Questions of Public Law (1737)
Cornelius van Bynkershoek
Whether Cities May Build, Repair, Extend, and Fortify Their Walls Without the Consent of the Sovereign
THE Roman law is so far from permitting cities to build walls without the permission of the emperor that this authority cannot even be given by the governor of a province without the emperor’s concession, as Modestinus holds. He makes the same statement about other public works, though this is to be understood as relating to work undertaken at public expense, for otherwise it is permitted under certain restrictions. The same regulations hold for the moenia as for other opera publica, so that the two terms are used quite synonymously by various authors according to Salmasius’s commentary (on Scriptores Historiae Augustae, Commodus, xvii). Accordingly Tacitus writes that a temple to Augustus, in the colony of Tarraco, was not built until special permission was obtained, and Pliny records that the people of Prusa were authorized by Trajan to build a new bath. The same principle obtained in Holland in former times. Philip of Burgundy gave permission to Westwoude to build a court-house on November 29, 1444, as he did to the people of Sybekarspel and Bennebroek on September 27, 1462. There also exists a grant of Philip II of Spain, dated November 4, 1557, permitting the people of Alkmaar to build a new house of weights. There are also various grants from the courts of Holland permitting the construction of new churches, which I need not enumerate.
These rules apply to the construction of new works; as for repairing buildings already constructed no one would make bold to doubt that this was permissible without the consent of the sovereign. It is particularly the concern of magistrates to repair, strengthen, and in every possible manner take good care of the temples and walls falling into ruin. So formerly the Roman aediles kept public buildings in repair, and so do other magistrates of whatsoever title in other places, as every one knows. Indeed sound reason requires that this should be the concern of the magistrates, however if you desire authority, the emperors, after affirming that new public works should not be constructed without their permission, state explicitly ‘but we give full permission to all to rebuild (instaurandi) those that are now said to have fallen into ruin’. You might, however, think that Ulpian contradicts this when he says: ‘It is not permissible to repair (reficere) the walls of a municipal town without the authority of the emperor or the governor.’ Now this passage has a difficulty not usually noticed (since it apparently contradicts the preceding passage) and I have sought in vain for a commentator who would give a satisfactory explanation. Why should it not be permitted to repair walls falling into ruin without having authorization from the emperor or the governor? I do not think that the expression muris or muris municipalibus contains anything that requires a peculiar interpretation. But I would interpret the expression muros reficere of this passage as meaning to reconstruct walls which have for some reason been torn down. Thus it would be permissible indeed to repair (katartizein) falling walls, but not to build anew (ananioun) destroyed walls without authorization from the emperor or governor. This word ananeosis is found in the Basilica and among the scholia and means instauratio. Suppose then that the walls have been destroyed by order of the emperor whether by agreement with some other prince as is often required in treaties between neighbouring provinces, or by right of victory, as were the walls of Jerusalem, or by way of punishment exacted from rebels, then it will not be permissible to build the walls again (ananioun) without a grant from the emperor or the governor. This is the interpretation I give to reficere in the passage cited from Ulpian, and only in this way is the passage intelligible. An illustration from more recent history is provided by Alkmaar in North Holland. This city, because of a rebellion, was condemned by Philip of Burgundy to be deprived of its gates or fortifications. When, however, it was threatened with an invasion, the Court of Holland on July 8, 1445, granted permission to the magistrates in the name of the same Philip to enclose the city with gates and fortifications, though the penalty still remained in the form that these should be torn down at command. Now what was said about the governor in the above-cited passage from Ulpian, may be applied to this incident when the Court of Holland which also claims to perform the offices of a governor gave this permission to Alkmaar in case there was fear of a hostile invasion; for otherwise the governor would be exceeding his authority as I inferred from the previously-quoted passage. Again, the sentence of Philip of Burgundy pronounced against Alkmaar when in rebellion apparently explains why in the edict of Charles V, dated October 11, 1531, and another of January 18, 1549 (section 12), the directions applying to fortified cities are extended explicitly as applying to The Hague and Alkmaar also, and why Alkmaar is mentioned after The Hague. The inference is that The Hague and Alkmaar do not exercise the full rights of cities suo jure, but by special privilege and on good behaviour. Since I have not discovered that the sentence of Philip has been revoked, it may be that Alkmaar still has not full legal rights. But I have found that Alkmaar no less than the other cities of Holland does in fact exercise the full rights of a city.
Magistrates have not the authority to extend the walls of a city or town without permission of the sovereign, and Dutch jurists write that the principle is observed in Holland. There are apparently two reasons for this. In the first place, we could not well extend the walls without taking possession of lands of individuals dwelling near the walls, and this would far exceed the authority of magistrates. Secondly, if the walls were extended the old fortifications would be enclosed in the city and new ones would have to be built in case of attack by an enemy or by brigands, and all this would deeply concern the sovereign and him alone. Accordingly a grant from the sovereign is required for such work, and it is evident from the public charters that the magistrates of various cities of Holland have petitioned for and obtained such grants. Thus, in 1386, Albert of Bavaria authorized the people of Amsterdam in case of need to ‘enlarge the city and build out the walls of it a hundred rods outward’. Accordingly it is provided by the statutes of Amsterdam that ‘whatever buildings and freeholds the council of the city desires to have for the needs of the city or of the church the council of the city shall have upon decision of the court’. Amsterdam also obtained some more recent grants for this purpose from the Estates of Holland: one on May 10, 1594, another on August 7, 1600, the latter being a grant in general terms without specification of limits. Albert of Bavaria also made a grant to Leyden on June 15, 1386, permitting the city to take possession of private property outside the city in order to include it within the fortifications, and the Estates of Holland made one on May 6, 1611, in general terms giving permission to enlarge the city. Accordingly the same provision is found in the Statutes of Leyden that occurred in those of Amsterdam which I just quoted, and in fact in almost the same words. The Estates of Holland also gave the same permission to the magistrates of Alkmaar on March 17, 1598, so that section 44 of the Charters of Alkmaar also has the very same provision just mentioned. Again Albert of Bavaria, who gave the above-mentioned concessions to Amsterdam and Leyden, granted one also to Weesp in 1401 giving the city the liberty to extend its boundaries fifty rods. However, when the people of Haarlem enlarged their city in 1671 I find no mention of any grant.
There does not seem to be a general agreement anywhere, as to whether it is lawful to make strongholds and to fortify cities without consulting and gaining permission from the sovereign. In the criminal charge on which the Prince of Orange was summoned before the tribunal of the Duke of Alva on January 19, 1567, one of the charges was that he had advised Count Brederode to fortify Vianen. Orange in his Apologia issued in 1568, answered that in the Netherlands it had always been permissible for lords to fortify their lands, and that there were many instances in proof of this. Regarding Vianen I can make no definite statement, for this was said to have an independent title then and until Holland obtained it; but what Orange says about the whole of the Netherlands is perhaps to be referred to former times when Holland was divided into a number of independent little states; for these carried on war on their own behalf and fortified themselves against invading neighbours. But after these small states coalesced and came under the dominion of one prince, I would hardly dare attribute to magistrates and lords the authority of fortifying cities and other places without the consent of the prince; for then they might even fortify them against the prince. This surely is not legal, and the sovereign alone can decide in the matter. Furthermore, fortifications can hardly be made without the occupation of private property and the sovereign alone has the right to do this, unless, as I said above, the magistrates secure the rights by special grant from the sovereign.
Hence it is, I think, that among the Romans it was not lawful in the provinces to build walls except about one’s own estate, and that even in this case private individuals could not possess a stronghold, but only those who had secured a special grant. Hence also, magistrates often obtained from the emperors by petition or by purchase the privilege of fortifying their cities. The Jews at least ‘built walls in times of peace with a view to war by purchasing the right through the venality of the officials in the time of the Claudii’, according to Tacitus. It was on this principle too that Louis IV of Bavaria in 1322 gave a special privilege to Godefrid, Count of Chiny, as reward for good services to build a stronghold within the confines of his empire. The English King, Stephen, also permitted the nobles of England by way of a special grant to build strongholds, which they afterwards used against the King; in consequence of which Henry II acted with more caution and destroyed the strongholds that Stephen had allowed to be built. In agreement with the above is the grant that William of Bavaria on May 15, 1355, bestowed upon Dordrecht in these terms: ‘That no one within our land of South Holland shall make strongholds or build forts more than two foot-measures thick, and unless it be on the border of our land and according to our will and for our needs.’ Very similar to this are the above-mentioned provisions of the Code, because it permits private estates to be walled but does not permit strongholds to be made for private use.
Since, however, the extension and fortification of cities often require the occupation of private property, as I have said, this right of appropriating with a provision for equitable arbitration as to price, is often inserted in the grants given to magistrates; and such is the case in the charter given to Leyden on June 15, 1386, and in the one given to Amsterdam on May 10, 1594, both of which I mentioned above. Now if the cities which are represented in the assemblies of the Estates require a special grant for such work, you can judge for yourself concerning the cities that are not so represented. And yet there are often animated discussions even about the rights of fortifying these; but it would take too long to repeat the arguments.