Questions of Public Law (1737)
Cornelius van Bynkershoek
Whether Foreigners Should Be Kept from Offices of State
BY foreigners I mean not those who still live in foreign countries under some other sovereign, for no one would invite such to participate in offices of state in another country, but those persons of foreign origin who have come to our country and transferred hither their goods and interests. I shall discuss the reasons and the laws that bear upon the question whether such persons may hold offices of honour among us. So far as reason is concerned, if they are sufficiently versed in the language, the laws and customs, and in all the affairs of the state to which they have migrated, I do not see why they should be kept from administrative offices. Yet many legal authorities would prohibit this, though for reasons that do not appeal to me. They say that a greater love for the state is to be presupposed in a native, less in a foreigner. But who can make an adverse presupposition regarding a man who has come to our state with his family, his fortunes and all, and whose entire welfare depends upon the welfare of the state? A man will hardly take wrong action in affairs of state when with the destruction of the state his goods and fortunes would also be destroyed. But you may say that reason and law both invite men of superior wealth and dignity to offices of state. Granted, but it may be that the foreigner has these very endowments to a greater degree than the native. And, if he has, I would certainly prefer the wealthy foreigner of high rank to the less wealthy native of lower rank. And the native has no cause for complaint if he is surpassed in official honours by one who surpasses him in riches and in personal qualities. I grant that a man ought to know the state if he is to administer state affairs properly; but foreigners are often deemed better trained in this kind of knowledge than natives, for the latter, it is thought, imbibe this information with their mother’s milk, and forgo the diligent application necessary in the acquisition of political knowledge. I would require nothing but that he who serves as magistrate, ‘be he Trojan or Tyrian’, shall be a man of integrity, diligence, and skill. But in states which explicitly exclude foreigners from all offices, it is by no means true that those natives are chosen who are in every respect suitable. Indeed, this is so far from being the case that if we were to make our choice with reference to the offices bestowed upon these we should rather have to consider seriously the offices that are taken away from them on the ground of their incapacity. To such an extent have considerations of the rank of parents and relatives and of political influence displaced all other influences for good government.
However, I would not admit foreigners to office without discrimination, but I would reasonably exclude those by whom there was reason to fear that the safety of the state might be endangered. And this fear might particularly arise when one nation was threatening the liberties of the other, and was attempting to seize power by means of the offices of that state. It was for this reason that in 1400 the people of Treves, who had recognized the good offices of France, decreed nevertheless that the French and other foreigners should not be admitted to political positions in the city, for they feared that their liberty was being endangered. And, if we wish to be truthful, this was why Holland and Zealand secured various special acts from the Counts prohibiting foreigners to hold political offices; for the princes of Burgundy and of Austria had begun to rule arbitrarily in Holland and Zealand, and were placing Burgundians and Austrians in office in order to rule the more easily. These provinces in fact entertained no fears from other foreigners whom. they might deservedly promote to office, but it was decided to prohibit all foreigners through these special acts, because they would offend these princes from whom they requested these acts if they excluded only the Burgundians and Austrians. So also the decree of the people of Treves, of which I just spoke, was put in general terms in order to avoid offence, although, as a matter of fact, it had reference only to the French.
Now, that the cause which I have given was the sole reason for obtaining those acts against foreigners is already proved by the history of those times. To this I attribute the clause by which Mary of Burgundy forbade foreigners the higher offices including the schoutet, by section 4 of the laws which she gave Holland and Zealand on March 14, 1476. To this I also attribute various other privileges of earlier date, which Merula has enumerated. But besides these general provisions there were and still exist certain special acts which magistrates of cities obtained for themselves, thinking thereby to promote their liberties the more. According to these there are some cities where not even all citizens of Holland and Zealand are admitted to the office of magistrate or burgomaster, but only those who are born in the city in question, as Pliny says of the cities of Bithynia, or in a certain district, or those who have secured citizenship by marriage or by a term of residence. And there are other kinds of special privileges extorted from the Counts by prayers or money whereby foreigners are in every way excluded.
Those acts had a purpose at the time when they were granted, but now they have none, although Holland and Zealand still enforce them. For there is no fear of foreigners now: the Burgundians and Austrians and Spaniards are not plotting against the state. Nor would many foreigners gain admission to office even though the laws of exclusion were abolished, since now that the Counts have been removed the citizens of Holland and Zealand have the power in their own hands. And even if several were admitted we would not need to fear them, since there is now no foreign prince who forces them upon the state to his own interests or employs them in revolutionary service. And even if they were admitted indiscriminately, they would not all be from the same country, so that the fear of those days that they might conspire in favour of some one prince would now vanish. For the governors, like the Counts of a former time, threatened the liberties of the state and even employed foreigners in these machinations, and such was their influence that they were often opposed in vain by the laws of the land.
Furthermore, I do by no means approve of that part of the decree whereby the people of Treves removed the French from the offices which they held at the time of the decree. An office may rightly be denied by statute, but an office once obtained cannot justly be taken away without some accusation. Trajan, in his rescript to Pliny, took the more generous ground in behalf of the public welfare, that he should not eject the foreigners from the senate of the Bithynian state, even though they had been appointed illegally. So also Charles V, in the grant given to Holland on May 7, 1555, ordained that those then in office should not be removed, while, as I shall presently explain, he forbade foreigners of certain classes to hold offices of state in Holland. Holland also dealt more generously, for when in 1658 the Estates decided that the syndics, secretaries, and other officials which the cities employed at the assemblies of the Estates, should not be foreigners, they nevertheless affirmed that the foreigners then holding any of these offices might retain them (Section 7 of the decree of the Estates of Holland, dated May 14, 1658). In passing, it is deserving of note that this decree refers only to the ‘syndics, secretaries, and officials of the cities’, to quote the very words of section I; but what of the syndic and one or more secretaries and other officials of the Estates? There surely is as valid a reason, if not more valid, for excluding foreigners from these offices. But as I said, there is no reason; for Barneveldt surely did not perform the services of syndic less well than any one else.
However, general exclusion acts which applied to all foreigners later fell out of favour even with the people of Holland; the stricter parts were modified and the principle of retaliation was adopted. At the request of the Estates of Holland, Charles V decreed, on May 7, 1555, that no one born outside of Holland in any country where Hollanders are excluded and no one born outside of the Netherlands or unable to use the Dutch language should be admitted to any political office in Holland, except he be governor or Knight of the Golden Fleece. This act Philip II, King of Spain, confirmed on December 17, 1556. You see then that foreigners are excluded, but on the principle of retaliation, that all Netherlanders are admitted in the Netherlands, and that Austrians and Spaniards, who were then feared, are still excluded with all other foreigners, so that Netherlanders alone are admitted. Moreover, however sound the reason that would exclude foreigners only in so far as they are dangerous, it is not unjust to exclude men on the grounds of foreign birth who come from nations where our citizens are excluded from office by law or national custom. This principle is preserved by the decree of the Estates of Holland of April 19, 1631, and by many others that I found in turning over the decrees of the Estates. Grotius also has something to say on this matter, and Groenewegen, but the latter is careless and does not cite his authorities.
Consequently, foreigners from countries where Hollanders are not excluded are admitted to office in Holland. This you may consider the law, with two exceptions. Firstly, we must make an exception of the syndics and secretaries whom the magistrates of the cities take to the assemblies of the Estates, for these, if foreigners, are excluded by the above-mentioned decree of 1658; and it makes no difference where they are born, or whether or no in their land of birth Hollanders are excluded from office. The second exception grows out of the various privileges of cities which I mentioned in brief above. These privileges the Estates have not the authority to abolish, even as the Counts could net. Considering then that these grants exclude from the office of magistrate or burgomaster all men not born inside of a certain district of Holland or in the city in question, it surely follows that a foreigner is excluded though born in a country where Hollanders are not excluded. For that general law, based upon the principle of retaliation, which the Estates of Holland passed later could not abrogate the former privileges of the cities, a fact supported both by reason and by a statement in Justinian.
What are we to say of those for whom the Estates of Holland cancel the disabilities attaching to foreign birth, giving them documents called letters of naturalization? Hollanders write that these documents in their simple form give nothing but the privileges of a mere subject, so that the foreigners thereby become subject to our laws and gain the right to trade, but that they do not admit him to offices unless a statement to that effect is specially inserted. Documents of this kind are very frequently given, but cui bono? as Cassius would say. They seem to me of little value if we consider the laws that I have just mentioned. If these documents in their simple form grant nothing but the position of subject and the right to trade, surely any and every foreigner or stranger gains these when he is received as a citizen by the magistrate of the city in which he has taken up his abode. And the magistrates of the various cities constantly receive any stranger or foreigner in this fashion. For this, therefore, there is no need of a special grant by the Estates. If the document is given conceding the right to hold office it will be of value for that purpose, but foreigners can attain to those even without these documents, provided they were born in a country where our citizens are not excluded from office. And if you say that the special privileges of certain cities exclude those not born there, or in a certain specified district, I grant that too, but these papers of naturalization cannot bestow greater rights upon foreigners than are given Hollanders not born within the specified places. The charters of the cities therefore that exclude Hollanders also exclude foreigners, since it is not the purpose nor is it within the competence of the Estates to disregard the charters of the cities by the grant of naturalization papers. If I understand the matter, those papers in their simple form give nothing at all which the magistrates cannot give; if, however, they are granted with a concession to hold office, they are of use under two different circumstances: firstly, they may admit to office foreigners who are born in countries where our citizens are excluded from office, since the Estates can allow exceptions to their own laws; secondly, syndics and secretaries, who are excluded from their offices by this decree of 1658 because of their status as foreigners, may retain their offices by securing one of these documents. I have not been able to find whether they are of any further service in procuring office, but I have noticed that more often than not there is no real reason for asking for these diplomas, and it is wrong to grant as a favour what is provided for by law. I have at hand many instances that I could cite by way of proof, but the matter is hardly worth the effort.