Althusius: Politica: V-VI

CHAPTERS V-VI

THE CITY

With this discussion of the civil and private association, we turn now to the public association. For human society develops from private to public association by the definite steps and progressions of small societies. The public association exists when many private associations are linked together for the purpose of establishing an inclusive political order (politeuma). It can be called a community (universitas),^[1] an associated body, or the pre-eminent political association. It is permitted and approved by the law of nations (jus gentium), and is not considered dead as long as one person is left. Nor is it altered by the change of individual persons, for it is perpetuated by the substitution of others. Men assembled without symbiotic right (jus symbioticum) are a crowd, gathering, multitude, assemblage, throng, or people. The larger this association, and the more types of association contained within it, the more need it has of resources and aids to maintain self-sufficiency as much in soul as in body and life, and the greater does it require good order, proper discipline, and communication of things and services.

Political order in general is the right and power of communicating and participating in useful and necessary matters that are brought to the life of the organized body by its associated members. It can be called the public symbiotic right. This public symbiotic association is either particular or universal. The particular association is encompassed by fixed and definite localities within which its rights are communicated. In turn, it is either a community (universitas)^[2] or a province.

The community is an association formed by fixed laws and composed of many families and collegia living in the same place. It is elsewhere called a city (civitas) in the broadest sense, or a body of many and diverse associations. Nicolaus Losaeus defines it as 'a coming together under one special name of many bodies each distinct from the other'.^[3] It is called a representational person^[4] and represents men collectively, not individually. Strictly speaking, however, the community is not known by the designation of person, but it takes the place of a person when legitimately convoked and congregated.^[5]

The members of a community are private and diverse associations of families and collegia, not the individual members of private associations. These persons, by their coming together, now become not spouses, kinsmen, and colleagues, but citizens of the same community. Thus passing from the private symbiotic relationship, they unite in the one body of a community. Differing from citizens, however, are foreigners, outsiders, aliens, and strangers whose duty it is to mind their own business, make no strange inquiries, not even to be curious in a foreign commonwealth, but to adapt themselves, as far as good conscience permits, to the customs of the place and city where they live in order that they may not be a scandal to others....^[6]

The superior is the prefect of the community appointed by the consent of the citizens. He directs the business of the community, and governs on behalf of its welfare and advantage, exercising authority (jus) over the individuals but not over the citizens collectively. An oath of fidelity to certain articles in which the functions of his office are contained stands as a surety to the appointing community. From the individual citizens, in turn, is required an oath of fidelity and obedience setting forth in certain articles the functions of the office of a good citizen.

Such a superior is either one or more persons who have received the prescribed power of governing by the consent of the community....

And so these general administrators of the community are appointed by the city out of its general and free power, and can even be removed from office by the city. They are therefore temporal, while the community or city may be continuous and almost immortal.

The inferiors or subjects are all the remaining citizens individually and collectively who are subjects of the community, or of those who represent it, but not of individuals as such.

Even though the individual persons of a community may be changed by the withdrawal or death of some superiors and inferiors, the community itself remains. It is held to be immortal because of the continued substitution and succession of men in place of those withdrawing.^[7] Whence it appears that the community is different from the individual persons of a community, although it is often considered to be a representational and fictional person.^[8]

Furthermore, this community is either rural or urban. A rural community is composed of those who cultivate the fields and exercise rural functions. It is either a hamlet, a village, or a town. A hamlet (vicus) is a settlement of a few houses situated around a small open place.... The superior of the hamlet is a leader who is elected by consent of the hamlet dwellers (vicini) and has the right of admonishing them, of calling them together, and of conducting their common business. The remaining hamlet dwellers are subjects. A village (pagus) consists of two or more hamlets without fortifications or surrounding wall. The superior of the village is called the leader of the village dwellers (pagani), or the administrator and syndic of the village.... A town (oppidum) is a larger village girded and fortified by a ditch, stockade, or well.... If very large, it is called a city by Losaeus.^[9] The prefect of the town is the administrator and leader of the town dwellers (oppidani), and has the right of calling them together, and proposing matters to them. In common consultation with them, he also has the power of collecting their votes, of issuing and executing public decrees, of dismissing the council, and of directing and administering the common affairs of the community.

An urban community is composed of those who practice industrial functions and pursuits while living an urban life. It is a large number of hamlets and villages associated by a special legal order (jus) for the advancement of the citizens, and guarded and fortified against external violence by a common moat, fortress, and wall....^[10] A community of citizens dwelling in the same urban area (urbs), and content with the same communication and government (jus imperii)^[11] is called a city (civitas) or, as it were, a unity of citizens. And they are citizens of this community or city who are partners in it, as distinguished from foreigners and aliens who do not enjoy the same standing within the city's legal order (jus civitatis).^[12]

The prefect or superior of the city is the administrator and leader of the citizens, having authority and power over individuals by general mandate of the organized community, but not over the group. In many places he is said to be the consul. Associated with him are counsellors and senators who give advice for the welfare of the city and constitute a senatorial collegium. The citizens are individually and collectively expected to observe his legitimate decrees.... The prefect of the city is called the president or leader (princeps) of the senate. Sometimes the prefect is one person, other times — in proportion to the size of the city and the extent of its business — two, three, or four persons, who continue to perform the office throughout changes in personnel. They are also called administrators of the commonwealth.

The senatorial collegium, composed of the president and senators, binds itself by oath at the beginning of its administration to the prescribed articles of administration, and collectively fulfills the functions of the entrusted office. The office of the leader of the senate, or the consul, consists in the power of calling the senate into session; the power of referring and proposing business to it; the right of seeking and gathering the judgments of individual senators; the power of caring for the seal and keys of the city, of opening letters sent to the senate, of receiving petitions, of responding in the name of the collegium; and lastly the power of carrying out the conclusions of the senate, and of dismissing it.

The senate is a collegium of wise and honest select men to whom is entrusted the care and administration of the affairs of the city.^[13] This collegium, when legitimately convoked, represents the entire people and the whole city. It does not, however, have as much power, authority, and jurisdiction as the community, unless it is given such by law (lex) or covenant....^[14] In the absence of the consul or rector, this office falls to the senior senator, or to the person designated from the senate by the rector for this purpose. But, if all senators are assembled without being formally called into session, the community is nevertheless considered legitimately convoked.

Senators are those who have the right of delivering judgments in the senate concerning the things that have been proposed by the leader for their consideration. They are also called decurions or counsellors of the city. Their names are inscribed in the register, and they enjoy certain privileges. Such senators are elected by the senatorial collegium, or by specified electors designated by the community. In some cities, to be sure, senators and consuls are elected in duplicate number in order that the prince or count of the province can choose and confirm certain ones among them. In other cities, however, the complete election is in the power of the collegium of the community or its guilds (collegia artificum), or in the power of specified persons designated by individual collegia of the city for this function. The senators who constitute the collegium of senators, the consistory, or the council of counsellors, which we usually call the senate, are greater or fewer in number in proportion to the size of the city and the extent of the business.

These senators are either ordinary or extraordinary. Ordinary senators are those who, at agreed and appointed times, consider and decide all business matters that have arisen and come before the commonwealth. Extraordinary senators are those who, summoned for difficult problems of the commonwealth, assist the ordinary senators by their counsel and have the power of deciding with them. These extraordinary senators, who are variously named in different places, are identified for the most part by their number, such as the one hundred men, the fifty, the forty, the thirty, the twenty, the four men, and so forth.

Sometimes in the gravest matters the votes of the individual collegia of the community or city are employed, or of the individual clans or groups into which the city is divided. They are then called together by the senatorial collegium.

The form and method of making decisions in the consistory or senatorial collegium is by the judgment and vote of a majority of the senators, either of all senatorial colleagues without exception, or with at least two-thirds of the colleagues of the entire collegium being present. These votes, which are sought and collected in matters that are of concern to the senate, must be taken at the same time and in the accustomed place. After the proposition has been set forth by the consul or president, the individual senators make known their votes concerning the thing proposed in that order in which they are consulted, provided that the liberty and opportunity of dissenting are provided.... After the votes of the individual senators have been given, the consul or leader of the senate counts the affirmative votes, as well as the negative votes if there are any, and decides by them. If the gravity of the matter so demands, however, and the majority is thought to have decided incorrectly, he may order the majority to examine and ponder the votes of the dissenting minority, and to discuss the matter anew. After further discussion and examination, he again collects the judgments of individuals, and decides on the basis of the considered votes of the majority. The dissenting minority is required to submit itself to this decision, so that the decision of the majority is declared and held as the judgment of the whole senate or consistory, and binds the entire community. For a consensus, when produced at the same time and place, is sufficient in those matters that pertain to persons as a group, or that are done by the many as by everyone and the group. On the other hand, a consensus of the majority is not sufficient in those matters that are done by the many as individuals. In these matters the will of the individuals is required, and it may even be separately declared at different times and places. What touches individuals ought to be approved by individuals....^[15]

Cities are either free, municipal, mixed, or metropolitan. A free city is so called because it recognizes as its immediate superior the supreme magistrate,^[16] and is free from the rule of other princes, dukes, and counts. It is called an imperial city in the German polity, where it has been assessed contributions or special services for the realm because of the right of participation and suffrage it enjoys in the councils of the empire and its listing as a member of the empire. And no one doubts that these cities have the rights of princes within their boundaries.

The municipal or provincial city is one that is subject to a territorial lord. It recognizes a superior other than the supreme magistrate.

A mixed city is so called because it recognizes partly the emperor and partly a duke or count as its superior, and enjoys both imperial and provincial privileges. There are some cities in which dukes or counts have usurped rights, even though the territory does not actually belong to them. These cities recognize them in certain respects through fixed pacts and conditions, and evidence their liberties in others. Such are Goslar, Magdeburg, Cologne, Aachen, Erfurt, and several others.

A metropolis is so called because it is the mother of other cities that it brings forth as colonies, or because it is pre-eminent among them and is recognized by them as a mother by whom they are ruled and defended as children. The metropolis is therefore a large and populous city. Other cities and towns of the realm follow its example because of its size, population, rank, houses of religion and justice, and temples of piety and law (jus), by means of which it displays the light of religion and justice to the other cities of the realm and presents itself in an elevated place to be seen by all. It also cultivates men distinguished in piety, doctrine, and life that others are able to consult in cases of doubt and perplexity....^[17]

Communication among citizens of the same community for the purpose of self-sufficiency and symbiosis pertains to things, services, right, and mutual concord. Whence arises this political order, or the symbiotic right (jus symbioticum) of the city, which is called the legal order of the city (jus civitatis). And as man is said to be a microcosm, so also is a city or small commonwealth, for the common business of a city is conducted and managed in almost the same manner as that of a realm or province.^[18]

We will speak first about this communication, and then about the administration of it. The communication of things among the members and citizens of the same community, town, or village is so carried out that the things communicated by the common consent and covenant of each and all are set aside for the various uses of the community. This is done according to the manner, order, and procedure that was agreed upon and established among the members and citizens. And such communication of things is rightly called the sinews of the city....^[19]

The communication of services among the citizens of the same community is the performing of functions necessary and useful to symbiosis and mutual intercourse. These are performed by one citizen for another who needs and desires them in order that love may become effectual through the observance of charity.... The communication of such services is especially accomplished in the execution and administration of (1) public duties and (2) private occupations necessary and useful to social life and symbiosis, the direction of which belongs to the senatorial collegium.

The administrators of public duties are those who expedite the public functions of the commonwealth or city, both political and ecclesiastical. The political functions of the city concern the use of this life, its self-sufficiency, and, in brief, whatever is contained in the second table of the Decalogue. These functions are administered by judges, senators, councillors, syndics, censors, treasurers, directors of public works, curators of public roads, ports, buildings, and other such things of the community, as well as superintendents of granaries, prefects of the city, the security guard, and so forth. Ecclesiastical functions, which oversee the communion of the saints, the building of the church, holy worship, and the knowledge of God, are the responsibility of ministers of the church, school teachers and headmasters, deacons, and so forth. There are, however, certain common services and functions of the church that are incumbent as much upon inferiors as upon superiors, such as concern and solicitude for the worship of God and promotion of the welfare of the church....

Occupations are private functions inclining principally to the utility of those who perform them, and consequently to the public utility of the city or of all the citizens collectively. Such are the various industrial, agricultural, and commercial occupations that I have discussed above.^[20] In order that these occupations may offer mutual services to each other for their common advantage, it is necessary that they be brought together. For thus the farmer needs the carpenter, builder, miller, shoemaker, tailor, and others. And they need the aid and communication of the farmer.

Mutual services are also offered by the citizens in the construction, extension, and repair of the public works, such as walls, ramparts, ditches, and gates to the city or urban community, as well as temples, theatres, courts, courtyards, roads, bridges, public water systems, water mills, and other public works. Citizens likewise contribute their services in guarding and defending the city or urban community, in paying expenses undertaken in the name of the community, and in sustaining its public ministers.

There are other services that are devoted more to private benefit than to the public utility and advantage of the community. These are performed more because of the charity and benevolence of the citizen than because the covenant of the community requires them. Examples occur when a citizen gives material help or counsel according to his ability to his fellow citizen, or promotes the advantage of his fellow citizen while removing, whenever he is able, disadvantages and perils....

The rights (jura)^[21] of the city, its privileges, statutes, and benefits, which make a city great and celebrated, are also communicated by the citizens. They are shared with the people in the suburbs, outposts, and surrounding villages, but not with travellers and foreigners. For citizens enjoy the same laws (leges), the same religion, and the same language, speech, judgment under the law, discipline, customs, money, measures, weights, and so forth. They enjoy these not in such manner that each is like himself alone, but that all are like each other. I also include the autonomy of the city, its privileges, right of territory, and other public rights that accompany jurisdiction and imperium. Even a city recognizing a superior can have these rights by its own authority (jus), and in other things be subject to its superior magistrate by fixed covenants. And even more certainly these rights pertain to a free city recognizing none except the emperor as its superior. These cities, however, cannot have the personal rights of princes, nor exercise jurisdiction beyond their territories.^[22] But municipal tribunals of justice, similar to those the Jewish polity had, belong to this communication.^[23] I also include the right and power (jus et potestas) of dwelling in the city, of setting up residences and households, or transferring one's family and possessions thereto, of having a workshop in the same place, of being received into the collegium or sodality of one's vocation and profession, and of engaging in commercial activity. I ascribe to this communication the power of using and enjoying all rights, advantages, and benefits that the whole city has established for all citizens, and approved by common consent.

Every city is able to establish statutes concerning those things that pertain to the administration of its own matters, that belong to its trade and profession, and that relate to the private functions of the community.... Also pertaining to this communication are the right of the vote (jus suffragii) in the common business and actions of managing and administering the community, and the form and manner by which the city is ruled and governed according to laws it approves and a magistrate that it constitutes with the consent of the citizens. When, on the contrary, these common rights of the community are alienated, the community ceases to exist....

Enthusiasm for concord is the means of conserving friendship, equity, justice, peace, and honour among the citizens, and of overcoming strife, if it arises among the citizens, as soon as possible. In brief, whatever cultivates love among the citizens and conserves the common good is to be nurtured, and the causes of discord among citizens and neighbours are to be guarded against, following the examples of Abraham and Isaac.^[24] 'Behold how good and delightful it is for brothers to dwell in unity.'^[25] And thus we see that the Lord in this manner has enjoined blessing and life continuously in the world.

Concord is fostered and protected by fairness (aequabilitas) when right, liberty, and honour are extended to each citizen according to the order and distinction of his worth and status. For it behooves the citizen to live by fair and suitable right with his neighbour, displaying neither arrogance nor servility, and thus to will whatever is tranquil and honest in the city. Contrary to this fairness is equality (aequalitas), by which individual citizens are levelled among themselves in all those things I have discussed. From this arises the most certain disorder and disturbance of matters.

The administration and direction of the communication of these rights in the community is entrusted, with the consent of the citizens, to the senatorial collegium. In the municipal cities the head or superior of the province, or his substitute serving in his name, presides over the senatorial collegium.... In free cities, however, the leader of the senate or the consul, who has royal privileges in connection with the territory, presides.

Things done by the senatorial collegium are considered done by the whole community that the collegium represents. Under the control of this senatorial collegium is, therefore, the power of managing and executing the business of the community and so of knowing and judging all that pertains to the community. This includes the right of holding investigations, the administration of public matters both civil and ecclesiastical, the responsibility for and assignment of public duties and offices, the planning, collection, care, and expenditure of public revenues, the right of publishing laws pertaining to good order and self-sufficiency, the care of public properties, the punishment of law breakers, the censorship of customs, the management of the urban community, and other such things.

Therefore, what the count is in the province, the prince or duke in the duchy, or the king in the kingdom, so this senatorial collegium is, for the most part, in the city....

1. [an association embracing all other associations within a given geographical area; a public as distinguished from a private association. It is here used as a generic name inclusive of commonwealth, province, and city. This is an occasional use for Althusius. Its more customary use is described in footnote 2 below.]

2. [a local community embracing all private associations within a municipal area; a city in its fullest associational expression, as distinguished from a province (the other kind of particular public association) and a commonwealth (the universal public association).]

3. De jure universitatum, I, I, 2. [It is noteworthy that this book by Losaeus, which was published in 1601 at Turin, was not mentioned by Althusius in the first edition (1603) of the Politics, but is referred to in the third edition (1614) sixty-two times in the chapters on the collegium and the city alone, and occasionally thereafter throughout the remainder of the work.]

4. [persona repraesentata: literally, a person having come to represent.]

5. Digest, XLVI, 1, 22.

6. [Here follows an extended discussion of types of full and limited citizenship.]

7. Baldus Ubaldis, Commentarii (Digest III, 4, 7, 2,); Paul Castro, Commentaria (Digest III, 4, 7, 2).

8. Bartolus, Commentarii (Digest XLVI, I, 22); Andreas Gail, De pace publica, I, 5; Nicolaus Losaeus, De jure universitatum, I, 1, 41 and 42; Code, II, 58, 2, 5.

9. De jure universitatum, I, 2, 45.

10. [Suburbs beyond the wall, as well as open fields for cultivation within the wall, are considered by Althusius to be a part of an urban community. Thus Althusius seems to have in mind a city that includes all the inhabitants of the surrounding district under its jurisdiction and protection.]

11. [structure and power of rule.]

12. [do not exercise the rights and responsibilities of citizens.]

13. See the Digest I, 2, 2, 9, which says that because the people was able to convene in so great a crowd of men only with extreme difficulty, and therefore was not able to rule, 'necessity itself brought the care of the commonwealth to the senate".

14. [This passage is obviously derived from Losaeus, who wrote that 'the council of the city does not have by common law (jus commune) the same power, authority, and jurisdiction as the total people, unless it has been explicitly instituted otherwise through statute law or custom'. De jure universitatum, I, 3,48. Althusius notes that Bartolus disagrees with this position. He apparently has in mind the opinion of Bartolus that the council of the city does have the same power as the total people. Commentarii (Code IV, 32, 5).]

15. [Here follows a discussion of the causes of the founding and growth of cities that is largely dependent upon Giovanni Botero, The Greatness of Cities, and Hippolytus a Collibus, Incrementa urbium.]

16. [the emperor.]

17. [Examples of the metropolis cited by Althusius are Nineveh, Babylon, Rome, Paris, Ghent, Prague, and London.]

18. Plato says that since no one of us is self-sufficient, but instead needs many things, the city came into being. So we take partners, fellow communicators, and helpers for our benefit, and thereby make a gathering that is called a city. For since men need many things that no isolated person is able to provide for himself, a number of them come together in one place that they may bring mutual support in life to each other. The Republic, II, 369.

19. [Here follows a discussion of the types of things communicated in the community. They may be things held in common for the use of individuals, such as fields and forests for pasture and firewood, fishing places, rivers, roads, baths, temples, schools, market places, and courts of justice. Or they may be private things owned and operated by the community, such as granaries, armouries, metal mines, breweries, civic archives, and tax collections.

A distinction is also made, following Roman law, between sacred and holy things. Those things are sacred that are dedicated to divine worship, such as temples, tithes, and ecclesiastical revenues. Holy things, on the other hand, are the walls, gates, fortifications, and so forth, of the city. See the Institutes II, 1, 7-10.]

20. [See page 23, footnote 4.]

21. [laws.]

22. Matthew Stephani, De jurisdictione, II, pt. 1, chap. 7; II, pt. 1, chap. 1. In former times, however, in the Jewish and other politics, cities were understood to have had their own autonomy, polity, and king. Genesis 14; 19.

23. II Chronicles 19; Ruth 4; Deuteronomy 10; 16: 18.

24. Genesis 13; 26.

25. Psalm 133: 1.