Questions of Public Law (1737)
Cornelius van Bynkershoek
The Meaning of Section 4 of the Peace of Münster, Dated January 30, 1648
IT would be a long story to set forth the condition of the Catholics in the United Provinces from the beginning of the state up to the present time. I have not even the desire to mention the decisions and decrees that were passed in the dominion of the States-General and in the several provinces against the ecclesiastics who do deference to the Pope. It is sufficient to our purposes to bear in mind that while lay-adherents of the Pope have always had the right to dwell unmolested in the United Provinces, the clericals have not had that right and did not even before the Peace of Münster. Indeed the States-General, by the edicts of February 26, 1622, September 8, 1629, and August 30, 1641, imposed a fine of 600 florins upon any Jesuit found in the United Provinces. All other Roman ecclesiastics were simply banished from the state with the exception of those who had lived here before 1622. And these were required to report their names to the magistrates of their districts within a week and to obey the laws of the States-General.
These edicts were proper for the time of the Spanish war when they were made, but I question whether the edict is equally justifiable which the States-General issued on April 14, 1649, after the Peace of Münster, whereby those former edicts, whose contents I have given, were repeated and ordered to be observed. Or rather, I question whether those harsh edicts ought not to be moderated and qualified in their application to ecclesiastics who are here from the empire of the King of Spain, since Belgium which was Spanish when the decrees were made is now Austrian. The question is raised because of section 4 of the Peace of Münster (January 30, 1648) which, like section 4 of the Truce of April 9, 1609, binds the King of Spain and the States-General to permit subjects and inhabitants of both countries without regard to person to migrate to the country of the other, and to dwell, carry on business, and trade there. The words in the Dutch version are: ‘The subjects and inhabitants of the dominions of the aforesaid King and States-General shall and may come and remain in the country the one of the other, and there carry on their trade and commerce in entire safety by sea, by other waters, and by land.’
Indeed several of the United Provinces apparently thought that the harsh decrees above mentioned could not be adhered to without a breach of this treaty of peace, and that this section 4 of the Peace was therefore favourable to the ecclesiastics of the Pope. The Estates of Gelderland, Holland, Friesland, and Groningen proposed in the extraordinary assemblies of the States-General, held in 1650 and 1651, soon after that peace was made, that the edicts of the States-General limiting the right of ecclesiastics to enter the country should be enforced. However, they added the explicit proviso: ‘So far as this can be done without infringing the terms of the Peace,’ having reference, I doubt not, to the Peace of Münster. Accordingly, the States-General passed this decree together with the provisory clause on January 27, 165l. Since, however, the clause lacked definiteness it was proposed in the same assembly, in April 1651, that a clear statement of the matter should be formulated in the light of what had been done and said at the time of the Truce. However, I find a statement that this was not formulated, and that the whole matter was referred to the regular meeting of the States-General. And since nothing more definite has been adopted since, that decree of January 27, 1651, has tacitly been accepted as the final word.
The question has therefore not yet been cleared up; but in order to do it the Zealanders approached the matter from a different point of view at the above-mentioned assembly on January 22, 165l. They offered the interpretation that, despite section 4, all ecclesiastics of the papal faith are excluded, and others cannot be admitted for the very reason that they are subjects of the Pope at Rome, and not of the King of Spain, even though they came from Spanish territory. They added that the envoys of the King had solemnly affirmed this very fact at the time when the treaty was being made, and further that the Estates had decreed in their deliberations before the peace that the Edicts against the Roman priests would have validity despite everything. The delegates of the synods then adopted these two arguments in the petition which they presented at this same assembly. Now, the first argument has no force in my judgement. Ecclesiastics are certainly subjects and they are so considered in all Catholic states. But even if you insist that qua priests they are not subjects of the King because of the jurisdiction of the church, you surely will not deny that those who have come to us from Spanish territory are inhabitants of the King’s state; and the Peace speaks of subjects and inhabitants (ondersaten en inwoonderen). Though I have searched with care, I have not discovered that the King’s envoys affirmed anything else, nor that the Estates decreed at the preliminary discussions that those harsh edicts would be enforced even after the peace. Accordingly, I have nothing to say about those two arguments, nor did the Estates of Gelderland, Holland, Friesland, and Groningen have anything to say about them, nor even the Estates of Overyssel afterward, though they were even more bitter against the papal priests. And yet those arguments could hardly have escaped the notice of all of these, especially in a case of such recent occurrence. This one thing I have found, that before they sent their envoys to the peace conference the Estates made the simple decree that they would defend the purer faith which had been received by the state; but it is one thing to defend a faith, another to enforce those harsh edicts. And furthermore I cannot see what advantage there would be in the fact that the King’s envoys may have prattled some such thing, or that the Estates may have passed a decree. The only question to raise is what was agreed upon in the treaty itself; for if a question arises between the two powers, it must be settled upon the basis of stipulations in the treaty.
I once thought that this section 4 must be understood as referring only to subjects and inhabitants who engaged in commerce, since the final clause which I have quoted says: ‘And these carry on their trade and commerce.’ But fidelity to truth rejects that interpretation, since that added clause about commerce is inserted simply because subjects of one prince usually frequent the country of another for this very purpose. It is not the intention of the clause to prevent the subject of one sovereign from entering the country of another in order perhaps to live at leisure or engage in philosophic pursuits or spend his days freed from anxieties of business. I therefore abandon this interpretation, especially since another occurs to me which is, if I mistake not, more correct. After the reformed faith was publicly received, the papal priesthood fell in a way under a legal ban in these regions, so that a penalty was attached to being a clerical; a fine was imposed upon some, foreign ones were excluded from the United Provinces, as I have said, and even native ones under certain conditions. Such was law and custom even before the Peace of Münster. But criminals may not by any means come to another’s country where they are regarded as criminals, however much foreigners may dwell in another’s country according to the meaning of the aforesaid section 4. That clause was made to end the war between the King and the States-General so that all hostility might cease between the subjects of the two, as is there explicitly stated, but not so that the prosecution of crimes should cease, for the public laws pursue these even aside from the concerns of war. Accordingly this section 4 cannot benefit the clericals even though they are subjects of the King of Spain since they were excluded even before the peace, namely as clericals, not as subjects of the Spanish King. Indeed, that law excluded all papal clericals of all countries even of those with whom we were at peace. Wherefore it is evident that before the clericals can be admitted, as the subjects of the Spanish King have been, some new treaty is required admitting those who were excluded by the law that had no reference to the Spanish war. And no such treaty exists. Suppose the case of a man who has been banished and deported from the United Provinces on account of some crime and not on account of war, and suppose that he has gone to the territory of the King of Spain and dwelt there for some time as subject or inhabitant. Now, if such a man desired to return hither, do you think that this section 4 would gain him admittance into the United Provinces? I hardly think so. An example will make the matter clearer. The Spanish, with irreverent piety, have banished all Jews from their country with manifest harm to their empire; and in other countries as well the Jews have been mistreated. But the Dutch, a commercial people, have acted differently, for here the Jews who are very useful to a state engaged in commerce, have been so kindly received that they have enjoyed the same legal rights and privileges as the other subjects and inhabitants of Holland. My question is whether a Jew going from Holland, the foster-parent of Jews, to Spain is at liberty to dwell there after the adoption of that section 4. Believe me, he cannot, for as Jew he was excluded from Spain long before the adoption of section 4, and that section gains no favours for the excluded.
However, though this interpretation of section 4 that I have just given seems to be entirely correct, yet I doubt whether the Estates of Holland can avail themselves of it. For when the Spaniards had ill-treated some Dutch Jews and the latter complained about the matter to the Estates of Holland, these decreed, on July 12, 1657, that the Jews in question should be considered as subjects and inhabitants of the United Provinces, and ought therefore to enjoy the same rights and privileges as derived to other subjects and inhabitants of the Republic from the peace with Spain, or from the Marine Treaty, or from every other agreement made with other kings, states, princes, estates or cities. And they added further a mandate, that their delegates to the college of the States-General should in this and all other instances undertake to defend the Jews according to this decree. Nor may you suppose that this decree had reference merely to the property and not to the person of the Jews; for in matters of property there has never been any cause for fear from the Spaniards. Indeed in 1650, seven years before this decree, the envoy of the Spanish King had affirmed before the States-General, that Jews of the Netherlands could lawfully conduct their business in Spain through agents, and their property would be accorded the same protection as that of other subjects of the United Provinces provided they did not themselves come to Spain.
We must, therefore, give further consideration to the justice of that decree of July 12, 1657. But while we consider, we may bear in mind that other Estates of the Netherlands have never passed a similar decree, so that we are at liberty to employ them in the service of applying my interpretation of this section 4. Admitting this point, we see that the States-General had the right, on April 14, 1649, to restore those harsh decrees against an unlimited influx of papal clericals into this region, and that the later confirmations of the same rested upon full legal authority. The most recent edict of the Estates of Holland on the matter was issued on September 21, 1730. But this and other matters relating to the subject I omit, satisfied if I have shown that this section 4 need not have disturbed most of the Estates of the Provinces as if it contradicted the right to exclude the clericals who came hither from Spanish territory.