and useful in social life, which we will discuss later....^[16]

1. [A parallel, though briefer, discussion by Althusius of the collegium is found in a chapter entitled 'Men United By Their Own Consent' in his major work on jurisprudence, Dicaelogicae, I, 8.]

2. Jean Bodin, The Commonweale, I, 6.

3. [collegium (pl. collegia): guild; corporation; voluntary association.]

4. Examples of this association can be seen in Acts 6: 2 f.; 12: 12; 13: 15, 27; 15: 21; 28: 23, 30 f.; Matthew 4; 6: 2; 10: 24; 13; Exodus 29: 42; Numbers 10: 10.

5. [The discussion of the collegium in this chapter is heavily supported by references to Roman law, especially to the following three tides: Digest III, 4 ('Quod cuiuscumque universitatis'); Digest XLVII, 22 ('De collegiis'); and Code X, 32 ('De decurionibus').]

6. Digest III, 4, 7, 1.

7. Bodin assigns this right to the older or more distinguished part of the collegium. [The Commonweale, III, 7.]

8. Digest L, 3, 1. [The omission in this quotation provides further directions for the recording of rank.]

9. [Althusius employs the word universitas here (following one of the uses of Losaeus) as an alternative to collegium, which differs from his use of it in the next chapter as a public and territorial association.]

10. Nicolaus Losaeus, De jure universitatum, III, 15. See also Francis Marcus, Decisiones aureae, I, dec. 802.

11. [fundamental law or constitution of an association. This use of jus commune differs from that employed by Althusius in Chapters XXI-XXII, where it means the unchanging moral law binding upon all men and associations, and is there compared with proper law (jus proprium), or the specific application of common law (jus commune) established in a particular association in accord with its circumstances. There Althusius follows the Digest, which says that 'all peoples who are ruled by laws (leges) and customs use partly their own law (jus proprium), and partly the common law (jus commune) of all men' (I, 1, 9). Here, however, Althusius considers common right or law (jus commune) to be the foundational right or law (jus proprium) of a particular association.]

12. Code V, 59, 5, 2.

13. [This discussion of the internal procedures of the collegium, which is altogether missing in the much briefer first edition (1603) of the Politics, has drawn especially upon the following writers: Bartolus, Commentarii (Digest I, 8, 6, 1; III, 4, 3 and 4); Andreas Gail, De pignorationibus, I, obs. 20, num. 2 ff.; Practicarum observationum, II, obs. 56, num. 6; Nicolaus Losaeus, De jure universitatum, I, 3, 77 f. and 84; Jean Bodin, The Commonweale, III, 7; Paul Castro, Commentaria (Digest III, 4, 3 and 4); Nicolaus Tudeschi, Commentaria (Decretals III, 11, 1); and Francis Marcus, Decisiones aurea, I, dec. 1036 and 1335.]

14. [law.]

15. [Here follows a lengthy discussion of the collegia and tribes in ancient Rome, Israel, and Egypt that is indebted to Alexander ab Alexandro, Genialium dierum; Theodore Zwinger, Theatrum vitae humane; Johann Rosinus, Romanarum antiquitatum; Peter Gregory, De republica; and Carl Sigon, De antiquo jure Italiae and De republica Hebraicorum.]

16. [See especially Chapters V, VIII, XVIII.]