Questions of Public Law (1737)
Cornelius van Bynkershoek
Regarding Methods of Reconciling Provinces When They Disagree
IF any controversy arises between the provinces that are federated, the question of how they are to be reconciled deserves examination. This problem is indeed very intricate but it is most important to solve it, lest the republic which can grow only through united action should some day be destroyed by discord. I shall now discuss methods of reconciling provinces which disagree, firstly .in accordance with the articles of Utrecht, then according to measures that have been adopted since that Union; then after considering these we must decide whether sufficient provision has been made for this matter which is so essential. The provision contained in the first section of the Union must apparently be extended to cover cases of discordant provinces, for it says: ‘That the questions which any of the above-mentioned provinces, members, or cities of the Union have, or may in the future have, one with the other, concerning the particular or special privileges, liberties, exemptions, rights, statutes, laudable and established customs, usages, and other just claims of their people, such questions shall be decided by ordinary process of law, by arbitrators, or by friendly agreement.’ And yet it is true that there is no judge, much less a judge of our ordinary court, that is competent to act in cases between discordant provinces, which are all independent. And so it would seem in such cases that when a compromise has been tried they must at once resort to arbitration. And, furthermore, it follows that if the discordant provinces are prepared to accept the decision of arbitrators the States-General have no part in such cases. Such is the general statement made in section 1. However, in section 9 of the same Union, after a clause specifying that no decision can be made regarding questions of truce, peace, war, and revenue without the unanimous consent of all the provinces, there is a general provision in case the provinces fail to agree upon any of these questions: ‘That the difference shall for the time being (by provisie) be referred and submitted to the stadholders of the above-mentioned United Provinces now in office (nu ter tyd wesende), who shall examine the difference in question between the disputants or pronounce judgement thereupon according as they shall deem equitable.’ And if the stadholders also disagree, arbitrators shall be called in, according to this same section 9. Again in section 16 of the same Articles of Union if any dispute arises which has reference to a single province the duty of settlement shall lie with all the other provinces; if, however, the dispute has reference to all the provinces, the stadholders shall arbitrate the matter according to section 9. Finally, according to section 21 of the Articles of Union, if any doubt arises as to the meaning of any part of the articles, all the federated provinces, each voting as a unit, shall interpret the articles, but if they disagree, the stadholders shall assume the role of arbitrators as above.
Can any one be expected to create order out of such confusion? From section 1, we might suppose that all controversies between disagreeing provinces must be referred to arbitrators, while according to section 16 either the remaining provinces are to decide or (according to the distinctions laid down in the section) the stadholders, and that certainly without reference to arbitrators. Or can it be that section 1 refers to specific rights of each several province, while section 16 refers to the common rights of the Union? But section 16 does not make any distinction; and if we adopt this interpretation, section 16 would say the same as section 21, for this latter section has reference to questions that concern the interpretation of the Articles of Union. And furthermore, the sanctioning clause of section 21 differs from that of section 16. Again, according to section 9 certain cases of more serious import are left to the judgement of the stadholders ‘then in office’, but only ‘for the time being’. What then if the stadholders are dead? What if there are none or only one? Not a word is said regarding such contingencies. The same criticism may be raised regarding sections 16 and 24, where stadholders are mentioned. And in section 9 arbitrators are called in if the stadholders do not agree, but it does not say whether or in what manner it shall be possible to adhere to their decisions.
In fact these matters are so obscure and so far from being consistent that in 1651 the federated provinces took up the question in earnest regarding the interpretation of all the clauses, and at the same time they laboured upon a new method of reconciling discordant provinces. The Frisians, in their proposal to the extra session of the States-General on January 27, 1651, offered a new interpretation of section 9. The clause which referred certain cases by provisie to the arbitration of the stadholders, then in office, they interpreted as including all subsequent stadholders also; their specific proposal being that the words by provisie meant ‘that their decision should be executed provisionally’, and the words nu ter tyd wesende referred not to the stadholders but to the phrase ‘the United Provinces’. This erroneous interpretation was correctly refuted by the Hollanders in the proposal which they made at the same session in February, 1651. If the meaning of that section 9 was not apparent on the surface, it could be understood from the constitution drawn up on July 13, 1579,! soon after the Union of Utrecht, by John of Nassau, George Lalaing, Gelderland, Zutphen, Holland, Zealand,. Utrecht, Ommeland, and even Friesland. This document contains among other things a provision that if questions should arise about the exaction of revenues from subjects of any province ‘the question shall for the time being (by provisie) be subject to the decision of the stadholders of the provinces now holding office (nu ter tyde zynde), in the manner specified by a closer union regarding other differences that may arise between these provinces’. With reference to the arbitration of stadholders this clause clearly makes the same provision as the above-mentioned section 9; but it cannot by any means be interpreted in the way that the Frisians interpreted section 9. However, although this article of the Union does not seem to me to be obscure, yet I think I have shown with respect to the sections that I have discussed that the various parts are of doubtful meaning and even contradictory.
They were therefore entirely justified in 1651 in discussing other methods of reconciling discordant provinces. In fact a new method became all the more necessary when some of the provinces lost their stadholders, by whose influence the Union was protected, and I may add that they were not very eager to have other stadholders. It were well if they had not only discussed the matter but also reached a conclusion, which would have been very helpful not to say essential. But though no conclusion was reached, it is of great interest to know what the several provinces proposed in this important matter. As I have not the space nor inclination to give the proposals of each, I shall simply cite the passages from which the information can be drawn. Gelderland presented its proposal at the special session of the States-General on January 20, 1651, Holland on July 26, 1651, Zealand on January 22, 1651, Utrecht (proposal undated), Friesland on July 20, 1651 and again on July 22, 1651, and again thereafter, Overyssel on February 7, 1651, and Groningen on July 20, 1651.
Holland, moreover, desired that its proposed method of reconciliation should not apply to questions of contributions (buyten materie van Consenten), though it should apply to all other controversies. Gelderland, Zealand, Utrecht, and Overyssel, though adopting the proposed method of Holland, in other respects refused to adopt the exception (August 19, 1651). But the Hollanders refused then as before to withdraw their exception, though they were earnestly urged to do so. However, on May 2, 1663, the Estates of Holland decreed that an effort should be made before the States-General to have their formula accepted even without the exception regarding contributions, provided it be only for a term of six years. But since Friesland and Groningen had not given their consent to the formula in 1651, and the limitation of six years now proposed by Holland did not meet the approval of the other provinces, nothing came of the affair even in 1663.
Indeed the Hollanders had good reason to urge the exception which I have mentioned, for they knew well that liberty of consent in the matter of contributing revenues was the strongest possible protection of freedom; for war and peace and other matters of the greatest moment depended upon revenues, and even soldiers, as they knew, could conspire to the overthrow of their sovereign if their pay was withheld. For this very reason, in the pamphlet (mentioned in Chapter IV) which the Estates of Holland issued against the House of Orange in 1651, they explain fully by way of defence that even in the days of the dukes and counts each province freely made its own decisions regarding revenues, and had the power to refuse contributions year by year, at will, and without any offer of explanation. And when the States-General decreed on August 18, 1650, that if any question arose between the provinces regarding the disbanding of the troops the matter should be referred to the decision of the stadholders, the members from Holland, Zealand, Friesland, Overyssel, and Groningen added the note: ‘Without prejudice to our rights in this matter of contributions.’ They knew well that the stadholders would try in vain to retain the troops if the Estates did not furnish revenues for their pay. That note, furthermore, signifies a belief among those six provinces that when the stadholders had died who held office at the time of the Union of Utrecht, the above-mentioned section 9 of the Union lost its validity, for according to that section the question of revenues had been left to the decision of the stadholders. Apparently, therefore, the Frisians did not hold the same interpretation of that clause in 1650 as they did on January 27, 1651. The opinion of the delegates of Groningen is also clearly revealed by another incident. Apparently because they were convinced that the clause referring to arbitration in that ninth section was now void, they requested, in their proposal at the special session of the States-General on January 27, 1651, that the clause in the section which referred to the stadholders then living should be adopted as applicable to all subsequent stadholders.
Even the delegates of the States-General proposed a formula of conciliation which the members from Gelderland, Zealand, Utrecht, and Overyssel approved ‘subject to the approval of their principals’. The members of Holland are said to have accepted it without proviso. However, since this formula contained no exception regarding contributions, a thing to which the Hollanders clung tenaciously until 1663, as I have said, I prefer to rest this statement upon the authority of the writer who made it. And even if the Hollanders had accepted this formula, they would have been alone in doing so, seeing that the consent of the other provinces was not secured, nor was it subsequently secured so far as I know. Consequently neither that proposal nor any offered by any other province ever received unanimous approval or acceptance.
But even if some formula existed, perfect in all respects and approved by all the federated provinces, it would surely concern itself only with composing differences that arise out of the common articles of Union, namely, when there is a question regarding what aid should be given one’s confederates. In fact the Hollanders inserted an explicit clause in section I of their proposal saying that it had reference only to such questions. And the Frisians did likewise in their last proposal; though the proposed formulas of the other provinces generally had a wider application because of faulty composition. But in matters concerning the separate provinces the Estates of each have sole authority, the States-General have none unless the parts of the province or the magistrates of some one province disagree and refuse to submit to the authority of the court. This is the only exception.
We therefore still lack a formula of conciliation approved of and accepted by the votes of all of the federated provinces. It would indeed be better to have one of some kind than none at all. The one offered by Holland is preferable to the others, and if it were amended here and there we should not scorn to accept it. The counsellors of the States-General carefully explained the need of a new formula in their letters addressed to the States-General on December 14, 1716, January 18 and 27, 1717. There is also extant a new formula of the same kind, fuller and more correct than former ones, composed by the delegates of both bodies and bearing date of April 12, 1721. Although this was sent on the same day to the Estates of all the provinces, nothing has yet been accomplished and perhaps nothing will ever be. As matters now stand we have reverted to the articles of the Union, and yet to a condition far worse than existed at the founding of the republic; for at that time the stadholders had some share in reconciling factions in matters of serious import, now they have none and would not have even if the power of the stadholders had not been destroyed in most of the provinces, as is the case. So long as there were stadholders, the personal influence of these in the later times often effected as much as the actual power of the earlier ones, and thus the confusion of sections 9, 16, and 21 of the Union of Utrecht was somehow disentangled. But when the stadholders have been removed or reduced to one, how shall these sections be set in order? If there is neither official authority nor personal influence that can keep obstinate and discordant allies in their proper places, there would seem to be no alternative but for each province to assume complete independence in matters pertaining to the confederation, even as each province is now independent in matters concerning itself. But we all understand how useless such a course would be and how near to ruin it would bring the state. Let us have no more of stadholders, if the state can be preserved without them. But to render this possible, let all the federated provinces adopt a new formula of conciliation which will fill the place of the official and personal powers of the stadholders. If you think this hope difficult to realize, I must express the fear that there will not always be at hand some deus ex machina to preserve the republic.