Questions of Public Law (1737)
Cornelius van Bynkershoek
As the Sovereign Alone Can Condone Crime, So it Seems That He Alone in the State’s Behalf Can Promise Immunity from Prosecution for Criminal Offences
IT is in the interest of general morality that no criminal offences should be condoned, but considerations of public utility have often disregarded this because perhaps of some deserving action or for other reason; and even the Roman people, otherwise ‘a loyal follower in true virtue’s train’ did not too captiously scorn this consideration. But, after them, almost all nations have most basely abused this practice. Indeed in the Netherlands long ago the free practice of granting exemptions became so common as to endanger the very state. It arose from the fact that very many exercised the privilege, as Philip II of Spain observed when he inveighed against it in his Edictum de Criminibus, sections 15, 20 and 24 (July 5, 1570). The fact that so many possessed the right I attribute to the fact that the Netherlands, and even Holland, were formerly divided into various little states and dominions many of which were independent. But after these came into the hands of one sovereign, it seemed that he alone should exercise the authority that is above the law and belongs to the rights of the sovereign. Accordingly Philip II, in sections 20 and 24 of the above-mentioned decree, laid down the general law that no one should have the power to condone crimes but the court and the Governor-General and the person to whom special concession was made.
But from the time when the full sovereignty of Holland and Zealand devolved upon the Estates of these provinces, the authority to bestow these exemptions and to issue grants for the purpose has resided with the Estates, and so the Estates of both provinces agreed in a compact dated July 11, 1674. I have not here space in which to inquire whether (and if so, how) the Estates formerly shared this right with the princes of the House of Orange or with the governors of the respective provinces, and whether the governors exercised the right in accordance with their commissions. I shall content myself with the reminder that now since the governor’s office is discontinued, there is no power besides the provincial Estates (in Holland and Zealand) authorized to grant an exemption from punishment for any offence. Accordingly magistrates seem to be in. error who, though they possess only the authority to dispense justice imprudently, raise themselves at times into the position of princes. For of this nature was the act of a magistrate who is said to have changed the decree of capital punishment and condemned the prisoner merely to service in the galleys; since he who appoints a milder punishment than the laws demand gives exemption for crimes, which only the sovereign has the right to do. And in the same class I place the act of a magistrate of Groningen, who in 1662 offered amnesty and remitted the penalty of some who had participated in a riot; since a grant of amnesty can come only from the sovereign. Accordingly the judges delegated by the Estates of Groningen and the Ommelands disregarded the amnesty in 1663 as not coming from the sovereign authority.
Shall we, moreover, say that a magistrate exceeds his authority if he promises immunity to confederates and accomplices in a crime in order perchance to ferret out the criminals? I find in writings both within and outside of Holland that he does not exceed his authority. And when jurists have thus preceded with their opinions, judges of both higher and lower courts have readily followed, arrogating this power to themselves everywhere. Indeed, when a great riot arose at Enkhuizen against the state, the Court of Holland, on October 22, 1653, promised in an edict, that if any one gave information about certain individuals, he should have a reward of 20 florins and also immunity in case he had participated in the riot. Again, when a certain prisoner had escaped from custody by the aid of some others, the same court, on March 19, 1660, decreed that a certain sum of money would be paid the man who disclosed the prisoner and also immunity in case he was an accomplice. Even in my day (November, 1695), in the case of a slanderous pamphlet, the same court promised the confederates and accomplices immunity besides other rewards; indeed there are well-nigh numberless edicts of the same sort issued by this court. And the magistrates of cities have also followed this example. The magistrates of Amsterdam on August 16, 1650, promised a reward in money to any one who would reveal the author or printer of a scandalous pamphlet that had been published in Amsterdam; and immunity was offered the printer if he would reveal the author within a week. Even the magistrate of The Hague apparently included a promise of immunity in an edict against some murderers issued October 21, 1699. I say ‘apparently’, for he promised that the name of the informer would be concealed even though he was an accomplice; and evidently the name of a man cannot be concealed if he is to be punished by way of an example. Other instances of the same kind the public newspapers will supply daily.
Yet I doubt whether these acts can be defended either on the ground of legality or of reason. I indeed have learned that every exemption from the consequences of crime, be it for whatsoever cause, ought to derive from the sovereign. He, and he alone, can give such exemptions whether from any cause or none at all. A magistrate cannot grant such favours, not even if the proposed recipient has saved his country. As for the judge, his office lies wholly in pronouncing judgement, and his duty is performed solely by the application of the laws to which he has sworn allegiance. Therefore the Estates of Holland on September 27, 1668, decreed that no judge should in the future insert in his decision the phrase ‘preferring mercy to the rigorous insistence upon justice’; and Mornac, in his comment upon a passage in the Digest, notes with condemnation that a similar practice is in vogue in France. I am aware that the author of the Authentica, Hodie C. de Judic. has laid down a certain difference in the observance of the laws between judges of lower and higher courts, but it has long been noticed by others that the Authenticum is a conglomeration wholly devoid of authority. Among us certainly all judges, even those of the two branches of the Court of Holland, are bound to observe the laws in accordance with the oath which is required in order to secure this. Accordingly, when the question arose about the Supreme Court and the Court of Holland, Hugo Grotius correctly responded that they had no authority except to acquit or convict, but that the Estates exercising a higher authority could employ any other remedy that was more conducive to public tranquillity. He who promises and gives immunity abrogates the laws which order him to punish criminals. Now, the judge gives this exemption for a reason, and if he may give it because of information about the crime, why can he not give it for any other reason? The judge has indeed the power to promise a reward for evidence, but this should be a pecuniary reward or one which it does not lie outside of his jurisdiction to bestow. The sovereign alone can give exemption in case of a crime, and that from whatsoever cause may influence him; the magistrate cannot, on any ground whatsoever, unless he acts upon the authority of the sovereign. And if he is wise he will ask for this, and he will doubtless obtain it readily if it is for the purpose of searching out criminals.
But if there is a law already in existence which promises immunity to accomplices and confederates because of the difficulty of securing evidence, the magistrate will not even need a special authorization from the sovereign, and in that case I have no objection if he publicly invites informers by the promise of immunity, since those who might give evidence may be ignorant of the law. Section 6 of the edict of the Holland Estates, dated March 19, 1614, gives immunity on the charge of theft to the man who reveals the thief. I should readily grant, therefore, that the magistrate may publicly announce this offer of immunity which rests upon law, and in addition offer pecuniary rewards for evidence. In two decrees of the Estates of Holland issued on November 28, 1733, and July 1, 1735, against various libellous pamphlets in which not only private citizens but especially distinguished men in high places were bitterly attacked, a pecuniary reward of 20 florins in the first, 40 florins in the second, was offered to those who would reveal the authors and printers of the pamphlets, and at the same time immunity was offered if the informer was a confederate in the crime. I do not know why the Estates contented themselves with the passage of the decree without publicly announcing it, for it is not apparent how the populace should know about rewards without a public announcement. But this I know, that after this authorization the magistrates had the authority to promise publicly what had been decreed privately by the Estates. However, I do not find that any edicts on this matter were drawn up and issued by the magistrates. Nor did the Court of Holland publish any edict, probably because the Estates entrusted the execution of the affair to the advocate of the Treasury and. to the other public prosecutors in Holland who do not possess the authority to issue edicts. In fact this authority rests only with the court and the magistrates, and the execution of the above-mentioned decree was not imposed upon them.
If the authorization from the sovereign giving force to the immunity does not precede or follow by way of confirmation, or if the immunity does not derive from law, I consider the immunity invalid whether promised by either court or by magistrates of cities. In this matter I would have the following instance serve as a precedent. When an atrocious crime had been perpetrated at Amsterdam of a nature not known before in these regions, the magistrate of Amsterdam, without any previous action on the part of the Estates, promised by edict a pecuniary reward to any one who would give evidence about the criminal, and also promised immunity in case the witness was a confederate of the criminal. But the magistrate, fearing that this latter promise was invalid as not coming from the sovereign power, approached the Estates of Holland with a petition that the Estates should confirm the promise with sovereign authority. Then the Estates, in a decree on March 3, 1661, acting in the capacity of sovereign confirmed the decree, saying that there had been danger in delay, and that at the time of the decree the Estates were not assembled. In this way they clearly demonstrated that whatever right there was to make such a decree belonged to themselves alone. I remember also that the magistrate of Amsterdam issued a decree in February 1696 promising a reward of 60 florins to any one who would reveal the instigators of a riot that had recently disturbed Amsterdam, adding that he would make every effort to secure immunity for the informer in case he was one of the guilty. You see what was the opinion of the magistrates of Amsterdam in 1661 and 1696, that it was different from, and perchance better than, that which appeared in 1650, of which I spoke above. In fact there is no doubt that it was better since the Estates themselves expressed their approval of the later opinion in their decree of March 3, 1661.
Consequently some other magistrates came to show more prudence later. The magistrate of The Hague in 1724 certainly acted far differently from the one of 1699 mentioned above, for when there was need of exemplary action because of the great number of robbers, he petitioned the Estates of Holland that besides offering pecuniary rewards he might be empowered to promise immunity to the accomplices and confederates of the criminals that were then so numerous. This petition was granted by the Estates in a decree issued March 15, 1724, and they added that the Court of Holland might also promise this indemnity in the name of the Estates. Thus we cannot assume that either court can do this suo jure. The admiralty board of Amsterdam also petitioned the Estates in the following year (1725) that the magistrate of Amsterdam should be authorized to promise immunity to those who had attempted to set fire to the public works provided any of the guilty turned state’s evidence; and this was granted by the decree of January 28, 1725. And when certain men had threatened to slay some tax collectors at Kennemerland, and the counsellors of the Estates of Holland, the latter body not being in session, permitted the bailiff of that place to promise immunity to any of the accomplices who would offer information, the Estates on a decree issued on May 14, 1727, ratified the promise. Furthermore on July 22, 1729, the same estates authorized Rotterdam and the bailiff of Schieland to promise immunity to any accomplice who gave information regarding the robbers and the criminals who had wrecked houses and destroyed gardens in Schieland, and they furthermore decreed that the Court of Holland should be consulted as to whether it would not be expedient, in the case of similar offences, to give the same authority to all magistrates for the territory under their jurisdiction. The Court responded on August 12, 1729, but I have not been able to learn from the records of the Estates what the response was, or whether any subsequent action was taken. However, these examples prove clearly enough how very much the magistrates err who, on their own authority, promise the immunity which they are not empowered to grant.