Questions of Public Law (1737)
Cornelius van Bynkershoek
Miscellaneous Questions of Minor Importance
I. GROTIUS correctly said that the rights of a people do not expire unless the nation becomes extinct. The nation, however, is not changed with a change in the form of government. The same is certainly true of a state when it is governed now by this form, now by that. Otherwise one might suppose that a state in its present form is freed from the agreements and debts contracted under a different form of government. Grotius agrees that this does not hold true in the case of debts; and the same argument that holds in the case of debts applies convincingly to agreements. However, though it had been agreed between Henry VII of England and Philip, Archduke of Austria, by section 14 of the peace of February 24, 1495, that it should be permissible both for the English and the Dutch ‘to go, navigate, and to fish in safety anywhere upon the seas without any hindrance, special licence, or safe conduct’, the English later, begrudging the Dutch their liberty to fish, refused to abide by the treaty, their pretext being that it had been made not with the States-General but with another sovereign, namely the Archduke of Austria. This interpretation was entirely false, and yet the English frequently urged this pretext against the article in question, and time and again stirred up quarrels with the Dutch regarding fishing rights. And though many sections of the peace of 1495 have been transcribed into treaties made with the kings of England in subsequent times, that section 14 has never since been used again. Nevertheless the Dutch rightly make use of their right to fish and will continue to do so as long as there will be any respect for treaties. The King of Denmark also refused to observe the Treaty of Espierres which he had made with Emperor Charles V in behalf of the Dutch, employing, the same pretext as the English had done. This argument lacked every vestige of truth, since both of those treaties had been made solely for the sake of the subjects. Certainly Philip of Austria had not bargained for this right with a view to sailing out in person to fish; nor had Charles V provided for a lowering of merchant dues with a view to his own trading in the Baltic Straits. And yet it was impossible to uphold the Treaty of Espierres, whether because of this contention or other petty pretexts which were equally false.
II. As both courts of Holland exclude their deported criminals from the territory of Utrecht, so also the court of Utrecht excludes its exiles from the whole of Holland. Since, however, no power can exclude its exiles from the territory of a foreign power, the question arises how this practice is validated. I notice that it has been referred to the law of Charles V dated April 17, 1534, by which he had decided to unite Holland and Utrecht under one command, and indeed the act of union is there explicitly sanctioned. Since, however, the union was not consummated, the effects of the union ought also to disappear as did all the other conditions of union sanctioned by the law. It does not seem therefore quite legitimate to derive the practice in question from that law. Perhaps we might rather derive this practice from a law of Maximilian Augustus which forbade Utrecht in 1483 to receive those whom the Court of Holland condemned to exile. From that law you may perhaps explain how the Court of Holland can exclude exiles from the territory of Utrecht, but you could hardly draw from it the correct explanation for the fact that the court of Utrecht can exclude its exiles from Holland. In Rome’s treaty with Antiochus it was agreed that the latter should not receive Roman exiles, according to Polybius. But since this article did not apply to both parties the Romans could certainly receive exiles banished by Antiochus. Consequently, no argument occurs to me by which to justify this right employed equally by Holland and Utrecht, except that it is the custom in vogue.
III. Princes, even as empires, do not always hold a clear title. In such cases the question arises whether the acts are valid of one who seizes the reins of government by force and deposes the legitimate ruler. Perhaps in the case of such rulers we may for the sake of the common welfare adopt the principle which the Roman law applied in observing as valid the acts of Barbarius Philippus who was praetor though a fugitive slave. In fact we may perhaps thus apply the words of the Digest: ‘Much more must this right be recognized in the case of the Emperor.’ It is the duty of subjects to obey and observe the command even of unjust rulers. M. Terentius rightly said to Tiberius:
‘The gods have bestowed upon you the supreme jurisdiction in the state, there remains for us the glory of submission.’ Similar also, though with treacherous intent, are the words of Hushai to Absalom, namely, that he is the man whom God and the people have chosen. It is politically expedient therefore that the acts and agreements of all rulers whatsoever be considered valid, with the exception of those deeds that have furnished cause for civil war and the consequent struggle over the government. According to this principle, the Cole of Theodosian does not rescind all acts of illegitimate rulers, but only those which, have been unjustly committed. And this holds true in sections 2, 3 and 5 of the chapter cited. When in section 13 he rescinds all the acts of Heraclianus, it must be noted that this general act applies peculiarly and solely to Heraclianus. I shall not discuss the question nor attempt to define whether the followers of Cromwell in England rightly defended themselves before Charles II for the then recent government; the histories at least show that their defence was ineffective in 1660.
IV. Foreigners and even learned ones sometimes betray deep ignorance in writing of our institutions. I have often observed this, and here is a striking example. Jacques Godefroy, in his Diatriba de Jure Praecedentiae, says that the place of honour is not always accorded the strongest among the United Provinces, but often those who first advocated liberation; and ‘therefore’, according to a note, ‘Gelderland holds the place of precedence among the federated provinces of the Netherlands’. The fact which he records is true, but the reason he gives is incorrect. Even before the Counts were abjured, Gelderland held the place of honour among the provinces as it did later in the Confederation. However, it was not Gelderland, but Holland and Zealand, that raised the first standards of revolt. The sole reason why Gelderland takes precedence in the States-General is that it bore the title of duchy, which is superior to that of an earldom or baronage; and Gelderland was a duchy for many centuries while the other provinces were ruled by counts, lords, or bishops. There were quarrels between Utrecht and Friesland from the very beginning of the republic about rights of precedence according to the decree of the States-General dated April 20, 1674. In the official documents of Charles V and Philip II the Frisians have a superior position, so also immediately after the recovery of independence, as for instance in the edict whereby the authority of the counts was abrogated on July 26, 1581. However, at the sessions of the States-General, Utrecht took precedence in honour, perhaps because of the ecclesiastical form of its government. But after the domain of Utrecht had been occupied by the French and presently recovered by our forces, the Frisians again brought up the question of precedence against Utrecht. The above-mentioned decree of April 20, 1674, relates that both sides referred the question for final settlement to the stadholders of Holland and Fries-land, promising to abide by the verdict. Utrecht accordingly holds the position of honour now as before.
V. There is a question raised by public officials that deserves discussion, namely whether any rule ought to be observed when parties must meet who dispute about the right of precedence. Suppose that the parties in question must meet to deliberate about political or ecclesiastical affairs and both are determined to insist upon the position of priority. The author of Political Disquisitions [Boxhorn], in Casus XII, rehearses various opinions of different authorities with reference to such cases. Nothing could be better and more equitable than the agreement of Utrecht and Friesland when they were discussing the question in 1674 as I just related. They decided to take the position of honour in turn and to decide by lot which should enjoy the honour first, according to the decree of April 20, 1674. There could be no more agreeable device, for all others teem with difficulties. One certainly could not approve of the method which the French and Spanish adopted at the Council of Trent after repeated quarrels regarding the matter. They decided that on each separate occasion the first arrival should take the place of honour and the later arrival should in each case attest that the incident should not serve as a prejudicial instance. This practice, as I say, can hardly be accepted, although the above-cited author approves. For there is danger that if the matter is not arranged mechanically, both parties will attempt to seize the position of honour by force of arms. And both parties might await the very time when the session is called, and thus arrive at the same time; and both may be prepared for battle. This device smells of blood and death.
VI. Zouche is not correct in his general statement that a subject may not leave his country and become the subject of another sovereign, thus changing his citizenship. He alleges as proof the case of an Englishman who in 1571 was brought back to England from which he had fled, and was condemned on a charge of treason. It is indeed entirely permissible, if there is no legal prohibition, to change one’s citizenship, to cast off one’s former status, and assume a new one; that is, excepting in a few nations mentioned in Chapter XXII of Book I. Among these exceptions is England, for there they insist that a man born in England is bound to maintain his allegiance to England even if he has dwelt a long time in the domain of another sovereign. According to this doctrine the English Parliament in 1644 condemned for treason some Englishmen, as if they were still bound to England, though they had lived in Holland for a long time. Complaints were made because of this act before the Estates of Holland and then before the States-General, but no decree was passed; in fact nothing was done but to make inquiry about the laws and customs of the English. And at the beginning of the second English war when the States-General gave permission to some Scotch mercenaries to depart if they did not wish to serve in the Netherlands, some remained in the service of the States-General, ready to serve against any and every enemy, even the English. Charles II, however, issued an edict proscribing these men as traitors. But when peace was made with England the men requested the States-General to use their influence with the English King to have the edict repealed so that they might again acquire property in England by right of inheritance and by the other customary practices in vogue in England. The States-General did as requested on October 24, 1668, quite doubtful, however, whether anything could be accomplished. Again on March 13, 1688, the States-General in a voluminous decree placed themselves in opposition to this decision of the English, who, as I said, hold that every man born in England always remains a subject of the English King, wherever he may go into foreign parts. Yet if we may believe Camden, that sentence was entirely correct, for he relates that according to the ancient laws of England no subject has the right to go from the kingdom and dwell in foreign parts except men of importance and traders, and these only for justifiable causes and by special privilege granted by the king. The sovereign has a right to lay down this restriction upon his subjects; however, if he does not the subject may go with impunity.
VII. It were better that I had not used the expression ‘with impunity’, for though subjects may generally change their status, taking up their abode wherever they will, and almost all jurists are agreed upon this point, yet this act sometimes entails a penalty. In section 41 of the peace between the King of Spain and the States-General (January 30, 1648) there is a clause providing that any man may change his residence from one country to the other if he pays the dues which are imposed upon those who emigrate (mits betalende de regten daar toe staande). For there are in the Netherlands, as elsewhere, certain privileges granted to some cities according to which emigrants are compelled to pay a tax on their goods, a tax which is usually called exue or issue. Since, however, such exactions are looked upon as somewhat unfriendly, states often agree not to levy such dues upon citizens changing their residence from one country to the other concerned. Furthermore, states often employ this right only by way of retaliation, exacting the same toll from citizens who are emigrating to another state that the other state imposes upon citizens who are emigrating to them. A new question arises when such dues are prohibited by agreement, as in section 19 of the treaty between the Elector of Brandenburg and the States-General, dated February 16, 1666. Here it is stipulated ‘that subjects of both parties shall be and remain free and exempt during this alliance from the exaction of dues called “issue” or “decimation” which arise at the emigration of a family or the falling due of a legacy’. When such a treaty is made it is well to inquire if it annuls the rights that various cities have obtained from the Counts to exact a certain toll from emigrants, whether they have secured this right by free grant or by actual purchase. This question is difficult to answer, especially since such rights derive entirely from special grants, and neither the States-General nor the Estates of the provinces are competent to annul them. What solution can there be therefore so long as the treaty in question is respected, which of course it must be? My view is this. If the cities in question saw and approved the treaty before it was made, they tacitly renounced their special privileges to exact this toll; if they did not see and approve the treaty, the toll cannot, to be sure, be exacted from emigrants since the treaty forbids this, but the states must indemnify the cities concerned to the full extent of the loss.
VIII. When in 1660 the King of England was to be accorded a public reception in Holland, and the question was raised whether he should be received by the States-General or by the Estates of Holland or by both, the Estates of Holland affirmed in a decree dated May 24, 1660, that the States-General did not possess the right of precedence within the territory of Holland, but since some incidents had occurred that served as precedents prejudicial to the rights of Holland, the matter should now be determined, and the delegates of the Estates of Holland would alone receive the King; furthermore, it should be noted that the States-General had given their consent to this. However, it may be that something might also be said for the States-General. For when we have dealings with foreign rulers or their envoys, although the business is transacted in Holland, it always concerns the whole republic, not merely a part, as Holland is. I know that the Estates of Holland, in the letter sent to all the magistrates on March 21, 1663, gave this reason for the new formula of prayer which was issued on March 13, 1663, namely that the old formula was absurd in expressing the first petition for the States-General, thus according the place of honour to them and not to Holland. That was correct, for in prayers we deal with the Supreme Deity, whose favour should first be sought for the sovereign, and the subjects ought to know who the sovereign is. However, when we express our good will to a visiting foreign ruler the whole republic should do it, and therefore the place of honour should be held by those who represent the whole republic without reference to the province where the act takes place. It would perhaps have been better if the Hollanders had refrained from an individual expression of congratulations, and had left the matter wholly to the States-General. When the envoys of foreign rulers come to The Hague, Holland permits them to be received publicly by the delegates of the States-General alone, though it is within Holland. And the same custom should in my opinion be observed in the case of rulers. As regards the above-mentioned formula of prayer, I have discussed it fully in Chapter XIX of this book, and there may be found some other observations that concern this matter.
IX. Jurists discuss the question whether titles of nobility conferred by foreign rulers are of advantage in our state. We have an edict of John of Bavaria dated April 27, 1422, according to which men who had secured a title of nobility from the King of the Holy Roman Empire were forbidden to enjoy the immunities of nobles, ‘since’, it says, ‘the Icing may bestow titles of nobility, but he cannot override the opposing judgement of the Count of Holland’. The Estates of Holland also decreed on December 11, 1666, issuing the edict on the same day, that titles bestowed by foreign rulers should have no value in Holland as concerning the game laws or any other privileges. It is entirely reasonable that ‘diplomatic nobles’, as we call those whose title is based solely upon a diploma, should carefully be distinguished from our own nobles, and that they should not be admitted to public office or to any other dignities which are at the disposal of our own nobles. If they were admitted, these men, who secure paper titles from foreign princes and often strut about with them to their own disgrace, would not be buying vain promises and folly as they now generally do. However, I should not approve of the action of Elizabeth the Queen of England who prohibited the use of such titles, when the King of France had bestowed them upon two Englishmen, and the Emperor of Germany had given one to another Englishman as distinction for valour. Why should they not use those titles, since one may do so without involving the judgement of others? Indeed I wonder that the Queen did not express the opinion that a doctor of science recognized by the title in some foreign country could not be a doctor in England. In Holland to be sure an attempt was made in 1656 to forbid the acceptance and use of titles bestowed by foreign rulers unless the permission of the Estates was first secured, but no decree was passed. Indeed, we have now so great an abundance ‘of counts and barons among us that we are overwhelmed with them, and yet we bear with this game of wanton fortune with entire equanimity. For what is it to us even if these people are terrae filii? The actual nobles born in foreign parts who have taken up residence in Holland are, moreover, very different from these ‘diplomatic nobles’ just spoken of. These in fact have sometimes, though not always, the same rights as our own nobility. The privilege of repurchasing their properties, which the Estates of Holland gave to the nobles of Holland on February 9, 1593, they also gave to foreign nobles who had their goods and their families in Holland.
X. For the general question whether a citizen must be indemnified by the magistrate for damage to his house done by a mob, one of the counsellors answers in the affirmative. I do not object to this if there is a law like that of some oriental nations, which provides that damage falling upon one citizen through robbery must be borne by the community. However, other counsellors give more prudent advice saying that the magistrate is responsible only when he has not prevented the violence, though he might have done so. But whether or not the magistrate can prevent such incidents is a question which is sometimes difficult to decide. However, this question is not concerned with those who suffer violence because they have incurred the hatred of the mob while performing their duties in accordance with the laws and decisions of the court. For such men are always to be indemnified, whether or not the magistrate failed in his duty. In 1690 the house of a bailiff of Rotterdam was destroyed, and I shall not determine whether it was through fault of his own, or whether because he had done his duty in office. This I dare affirm that the magistrate of the city left no stone unturned in his effort to quiet the disturbance by better means, but to no purpose. The magistrate was therefore not treacherous nor at fault in any other way. And yet in this instance the bailiff was indemnified by means of a tax levied upon the citizens by the magistrate, as if the bailiff had incurred the hatred by the performance of his official duties. When in 1696 the house was destroyed of a man of Amsterdam who had suggested a new form of taxation (indeed he boasted that it was new, though in fact it was in vogue elsewhere), the man in question summoned the magistrate of Amsterdam before the schepenen, demanding indemnity for the loss. He there lost his case, but upon appealing to the Court of Holland he won it. The case was again appealed to the Supreme Court of Holland, which on January 12, 1708, rejected the decision of the lower court and confirmed the judgement of the schefenen of Amsterdam. I was a member of the Supreme Court when this case was tried, and I know that the court was not influenced in their decision by the fact that after the destruction the man had been granted for life the annual premium which is bestowed for remarkable discoveries. They were influenced by the fact that no charge of negligence could be brought against the magistrate of Amsterdam in his efforts to quell the riot; and even Grotius agrees that the magistrate cannot be held liable except in case of blame. In fact, as I have just said, it is a very difficult matter to prove the magistrate at fault, since one cannot readily say what is the best possible course when the ‘beast of many heads’ is raging. It is sometimes expedient to set a troop of armed soldiers upon the mob, but sometimes you expose the rest of the state to the greatest danger by that method. Machiavelli shows by examples that the Romans, the most prudent of men, did not always resort to force of arms in settling riots, but often employed praiseworthy craft; and Lipsius also prescribes milder methods at first. This matter must be trusted to the prudence of each magistrate, for it is his duty to decide according to the circumstances how the state entrusted to his care shall suffer the least damage.
END OF BOOK II