Questions of Public Law (1737)
Cornelius van Bynkershoek
Whether Magisterial and Judicial Power Can Be Delegated
IT is a question of public law whether, and if so to what extent, a magistrate or a judge can delegate to another the power or jurisdiction that has been given to him. It is agreed that in Roman law the magistrate’s power (imperium) of life and death, which was called merum, could not be transferred, while judicial power (jurisdictio) and the power attached to it, which is called mixtum, could be delegated. Papinian, in the passage cited, gives the reason for this difference when he says that the powers that have been conferred specially by a statute or by a senatus consultum or an imperial enactment (as is the case in merum imperium), are not transferred if the officer delegates his jurisdiction; but those powers can be delegated which derive to the magistrates by right of their office. But you will say that even jurisdiction which belongs to the magistrate derives ultimately from some statute and its scope is defined by law, and so you will demand a reason for the reason. If I say that merum imperium deals with matters of greater moment while mixtum imperium deals with less important affairs, I shall not be using the words of Papinian. However, we are not here concerned with this question, nor with the question why the Romans, in disagreement with most nations, decided that jurisdiction could be delegated. Perhaps it was because of the great burden of work which the urban and provincial magistrates were overwhelmed, or because of sickness, or other serious peril, that prevented them from performing their official duties, or indolence, which they could gratify by this rule, or lack of training, the consequences of which could be avoided by delegating their jurisdiction to one more skilled. One might perhaps not be far wrong if one assumed such causes as the origin of the practice of delegating jurisdiction, and if one explained in this way why Roman magistrates appointed arbitrators and assistant judges. However, appeal was granted from the decision of the arbitrator or the delegated judge, as I have fully explained in Observations Juris Romani.
Coming now to the point, I consider it fully established if we examine our own laws that all magistrates and judges, whether appointed by the sovereign or by those to whom the sovereign has given the right of choice, perform their official duties in person and that they themselves conduct the trial and pronounce judgement in both criminal and civil cases in accordance with the terms of the oath which they have taken. Indeed, the Edictum de Criminibus, section 8 (July 5, 1570), of Philip II, permits no office or magistracy to be delegated; and that is the law which we now follow, as I shall presently show by examples covering both fields of jurisdiction.
What then is the meaning of the opinion of Gudelinus which Groenewegen repeats? His words are: ‘For to-day the power of imposing capital punishment does not belong to the imperium merum, but is a part of the ordinary judicial power, and it passes with the delegation of jurisdiction, and is exercised by the deputy even as the other judicial powers.’ But if Groenewegen had continued the passage from Gudelinus, it would soon have become apparent that he was referring to lords of manors or others who appoint judges in the name of the prince. However, his interpretation will not hold even if he refers to those, for those lords, according to the terms of investiture, ‘have authority not to judge but only to appoint judges, and they do not appear to delegate power but rather, acting in the place of the prince, to appoint judges,’ as Groenewegen himself rightly observes. Those lords neither act as judges nor possess the authority to judge, and when we speak of ‘delegating jurisdiction’ we refer to one who himself exercises jurisdiction if he wishes, and can, if he does not wish to exercise it, delegate to another power that he actually has. It is wholly incorrect, therefore, to say that any one to-day can delegate jurisdiction, that is, that any one can appoint another to pronounce judgement in his place, which he himself would have done had he not appointed a substitute.
All magistrates and judges are at present quasi-deputies in the matter of judicial power; the sovereign or he who acts for the sovereign is quasi-principal. As it is evident that a man cannot delegate jurisdiction to another which has been delegated to him, so magistrates and judges cannot delegate their powers, for they were chosen in view of certain qualities of integrity and diligence to perform the services in person. And to speak first of criminal cases, clearly those who judge under oath in these cases cannot delegate their powers to men not under oath. In fact, not even the official prosecutors of whatever title, whose only duty is to proceed against the criminal, are allowed to delegate their office. These prosecutors are commanded to have their abode in the district where they are appointed to watch over the rights of the sovereign, and they are forbidden to substitute deputies or officers called ‘stadholders’. This is the general order of Philip II in section 8 of the above-cited Edictum de Criminibus of 1570. And this also held true in former days, for John I says in section 40 of the Leges which he gave to Holland and Friesland in 1299: ‘In our free districts where we have appointed district-superintendents, these officials appointed by us may not appoint any one under themselves.’
Accordingly, in answer to a request by a magistrate of Heusden, the Estates of Holland decreed on July 17, 1662, that no one should hold the office of bailiff, castellan, or dike-keeper in Heusden who did not have his fixed abode at Heusden so that he could perform his official duties in person. I know that the effect of this prohibition has often been annulled through favouritism and that it still is, sometimes openly by the grant of exemptions, sometimes secretly by mere connivance; but I do not remember ever having read that judges in criminal cases have employed substitutes or have secured special dispensations bestowing such a privilege.
I think the same is to be said of civil cases or cases involving money. Accordingly, when the local judges were ordered to try the cases discussed in section 33 of the edict of the Estates of Holland, dated December 20, 1595 (regarding the turf), and when these officers delegated their jurisdiction to the bailiffs (schepenen), the response was correctly given that the bailiffs could not try these cases, and that the sovereign alone could appoint judges, and bestow, increase, or diminish judicial powers: no one, therefore, can delegate to another the jurisdiction bestowed upon him in the Roman manner of delegating it. To speak accurately, no one to-day exercises jurisdiction that belongs to himself; those who exercise it employ the power bestowed by the sovereign, and accordingly cannot rightly delegate to another what is not their own. Furthermore, he who chooses a magistrate or judge is supposed to choose a man of whose experience, industry, and probity he is or ought to be certain, a man who can ‘adorn the province he has obtained’. But if he delegates his power to another who may be much inferior he deceives his too trustful sovereign and shows little regard for the common welfare; not to mention that it is one thing for an officer under oath to perform his own duties as all men under oath do, and quite a different thing for a man not under oath to do the work in the way that deputies act who are not sworn. Accordingly when in the districts that the Netherlands had obtained from Spain the custom had grown up of allowing the delegation of authority, the States-General in 1645 decreed that every official, political, military, and ecclesiastical, should perform his own official duties, unless he secured exemption for some special reason. And although this decree has been enforced with laxity and still is with regard to political offices, I have not discovered any exemptions for those who have been appointed to judicial positions.
Indeed, if judges in Holland and Zealand were permitted to delegate to another the authority given to them, this ought particularly to be allowed the judges of the court which holds sessions at The Hague in the name of Holland, Zealand, and Friesland. But so far is this from being permitted, that Count Leicester on July 28, 1586, by special edict ordained that if there were one or more vacancies in the Supreme Court, this court could call upon one or more judges, not wherever they chose but from the court of Holland. This ordinance, by the way, Groenewegen incorrectly attributes to the Estates of Holland. Moreover, when in our state the magistrates of the larger cities appoint minor justices called commissarissen to have charge of less important cases, as, for instance, those touching maritime affairs, or matrimony, cases however which would otherwise fall under the jurisdiction of the schepen, you must not conclude that this is an example of delegated jurisdiction. It is not, for you will find that magistrates have usually requested authority from Estates to do this; the magistrates of Amsterdam certainly requested it on July 17, 1612, as well as at other times. But what if the request was superfluous, as the magistrate of Amsterdam held on the occasion just mentioned, saying that they already possessed the authority to appoint minor justices of this kind? I grant this, and I am not ignorant of this view. But this is true simply because all magistrates of all cities derive from the Estates their authority to appoint judges, whether the higher ones called schepenen, or the lower ones called commissarissen, according to the needs of their cities. Its correctness is not based on the ground that magistrates can delegate to others the jurisdiction delegated to themselves, even though the magistrates of Amsterdam made this contention on July 17, 1612. They were clearly in the wrong, for the magistrates cannot be said to delegate their jurisdiction to others since neither they nor any officer attached to them exercise the functions of judges. Then also it is evident that those lower justices are not the deputies of the schepen from the fact that they exercise their own authority, not that of the schepen, since appeals from the decision of those lower justices are carried to the schepen and not to those who are above the schepen, as would be the case if the jurisdiction were delegated. This point I have made clear in my Observationes Juris Romani.
You may hold that the following case also involved the question of delegated jurisdiction. When a suit regarding a trust fund of large amount was pending before the schepenen of Amsterdam, these, in order to rid themselves of the burdens of a long and very difficult trial, decreed by an interlocutory decision rendered on February 1, 1729, that the case should be tried before three deputies appointed by them for this purpose, and that after these three had heard the arguments and examined the documentary evidence, they should refer their decision in writing to the schepenen. On hearing of this, party A, in a petition to the schefenen, complained that this procedure did not conform to the court regulations which the city of Amsterdam had adopted on April 27, 1656; for, he said, according to section 8 of Chapter VI, the only cases that were submitted to arbiters were those in which there was a question of rendering accounts, and these were submitted only for the sake of attempting to reach a compromise, and if this did not succeed, the schefenen tried even such cases. Furthermore, he held, the above-mentioned section 8 required that cases involving a point of law, as in the present instance, should be plead before the schefenen. He accordingly requested that this be adhered to, or at least that after the case had been tried before the three deputies, it should not be considered closed until it had been plead again and the documentary evidence read again before the judges who had been chosen and sworn for this office. The schefenen indignantly rejected this petition. Then party A attempted to appeal from the interlocutory decision to the Court of Holland, but a writ of appeal was denied him April 7, 1729. After this he asked the supreme court for a writ of appeal, which the schefenen, in a letter dated May 6, 1729, asked the Court not to grant, for they held that their interlocutory decision rested wholly upon matters within their own jurisdiction, and that neither court had the authority to interpose in this matter. When the judges of the Supreme Court had heard the full arguments of both sides, as well as a presentation of the judicial customs in vogue at Amsterdam, without rendering a solemn decision from the bench, they all however made known their opinion in the following terms: though judges, conscious of their limitations, have a right in the foremost city of Holland, as well as in towns and rural districts, to consult men of special knowledge, yet they have the right only on the understanding that the parties to the suit shall be heard in full by the very judges who are chosen and sworn for this office, and that each of the parties concerned may employ attorneys and defend his case, for this is the practice in Holland and everywhere. Accordingly, it was their opinion that the case under discussion should be tried before the schefenen as the above-mentioned section 8 required, and not before men who acted as assessors, for this savoured of delegated jurisdiction, a thing which had become obsolete in law and usage. Furthermore, if permission were now granted to the schefenen of Amsterdam, then it would be permissible for all judges in Holland to transfer their cases to arbiters, and order these to hear the cases and re-submit the decisions back to the judges, and this obviously would serve to cloak ignorance and indolence.
It is apparent, therefore, that the Supreme Court was inclined to grant the writ of appeal, and this fact I made known, with the court’s permission, to the syndic of Amsterdam, who had consulted me in the matter. However, when Party B of the suit, a certain woman, was informed of the attitude of the judges of the Supreme Court, she renounced the privileges of the aforesaid interlocutory decision, whereupon the writ of appeal was also denied, on September 22, 1729. I have given the details of this case so that it might not be erroneously used as a precedent by any one in the future.
It is clear then that our laws and customs are opposed to the delegation of jurisdiction. But I shall not say whether it might not be better for an official to delegate jurisdiction than to exercise it if he be no more fit for his office than the proverbial ass is fit to play the lyre, if, for instance, he is totally ignorant and indolent; for probity is not the only quality required in the judge, though there are men who claim to think so. The judges of the lower grades may, and do, consult men of superior training, but what of the judges in the higher courts? These consider it a disgrace not only to consult their betters, but even to follow the decisions of their predecessors. The sovereign alone, who generally appoints these judges, can take thought in this matter and save the state from detriment.