Questions of Public Law (1737)
Cornelius van Bynkershoek
Whether the Several Provinces of the United Netherlands Have the Power to Make War
As becomes apparent in reading our annals and public documents the peoples of the Netherlands formerly enjoyed such independence that not only the prince, but even the peoples and the separate cities and towns engaged in wars at their own expense. When, however, the power of the later Counts increased, these rights of independent action were gradually curtailed by the Counts, influence, by fraud, and even by force. But when the last of the Counts was driven out, one might reasonably hold that the ancient liberties had been restored to the separate provinces, except in so far as these were limited by the Union of Utrecht of January 23, 1579, and the formal abrogation of the Counts, authority on July 26, 1581. It is the general opinion that the right of individual provinces to wage war was annulled by the articles of the Union, and this opinion has grown so strong that if any man dares to utter a word against it he is supposed to be undermining the foundations of the Union and threatening the whole state with instant peril. I would therefore have you listen to me patiently while I discuss the question of states’ rights; and even if I do not convince, you may at least recognize the truth of Cicero’s remark ‘that nothing is so incredible that it cannot be made to seem probable by a favourable presentation’.
While discussing another topic in his Apologeticus, Grotius said incidentally that according to the Union of Utrecht it was forbidden to engage in war except at the common consent of all the provinces, but individual provinces could act in self-defence in the case of internal disturbances. Now, if by the first statement he refers to wars of all the provinces in the Union, I agree; but if he would make this statement about any and every war, as I infer from the exception which he adduces, I must take issue. What Antonius Matthaeus says in De Criminibus on Digest, also seems to have reference to any and every war, for there, while citing arguments to prove that the individual provinces are sovereign, he goes on to say: ‘this contention is not disproved by the fact that the provinces are competent to decide matters of peace, war and religion only in common council and by a common vote, since this is a requirement of a treaty of alliance and does not prove that the Union is a single state’. I may say by way of parenthesis that his inclusion of religion vitiates his argument since the articles of the Union clearly left the question of religion wholly in the hands of the several provinces; however, that is not the question now at issue. His words about peace and war must be judged by Article 9 of the Union, which reads as follows: ‘It shall not be lawful to make treaties of truce or peace, to declare war, or to impose taxes which concern all the provinces, except by a common council and by a common vote of the aforesaid provinces; but in other matters, et cetera.’ It is apparent that the unanimous consent of the provinces is required in these matters. However, the article continues with the provision that if any province gives a dissenting vote, the matter should be referred to the arbitration of the governors, and if these did not reach an agreement, other arbitrators should be added to their number, and the decision of this board should be held binding upon the dissenting provinces.
I do not intend to discuss here whether this requirement of a unanimous consent in matters of peace, war, and general taxes has always been observed, though I will say that it has not. The Peace of Münster in 1648 was made and accepted without the approval of Zealand; the Peace with Portugal in 1661, without the approval of Zealand and Utrecht, just as in 1657, the war had been declared against Portugal without the approval of Friesland, though she had to contribute to the expenses, and this was done, as Aitzema relates, only because the war was advantageous to the other provinces. Were it not better to be discreet, I might cite other instances in which some one province was not permitted to register a dissenting vote, although unanimity is required by law. And these instances disprove the claim so often put forth that the articles of Union have perpetual validity. Lest, moreover, I may seem to be overbold in my statement that the articles have not always been observed, I will call to witness a statement made by the Estates of Holland. When on October 9, 1663, the delegates of Groningen proposed a decree to the States-General that all the representatives assembled at the session of the States-General should take an oath, inter alia, to observe the articles of the Union of Utrecht, the Estates of Holland on November 27, 1663, decreed, that before taking the vote the petitioners should draw up a new constitution of the Union to which they might swear allegiance, since a large part of the old articles had become obsolete, ‘for’, they said, ‘the old constitution of the Union not only contains various passages, articles and phrases which are now obsolete, but also some that various provinces are not inclined any longer to hold in respect’.
But it is more important to know what is the meaning of this ninth article of the Union. It is now agreed by all, after Grotius in his Apologeticus proved the point, that each province has the powers of a sovereign state, for this power was never given to the federal government; in fact the first article of the Union forbids the federal government to interfere in the controversies between the individual provinces. The States-General assume the common concerns of the whole state, but the governments of the separate provinces take charge of the concerns of their respective provinces. If a war is to be waged for the common advantage of the whole state, the States-General conduct it, but not without the common consent of the provinces, if they abide by the laws of the Union, as they should. We must therefore consider whether there are occasions when individual provinces may properly conduct war. They might wage war against foreign states in behalf of all the United Provinces or in behalf of some of them, or in their own behalf, that is to say, in the defence of their rights or to repair an injustice that has been committed against the single province. In all of these cases we could hardly refrain from granting that the individual province had retained its right to make war. The people of a free republic may make war at its own discretion as any independent nation may, and this principle was recognized among the peoples of the Netherlands which are now united. What was formerly permitted to each province is still permissible unless the provinces have renounced the rights in question. The sovereign power of each province is not made void or diminished except by an explicit renunciation. And all this agrees fully with the opinions which the Estates of Holland explicitly expressed on July 25, 1654, in the pamphlet regarding the exclusion of the House of Orange. It is another matter if the constitution of the Union contains any exceptions to this principle, but we shall revert to that question presently.
There is no valid reason, therefore, why one province should not be allowed to wage war in behalf of the United Provinces if they consent. The above-cited Article 9 requires only common consent in such a case; it does not require a community of expenditure, so if one province should be willing to assume the whole expense, the others would only have cause for congratulations. Indeed the Estates of Holland in their pamphlet on military rights issued on May 17, 1657, proved at great length that single provinces had fought in behalf of the whole Union at their own expense, under separate commands, with their own forces, and with objectives of their own, quite apart from the forces of the States-General. And you may find there, if you desire, the proofs that this was also done in the early days of the Union, so that the constitution in no way prevented it. Indeed, that one province may wage war in behalf of the whole Union if the rest consent, is so well established that it would be difficult to find any one to contradict it. Again, some of the provinces may defend themselves or avenge a wrong done them even if the rest take no part, as we must grant if we grant that individual provinces may take up arms for their own sakes, and this right may be defended by an argument that I have already mentioned, namely that each province retained in the Union their former independent status in matters of peace and war unless they surrendered it. Hence if a province is attacked by a foreign power and the other provinces do not hasten to aid with their common forces, whether through wilfulness or inability, the province may lawfully take up arms in requital or in defence of its right, unless some one can prove that it has renounced this right, a proof that no one has attempted to offer so far as I can remember. To be sure, the above quoted Article 9 may seem to provide such proof in saying: ‘it shall be unlawful to wage war without the consent of the aforesaid provinces,’ but we must bear in mind that this article was inserted in the constitution to protect the rights of individual provinces, not for the sake of destroying or diminishing such rights, and hence it stipulates that one group of provinces shall not have the right to compel others to enter a war, and thus be involved in the burdens of war against its will. It is the war in behalf of the whole Union, as the article expressly says, which cannot be declared except by common consent. But this does not prevent any one from waging a war in its own behalf and at its own expense.
The opinion of those who opposed the declaration of the war with France in 1684 agrees in general with what I have just said. For when in that year it was proposed to levy an army of sixteen thousand men against France and the Frisians and some cities of Holland and Zealand dissented, the objectors did not deny that war could be declared, but they held that they could not be compelled to bear a part of the expenses. This view is especially stated in a letter which the Estates of Friesland sent to the States-General in March 1684, and the same opinion was held by the people of Amsterdam and Middelburg, who also expressed their disapproval in a public protest. Thus they acted as in ancient Holland, where several cities joined together to form a federation, but not a state.
Now I seem to hear the objection that it will be dangerous if individual provinces are permitted to make war on their own account, for in that way some provinces will be exposed to immediate danger, since foreign nations do not discriminate between the provinces and will attack any part of the federation that is exposed. Hence if they should attack the province that may be preparing for war, there is danger that they may seize it, separate it from the others, and so render it useless to the federation. I grant the force of this argument, but the objector is disturbed about consequences while I am concerned with the law as it stands. But even if one should consider consequences first, consider how cruel it would be if a province which had been shamefully attacked were deserted by the rest and yet not permitted to avenge its own injuries. Since, therefore, consequences are so perilous on either supposition, we must hope that no province will ever be compelled to wage a war alone, even as that necessity has not arisen since the Union was formed. But let us return to the consideration of the law. Even on legal grounds you may object that single provinces are so far from being empowered to wage war, that they are not even empowered to do anything that may provide an occasion for war; and therefore Article 17 of the Union provides that no member of the Union shall do anything that may furnish an excuse to a foreign prince to make an attack, and if he does, the other members may coerce him, and on this plea the clause demands an upright exercise of justice. But it cannot be said that a province that has been wronged ‘has provided an occasion for war’. A province that has suffered wrong has a just right to wage war to defend itself against injuries and to recover what was unjustly taken. Hence, whatever may be said of the right of waging war, he certainly has not the right who has acted unjustly and therefore provided the occasion. However, the above-cited article contains a difficulty, for it is by no means clear who is competent to judge regarding the justice or injustice of a war. The provinces certainly are not if they are in disagreement; however, in this matter as in others we should observe the methods of reaching an agreement that are provided at the end of the first article of the Union of Utrecht.
Now since we have found that single provinces may wage war for the common good if they desire, the question remains whether unwilling provinces can lawfully be compelled to engage in a war for the common cause. If we insist upon the truth we must grant that they cannot, for this too is a subject for voluntary action. You may object that in Articles 1 and 2 of the Union the provinces pledged themselves to mutual defence even by war, since in both articles the phrase occurs ‘with life, goods and blood’, and furthermore that Article 3 of the same pact explicitly stipulates that any province which has suffered wrong or violence must be defended by the common forces against the enemy, be he foreign or domestic; and these are the very objections raised against the Frisians by the other provinces when the former in 1657 objected to the war with Portugal. But it is well to keep in mind the philosopher’s words ‘generalities are futile’, and also the dictum of Celsus: ‘It is imprudent to base a response upon a clause torn from its context and without reading the whole statute.’ For after the phrases which I quoted above from the first articles, the pact continues with the words: ‘provided that the assistance is decreed by the States-General after diligent examination of the case’. Consequently the other provinces cannot be compelled to aid unless the States-General so decide, that is to say, unless all the provinces agree, for Article 9 presently states that the States-General do not declare war unless all the provinces approve. Hence it is possible for one province to dissent, and thus prohibit a common war or a war waged in the name of the whole federation; and it may dissent either because it thinks that the injustice done one or more of the provinces did not concern it, or because it thinks the quarrel concerning their wrongs unjust (for the federation does not give aid to unjust complainants, since every obligation ceases in the case of an injustice, as I showed in the ninth chapter), or finally because the dissenting province cannot bear the expenses of a war, as is often the case.
However, if the cause was just and the province has the resources with which to enter the war, it is not a friendly act to fail a province that has been wronged, whether because the injustice does not seem to concern the dissenting province directly, or because of some less creditable reason. An association contains to a certain degree the rights of brotherhood, and that is why the partners of this federation have promised their mutual efforts for defence, and to this promise they certainly would be bound in any just cause unless the obligation were released by the liberty of each province to wage war at discretion. Thus there are many acts that are just, which, however, are not friendly.