Questions of Public Law (1737)
Cornelius van Bynkershoek
Whether the Several Provinces Possess Sovereign Rights in Religious Affairs Now as Formerly
SINCE as Ulpian says the subject of public law also includes sacred matters, it follows that the charge of sacred rites devolves upon the one who has the supreme political power in the state. I know that whole volumes have been devoted to both sides of this question, some in behalf of the sovereign, others favouring the church, nay even that some divide sovereignty between Jove and Caesar. But their arguments have applied to a religion already established. However, in establishing a religion it is correct and expedient that he who possesses supreme power in political matters should also be the master in sacred matters.
When the Estates of the United Provinces were discussing the question of forming a state, and opinions differed as regards religion, the agreement expressed in section 1 of the Union of Utrecht (January 29, 1579) did not seem to suffice, namely, that it would be neither right nor legal for one province to interfere in the affairs of any other province. They accordingly added explicitly in section 13 of the Union, that each province was independent and sovereign in religious matters and each had the right to decide as it should deem best. In this section 13 it is affirmed that Holland and Zealand should preserve the religion they had agreed upon (a reference to the agreement made between them April 25, 1576, to preserve the religion called Evangelical), but the other provinces should further decide in religious matters according to their own desires. And as if even this did not sufficiently guard the religious independence of the several provinces, there was presently added an interpretative clause to the aforesaid section 13 (on February 1, 15792) in which it is expressly stipulated: ‘The intention is not that one province or city shall concern itself with the behaviour of another on points of religion.’ From this it is clear how blind is the man who wrote that, according to the Union of Utrecht, the several provinces could not decide for themselves even in religious matters, but all the United Provinces must act together with equal votes.
That this religious liberty existed completely unmolested in the hands of the several provinces until 1618 and 1619, Grotius in his Apologeticusr II, has proved from the records so absolutely that it is difficult to understand how the judges delegated by the States-General in 1619 dared give the decision which they did. In this decision by which they condemned Barneveldt and this same Grotius and others to death or life imprisonment, they asserted as the principal count in the condemnation, the fact that these men believed and publicly professed this doctrine. And yet this is the very doctrine which the interpretative clause of February 1, 1579, stated so boldly, which the Estates of Holland had openly confirmed a little while before (August 5, 16171), and which had been constantly observed as an accepted principle up to that time. I find indeed in section 11 of the articles discussed between the provinces on May 21, 1587, the suggestion made that the Federated Estates should deliberate whether, now that all the provinces had accepted the Evangelical religion, a change should be made illegal except with the unanimous consent of the federated provinces. I find also a vote of the Estates of Holland, dated June 14, 1583, urging the passage of a law that the Evangelical religion which was then generally accepted, should be the only one accorded defence, and that no other religion should be publicly accepted in the provinces then in the Union. But neither I nor Grotius found any general law or agreement between all the provinces on this matter. And since no such law was passed Grotius rightly concludes that the above-cited decree of June 14, 1583, was not binding upon the Hollanders since the vote of the other provinces is lacking. Yet I suppose this is the very decree out of which a foreign writer of our history invented the idea that in 1585 it was unanimously agreed by the provinces that no religion but the Evangelical should be publicly taught in the United Provinces. Moreover, even though a law or general agreement of this land existed, it would certainly have reference only to the defence of the Evangelical religion and the exclusion of the Roman. And so this law would not be of service to those who in destroying Arminianism in 1619 struck off so many ‘heads of the tallest poppies’. Indeed both Arminianism and Calvinism belong to the Evangelical religion, and both were at that time equally received, as Grotius demonstrated in Chapter III of his Apologeticus, and the Estates of Holland showed in the decree of August 5, 1617.
It is more important to know how far, if at all, the individual provinces have lost their sovereign rights in religious matters which were so sacredly preserved for them by the Union of Utrecht. The ecclesiastics have indeed attempted to secure legislation whereby only one religion, and that Calvinism, should be taught and admitted to all the provinces, but I have not been able to find any law or general agreement between the Estates of the United Provinces on this matter before 1651. As soon as Calvinism became powerful through general acceptance the ecclesiastical laws of the pontiffs were abrogated, nor was the authority of the ancient councils any more enduring; but into the place of these, nothing succeeded that had public validity. It was only proper that among the Calvinists, who were now uppermost, the laws of the old church should give way, since they opposed the Roman religion, which rested upon ancient doctrine and the decrees of the universal church, with almost one sole argument, namely, that no authority whatever lay in the decisions of men. Accordingly in section 7 of the Dutch confession of faith, where it deals with the Councils and the old customs of the church, we read: ‘All men are by nature liars, and lighter than vanity itself.’ But when they met realities even the Calvinists understood that religion was so constituted that it could not be established without the decrees of men, so they laboured with laws and church canons. The Dutch confession of faith was produced, then the Palatine Catechism, but not even these were publicly approved by all the provinces until after 1651. Then very many canons of synods were produced, and in Holland ecclesiastical laws, written partly by laymen, partly by church officials. But it profits little to review all of these; there has been a verbose and protracted discussion which is not yet ended about their validity. It is sufficient for our purposes to note that none of these have been officially accepted by all the Estates of the United Provinces, or adopted as the norm of faith for the subjects to follow.
At length after the two synods of Dordrecht, one in 1574, the second in 1578, there followed a third in 1618 and 1619 which approved of the Dutch Confession and the Palatine Catechism which I mentioned and, condemning Arminianism, established the pure dogmas of Calvinism. But not even all the decrees of this synod were at once accepted and approved by all the provinces. In fact the Estates of Friesland not only rejected the ecclesiastical laws there laid down but decreed on July 10, 1622, that any man who attempted to impose them should be considered a disturber of the public peace. At last, however, in 1651, times became more favourable for the Calvinists. At any rate it is related in section 2 of the pamphlet which is called De nadere unie, that it was agreed among the federated Estates that each province should defend Calvinism according to the articles adopted at Dordrecht in 1619. But this later ‘Treaty’, which purported to have originated at The Hague on August 21, 1651, and was published in 1651 and 1652, has absolutely no legal authority. It is, in my opinion, a mere conglomerate made by some unknown person from the motions adopted by the separate provinces in the extraordinary assemblies of the States-General. I am indeed amazed at the audacity of the author who tried to deceive readers in a case of such recent occurrence. The ‘Treaty’ is supposed to contain thirty-three sections, according to the inventive author, but no treaty of this kind exists in the records of the States-General. At any rate I have searched in vain for it, as have others who ought to be able to find it. I have found that all of those thirty-three sections were copied, some accurately, some not, from the decisions that I mentioned of the separate provinces, some of which were not adopted by all. The dubious character of that pamphlet has been suspected even by another, and yet the knavish author has now for a long time deceived even men well versed in political affairs.
We may therefore dismiss this pamphlet. However, it will be worth while to examine from the official sources the very decisions of the Estates in order to learn what was actually decided in this very important matter; for here it was in my opinion that the power of the several provinces in religious matters was first weakened. The Estates of Holland in the Epistle, dated 1650, in which they summoned the Estates of the several provinces to an extraordinary assembly, and in the proposal of subjects for discussion, openly stated that they would defend the so-called ‘Reformed’ religion as it had been established at Dordrecht. The Estates of Gelderland, in section 23 of the proposals which they made in the assembly on January 20, 1651, say that they have agreed that the reformed religion, as received and elucidated at Dordrecht in 1619, should be observed in all the United Provinces, in subject lands, and among the allies (geassocieerde Landen), and that it should be defended by public authority (met magt van’t Land). The Estates of Zealand adopted the same motion on January 22, 1651, those of Utrecht, without recording day and year, those of Friesland on January 27, 165l, and those of Groningen on the same day, January 27, 165l. Then, at the initiative of the Hollanders, this motion was passed in that extraordinary assembly of the States-General on January 27, 165l; but the clause was added almost in the very words in which it was put by the men of Utrecht, that this defence should be exercised in each province by the Estates of said province (elks in den haren), and in the domain of the States-General by that body. You will perhaps understand why they added the words ‘each in its own’, if you recall that there were men still living who had not forgotten the events of 1618 and 1619.
One would think that the religious question was thus finally settled, though a certain author holds that the Estates on January 27, 1651, only stated without promising that they would defend Calvinism. But this is mere quibbling. I should add that the author in question also offers another consideration which he explains, but which I omit because I find nothing about it in the records of the Estates. Be this as it may, I am convinced, and I think others also will be, that the federated States had no other intention than to consider this decree of January 27, 1651, as a mutual promise made by each to the others to defend Calvinism; for it would be nothing at all if not that.
But even though the federated Estates made the mutual promise that they would protect Calvinism, there is another question, namely, whether any one province has the legal or moral right to interfere in the case of another, and to consider and decide if another province is rightly or wrongly protecting Calvinism; and if it decides adversely, whether the other provinces can use armed forces in compelling the loyal observance of the pledge. At present I think we must decide that the jurisdiction in religious matters lies wholly with each several province, not with the other provinces, and that the decree must be considered what is called a lex imperfecta or a sponsio among friends whose force depends not upon legal action, but wholly upon the loyal observance of a duty assumed by men of principle. When the Estates say ‘each in its own’ they clearly imply that they by no means desire the interference of the States-General or any other province in the defence of religion. Nor is it possible to say that the decree contemplated any kind of gradation of provinces, so that while each provincial assembly was to defend religion in its province, the more loyal defenders should have preference over the Estates of the other provinces; and, further, if some Estates neglected this duty or (to put it as some prefer) failed to defend Calvinism, their place should be taken by the Estates of other provinces. That this could not have been the intention of the Estates is proved by the fact that Friesland, Overyssel, Groningen and Zutphen, and again, Overyssel acting independently on February 7, 1651, affirmed that the decree of January 27, 1651, did not seem to them sufficient. They called for more definite measures with which to meet the obstruction of provinces that failed to observe the decree loyally, for they held that the promises of the Estates to observe the decree would not suffice unless some coercion was possible in case of non-compliance. However, I do not find that any statute was passed in this matter. Indeed, such a measure would be useless since no one province or group of provinces has jurisdiction over another or over a group of others, and each province would exert great care not to permit an agreement which would allow the exercise of force against itself. It would also provide a wide field for disturbances if the different provinces disagreed about the methods of defence to be adopted.
This then should be our conclusion: the defence of Calvinism is promised by that decree of January 27, 1651, but there is no penalty attached for failure to observe the promise; the promise ought to be kept since men of principle ought to act honourably, but coercion cannot be applied in case of failure to observe it; there is no definition of methods of defence, and these are left to the decision of the individual province. Accordingly I should not dare to say, as one author does, that the various provinces remained wholly independent in religious matters after this decree as they were before: I would rather say that they remained independent in so far as they did not surrender any of that independence in the seven chapters of that decree. And I am not sure that any of this independence has been surrendered in any later agreement, or that any subsequent act has been adopted by the federated states that has further weakened the rights of the individual provinces. The Estates of Groningen indeed proposed on October 9, 1663, that for the greater protection of Calvinism they desired a decree that all who were sent to the college of the States-General should take an oath that they would defend Calvinism, but the States-General did not pass the decree. Indeed the delegates of the Holland Estates to this college take an oath that they will defend Calvinism as it now is, but only as concerns the jurisdiction of the States-General; for they explicitly add to the oath that they will not permit the States-General to pass any religious measures with reference to the separate provinces. The words of the oath are: ‘Without in the least assuming to myself any authority in matters of religion over or within any of the associated provinces, or even permitting such a thing to be undertaken in any province or part thereof in the name of the States-General.’ I have not even found that any power in religious matters has been given to the States-General by all the provinces, although I have found that they have very often been approached by the church officials when the Estates of the several provinces have not satisfied these officials. The Estates of Holland on September 25, 1670, even decreed that the deputies of the synods in Holland should not make such requests. It is true, indeed, that the States-General once passed some measures concerning religion in the United Provinces, but it is no less true as the Estates of Holland affirm in sections 132-5 of the decree of March 17, 1637 (on the right to use military force) that these things are not established except by the consent of all the provinces, and that they are not valid in a province whose Estates have not assented.