Questions of Public Law (1737)
Cornelius van Bynkershoek
On the Right of Legation
AMONG writers on public law it is usually agreed that only a sovereign power has a right to send ambassadors. In usual practice, at any rate, independent princes and peoples send ambassadors to other princes and peoples who are likewise independent, and the rights of envoys among these are well established; but they are not to the same degree, when subjects, for instance, or rebels, send envoys to their princes. When the rebellion against Spain arose in the Netherlands, Margaret of Parma and the States-General sent two Belgian nobles, John of Montigny and John, Marquis of Bergen, to King Philip in Spain in 1566. Since it did not suit his purposes to send them back to the Netherlands, the King retained them in Spain, just as later in 1634 the Duke of Aerschot was retained, though he also had been sent as envoy. The two former, in fact, were not only prevented from returning, but were put to death at the King’s orders by means of the sword or poison, according to common report, and the edict issued by the Estates on July 26, 1581, which abrogated the authority of the king as Count. The people of the Netherlands charged that the King by this act had violated the sanctity of envoys, and even the States-General in the decree just mentioned asserted that this deed violated ‘all common rights always held inviolate even by the most cruel and tyrannical princes’. And for that reason they mention this as one of the reasons of the abjuration.
But Wicquefort in his L’Ambassadeur, correctly observes that though this deed of Philip’s was not deserving of praise, it was not to be considered as unjust and outrageous, as those held it to be who judged solely from partisan motives. For those two nobles could not correctly appeal to the rights of envoys if one chose, as did Philip, to observe strict legal form, rather than the dictates of equity. Envoys are saved from being answerable to the authority of the prince to whom they are sent solely in order that they shall not have to change their status while in the service, and become subjects to another master while representing the interests of their own, who may even be an enemy of this other. And this consideration could not at all obtain in the case of those provincial quasi-envoys, for they continued to be subjects of Philip, as they were before the embassy, and they represented only Margaret, a subject of Philip, or the Netherlands, equally subject to Philip, unless indeed they were actually rebels as Philip held. They were therefore detained in Spain so that they would not escape into France, as they were attempting to do, and thence to the Netherlands, to stir up a rebellion. Since, however, they had come in good faith and with the consent of Margaret, they should in all fairness have been saved from death. Nevertheless, even Grotius holds that subjects and rebels have not the right of legation, and Zouche follows him. And this holds true unless the prince disregards the status of the subject or rebel and consents to treat with them as with a foreign and independent people, as is defined in section I of the Truce of April 9, 1609, between Spain and the States-General, according to which the King treated with the states as with an independent people.
In order that the embassies on both sides shall be able to stand on legal ground completely, it is necessary that both shall represent independent sovereigns; for if only one is independent, his envoys alone have full legal standing; the others are considered messengers if sent to a foreign sovereign, and subjects if sent to their own; so that the sovereign can enforce the laws against them as against his other subjects. When the Batavians revolted against Rome and sent an envoy with letters to Petilius Cerialis, the latter, without responding, since they did not have the right of legation, sent the envoy to Rome, doubtless so that he might be punished if he were found guilty of treason. And when Pisa, in 1327, refused to admit Louis of Bavaria into the city, he arrested the envoys sent out to prevent his entry, as Burgundius tells.
When a state is torn by civil wars, the question is, in my opinion, which faction retains the governmental functions; if one part has them wholly as they were, and this part does not need the consent of the other to perform the duties of government, this alone has the right of legation, and the representatives of this part are fully competen-t to act as envoys. The envoys whom Vitellius sent to Vespasian, according to Tacitus, are to be judged as having this right. And so Tacitus correctly adds about these envoys, ‘unless they had been protected by a guard provided by the general, this civil madness would have violated before the very walls of the city the rights of envoys held sacred even by foreign peoples’. For it is indisputable that Vitellius and the senate, by whom the envoys were sent, were not subjects of Vespasian, but were the sovereign power until they were conquered. It would have been far different if Vespasian had sent envoys to Vitellius, for they could not, by any standard of law, have claimed the privileges of envoys; they would have been messengers of rebels and nothing else.
Those, however, who require that a ruler must be an independent sovereign in order to send envoys, do not customarily distinguish whether he holds his sovereignty by just title, or whether he has acquired it unjustly, and, in fact, such a distinction would be impossible. It is sufficient for those who receive the embassy that he is in possession of sovereignty. Paschal rightly says: ‘Very few kingdoms and empires can be mentioned whose origin rests upon the free vote of the people as in the case of Deioces, the first ruler of the Medes. Violence has brought forth more empires than has election’; and again: ‘Factional strife and violence are usually the foundation of empires.’ In the same strain is the statement of Carneades in Lactantius, ‘If all nations which had gained great empire, yea, even the Romans who have won possession of the whole world, should decide to become just, that is, to restore what did not belong to them, they would all have to return to dwelling in huts.’ In political matters, at any rate, it is expedient that possession be nine points of the law. Otherwise, we would be compelled to examine into the origins of all states to find whether or not they were based upon justice, and then ultimately to decide whether or not they had the right of legation. This, however, would be utterly futile, and would provide an excellent excuse for disturbing the peace of nations.
However, I should not like to make the unqualified assertion, as some do, that no one but an independent sovereign may send envoys, for that would put an end to provincial, municipal, and other similar embassies, which are, and always have been, numerous. I would rather say that all have the right of legation concerning matters that lie under their authority, but that the legal status of such envoys varies with the position of the prince who employs them, and the honours bestowed upon them vary accordingly. If the prince who sends them is independent, they are accorded full rights of envoys; if the prince is not independent, the position of the envoys is left to the decision of the prince to whom they have been sent. But this does not wholly destroy the right of legation, if the prince who sends them has authority in the matters concerned. Sometimes envoys of the conquered cities of Brabant, on presenting their so-called credentials, have been given audience by the States-General. Envoys of a military court have attempted the same, but in December, 1645, these, as well as military prefects of cities, and also the magistrates of the subdued cities of Brabant and Flanders, were ordered not to send envoys to the States-General, but to present their requests in writing. Deputies of the Estates of Gelderland send envoys, according to section 38 of their constitution, also the Dutch East India Company, as well as the French East India Company, according to section 27 of its charter, dated May 31, 1664; and, in fact, who does not?
I know that when Elizabeth, Queen of England, had seized the moneys sent by the King of Spain to the Duke of Alva in 1569, she refused to treat with Alva’s envoys on the ground that they were not sent by a prince. But the Queen clearly shows by this act, that she would rather avail herself of a trivial technicality than render each man his due. Zouche adds to this the instance of the two envoys sent to Philip, King of Spain, by the nobles of Genoa, who, however, were not received because the opposing faction in Genoa protested. But in this case Philip could refuse, not on the ground that their principals were subjects, but rather on the ground that when a state is divided by civil war, a part of the state is not competent to take political action, unless, as I said above, complete authority rests with that part. For. unless those parts which are authorized to consult and act together do so unite in action, everything is void that may be done by either severally. On this principle, according to section I of the Settlement of the Estates of Holland, everything was rescinded that had been done at the time of confusion (April 8, 1654) by the two factions of Overyssel, when both factions claimed, each to the detriment of the other, to be representing the estates of the province. Grotius makes a distinction in this matter based upon the relative size of the factions and would consider whether the two are almost equal. But this principle will hardly form a basis for a definition, nor does it seem to me to be applicable here. It is wholly a question of where the legal authority lies. And the illustration that Grotius cites regarding the envoys of Vitellius is not to the point, since, as I have remarked, the governmental functions of Rome were then in the hands of Vitellius and the senate. Wicquefort is therefore correct in rejecting this distinction of Grotius, or rather, correct in restricting it to matters which each faction has to discuss, that is to say, matters in which each faction has authority to act.