Questions of Public Law (1737)
Cornelius van Bynkershoek
TO THE DISTINGUISHED AND REVERED WILLIAM VAN CITTERS, JURIST, REPEATEDLY MAGISTRATE OF THE CITY OF MIDDELBURG, DIRECTOR OF THE EAST-INDIA COMPANY FOR ZEALAND, &c., &c., &c.
CORNELIUS VAN BYNKERSHOEK sends greetings.
MANY reasons have induced me to dedicate this book of Questions of Public Law to your eminence. If one were to seek for an illustrious name, none is more distinguished than yours. Your family, already famous in lineage, you have honoured with meritorious deeds that win praise, whether counsel is sought for the common weal of the United Provinces or for our own province of Zealand. You are devoted to the welfare of both, but since the position which you hold has detained you in the services of the province, it is particularly her welfare which is to you the supreme law; and so far has she engaged your thought that for many years she has enjoyed the benefits of all your efforts. Therefore I may say, if I am a worthy prophet, that the welfare of our Zealand is wholly linked with yours, that she will be safe while you survive, that she has no fears so long as she may employ your services in times of danger, and no one envies but those inferior in rank. You have aided your fellow citizens to such an extent with your devotion that your city’s wealth in public as in private channels has grown, commerce once nearly dead has revived, and houses once falling and deserted are rising higher and more beautiful. Not long ago it was difficult to find men to purchase or rent them, now it is difficult to supply the demand. Who knows you, knows that you administer public business as a good householder manages his private affairs, with generosity and integrity. But I shall not catalogue your virtues lest I be overwhelmed with the abundance, and become a burden to your modesty. There every man may find something to admire, no one what he could equal. The equability of your temperament and your self-restraint, apparent in all your deeds, I would not pass over in silence, because this is a rare quality in Zealand. There are some who think that the Mattiaci mentioned by Tacitus in the twenty-ninth chapter of his Germany were the ancestors of the Zealanders, and you recall that Tacitus said of them that they were ‘like the Batavians except that they are more belligerent because of the position and climate of their land’. In this respect you are not a Mattiacus, or perhaps the Mattiaci were not Zealanders. Accordingly I could not find a more worthy or more dignified name to place at the beginning of my book, and I have used it, not to coax good fortune by the dedication nor to win authority for my opinions, for I have no ulterior purposes, and I know full well that a work should stand or fall by its own merits; but I wished to announce myself publicly as among those who do deference to your estimable qualities.
And if I were to seek a friend, there is none to whom I could give preference. For from the day when you first honoured me with your friendship you have given so many proofs of it that I should be ungrateful unless I publicly acknowledged it. Permit me to say that our friendship has now lasted very many years without a stain, based not upon that conventional politeness that is satisfied with charming phrases, but which often fails when put to the test; it has been honest and without pretence. It is characteristic of the real candid Zealander to act frankly and not to seek to conceal his affections when once truly bestowed. I have known men who wished to be considered prudent who, however, hide their real sentiments, and please their friends with mere phrases, but, when friendship calls for a reckoning, they are found wanting. You first consider with care whether candidates for your friendship are worthy, and if they are and so long as they are, you exert yourself to promote their welfare, while you do not permit yourself to be distracted by mere idlers: I speak as one who knows, for ever since I became your friend you have never ceased to favour me and mine in all my wishes. I have tried to reciprocate in some small measure, for it is but little that I can bring to one so exalted.
If, finally, I were to seek a judge competent to evaluate the opinions expressed here, you could readily pronounce judgement. As knowledge of the Roman law was once considered almost an inheritance in the family of the Scaevolas, so the knowledge of the law of nations has passed from father to son in yours. And by this I do not mean mere theoretical knowledge, but knowledge applied in the public service. Hence from your family have come the magistrates, the ambassadors, the presidents of governments, and the many others born for public office. To this inherited glory you have added, using your every endeavour, and laying out your goods for the acquisition of those things that might make you a more learned and better administrator of the commonwealth. You therefore will be the best judge as to whether I have here offered anything of use to the public service, and I shall feel sufficiently rewarded if I have satisfied you and a few who are like you. But I shall cease, lest I seem, contrary to my custom, to praise you in your presence. Farewell, and may many years remain to you for the public weal and the joy of your friends.
THE HAGUE, HOLLAND, April 28, 1737.
TO THE READER
WHEN four years ago I published the four later books of the Observations juris Romani, I indicated that I had then given enough attention to Roman law, and that it was my purpose, if I should extend my labours, to pass from those subjects which are usually discussed from the chairs of instructors to the subjects that are treated in the governmental and judicial chambers. Hence I promised to devote the rest of my days to public or constitutional law. Not that it is my intention to produce complete commentaries on these subjects, for I should then be compelled to repeat many things that have been said before, but it is my purpose rather to select and discuss some striking problems which might provide pleasure as well as profit. Here is now a part of my pledge, for I have begun with public law, in two books of Questions of Public Law, of which the first deals with the laws of war, the second with miscellaneous questions. And since there are two branches of public law, one treating of the regulations that obtain between nations, the source of which is reason, the other of the constitution of states, my work embraces both divisions. Moreover, it has been my purpose to give especial attention to the questions of most frequent use, and my method in deciding controversies has been to appeal first and foremost to sound reason. Then I have added treaties of nations, edicts and decrees of our own States-General, and also, not infrequently, cited precedents from the history of our own and of other nations, since public law draws its support partly from precedents, and so with the aid of these things I have tried to argue each case with due reserve.
Though the questions I have treated here may have interest in any state, they are all closely connected with the affairs of the Belgic Confederation, for I have not taken up any problem that did not have reference to our government, nor on which I have not cited all the relevant laws of our state from the very beginnings up to our own times. I have added my own opinion upon each problem, thinking that, especially in a free republic, this liberty was permissible. But I have thought wise to omit it in questions near our own day, lest I expose myself to ill will or seem to take up swords against the authority of any one still living, if I happened to express a dissenting view. I have taken even greater care to withhold my opinions on questions still in court, for I was unwilling to define by my opinion matters which have not yet been defined, lest my position might be prejudicial to some one. This reserve will be noticed here and there in my discussion of the right of eminent domain, as well as elsewhere.
As regards litigation of years past, it is permissible to think what we choose and to say what we think, and no man could deny this liberty to any one. I know that I have not always agreed in questions of public law with the opinions of the States-General of the Belgic Confederation nor with the Estates of the individual provinces, and this fact I have at times made known; but in matters which are denned from reason alone, that-does not always seem just to Titius which seems so to Maevius; here every one has his own judgement, since every one yields to his own reason. Even the very States-General themselves have not always employed one and the same opinion, now deciding this way, now reversing themselves, and in these matters every one has the liberty to choose the course which seems necessary to be followed. Although it would be advantageous to all states if no such changes of opinion occurred in cases of public law, and if such changes did not stir the wrath of foreign governments, no state is or has ever been so blessed that this unvarying consistency could be obtained. Indeed, our constitution is such that the members which form the body of the States-General are constantly changing, and who will wonder that with the change in membership opinions also change? Even our supreme court, which pronounces its judgements as if divinely inspired, though it is bound by oath to observe the laws, nevertheless frequently alters its decisions on one and the same purely legal question, even when there has been no change in the membership; for it may be that the members who were not so wise before, have gained in wisdom, or a previous decision may be forgotten in a question which is properly defended on both sides, or different laws may seem of paramount importance at different times, or there may be other considerations that I need not mention.
And even if the government were always consistent, it would be permissible to differ from her, not indeed in matters of fact, since by our constitution the government is there the final authority, but we may differ when, as frequently in this work, we appeal to reason alone to define questions of equity and right and to establish the principles of justice. In such questions the weight of no man’s opinion is valid, if reason refuses assent. Grotius and Pufendorf and the commentators who have produced all the arguments cannot compel me to adopt a view contrary to reason, and on questions of the law of nations reason usually offers arguments on both sides. Hence I have generally abstained from heaping up citations of authorities with which I could otherwise have overburdened this work. To be sure I have often called Grotius and Pufendorf to witness, but only because they hold the place of honour in this subject, and lead a troop of followers; the authorities of the lesser nations I have usually passed over in silence. Yet even from these two men I have differed when it seemed to me that I had reason with me in doing so. Reason I have constantly consulted, for unless she carries the day nothing should in the realm of public law.
Nevertheless I would not refuse to cite authorities in order to add weight to reason, but I should prefer to draw upon usage long continued in the maldng of treaties between nations, and upon widely established precedents, rather than upon the testimony of ancient poets and orators, whether Greek or Latin, for these are indeed but miserable teachers of public law. Citations from these are of more use in displaying erudition than in mustering support for public law. I have more respect for the opinion of those who have associated with men and had experience in affairs of state, and have grown wise from practical administration; such men usually draw up treaties according to the customs of nations. Nor would I slavishly bow before their authority without reason, but when they accord with reason I would yield to them rather than to poets and orators. Ancient precedents and treaties, to be found in Greek and Roman histories, have indeed some value, but as the habits and customs of nations change, so does the law of nations. To be sure, reason remains immutable, but when reason argues in behalf of both sides so that it is doubtful where the preponderating weight lies, we must appeal to custom for a decision. There were formerly many practices which now no longer exist, as for instance in the ratification of treaties that had been made by delegated envoys of the government. That is the reason why I have preferred to use precedents and treaties of recent date rather than old ones. Furthermore, since I desired to have my work of immediate practical value, I have drawn more fully upon modern than upon former instances. However, I have not discussed all the treaties of all nations, for that would require too great care, but from the instances which I have adduced it will not be difficult to understand what is the consensus of opinion among nations on the problems that I have discussed. Such were my principles in undertaking the work; the public may judge of their correctness.
I have added my authorities because I did not wish to go forth without my bondsmen, and I have also cited the precise passage, though I have reduced the references to foot-notes to save the reader’s time. I have not thought it necessary to give references for facts generally known or readily accessible. I have used Aitzema’s Historien and his Herstelde Leeuw in the quarto edition and have cited it by volume and page. The ordinary edition of edicts and decrees called Het Groot Placaat-boek, I have cited simply as Plac.1, and the numbers that follow refer to volume, book, title, part, and paragraph. However, the volumes are not consistently paragraphed, parts and titles being sometimes omitted, and in the fifth book, and in the appendix of the second, the subdivisions were so incomplete that I have cited these by pages. But those who are accustomed to the use of books will comprehend what the numbers mean that are cited with these various tomes, even if like me they fail to understand why publishers vary so much in making their subdivisions. It would indeed have been more convenient to cite the page of each volume, but even if I had omitted repetitions and superfluities and cited the specific edition of each work by page there would be no agreement in the pagination of the various editions.
Other titles and abbreviations will be readily understood. I have used some edicts and decrees and indeed some other documents which were not yet published in books, and in such cases I was compelled simply to refer to the official records or to my own collections. I have used De Resolutien van Consideratie ten tyde van de Wit in the folio edition of 1672, and the page numbers are accordingly of that edition. Some of the clauses of the edicts and decrees I did not translate into Latin but left in the original Dutch, for the reason that the meaning was not entirely clear, and hence I preferred to leave them to the intelligence of the reader rather than try to determine the meaning by a version of my own. This will suffice by way of preface. Farewell.