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V - Johannes Althusius, Politica [1614]

Edition used:

Politica. An Abridged Translation of Politics Methodically Set Forth and Illustrated with Sacred and Profane Examples, ed. and Trans. Frederick S. Carney. Foreword by Daniel J. Elazar (Indianapolis: 1995 Liberty Fund).

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


V

§ 1With 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. § 2It is permitted and approved by the law of nations (jus gentium). § 3It 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. § 4Men 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.

§ 5Political 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. § 6This public symbiotic association is either particular or universal. The particular association is encompassed by fixed and definite localities within which its rights are communicated. § 7In turn, it is either a community (universitas)2 or a province.

§ 8The 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§ 9It is called a representational person4 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

§ 10The 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. § 11Differing 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 …

§ 22The 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. § 23An oath of fidelity to certain articles in which the functions of this 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.

§ 24Such a superior is either one or more persons who have received the prescribed power of governing by the consent of the community. … § 25And 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.

§ 26The 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.

§ 27Even 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

§ 28Furthermore, this community is either rural or urban. A rural community is composed of those who cultivate the fields and exercise rural functions. § 29Such a community is either a hamlet, a village, or a town. § 30A hamlet (vicus) is a settlement of a few houses situated around a small open place. … § 34The 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. § 35The remaining hamlet dwellers are subjects. A village (pagus) consists of two or more hamlets without fortifications or surrounding wall. § 36The superior of the village is called the leader of the village dwellers (pagani), or the administrator and syndic of the village. … § 38A town (oppidum) is a larger village girded and fortified by a ditch, stockade, or wall. … § 39If very large, it is called a city according to 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.

§ 40An urban community is composed of those who practice industrial functions and pursuits while living an urban life. § 41It 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§ 48A 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

§ 49The 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. § 50Associated with him are counselors 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. … § 51The 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.

§ 52The 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. § 53The 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.

§ 54The 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§ 55This collegium, when legitimately convoked, represents the entire people and the whole city. § 56It does not, however, have as much power, authority, and jurisdiction as the community, unless it is given such by law (lex) or covenant. … 14§ 58In 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.

§ 59Senators 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 counselors of the city. Their names are inscribed in the register, and they enjoy certain privileges. § 60Such 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 counselors, 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.

§ 61These 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.

§ 62The 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. … § 64After 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

[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 associated 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, 1,2. [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 Politica, 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 reminder 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 de Ubaldis, Commentarii (Digest III, 4, 7, 2); Paul Castro, Commentaria (Digest III, 4,7, 2).

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

[9 ]De jure universitatum, 1, 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, 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. ]