Questions of Public Law (1737)
Cornelius van Bynkershoek
Miscellaneous Questions Regarding the Right of Postliminy
GROTIUS properly says that the principles of postliminy may be applied to a whole people, since, for example, a nation once free may regain its freedom if some ally liberates it from the dominion of the enemy. Hotman argues to the same purpose; and yet there is reason for doubt whether this principle has always been accepted everywhere in the United Provinces. In the case of the city of Groningen there apparently was no doubt; for although Groningen, when occupied by the Spanish, lost membership in the Union of Utrecht, yet when conquered again by the Prince of Orange, it returned to the Union, as is specifically stipulated by Article 2 of the regulations by which Groningen was surrendered on July 22, 1594. And yet I have never been able to discover that the city of Groningen ever subscribed to the articles of Utrecht, though I have found that the district of the Ommeland had. George van Lalaing, the Count of Rennenberg, who was governor of Friesland, Overyssel, and Groningen, subscribed to the articles on June 11, 1579, but he does not say that he signed as governor, hence it is a reasonable inference that he signed merely as an individual, as William I of Orange signed as an individual on May 3, 1579. If it is true that Groningen had not subscribed to the articles, the city might be taken by right of war, and in that case the city might be considered as captured rather than as recovered, and as belonging to the Union not by right of postliminy, but according to the rules of capitulation. Indeed, it is apparent from history that the people of Groningen were usually favourable to the Spanish, and that even after their surrender they were more agreeable than was seemly. However, the above-cited Article 2 speaks as if Groningen actually returned to the Union, not as if she was now for the first time admitted; and we have even stronger reasons for speaking of her as returning, because, as I have learned from the public documents, the people of Groningen on June 11, 1579, sent delegates to participate in the congress of the States-General, and to discuss the question of a commonwealth with the other members of the league. But even if this is so, Groningen did not return as a city of equal rights with the rest, since Article 5 of the above-cited regulations stipulates that, in case of unsettled disputes between the city and the Ommeland, the States-General should arbitrate, a provision which was forbidden by Article I of the Union of Utrecht. But of these things I may speak more at length in Chapter XXIII of the next book. Here I wish only to call attention to the fact that, though Groningen returned to the Union, she did not regain her full rights of postliminy. For whatever reason, Groningen bound itself to the arbitration of the States-General by the above-cited Article 5; the people of the Ommeland did likewise, on account of the strength of the neighbouring city, I suppose.
The people of Drenthe were received into the Union of Utrecht on April 11, 1580, but were afterwards subjected to the rule of Spain. Then when the Spaniards withdrew, they apparently reverted to their original status. And as early as 1618 they petitioned to be admitted as members of the Union in full standing. On October 27 and November 21, 1618, the States-General ordered a discussion of the question and referred the question to the assemblies of the various provinces. These were inclined to grant the petition, and most of them empowered their delegates to act favourably. Nevertheless no decree was passed. The people of Drenthe renewed their petition in 1633, but the States-General on February 19, 1633, passed the same decree as in 1618. Again the petition was presented a third time in 1643, but the States-General on October 9 and 13, 1643, answered as before. Furthermore, by a letter written in the name of the States-General (November 6, 1650), and erroneously signed by their presiding officer, the people of Drenthe were invited to an irregular meeting of the States-General, but when they arrived they were refused admittance. Again they asked to be admitted, or at least to have their plea submitted to impartial judges, but in July, 1651, the case was simply referred to the ordinary session of the States-General. And they have not yet been admitted, and so far as I know they have not even been openly refused. It would indeed seem to be unjust that, while they are not admitted, neither the decrees of the general body nor those of the provinces give any reason for refusing. It might perhaps be said that the people of Drenthe did not renounce their allegiance to the King of Spain as the other members of the Union did on July 26, 1581, and that, having remained under the dominion of the Spaniards, they were to be treated as conquered people. But I would not exclude them on that account, since I am not certain that they forfeited their place in the Union by failing to renounce their allegiance to Spain; nor have I found this offered as the reason for refusing their petition. I therefore do not see why the people of Drenthe should not enjoy the right of postliminy.
The people of Brabant, who had been subject to the King of Spain, but subsequently taken by the United Provinces, also petitioned in 1648 for admission into the Union of Utrecht, or, if not that, at least that they might have autonomy. It is recorded that the assemblies of certain provinces empowered their delegates to grant this, but nothing was accomplished. They again presented the same petition at the special session of the States-General on March 22, 1651, but again without success. Their arguments as presented in 1648 and in 1651 may be found in Aitzema. Of the cities of Brabant here concerned, Breda alone had been received as a member of the Union on September 15, 1579. We may therefore say of the people of Breda what we said above of the people of Drenthe; the rest of the cities, however, had no right of postliminy.
The case of Gelderland, Utrecht, and Overyssel, three of the seven United Provinces, comes more properly within the law of postliminy. These provinces were taken by the French in 1672, and afterwards recovered by us when the French evacuated. When they fell into the hands of the enemy they lost their position in the Union, and their delegates were then properly ordered no longer to attend the sessions of the States-General. But when they were again recovered, they apparently returned by the right of postliminy to their original status, since parts of states that are sundered off, as in this case, are restored to full rights, even as the above-cited rule of Paulus grants full restoration to captive individuals who have returned ‘to the territory of their own or of a friendly or allied state’. Indeed, on April 20, 1674, the States-General decreed that their former status and position in the Union should be restored to them. Nevertheless, Gelderland was deprived of one vote in the assembly of the States-General, and several other privileges were elicited from them by bargain before they were readmitted; indeed, they were ordered to take the oath of allegiance anew, as if they had not been members before, as the above-said decree reveals. But if, as is everywhere declared and practised among nations, all privileges are restored by the right of postliminy, just as if the captivity had not taken place, everything should have been restored to those provinces which they enjoyed before their capture. The right of postliminy was theirs by every law, why then was a part of their rights retained; and if on the contrary they were not entitled to it, why was anything granted them? I know the arguments that are brought against the right of postliminy, but to enumerate them here, and, even more, to refute them, would be a thankless task. At least we need not adopt the argument of the state counsellor who held that goods of allies rescued from the enemy are not restored by reason of postliminy, since the decrees of the States-General of April 19, 1659, and February 5, 1666, speak only of subjects. I grant that these decrees do not speak of allies, but that is merely because those decrees do not happen to be concerned with allies. And even if the point must be decided by those decrees, certainly those should be considered as subjects of this commonwealth who constitute so large a part of it. Others hold more properly the opinion that there ought to be no difference between subjects and allies in the matter of postliminy. Therefore, the decree of the States-General of October 23, 1676, which I mentioned in Chapter X, gave the right of postliminy not only in favour of those things which were taken on board of our vessels and afterwards recovered, but also of goods taken from the vessels of our allies, or of neutrals and again recovered. And, as I observed in the preceding chapter, the States-General expressed the same opinion at other times also, condemning the opinion of the French which followed a different principle.
When the States-General had taken from Spain, the then overlord, certain parts of Brazil and other places that had formerly belonged to Portugal, it was agreed in Articles 21 and 22 of the ten-year truce between Portugal and the States-General, dated June 12, 1641, that the latter could not permit the former to claim any restorations of such territory by any alleged rights of postliminy. However, the discussion arose again in 1657, for then, contrary to the treaty, the Portuguese King took from the Dutch certain places in America, and the Dutch accordingly sent them envoys to demand restitution. The Portuguese responded that, since the ten years had passed, that treaty was no longer binding, and that they neither could nor would restore the territory, though they were ready to make some compensation in money. And when the envoys of the States-General refused to accept this answer, a war was declared upon Portugal on October 22, 1657. Finally, the dispute was composed by the treaty of August 6, 1661. It is indeed apparent that the Portuguese were right in laying claim to the restoration of the places seized by the States-General, for the latter admitted that Portugal no longer belonged to the King of Spain. We must add that the Portuguese were allies of the States-General against Spain, in consequence of which the territories of the Portuguese, which had now fallen into our hands; reverted to the Portuguese ipso jure by the right of postliminy, according to the above-cited law of the Digest. It is indeed true that there were no kings of Portugal when those places came into our hands; however, when Portugal was restored, her king was entitled to resume possession of the places which her allies had taken from the enemy, saving the right of the States-General to place a claim for expenses incurred in the occupation, and to that fact the first article of the treaty of August 6, 1661, seems to refer.