Questions of Public Law (1737)

Cornelius van Bynkershoek

BOOK 2, CHAPTER 1
The Government of the Counts in the United Provinces Did Not Terminate till July 26, 1581

IN Tacitus, it is reported that Claudius Civilis, in order t incite the Batavians against the Romans, said: ‘No account need be rendered for victory.’ If this be true in the case of victory, it is surely more so in the case of a change of government, for considerations of a prosperous peace and of the tranquillity of nations demand that no reckoning be required. I shall not discuss, therefore, by what right the rule of the Counts was brought to an end; at any rate it is certain that it came to an end on July 26, 1581; for on that day the States-General of the United Provinces declared that the rule of Philip II, King of Spain, had ipso jure (to quote the very phrase) terminated. It is not entirely clear what the phrase ipso jure means, whether, as seems likely, the States-General thought that the King had forfeited his power ipso facto, that is to say, at the very moment when he abused his privileges. For this is the opinion of jurists about kingdoms that are conferred under the conditions which apparently were involved in the terms of the oath that Philip took before the Estates on October 25, 1555. But in that case, it follows that all laws, regulations, constitutions, and prerogatives given by Philip II, not only after that date but also before, are null and void, since the States-General complained in their edict that he had broken their laws through several decades. And yet we employ without any scruple various laws and regulations passed and bestowed by Philip during those decades, laws that would be void under the above-mentioned interpretation. To establish some certainty once and for all, as behooves us in so serious a matter, it must be said that the legitimate rule of Philip over the United Provinces came to an end in the year 1581, and, in short, on the 26th day of July. And this we must conclude not only because this very decree of the year 1581 abrogated his power for the future only (voortaan, henceforth, is the word used), but also because he was held to be the legitimate Count, and all settlements were made and confirmed in the name of Philip as ruler, as appears from the decisions of the Court of Holland rendered November 5, 1579, May 21, and October 19, 1580, from the coins with the emblems of Philip II issued shortly before in the United Provinces, from prayers then publicly expressed for his safety, and from laws, as I just said, not only carried by Philip as legitimate Count, but also openly acknowledged and accepted. So then the phrase ipso jure used by the States-General seems to signify (if, as one may doubt, it actually means anything) only that the abjuration was final in every way.

What I have said is not disproved by the fact that the Estates had waged wars with the Spaniards before, since up to that time they spared the Count. It is one thing to abrogate the rule of the prince, a different thing to wage war with his regents, even though appointed by him, as is proved by many instances of civil wars under the Spanish kings. In 1547 and again in 1647 it is well known that the Neapolitans, while remaining loyal to the Spanish kings, took up arms against their regents, by whom they complained that they were oppressed even as the Dutch by their governors; and they even appealed for aid to the French, the enemies of Spain. And of the same nature at first was the revolution of Messina in 1675, and of Palermo before.

This very question regarding the date when Philip’s power came to an end was discussed with great spirit between the House of Orange and Amsterdam in 1689, when the question was raised concerning a privilege that Philip II had granted to Amsterdam on February 3, 1581. The people of Amsterdam supported the grant, the Prince of Orange opposed it. In my opinion, Amsterdam was in the right. A certain pamphlet of an anonymous writer published in support of Orange in 1690 concerning this matter has come into my hands, in which the following arguments are brought against this grant. That the rule of Philip was ended by the Union of Utrecht in 1579 is evident, he thinks, from the laws that the Estates passed in 1579 and 1580; and hence it is that the Estates of Holland stated openly in issuing the ‘judicial Formulary of towns and country’ on April 1, 1580, that they spoke with the Count’s authority: ‘The Knights, Nobles, and Cities of Holland representing the States and the Count’s authority of this land.’ The anonymous writer might have added another act of the same Estates passed the same day (April 1, 1580), which prescribed the so-called political regulations, also the ‘enlarged Formulary of the Court of Holland’, dated December 22, 1579, and also the formulary of the lower courts, drawn up the same day. For in all of these the abrogated title is applied to the Estates with the exception of the phrase ‘Count’s authority’. The anonymous writer goes on to say that not only did the Estates pass laws, but these same Estates of Holland in section I of the above-mentioned ‘enlarged Formulary’ repealed section 8 of the judicial formulary which Charles V gave to the Court of Holland on August 22, 1531. Finally he says that the last law passed by the Count was on February 21, 1564, and that there is none extant after that date.

These circumstances impress the author of that book, but not me. The royal power of Philip II was no more abrogated by the Union of Utrecht than by the Pacification of Ghent. And yet it did not occur to the author to claim that it was ended by the latter, though it did to Conring. The latter is, however, wrong, for the contrary view is proved by both of those treaties as well as by many others which I shall not now pursue. Entirely correct is the statement which the counsellors of the Estates of Holland made in a response to the Estates of Friesland on June 27, 1663: ‘That the authority of the King of Spain was still acknowledged by the Union, at least he was assumed to be Duke, Count, and Lord of these Provinces, since it was clear that this King was first declared deposed by all the provinces of the Union in the year 1581, for even by the 5th article of the Union the Estates of the provinces were still called “the Estates of his Royal Majesty”.’ There is your answer, if you hold that war was declared against Spain by either one of those Unions. The Estates were in fact allowed by section 15 of the laws of Mary of Burgundy (March 14, 1476) both to meet in consultation within the provinces and to hold united meetings with other provinces, and that without any restricting clause. John of Bavaria, however, had made a similar grant to Dordrecht on June 20, 1418, containing an additional clause ( 14) providing that they should not take any measures against their Count. And perhaps on the basis of this grant it would be possible to defend the decision of the Court of Holland, rendered in 1482, whereby it condemned to death a governor and a magistrate of Dordrecht on the ground that they had voted to appeal to the cities for the expulsion of foreign troops from Holland. Hugo Grotius, and others who simply copy him, attack and abuse this decision of the court as being grossly unjust, particularly on the ground that it was unconstitutional for foreign troops to be stationed in Holland. But I do not know the basis and argument for the statement.

Besides, the author above mentioned appealed to the laws of the Estates. But the Estates had the authority to legislate in the time of the Counts, as numerous instances prove. Even from the last counts there are constitutions, and among them the edict that Philip II gave on March 2, 1557, in which his subjects are requested to obey the laws passed by the Estates. Now concerning the fact that the Estates of Holland say in the preface of the ‘Judicial Formulary for towns and country’ (April 1, 1580) that they speak with the Count’s authority, I would understand this, if, as I think, it refers to the person of the Count, to mean that they represent the Count himself, then absent, though in power; since authority had frequently been given to legislate in his name. Nowadays they say only that they represent the Estates of the county of Holland, which is entirely accurate. A certain commentator of Dutch wit has busied himself to little purpose with those phrases of the edict. In his opinion also the Estates might have abrogated an old law of the Count’s, recognizing his veto in case this displeased the Count. But here, in section I of the aforementioned enlarged formulary of 1579, there is not even an abrogation; it is merely interpretation, and the right to interpret is not denied either jurist or judge by any one. When the same disputant finally says that the laws of Philip were received only up to February 21, 1564, he is absurd, and has already been refuted in the aforesaid. Presently, when I speak of other later laws of Philip, his errors will become even more apparent. The facetious fellow was not acquainted with any of the laws of Philip except those which occur in the miscellaneous collection which bears the title taken from the first in the book De Instructie van den Hove van Holland. In that collection the last law of Philip is the edict issued February 21, 1564, forbidding bondsmen to make a compromise before the pledges are secured. That was also the extent of the knowledge of the anonymous writer.

In a word, then, the authority of the Count ceased in the United Provinces after July 26, 1581; but the Estates of Holland had already abjured Philip on April 19 of that year, freeing the vassals and public officers from their oath to him and binding them to fidelity to the Estates, according to their decree of that date. However, in certain places, loyalty was still accorded Philip as Count after the abjuration of the Estates, and in Zealand there were magistrates pledged to the King of Spain even after 1581, of which fact the Estates of Holland decreed on April 9, 1582, that the Estates of Zealand should be warned.

Even public interest demands that the argument which I have presented should be considered valid. For what was decided at Rome about the edicts of Barbarius Philippus when he was held to be the lawful praetor should all the more apply to princes, even though they have usurped power illegally, as I shall show more fully below. Almost up to the time of the abjuration, all acts were passed in the name of King Philip. Should we then say that all these edicts and decrees are null? I should not. For instance, the governor and the Court of Holland issued an edict concerning shipwreck, made, according to the signature, ‘before the king on the motion of the Governor’.

Though the Duke of Alva had in 1568 pronounced Orange a traitor in his absence, yet Orange remained publicly loyal to the King, as Count of Holland, taking the position that all the wrongful acts of the Duke were committed without the King’s knowledge. In about the same manner the grant of a charter founding the Academy of Leyden was made on January 6, 1574 with the insertion of the name of Philip II, and the following phrase: ‘by advice of our beloved cousin. Knight by Our Command, William, Prince of Orange’. William was as dear to the King as was the city of Leyden to which, as every one knows, the honour of having an Academy was given because it had so bravely resisted the Duke of Alva. Yet Orange himself in the preface of the Academic Charter speaks .of the King himself as ‘The King of Spain, our gracious Lord’. The King is still ‘gracious and merciful’, although in the very grant of that year Orange calls the Duke of Alva and all of his party enemies: ‘the enemies of Holland and Zealand’. In the same way, and in the name of Philip alone, Orange confiscated for state use the ecclesiastical properties of Holland and Zealand by the edict of April 17,, which was no less amusing than when, on December 7, 1577, he again, in the name of Philip, issued an edict that John of Austria and his party were to be considered public enemies.

But there are wellnigh numberless edicts between the banishment of Orange and 1581 issued in the name of Philip, and in most of these are found the words occurring in the grant to the Academy of Leyden: ‘with the advice of our beloved Cousin, the Prince of Orange’. Must we hold that all of these are null and void, especially after the Unions of Ghent and of Utrecht? If we did, many things would be invalidated, the force of which neither Orange nor Count Rennenberg nor the Estates ever questioned. It was only on this condition that Orange, on May 3, 1579, and Count Rennenberg, on June 11, 1579, signed the Union of Utrecht, ‘as considering that in this act the sovereignty and the authority of overlordship of the archduke were not curtailed or diminished’. By the word ‘sovereignty’ I understand Count Philip, the King of Spain; by the ‘authority’ of the archduke, I understand that the governor, Matthias, is meant; for, in giving his approval, Count Rennenberg calls Orange the ‘Lieutenant-General of the Archduke Matthias, Governor-General of the Netherlands’.

From the above, it is evident that when the question arose of the right to make a testament depending upon the grants of Zealand which Philip II had bestowed on June 17, 1580, the correct response was given, namely, ‘it is generally understood that testaments made by virtue of the grants obtained from the King of Spain as Count of Holland after the Pacification of Ghent, but before the Estates abjured him shall have the authority of deeds legally and properly drawn’. And at the same time it is apparent that the above-mentioned grant to Amsterdam dating February 3, 1581, which is here under discussion, must be considered as entirely valid. From the same arguments it is clear that the doubt is wholly misplaced which certain foreign writers have expressed about the authority of the academy of Leyden, as though it were not founded by the sovereign. But after the Peace of Münster it is utterly futile to entertain such doubts, as some have done.

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