Questions of Public Law (1737)
Cornelius van Bynkershoek
Whether the States-General Have the Right to Interfere in the Affairs of the Several Provinces
SINCE the several provinces are independent sovereign states they exercise the powers that are normally inherent in sovereignty unless they have surrendered their right. And they have indeed surrendered their rights in certain questions in so far as this was necessary for the formation of the Union of Utrecht of January 23, 1579. In Book I, Chapter XXIII, I have discussed the question of how far, if at all, they have surrendered this right with reference to war; in Book I, Chapter XXIV, I have discussed the same question with reference to reprisals; in Chapter IV, of this book, with reference to sending and receiving envoys; and in Chapter XVIII of this book, with reference to religion. But what if disputes arise between various provinces regarding rights and privileges that belong to the several provinces, and what if they arise between magistrates or cities or other members of any given province? Now, it is explicitly provided by the first section of the Union of Utrecht that all such disputes shall be settled by the regular courts or by arbitration or by friendly compromise; and this clause is specially added ‘the other lands or provinces, cities or members thereof, shall not have to interfere therein (so long as the two parties duly submit to this) unless it be desired that they intercede for the sake of peace’. In some questions which, as I have just said, concerned the establishment of the Union and without a settlement of which the state apparently could not be preserved, another method, of composing differences is prescribed in sections 9, 16, and 23 of this Union, but I shall discuss these sections more fully in the next chapter. Meanwhile the rule in all ordinary cases is clearly this: the States-General have not the right to interfere in the disputes of the several provinces excepting only when the parties do not submit to a judicial settlement. And this one exception is wholly reasonable, for if the parties should refuse to submit to settlement in court, they obviously would resort to arms to their mutual destruction, and in this way they would become useless for the defence of the Union; and it was necessary to guard against this contingency in every possible way.
Such are the provisions of the Union of Utrecht. But even before this Union it was generally agreed that the States-General should not undertake to pronounce judgement in matters that concerned the several provinces. Accordingly, the following provision was included in section 23 of the treaty between Amsterdam and the Prince of Orange on February 5, 1578: though the officials of Amsterdam had promised to answer their accusers before the States-General and the counsellors of that body regarding the administration of their city, the Estates of Holland had decided that men dwelling within Holland could not be prosecuted outside of the province for acts committed within the province, since such procedure would infringe the privileges of the province and the articles of the Treaty of Ghent; accordingly the Prince of Orange and the Estates of Holland agreed that the prosecution in question should be suspended until the States-General should decide about the jurisdiction of the court of Malines.
Moreover, that first section of the Union of Utrecht does not now apply to disputes between the city and the land (Ommeland) of Groningen, though it applied formerly. The Ommeland subscribed to the treaty, and the city was a part of the Union (as I think I have proved in I. xvi) even though it did not sign the articles. Then, when the Spaniards held possession of the city of Groningen, it fell out of the Union; but when the Prince of Orange recovered it, the city returned to the Union, according to section 2 of the articles of surrender (July 23, 1594). However, as I have observed in Book I, Chapter XVI, the city did not return with full rights, since section 5 of the articles mentioned stipulates ‘that the disputes that have arisen and such as may arise between the city of Groningen and the Ommeland shall be within the jurisdiction of the States-General or their delegates’. In these disputes Groningen submitted to the jurisdiction of the States-General, either according to the terms of surrender or by a special promise to arbitrate; the Ommeland submitted only by special promise, which they gave to save themselves from continuous clashes with a difficult adversary. At any rate, the States-General or their delegates have frequently acted as judges between Groningen and the Ommeland according to the articles cited, as for instance on January 21, 1597, March 8, 1599, and April 10, 1600, and again on August 18 and December 4, 1610, and July 3, 1615. To be sure Groningen insisted on March 3, 1677 that the above-cited section 5 applied only to disputes which existed in 1594, but the Ommeland denied this, and the States-General supported their denial in the decree of August 3, 1677. This decision was correct, for section 5 explicitly provides for disputes that may subsequently arise. However, this section 5 refers only to disputes (whether existing or subsequent) between Groningen and the Ommeland. Hence it apparently cannot be extended to cover other disputes. Accordingly, if the people of Groningen or the people of the Ommeland should have some internal disputes, the States-General clearly -have no jurisdiction in the matter except it be by a new agreement made for the special case. Since the people of the Ommeland have frequently broken into riots, and still do so, the States-General have often settled their disputes according to a special agreement previously made. But if there were no such special agreement (and this must be diligently observed in every instance) the jurisdiction of the States-General would cease and the rule would apply which the above-cited section I of the Union of Utrecht prescribes for all provinces.
But what of the case in which the States-General or their delegates once pronounced judgement against some citizens of Utrecht? A letter of March 17, 1610 refers to this decision, and apparently also the edicts of the counsellors of the States-General dated May 31, 1610, and the edicts of the States-General issued on August 15, 1612. You may think the decision illegally made since, according to the above-cited section 1, disputes of the several provinces or parts of provinces shall be referred to the ordinary courts or to arbitration unless the disputants come to terms. However, the decision was entirely legal, but not because the case furnished ground for the exception contained in section 1, namely that the States-General are excluded from interference unless the disputants refuse to submit to legal settlement in fact, I do not know whether the disputants did or did not agree. But I consider the decision legal because it was authorized by the Estates of Utrecht. In order, therefore, that this case may not serve as an incorrect precedent in other cases we must bear in mind that the decisions rendered in 1611 by the delegates of the States-General against certain citizens of Utrecht charged with rioting were ‘authorized by the Estates of Utrecht and by the court of the city of Utrecht’, as I have learned from the preface of the edict dated August 15, 1612. Accordingly the States-General had jurisdiction in this case which they would otherwise not have had.
On April 8, 1654 there was a serious quarrel among the Estates of Overyssel which agitated the whole province. The Estates of Holland then decreed (September 18, 1654) that if the delegates of Overyssel at the meeting of the States-General consented, a motion should be offered before the States-General ordering the soldiers stationed in Overyssel not to obey either faction. If, however, the delegates of Overyssel would not consent, the Estates of Holland (so they decreed) would order the Dutch soldiers stationed in Overyssel not to obey either faction so long as the riots continued, but thereafter to return to their allegiance to the Estates of Overyssel according to their oath. However, when the proposal was offered before the States-General the delegates of Overyssel refused their consent and the States-General accordingly failed to pass the motion. Finally, when various attempts had been Vainly made to reach a compromise on the questions at dispute the Estates of Overyssel pledged that they would adhere to the decision of the question to be made by certain arbitrators in the name of the Estates of Holland, and their decision was rendered on August 20, 1657. The whole matter is fully related in the decree of the Holland Estates dated September 21, 1657, and I also have mentioned it in a different connexion in Chapter III of this book.
With the exception, therefore, of the disputes between Groningen and the Ommeland the States-General have never so far as I know rendered any decision in disputes arising in the provinces except as arbitrators upon the agreement of the disputants or upon delegation of jurisdiction, that is to say, upon authorization of the Estates themselves. To be sure, they have often attempted to allay disturbances here and there, even to the extent of sending their deputies for the purpose, but they have definitely abstained from acting as judges when a compromise could not be reached. When in 1668 a heated controversy arose among the nobles of Friesland over some matter of local concern, and the delegates of the States-General happened to be present about some other affair, the defeated faction complained bitterly before the delegates of the injustice they had suffered. The delegates forwarded their complaints to the States-General on February 24 and 25, 1668. When this became known, deputies of the Estates of Friesland also dispatched letters to the States-General on February 29, 1668, earnestly begging the States-General not to interfere in a matter which did not concern them, and saying that the Estates (where the dispute arose) had already pronounced judgement in the case and that they alone had jurisdiction in the matter. The States-General were induced by this letter not to assume any illegal jurisdiction.
However, although I can think of no instance where the States-General have pronounced judgement between disputants of one and the same province, unless by special agreement or upon delegation of jurisdiction, yet they have the right to do so if the disputants refuse judicial settlement as they often have done. In the histories there are instances of disturbances in fact some have arisen in my day which have become so serious in some provinces that factions have seized arms and shed blood, and almost complete anarchy has resulted. Not to mention former examples, in 1702 and the years following the death of William III, Gelderland and Zealand were so torn by factional strife that laws and court decisions were totally disregarded. When the defeated faction appealed to the decision of a neutral judge, the stronger faction interposed its influence and secured the suspension or abolition of the decision. And yet, not even under such conditions, did the States-General or the Estates of any province interpose their influence except by way of effecting a compromise, never by way of a compulsory judgement. And the only thing that prevented them from interfering was, if I mistake not, the fear of each several province that the States-General might later employ the right of interference in it if they once asserted the right in any other; and it was equally important to all the provinces that the practise should never arise.
But, you ask, have the States-General never used the right which section I of the Union of Utrecht bestows in exceptional cases? You may remember as I well do the years 1618 and 1619, when delegated judges of the States-General pronounced judgement over the lives and goods of those who then governed the State of Holland. But you must by no means suppose that that case falls under the above-mentioned exception provided by section 1. That exception reads ‘unless the disputants submit to a legal decision’. But the men then tried were so far from refusing a decision in their own courts that when they were dragged by the neck before the delegated judges, they appealed and clamoured for a right to be tried in their own court, and its decision they neither refused nor feared. If you ask then by what right the delegated judges of the States-General tried this case, ask some better lawyer than me, for I cannot say.