Questions of Public Law (1737)
Cornelius van Bynkershoek
Whether Individual States of the United Provinces Can Send or Receive Ambassadors
THE Achaean League, formed from seven states, resembled in many respects our state of the United Provinces. In an oration entitled Achaica, Jacques Godefroy cites the following among the laws of the Achaean League, ‘It shall not be lawful for any state of the League acting alone to send ambassadors to a foreign power’, and he thinks that so long as that law was observed, united action was always loyally taken, but when it was broken, the state too was disrupted. That the allied states in the Achaean League did not severally possess the right of sending ambassadors, was a consequence of the facts that the sovereignty over all parts of the league in all matters lay in the common Council, and that an embassy is not considered legitimate unless it comes from the sovereign power. But it would not be correct to apply this argument to the seven members of the United Provinces, whose individual states have retained their sovereignty except in some matters without which the Union could not be arranged. It is a rule and indeed entirely correct, asserted time and again by Holland before the other provinces, that each province is independent except in so far as it renounced this right in the articles of the Union. It is, to be sure, provided by section 10 of the Union of Utrecht that no province, city, or part should make a compact with neighbouring princes except with the consent of the other members of the Union; but this must be understood to apply wholly to those matters that pertain to the common cause of the Union for in so far as they have renounced their rights not, however, to matters which the individual provinces have reserved wholly to themselves. What is true of compacts is also true of ambassadors; both are on the same plane.
Ulrich Huber, therefore, speaks in ignorance when he says that the independent peoples of the Dutch Republic have the right to send ambassadors. Indeed, the states severally have the right to send ambassadors and do generally act accordingly, since the matters concerned are matters that pertain to the common interest of all the provinces. But the particular point in question is whether the states severally have the right to send ambassadors on matters of their individual concern. In my opinion, this whole question depends upon the articles of the Union. If the right of action lies with the individual province, surely the province may separately enter into compacts with foreign princes in the matter, and may legally send ambassadors to them regarding this same matter; but if, as is usually the case, the matter concerns the States-General and the common good of the United Provinces, it is another matter, for the States-General alone preside over the common welfare.
This question was discussed with great vigour in 1654. On May 4 of that year, the Estates of Holland, in order to obtain peace, promised England on their own accord that they would not confer any powers on land or sea upon the posterity of William II, and that they would not in that body vote that the States-General should confer any such power. Against this agreement the Estates of Zealand, Friesland, and Groningen cried themselves hoarse, and published various pamphlets on the matter. The Estates of Holland responded with a complete volume. Now there are, we see, two parts to the Act of Seclusion issued against the posterity of William II. The first part excludes them from the offices that Holland might confer, the second, from those that the States-General could give, that is, in so far as concerned the vote of Holland. In support of both parts of the Act, the Estates of Holland took great pains to show that what they had promised England was entirely within their power, and that they, as well as the other provinces, had the right in matters that concerned themselves both to send ambassadors and to make agreements; and in Part 1, chapter 5, of their response they cited very many instances by which, in their opinion, the proof was furnished that the provinces severally had employed that right even immediately after the Union of Utrecht. Now I shall not discuss whether all the instances cited there are apposite to the case or whether they can be made to support and agree with the above-cited tenth article of the Union; for we must admit that when the Republic was being formed many things were done hastily and not according to legal form. Yet I am convinced that the Act of May 4, 1654, does quite support and agree with the aforementioned tenth article; for both of the promises given to England depend in fact solely upon the powers of Holland. No one has any doubt about the first part of the Act, nor need one hesitate about the second part, for there the Estates of Holland pledged nothing but their own vote, and no one denies that the several provinces are free to vote as they please in the general assembly.
However, although the aforesaid Act of May 4, 1654, thus considered seems legally correct, the second part of it is not sufficiently considerate of the allied provinces. This distinction, which, as I have said before, is often applicable in other matters, must be observed here also; for, to speak frankly on a question of liberty, it is an inconsiderate and unfriendly act to deliberate without consulting or informing one’s allies concerning matters pertaining to the Union and to pledge one’s vote to another power. With this very objection the Estates of Friesland reproached Holland in a decree of June 24, 1654; but when it added that the Act was a manifest infringement of the Union, I do not agree. The Estates of Holland answered in the aforesaid response that they were at liberty to vote as they chose, which is entirely true; but, as I have said, the considerations of fraternity which somehow exist in a Union hardly allow that one member should pledge its vote without consulting the others. Even the several political divisions of Holland possess the freedom of suffrage, yet the nobles and cities are so far forbidden to promise their vote in matters concerning the state, that they may not receive envoys on matters which are discussed before the Assembly of Holland. In the very preceding year, 1653, August 2, the Assembly of Holland decreed that if the States-General or the individual provinces should send delegates to the nobles or cities of Holland ‘concerning matters that pertain to the common welfare, or that have any bearing thereupon’, the nobles and cities should not give audience to them but should at once refer them to the Assembly of Holland; and this, as is immediately specified, for the purpose that it should be possible to discuss and express one’s opinion freely in the assembly. In the above-mentioned decree the Assembly says that it has explained this opinion more fully in a special book which it issued in 1651 in answer to a pamphlet entitled Redenen en motiven die syne Hoogheid den Heere Prince van Orange bewogen hebben, &c. In that special book the Assembly is wholly occupied in proving not only that legations of that kind are illegal, but also that they destroy the rights of the several provinces, and particularly the freedom of speech in the sessions of the Assembly.
But I would not dare to admit this so freely unless the law intervened. Those who have the right to send ambassadors also have the right to receive them. This is true, however, only with the understanding that the right of receiving, as that of sending, depends upon the right of taking action in the matter concerned. Therefore, as I have said, the several provinces publicly send and receive ambassadors concerning matters that are under their jurisdiction and power, but not concerning matters that pertain to the Union. In fact its laws do not allow the several provinces apart to hear the ambassadors, qua ambassadors, who are to speak on questions of common interest. In the same way the several parts of any given province cannot, according to legal form, receive ambassadors on matters that are to be acted upon by the assemblies of said province. But the aforesaid does not prohibit the ambassadors who are sent to the States-General, or some of them, from conversing about state matters with single provinces, or even parts of provinces. For the suffrage of the several provinces, as well as of the several parts of a province, is free, and those who converse with the ambassadors about their vote, discuss a matter which is quite within their own jurisdiction. I should prefer that they did not pledge themselves, simply as a matter of propriety, which ought to be observed among allies, but if they choose to do so, there is no reason why they cannot. Surely they may converse about public matters in private, and they may listen to discussions through which they may come to the council chamber better informed. Nay, they may even, if they choose, promise their vote, as is everywhere done in the conferring of officers, and that too without harm to any one. If you deny this, defend if you can Holland’s aforementioned Act of May 4, 1654.
I grant that ambassadors may speak in private, I do not grant that they may speak in public except to those whom the matter concerns. But this matter has been interpreted and observed in different ways in the United Provinces. In 1587, the assembly of Friesland expressed disapproval of the embassy sent by Count Leicester to the several parts of the state of Friesland as being unconstitutional and calculated to foment discord. Amsterdam likewise, in 1639, dismissed unheard the envoys of the States-General; and in the same year offered an explanation for this act to the Assembly of Holland. Again when Holland did not wish to support as many soldiers as the other provinces decided upon, the States-General and the Estates of Gelderland, against the opposition of Holland, sent envoys to the cities of Holland on June 5 and 6, 1650. These were received by some of the cities, but refused an audience by others. When Amsterdam refused to admit into the Council of the city William II, who, as Stadholder of Holland, came with the envoys, William issued a protest on June 30, 1650, in answer to which Amsterdam defended its course at length before the Estates of Holland; and the delegates chosen by the assembly to investigate the case decided that embassies of that nature should not be received by the magistrates. And this was also the decision of the States-General, elaborately discussed in that special volume mentioned above, in which they publicly attacked the pamphlet of William the year after its issue.
But these things were done before 1653. On August 2 of that year, as I have mentioned elsewhere, by a special Act, disapproval was expressed against the sending of envoys by the States-General or the several states to the separate cities of Holland, on the ground that such action was detrimental to a free expression of opinion in the assemblies. But whether this liberty of suffrage, so much discussed, is in accord with the decree of the very same States-General, whereby, in the following year of 1654, they pledged their vote to England, let those decide who exercise their suffrage without restraint.
Now, up to this time there had been no stipulation made concerning ambassadors of foreign powers, but this came presently. When, in 1662, a magistrate of Dordrecht had granted audience to an envoy of the Spanish king who came to discuss terms of a defensive alliance, the Assembly of Holland, by an Act dated September 28, 1662, extended the act of August 2, 1654, to cover such cases. After expressing disapproval of the conduct of Dordrecht, it decreed that nobles and cities ‘may not grant audience to any envoys concerning matters that touch the common welfare of the land or that may in any way affect this, and matters the discussion of which belongs to the assembly of the sovereign States-General’. Such envoys they should at once send to the States-General ‘so that no prejudicial action should be taken beforehand’. That the Assembly has jurisdiction over such matters is true according to section I of the by-laws that the Assembly of Holland drew up for its sessions on February 19, 1585, but it is no less true that such matters are acted upon before the magistrates of cities in so far as they have the right of voting upon them.
Moreover, this Act of September 28, 1662, must be interpreted as referring to public audiences granted to envoys, for these are not allowed even to the several provinces if it be a question concerning the whole commonwealth. But we may not suppose that the individual nobles and magistrates of cities or those who are sent as delegates to assemblies, are forbidden by that decree to listen in private capacity to envoys of foreign powers or to converse with them on matters of the common weal. This is not prohibited by any law, nor can it be without prejudice to national dignity. However, they must guard secrecy, speak with discretion on matters not within their delegated powers, and observe the rules of decorum usual in associated action. As a case in point, I recall how the magistrates of Amsterdam, whose delegates met the envoy of the French king on state matters, were for that reason accused of treason, and their papers were seized and sealed at his home at The Hague. But the letter sent by the people of Amsterdam to the cities of Holland on February 19, 1684, and to the States of Holland on March 8 of the same year prove how illegal this act was. William III was at that time threatening the liberties of Holland. He himself brought the charge against Amsterdam, as on another occasion he accused other magistrates on the same charge and procured their punishment by means of his influence. Forsooth it was l se majest against the house of Orange if any man dared breathe a word against his acquiring absolute power in the state, for he left as much power to the magistrates as Caesar left to his colleague Bibulus. God forbid! In the time of the free republic, it was always permitted without prejudice to converse in private with the envoys of foreign powers in behalf of the common weal, and it still is permissible.