Questions of Public Law (1737)
Cornelius van Bynkershoek
Whether it Is Lawful to Enlist Soldiers in a Neutral Country
I ENTER upon a question which is causing, as it has in the past, a great disturbance over a large part of Europe, namely whether it is lawful to enlist soldiers in a neutral country. I do not mean to imply that it might be lawful to entice away soldiers by bribes from the service of a friendly power in order to enlist them in our own army. Those who invite desertion are no less punishable than the deserters, and in some nations this crime is considered high treason. But there is a fair question, whether one power may hire private individuals in the territory of a friendly power and employ these as soldiers in their own war. If indeed a power prohibits its subjects from transferring their allegiance or serving as soldiers in other countries, it is clear that other powers may not hire such subjects for service in their armies; but when no such prohibition exists, and it is indeed seldom found in the states of Europe, subjects may, in my opinion, leave their own country, migrate to another, and serve under a foreign prince.
If, as I have just said, there is no law to prevent it, subjects may change their allegiance from one country to another, as all writers on public law agree. Grotius, who is of the same opinion, adds that the Muscovites do not permit this practice, and we have had public testimony more than once that the Chinese and the English do not consider the practice lawful. Louis XIV of France also, by the edict of August 13, 1669, threatened with forfeiture of life and goods any Frenchman who without permission left France with the intention of not returning. Before that year it was permissible in France, as indeed it is in every country that is not a prison. And since it is lawful to emigrate into the territory of another prince, it must also be lawful for the emigrant to seek honourable means of livelihood there, and why not by means of military or naval service? In the United Provinces there is certainly no law to prevent it, and many Dutchmen have in times past, and in our own day, served on land and sea in the forces of other powers.
We are, however, speaking only of friendly powers, for it is never permissible to enter the employment of the enemy for service either in the land or the naval forces, and this prohibition occurs in several edicts of the States-General. It might be supposed that many of the edicts of the States-General which prohibit military service under foreign princes are to be taken as general and permitting no exceptions, but if you examine them with care you will find that some were temporary restrictions drawn up during a war when we were in need of men, others had reference to those who had enlisted with the enemy or to deserters from our army who were serving with the enemy; indeed some of the edicts specifically mention both of these classes. When once a Dutch vessel was captured by a French ship whose eighty sailors, with the exception of six Frenchmen, were natives of Holland and Zealand, the States-General decreed on July 23, 1674, that if any of our subjects entered the naval service of the enemy, they should be drowned; and the same decree was issued again on April 4, 1676. These decrees deal with those who enter the service of an enemy, but it would not be reasonable nor in accord with the obligations of friendship to extend these prohibitions over those who enter into the service of allied or friendly powers.
If therefore our citizens, who are not needed in our army, and who are not forbidden by any law to change their allegiance, are permitted to enter military service in a friendly state, why should not that state in turn have the right to enlist soldiers in the territory of a friendly nation? Where it is lawful to let out to hire, it is also lawful to hire. Why should it not be as lawful to make a contract for soldiers in friendly territory as to make any other contract of hire or sale and to carry on any kind of trade? Nor do I find any force in the objection that he who hires the soldiers may possibly use them in war against a power that is friendly to their own state, and may even employ them later against their own state. In answer to the first objection, I should say that neutrals ought to consider both belligerents as equally in the right. This is the principle that we generally observe with respect to trade in arms, for though we may not properly bring these to either belligerent, we may lawfully sell arms to both, though we are aware that they will use these arms against each other. To the second objection that these soldiers may later be employed against their own country, I answer that we must consider the present circumstances of the state and not remote possibilities. Furthermore, we do not forbid a friendly power to buy gunpowder, arms, and other munitions of war, although that friendly power might become hostile and then use these munitions against us. But as I said, we must keep in view present relations, for unless we do this there will be an end to friendships and the treaties that exist between friendly powers.
I think, therefore, that the same rule should obtain regarding the enlistment of soldiers in a friendly nation that obtains with respect to the purchase of arms, unless it is otherwise stipulated in a treaty between the two powers. Thus in the treaty between the Romans and Antiochus, the latter was compelled to agree not to enlist soldiers within the boundaries of the Roman empire, according to Livy and Polybius. But had the treaty been between equals, this would have been lawful, and the Romans could not have imposed this rule without injustice; for it is clear that there was no clause forbidding the Romans to hire soldiers in the empire of Antiochus. Hence this prohibition to do a thing which otherwise is permitted by the law of nations was imposed upon Antiochus alone, though in the first clauses of the same treaty both signatories bound themselves, like powers of equal standing, not to aid the enemy of the other with supplies.
In Holland, however, and in the rest of the Netherlands, it apparently has been and still is prohibited by law to enlist soldiers without permission of the government. There is a very old edict to this effect, dated January 8, 1529. And when the Danes, Swedes, and Muscovites were hiring soldiers in the Netherlands without the consent of the government, the States-General on August 1, 1612, decreed that no subject of the aforesaid nations should do this without the written consent of the government, and that, in case consent was given, no one should invite soldiers in the employ of the government to enlist, under penalty of death or some other discretionary punishment. With that edict those of the following dates agree: December 16, 1622, March 3, 1627, March 30, 1646, July 21, 1648, May 27, 1650, January 20, 1652, and March 18, 1658. The Estates of Holland also decreed on March 27, 1652, and March 16, 1656, that if any man hired soldiers in Holland without the written consent of the government or its council, he should be liable, not to a discretionary penalty, but to the punishment of death, without remission. Such are the rules of the States-General and of the Estates of Holland in this matter, and with these I gladly agree, as is proper.
We may notice here a dispute which took place in the year 1666 between the States-General and the Governor of the Spanish Netherlands. The former complained to the Governor that the Bishop of Münster, with whom they were at war, was enlisting soldiers in the Spanish Netherlands. The Governor answered that he had not granted permission to do so, but that if he had, there was nothing to prevent him, because Spain was neutral in the war, and that the States-General might also have the privilege of enlisting there. But we have already discussed whether this is lawful without the consent of the sovereign, and whether permission, when asked for, may be refused; from what has been said the reader can judge for himself whether or not the Bishop of Münster had a right to enlist soldiers in the Spanish Netherlands without the consent of the governor.