Questions of Public Law (1737)
Cornelius van Bynkershoek
Judges Cannot Designate a Place of Exile Beyond the Territory under Their Own Jurisdiction; Except When Authorized by the Sovereign
NOT only in the promise of indemnity do judges often exceed the well-known limits of their jurisdiction, as I have just shown, but much more frequently in the imposition of exile, as I shall now prove. It would indeed be desirable if the practice of banishing criminals were entirely abolished everywhere, for in truth there is no reasonable argument in support of it. There is some reason in forbidding a man to dwell in a certain place when perchance there is cause to fear that he may create a revolution by means of his influence exerted through friends or relatives in that region; for under those conditions it is better that he should be in some other place. But it is wholly unreasonable that while I expel criminals from my territory to prevent them from committing offences there, I nevertheless permit them to commit crimes in another’s territory. I banish a criminal from my domain, who accordingly goes to the jurisdiction of a neighbouring prince or judge, for he must dwell somewhere while he lives, being a citizen of the world; and in turn the neighbouring prince or judge drives some criminal out of his realm who, accordingly, comes to dwell in mine. So both expel their criminals and receive as many in return. And perhaps when I banish one I receive three from the neighbouring territory, which is larger than mine. The practice then is useless and contrary to the dictates of kinship, which exists by nature between all races, if indeed the same deeds are considered criminal by both states alike. It were better to confine such criminals in workhouses than to impose them upon others because we fear them.
But since the practice is in vogue, the question is raised whether a judge may impose a sentence of exile merely outside the limits of his own judicial district, or also outside the boundaries of the state in which he lives. Many who bear the name of jurist believe that the judge may banish beyond the confines of the whole state; and many Dutch authorities have supported this view; a striking example of ‘Dutch wit’. But not only jurists, even judges hold this opinion. When a certain man had wounded another so that he subsequently died of the wound, the judges of The Hague (June 24, 1679) banished the criminal, then absent in contempt of court, from the whole of Holland, and condemned him to death in case he returned. Likewise the judges of the Academic court of Leyden in 1679 imposed among other things the penalty of exile upon a student, banishing him not only from the University but also from the whole of Holland. However, it is apparent that jurisdiction exercised beyond the territory subject to the court is of no value, and the same is true of sentences like the above-mentioned. Do you think that you will be obeyed beyond the jurisdiction of your court? Paulus does not. But even if you are not heeded by the magistrates in the foreign territory from which you have excluded the criminal, perhaps you suppose that the criminal will be sure to obey. But here you will be deceived; the magistrate of a different jurisdiction will ridicule you because you have extended your authority when it has no force. But why discuss the question of reasonableness when we have the support of legal authority? It is a rule of Roman law approved by a rescript of the imperial brothers, Aurelius and Verus: ‘It is lawful to banish from the province which one governs, but not from another,’ unless, as is added there, the Emperor decides differently. And this exception I shall presently discuss more fully. In fact this very rule obtains in the Netherlands, as Philip II, King of Spain, clearly shows in section 63 of his Edictum de Criminibus issued July 5, 1570.
The Hollanders who disagree produce the delightful argument that a judge who exiles a criminal gives judgement in the name and with the authority of the Estates, and since the Estates have jurisdiction over the whole of Holland, the judges also may legally banish from the whole of Holland. A subtle argument indeed that does full justice to their acumen! They are indeed right in holding that judges dispense law in the name of the Estates; but if a judge gives a judgement that applies to the territory of another judge he will certainly meet his defeat. Jurisdiction derives from the Estates, but to each judge only in the territory over which he is assigned, and not beyond. And, since this is acknowledged in other respects, why do they talk nonsense about the question of exile? Let them prove if they can that a larger authority is granted to judges in Holland in the matter of exile than in certain other cases. In Milan a man who has been banished from one city is considered as banished from the whole Duchy, as Julius Clarus states in Book V, section final., qu. 71, n. 11, but they have never proved this to be true in Holland. Indeed they cite some laws in support of themselves, but I shall presently pass these in review to show that they are to be considered exceptional rather than regular.
Just as among the Romans certain officials, as for instance the Governors of Syria and of Dacia, had the authority to impose a sentence of exile which was valid beyond the limits of their own province, so here the privilege has long been given to some magistrates of banishing and deporting criminals even beyond the boundaries of their own jurisdiction; a privilege that is sometimes of general application covering all cases, sometimes specially given to apply in case of more flagrant or repeated crimes. But the following citations will abundantly prove that such powers derive from a special authorization of the sovereign. Philip of Burgundy in his warrant of September 14, 1447, empowered the judges of Hoorn ‘in the judgement of this special case for three years to banish out of Holland and Friesland the rebels who were there at that time’. And Charles the Bold, in a privilege granted to Enkhuizen on September 2, 1462, and on the same day to Hoorn and to Grootebroek, authorized them to banish certain men dwelling there ‘not only out of the cities of their jurisdiction but also out of the East-bailiwick of West-Friesland’. But these are temporary grants applying only to the criminals there under discussion. There are, however, general and perpetual grants giving to some magistrates the authority to banish criminals of any kind beyond the limits of their own jurisdiction. There is on record a grant to Leyden by Albert of Bavaria, dated 1343, according to which, it is said, criminals whom they banish from their own city, whether for a time or for .life, shall also be forbidden entrance to the whole dominion of the Count. Now if this is authentic, the grant of Philip of Burgundy dated July 14, 1434, would seem to be useless, a grant by which he permitted these same magistrates to exclude criminals not only from their own territory, but also from the whole of Rynland and from the territory of The Hague. And this latter grant Charles V confirmed on July 19, 1541. I say these would be useless, for it is expedient to extend and enlarge privileges, but it is not lawful to restrict them except by way of punishment; however, on the main point, namely, that such powers derive from the sovereign, there is total agreement. As for Amsterdam, I have made these observations. When formerly their territory was very limited, Albert of Bavaria in 1387 authorized them to enlarge it by a hundred perches. Then Maximilian and Philip on February 6, 1488, permitted them ‘as a special favour’ (to quote the words) to exclude criminals 1, perches outside the city, in this way adding 10 perches to the previous grant. Finally, Amsterdam petitioned the Emperor Charles V for authorization to banish criminals three miles from the city, but they were given a privilege extending only to one mile, and that ‘by special favour’ as again the grant of Charles V specifies (February 6, 15441). Whether similar grants exist in other cities of Holland, I do not know, nor is it of great importance.
I warn you also not to suppose, as some do, that these grants are to be understood as applying only to those whom we properly call interdicti, and that they are interdicti of the class that magistrates or burgomasters of cities (not judges) send out of Holland or out of some other territory without prejudice to the persons’ status so that they should not create any uprising. This could hardly be the case, for the privileges above-mentioned speak only of criminals who are solely within the jurisdiction of the judges, and not of burgomasters or magistrates. Furthermore, the writs that I have seen are concerned with exile, in the proper sense of the word, ‘van bannen, ballingen, en bannissementen’ which surely differ from what we call interdictio. This interdict of burgomasters and magistrates is a civil coercion, so to speak, applied through fear or suspicion of possible offence rather than criminal punishment applied because of some offence committed. If you will examine those privileges of cities, you will be amazed that these trivial pettifoggers could be so foolish as to attempt to support this opinion already shattered, namely, that judges have the full authority of banishing criminals and excluding them from the whole of Holland.
The rule is, therefore, that no one can impose exile upon any individual in a district outside his own jurisdiction, and that rule Philip II in the cited section 63 of his Edictum de Criminibus affirmed for provincial as well as inferior judges. Above we have noted some exceptions due to special grants; other laws will supply some more, especially in the case of more heinous and repeated crimes. For instance in the case of high treason and of heresy, certain judges who have jurisdiction in such cases can banish the criminal from the whole of the Netherlands that was under the Spanish King, if he is absent in contempt of court; a privilege that Philip II himself bestowed in the above-cited section 63. He also added that if any law authorized the penalty of exile from the whole of the Netherlands for any crime all judges who possess authority to impose capital punishment may also exclude criminals from the whole of the Netherlands. And this is correct, since the banishment is valid, not because of the judge’s power, but from the general authority of the law. By constant usage it is acknowledged that the authority of the judge in imposing exile is a concomitant of the authority of the law in assigning the place of exile; which is as evident as the judge’s right to promise immunity if this right derives from law, as I have argued in the preceding chapter.
What I have said so far relates to the time of the Counts. From the time that the Estates obtained full sovereignty in Holland, these have also authorized magistrates and judges in some cases either to exclude men from the whole of Holland because of disturbances, or to deport them beyond Holland because of some criminal offence. There is extant a decree of the Estates of Holland made April 17, 1585, and frequently repeated thereafter, according to which those who were excluded from any city by its magistrate were also forbidden to dwell anywhere within Holland. But this I understand as meaning that the interdict applied to a case which pertained to the whole of Holland, as for instance to the fear of the Spaniards, which in those days flamed up not only in any one city but throughout the whole of the Netherlands. But in this matter special notice must be made of the edicts of the Estates of Holland against ‘robbers, vagabonds and beggars of sound body’ issued on December 16, 1595, March 19, 1614, March 4, 1630, and May 12, 1649. In sections 17, 8, and 18 of those edicts a special concession is made to all judges who have jurisdiction in capital cases to deport criminals of the class just mentioned and exclude them from the whole of Holland. I say ‘a special concession’ lest, as some witless persons have concluded from the phrasing of these sections, you also think this is a general right exercised in certain cases in Holland. But that view is refuted by the final clause which is explicitly added to those sections, saying ‘we hereby specially authorize the judges in this matter, without, however, establishing this as a precedent for the future’. Thus we are to understand that it has reference to an exception and not to a rule. Moreover, since the Estates of Zealand inserted the same clause in the edicts which they made against ‘robbers, vagabonds, and beggars of sound body’ (July 19, 1607; September 16 and 17, 1614) we understand that the same law holds in Zealand as in Holland, namely, that in banishing, the judge cannot make a decision applying beyond his own territory except by special authorization of the Estates. Finally, the Estates of Holland in an edict against sodomy issued July 31, 1730, authorized all judges possessing criminal jurisdiction to exclude from the whole of Holland all those who were absent because of suspicion of this crime, and who, when called to court, did not satisfactorily explain their absence. To be sure they do not say that this provision applies specially to this crime and under the circumstances that I have mentioned, but the facts themselves sufficiently prove this.
We must also consider as an exception section 3 of the charter of Rynland, according to which the bailiffs of Rynland ‘in ancient possession’ of a right to banish murderers and other offenders beyond the boundaries of Holland. I have not discovered whether or not this rests upon a special grant; unless perchance that section means that the judges of Rynland are accustomed to insert in the formulas of their decisions banishments of that kind beyond Holland without denning whether it is done according to law or not. When, however, sections 10 and 17, title IV of the charter of Middelburg, hold that the judges of that place can exile certain criminals not only beyond Zealand but also beyond Holland and Friesland, this power is to be referred to the grant of William of Bavaria dated May 31, 1355, which is also observed by others. When such grants do not exist the authorization of the sovereign must be obtained if it is desired to extend the application of banishment beyond the ordinary jurisdiction of the court. Accordingly ‘the judges of Utrecht on May 12, 1682, deported a person beyond the jurisdiction of Utrecht, but only after the Estates of Utrecht on April 15, 1682, had given the judges permission to do this. You may learn more fully from my discussion in Chapter XXV, section 2, by what right, if any, the Court of Holland deports criminals outside the jurisdiction of Utrecht, and the Court of Utrecht beyond Holland.