Questions of Public Law (1737)
Cornelius van Bynkershoek
Whether Ambassadors May Receive Gifts; and Related Subjects
FROM the title of the chapter, you see that we are not discussing the gifts that one prince sends to another to win his goodwill. These have always been permissible, and at all times such giving has been a common practice among nations, and especially in the East. What we are now concerned with is whether ambassadors may accept gifts. Indeed, the histories give abundant testimony that in former days gifts were bestowed upon envoys upon their arrival, during their sojourn, and at their departure, and accepted these without prejudice to their good name. Aelian tells about gifts received by envoys coming to the Persians, and other authors cite other examples.
Among the Romans, who particularly encouraged integrity among their people and accordingly forbade their governors and proconsuls to accept gifts, I find no law forbidding envoys to accept them. To be sure, I find that gifts were often refused by them, as one might well expect from the offspring of a manly stock, but I have sought in vain for a law forbidding them. The Roman envoys who had been sent to King Ptolemy ‘delivered to the public treasury the gifts that they had individually received from the king, and that too before they submitted their message to the senate. They decided, it would seem, that no reward ought to be derived by the individual from public service, except commendation for efficiency in the performance of his duties.’ This behaviour of the envoys is recorded by Valerius Maximus. Valerius goes on to tell what the senate and people did in return: ‘The gifts that they had delivered to the treasury were returned to the envoys by a vote of the senate and by permission of the popular assembly, and the quaestors immediately distributed these to the individual envoys.’ Here is an example of generous behaviour on both sides, but you will not find mention of any law prohibiting the acceptance of gifts. In fact, if such a law had existed Valerius could hardly have reported this deed as an example of magnanimity. I know of course that the Lex Julia on Extortion also applied to a man who accepted money as an envoy. But this law applied only to the one who in collusion accepted a bribe for the commission or omission of some act by virtue of his office. It did not apply to the man not charged with fraud, or to one who in customary manner received what was customarily given. Nor among the Greeks, except at Corinth, do I know of any law which forbade envoys to accept gifts from a prince (nomos ouk eia dora lambanein para Dunastou probeuontas) according to Plutarch Regum et Imperatorum Apophthegmata, sub voc. Dionusiou tou presbuterou.
As there was no consensus of opinion among nations of former days as to what gifts envoys might accept and retain, so there is none to-day. However, among most nations it is now the practice that envoys may accept gifts upon their departure. These vary with the dignity of the prince or his envoy, or in proportion to the services rendered, or if for some other reason the envoys have enjoyed greater or less favour with the prince to whom they have been sent. This custom has become so usual, that the Venetians show indignation if their envoy returns home without a gift. They even wished to force the Duke of Savoy by an agreement to send the gift which he had not bestowed upon their envoy at his departure; see Wicquefort.
The law which the States-General passed August 10, 1651, is quite different, being like the Corinthian law. They decreed, namely, that no envoy of the States-General should in any manner accept any gift whatever, under penalty of disgrace and whatsoever added punishment might be deemed fitting. Furthermore, breach of the law should ipso facto entail forfeiture of his office and rights to all offices in the future. Wicquefort harshly inveighs against this decree on the ground that gifts when bestowed are usually presented when the envoys are departing, and that envoys can hardly commit an act of collusion or betray the interests of their prince at their departure, when all the business has been transacted. But his argument does not appeal to me, for it is self-evident that envoys while in office may perform their duty with greater or lesser degree of loyalty with a view to the nature of the gift that might be bestowed. Now, if the gifts in question be only of the kind that are customary among certain others, I freely grant that it may seem a rude and strict rule to refuse the gifts, and that is an insult to the integrity of the prince who offers them. And for that reason the question was discussed by the States-General in 1660 of somewhat altering the phraseology of the decree of August 10, 1651, preserving its intentions, however, as well as the form of the oath required by the decree. In this matter the Estates of Holland decided on October 9, 1660, that their vote at the States-General should be adverse to any change whatsoever. And yet another decree of the States-General (of which I shall speak presently), dated 1675, shows that release from the provisions of the decree of 1651 had frequently been granted. There were special privileges which certain influential and popular envoys had enjoyed, but which others had not. Some had even accepted what the law forbade, as for instance, the ambassador of the States-General to Moscow, who, in 1666, on taking leave of the emperor, accepted various gifts though he had not been granted a special, dispensation. However, in order to meet the objection that the law was strict and rude, and also in order to curtail the grants of privilege and the illegal behaviour of some envoys, the decree of August 10, 1651, was somewhat modified in 1675. In fact, on April 29, 1675, the States-General decreed that their envoys might receive the gifts that are customarily given to other envoys in transit by the princes through whose domain they pass, or the gifts bestowed by princes upon departing envoys after their mission has been completed, provided upon their home return they showed these gifts to the assembly of the United Provinces. Concerning all other gifts the decree of August 10, 1651, was confirmed, with the clause that in the future no special favour of release from the oath provided in the decree should be granted. Even the Venetian envoys, upon their return show their gifts to the senate, which, according to Wicquefort, gravely deliberates whether these shall be returned to the envoys, or, as sometimes happens, shall be converted to public use. In our land, however, they are displayed as a mere formality, and I think there is no instance on record where they have not been returned to the envoys presently.
What is forbidden the envoys is also in my opinion forbidden their suite. Consequently these have no right to accept gifts that are forbidden the envoys. For I think I have established in my Liber Singularis De Foro Legatorum, Chapter XV, that they are to be considered as bound by the same laws as the envoys. Indeed by the Lex Julia, on Extortion, not only judges but also their attendants were bound. And though the members of the suite are not specifically mentioned in the above-cited decrees of August 10, 1651, and April 29, 1675, there can be no doubt that they are included in the meaning of the law. In other cases it is generally agreed that the prohibition of accepting gifts on the part of public servants extends also over their. attendants. And that is true not only in Roman law, as we have seen, but also in our own. This indeed is obvious from the edict of the Estates of Holland, dated March 24, 1644, in which members of both courts are forbidden to accept gifts. There is indeed good reason for this, since the members of the suite can also commit acts of collusion, they can urge those whom they serve to betray a case, and they can share their gifts with them; in short, it would be difficult to enumerate all the opportunities of iniquity that are possible. The officials of an embassy, therefore, may not receive gifts that are denied envoys.
However, the envoys of the States-General thought differently when they took leave from the French King on May 27, 1662. While they refused to accept the gifts proffered by the King because of the rigorous decree of August 10, 1651, they allowed their attendants to accept what the King gave. And another envoy of the States-General did likewise, June 1, 1678.
There is an old complaint often made that the greed for money and gifts alone is checked by law while other forms of the evil are not. But the provision against the offer of bribes in order to corrupt judges was extended to cover proffers of dignities and offices which are not conferred by the Colleges, in a decision of the Court of Holland, in section 15 of the by-laws drawn up to regulate its procedure (1670), but not confirmed by the Estates of Holland. If the rest of those by-laws had been as acceptable to the Estates, they would have been confirmed long ago, for it matters little whether you corrupt public servants with a bribe of money or one of office. And no upright person would deny that in the prohibition of gifts, envoys are also prohibited to accept office from the prince to whom they are sent. The fate of Hermolaus Barbaras is a case in point. When, as ambassador of the Republic of Venice to the Pope, he accepted the patriarchate of Aquileia without consulting the senate, it resulted in his ruin, as Joannes Pierius Valerianus reports in De Litteratorum Infelicitate, and after him Vossius, in De Historicis Latinis and Thomas Pope Blount in his Hermolaus Barbarus.
There is an instance of the same class of the year 1660. To a son of one of the envoys sent by the States-General to the King of England the King had offered a grant of 140 or 150 florins. When his father heard of this he wrote to the Estates of Holland, asking them to indicate whether his son could retain this without infraction of the decree of August 10, 1651, and if not, requesting that they would excuse him from further service as envoy, saying that he meanwhile would abstain from service until a decision was reached. In answer the Estates of Holland in a vote of December 9, 1660, decreed that since the son had won the favour of the King even before the father became an envoy, the grant was apparently made to the son without reference to the position of the father; furthermore, since the father had stated in his letter to the Estates that the grant had been made without his knowledge, the act was not contrary to the decree of August 10, 1651, and accordingly the Estates would urge the States-General to take the same action. But the Estates of Friesland, a people of strict manners, voted against this proposal, February 15, 1661, evidently considering that this grant was contrary to the decree of August 10, 1651. Now if the grant was made with a view to influencing the father, I think this decision entirely correct, even in nations where the father does not ipso facto exercise ownership over his son’s acquisitions, as provided for by Roman law. But if it was given solely out of affection for the son, the decision would be different according to Papinian, and thus a just decision would depend upon a circumstance connected with a man’s secret purpose. It would certainly be an easy matter to frustrate the Acts of August 10, 1651 and April 29, 1675, if we yielded too easily to the excuses for grants of this kind, for any number of them might be invented and the true motive can readily be concealed.
The laws and conditions applicable to the acceptance of gifts on the part of envoys ought also to apply to those who are especially delegated by us to treat at home with envoys of foreign powers. The States-General seemed to think differently on October 7, 1636, to judge from their Act of that date. However, they regained their senses, for on February 2, 1651, they decreed that such delegates should take oath that neither before, nor pending, nor after deliberations, should they accept any gift in whatever form, and that if one were offered they should in all good faith make this known to the States-General at once, under penalty of disgrace and whatever other punishment might be deemed fitting.
The earlier authorities used to discuss with much warmth whether envoys might retain their gifts or must transfer them to the treasury of the prince they represented. They usually decided the case according to the nature of the gift, for, they say, if a lion is given it belongs to the prince, but if a garment for Aelian writes that garments are customarily given they award it to the envoy. If any one desires to take part in such discussions he may consult Bertachinus, Repertorium. Nowadays envoys generally retain the gifts they receive, unless there is a law prohibiting it. At Venice, as I have said, the senate discusses the matter in every case; and the States-General do also, but as the Venetians usually, so we regularly, permit the envoys to keep their presents. This is indeed done in accordance with the intentions of the donor, for the circumstances make evident that the gifts are not meant for others, as also the manner of bestowing them, since they are proffered as a reward for good service at the time when the envoy is taking leave of the prince with whom he has just performed that service.
I have no objection if the gifts are bestowed upon the envoys, and if they do not exceed reasonable proportions. But if they are bestowed upon the members of the council delegated to represent the sovereign prince or people, there is some doubt whether these delegates can retain them. Yet when the emperor of Moscow in 1663 sent a present of Siberian furs to the States-General, the delegates of the States-General did not hesitate to retain the gift, and accordingly by an Act of May 12, 1663, they divided up the present among themselves. Again, when Peter, another emperor of Moscow, sent a similar gift of furs to the same body, as we can recall, they accepted the gift, and in October, 1697, divided them up among themselves. Finally, when the Tripolitan prince recently sent seven Arabian steeds to the States-General, they decreed on March 18, 1735, that these should be allotted severally to the seven delegates of the provinces. Yet, despite these decrees, I am not sure that it was done according to law; for what is given to the States-General is given to the sovereign, and, therefore, not to the particular persons who for the time being represent the sovereign. Various persons perform this function at various times, so that we may not assume that the personal regards of a prince offering gifts in any way attach to definite persons usually unknown to himself. What is given to the sovereign is not conceived of as given to the person, as Gaius shows, for when a prince dies before a legacy falls due, it is awarded to his successor. Perhaps you will disapprove of this act of the States-General if you recall that the gifts they bestow come from the public treasury. It certainly is not entirely just to accept gifts for private use and to give them out of the public treasury with reference to one and the same office, nor does it conform to the rule of law. ‘Do not avail yourself of an advantage of an act if you fear to accept the disadvantages thereof,’ is a rule even of the Law of Nations, and not only a phrase of Ulpian. Would you tolerate an agent who charged to you the cost of the gifts he made while he retained for himself the returns which he received at the cost of your money? It would be very generous of you, if you did. And the question need not disturb you as to what might have been done with those gifts to the States-General had they not been distributed to the individual delegates. I could satisfy your concern by suggesting various methods of disposing of them. But let me rather ask whether it would be a greater disgrace for the state to have sold them than for the individuals to do so. Indeed, some of the delegates of the States-General sold those Arabian steeds immediately, using the proceeds for themselves; being informed, I suppose, that the barbarians of Africa at once sell without any feeling of dishonouring the state, whatever gifts they receive from us. Every one decides according to his own judgement about his own property, whether he has acquired it by way of a gift, or by any other method.