Cornelius Van Bynkershoek

THE

CLASSICS OF INTERNATIONAL LAW

EDITED BY JAMES BROWN SCOTT

Member of the Institute of International Law President of the American Institute of International Law President of the American Society of International Law

QUAESTIONUM JURIS PUBLICI LIBRI DUO

BY CORNELIUS VAN BYNKERSHOEK

VOL. I. A Photographic Reproduction of the Edition of 1737, with a List of Errata, and a Portrait of Bynkershoek.

VOL. II. A Translation of the Text, by Tenney Frank, with an Introduction by J. de Louter, and an Index.


QUAESTIONUM JURIS PUBLICI LIBRI DUO

BY

CORNELIUS VAN BYNKERSHOEK

VOLUME TWO THE TRANSLATION BY TENNEY FRANK.

Author of 'Roman Imperialism', &c.

OXFORD : AT THE CLARENDON PRESS LONDON : HUMPHREY MILFORD 1930


CONTENTS OF VOLUME II

Introduction ......... ix

Translation of the 1737 Edition of: Quaestionum Juris Publici Libri Duo . I Dedication .......... 3

To the Reader ... . ...... 5

Conspectus of Chapters . . . . . . . .9

Privilege . . . . . . . . . . .11

Book I ........... 13

Book II ........... 143

List of Edicts cited and discussed ...... 284

List of Decrees cited and discussed ...... 286

List of Treaties cited and discussed ...... 288

Index of Authors cited ......... 290

Subject Index ......... 296


INTRODUCTION

THE life of Cornelius van Bynkershoek (August 19, 1673-April 16, 1743) affords one of the rare examples of perfect harmony between outward and inward conditions that make life happy and glorious. Born and educated in a well-to-do family, he combined an iron constitution with a gifted intellect and a well-balanced mind. His career was fostered by almost uninterrupted sunshine and follows an ascending line until his peaceful death crowned by an honourable funeral. A brief survey may confirm this judgement.

The beautiful little city of Middelburg, capital of the then sovereign province of Zealand, was his birthplace. He was the only son of a respectable citizen of the middle class, a well-known and popular sailmaker, captain of the Citizen-Militia, and his pious wife Sara Remeus, who had been married before to Mr. Oale and was the mother of four children. His father was able to send him to the Latin school of his birthplace, where he soon distinguished himself by cleverness and assiduity, and with a single exception was at the head of the class. He applied himself not only to the classics, but according to his father's wish also to mathematics, and moreover studied Hebrew in view of his intended theological career. His mother, who scarcely consented to his leaving her home, flattered herself with the hope of seeing him once a minister of the Church she clung to with all her heart, and the obedient son did not oppose.

In Franeker, the Frisian University, later suppressed (1816), whither he started in 1689 after his graduation from the gymnasium, he first diligently studied theology, the favourite doctrine in the Protestant United Provinces; but besides his own inclination a quarrel about one of the incomprehensible dogmas of that time between two professors, wherein he decisively sided with the more liberal view, moved him to withdraw from theology and turn to jurisprudence. A professor of law, C. Van Eck, who helped him to convince his parents of the reasonableness of the change and so to obtain their consent, won for ever his gratitude for the rescue from an intolerable, awkward position. Liberated of his scruples he studied henceforth with indefatigable zeal and admirable success the different branches of Roman, Dutch, and Public Law. At that moment some brilliant scholars adorned the small and remote University, among whom the name of Ulrich Huber acquired a European reputation; van Bynkershoek soon won the attention and favour of his teachers and repeatedly defended theses under their guidance. In May 1694 he was promoted to the


dignity of Doctor of Law ancient and modern (doctor juris utriusque), by means of a triplicate dissertation: 'De pactis juris stricti contractibus in continenti adjectis,' highly praised by the said Ulrich Huber. At the age of twenty-one he left the Frisian University, well versed in the different parts of jurisprudence, standing on a solid basis of classic propaedeutics and in high favour with his professors, notwithstanding his free and even bold contradiction of their opinions if he thought them wrong or doubtful.

After the death of his beloved mother in 1694 he established himself as a lawyer at The Hague, the seat of the Confederate Government of the Court of Holland, and of the Supreme Court of Holland, Zealand, and Western Frisia. He soon stood in high repute for learning and trustworthiness, and attracted plenty of clients. At the same time he found leisure to indulge in science and literature and to edit anonymously a periodical, The New Hague Mercury (1699), containing observations about men and things characteristic for their acuteness and the witty censure of the incapacity, avarice, and braggartism of many practitioners and the narrow-mindedness of many others, especially priests and princes. It is true that the periodical was marred by a degree of roughness and outspokenness that displeased, and before long caused it to disappear by order of Government.

Nevertheless the young barrister enjoyed a high respect. He was elected one of the influential members of the Directory of a noted watering-district � Waterschap Delfland � further, churchwarden and, as is rumoured abroad but not verified, was even solicited by Czar Peter the Great of Russia to follow this adventurous Sovereign into his oriental dominions.

In 1704 van Bynkershoek was called by the States of Zealand to the vacant chair in the Supreme Court of Holland, Zealand, and Western Frisia. This Court of Appeal had been created in 1582 in substitution of the Central Court ofMalines in the Southern Provinces for the Burgundian possessions in the Low Countries, and extended to Zealand by an agreement of 1590. Although properly confined to the two richest and most populous provinces, it was often resorted to and consulted by the other provinces, and so represented apparently the northern independent republic of the United Netherlands. Next to a large majority of members from the province of Holland three seats were reserved for Zealand, where six towns with municipality rights in the States of Zealand (provincial Government) elected the new dignitary and saw their choice confirmed by the sister province. Shortly afterwards, van Bynkershoek married a young orphan from the East Indies, Esther van Buytenhem, who became the mother of thirteen children, eleven daughters and two sons. For the most part they died before the death of their father, who was survived by only six daughters.


In 1723 after a long period of uninterrupted office the honoured post of President of the Supreme Court became vacant, and the question arose whether, after a term of almost a century and a half, the time had not come to call to the presidential chair a Zealander, none until now ever having risen to that dignity. Van Bynkershoek himself eagerly coveted the distinction and was effectively sustained by his powerful fellow-countryman, Caspar van Citters, syndic (raadpensionaris) of Zealand. Many electors in the States of Holland recognized the fairness of the Zealandian claim and the not less eminent services and superior qualities of the candidate. However, the first endeavour failed. After the sudden death of the new magistrate, a second campaign was engaged in with still greater effort and with success. A long period of 'correspondence', personal and written, preceded the decision, which in the course of 1724 crowned the ambition of the high-spirited magistrate. He himself did not scruple to move heaven and earth to assure his appointment, but he may be excused by the intricate system of republican and confederate administration and by the current notions of decency in the age.

Once raised to the seat of honour of the highest dignity the republic had to bestow in the judicial order, van Bynkershoek displayed all the genius of his superior mind. His vast knowledge and keen understanding of different systems of civil law assured him a marked ascendancy in his field that was only emphasized by his high position. The respect he had won long before by his probity, disinterestedness, and highmindedness, attracted to him all the attention due to the Court which he adorned with his brilliant and spotless fame. His advice was solicited on questions quite apart from the functions of the Court, and his free and frank judgement in cases submitted to it won him an influence far exceeding his official position. Moreover, he kept his colleagues in high esteem and often mentioned their merits and the excellent relations that bound them together and strengthened the general regard for their dignity.

Until his death � April 16, 1743 � van Bynkershoek preserved the consideration of all who were related to him or had met him in office or in social life. Soon after the death of his wife in 1726 he married again, a widow, Gerardina Cloot, who had an only son. This marriage remained childless. With all his direct and distant relatives he maintained friendly relations, as an extensive correspondence proves satisfactorily. One of his sons-in-law, Mr. William Pauw, also a jurist and member of the Court, was heir to his books and writings and took care of the further publication of his manuscripts, but he disappointed the hope of many that he would write a biography of his celebrated father-in-law, whose intimacy he so long had enjoyed.

Van Bynkershoek lived in easy circumstances. He inhabited


a stately house in the residence of the Union and possessed a nice country house in the neighbourhood, where he sojourned in the summer holidays. In after years he complained of asthma and of enfeeblement of the visual faculty. However, his mental faculties remained unimpaired till a stroke of apoplexy on April 15, 1743, put an end within a few hours to his happy, glorious, and fruitful life.

The Quaestiones juris publici is the most extensive and important work of the author. It was published in 1737, six years before his death, in a volume of two books of nearly equal length: the first treating of war, the second of various subjects. Accordingly the work has not the form of mere monographs originating in contemporary events but rather assumes the character of a compilation of all his views concerning a vast field of study. This corresponds exactly to his promise four years before, that henceforth he would leave Roman civil law alone, which in his time was almost exclusively taught in universities, and turn to public law, both national and international, which was practically confined to government cabinets and council chambers.

A somewhat stilted dedication, excused by the customs of the age, to his friend, the burgomaster of Middelburg, William van Citters, brother of the syndic of Zealand, Caspar, to whom he had dedicated his monograph De foro legatorum, is followed by a preface to the reader that explains his purpose and method. He disdains to repeat what others already had said, and therefore prefers selected chapters to systematic arrangement. He declares reason or common sense, often called the mistress of the law of nations, to be his chief guide; in the second place, international agreements and the resolutions (edicta) and decrees (decreta) of the States-General of the United Netherlands, which, although legally confined to their own country, are interwoven with international affairs; finally, facts or cases (exempla) taken by preference from more recent history. Opinions and manners are changing indeed, yet contemporary events should be avoided for fear of hurting the feelings of living men or meddling with pending quarrels. As, however, human opinions are fallible and changeable, even when the members of a council or court are the same, differences of opinion are unavoidable. Each stands for his conviction and therefore numerous quotations from so-called authorities do not avail.

He only excepts the grand masters of international law, Grotius and Pufendorf, but by no means submits to their authority and often censures them severely. Authority derived from usage and practice affords weight to what reason demands, because reason, although always the same, frequently is ambiguous, and then usage or continuous custom, the first of all tyrants, decides. Some indications


about notes, quotations, and abbreviations conclude this interesting preface, whereabout more is to be said after taking cognizance of the book. As the space granted for this introduction is of course limited, the following survey cannot be but extremely succinct. The main features are to be drawn, while peculiarities, especially concerning Dutch public law, must be passed over in silence.

(Of Book I, On War) The first chapter lays the foundation of the following construction and begins with a definition of what is to, be understood by war. His starting-point, as that of many predecessors and successors, is the definition of Cicero: 'bellum est genus decertandi per vim' tacitly approved by Grotius, who formulates: 'war is the state of those who contend by force in their quality', emphasizing the state or condition instead of the mere action of fighting. Van Bynkershoek judges that both definitions are inadequate, as well as that of Gentili, who speaks of ''a just contention by public arms', and recommends his own conception: 'War is the contention by violence and ruses of those who are independent in maintaining their rights'. The several points of this definition are explained in detail in this way � it appears that he subscribes the conception of Grotius of a condition rather than an action � that he strongly clings to the public character of war, viz., the contention of parties without a common superior, even of singular individuals, that he also implies the just cause and purpose of the struggle and finally admits all kinds of violence or stratagem, except perfidy only. He justifies this meagre exception by declaring that as far as faith is pledged the enemy ceases to be an enemy. As long as he really is an enemy all means of combating and subduing him are legitimate, even if the harm done far outweighs the original wrong that caused the war. Justice and generosity are two things, their claims never can be identified nor confused.

Can any one wonder that this harsh doctrine has raised vehement reproaches that van Bynkershoek's humanity was marred by his judicial rigidity? He knew nothing of the numerous limitations of violence that in the next century lured nations and individuals, and in the late World War proved so utterly insufficient.

Having thus stated his object, the author raises the much disputed controversy, whether a declaration of war ought to precede hostilities (Chapter II). He again quotes Grotius, who clearly denies the obligations so far as regards natural law, but in virtue of the law of nations, as it is apparent from custom, requires a demand of what is due to the offended by the offender and moreover maintains that a public declaration (denunciatio) is needed, less to prevent fraud or deception, than to ascertain that war is unavoidable and really corresponds with the will of the nation or its rulers. This broad-minded opinion is shared by some high authorities, as Pufendorf and Huber,


but rather questioned by others and referred by a philosopher as Thomasius to the sphere of humanity instead of justice. Van Bynkershoek is of the same opinion. Of course he also deems necessary a demand by the offending state for restitution and indemnification of the presumed wrong, but this suffices and permits immediate action. It is true that the Greeks and Romans respected the custom of a formal declaration, either by an official herald or a written document, but the Jews and the Macedonians did not use this formality and European nations generally followed the Roman example only through an involuntary respect for their customs as for their laws. Van Bynkershoek appeals exclusively to reason and refutes the arguments of Grotius for an obligatory declaration: it is of no use at all and nothing but a formality that deceives no one and can be followed immediately by overwhelming hostilities, unless a preceding treaty stipulated a certain lapse of time before capture of enemy goods is allowed. Besides numerous cases of recent times clearly show that a formal declaration of war was neglected and judged superfluous. The great adversaries in the Thirty Years' War, the German Emperor and Gustavus Adolphus of Sweden, omitted it; so did Louis XIV in 1667. To be sure these examples are more effective than the quoted details. Eighty years of war followed the insurrection of the Netherlands against the Spanish monarchy, because this nowise can be considered as a war between independent nations but constitutes an internal struggle for liberty that wholly escapes the definition of war proposed by van Bynkershoek himself.

Chapter III. 'The state of war between belligerents' contains the core of the subject: war, although in theory indicating a relation between sovereigns (constantly called principes), practically implies the nations themselves and puts an end to all friendly intercourse. The author praises the magnanimity of Roman officials, who refused all connexion with the national enemy, and regrets the degeneration of later ages, which did not disdain to join courteous manners and warlike purposes. A French ambassador in England, then at war with France, who condoles a conflagration in London, awakens his disgust, for to proclaim humanity and clemency, when in arms, appears to the open-hearted Zealander affectation if not hypocrisy (oppido putidum). The law of war does not know restrictions and affords a mutual right of life and death. There is no difference between public and private persons and properties. Both are at the pleasure of the victor and may be treated as best he likes. He can kill his enemy, reduce him to slavery, or keep him in custody; he can destroy property or appropriate it to his own use, in short he can do what he deems fit. The killing of vanquished enemies has now fallen into disuse, yet the right survives and is sometimes exercised, as the author proves by some decrees of


the Dutch Government, of 1589 and 1696, against piratical aggressions. Slavery is also out of practice, except for paganish pirates, because slavery itself is abolished in Europe. Thus retention alone remains and comes to an end by exchange of prisoners of equal rank and quality, by delivery against ransom, sometimes fixed by previous agreement, or even by unconditional release. In the meantime it should well be understood that all enemy subjects in a country at war can be made prisoners, unless a preceding convention or an arbitrary favour fix a term after the outbreak of war (indul), for leaving the country unmolested. Louis XIV, e.g., accorded to the English in France an indult of three months after the outbreak of war in 1666. If killing of enemies, though lawful, be antiquated, there is no reason at all for punishing with death a stubborn resistance;

courage rather claims homage. Bodies of slain or deceased enemies are no longer exposed to animals or the elements, but duly buried or restored to their army. All trade and intercourse with the enemy is stopped and transgression of such prohibitive measures severely punished, as e. g., the Earl of Leicester proclaimed in the Netherlands in 1584. Even without any express prohibition, trade with the enemy is forbidden, but the urgencies of reality have mitigated this strict rule and introduced some exceptions on various lines. This, however, signifies nothing but a yielding of justice for utility and so again accentuates the difference between the claims of justice and humanity.

Having thus settled in a single chapter the now voluminous consequences of war in its most direct and concrete sense of personal relations, the author takes up the various problems growing from the capture of enemy property (Chapters IV-VII). Supposing the rights of belligerents to be unlimited he states that all property of the enemy, whether public or private, movable or immovable, may lawfully be captured and appropriated. Accordingly he concentrates his inquiry on the exact moment at which the property of captured goods, especially ships, immovables, claims and credits, passes from the former owner to the captor and may happen to be lost again. As to ships, Grotius had taught that the transfer dates from the moment the prizes are brought within the lines of the captor, viz., within the reach of his actual power, so that all hope of rescue was excluded, but he added that at all events a term of twenty-four hours ought to elapse, and many authorities asserted that in practice this period had been respected by nearly all European nations. Van Bynkershoek declares that he is not sure of the truth of this assertion and sharply censures some decrees of the Dutch Government recognizing a right of recapture of prizes that already lawfully had passed into the hands of their new owners, either captors or legitimate buyers. Capture in war is as strong a title to property as inheritance or contract. He clearly


distinguishes the general prize law from that of blockade, and criticizes an edict of 1666 which apparently had overlooked the difference. Failure to distinguish different cases also explains mutual injustices in the war of 1672 to the detriment of neutrals who often are the innocent victims of error or confusion. But if capture alone transfers property, how then is it to be explained that in case of recapture the prize partly be allotted to the captor, partly to the former owner? Here the Roman doctrine of postliminium intercedes, to wit, the restoration of a person and his property into their previous legal condition after a transient interruption by war. Van Bynkershoek confirms this right to immovables and includes all movables, including ships of course, in the conception of booty or prize. Consequently, as soon as a ship is taken and brought within the lines or into the port of the capturing party, ship and cargo are lost to their owners;

if afterwards recaptured, the ship again changes its legal condition and falls to the share of the recaptor without regard of the original owner. So far all is clear and the logic of the argument irrefutable, but the matter grows intricate, if we ask which lines and ports should be attained before the transfer of property can be called completed. Van Bynkershoek judges that the port of an ally of the enemy equals an enemy port, but a decree of the States-General in 1676 judged otherwise and awarded goods recaptured after they had left an allied port of the captor to their former proprietors. On the other hand, captured ships and cargo remain the property of their owners, however long the lapse of time may be before reaching the required port. There postliminium is excluded because there was no change of property at all. However, on account of the uncertainty of the exact moment of appropriation many resolutions of the States-General in the course of the seventeenth century assign to the recaptor a part of the value proportionate to the exact date of recapture. Thence a perplexing variety of shares to be distributed among the parties concerned. Yet equity requires a liberal remuneration of the recaptor equal to his effort and expenses, whatever its name may be;

but the value of the ship and cargo reverts fully to their owners. Everywhere the author gives free course to his sparkling wit and frankly refers to his sources.

Passing from movables to immovables the author puts the question, how far the occupation of enemy territory extends in time of war. Van Bynkershoek does not distinguish temporary and provisional occupation from decisive cession or conquest; he considers every occupation as a lawful title to property until the occupier is either repulsed or evacuates the country of his own volition. Then the landed properties revert to their original owners by the right of postliminium, a rule that applies as much to nations as to individuals.


Accordingly the only point of inquiry concerns the extent of the occupancy. With reference to Grotius, who chiefly emphasized its solidity and stability, he teaches that occupation of the main implies that of the surrounding country; occupation of the centre, that of the whole, except if a part of it be really in the possession of the adversary or his allies. He ridicules the contention of people who deem necessary a virtual possession of all particulars, but in the same way refutes the pretension that the occupation of an estate implies that of its surroundings possessed by others; i.e., the occupation of a capital that of an empire, as once princes having taken Rome or Constantinople boasted to have conquered the world. The vagueness of the conclusions is due to the nature of the subject and is not quite cleared by historical events. Logical deduction moves the author to demonstrate that in the same way all claims and credits of enemy subjects, citizens or inhabitants, that fall into the hands of the belligerent or occupant, are lost to those who were entitled to them and forfeited to the treasury of the captor. This maxim is so rigidly interpreted that it even includes hereditary rights. Conventions or publications occur indeed that allow an indult within which credits as other property may be withdrawn unmolested, but in default of such exceptions as well as by non-observance of the terms the rule applies to all movables and to the fruits of immovables; real immovables are only registered and restored at the peace. Protestations against this line of conduct, though frequent and excusable, are not to be justified. However, deviations from the strict rule of right in favour of individual interests often occur. Even in that case debts paid to the confiscating government are extinguished and the debtors lawfully acquitted, items not yet liquidated revert to their owners after peace is made. International law of war and national law of high treason often meet and arc confounded in case of civil war. Admission to the tribunals is usually denied to enemy subjects, who inversely are not justiciable to them. Conditional trade-concessions sometimes permit exceptions but often create difficulties and are to be avoided.

Having explained this rough and therefore simple law of war that delivers all enemy persons and property absolutely to the victor, captor, or occupant, the author approaches the more intricate subject of neutrality. The region of war is the link that overbridges the gulf (Chapter VIII). War is prosecuted on the territory of the belligerents or on the high seas free from every sovereignty, but respects the territory of nations not involved in the war, but friends of both belligerents. Generally transgression. of the frontier of a country at peace by the belligerent is an unlawful encroachment on the sovereign rights of a friendly power and highly culpable. It is the right and the duty of every sovereign


to prevent and to punish such a violation whether on land or sea;

accordingly even to prohibit any act of war within his boundaries, and to order eventual prizes taken there to be restored to the owner. However, many memorable violations of this principle prove that it was often plainly forsaken. Van Bynkershoek quotes the destruction of the Spanish fleet by the Dutch in the English port of Downs in 1639, and the siege of the Dutch East Indian fleet by the English in the Norwegian port of Bergen in 1665 notwithstanding the fierce resistance of the Danes. He therefore proposes a distinction between aggression and pursuit. The first is absolutely forbidden, pursuit of a fleeing ship or squadron within the marginal limit or of a fugitive division within a land frontier of a neutral power should be admitted on condition that the fortifications of a friendly power be respected and no harm be done to its subjects. Beginning and continuation of action are two things. Yet their difference is overlooked in the customs of the time and the author only recommends his opinion as a safe guide.

What then is the influence of war on the nations which do not participate in it? (Chapter XI). This question suggests all the problems of neutrality that haunted the contemporaries of van Bynkershoek as they do ours. Neutrals, called by Grotius 'medii', are here introduced as non-enemies or friends, and ought to be carefully distinguished from allies, who are bound by treaty to one or to both of the belligerents. They have nothing to do with the conflict and apparently remain beyond the reach of its effects, continuing their friendly intercourse with both parties. Really, however, the duty of strict abstinence from any interference is incumbent on them and excludes all supply of men or weapons, munitions or materials adapted to military or naval use, and even of victuals and other commodities often detailed by mutual agreement. This duty is absolute and unconnected with the justice of the war; it belongs not to the friend to judge the righteousness of a cause that regards others and is not submitted to his judgement. Here van Bynkershoek is ahead of Grotius, who is caught in the inextricable distinction between just and unjust wars (Book III, Chapter XVII, Section 3). This rigid abstinence can only be forsaken by fear of becoming the victim of the victor, but in that case open participation is to be preferred to feigned neutrality.

With allies the case is quite different. If they are carrying on war with others they can claim the assistance of their allies, if with each other, the author judges that the ally of both decides who is in the right and sides with him. Here he seems to deviate from his solid standpoint of not judging a quarrel not his own nor submitted to him. Besides, a scrupulous interpretation of the treaty of alliance can alone decide whether the casus foederis, the case contemplated, has really


occurred. Again the author is of opinion that vague and equivocal terms are to be interpreted in a way that only a just cause justifies an appeal to the allied power.

The next chapters (X and XI) deal consecutively with the two most important institutions of neutrality � contraband and blockade. The doctrine of contraband is introduced in a by-way. Roman law forbade all trade with the enemy on pain of death, but of course reached Roman subjects alone. In later ages capital punishment was applied equally to citizens and foreigners. In course of time these harsh measures, in so far as to friends or neutrals, shrank into the system of contraband. The famous division of merchandise by Grotius into three groups, which never, always, or sometimes are destined to warlike purposes, finds no favour with the author. He doubts whether the distinction be tenable and distrusts the ability and impartiality of the belligerent in discriminating the various articles of trade. Yet he himself proposes no other standard and simply states that, besides some rare exceptions by treaty, it is a common rule with all nations that contraband is to be seized and confiscated, but that for the rest neutral trade may be continued and should be respected. Numerous conventions, chiefly concluded by the States-General in the seventeenth century, confirm this rule. According to van Bynkershoek all things are to be considered as contraband that can be made use of in war, leaving altogether out of the question, whether they can serve at the same time for other purposes and are really destined for warfare. For the rest he is no partisan of an unlimited extension and explicitly rejects the opinion that raw materials, if not stipulated, are included, because there are few raw materials indeed, that in one way or another cannot be applied to the fabrication of war tools. On the contrary, reason requires the application to sheaths, pistol cases, saddle belts, handles; he is less pleased with the insertion of nitre, next to gunpowder, and decisively rejects tobacco. However, reason and usage are often painfully clashing. Freight is not due, and a lien is lost. From contraband the author passes to blockade, asserting that it is not admissible to convey any goods, especially munitions and provisions, to places, cities, fortresses, ports, that are invested. As usual van Bynkershoek has strong opinions about the matter and advocates an absolute prohibition of any supply. He strenuously combats the opinion of Grotius that practice depends on or is at least connected with the expectation of a near surrender or end of the war, and that breach of blockade can be atoned by indemnification of the offended besieger. He rightly argues that the probability or proximity of the issue lies beyond the reach of the neutral and that damage to the besieger caused by breach of blockade far exceeds the limits of a mere indemnification, but only can be counterbalanced by wholesale confiscation, and perhaps corporeal


punishment. This is not only the verdict of sound reason but entirely corresponds with many conventions of the States-General with foreign powers, which extend the term contraband in this case to all goods whatsoever. Meanwhile their measures only concern places really invested and cannot be applied to accessible fortresses, unless they regard only subjects or are included in the means of retorsion. Attempts to supply blockaded ports, coasts, or estuaries are punished unconditionally by the confiscation of ships and cargo, not only when they are taken in the very act, but even when they are on the way to attempt it or are returning after having achieved it. Only a fully ascertained naval accident, a duly proved change of destination, or an unmolested return into the port of ultimate destination can extinguish the liability of being seized and confiscated by the Decree of the States-General of June 26, 1630. In interpreting these rules the author again proves a judicious but hard-hearted judge.

Closely connected with contraband and blockade is the question what are the consequences ensuing from the combination of jointly engaging in a legal and in an illegal trade in time of war? In this way Chapter XII introduces the reader into the most delicate doctrine of prize law in the three following chapters. Differences can exist between ship and cargo and also between different parts of the cargo. First the case of innocent neutral merchandise mingled with illicit or contraband goods in the same cargo is treated. Formerly, in that case, both ship and cargo were confiscated, but in 1667 the States-General explicitly forbade their admirals to confiscate innocent goods for the sole reason that they were combined with goods liable to forfeiture. According to van Bynkershoek it ought to be examined whether the combined shipload belongs to the same proprietor and whether the owner of licit goods has been aware of the illegal combination. Numerous conventions of the seventeenth century confirm this distinction and confine the confiscation to goods of real contraband without disturbing the ships on their way. Although people would be inclined to conclude that this separation is always simple and indisputable, the author appealing to reason, that suffers no generalizations, cannot omit making subtle distinctions. If the shipowner is at the same time the captain, and owner of the illicit goods or even acquainted with their loading, the ship also is forfeited; if on the contrary the shipowner is another one and does not know anything of the illicit cargo, his ship ought to be respected. Ignorance of the captain as to the nature of the cargo is clearly unthinkable. The same distinction is applicable to the combination of licit and illicit shipment independent of the shipowner; if they belong to the same proprietor, all is lost, if not, the owner of innocent goods, ignorant of the forbidden action, remains free from confiscation. His argument is sup-


ported by quotations from Roman fiscal law. The chapter ends with the curious fear that the general terms of existing treaties exclude the admission of the recommended distinction and thus offers a typical example of the difference, so often denied or overlooked, between positive law and what is deemed justice even by a first-rate authority.

The most common form of conjunction of enemy and neutral property by conveying neutral merchandise in enemy ships and inversely of enemy goods in neutral ships is dealt with in Chapters XIII and XIV. In the first case Grotius already had taught that, in consequence of the principle that by law of war only enemy property can be acquired, neutral property found in enemy vessels ought to be released. The common opinion that the cargo of an enemy ship in the main is to be considered as enemy property only prevails in case of its neutral status not being proved; an exception that had been observed in Holland for many centuries. Van Bynkershoek holds it perfectly lawful that a neutral avails himself of a ship, not of his own nation but of his friend, even if he were our enemy, to convey his merchandise without any regard to the state of war that is not his business. Nevertheless the harsh French rule, 'La robe de l'ennemi confisque celle de l'ami' boldly declares neutral property in enemy ships liable to forfeiture without indemnification and this is sanctioned by many treaties. True to his principle of the legitimacy of neutral trade with each of the belligerents, van Bynkershoek severely condemns the French rule and advocates the strict duty of exact separation of enemy ships which can be taken and confiscated and neutral cargo which must be respected and released. The same is prescribed by the famous Consolato del Mare of the fourteenth century; however, it requires the paying of freight, a condition highly disapproved of by van Bynkershoek because freight is only due when transportation has been completed and the port of destination reached. The heavy loss of time and expense sufficiently punishes the imprudence of the owner. With a sharp sally on the ignorance and presumption of incompetent critics, van Bynkershoek turns to the opposite case of enemy property found on board of a neutral ship. Here much the same prevails. The old French rule then also confiscated both ship and cargo, as is shown by a treaty with the Hanseatic Company of 1655. Grotius, following the Roman fiscal law against prevarication, confines the confiscation of the ship to cases of knowledge of the shipowner of the illicit character of the goods taken on board. This always occurs when he and the captain or shipper are identical, because the bill of lading indicates the goods and their owners; even when the shipowner and the captain are different persons, the liability of the former might be presumed. Yet van Bynkershoek does not insist on this point and contends that even if the shipper is perfectly aware of the presence of enemy goods,


he is not to be blamed, because it certainly is allowed to maintain a friendly intercourse with our friends, even if they are at war with each other, provided that we rigidly abstain from supplying them with contraband or conveying anything to blockaded places. Every transgression of this stringent principle is to be condemned severely. Obviously the argumentative force of this reasoning cannot fail to tell upon the reader and in the long run upon trading nations. It denotes the third phase of the evolution of the law of neutral trade that I have explained elsewhere.1 It is no wonder that van Bynkershoek somewhat reluctantly mentions the many treaties that marked a still further progress by exempting from confiscation even enemy goods under neutral flags, corresponding to the old Dutch slogan: 'Free ships, free goods.' He considers this as the finishing blow to the old French doctrine and as an exception that does not infringe the reasonable distinctions adduced by himself. Van Bynkershoek takes exception to the identification of a neutral ship with neutral territory and strongly asserts the right of visit of the belligerent to ascertain the veracity of the colours. Finally, he again rejects the claim to the cargo unless by mutual agreement the ship pursues its course and delivers the merchandise at its destination.

Chapter XV reverts to the Roman law of postliminium already met with, which restores persons and things that have by conquest or capture lost their existing legal conditions and are reduced to personal slavery or foreign dominion, to their former state by lawful recovery into the power of their own country or of its allies. Some people deem it sufficient that the rescuer happens to be a neutral. Van Bynkershoek, however, fully agrees with Grotius that a restoration to former conditions can only be admitted in case of return under the jurisdiction of the country itself or its allies, and he adds to the examples adduced by Grotius some claims of reason as he understands them. An ally, of course, restores what he has taken or liberated from the common enemy into the original condition; a neutral, on the contrary, never can change even by judicial sentence the legitimate consequences of the war, nor restore lawfully acquired property to the previous owners who once have been lawfully deprived of it; in this way he would obviously depart from his strict duty of non-interference. Aberrations by treaty do not prove the contrary, because it is very difficult to distinguish rules from exceptions and so reason alone decides what are the dictates of the law of nations. Meanwhile all this only prevails in case of a real war. Capture by pirates does not change any title at all according to the general usage of all civilized nations. By sheer consequence the author allows the auction, wholesale or retail, of captured goods in a neutral country

1 De Louter, Le Droit International Public Positif (1920), II, 393.


and disapproves treaty clauses forbidding it. He equally denounces Dutch resolutions forbidding on pain of heavy penalty the sale of prizes by privateers within their territory, and even mulcting eventual buyers. Here the extreme consequences of an apparently just principle not only invade the precincts of positive law but also transgress the precepts of one of the chief principles of the law of nations; neutrality excludes all direct or indirect support to any one of the belligerents.

The law of postliminium not only regards individual rights but also, as Grotius had observed, public bodies and whole nations. In this line of thought van Bynkershoek proceeds to an investigation whether this doctrine was fairly respected in the many vicissitudes of the long struggle for independence by the United Netherlands against the Spanish monarchy and in the subsequent wars with Louis XIV of France (Chapter XVI). This inquiry deals with Dutch history and is less interesting for foreigners. The result proves abundantly that here no general law of nations prevails, but national motives alone decide and lead to measures of a very different tendency. Here indeed public, not international, law is at stake. In the meantime the author's sharp intellect and unwavering consistency again draw attention. Taking at hand the then very actual topic of piracy, the author with a remarkable predilection for private law deems it chiefly interesting because capture by pirates does not transfer property, as does capture in war, and therefore has nothing to do with the law of postliminium (Chapter XVII). Pirates are all who without letters of reprisal, duly signed by a belligerent government, prey on booty by land or prizes on sea. Accordingly the States-General repeatedly promulgated heavy penalties against adventurers who, without such an official mandate, or irrespective of its conditions, pursued their trade of violence and plunder; the use of two mandates from different sovereigns equally indicates that no legal warfare, but disguised crime, is brought into play. The definition of pirates even includes those who avail themselves of double sea-letters, those who in a suspicious way approach too nearly a forbidden coast, and those who practise fraud in the matter of insurance or secretly cut through fishing-nets. More important than these exaggerations of an evil now almost exterminated is the opinion of the author that the so-called Barbary States of the Mediterranean in the seventeenth and eighteenth century, who sorely endangered trade and spread everywhere terror and rage, could not be treated as pirates, for their governments were organized and legally recognized by other Powers, as was proved by many treaties of commerce; consequently they could grant letters of reprisal as well as other governments, and so appeal to the laws of war. While the Dutch frankly admitted this, the Spaniards stubbornly denied it and so gave cause to many abuses. Van Bynkershoek expatiates on the


competent judge in the wide field of piracy and, a strong champion of regular jurisdiction by well-versed jurists, restrains the jurisdiction of the special prize judge within the narrowest limits. Yet the line of demarcation between piracy, justiciable by every government, and violations of duly delivered letters of reprisals, justiciable only by the sovereign who granted them, is often doubtful and full of difficulties. Capital punishment commonly attends all pirates, as is coldly added without comment.

The way from piracy to privateering is short indeed (Chapter XVIII-XX). It constitutes an important part of public law, not only because it requires the consent of public authority but rather as a cause of incessant conflicts and grievances. Already in Rome an ancient law of Solon was known commemorating a company of private persons to gain booty from the enemy. In modern times all nations have availed themselves of private support to harass the trade of the national enemy. Van Bynkershoek distinguishes ships fitted out by individuals but subsidized from public funds, called cruisers, and ships exclusively equipped by private individuals or companies in the hope of taking enemy prizes and making profits, called privateers. Quite erroneously Gentili puts them on the same level with pirates, for they are commissioned by public authority and partake at their own risk in a regular war.

The question whether the captains of these ships without the assent of their principals can enter into a contract to join hands and divide the profits is amply discussed and finally denounced. For the rest, a common capture is quite possible and assures to the captors a part of the profits in proportion to the part they took in overpowering the prizes. If some are only looking on or even pursuing without fighting, the real captor alone is entitled to the prize, as is made plausible by a Roman text about chasing wild animals. No contracts of mutual defence, very common in the eighteenth century, can weaken the exclusive right of the captor, because these arrangements intend to avert damage and not to make profits. Again the author contends that the exceptional jurisdiction in matters of privateering as of piracy entrusted to a special judge, as the Admiralty in many countries, should be restrained within the strictest limits as not affording sufficient warrant of knowledge and impartiality.

In Chapter XX van Bynkershoek disentangles a judicial puzzle that now has lost its actual meaning and rather belongs to the interpretation of national rather than of international law. Privateers to whom letters of reprisals are delivered at the same time pledge themselves to assail no other than enemy ships by procuring bail to a certain amount, but it is not always clear on whom � captain, shipowner, or warrantor � the liability is incumbent, nor whether it can exceed the


once fixed amount of the bail. A detailed analysis of the letter of the resolutions and a subtle distinction of the parties concerned draws the author to the conclusion that the bailors are only bound to the terms and conditions of the warrant they gave, that the captains in view of their probable pecuniary impotence are rarely to be recurred to, but that the shipowners are responsible, jointly and separately, to the full amount of the damage the privateer has wrought by exceeding his authority. A sentence of the Supreme Court (1603) that limited their liability to the real or valued price of the guilty ship with equipment is subjected to sharp censure. The same is to be said as to an illegal capture performed by a privateer not supplied with a duly drawn letter of reprisal. Before leaving the large field of privateering the author puts a question now fallen into total oblivion, whether a casual prize taken by a ship neither intended nor equipped for privateering may be kept and who then is entitled to the profits: the shipowners, who had let the ship, because the prize was made by their ship, their instruments and their mercenaries; the captain and crew, because they performed the capture and risked their lives; or the renter or freighter, because he not only hired the ship in order to freight the ship with its merchandise but also to defend it against possible assailants? The Dutch West India Company enacted fifty per cent. for her own benefit, but this was a single case and left aside all remaining distributions. Accordingly reason is the only guide. Here, the author, unfettered by any stringent precept, gives rein to his sharp intellect and piercing wit, arguing that neither the shipowner nor the freighter can claim the prize, but exclusively the captain and crew, who by their daring and tenacity secured the capture. Of course he appeals to Roman texts and analogies with other figures of positive law. In conclusion he rightly warns against confusion of privateering with the natural right of self-defence, which implies enjoyment of the profits that might be derived therefrom.

Insurance policies were unknown in Roman law; to-day they are the most numerous contracts next to sales and lease. So the question whether it be allowable to insure enemy property seems worth answering (Chapter XXI). Now as insurance is a form of taking upon oneself the risk to which another is exposed and so of supporting him in his design, it is evidently forbidden to insure ships and merchandise with enemy character, even if perchance some profit might ensue out of it to the insurer. Insurance is nothing indeed but a veiled means of assistance contrary to the general duty of damaging the enemy as much as possible. Moreover it frustrates the legitimate hope in profits for captors and privateers, because lawful insurers would vindicate their privileges. Accordingly the States-General in the long war with Spain repeatedly proclaimed heavy penalties against


offenders, erroneously confining the punishment to the future and forgetting that the liability to punishment had always existed and only the penalty had to be specified. Prohibitive measures of later years were perfectly justified but often went beyond their mark by including all national and neutral property in transit to or from an enemy country. Wherever such errors often pass from one resolution to another without any one perceiving the fault a general law would be very advisable forbidding once for all the insurance of all things liable to capture and confiscation, thus covering all kinds of subreption. Private contracts never can derogate from the law of war which prevails and nullifies partially or entirely illicit stipulations.

Is it allowed to enlist soldiers in a neutral country? � was a question much agitated in the age of Bynkershoek (Chapter XXII). It only regards civilians, never soldiers in actual service, for desertion is criminal as high treason. But leaving soldiers out of the question it cannot be deemed illicit to enter into foreign service nor to recruit willing individuals in countries which do not forbid their subjects to leave their homes and to change citizenship, as it was forbidden indeed by Moscovites, Chinese, and English, but generally allowed in every country 'that is no prison'. Then the author demonstrated that the Dutch Government of old never impeded it but by temporary and incidental exceptions. Enemy service of course is strictly forbidden, but if a subject once has lawfully taken service under a foreign government, it may happen that he afterwards is found fighting against his friends or even against his countrymen, as is illustrated by the memorable case of a Dutch prize taken in the war of 1674 by a French ship manned by eighty Dutchmen and only six Frenchmen! Such occurrences explain the prohibitive measures since the seventeenth century against the naval service on behalf of foreign powers, or of foreign service in general without the express consent of the government. Yet the author disapproves of these measures and maintains his opinion that liberty of leaving one's country implies that of enlisting.

The next two chapters (XXIII and XXIV) discuss a question which, although only dealing with the Dutch constitution, probably will awaken some interest in America. In the Republic of the United Netherlands can the power to make war be assigned to the provinces separately? In ancient times liberty in Holland was so deeply rooted that not only the people itself, but cities and boroughs carried on their wars on their own account. But as the power of feudal lords increased, they also presumed to possess the exclusive right to make war until the insurrection of the exasperated burgesses against the tyranny of the last count, the King of Spain, created the Union of Utrecht, 1579, immediately followed by the abjuration of the King in


1581. One would suppose that now the ancient liberties were restored to the original owners, but the Union of Utrecht is asserted to have checked them, and to have charged the Confederation and its official organs with the exclusive right of war. Van Bynkershoek grants that the refutation of this opinion is unpopular and deemed an attack on the very foundations of the Republic. He therefore invokes the patience of the reader, whose attention is courteously solicited by a quotation of the Ciceronian saying, 'Nothing is so incredible as not to become probable by reasoning'. On the firm ground of clause 9 of the Union reading 'There shall not be made any armistice, peace or war, nor imposed any tax or contribution for the benefit of the Union without the common advice and consent of the said provinces', Hugo Grotius and others assume that no single province can take arms but to suppress internal troubles. Yet van Bynkershoek limits this clause to general wars concerning the provinces altogether, but not including the solution of special quarrels of their own. He adduces some examples of peace and war, resolutions notwithstanding the opposition of some provinces, and quotes an official utterance of the States of Holland admitting that some clauses of the Union had become obsolete and were not observed. Moreover sovereignty belongs to the provinces and is by no means delegated to the Union, which only takes to heart common interests and for the rest respects the sovereignty of each provincial member. Each single province can carry on war at his own cost and risk as well for its own sake as for the common weal. The same may be said of war expenses and implies withdrawal from common expeditions and armaments. In short the Union created rather a Society than a Republic. The author fairly admits the dangers that may result from this state of things, but he prefers justice to utility, and only explains what law requires in his eyes. Nevertheless his strong republican and anti-dynastic feelings undoubtedly influenced his views. They strikingly disclose the fragility of the Constitution of the Republic. The controversy presents a curious analogy with the great struggle which in the nineteenth century shook the very foundations of the United States in theory and practice, the struggle between the original confederation in precarious imitation of the Dutch Republic and the solid Federal Union of 1781.

Reprisals were unknown in Rome and cannot even be called by a proper Latin word. Imperial laws, alleged in peace treaties or diplomatic documents, cannot mean but a general custom observed in modern times, an ironical metaphor indeed! Letters of marque or reprisal are given by sovereigns to their injured subjects in time of peace if in vain they have sought justice from the offender. Denial of justice alone can justify them and in some treaties it is stipulated that


the truth of the denial shall be ascertained and the limits of the reprisals exactly fixed. Within these restrictions the use of reprisals seems inevitable, as there is no court before which sovereign powers are justiciable. Although in former times letters of reprisal in France were sometimes granted by high courts, nowadays they can only be issued by supreme governments. In the ancient Netherlands, even sovereign cities and boroughs permitted reprisals, not only on account of denial of justice but even of an unjust sentence. In the republic, however, reprisals originating in common offences can only be enacted by the federal authority; if particular grievances of certain provinces are at stake, they can pursue their cause by reprisals as well and in the same way as by war!

The last chapter (XXV) adds to the main contents of the book some brief observations of less importance about various topics not treated in detail. Their worth is very different. Some concern episodes in Dutch history, e. g., the evacuation of a fortress in neutral territory after an equivocal order; the indemnification vainly requested by a single province from the union for the damage it had suffered in the war of 1672; the right of the provinces to conclude conventions, either mutual or with foreign sovereigns, as to their own special interests. The assertion that it is unlawful in time of war to occupy a place in neutral territory on behalf of the belligerent's own safety, as Grotius in cases of urgency and subject to many restrictions had sometimes excused, is of higher moment. However, van Bynkershoek excepts ships which according to the mysterious law of angary can be taken and made use of even if found in neutral territory; but he does not bring forward any reasons and only refers to usage, 'the force of cohesion of states and empires'. In other points private interests come into the foreground. By the occupancy of mortgaged lands the mortgages are only extinguished if the mortgagee is an enemy subject;

if a neutral, they remain intact, because the rights of neutrals are not infringed by war operations. A captured ship abandoned by or redeemed from the enemy remains liable to creditors who have freighted or insured the ship and now are only bound to pay the cost of salvage or redemption but retain their claims on ship and cargo. When the redemption has occurred after the ship has been brought into an enemy port, the case is different: the ship is lost and all previous claims are extinct. A safe-conduct only excludes hostilities and does not prevent lawsuits; besides it covers no other than enemy territory. Equally, an armistice prevents hostilities but by no means the reinforcement of positions or the supply of provisions. Finally, the author deems it equally unjust to enforce peace or war on sovereign powers, a monstrous intermeddling which no 'reason of state' can .ever justify, a wide divergence from present views, indeed!


The second book of the Quaestiones juris publici shows a more multicoloured image and deals with subjects of the most divergent kind and unequal importance. The first two chapters are closely connected with the history and constitution of the United Netherlands, but disclose a background of much wider interest. A nation cannot be called to account for a change of government in the interest of peace and tranquillity. After the insurrection of the Dutch against their hereditary sovereign, Philip II, King of Spain, followed by the conclusion of the Union of Utrecht in 1579, which for more than two centuries functioned as an inadequate constitution for the confederation of the seven northern provinces, and the solemn abjuration of the King by an Edict of July 26, 1581, his authority reverted ipso jure to the original sovereign provinces. The author amply demonstrates that until the day of the abjuration the rights and privileges of the Spanish King were duly respected, and thus his preceding decrees were perfectly valid and should be strictly obeyed. This principle is especially applied to a certain privilege that Philip II had bestowed on the city of Amsterdam, February 3, 1581, the legality of which was denied or questioned. Until then, official measures and private deeds rightly were performed in the name of the actual sovereign even if they were quite contrary to his orders and designs, as for example, the institution of the University of Leyden clearly proves. A similar question of rigid legality is treated in Chapter II. Citing a well-known sentence of the Roman jurist Ulpian, van Bynkershoek denies all responsibility for a counsel given in good faith even if the effect be disastrous, and severely censures the punishment of the ancient Arcadians who had advised their countrymen to assist the city of Thebes in her resistance against the overwhelming power of Alexander the Great, after the utter failure of the common struggle. According to decrees of the States-General such advisers not only are not liable to punishment but also may claim indemnities for the loss and damage they themselves have suffered. In the same line of thought he strongly condemns the prosecution of officials who executed the orders of their lawful sovereign, even if the successors to these sovereigns disapprove of, or object to, these same orders. He insists still more on the injustice of the prosecution of persons who have played a part in internal dissensions and after having lost their chance are maltreated by their adversaries. All this is illustrated by examples taken from ancient and national history. The most striking passage is the refutation of the opinion that a functionary can be called to account for the crimes committed by his sovereign, and should oppose them instead of paying obedience. Here he rightly draws the line of demarcation between public and private law, the first rejecting, the last admitting culpability. The seven following


chapters (III-IX) complete, so to say, the treatise De foro legatorum which many years before had founded the reputation of the author. He begins with the question who can legally send ambassadors? Forthwith the author answers that persons who enjoy the full rights of ambassadors can only be sent by sovereign nations to sovereign nations, either monarchies or republics. Persons who represent subjects or rebels, although more or less organized, are mere messengers and cannot be considered as ambassadors. The numerous examples of such messengers being incarcerated or put to death may be condemned from a moral or political point of view; they cannot be deemed contrary to the law of nations. Their privileges depend only on the consent of the sovereign to whom they are sent unless some previous agreement is granted them. In civil wars it is sometimes difficult indeed to discover the real sovereign for as long as the legal sovereign has not lost his power he alone is entitled to send ambassadors; but if it is once lost, actual possession by no means legally decides. Reality predominates in international law as a warrant against insoluble uncertainty and endless discussion. Yet this strict rule in no wise suspends the faculty of sending and receiving all kinds of messengers from provincial, municipal, or other dependent administrations and of bestowing on them similar privileges by favour or engagement.

The next chapter (IV) applies these principles to the Republic of the United Netherlands, and inquires whether the right of sending ambassadors belongs to the supreme government exclusively, or also to the several provinces separately. Loyal to his republican conviction he rejects the current comparison with the ancient Achaean Union and boldly maintains the sovereignty of the seven provinces of the Republic, which resigned no more than they had explicitly delegated to the federal government. Accordingly he justifies a special engagement of the States of Holland with the English Government at the peace of 1654 concerning the exclusion of the dynasty of Orange and in this way again exposes the insufficiency of a constitution that lacked all cohesion and spread the most dangerous germs of dissolution and ruin. Van Bynkershoek had no presentiment of the main cause of the approaching collapse of the republic, and totally lacked the deep insight which in the second half of the eighteenth century was so splendidly exhibited by The Federalist and the people of the United States.

As to requirements for the office of ambassador the author gives a rather brief comment (Chapter V). He judiciously observes that a just fear of offending the represented sovereign commonly precludes remarks as long as no injury is intended or presumed. An exile, for example, cannot be accepted in a country that has expelled him;


a fugitive criminal cannot return in the capacity of an ambassador, even if the respect due to his sovereign does preclude punishment. Previous inquiry of the feelings and inclinations of the government which has to receive the ambassador is therefore useful. Can women be ambassadors? Van Bynkershoek does not hesitate to answer in the affirmative and explains that neither reason nor usage excludes them, humorously adding that for fear of exaggeration he carefully abstains from praising their merits.

Pursuing his investigation of the law of legation the author will not dwell on the futile ceremonies connected with the reception of a new ambassador; they are different in various ages and countries and partially dependent on the consideration due to his sovereign and the rank of the ambassador. He rather fixes his attention on their task and duties (Chapter VI). Immediately after arrival an ambassador delivers his credentials and soon afterwards is admitted to the presence of the sovereign in an official audience, which in modern times has only a ceremonial character and leaves the matter of real importance to conferences with the ministers of the sovereign to whom they are accredited. In ancient Rome the audience belonged to the Senate and took place with great solemnity; a previous written exposition of their purpose was not needful, as it was in some Hellenic states. Nowadays the first audience is usually followed by the presentation of a memorial containing the purpose of the embassy. The place of the conferences is also a point of some interest, either the public offices of the residence or the hotel of the ambassador, which often is preferred to avoid questions of precedence that sometimes degenerate into quarrels. All this procedure, however, only concerns vain formalities that require neither knowledge nor exertion. Moreover, many peculiarities of former times have fallen into disuse. Even women are often present in receiving ambassadors, although in Rome this was considered as indecent, yea shameless. Nowadays ambassadors even pay visits to the wife and children of the sovereign to whom they are accredited, an abuse heavily censured and ridiculed by the stern author and described as the cause of undignified scenes and trifling jealousies.

Of course ambassadors are bound by their plenary powers, formerly called procurations (Chapter VII). They are of two kinds: the official one, public, brief, and usually uniform; the private one, called instruction, secret, explicit, and extremely different. So he raises the question, whether the actions of the ambassador in conformity with his plenary powers but contrary to his instructions are obligatory for his own government: a question indeed of the utmost importance. Van Bynkershoek answers Gentili and Grotius that they wrongly deem such an action at least binding, because otherwise the sovereign


of the residence would be deceived; he defends a contrary opinion and tries to demonstrate that in the case of a special public plenary power, detailed in distinct points, the execution by the ambassador is binding indeed; but if it be general, as usually it is, the special instruction, although secret, really restrains the competence of the,ambassador, and in consequence only his proceedings in conformity with the latter are obligatory for his government. Happily it is rare that a public commission enters into details, still rarer that the one contradicts the other, rarest of all that an ambassador acts contrary to his instructions. Nevertheless, in modern times, the transactions of the ambassador are more and more suspended and submitted to the decision of the sovereign government without which they are not judged obligatory. In Rome the contrary rule prevailed, but customs are changing everywhere, yet withholding sanction to steps of the ambassador in conformity with his instructions is dishonest; if he neglected or transgressed them the same is perfectly fair.

Presents between sovereigns have always been frequent (Chapter VIII) and such tokens of mutual esteem and friendship at the moment their representatives are leaving the court where they were in function are also widespread and generally considered as courteous and quite innocuous. Even the Romans, fierce though they were, did not forbid them, and so deeply rooted is the custom, that history relates many examples of resentment and pretensions in case of omission. However, the Dutch States-General, by a Decree of August 1651, forbade on pain of heavy penalty all their ambassadors, including the inferior ranks and intermediary agents, to accept gifts, and afterwards scarcely mitigated this interdict, provided that the gifts were duly communicated and, if required, were ceded to the government. This however, was an exception in Holland, but constituted the rule in Venice. Honours and dignities were also declined, even when bestowed on the son of an ambassador. For the rest such presents are personal and may be kept by those who received them, but gifts to a sovereign government are not to be considered as the property of the temporary retainers of it.

The, last chapter about the law of legation (IX) touches the then uncertain classification of ambassadors. As sovereigns stand on a foot of equality, so it is the same with their representatives in foreign countries. Unfortunately the relative rank of sovereigns themselves is a topic of ancient and insoluble dissension, whereas birth, territory, resources, power, title, and so on, alternatively are chosen as standard. As there is no superior power nor a competent arbiter, the divergent opinions of writers have no authority and are of little or no use. Hence the foolish rivalry of the French and Spanish ambassadors at foreign courts in the seventeenth century, as incidents in The Hague


in 1657, still worse in London in 1661, alarmingly proved an abundant cause of disputes and misunderstandings even between sovereign governments themselves. The same absurdities occurred between minor powers; yea even the movables appertaining to the equipment of an ambassador sometimes pretended to privileges, as the author himself witnessed in the case of an official carriage in 1697. Are not the boots of an ambassador of a superior sovereign entitled to more honour than a lesser sovereign himself? This ironical sally concludes a somewhat prolix argument intending to prove with the aid of analogies in private law, that a sovereign even of inferior rank, who in a foreign country is on a par with an ambassador of a first-rate power, still enjoys precedence as to him.

Chapter X contains the most important part of the second book, perhaps of the entire work: the binding force of international agreements. As civil law protects private understandings so treaties between sovereign powers are protected by good faith. Faith is the basis of society, if faith fails, all international intercourse, yea international law itself, utterly collapses. These fundamentals introduce one of the most vigorous remonstrances as to the sanctity of obligations once entered into and never to be repudiated or dissolved with reference to utility or public interest. Theoretically the maxim has been admitted, but innumerable exceptions invalidated and demolished it. Parthians and Carthaginians were stigmatized for faithlessness by the Romans, and Seneca reproaches all mankind the same. Machiavelli, 'the master of vice', boldly proclaimed breach of faith, if efficient, the summit of political wisdom. Indignantly, van Bynkershoek refutes this nefarious doctrine, even if faith seems inexpedient or even detrimental to the actual interests of a nation. In the long run faith will prove the best policy. Damage to the republic can be restored by the energy and exertions of her citizens, but faith, as the soul, once lost never returns. More veiled but less sincere is the well-known device of 'rebus sic stantibus', as long as the state of things endures, a pretext for incredible abuses as appears by a meritorious essay of a young Dutch jurist, who adduces four exceptions, three of which are mere subtleties and the last nothing but the many-headed monster called 'ratio status', reason of state, that has caused so much mischief. Its subversive effect is chastised energetically. Nevertheless, the author admits a few exceptions tacitly included in every convention as in case of the contracting party violating the agreement by aggression instead of defence against a common enemy, or when the fulfilment exceeds his power. At all events, fraud is absolutely excluded and it is better to neglect a righteous reason of withdrawing than to open the door for deceit and evasion. Finally, he glories in the scrupulousness of Dutch authorities in the observance of treaties.


The following chapters are less interesting and chiefly deal with internal public law. In Chapter XI the author explains that there is no solid reason to exclude foreigners who inhabit a country and are familiar with its language and manners from functions and dignities provided that no fear of interference or ascendancy justifies their exclusion. This fear, the origin of which is found in Dutch history, haunted them for many centuries and led to extremities. Since that reason has passed away, foreigners should be admitted and often afford excellent assistance. Repugnance, however, survives and scarcely accepts reciprocity with the exception of the higher dignities and of many local offices by virtue of municipal privileges. A similar aspect is afforded by the transmissibility of authority and jurisdiction (Chapter XII). Abdication of sovereign power was forbidden by Roman law but it sanctioned a certain delegation of jurisdiction. In the United Netherlands neither the one nor the other was permitted and the right of appointing judges was strictly limited to the sovereign power as the fountain of justice, no one else, not even the supreme court, can exercise the prerogatives of the sovereign nor present the same warrants for knowledge and impartiality. Apparently the privileges of municipalities and corporations made an exception, in reality, however, they exercise no delegated but original powers bestowed on them by former sovereigns and stubbornly maintained for many centuries. In general, laws and morals alike prevent every delegation of judicial power. Nevertheless, it happens that doubt arises whether it is not preferable to allow delegation to able jurists instead of confining it to judges who are no more fit for their task than an ass for making music!

Thirdly, van Bynkershoek in Chapter XIII explains that individual members of a public corporation are not responsible for the debit and credit of the community, either in civil or in criminal law. This simple truth, familiar to modern times, is fully expounded and the disregard thereof, which appears in the form of reprisals or in the collection of taxes and quotas, is severely censured. Such exceptions can only result from the supreme dominion (dominium eminens) of the sovereign or from a mutual agreement of the members of the corporation. In this way the Union of Utrecht had assigned the right of direct raising of the provincial quotas or contributions to the supreme government, which had often exercised it during the Eighty Years' War, but after the year 1639 was thwarted in its purpose to the great prejudice of the common weal. Here again the author touches one of the main causes of the internal weakness and the slow but steady decline of the illustrious republic which once had aroused the admiration of the world by her fierce struggle for religious and political liberty, and now by the excess of independent spirit of her members, was inclined to


inevitable downfall. Chapter XIV treats of a question of no significance for international law: whether it is permitted to construct or restore fortifications without the consent of the sovereign. In Rome, town walls and fortresses could not be built except with the permission of the Emperor or his substitute, the Governor of the province, but there was some doubt as to the restoration of the same. Applying these measures to his own country van Bynkershoek infers from local examples that permission of the former sovereign power or its delegated substitute was needful both for the construction and the renewal of fortifications, because such undertakings encroached on the private rights of property and could endanger public safety; the ancient rights of feudal lords being absorbed by the concentration of public authority in the supreme government. The historical episodes he alludes to are of a mere national character. In close connexion with this peculiar point, but of somewhat wider tendency, is the inquiry of the next chapter (XV) into the doctrine of expropriation, which the author of course derives from the doctrine of eminent domain in the terminology of Grotius. With Thomasius, the German philosopher and moralist, van Bynkershoek prefers the word imperium to dominium, because, as Seneca had already observed, its real source is the same supreme power that possesses the right of war and peace, of concluding treaties, and so on. Accordingly no one denies it and opinions differ only as to the limits of the practice. Pufendorf does admit it only in case of necessity, Grotius is satisfied with public utility, and van Bynkershoek rightly asserts that the distinction lacks precision and has little or no worth. At all events expropriation should be exercised with great care and scrupulous regard for the interests of particulars concerned. For the rest, lines are not to be drawn. Roads, waterways, fortifications, even in time of perfect peace, offer the most common examples, but by no means exhaust the purposes that justify it. A doubtful case of deprivation of an established public right in Zealand is explained but not solved. For the sake of embellishment or recreation, expropriation is not admissible, and therefore the clause in the institution of the University of Leyden that expressly allowed it is disapproved. Anyhow, the proprietors should be fully indemnified by the public treasury in conformity with the decision of the sovereign or his magistrate, often even by judicial settlement. Such indemnities are also due for war purposes, provided that the proprietors are not found fault with. General calamities, however, as often occur in war-time, which imply no permanent losses, do not justify indemnities, but should be borne with equanimity by the victims.

Two solid and well-founded chapters deal with criminal law and show the character of the high magistrate in the full light. The first


(XVI) contains an elaborate plea, illustrated by historical examples, against the abuse of promising remittance of punishment for giving information about culprits. Judges are bound to condemn or to absolve in cases submitted to them; all that lies beyond these functions is beyond their competence. The dispensing power, including that of commutation and amnesty, belongs exclusively to the sovereign or to those to whom he has delegated it expressly. This was recognized as well in ancient Rome as in the Netherlands, where in former days the counts, afterwards the Provincial States, alone could grant these favours and put an end to the arbitrary and frivolous custom of dispensation by the courts. Law alone can justify exceptions and supersede the privilege of the supreme power. Without authority by law all immunities are Invalid and of no consequence. Much the same is to be said about the penalty of banishment (Chapter XVII), a very irrational one indeed, as it sends criminals from one country to another and easily degenerates in a mutual casting back of baneful residues. However, as it is a general custom, it should be well understood that banishing from more than the legal jurisdiction is unlawful and even ridiculous, as it exceeds the power of the judge and incites condemned criminals to scorn his sentences. Therefore the imperial criminal code of 1570 reserved the pain of banishment outside the frontier of the realm to the supreme power, whose exclusive competence cannot reasonably be questioned. If, then, subordinate authorities or judicial courts inflict this penalty, it can only be explained by special or general privileges, granted by the sovereign who disposes of his prerogative as he likes, and who sometimes allows the pronouncement of banishment for heavy crimes, e. g., like felony or heresy, and also against special offenders, as thieves and tramps.

The three succeeding chapters (XVIII-XX) continue the investigation of some national laws and institutions of the United Netherlands, and now plunge into the critical religious quarrels that so often shook the republic to her very foundations. They require here no elaborate comment. The author quotes Ulpian to convince his readers that religious matters are not outside the range of state interference, whatever in theory be the true relation of the two chief and often concurrent powers that dominate society, the State and the Church. At least in establishing a new religious order the influence of the State cannot be avoided and its supremacy is just as well legitimate as expedient. The Union of Utrecht of January 23, 1579 emphatically declared every province sovereign in matters of religion and rigidly forbade any interference in ecclesiastical policy. Protestantism, however, was the almost common creed and some provinces concluded a closer union to maintain it by all means. Hence many attempts to make the Protestant State Church general for all and put it


under the protection of the States-General. They failed during the long war of independence notwithstanding the Synod of Dordrecht of 1618-19 had formulated the confession of faith and condemned heretics. Even in 1651 a decree by the States-General Convocated in extraordinary session, settled a mutual promise to maintain Protestantism, but left to each province the mode of fulfilling her promise without any sanction of federal character. Thence a fierce struggle drawn on by a decree of the States of Holland, March 1663, which on the request of the Church made some slight changes in the official prayers. Many provinces eagerly protested, and everywhere the clergy was shaken by outbursts of clerical intolerance and sheer narrow-mindedness. It is almost incredible that such trifles could move a nation during a period of grave international troubles;

but it should not be forgotten that political issues of wider importance lay at the bottom of the strife.

The last link in this chain of thought touches on the liberty of conscience that constitutes the worldwide fame of the Dutch. It is true that in spite of all conflicts between provincial and federal sovereignty the system of an official State Church did not preclude individual liberty of conviction. Yet Roman Catholic clergymen had no admission and Jesuits, if detected, were mulcted. Although the Peace of M�nster (Westphalia) 1648 afforded free access to the subjects of the contracting parties into their respective territories, the prohibitive measures, as far as concerns clergymen, were promptly renewed and even sharpened to prevent an increasing influx of Catholic priests allured by the recent peace treaty. Van Bynkershoek defends these measures with clever intellect and sparkling wit against the reproach of rupture of treaty obligations. These clauses concern none but political equality and by no means prevent the repulsion of criminals and other undesirable persons who by the laws of the country are kept aloof. However, the States of Holland have bereft themselves of this argument pitifully. Jews were always welcome in the Netherlands, but repulsed by the Spanish Government. Thus, as some Dutch Jews were not allowed admittance in Spain, the States-General protested and claimed their admission on account of the said treaty; after all they carried their point, but henceforth in their turn scarcely could refuse the admission of Spanish Christian ministers on the ground that national laws prevented their entrance. Setting aside for the moment his conception of the real relation between national and international law I only lay stress upon the sagacity and undaunted frankness of the author.

Chapter XXI carries one back to international law'and puts the now almost ludicrous but then important question of ceremonies at sea between ships under different colours. Van Bynkershoek, of course,


refers to his previous dissertation on the dominion of the sea and recalls his distinction between the marginal sea of a country, which belongs to its territory, and the open or high sea not subordinate to any sovereign at all. In the first, extending as far as the range of cannon, the orders of the sovereign should be respected and obeyed;

in the latter no orders whatever prevail, unless justified by a local and temporary possession in fact. Custom and courtesy alone prescribe some mutual ceremonies that never can be exacted. Some examples of non-observation of rules prevailing in territorial seas are related and disapproved. On the contrary the bold and wilful claims to dominion of the high seas are ridiculed, and the presumption of some monarchs, as if they were sovereigns and might demand recognition by arbitrary tokens of inferiority, is positively rejected. They appear at sea in the maritime salute by striking the sails and dipping the flag. The author of course admits that exceptions can be made by mutual agreement, and so tells at length of the long contest between the Dutch and the English in the second half of the seventeenth century and the peace treaties of 1654, 1662, and 1667, assuring to British ships of war the right of salute by Dutch sailors on the so-called British Seas surrounding the isles of Great Britain. The presumed violation of this clause in a single and very questionable case in 1671 afforded the British king a welcome pretext for war, which two years later ended by a new peace treaty reaffirming the said privilege but more exactly defining its limits and conditions. The damages in this way incurred by ships which disregard the established rules are to be borne by themselves and cannot, as in case of war or piracy, be brought on account of the community. The acute interpretation of the pertinent provisions and witty remarks of the offended jurist, scarcely conceal the fact that the republic was reluctantly forced to partly give up her favourite device.

Chapter XXII stands apart and sums up some stray hints about taxes and imposts, especially in the Dutch republic. Van Bynkershoek distinguishes taxes (tributa) as the contributions from property personally assigned and imposts (vectigalia) as the raising of contributions from imports and exports or articles of consumption. He then demonstrates that taxation in a republic does not claim less sacrifice than in a monarchy and often deeply penetrates into daily and social life. The method of raising taxes is slightly touched on, immunities are considered; the right of taxation by inferior authorities can only derive from the consent of the sovereign; also the fairness is pleaded of an indemnification of the publican, if by measures of the government his income happens to diminish. These annotations are rather superficial and bear a purely local character.

The two following chapters, XXIII-XXIV, plunge again into the intricate problems of the constitution of the republic of the United


Netherlands and the means of meeting her deficiencies. The same topic was first mentioned in the two penultimate chapters of Book I, where the right of war and reprisals of the single provinces is advocated, and more explicitly in Chapters IV, XIII, XVIII of Book II, where the pretended sovereignty of the provinces is described in matters of diplomacy, finance, and religion. Yet here we meet the problem in its deepest sense: what to do when the sovereign provinces disagree in matters of common interest? The answer cannot be indifferent to the American reader, because it reminds him of the original defect of his own confederation that in due time was remedied by the constitution of 1787, prepared by the eminent writers of The Federalist. Van Bynkershoek emphasizes the sovereignty of the single provinces which created the Union and strongly maintained their complete independence inasmuch as they did not expressly resign it by delegating certain functions to the organs of the Confederation. In dissensions between the provinces about powers not thus resigned, the States-General had no competence at all and could only try to solve them by way of voluntary arbitration or friendly mediation. Differences thereabout could only be settled by the ordinary judge, an arbiter chosen in common, or mutual understanding. It is proved by many examples that the several provinces fiercely withstood every attempt of the States-General to decide disputes. Yet the Union of Utrecht knew some exceptions. In cases of common weal, especially armistice, war and peace, contributions, which required the general assent of all the provinces, dissensions should be referred and submitted to the actual stadtholders. The same way ought to be followed in disputes concerning the interpretation of the Union. However, the terms were not clear and seemed even contradictory; even worse, they left the question how to provide in the possible absence of stadtholders quite unanswered. Soon after the final victory and recognition of independence by the Treaty of M�nster in 1648 the stadtholdership in some of the more important provinces was abolished, and the gap in the Union was not filled up. The inevitable consequence was an increasing loosening of the common ties and an ever bolder claim of unlimited independence by the single provinces, even in matters of common defence and united administration. All this is demonstrated at length by the text of the clauses of the Union, which in the original Dutch language show with alarming clearness the inefficiency of a political system which, born in dreadful emergency, survived in another age requiring quite different institutions and totally frustrating the original purpose, until the fatal collapse opened the eyes too late for recovery. The brief sketch of van Bynkershoek presents a striking picture of the disheartening story of the eighteenth century so well known and so deeply regretted by every true Dutchman.


The last chapter (XXV) presents to the reader a strange collection of diversified ideas. First, it tells that no change of government can ever discharge a nation from previous debts or obligations, as Grotius already had taught, nor from engagements it once freely accepted. Next follows a brief notice about the application of the penalty of deportation by the different provincial courts. Then the author contends that even an illegal government should be respected and obeyed by its subjects, except if acting obviously against fixed rules. A brief remark about the incapacity of foreigners in judging internal relations precedes a recommendation of rotation and casting lots in the arrangement of precedence in international meetings instead of chronological order of arrival. Then he reproaches Zouche of wrongly generalizing the stern English rule that forbade an English subject to change nationality without the special consent of his sovereign. He rather deems it perfectly lawful to abandon domicile and allegiance, provided that all obligations due to the government be strictly fulfilled. If a treaty happens to abolish special charges at the expense of subordinate corporations they should be fully indemnified. The reception of a foreign sovereign in the Dutch republic ought to proceed from the organs of the Confederation, not of her members. Titles of nobility, granted by foreign sovereigns, are harmless and acceptable, but never can afford privileges restrained to the indigenous nobility. Finally, damage and plunder caused by internal troubles are always to be indemnified in regard to officials in power, in regard to individuals only, if it be proved that authorities lacked due diligence and conditionally may be held responsible.

Looking back on this concise, yet complete survey of the Quaestiones juris publici, the first impression is that the author has really intended and pretty well succeeded in comprehending the whole of international law at that time. His preceding dissertations were monographs called forth by accidents but quite insufficient to give a clear idea of the extent and importance of the law of nations in general. Hence the desire of completing what was lacking, as it appears by the Chapters III-IX of Book II, which add to the law of legation all that was omitted in De foro legatorum; and specially by the last chapters of the two books, where he compiles all the 'tumultuous observations', as he calls them, that were not to be found in the preceding chapters. Thus the treatise exhibits all the knowledge and notions about the branch of law that now fully occupied the author's mind. At the same time he disdains the important demarcation between international and national public law and freely intermingles questions of real international relations with those which only concern the constitution of his own country and are ruled by national laws


and customs. The result is a medley of materials not always easy to disentangle.

Considering both this endeavour for completeness and the junction of two contiguous but different branches of law, one is struck by the well-ordered arrangement of the compiled materials. The fundamental problem, the binding force of international treaties, takes but one chapter (Book II, Chapter X). The law of war, as far as it regards persons, also fills no more than one chapter (Book I, Chapter III); it scarcely mentions prisoners of war except for the ways of putting an end to their existence. This exiguity of questions that now keep the world in suspense clearly exposes the meagre condition of the law of nations a century after Grotius had laid its foundations. However, it is partially due to the simplicity of mind and the rigidity of thought of the author himself. War and trade were the principal forms of international relations. Mutual understandings were rare and usually related to transitory interests of the contracting parties. Arrangement of common interests by collective treaties was unknown. The rest was made up by national laws or institutions and by uncertain or variable customs. Thus the door was wide open for subjective views, and international law was indissolubly intertwined with the current notions of public morality. These notions vacillated between two opposite poles: rationalism and humanity. Grotius had given a splendid example of a happy combination of both. Van Bynkershoek decisively inclines to rationalism and is not moved by the scruples of sentiment. Consequently his argumentation excels by simplicity. In war all violence and ruses are permitted, perfidy only excepted. There is no difference between belligerents and private citizens, still less between combatants and non-combatants: all equally may be killed or enslaved. As to enemy property, whether public or private, movable or immovable, corporeal or incorporeal, at land or at sea, all may be forfeited, only immovables, not being transmissible, revert to their owners by means of the law of postliminium which is not applicable to movables. Occupation is identified with conquest and affords the same unlimited power of dominion. Either war or peace; there is no room for intermediate conditions. The exception as to perfidy is no mitigation of the stern law of war but only justified as an encroachment on the state of peace in war; by faith, as far as it is given, the enemy ceases to be an enemy (Book I, Chapter I). Such enormities simplify the matter indeed and strongly contribute to the reduction of its content.

More elaborated and of more lasting interest is the doctrine of neutrality. Here van Bynkershoek outvies Grotius, who only incidentally had mentioned neutrals and scarcely taken notice of them. Van Bynkershoek rightly separates neutrals from allies and clearly


perceives the difficulty arising on one side out of their undeniable right of entertaining normal relations with the belligerents, who are their friends, and on the other side out of the strict duty of abstaining from all measures and actions that directly or indirectly might influence hostilities, especially by transport of contraband or by non-observance of blockade. He carefully draws the line that separates these institutions and seriously warns against confusion and transgression of their relative precepts. Yet his keenest interest is roused by the exact moment of the transfer of property by war operations. Capture and recapture of enemy and neutral property, separately or jointly, by cruisers or privateers, were the order of the day in the seventeenth and eighteenth centuries. The intricate puzzles proceeding from them are analysed and solved with great sagacity and in truly judicial spirit. They have contributed much to the fame of the author, especially in England, where they generally coincided with British customs. His thorough juridical training made him peculiarly fitted to make sharp distinctions and logical deductions.

The chapters on neutrality seem to me to form the crown of the whole work. Here he quite rightly asserts that neutrals have nothing to do with the justice or causes of the war, and are simply bound to acknowledge the fact and to submit to its consequences. On the contrary, the judgement of the justice of the cause, denied to neutrals, is assigned to allies in two cases that seem not to be sufficiently well founded. Notwithstanding all due regard for his great merits van Bynkershoek did not yet recognize neutrality as a separate legal condition, at least equally justified as the state of war and therefore the source of independent rights and duties. As to him neutrals rather were to be tolerated and excused than to be respected. Hubner, who puts neutrality in the foreground and claims for it the strictest deference, had not yet written his fundamental work, De la saisie des b�timents neutres (1759).

Van Bynkershoek was an eminent jurist but neither a philosopher nor a moralist. His juridicial propensity strongly inclined to positive law and his profound knowledge of Roman and Dutch civil law, of course, moved him to turn to these abundant sources of jurisprudence in order to fill up the alarming voids which the law of nations still presented. By proceeding in this way reason was his trustworthy guide, logical deduction his tried instrument. Many years before he had proclaimed reason and usage as the only true sources of international law. Nevertheless, his meaning about their relative value was left in the background. Now in his larger work he plainly assigns the first place to reason. Repeatedly he calls reason the soul or the mistress of the law of nations, but at the same time positively asserts or tacitly supposes that the dictates of reason coincide with usage or continuous


custom, the first of all tyrants, the best teacher and principal standard of the law of nations (Book I, Chapters VI, X, Book II, Chapter VII). When, nevertheless, disharmony cannot be denied, van Bynkershoek parts from Grotius (Book I, Chapter XV) and hands the palm to reason, unhesitatingly and boldly proclaiming its verdicts the real law of nations, despite their deviations from usage, from legal prescriptions, or even from the terms of treaties (Book I, Chapters VIII, XII, XIII). So the exact relation of the two sources remains in obscurity. It seems to me that reason, which in his former essays submitted to the control of usage, is loosened in the Quaestiones from these ties and predominates, if not as an, autocrat, at least as the superior power. Grotius on the contrary, who deduced the bulk of his ideas from what he called the law of nature, was more modest in his conclusions, and willingly subdued them to the test of continuous usage. Inasmuch as reason, although commonly proclaimed always the same, is elsewhere charged with inconstancy and aberrations � as it is proved by the scornfully detested argument of the reason of state (Book I, Chapter XXIV) � the conclusion cannot be avoided that reason with Bynkershoek is nothing else than his own clear intellect. In this way the author effaces the distinction between law and justice and proclaims international law, what, according to his own views, it ought to be.

The reader of the preceding pages will easily recall examples of this method. Two examples may suffice here. 1. Capture is as just a title to property as contract or inheritance. 2. Capture is complete as soon as the prize has reached the lines or ports of the captor or his allies. If recaptured before that moment, the original title survives, and the pretended prize reverts to its owners; if recaptured afterwards, property once lost changes again and falls to the recaptor (Book I, Chapter IV). This logical argument is to be acknowledged as law in defiance of contradictory laws, decrees, or customs; neutrals, though alien to the war, dare not interfere with it, neither directly nor indirectly, and therefore cannot restore prizes, lawfully lost to their former proprietors, even by judicial sentence, nor allow their subjects to insure enemy property, liable to capture, because insurance implies an indirect assistance to the insured, but at the same time van Bynkershoek disapproves prohibitive measures against the public sale of prizes on neutral territory, alleging that neutral territory, just as neutral trade, is out of the reach of war, but forgetting that the opportunity of realizing prizes on neutral territory sometimes affords a precious aid to one of the belligerents (Book I, Chapter XV). Here even logic fails, and besides the door is opened for indirect interference in the course of hostilities that can cause grave mischief, unless perchance national laws and customs prevent it by forbidding the sale altogether. This last passage is particularly fit to warn against


individual assertions even of the highest authorities unless they are confirmed by usage, in other words by the tacit assent of nations.

Characteristic of the exclusively juridical turn of mind of the author is also the curious predilection he exhibits for details of time and place, which occupy a large part in his explanations, and, though scientifically justified, sometimes seem to overshadow questions of much greater importance and make them subordinate to juridical subtleties: e. g., as to the transfer of property (Book I, Chapters IV, V) or of sovereignty (Book II, Chapters I, II). Highly meritorious is his scrupulous respect for engagements once entered into (Book II, Chapter X), and his deep aversion of all deceit and subreption. They display at the same time the perspicacity and the highmindedness of the illustrious magistrate (Book I, Chapter IX). More questionable is his unveiled distrust of all jurisdiction not entrusted to qualified jurists (Book II, Chapters XII, XVI), the more so because he frequently complains of their insufficiency (Book II, Chapter XII). A predilection for Roman law pervading all his writings and often distorting his own judgement or suggesting strange analogies (Book II, Chapter XIX) does not prevent him from distinguishing clearly between public and private law, as, for instance, his comparison of ambassadors with mandatories clearly proves.

My contention that van Bynkershoek, although a great jurist, was no philosopher is based on the deep impression made by his complete works. As a single instance I may emphasize perhaps the beginning of Book II, Chapter X, where he more or less ridicules questions as to the origin of obedience to law and authority, of property and the manner of acquiring it, of obligation by contract, and so on, and declares himself perfectly satisfied with positive law as it really is and needs no justification at the risk of a total collapse of all justice!

No more does van Bynkershoek resemble a moralist, and he was fully conscious of it. He more than once declares justice and humanity to be two different things, not only to be distinguished but without any connexion. This is not only obvious in his exposition of the law of war, as has been observed before, but it reveals itself everywhere. Loss of life, liberty, and property in war knows no limits; declaration of war is deemed superfluous as not required by reason; indult is scarcely tolerated; neutral rights, although firmly vindicated, are restrained within the narrowest limits of legal distinctions. If room permitted it, much more could be added. The same exclusive love of justice as reason had taught him, characterizes his digressions in the field of national public law. His conception of the original sovereignty of the single provinces, which by their union founded the Republic of the United Netherlands, moved him to interpret the Union of Utrecht (1679) theoretically and practically in a manner that dislocates the


commonwealth and forbodes national ruin. In short, ever and everywhere, van Bynkershoek proves to be an eminent jurist far excelling colleagues and opponents, but inaccessible for other motives and perhaps even therefore the greater in his own sphere.

Van Bynkershoek has written much more than the dissertations relating to international law reproduced in this series and commented upon in their introductions. His earlier studies were devoted to private law and his age owed him gratitude for his interpretation of Roman and Dutch law, which at that time dominated jurisprudence as well as jurisdiction. His first- essays concerned Roman law and cohered with the three dissertations that preceded his promotion. They were soon followed by some monographs, among which De lege Rhodia de jactu liber singularis and his first treatise on the law of nations De dominio maris are to be noticed (1703). A professor of Groningen University who had ventured to criticize some of his theses was vehemently confuted by a sharp pamphlet Contentio literaria (1701), which was included in Opera minora. After becoming a member of the judiciary he published the first part of an extensive work styled, Observationum juris Romani libri quatuor (1710), rather a series of separate studies than a solid system, followed in 1733 by four new books quatuor prioribus additi, about which the same may be said. They earned much admiration from contemporaries and assured him the name of an excellent jurist, but in the next century they were heavily censured by the champions of the German historical school and nowadays have lost much of their former reputation. In advanced age he devoted his leisure and energies chiefly to the study of international law, and published successively the monograph De foro legatorum (1721) and the larger work preceded by this introduction (1737). Meanwhile he compiled a series of brief annotations in Opera minora, and in a more extensive treatise, edited after his death, Quaestionum juris privati libri quatuor (1744), the late-fruit of his first love. His Opera omnia, published first in Geneva by Vicat, 1761, and again with greater carefulness in Leyden in two folio volumes (Luchtmans, 1767), and partially translated into Dutch, French, and English, contain a rich treasure of jurisprudence that with good reason has gained for ever the admiration and gratitude of mankind.1

1 An accurate survey of the many writings and various translations may be found in the very best monograph, dedicated to his memory, by Mr. 0. W. Star Numan, Cornelis van Bynkershoek, zijn leven en zijne geschriften (His life and his writings), published as a doctoral dissertation in Leyden, 1869. This biography is a thorough and conscientious work that surely surpasses all that is said before or elsewhere about van Bynkershoek. Unhappily it was unknown to the late and sorely missed Professor Ernest Nys, whose brief and not always accurate notice about van Bynkershoek, written October 1910, appeared in the Revue de Droit international (1922, No. 1), and so came under my eyes after the completion of this introduction, and too late for comment. [A Naples edition of Opera omnia, not described by Star Numan, appeared in 1766 in large quarto with title reading: 'Cornelii van Bynkershoek Jurisconsulti Famigeratissimi, Senatus Supremi Hollandiae, Zeiandise & Frisiae olim Praesidis ( Opera Omnia, in quibus Multa ex Romano Veteri, nec non ex Gentium & Publico Universali, etiamque


Thus the image of van Bynkershoek, a strong man in body and mind stands forth as a lasting monument of natural gifts and acquired merits. To be sure, like any mortal man, he possessed the shadows of his qualities. Infallibility is no human quality. We admire the large mind and the firm hand by which he managed the recalcitrant materials widely spread over an almost untrodden field, where beacons were lacking and positive law was only forwarded by fragmentary legislation of separate nations and uncertain or unsteady customs. The admiration he awakened and long afterwards enjoyed, especially in Anglo-Saxon countries, though sometimes exaggerated, can be easily understood and appreciated. He had taken notice of the ideas of his great predecessors and was well-versed in Roman law and in the history and existing institutions of his own country. Yet his horizon was limited, and the abundant application of national legislation and jurisdiction, although excusable, is not quite justifiable. Nevertheless, his own keen intellect enabled him to focus his learning, if not in a compact system, at least in a vast bundle of fragments, which devolved on posterity and paved the way for progress.

His marked individuality disdained compromise and made him fond of controversies and crossing arms with adversaries, without regard for government measures or judicial sentences. This partially explains his many sallies on Grotius, whose deeper and broader mind fostered higher ideals. Yet van Bynkershoek, following in his steps, may be called a great man, whose vast knowledge and undaunted spirit have powerfully contributed to the development of a science still in bondage and painfully struggling on to independence. It is a duty of posterity to honour his memory and publicly to acknowledge the great services rendered by his personification of a bygone age on the threshold of a new temple of Themis.

J. DE LOUTER.

August 3, 1922.

Hollandi� cum Publico turn Private Jure Capita elegantissime doctissimeque tractantur &c. In Quatuor Tomos distributa, ac variis Indicibus locupletata. Tomus Primus Observationum Juris Romani Libros VIII. continens, in quo pr�fati fuere clar. viri Jo: Gottl. Heineccius, et B. Philippus Vicat. Editio quinta A quamplurimis mendis perpolita. Neapoli MDCCLXVI. Ex Typographia Josephi de Dominicis Sumtibus Heredum Thomae Alphani Superiorum Pennissu, ac Privilegio.' A copy of this edition is possessed by the Catholic University of America, Washington, D.C. � EDITOR.]


[The Title-Page of the Edition of 1737]

CORNELIUS VAN BYNKERSHOEK

JURISCONSULT AND PRESIDING JUDGE

ON

QUESTIONS OF PUBLIC LAW TWO BOOKS

of which the First is ON WAR the Second ON MISCELLANEOUS SUBJECTS

http://cdn-3.constitution.org/bynk/bynk1.jpg

LEYDEN

At the House of JOHANNES VAN KERCKHEM 1737

With the Privilege of the Estates of Holland and West Friesland


TO THE DISTINGUISHED AND REVERED WILLIAM VAN CITTERS, JURIST, REPEATEDLY MAGISTRATE OF THE CITY OF MIDDELBURG, DIRECTOR OF THE EAST-INDIA COMPANY FOR ZEALAND, &c., &c., &c.

CORNELIUS VAN BYNKERSHOEK sends greetings.

MANY reasons have induced me to dedicate this book of Questions of Public Law to your eminence. If one were to seek for an illustrious name, none is more distinguished than yours. Your family, already famous in lineage, you have honoured with meritorious deeds that win praise, whether counsel is sought for the common weal of the United Provinces or for our own province of Zealand. You are devoted to the welfare of both, but since the position which you hold has detained you in the services of the province, it is particularly her welfare which is to you the supreme law; and so far has she engaged your thought that for many years she has enjoyed the benefits of all your efforts. Therefore I may say, if I am a worthy prophet, that the welfare of our Zealand is wholly linked with yours, that she will be safe while you survive, that she has no fears so long as she may employ your services in times of danger, and no one envies but those inferior in rank. You have aided your fellow citizens to such an extent with your devotion that your city's wealth in public as in private channels has grown, commerce once nearly dead has revived, and houses once falling and deserted are rising higher and more beautiful. Not long ago it was difficult to find men to purchase or rent them, now it is difficult to supply the demand. Who knows you, knows that you administer public business as a good householder manages his private affairs, with generosity and integrity. But I shall not catalogue your virtues lest I be overwhelmed with the abundance, and become a burden to your modesty. There every man may find something to admire, no one what he could equal. The equability of your temperament and your self-restraint, apparent in all your deeds, I would not pass over in silence, because this is a rare quality in Zealand. There are some who think that the Mattiaci mentioned by Tacitus in the twenty-ninth chapter of his Germany were the ancestors of the Zealanders, and you recall that Tacitus said of them that they were 'like the Batavians except that they are more belligerent because of the position and climate of their land'. In this respect you are not a Mattiacus, or perhaps the Mattiaci were not Zealanders. Accordingly I could not find a more worthy or more dignified name to place at the beginning of my book,


and I have used it, not to coax good fortune by the dedication nor to win authority for my opinions, for I have no ulterior purposes, and I know full well that a work should stand or fall by its own merits;

but I wished to announce myself publicly as among those who do deference to your estimable qualities.

And if I were to seek a friend, there is none to whom I could give preference. For from the day when you first honoured me with your friendship you have given so many proofs of it that I should be ungrateful unless I publicly acknowledged it. Permit me to say that our friendship has now lasted very many years without a stain, based not upon that conventional politeness that is satisfied with charming phrases, but which often fails when put to the test; it has been honest and without pretence. It is characteristic of the real candid Zealander to act frankly and not to seek to conceal his affections when once truly bestowed. I have known men who wished to be considered prudent who, however, hide their real sentiments, and please their friends with mere phrases, but, when friendship calls for a reckoning, they are found wanting. You first consider with care whether candidates for your friendship are worthy, and if they are and so long as they are, you exert yourself to promote their welfare, while you do not permit yourself to be distracted by mere idlers: I speak as one who knows, for ever since I became your friend you have never ceased to favour me and mine in all my wishes. I have tried to reciprocate in some small measure, for it is but little that I can bring to one so exalted.

If, finally, I were to seek a judge competent to evaluate the opinions expressed here, you could readily pronounce judgement. As knowledge of the Roman law was once considered almost an inheritance in the family of the Scaevolas, so the knowledge of the law of nations has passed from father to son in yours. And by this I do not mean mere theoretical knowledge, but knowledge applied in the public service. Hence from your family have come the magistrates, the ambassadors, the presidents of governments, and the many others born for public office. To this inherited glory you have added, using your every endeavour, and laying out your goods for the acquisition of those things that might make you a more learned and better administrator of the commonwealth. You therefore will be the best judge as to whether I have here offered anything of use to the public service, and I shall feel sufficiently rewarded if I have satisfied you and a few who are like you. But I shall cease, lest I seem, contrary to my custom, to praise you in your presence. Farewell, and may many years remain to you for the public weal and the joy of your friends. THE HAGUE, HOLLAND, April 28, 1737.


TO THE READER

WHEN four years ago I published the four later books of the Observations juris Romani, I indicated that I had then given enough attention to Roman law, and that it was my purpose, if I should extend my labours, to pass from those subjects which are usually discussed from the chairs of instructors to the subjects that are treated in the governmental and judicial chambers. Hence I promised to devote the rest of my days to public or constitutional law. Not that it is my intention to produce complete commentaries on these subjects, for I should then be compelled to repeat many things that have been said before, but it is my purpose rather to select and discuss some striking problems which might provide pleasure as well as profit. Here is now a part of my pledge, for I have begun with public law, in two books of Questions of Public Law, of which the first deals with the laws of war, the second with miscellaneous questions. And since there are two branches of public law, one treating of the regulations that obtain between nations, the source of which is reason, the other of the constitution of states, my work embraces both divisions. Moreover, it has been my purpose to give especial attention to the questions of most frequent use, and my method in deciding controversies has been to appeal first and foremost to sound reason. Then I have added treaties of nations, edicts and decrees of our own States-General, and also, not infrequently, cited precedents from the history of our own and of other nations, since public law draws its support partly from precedents, and so with the aid of these things I have tried to argue each case with due reserve.

Though the questions I have treated here may have interest in any state, they are all closely connected with the affairs of the Belgic Confederation, for I have not taken up any problem that did not have reference to our government, nor on which I have not cited all the relevant laws of our state from the very beginnings up to our own times. I have added my own opinion upon each problem, thinking that, especially in a free republic, this liberty was permissible. But I have thought wise to omit it in questions near our own day, lest I expose myself to ill will or seem to take up swords against the authority of any one still living, if I happened to express a dissenting view. I have taken even greater care to withhold my opinions on questions still in court, for I was unwilling to define by my opinion matters which have not yet been defined, lest my position might be prejudicial to some one. This reserve will be noticed here and there in my discussion of the right of eminent domain, as well as elsewhere.


As regards litigation of years past, it is permissible to think what we choose and to say what we think, and no man could deny this liberty to any one. I know that I have not always agreed in questions of public law with the opinions of the States-General of the Belgic Confederation nor with the Estates of the individual provinces, and this fact I have at times made known; but in matters which are denned from reason alone, that-does not always seem just to Titius which seems so to Maevius; here every one has his own judgement, since every one yields to his own reason. Even the very States-General themselves have not always employed one and the same opinion, now deciding this way, now reversing themselves, and in these matters every one has the liberty to choose the course which seems necessary to be followed. Although it would be advantageous to all states if no such changes of opinion occurred in cases of public law, and if such changes did not stir the wrath of foreign governments, no state is or has ever been so blessed that this unvarying consistency could be obtained. Indeed, our constitution is such that the members which form the body of the States-General are constantly changing, and who will wonder that with the change in membership opinions also change? Even our supreme court, which pronounces its judgements as if divinely inspired, though it is bound by oath to observe the laws, nevertheless frequently alters its decisions on one and the same purely legal question, even when there has been no change in the membership;

for it may be that the members who were not so wise before, have gained in wisdom, or a previous decision may be forgotten in a question which is properly defended on both sides, or different laws may seem of paramount importance at different times, or there may be other considerations that I need not mention.

And even if the government were always consistent, it would be permissible to differ from her, not indeed in matters of fact, since by our constitution the government is there the final authority, but we may differ when, as frequently in this work, we appeal to reason alone to define questions of equity and right and to establish the principles of justice. In such questions the weight of no man's opinion is valid, if reason refuses assent. Grotius and Pufendorf and the commentators who have produced all the arguments cannot compel me to adopt a view contrary to reason, and on questions of the law of nations reason usually offers arguments on both sides. Hence I have generally abstained from heaping up citations of authorities with which I could otherwise have overburdened this work. To be sure I have often called Grotius and Pufendorf to witness, but only because they hold the place of honour in this subject, and lead a troop of followers; the authorities of the lesser nations I have usually passed over in silence. Yet even from these two men I have differed when it seemed to me


that I had reason with me in doing so. Reason I have constantly consulted, for unless she carries the day nothing should in the realm of public law.

Nevertheless I would not refuse to cite authorities in order to add weight to reason, but I should prefer to draw upon usage long continued in the maldng of treaties between nations, and upon widely established precedents, rather than upon the testimony of ancient poets and orators, whether Greek or Latin, for these are indeed but miserable teachers of public law. Citations from these are of more use in displaying erudition than in mustering support for public law. I have more respect for the opinion of those who have associated with men and had experience in affairs of state, and have grown wise from practical administration; such men usually draw up treaties according to the customs of nations. Nor would I slavishly bow before their authority without reason, but when they accord with reason I would yield to them rather than to poets and orators. Ancient precedents and treaties, to be found in Greek and Roman histories, have indeed some value, but as the habits and customs of nations change, so does the law of nations. To be sure, reason remains immutable, but when reason argues in behalf of both sides so that it is doubtful where the preponderating weight lies, we must appeal to custom for a decision. There were formerly many practices which now no longer exist, as for instance in the ratification of treaties that had been made by delegated envoys of the government. That is the reason why I have preferred to use precedents and treaties of recent date rather than old ones. Furthermore, since I desired to have my work of immediate practical value, I have drawn more fully upon modern than upon former instances. However, I have not discussed all the treaties of all nations, for that would require too great care, but from the instances which I have adduced it will not be difficult to understand what is the consensus of opinion among nations on the problems that I have discussed. Such were my principles in undertaking the work; the public may judge of their correctness.

I have added my authorities because I did not wish to go forth without my bondsmen, and I have also cited the precise passage, though I have reduced the references to foot-notes to save the reader's time. I have not thought it necessary to give references for facts generally known or readily accessible. I have used Aitzema's Historien and his Herstelde Leeuw in the quarto edition and have cited it by volume and page. The ordinary edition of edicts and decrees called Het Groot Placaat-boek, I have cited simply as Plac.1, and the numbers that follow refer to volume, book, title, part, and paragraph. However, the volumes are not consistently paragraphed, parts and titles being

1 [In this translation the original titles, not the abbreviated Latin ones, are used.]


sometimes omitted, and in the fifth book, and in the appendix of the second, the subdivisions were so incomplete that I have cited these by pages. But those who are accustomed to the use of books will comprehend what the numbers mean that are cited with these various tomes, even if like me they fail to understand why publishers vary so much in making their subdivisions. It would indeed have been more convenient to cite the page of each volume, but even if I had omitted repetitions and superfluities and cited the specific edition of each work by page there would be no agreement in the pagination of the various editions.

The edicts of the Estates of Holland, Placaten van Holland, Amsterdam, 1645, is cited as Plac. Holl.

De Sententien van den Hoogen en Provincialen Rade, Rotterdam, 1662, I have called Decisiones mixtae or Decis. mixt.

Het Repertorium van de Placaten berustende ter Griffie van den Hove van Holland is referred to as Repert. Cur. Holl.

The edicts of the States-General are called Repert. Ordd. Gener.

De Papegaay of het Formulier-boek is called Formul, or Formularium.

De Hollandsche Consultation en Advisen is called Consil. Holl. or Consil. H.

Het Nederlandsch Advis-boek is called Consil. Belg. or Consil. S.

Other titles and abbreviations will be readily understood. I have used some edicts and decrees and indeed some other documents which were not yet published in books, and in such cases I was compelled simply to refer to the official records or to my own collections. I have used De Resolutien van Consideratie ten tyde van de Wit in the folio edition of 1672, and the page numbers are accordingly of that edition. Some of the clauses of the edicts and decrees I did not translate into Latin but left in the original Dutch, for the reason that the meaning was not entirely clear, and hence I preferred to leave them to the intelligence of the reader rather than try to determine the meaning by a version of my own. This will suffice by way of preface. Farewell.


CONSPECTUS OF CHAPTERS BOOK I

[The numbers in brackets refer to pages of this translation.] CHAPTER PAGE

1. The definition of war and an explanation of the definition ... 1 [15]

2. Wars may be lawful without a formal declaration . . . . 5 [18]

3. On the status of war as applying to the belligerents . . . 17 [26]

4. How and when ownership is established in captured property and in ships 26 [32]

5. On the recapture of movable property and especially of ships . . 35 [38]

6. On the limits of possession of immovables taken in war ... 44 [44]

7. Whether the enemy's actions and credits may properly be confiscated at

the outbreak of war . . . . . . . . . 51 [49]

8. Whether it is lawful to pursue or attack an enemy in a neutral port or

territory ........... 58 [54]

9. How war affects neutrals. ........ 67 [60]

10. About contraband .......... 75 [66]

11. Whether it is lawful to convey goods to besieged cities, camps, and ports . 83 [72]

12. Shall non-contraband goods be condemned because of contraband? . 92 [78]

13. On goods of neutrals found in enemies' vessels . . . . 98 [82]

14. Concerning enemy goods found in neutral ships. .... 104 [86]

15. Whether captured goods revert by the right of postliminy when brought

into the territory of a neutral . . . . . . .109 [90]

16. Miscellaneous questions regarding the right of postliminy . . 115 [94]

17. Regarding pirates, and the status of the Barbary peoples of Africa . 121 [98]

18. Regarding privateers . . . . . . . . .130 [104]

19. On the responsibility of owners of privateers ..... 139 [110]

20. To whom does a prize belong that has been taken by a vessel not regularly

commissioned as a privateer? ....... 146 [115]

21. Whether it is lawful to insure enemy's property. .... 152 [120]

22. Whether it is lawful to enlist soldiers in a neutral country . . . 158 [124]

23. Whether the several provinces of the United Netherlands have the power

to make war .......... 163 [127]

24. On letters of reprisal . . . . . . . . . 171 [133]

25. Miscellaneous questions ......... 178 [138]

BOOK II

1. The government of the Counts in the United Provinces did not terminate

till July 26, 1581 ......... 187 [145]

2. No one is responsible to the State for counsel given in good faith, nor can

any one be justly punished for obeying the commands of the sovereign 196 [151]

3. On the right of legation . ........ 202 [156]

4. Whether individual States of the United Provinces can send or receive

ambassadors .......... 208 [160]


5. Who may be sent as ambassadors ....... 217 [166]

6. The business and procedure of ambassadors at public audiences, formerly

and at present .......... 222 [170]

7. Whether an act of an ambassador is valid when contrary to his secret

instructions .......... 228 [174]

8. Whether ambassadors may receive gifts; and related subjects . . 235 [179]

9. Precedence among ambassadors, and between an inferior prince who is

present in person and the ambassador of a superior prince who is absent 244 [185]

10. On the observance of public agreements, and whether there are any tacit

exceptions ........... 251 [190]

11. Whether foreigners should be kept from offices of state . . . 259 [196]

12. Whether magisterial and judicial power can be delegated . . . 267 [201]

13. Whether individual members can be sued for, and be made to pay, the

debt of a corporation ......... 275 [207]

14. Whether cities may build, repair, extend and fortify their walls without

the consent of the sovereign. ....... 283 [213]

15. On eminent domain and the payment for property appropriated under

the right of eminent domain ....... 290 [218]

16. As the sovereign alone can condone crime, so it seems that he alone in the State's behalf can promise immunity from prosecution for criminal offences ........... 299 [225]

17. Judges cannot designate a place of exile beyond the territory under their

own jurisdiction, except when authorized by the sovereign . . 307 [230]

18. Whether the several provinces possess sovereign rights in religious affairs

now as formerly .......... 315 [236]

19. The Estates of Holland on March 13,1663, acted within their full rights in authorizing in the churches a new form of prayer in behalf of themselves and other officials ........ 325 [243]

20. The meaning of Section 4 of the Peace of Munster, dated January 30,1648 332 [248]

21. To whose ships respect must be shown, and on what occasion. Whether damage sustained on account of failure to show respect should be averaged as in the case of jettison . ...... 339 [253]

22. Miscellaneous questions about taxes, revenues, and tax collectors . . 347 [259]

23. Whether the States-General have the right to interfere in the affairs of the

several provinces. ......... 357 [265]

24. Regarding methods of reconciling provinces when they disagree . . 364 [270]

25. Miscellaneous questions of minor importance ..... 372 [276]


PRIVILEGE

THE States of Holland and West Friesland proclaim that: Whereas, we have been informed by Johannes van Kerckhem, citizen and bookseller in the city of Leyden, that he has printed from time to time the following works of Cornelius van Bynkershoek, President of the Supreme Court:

Observationum Juris Romani Libri Octo, Opuscula Varii Argumenti, and Opera Minora, comprising in all four volumes in quarto, and that he is actually engaged in printing Quaestiones Juris Publici of the same, also in quarto, and whereas some profit-seeking persons have not scrupled to copy outside of the country, to the great injury of the petitioner, the aforesaid four works already printed, and being apprehensive that they might copy Quaestiones Juris Publici, now in the press, on its appearance also, and import it into this country, therefore he, the petitioner, has appealed to us, humbly requesting that we grant him, the petitioner, his heirs or assigns, the sole concession and privilege to print in this country, for a period of fifteen years, all the aforesaid listed works of Cornelius van Bynkershoek, either entirely or in part, and in such formats and languages as he, the petitioner, may consider advisable; further respectfully petitioning that it might please us expressly to forbid the dissemination and sale of the aforesaid works of President Cornelius van Bynkershoek already printed or still to be printed outside of the country, in whatever languages and formats, whether entirely or in part, as might be, and to decree a fine of three thousand guilders against those who might print, import, barter or sell any of the aforesaid works, entirely or in part, in whatever languages or formats, in this country, and, in addition, the confiscation of all the copies imported, sold, and bartered, as often as any one may be apprehended on this account: THEREFORE, we, having considered the case and the aforesaid petition, and being favourably inclined to the request of the petitioner, by our true knowledge, sovereign power, and authority, have conceded, accorded, and granted, and do hereby concede, accord, and grant the petitioner for the next succeeding period of fifteen years, the exclusive right to print, have printed, to distribute and sell in the manner requested by the petitioner and herein previously stated, within our aforesaid country, the said works of the aforenamed President van Bynkershoek; forbidding therefore each and every one, wholly or in part to print, pirate, or have pirated, trade or sell said works, or, if pirated elsewhere, to bring them into our country, to distribute, trade, or sell them, on pain of confiscation of all the copies pirated, brought in, traded, or sold, and payment, in addition, of a fine of three thousand guilders, a third thereof to go to the officer who makes the seizure, a third to the poor people of the place where the case arises, and the remaining third to the petitioner, and this as often as they shall be apprehended, all this with the understanding that we, being willing to favour the petitioner with this our concession, only to prevent injury to him as a result of pirating the aforesaid works, by no means intend thereby to authorize or assume responsibility for the contents thereof and, much less, to confer thereon increased credit, esteem, or repute, under our protection and patronage, but, on the contrary, in case the petitioner should use his influence improperly in any respect, in this matter, he shall be held to answer therefor, at his (own) charge;

to this end expressly requiring that he shall be willing, under the provisions hereof, to exhibit this our concession for the said works, that he shall make no abbreviated or abridged reference thereto, but, on the contrary, that he shall be required for this purpose to print this concession or have it printed in its entirety, and without any omission, and that he be required to furnish to the library of the University at Leyden a copy of the aforesaid works, on heavy paper, bound, and in good condition, within a period of six weeks after the petitioner shall have begun to publish these works, on penalty of payment by the petitioner of six hundred guilders, after the expiration of the aforesaid six weeks, on behalf of the Dutch poor people of the place where the petitioner resides, and on the further penalty of being deprived ipso facto of the benefit of this our concession, that the petitioner also, although he has delivered a copy to our aforesaid library when this concession takes effect; if he should wish, during the period of this concession, to reprint the said works, with any observations, notes, additions, alterations, corrections, or other features, however designated, or even in another format, shall be required again to furnish to the aforesaid library, within the same period, another copy of the same works, in the same condition as above, under fine and penalty as aforesaid. And in order that the petitioner may properly enjoy this our permission and concession, we charge each and every one whom it may concern to allow the petitioner to enjoy and use the contents hereof quietly, peacefully, and completely, without any hindrance, provided


12 Privilege

that the petitioner shall be required to give notice as soon as possible to the booksellers of this country by circular letters or advertisement in the newspapers that he has obtained this our concession. Done at The Hague, under our great seal, hereto affixed, on the sixteenth of February, in the year of our Lord and Saviour, One Thousand Seven Hundred and Thirty-Seven.

J: H: V:WASSENAER

By Order of the States

WILLEM BUYS.

Besides this concession, there have been delivered to the petitioner, in the form of an authenticated excerpt, for his guidance, Their High and Mighty Lords' Resolutions of June 28, 1715, and of April 30, 1728.


[1] QUESTIONS OF PUBLIC LAW

BY

CORNELIUS VAN BYNKERSHOEK JURISCONSULT AND PRESIDING JUDGE

BOOK I WAR


CHAPTER I

THE DEFINITION OF WAR AND AN EXPLANATION OF THE DEFINITION

WHEN Cicero said that there are 'two kinds of contests, one by means of discussion, the other by means offeree', he had reference in the latter case to 'war'. However, he did not in this way intend to define war, as Grotius thought, for such a definition would be incomplete. Equally imperfect is the definition of Alberico Gentili, who says that war is 'a just contest carried on by the state's armed forces'. Although the former of these two definitions is approved by Grotius, both will appear to be incomplete from the one which I add, a definition which, if I mistake not, embraces all the conditions of war:

'War is a contest of independent persons carried on by force or fraud for the sake of asserting their rights.' Let us now examine this in detail.

Our definition specifies 'independent persons'. This applies of course to nations, but also to individuals not living in an organized state; for both may be independent. Furthermore though the war be between individuals it cannot be called a private war, since the term 'private' has no meaning except with reference to the term 'public', and this does not apply where there is no state. This war of individuals can no longer exist when the individuals form a state. So, for instance, if I extort from my debtor the ten pieces he owes me I incur the penalty of the 'Julian law against private force', since the extortion of debts through illegal means constitutes 'force' as defined by law quite as much as the infliction of wounds.

The definition also specifies 'for the sake of asserting their rights'. In other words, the only correct ground for war is the defence or recovery of one's own. However, I do not hold this to be the sole object of war. It is the accepted view that a nation which injures another is, together with its realm, forfeited to the injured nation;

and if the injured nation so desires it may make the confiscation the object of the war. Certainly the war does not and ought not to end" upon the reparation of the injury suffered. And since the whole state, including persons as well as things, belongs to the sovereign, we seize in war the person of the hostile sovereign together with the whole commonwealth, just as in the case of a debt we seize our debtor and all his property. To be sure, we do not exact from a debtor more than he owes us; but in war all social obligations are in a measure severed. We attempt therefore to subjugate the enemy and all that he has by seizing all the power that the sovereign has over the state, that

On Duties, I. xi [34].

On the Law of War and Peace, 1. i. 2. 1. On the Law of War, I. ii.

Digest, XLVm.vii.7.


is to say, by exercising complete dominion over all persons and all things contained in that state. Indeed war is by its very nature so general that it cannot be waged within set limits. By defining war as a 'contest' I did not mean to express merely the act of fighting, but also the state of things obtaining during war, for the definition of the thing implies the inherent conditions. Thus, in defining slavery we have in mind not only the act by which free men are subjected to the control of others but also the state and condition of servitude. Grotius has also made this distinction in the definition of war which he adopted from Cicero.

In defining war as a contest 'by force', I did not say 'lawful force'; for in my opinion every force is lawful in war. So true is this that we may destroy an enemy though he be unarmed, and for this purpose we may employ poison, an assassin, or incendiary bombs, though he is not provided with such things: in short everything is legitimate against an enemy. I know that Grotius is opposed to the use of poison, and lays down various distinctions regarding the employment of assassins. I know that Zouche, who seldom reaches a decision, is in doubt upon this question also. But if we follow reason, who is the teacher of the law of nations, we must grant that everything is lawful against enemies as such. We make war because we think that our enemy, by the injury done us, has merited the destruction of himself and his people. As this is the object of our welfare, does it matter what means we employ to accomplish it? We do not call a judge unjust for ordering a convicted criminal to be put to death by the executioner's sword, though the victim be bound and unarmed;

for if we should unbind and arm him we should no longer have the punishment of a crime, but a trial of courage and good fortune. Indeed, if you hold that you may employ only such means of compulsion as your enemy uses, you must also hold that his cause is as good as yours despite the fact that you have decided to vanquish him because of the injuries he has done you. With respect to you, your enemy bears the relation of a condemned criminal, as you do with respect to him, while in the eyes of a third person who is a friend of both, the cause of both is equally good and you are both equally in the right.

In my definition I was not even willing to omit 'fraud', since it is immaterial whether we employ strategy or courage against the enemy. Opinions differ, to be sure, and Grotius offers a great number of authorities and precedents on both sides. I would permit every kind of deceit with the sole exception of perfidy, and I make this exception not because anything is illegitimate against an enemy, but because when an engagement has been made the enemy ceases to be an enemy as far as regards the engagement. And indeed, since the reason that

On the Law of War and Peace, III. iv. 15. Ibid., iv. 18. De Jure Feciali, II. x. 5 and 6.

On the Law of War and Peace, III. i. 6 ff.


justifies war justifies every method of destroying the enemy, I find but one way of explaining why so many authorities and precedents oppose the employment of deceit. This opposition is clearly due to the fact that writers, as well as military leaders, improperly confuse justice, which is the subject of our present inquiry, with generosity, a sentiment that often appears in warfare. Justice is indispensable in war, while generosity is wholly voluntary. The former permits the destruction of the enemy by whatsoever means, the latter grants to the enemy whatever we should like to claim for ourselves in our own misfortune, and it desires that wars be waged according to the rules of the duel which was formerly admissible in some states. Considerations of justice permit us to have larger forces than the enemy, and to use firearms and other devices that differ from theirs, while generosity forbids this. Justice permits every manner of deceit except perfidy, as I have said; generosity does not permit it even, apparently, when the enemy employs it; for cunning is a work of fear. The words of St. Augustine concern justice, indeed, justice is the subject under discussion: 'When a righteous war is undertaken it is immaterial to the claims of justice whether we contend with open force or with strategy.' But I attribute to generosity the deed of the Roman consuls when they wrote to King Pyrrhus: 'It is not our intention to contend with you by means of bribery, head money or fraud.' Many nations have often preferred generosity to justice, or vice versa; even the Romans have varied in their preference. Accordingly, if you explain the authorities and precedents in the manner I have just indicated, we need not disagree concerning the means to be used in warfare. We need only remember that justice may always be insisted upon, while generosity may not.'

Questions on the Old and. New Testaments, x.

Aulus Gellius, III. viii [8].


CHAPTER II

WARS MAY BE LAWFUL WITHOUT A FORMAL DECLARATION

WRITERS on the law of nations have laid down various elements that are essential in a lawful war, and among these is the requirement that a war should be openly declared either by a special proclamation or by sending a herald; and this opinion accords with the practices of the modern nations of Europe. Indeed I grant that before we resort to force we must demand satisfaction for the injuries sustained or complained of. However, the question here at issue is whether we may apply force without a declaration of war as soon as reparation has been demanded and refused. Alberico Gentili thinks this un- 6 lawful, for he holds that there must be a public renunciation of friendship so that the war be not secretly commenced. Grotius agrees with me that the law of nature does not require a declaration of war, and he quotes authorities that have held wars lawful without a declaration. However, in accordance with the law of nations he would have a 'formal protest by which it may appear that in no other way can we obtain our property or our debt'. Then he adds concerning public declarations: these are required, 'that it might be clearly known that the war was undertaken not as a venture of private persons but by the will of the two peoples or their heads'. Pufendorf holds the same view regarding the law of nations, and Huber uses the same argument as Grotius. There are some, however, who add certain exceptions, notably the above-mentioned Gentili and Zouche. Hertius moreover, while admitting that the declaration of war has become part and parcel of the practices of nations, thinks that those practices are not obligatory and that the nations which disregard them are merely to be excluded from the group which we call the most civilized.

Christian Thomasius, a man of sound judgement, rightly, in my opinion, considers a declaration of war as an act of mere humanity, which no one can be compelled to perform; and he properly asks what difference there is, or has ever been, between a war that has and one that has not been declared, and whether there is a different law for the one and for the other. He therefore disagrees with Grotius, who, quoting Dio Chrysostom to the effect 'that wars are generally entered without previous declaration', believes that this condition merely concerns the law of nature. Thomasius, on the contrary, considers that this practice of not declaring war constitutes a part of the law

On the Law of War, II. i.

On the Law of War and Peace, III. iii. 6. 1.

Ibid., 2. Ibid., iii. 11.

De Jure Naturae et Gentium, VIII. vi. 9 and 15. De Jure Civi-tatis. III. iv. 4.

27.

On the Law of War, II. ii. De Jure Fec.,

II. x. 1. Adnot. ad Pufendarfium, VIII. vi. 9. On Huber's, De Jure Civilatis, n. 27.

On the Law of WarandPeace,

III. iii. 6. 1.


of nations, and he presently adds that the question is worthy of fuller discussion in a special dissertation.

Although I cannot give a special study to the question, I wish to devote the present chapter to it. My opinion, then, is that a declaration is not demanded by any exigency of reason, that while it is a thing which may properly be done, it cannot be required as a matter of right. War may begin by a declaration, but it may also begin by mutual hostilities. This the States-General seemed to imply by their edict of January 17, 1665,1 which held that it was possible to lay claim to the ships taken by the English because they had been taken before a declaration of war, and 'before the Dutch had commenced hostilities'. War may also begin properly upon the denial of a demand, which in my opinion does not differ from actual force. I grant to the fullest extent that we ought first to demand what is due to us, but not that the demand must be accompanied with threats of war or with an actual declaration. What Grotius says about interpellatio applies only to a demand, but not what he says presently about a public declaration. Nevertheless it was from his and others' unreasonable prejudices that a subject otherwise clear began to become obscure. It should indeed have been clear that, where, as in the case of different sovereigns, no courts have jurisdiction, each one may properly seize the property which another has wrongly taken and refused to restore. If this be true, every one is at liberty to make or to withhold the declaration, otherwise a declaration is a certain solemn form that could only have been introduced by an agreement between nations � a thing which does not exist.

However, nations and princes endowed with some pride are not generally willing to wage war without a previous declaration, for they wish by an open attack to render victory more honourable and glorious. But here I must repeat the distinction between generosity and justice which I laid down in the preceding chapter. The latter permits the use of force without a declaration of war, the former considers everything in a nobler manner, deems it far from glorious to overcome an unarmed and unprepared enemy, and considers it base to attack those who may have come to us in reliance upon public amity and to despoil them when such amity has suddenly been broken through no fault of theirs. Hence Polybius highly praises the custom of declaring war which was peculiar to the Achaeans and the Romans, as indeed he praises these peoples because they avoided fraud and deceit in warfare; but in both instances the praise was meted out for their generosity. Speaking of the Achaeans, Polybius adds that they even were accustomed to appoint a place for battle. Indeed we read that certain Counts of Holland in ancient times not only issued

1 Hei Grout Placaat-Baek, III. 1. 7. 1.

XIII. i [3]. XIII. i [3].


a declaration, when about to make war, but even appointed a time and a place for battle. This appointment of time and place Grotius admits is not necessary, and yet he insists upon the declaration of war as an essential. If we ask for the difference between the two we shall not find any other than that it is not now customary in Europe to appoint time and place. Hence it is apparent that Grotius wrote his books On the Law of War and Peace, not concerning the actual law of nations, but rather concerning the practices that hold in most of the European nations; and yet Grotius himself teaches us that customs do not constitute the law of nations. But as in this case, so also in others he has frequently deduced the law of nations from customs, and consequently when customs differ he has hardly dared to decide the question.

Moreover, because of the fact mentioned by Polybius, that it was an honour peculiar to the Achaeans and Romans that they made declarations of war, we sufficiently understand that Dio Chrysostom spoke truly in saying that wars are generally waged without a previous declaration, so that we agree not only with the law of nations but also with the practice of nations. Indeed, with the exception of the two above-mentioned nations, the custom of declaring war was not frequently observed among the ancients. For when the Greeks were about to open hostilities against other Greeks or barbarians they were not in the habit of making a public declaration; nor do we read that the Jews, fighting at God's command, ever declared war against the enemy, nor did the Macedonians who so gloriously destroyed the empire of the Persians. Even now, as far as I can discover, European nations are the only ones that make formal declarations of war, and even these do not all do so nor at all times. However, when they do, they follow the customs of the Romans, solely for the reason, I suppose, that they are to a great extent descendants of the Romans. At any rate the European nations have held the Romans in such high esteem that they have taken over their customs as well as their laws, although their customs, as for instance this very practice of declaring war, differed from those of other nations. Therefore, if any European sovereign should begin a war without a declaration, as was done by Gustavus Adolphus upon the Germans in the last century, his action would be considered contrary to the general custom of European nations; but only those would call his act contrary to the law of nations who consider as universal law the customs they observe in their own country.

But let us examine the dictates of reason, whose authority is so great in defining the law of nations. As I have just said, reason does not require any other formalities than that we should in a friendly manner demand the restoration of that which has been forcibly taken

On the Law of War and Peace, III. iii. 11.

On the Law of War and Peace, II. viii. 1. 1. and 2.


from us. Perhaps it will not even require this, since all laws permit the repelling of force by force, nor do I know whether the law of nations recognizes any formalities that are to be employed before meeting an armed attack. However, let us grant that, since the noble must act with generosity, a formal demand for restitution is desirable; but if that is refused shall we still forbid the employment of force? I should not, though Grotius and others would, provided there has been no formal declaration of war. However, the arguments by which they generally support the requirement of such a declaration are of no worth. Grotius disapproves of the one offered by Gentili, but his own argument, which I have quoted above, if not worse is at least very poor. For if two sovereigns are engaged in hostilities without having declared war, can we have any doubt that war is being waged according to the will of both? In that case there can be no need of a declaration, since it is being waged publicly and needs no proof. This argument therefore has no force, and yet Grotius preferred to rely upon it rather than deduce the necessity of an open declaration from the prevailing practice of European nations, for he knew well that custom does not constitute the law of nations. Reason, I repeat, is therefore the soul of the law of nations, and if we refer to reason, we shall find no argument to support the need of a declaration, but many, which I have mentioned, to the contrary.

But even if this question were to be decided on the score of custom- alone, we might add illustrations from the practices of European nations. To omit reference to the infinite number of precedents in ancient times, the war of extermination which was carried on between Spain and the United Provinces from the time our republic was founded until the year 1648 was begun by mutual hostilities without any formal declaration. Because of this fact shall we doubt the legality of the war, of the victory, and of the peace which followed it in 1648? For my part I do not. However, the Estates of Holland seem to have held a contrary opinion when on March 4, 1600, they published an edict1 declaring that satisfaction should be given the owners of the vessels which Philip III had confiscated in Spain in 1598, on the ground that they had been seized without a previous declaration, though the Dutch had freely resorted to Spain before that time. That decree I do not intend to support, for who could justly have required the King of Spain to declare war when the Dutch had continued to make open warfare against him since the year 1581? Certainly the mutual use of force may properly begin a war, not to mention other cases which may fall into this class, and which according to the jurists do not require a previous declaration.

The Estates of Holland add in the preface and again in the body

1 Het Groot Placaat-Boek, II. 4. 2. 2. 1.

On the Law of War and Peace, III. iii. 11.

See Zouche,

De Jure

Feciali, II. x. 1.


of this edict that formerly, that is to say before 1598, the Belgians enjoyed free commercial intercourse in Spain. But I have not been able to discover whether this statement is true, and if it be, I do not see its bearing upon the justice of the case, as I shall presently explain. If the Belgians resorted to and traded in Spain they did so on sufferance or by the negligence of the authorities rather than in accordance with the laws of war. Indeed, in the preamble of the edict by which on April 4, 1586,1 the Earl of Leicester, with the advice of the States-General and the Counsellors, prohibited the people of the United Provinces from carrying on commerce with the Spaniards, it is stated that the King of Spain had already confiscated Dutch ships in Spain and Portugal. Furthermore, in the first section of this same edict as well as in the edict of July 18 of the same year,2 the Earl of Leicester forbade all commerce with the Spaniards. To be sure in the edict of August 4, 1586 ( l) he restricted this prohibition to the places in Belgium held by the Spaniards, thus permitting commerce with Spain proper; but this was done solely with a view to aiding Dutch merchants; it brought no change to the laws of war, which could not be altered without the consent of the Spaniards.

Even if a declaration had been necessary, this would not have aided the Belgians in preventing the confiscation of their ships. What if the Spanish King in 1598 had solemnly declared war, and then later, perhaps that same day, had seized the ships! This he might well have done according to the laws of war; for when war suddenly breaks out neither the Dutch nor any other state has the custom of giving notice to the subjects of their enemies that they must remove their possessions under penalty of having them seized. You will not find any authority that has required this; indeed Tryphoninus explicitly states the contrary. And this is the practice of all nations unless there is an explicit agreement to the contrary, as is sometimes the case. Here are a few instances of such agreements. In the fourth clause of the Treaty of Utrecht with Muiden and Weesp dated July l, 1463,3 it was agreed that the peace should last fourteen days, 'after we, the said city and cities shall have written to each other', within which period the subjects of those cities were to be permitted to depart with all their possessions from the domain of their enemies. In the 16th clause of the treaty between the King of Portugal and the States-General (dated August 6, 1661) it was agreed,4 that if differences should arise between the two parties, this fact should be set forth in a declaration, and within two years from that declaration it should be unlawful to do any injury to the property of the subjects of either party. And since in 1662 the King of France and the States-General

1 Het Groot Plat. etc., I. 2. 22. l. 2. 2 Het Grout Plac. etc., I. 2. 22. 1. 4. 3 Handveslen van Weesp, 18. 4 Het Groot Plac. etc., II, Append, p. 2859

Digest, XLIX. xv. 12, Pref.


had agreed that in case of war the subjects of both states should have the privilege of departing with their possessions within six months, the said king in declaring war against the Dutch in 1672 issued a special decree,1 under date of April 14, declaring that he would observe in favour of the Dutch the terms of the convention of 1662. The same states again granted a term of six months for the same purpose by Article 15 of the Peace of Nimeguen, August 10, 1678 ;2 nine months by Article 39 of the Marine Treaty signed the same day;3 nine months by Article 14 of the Treaty dated September 20, 1697;4 and again nine months by Article 36 of the Peace Treaty of April 11,

1713.5 Article 32 of the Treaty between England and the States-General, dated July 31, 1667,6 states that if a war should break out between the signatories, the property of the subjects of either power found in the territory of the other should not be confiscated but should be permitted to be carried out within six months. If this were not enough I could add further instances, and others are to be found in Zentgravius. However, when such conventions for the suspending of a state of war do not exist, war may be commenced at once, whatever writers may say. Grotius, who insists upon a formal declaration, does not require any interval between that and the beginning of hostilities, with whom agree Zouche and Zentgravius. Accordingly the King of Spain in 1598 might have declared war and at once seized the Dutch ships, since there was no convention prohibiting such action; indeed there could not well have been such a convention between the King and those whom he considered his own subjects.

Here we have an example of a famous war carried on for a very long time without a formal declaration. I do not even know how the Belgians could have demanded a declaration from the Spaniards since they neither at the beginning nor after the truce ever made such a declaration to the Spaniards. Indeed, even if such a formality were necessary, the Spaniards would perhaps have raised the objection that it was necessary only in case of war between independent powers, but that it was never used in civil war, for in that case it was lawful for a sovereign to seize the property of his rebellious subjects. This argument, however, I do not press: it is enough for my purposes if I have otherwise made it clear that it was not the laws of war, but the interest of the Dutch merchants that brought into being the edict of March 4, 1600. It was the same interest that led the Hollanders astray in 1639 and brought them into an unseemly conflict with the the States-General in another case which was no less dependent on the laws of war. For when certain men had treacherously taken the

1 Hollandsche Mercurius, 1672, p. 31. 2 Het Grout Plac. etc.. III. 1. 13. 33. 3 Ibid., 34. 4 Ibid., IV. 1. 13, p. 315. 5 Ibid., V. 13, p. 456. 6 Ibid., III. 1. 13. 28.

De Orig. verit. et Oblig. Jur. Gent., vii. 9.

On the Law of War and Peace, III. iii. 13. De Jure Fec. II. iii. 10. [II.

X. 2].

De Orig. verit. et Oblig. Jur. Gent., vii. 9.


Governor of the Canary Islands and brought him to this country, and the States-General decided that he had been lawfully taken and should be kept as a prisoner, the Hollanders indeed objected, but only in the interest of their commerce, as Aitzema1 says. One would think that they might have based their objections on the very merits of the case, since the deed was far more base than the confiscation of ships by the King of Spain in 1598; for although the goods of an enemy are usually seized and hostilities may begin at once after a declaration, unless some convention forbids, it certainly is not permissible to betray a friend. The Dutch had of their own free will resorted to the Canary Islands as friends and for the sake of trade, and there was on both sides the privilege of commercial intercourse, freely exercised. A Dutch captain thus admitted for purposes of trade, pretending that he would convey the Governor from one island to another, seized him and carried him to Rotterdam to make him a prisoner. This appears to me to be the same as going to the enemy with a flag of truce only to kill him on the first occasion.

But let us pass on to other wars that have been waged without a formal declaration. The facts about Gustavus Adolphus 2 invading Germany are well known, and it is also known how, when Ferdinand II complained that he had come without a previous declaration, he responded that the Emperor also had formerly invaded Prussia without any declaration of war. In this way sovereigns, though they are not subject to a higher court, nevertheless force upon each other the principle that 'a man be dealt with after the like rule to that which he maintained against another'. The same thing happened in the year 1657, for when the French in the midst of peace seized the goods of the Dutch subjects among them, the Dutch in the same manner seized the property of the French under the edict of the Holland States of April 26, 1657,3 and the decree of the States-General of May 6, 1657.4 The States-General in their decree concerning this matter hold that, according to the law of nations, this seizure among friendly states is manifestly unlawful, unless for a just cause and after satisfaction has been demanded and refused. But no sovereign will make such a seizure except for some cause that he considers just. In fact, since injuries can hardly be made known in any other way, I would also admit of a previous demand, but on account of the present general employment of ambassadors we need hardly concern ourselves about this, for ambassadors are constantly raising objections at every trifling incident that may offend their sovereign. But let us proceed. We read 5 that even the Portuguese in 1657 detained the ships of the Dutch before war

1 Historien, XIX, p. 172. 2 Arlanibaeus, Arma Suecica, p. 54.

3 Het Groot Placaat-Boek, II. 4. 28. 3. 1. 4 Hollandsche Mercunus, 1657, pp. 42 ff.

5 Ibid., 1657, p. 85.

Digest, II. 11.


was declared and before hostilities commenced. And in the war between the King of England and the States-General, which was concluded by the peace of 1667, the States-General sent on September 16,1666, a letter1 to the King of England complaining that much property was taken from them and their subjects, and quite unlawfully, since war had not been declared. Whether this argument is good the reader may judge for himself from the trend of my discussion. In 1667, Louis XIV did not declare war on Spain, and yet, as though keeping the peace, he decided to expel the King of Spain from dominions that he possessed, offering the excuse that there was no need of a declaration of war to recover one's own property. But, indeed, if ever a declaration be necessary, who would ever accept such a pretext? For war is nothing else than to take forcibly from an unwilling prince or people what we think is due to us. On this subject there is a verbose complaint of the States-General in an edict against the French, dated March 9, 1689,2 declaring that this same French King in 1688, without a formal declaration, detained the Dutch, their ships, and their merchandise, and that presently, when the declaration of war had barely been published at Paris, he took up arms and seized the goods of Dutch subjects. The first part of this complaint is wholly just, for such detention was contrary to Article 15 of the Peace of Nimeguen and Article 39 of the Marine Peace of August 10, 1678; for since the time had not elapsed which was stipulated for the removal of alien property, the state of war being to that extent suspended, the seizure of those goods that might have been rescued within the limited time was an act of injustice. But there was no convention regarding the other property, and so I doubt whether the latter part of the complaint was equally just. But be this as it may, the instances which I have adduced are sufficient to prove that we need not think so favourably of European customs as to deduce from them the unquestioned necessity of making declarations of war.

1 1bid., 1668, pp. 170-2. 2 Het Groot Plac etc., IV. 1. 6. ,


CHAPTER III

ON THE STATUS OF WAR AS APPLYING TO THE BELLIGERENTS

WE might suppose that enmity and the conditions of war ought to be displayed between the hostile princes for whose interests alone, in most cases, war is carried on, rather than between their subjects, who certainly are not actuated by so hostile a spirit except when their own cause is at stake. However, since enemies must be met with hostile acts, no one would have expected that we would adopt the custom of complimenting and greeting our enemies. Indeed, the majesty and dignity of the Roman people displayed itself in the conduct of Caius Popilius, who although he was saluted by King Antiochus, then his enemy, refused to return the salutation while the war continued. So Plutarch tells the story. Livy and Polybius also relate how Popilius refused to take the proffered hand of Antiochus. Yet Roman consuls also, when it was to the interest of the commonwealth, sent greetings to Pyrrhus, then an enemy, according to a letter found in Aulus Gellius. And so addicted to flattery was the last century and the present one, that princes even in the midst of hostilities resort to adulation; so that now enemies invoice prosperity upon each other, call each other friends, and pretend to be sorry for their mutual losses. There are examples of this in the letters of the States-General addressed to the King of England on July 10, September 16, and November 26, 1666,1 and in the letters of the King addressed to the States-General on August 4, and October 4, of the same year.2 Although both nations were at that time bent upon mutual destruction, yet the States-General in the first of the above-cited letters said that there was nothing incompatible between the duties of war and an interchange of civilities. And the King of France, in 1666, who was then at war with the King of England, sent an envoy to him to express his grief over the burning of London.3 It is noble to practice kindness, mercy, piety, and other virtues of a generous soul in warfare, but it is certainly disgusting to trifle with words, for what else can you call it when you express grief for the burning of a city which you yourself would like to set on fire!

Since the conqueror may do what he likes with the conquered, no one doubts that he also has the power of life and death over him. There are so many records and instances of the exercise of this right

1 Hollandsche Mercurius, 1666, pp. 111, 112, 170-2, 176-8. 2 Ibid., pp. 112, 113, 172-6.

3 Ibid., p. 154.Apothegms,

364.

XLV. xii.

XXIX. xxvii. III. viii.


among all nations of ancient time, that one thick volume would not contain a full account of them; and writers on public law have already exercised their industry upon this subject. But although the right of executing the vanquished has almost grown obsolete, this fact is to be attributed solely to the voluntary clemency of the victor, and we cannot deny that the right might still be exercised if any one wished to avail himself of it. We can show clearly that there are still remains of this right here and there, for it is in my opinion on the basis of such a survival that we can explain and defend the edict of the States-General of October 1, 1589,1 by which they proclaimed the death penalty against those who might be found with the traitors of Geertruidenberg, and also their other edict of February 24, 1606,2 by which they threatened the same penalty upon those who should approach the shore within the navigation marks, or should land on the coast for the sake of plunder. For surely, as far as concerns the laws of war, a man is hardly guilty of crime for being in the company of his fellow soldiers even if these be traitors, nor is it a crime to invade a hostile shore in the hope of making booty. You may drive such an invader off if you can, but if you cannot, why treat him differently from other enemies? It is on the ground of the same right of life and death that I defend the conduct of the Dutch who, as we are informed3 sometimes hanged Spaniards who were not ransomed. It is lawful to hang prisoners of war; but if it were not, the failure to procure a ransom would not excuse the act; indeed we shall presently see that such executions are not customary.

To the right of slaying the captured enemy there succeeded the right of making them slaves, which was formerly exercised for a long period. But this custom has also fallen into disuse among nations. To be sure Cujas has written that even among Christians war captives are still enslaved, though their servitude is now milder; but he supports his statement only by reference to the right of ransoming prisoners. But in my opinion, the custom of ransoming prisoners, and the consequent detention until they are ransomed, no more entails servitude than our custom, for instance, of detaining foreign debtors until they pay their debts. For such debtors are never released unless they pay the money due or give security for it, as is also the case with prisoners of war. Even prisoners of war, if they are not redeemed, are very often released without any payment of money. So, for instance, the supreme military council of the United Provinces on December 14, 1602, permitted the release of twenty-four unredeemed prisoners that had been taken at the siege of Bois-le-Duc, lest they should perish by the hardships of imprisonment.4 It would

1 Het Groot Plac. etc., I. 1. 17. 5. 2 Ibid., IV. 1. 7, p. 216. 3 Aitzema, Historien, VI, p. 16. 4 Van Dalen, Notabile Krygs-besoignes, p. 145.

Commentary on Digest, I.i.

5 ff.


have been quite unexpected and contrary to prevalent custom if the council had ordered these captives hanged or sent into slavery. Accordingly when the Count of Solms in his Irish campaign in 1690 had ordered the prisoners to be deported to America to become slaves, the Duke of Berwick served notice that if this were done he would send to the galleys in France whatever prisoners he should take.1 But since slavery has now generally fallen into disuse among Christians, it is no longer employed against war captives. Yet we may make use of it, if we so desire, and indeed at times we do against those who exercise the right against us. For this reason the Dutch usually sell as slaves to the Spaniards the people of Algiers, Tunis, and Tripoli that they capture on the Atlantic or in the Mediterranean, for the Dutch do not use slaves except in Asia, Africa, and America. Indeed, in 16612 and again in 16643 the States-General ordered their admiral to sell into slavery all the pirates he should take.

To the custom of enslaving prisoners succeeded the practice of exchanging them according to their respective rank and station, or of detaining them until redeemed. And treaties sometimes make redeeming obligatory and specify a certain amount of ransom money according to the rank of each person that may be captured. When this sum has been paid, that right of life and death which the victor may exercise over the vanquished comes to an end. The Romans also exercised the right of capture against those of the enemy who at the outbreak of the war happened to be within their territory, but in modern times this right is seldom exercised, although it can be. Even Louis XIV of France when on January 26, 1666,4 he declared war on land and sea against the English and forbade all commerce with the enemy, so that the English who were in France feared for their persons and property, issued on February 15 a second decree declaring that their fears were groundless, for, he added, by the previous edict he had declared war only upon the English who should be found upon the-seas, or who should commit hostile acts within the French Empire, not upon private individuals who had established their domiciles in France. He stated, however, that he would be pleased if the English dwelling in France unnaturalized would depart within three months, going wheresoever they pleased. I have argued in the preceding chapter that such acts are to be attributed solely to generosity, unless there be agreements which suspend the conditions of war. But since there generally exist such agreements, the right of -war is seldom exercised against those who have entered a foreign country in time of peace, and are found there when war suddenly breaks out.. Accordingly, when the time has elapsed which has been

1 Hollandsche Mercurius, 1690, p. 245. 2 Artzema, Historten, XLI, p. 238. 3 Ibid. XLIV, p. 278. 4 Hollandsche Mercurius, 1666, p. 6. 5 Ibid., p. 7.

Tryphoninus, Digest, XLIX. xv. 12 Pref.


granted for departure either by treaty or by special dispensation, those who have remained or who have come without permission may lawfully be arrested. On this principle the States-General on April 4,

1674,1 issued an edict declaring that if any enemies should remain within the United Provinces or in the dominions of the States-General without permission, they should be duly arrested and should not be liberated until redeemed.

The right to put captives to death has fallen into disuse; there is a question, however, whether we may use this right without the least disgrace against those who defend themselves too obstinately. There are some who believe this, but I hold it is most disgraceful, unless we think worthy of punishment some weak and defenceless maiden who may obstinately defend her chastity against the attack of libertines. Everything is lawful against an enemy, but nothing could be more cruel than to punish him for his courage. Indeed, we ourselves admire courage in our enemies and are indignant at acts of cowardice in them. I remember reading that the corsairs of Algiers heaped with insults and tore to pieces a certain captain simply because he had disgracefully given up an excellently manned vessel after stipulating for the liberty of his own person. Apparently courage is honoured and cowardice held in contempt even with the enemy. If you wish to see what others have written upon this subject you may find pleasure in reading Gentili, Grotius, and Zouche.

We have set forth what it is lawful to do with captives, but what customs obtain in the treatment of the dead? Formerly the bodies were exposed to beasts and birds, but now the victors bury them or permit the vanquished to do so. Sometimes even more is done out of regard for humanity. On September 16, 1666, the States-General had embalmed and sent home the body of the British vice-admiral2 which had fallen into their power: indeed they had already on July 10, 1666,3 written to the King of England to inquire whether he wished the body sent to England or buried in Holland, and he had chosen the former.4 The French did the same thing5 in 1692.

Judging from the nature of war we can hardly doubt that all commercial intercourse ceases between enemies. Of what value, pray, are commercial rights if, as is clearly the case, the goods of the enemy that are brought in or that are found in the country are confiscate? But so long as the right of slaying an enemy obtains, would you approve that men might go to the enemy's country with merchandise only to have some enemy cut them down in the midst of the trading? Certainly all commercial intercourse must cease. Hence commerce is generally prohibited in declarations of war, and also in subsequent

1 Het Groot Plac. etc.. III. 1. 8. 5. 2 Hollandsche Mercurius, 1666, p. 70. 3 Ibid.. pp. 111 and 112. 4 The letter of August 4. Ibid., pp. 112 and 113. 5 Ibid., 1692, p. 189.

On the Law of War, II. xvi. On the Law of War and Peace, III. iv. 13. De Jure Feciali, II. x. 9.


edicts. According to Article 11 of the edict of the Earl of Leicester, dated April 4, 1586,1 prohibiting trade with the Spaniards, it was enacted that subjects engaged in commerce with the enemy contrary to that law should be hanged, and their ships and goods employed in the unlawful commerce should be confiscated, while foreigners engaged in this trade should have their ships and cargoes confiscated. The same penalties were announced by the Earl in Article 12 of the edict of August 4, 1586.2 Furthermore, by Article 13 of the former edict and by Article 14 of the latter the intention of carrying on commerce with the enemy was declared punishable to the same extent as the act itself, and indeed the Estates of Holland had already so enacted on July 27,

1584.3 It was, furthermore, added in all these edicts that indictments for these crimes, whether the culprits were taken in the act or not, should not be annulled by any statutes of limitation. Furthermore, by the last-mentioned edict of the Estates of Holland the pecuniary penalties imposed upon the delinquent should be recoverable even from his heirs. But I must add that this last point does not seem to me to conform to Roman law, for, to be candid, the crime, against which these edicts are directed, cannot be classed with treason, but is rather of a peculiar land that springs not from treasonable intent but from greed.

Moreover, even when there is no specific prohibition of commerce, it is made impossible by the very laws of war, as the phrasing of the formal declaration proves; for every man is ordered to attack the subjects of the hostile prince, to seize their goods, and to do them all possible harm. But the interests of the mercantile class and the mutual needs of peoples have almost annulled the laws of war relating to commerce. Hence prohibitions are made and permissions granted that vary with each war, according as sovereigns think it most to their own advantage and the interest of their subjects. A commercial people is anxious to trade, and accommodates the laws of war to its varying power of doing without the merchandise of the other nation. Thus sometimes a mutual permission to engage in general commerce is given, sometimes a partial permission with respect to certain articles, sometimes it is prohibited altogether. But in whatever manner we permit it, whether generally or specifically, a permission is always in my opinion to that extent a suspension of the laws of war, and in that case there is in part war, in part peace, between the subjects of the two sovereigns. The herring fishery was permitted on both sides by the edicts of the French and Dutch in 1536,4 and by the Decree of December 22, 1552,5 commercial intercourse was partly permitted but under certain restrictions. To this you may add what was done

1 Het Groot Plac. etc., I. 2. 22. 1. 2. 2 Ibid., I. 2. 22. 1. 4. 3 Ibid., n. 5. 4 Repertorium Cur. Holl., p. 23 A. 5 Ibid., p. 71 B, 72 A, B.


during the whole of the Spanish, Portuguese, and English war in the years 1653, 1665, and 1672, as well as in the French war in 1672,1689, and 1702, for it would require too much space to tell it.

One might question whether friends are to be treated as enemies if they have been captured and are found among the enemy. Pierino Belli does not think they are, while Zouche reaches no decision. I should consider them as such, at least so far as concerns their goods which they possess within the hostile territory, and I should hold that such goods could with entire propriety be seized by us according to the laws of war, if the enemy has already taken them from our friends. We may lawfully seize whatever belongs to the enemy, and such goods are a part of the hostile power, which can be of use to them and hence harmful to us. If, however, the property of our friends be within our own domain, even though they themselves are with the enemy, detained as prisoners of war, the case would be wholly different, since the property would then not be in the possession of, nor serviceable to, the enemy. Furthermore, as the exigencies of war demand that we should do all possible harm to our enemies, why should we not take from them goods which they have seized by the law of war and from which they derive advantage? I know the arguments by which some writers support the contrary opinion, for they argue that though our friends are in the enemy's country they are not themselves hostile to us, nor are they there from free choice, while the matter must be decided from the viewpoint of motive and animus. However, in my opinion the decision does not rest wholly upon motive, since even among the subjects of our enemy there are some, be they ever so few, who are not hostilely inclined towards us; the matter, indeed, rests upon the point of law that the property is in the hands of the enemy, and the material fact that they provide aid to the enemy for our destruction.

De Re Militari, II. xi. 5. De Jure Feciali, II. viii. 4.


CHAPTER IV

HOW AND WHEN OWNERSHIP IS ESTABLISHED IN CAPTURED PROPERTY AND IN SHIPS

IN the preceding we have treated of the persons of the enemies. We shall now speak of their property and of their actions. It is evident that the enemy's goods, whether movable or not, may be taken by the laws of war. I shall not now discuss who gains possession of the property taken or whether, when men have gone foraging without authority, the booty falls to them, for I shall have something to say on that topic in Chapter XX. At present I shall rather discuss a question no less important which arises daily, namely, from what moment possession changes by capture. I shall not distinguish here between the different kinds of movable goods that may be taken, whether it be a person, a ship, merchandise, furniture, or anything else that can fall into the hands as booty. By the Roman law, as Grotius correctly observes, booty becomes the property of the captor when it has been brought into defensible ground, the sole reason for this doctrine being that then every hope of pursuing and recovering the thing is at an end. Grotius observes in the next paragraph: 'Hence it seems to follow that at sea ships and other things captured are understood to be captured when, and not till, they are brought into dock or harbour, or to the place where the whole fleet is; for then recovery is despaired of.' 'But', he adds, 'we find that it has been established by the more recent law of nations among Europeans that such things are understood to be captured when they have been twenty-four hours in the possession of the enemy.' This principle he applies in his notes also to things that have been captured on land. The doctrine of Grotius has been fairly restated by Zouche and Loccenius. But Grotius's statement that the rule of the twenty-four hours was now being observed by all nations without regard to whether the captured ship has or has not been brought to port by the captor, has been answered by the counsellor of state in the court of admiralty at Amsterdam,1 as well as by others.2

For my part I have never been able to find this custom observed. To be sure, the military court rendered such a decision on December 24, 1624,3 and also upon another occasion,4 but who would give heed to men, mostly ignorant of law, who clearly make no use of authorities and are perhaps misled by the words of Grotius alone. Even in the

On the Law of War and Peace, III. vi. 3. 1.

De Jure Feciali, II. viii. 1. De Jure Marit., II. iv. 4.

1 Nederlandsch-Advis-hoek, II. 66, p. 161. 3 Van Dalen, Notabile Krygs-besoignes, p. 158.

2 Ibid., II, p. 151. 4 Ibid., p. 48.


United Provinces this statement is contradicted by the laws and customs as I shall abundantly prove in this and the succeeding chapter. I know that the ambassador of the States-General to England requested the States-General in 16311 to lend their approval to the legal principle which recognized legal possession after twenty-four hours, but I cannot find that they approved. The principle is also contrary to reason, for if you judge the matter in the light of reason, the real and sole reason for a change of property consists in a real possession, and a thing is really possessed which can safely be retained. Then what virtue lies in a period of twenty-four hours, since there may be real possession before, and there may be instances in which no real possession can be established in that period? Indeed various cases will prove to differ so widely that a fixed and general principle cannot be laid down in the matter; the individual cases will have to be treated separately and judged on the principle that the captor has not established ownership unless he is able to keep and defend the article. In Roman law 'things taken in war belong to him who has first taken possession of them', and 'he is not considered as having possession of a thing who is not able to retain it'. This is the true doctrine of the jurists sprung from the very law of nations. However, circumstances differ so greatly that we are not permitted to define precisely the period of time within which it may or may not be said that we are able to retain possession. We may, however, agree with Roman law and hold that we seem capable of retaining possession when we have brought the captured object within a defensible place (intra praesidia), by which term we mean forts, ports, cities, and fleets, since such places could devote themselves to the defence of the captured articles.

But twenty-four hours would hardly suffice for a change of ownership, if as some hold the bringing of the object intra praesidia is not sufficient. This illogical view is even held by some whose authority we must in other respects honour very highly. For they assert that captured ships do not become the property of the enemy until they have been taken to the enemy's port, duly condemned, and afterwards freely navigated to a neutral port. They should have said the same about merchandise and other booty which reasonably fall into the same class, but I suppose they were ashamed to. Note what the States-General said about captured ships in their decree of November 27, 1666:2 'That if ships, taken by the enemy and brought to England, or a country subject to England, and there declared confiscated and purchased by neutrals, should be captured by our ships on their way from the enemy's ports, either in the very exit or afterwards, before arriving at their port of destination or at some other free p6rt, such ships should then and thereafter be declared lawful prize as

1 Aitzema, Historien, XI, p. 461. 2 Nederlandsch-Advis-boek, II. 61.

Digest, XLI. ii. 1.

Digest, XLI. ii. 22.


Was usual in ancient times, and mutatis mutandis in accordance with the settlement of the fourth point of the case stated of June 26, 1630.' I have quoted the exact words so that no one should think I was telling incredible things. You will wonder, as I do, how it concerns the case whether or not the ships reach the harbour of the purchaser or some other friendly port. Apparently the friendly port in question In some undefined way is supposed to bestow something upon somebody. It could hardly bestow the right of property upon the enemy, who has already seized the ship and sold it, nor upon the purchaser, who in that case must be assumed to have bought our property from a man who was not the owner, and the friendly port must be assumed to have deprived us of our property. It would have been better to adopt the fiction that the ship on being captured by the enemy became the enemy's property, and remained so until it could be purged of that taint, and that this could not be done except by bringing it into the purchaser's or some other friendly port, until which time it might be lawfully retaken. But such a fiction is not permissible, because the thing belongs to the purchaser by the act of purchase, nor is it material whether it belonged originally to the vendor, or whether it became his by capture and condemnation.

However, I would have you notice how improper it was to appeal to ancient usage and to the other decree of the States-General dated June 26, 1630,1 which is supposed to have provided the basis for such usage. This decree was issued in answer to an inquiry of the admiralty at Amsterdam. To the fourth point of the several brought up, the States-General responded thus: 'On the fourth point their noble highnesses declare that ships taken by the enemy, brought into Flanders, and purchased by neutrals, but which shall be taken in the act of coming out of the enemy's port, or subsequently, before they have been into their own or in other free ports, shall be lawful prize, as was always the custom in ancient times, by virtue of the right herein before alleged as to the first point, and likewise such vessels, which being so captured and purchased, and having run out of the said Flemish ports into other ports under the dominion of the King of Spain, and coming thence, shall be captured by our ships.' It is apparent from the case stated that this decree has nothing to do with the principle now under discussion; indeed the States-General by referring to the 'first point' disclose clearly enough what was their reason for issuing the decree. The fact is that the States-General had blocked the ports of Flanders with naval vessels in order to shut off commerce, and for that purpose they seized and condemned all vessels of whatsoever nation bound to those ports or sailing from them. For it is reasonable, and in accord with international usage, that when

1 De Hollandsche Consultatien, Append., p. 57.


cities are besieged nothing should be permitted to be carried in or out. And that is why the Admiralty held and the States-General decreed that the same principle also held for ships which had formerly been taken from us and sold, since in a blockade it is lawful to intercept even the ships of friendly nations. And this holds true if the ships are taken before the voyage is complete, and while employed in illicit trade; and the voyage is not considered complete until the vessels have reached their own or a friendly port. This in fact was all that the States-General had in mind in that decree of June 26, 1630. But from that decree you cannot get any support for the point now at issue unless you can show that in 1666 the States-General were actually blockading England, Scotland, Ireland, and all the English possessions in Asia, Africa, and America. We are indeed told that the States-General in 1652 made some such boast about the English, namely, that they had shut off the English commerce to all the world,1 but how justly the boast was made I cannot now inquire. I will only note that in 1663 when the Spaniards pretended to have all of Portugal under blockade, the States-General refused to recognize that right which they had before claimed for themselves against the English. Thus it is related in the annals.2

From what I have said it is apparent that the decree of the States-General of November 27, 1666, cannot be defended. And if we decided to adopt its arguments we should soon be involved in dangerous consequences, for as the poet says: 'If the first plummet swerves from the straight line... the whole building will be faulty and without symmetry.'

From that edict it will clearly follow that all enemy's goods will be placed in the same predicament, since what the enemy have secured from capture is just as much theirs as what they have by inheritance, purchase, or by any other title. The same must therefore be said, not only, as I indicated above, about merchandise and other things taken from us by the enemy, but also regarding ships and all other things which they have otherwise than by taking it from us, and which our friends have purchased from them. And if you admit this much you also admit that princes have a complete right to forbid their enemies the use of fire and water, so to speak, and you grant to them the power of prohibiting the commerce of any nation, a thing which has hitherto been customary only with regard to contraband. The result will be that whatever friends may purchase from the enemy will fall under the ban unless they have been brought into a free port.

But it is a serious thing to draw up a general rule based upon unreasonable decisions made for a special case. In this way a pretext is furnished sovereigns for committing acts of injustice. Certainly

1 Aitzema, Historien, XXXII, pp. 774-7. 2 Ibid., XLIII, p. 858.

[Lucretius, De Rerum Natura, IV. 513, 517.]


there was no justice in the edict of Louis XIV of France, dated September 17, 1672, by which he ordered the capture and confiscation of all ships bought, even by his friends, in the United Provinces and found coming thence for the first time. Accordingly, on the following day there was taken and confiscated by the French a ship built and purchased in Holland, manned by a Hamburg crew, which the purchasers were taking home to Hamburg. In answer to this decree of the French King the States-General, ready to be equally unjust even to their own friends (for friends generally bear the brunt of the suffering from such rules), retorted with the following:1 'That all ships purchased by neutrals within the dominions of the King of France, although manned by a neutral crew, which, sailing for the first time from the enemy's ports, and not having been in the neutral port to which they were bound, should fall into the hands of Dutch cruisers, should be lawful prize.' One might suppose that this edict was founded upon the right of retorsion, but retorsion can only be exercised against one who has inflicted wrong, it cannot involve a friend. Therefore, that edict of the States-General of November 29, 1666, cannot be defended with the plea that the English had previously progressed even further on the road of injustice when their envoy, on December 23, 1664, gave notice to the Hanseatic towns, at that time friendly both to the English and the United Provinces, that whatever ships they might purchase in the territory of the States-General would be considered enemy's without distinction of voyage.2 He who has done no injury cannot justly be punished.

One might suppose that those decrees of the States-General of 1630 and 1666 had at least decided this point that the ships purchased by our friends from our enemies could not be taken from them if once they had reached a friendly port, for they hold that these may lawfully be seized 'before they have been into their own or some other free port'. But not even this point is clear. Indeed the Admiralty of Amsterdam consulted 3 the States-General on this point also, but they without reaching a definite decision simply answered by the letter of June 26, 1630:4 'As to ships taken by the enemy from the inhabitants of this country, brought into Flanders and there condemned, which without being taken should be brought into England, France, or some other country, and should be captured by our ships on their way from such a place while bound on other free voyages, and finally be declared lawful prize, we ought to have some brief time for consideration, requesting that in the meantime you will communicate to us the sentences that have been given in similar cases, and the decisions that have been rendered in other countries in this matter.' In

1 Het Groot Plac. etc.. III. 1. 7. 8. 2 Aitzema, Historien, XLIV, p. 681. 3 De Hollandsche Consultatien, Append., p. 57. 4 Ibid., p. 53.


the year following, that is in 1631, I find that the Court of Holland was consulted on this very question, but I do not know what it answered, if at all.1 And confusion has continued on the question,2 although certain Dutch jurists, when consulted on the same point, responded correctly and according to good legal principles 3 that our ships, captured by the enemy and then purchased by our friends clearly became the property of the enemy by the act of capture, and consequently of those also who purchased them from him. Now then, in order that the doubts of the States-General of 1630 may not in the future prove prejudicial in similar cases, I must repeat what I said above, that the case then at issue was a peculiar one, namely the blockaded ports of Flanders; and it was the failure to notice this fact that created the confusion. And I added that you could not argue from this instance as to ports not blockaded and where egress and ingress was free. The decree of November 27, 1666, is sufficiently unjust, lest we add the iniquity of arguing from special cases.

But if the intention of the States-General was that the ownership of the vessel is not altered 'unless it is captured and brought into the enemy's port and has afterwards freely sailed from there and arrived in a friendly port, what ground will you find for those decrees by which, in the case of ships captured by the enemy and recovered by us, they allow a certain part to the recaptor and a part to the original owner. That is, if mere capture transfers ownership, what right has the original owner? And if not, what right has the recaptor to a definite share, since the former owner may reclaim his property? And does it profit to bring or not to bring the ship into a friendly harbour, if the original owner has no rights against the recaptor after the ship has been brought into a hostile port and condemned? With such a theory I would find no justice left; and with me agree other authorities 4 and the observances of nations everywhere. Indeed such suppositions cannot be reconciled with the decree of November 27, 1666, nor with reason nor with law.

1 Aitzema, Historien, XI, p. 526. 2 Ibid., XXI, pp. 275, 276; XXII, pp. 533 and 534.

3 De Hollandsche Consultation, V. 161. 6.

4 Groenewegen, De Legibus Abrogatis, on Digest, XLIX. xv. 2, 1.


CHAPTER V

ON THE RECAPTURE OF MOVABLE PROPERTY AND ESPECIALLY OF SHIPS

THE points I merely touched upon in the last chapter, I must now discuss and examine more fully. And first we must observe that while immovable property upon recapture returns to the previous owner by postliminy, movable property, of which we are now treating, does not, as Labeo has said: 'Whatever is taken in war is a prize and does not return by postliminy.' But though ships are reckoned among movables, he makes the distinction that those which are useful in war return by postliminy, though not others. However, Grotius rightly observes that this and other distinctions laid down by Roman law with respect to movable things have grown obsolete by the practices of nations; consequently all movable property, without distinction, is now considered prize without any right of postliminy. It has seemed to follow logically that goods captured by the enemy, then subsequently retaken, became the property of the recaptors, because just as capture in war transfers ownership, so recapture also transfers it; but we can recover for ourselves only the things that have become the enemy's by full right, otherwise the former owner may still vindicate his right. At what point of time, however, movable property shall be listed as enemy property by full right, depends upon the arguments we have offered in the preceding chapter.

Now though it is difficult to define this matter, so much is at least very certain, that movable things absolutely become the property of the enemy when brought within their praesidia, and consequently, if they be retaken, the property of the recaptors. The same we say of ships that have been retaken after having been captured and brought into the enemy's port; consequently, as I said at the end of the preceding chapter, their original owner has absolutely no claim upon them. Following this principle, the King of England and the States-General then allies, when they agreed1 on October 22, 1689, that each should restore to the original owner, at a certain sum, whatever ships of the other nation might be recaptured, specified that this agreement should hold only in case the said ships had not already been brought into the praesidia or ports of the enemy, for in the latter case complete ownership should pass to the recaptors.

1 Het Groot Plac. etc., V. 1. 13. 2.

Digest, XLIX. xv. 28.

Digest, XLIX.

XV. 2.

On the Law of War and Peace, III. ix. 15.


This point then is sufficiently clear, but not equally so the question of what praesidia or ports. Is it the ports of those who captured the ships, or also of their allies? One would suppose that allies would be included, especially if they are allies in the war and therefore a part of the enemy, since in the ports of such an ally ships would be as safely guarded as in the enemy's own ports, and there would be no hope of recapture unless they sailed out again. Unfortunately the States-General in the following case did not adopt this point of view. The French had on December 28, 1675, captured two Hamburg ships in which there were cargoes belonging to merchants of Amsterdam; after having them in their possession fourteen days they brought them into the port of Hull in England; then the admiralty at Dunkirk, before the return of the French, condemned the ships and cargoes and the French even sold a part of the goods at Hull;

now when these ships with the rest of the condemned goods were being brought to Dunkirk, they were taken by the Zealanders, brought to Zealand, and there condemned with the goods that were left. However, the States-General when appealed to by the merchants of Amsterdam decreed1 on October 23, 1676, that the retaken goods must be restored to the original owners, on the strange ground that they had not been brought into the enemy's harbour, condemned, and distributed. By the 'ports of the enemy' the States-General understood those of the captors, for they said 'of the aforesaid enemy', so that it did not suffice to bring the ship into another port, whether of a friend or of an ally in war. It seems to me that the Zealanders had the right on their side, though the States-General had the technical support of authority.

Ships, therefore, captured by the enemy and taken into their ports become the property of the enemy. But what if instead of being so brought into the enemy's port they have remained for some time in the port of a friend or ally, or have navigated for some time with the capturing ship? If we consider the laws of our country and the authority of jurists who have written about customs, we can hardly reach the conclusion that length of time elapsed since capture, or position however safe, could transfer ownership in the vessels unless they be brought to harbour. Hence jurists simply say,2 that whatever has been recovered before being brought into the enemy port has the right of postliminy even though it has been captured for some months and has remained in the port of a common friend, for unless the enemy have brought it into their port it does not become the property of the enemy. The use of the word postliminy in that way is very careless, for those who know the meaning of the word know that it cannot correctly be applied except to things that have pre-

1 De Papegaay of het Formulier-boek, II. 24, p. 295. 2 Nederlandsch Advis-boek, III. 68, 69.


viously become the property of the enemy. They should have said that before things are brought to port they do not become the property of the enemy but remain the property of the original owner, and accordingly when recaptured they return to him and do not go to the recaptor.

It will be profitable to consult the laws that have been made in this country on this subject, taking them in chronological order because of their variety. Some think that the edict of the Estates of Holland of March 4, 1600,1 recognized the right of former owners to claim their captured ships wherever taken, even if they had been brought into the enemy's port. This is true, but this edict concerned ships which the Estates of Holland believed condemned contrary to the laws of war as I explained in the second chapter. Consequently this edict is not pertinent. If the ships have been lawfully captured, brought to port and condemned, every claim ceases, and if they have sailed out again there remains only the right to recapture, and whoever recaptures becomes complete owner. But it may be interesting to know, in the case of recaptured vessels that had not yet been brought into an enemy port and condemned, what right belongs to the former owner and what to the recaptor; though obviously, if we know what belongs to the one we know at the same time that the remainder belongs to the other.

So far as I know the oldest law on this subject is that of the States-General of July 4, 1625,2 which grants one-eighth to private recaptors if the vessel is taken within twenty-four hours, one-fifth if within forty-eight hours, and a third, if thereafter. And on July 22, 1625, they extended the application of this rule 3 to 'warships that recovered the vessels of private owners. Next there was passed a law of the same body on March 11, 16324 which, without any distinction of time, entitled privateers to two-thirds of what they recaptured. Then again the States-General adopted a different rule on September 1,

1643,5 for according to Articles 56, 57, and 58 of the edict then issued, if the ship is recovered within twenty-four hours, the recaptor is to have one-eighth, if within forty-eight hours, one-fifth, and thereafter one-third, just as according to the decrees of July 4 and 22, 1625, which I have cited above. Presently again they returned to two-thirds without any distinction of time, for following the decree of 1632, Article 16 of the edict of February 8, 1645,6 entitled privateers to that amount. It also added that the recaptor and former owner should amicably estimate the value of the vessel and its cargo, and that if this proved impossible the Admiralty should have jurisdiction. Again the same States-General adopted a different attitude, for by

1 Het Groot Plac. etc., II. 4. 2. 2. 1. 2 Ibid., I. 2. 14. 3. 2. 3 Ibid., I. 2. 14. 3. 4. 4 Ibid., I. 2. 14. 3. 3. 5 Ibid., I. 2. 7. 3. 1. 6 Ibid., I. 2. 15. 1. 1.


the decree of April 19, 1659, only one-ninth of the value of the vessel and of the cargo was allowed to the recaptors, and the same was allowed to naval vessels as to privateers, but this decree again abolished every distinction of time. This decree was not published, but I have found it among the acts of the States-General, and it is also mentioned elsewhere.1 At last the States-General on April 13, 1677,2 preserving, as they say, the ancient laws regarding naval vessels (what ancient laws they refer to I do not know since these have varied widely), made this decree regarding private recaptors; that they should be entitled by way of salvage to a fifth of the value of recaptured ships and cargoes if these had been in the possession of the enemy less than forty-eight hours, a third, if more than forty-eight and less than ninety-six hours, and a half, if more than ninety-six hours. And this same distinction of time and the same rates of salvage were agreed to between the King of England and the States-General on October 22, 1689, in the above cited convention, in case a privateer belonging to the one should recover from the enemy ships and cargoes belonging to some subject of the other nation; however, if a ship of war performed the deed, only one-eighth the value was allowed, but without distinction of time.

Now why is there so much variety and why is the time element introduced, and in such different ways? And why does difference in time permit now greater, now smaller, rewards? And if distinctions in time are actually necessary, on what principle is the salvage varied so greatly while at times the recaptor without any distinction of time may receive the large share of two-thirds and at others the very small share of one-ninth? Indeed, it is difficult to explain things which have generally been decided without any application of a rational principle. Here if ever it is permissible to apply the line: non omnium � you know the rest. 'It is impossible to assign the principle of every rule of law laid down by our ancestors.' Yet the exigencies of international peace and of the tranquillity of our own people demand that we reach some settled decision based upon reason. The matter rests entirely upon the question of when, in our view, the captured ships and cargo are completely the property of the enemy. The law has indeed decided that they so become by a real and complete occupation. But circumstances vary so greatly that we cannot always know whether occupation is real and complete, that is to say, whether the occupation is such that the enemy can retain and defend his booty. What the enemy has taken in the open sea far from his land he may lose, and often loses to recapture. If he brings his prey to his own ports no one will doubt that it has completely become his property. For my part, I would say the same if he brought it into the port of

1 Nederlandsch Advis-boek, III. 68, 69. 2 Het Groot Plac. etc.. III. 1. 17. 16.

Digest, I. iii. 20.


a friend or ally, but if this, as I said above, is not granted, let us grant that things captured at sea must be brought within the captor's port or fleet, and that not till then are they considered fully his.

What then shall we decide if they are recaptured before that point is reached? In that case the former owner shall have the right to claim his property, since ownership has not passed to the enemy, and therefore not to the recaptor; � and I said 'former owner' recognizing that some form of occupation has intervened. Then another question arises, whether the owner shall claim his property from the recaptor without paying salvage or reward for recapture, without giving any remuneration for his work and the expenses incurred in the recapture? Equity, the mistress of the law of nations, would not permit this. She demands that salvage or remuneration or reward, or whatever you may call it, be given. The recaptor has saved a ship and cargo that would otherwise have been lost to the owner: why should he incur danger without hope of reward, or why should he fight for another's property as though in self-defence? Why should he expose his forces and his men to no purpose? He has managed the business of the owner with profit, and to recover the expenses incurred in the deed, he is entitled to an action as 'voluntary agent'. I do not know of any other action applicable to the recaptor if we must decide the matter according to Roman law, and since this action is applied even now for the recovery of wages, as Jacques Godefroy correctly observes, and we still use this law, this action is the only proper one both for recovery of expenses and for wages. But by what law it has been decided to give to the recaptor a portion of the recovered goods I do not know, and even less do I comprehend how that portion varies in size according to the time during which the goods were in the hands of the enemy. What matters twenty-four, forty-eight, and ninety-six hours here? The longer or shorter possession cannot in my view bestow greater or less right to the recaptor, provided the thing was not in a place of safety.

Therefore if we wish to consider the subject from the viewpoint of reason, my opinion is that every distinction of time must be abolished, and instead of that we must take into consideration the labour and expense which the recaptor laid out, the danger to which he exposed himself, and the value of the ships and cargoes rescued. From all these considerations impartial arbitrators must decide what should be allowed to him for his labour, his expenses, and his reward, and that not with a miserly but with a liberal hand in order to encourage the industry of recaptors. Surely we ought to take into consideration whether the task was difficult or easy, whether the recaptor fought with courage or not at all, whether he incurred heavy expenses, whether the booty was worth much or little. But if you

[Digest, III. v.]

De Solaris, v. 10.


think such considerations would bring in so many doubts as to protract the litigation too long, I would answer that litigation even now may be, and is, often protracted over the value of vessels and cargoes and the deductions to be made before the true value can be determined.

And now if you still wish to give a part of the ship, do so, but not in proportion to the time during which the enemy had the prize, but rather in proportion to the expenditure of labour, as is customary in other cases of salvage. Thus the Rhodian law allowed a reward for the salvage of ships, and indeed gave a part of the salvage by way of reward, fixing the portion according to the amount of labour bestowed, as is related by Harmenopulus, and according to this I interpret the 'reasonable salvage' which Mary of Burgundy allowed to those who saved shipwrecked property by her law made for Holland and Zealand on November 14, 1476. Furthermore, the edict which Philip II issued in the name of William of Orange on May 15, 1574, also allowed as salvage certain parts of the shipwreck, a regulation frequently re-enacted, as recently as April 2, 1676;1 and indeed it allows the salvor even a larger proportion than that explicitly named if he has incurred greater labour and expense. The Estates of Holland also seem to have reference to this rule when on July 22, 1677,2 they promised a reasonable salvage to those who brought to the shipbuilder's company at Dordrecht the timber that was found floating down the streams without any guard. The aforesaid laws do not define how long the wreckage and the drifting timbers may float about at the mercy of seas, rivers, and winds, since there is no reason for such distinctions;

they left it rather to the arbitration of impartial men to determine the amount of the reward for the labour and expense. This is indeed the very rule that I think should be followed in the case of ships and cargoes recovered from the enemy.

In fact, the book called Il Consolato del Mare defines the matter in this very way, for it commands the man who has recovered a ship and cargo from the enemy to restore both to the former owner, retaining a salvage which for the sake of equity is reckoned in proportion to the labour and expense employed in the recapture; but there is no distinction made as to the time that the ship and cargo may have been in the possession of the enemy. The book very properly adds that restitution of the ship is called for only if the ship has not been brought to a safe place, that if on the contrary it has so been brought, since by this act ownership is plainly vested in the enemy, the ships and cargo recovered become wholly the property of the recaptor. And this agrees completely with the arguments I have offered in this chapter. I wish that all the statements found in that compendium of nautical laws were equally correct, but there are things there which are not sound.

1 Het Groot Plac. etc., III. 6. 2. 4. 2 Ibid., III. 4. 5. 7.

Manuale Legum, II. xi. 18.


CHAPTER VI

ON THE LIMITS OF POSSESSION OF IMMOVABLES TAKEN IN WAR

IT is worth considering how far extends the possession of immovables taken in war and the consequent rights of property. Grotius does not admit every land of possession as sufficient, but requires 'firm possession', a phrase which he explains thus: 'the land which is included in permanent defences so that it is evident there is no access to it till these are carried'. May we decide then that when a city is taken, its lands also are taken, and if so, what are the limits of possession? Grotius has nothing to say about this, though he raises the question frequently in connexion with the capture and occupation of places. An example will make the matter clearer. The French had occupied Caselle and Turin in Piedmont, but when a truce was made it was agreed that each party should during the truce continue to hold possession on the principle of uti possidetis of the part he had occupied in the war. Then the question arose regarding the territories and townships which were dependencies of these cities, now in the hands of the French, and which provided services even to the French during the war. Some jurists decided the case against the French saying that possession by the law of nations, and naturally acquired, must be shown, and that the occupied part does not draw along with it the unoccupied part, that furthermore the services provided by the inhabitants did not inure to the French, since the citizens were themselves held against their will. This is the argument of Pierino Belli, whether or not Zouche agrees, I cannot say. At any rate Belli is certainly mistaken if he applies the principle to the case of a truce, as in the present instance, since that general phrase uti possidetis embraces an implied as well as an actual possession. This implied possession consisted in providing and, accepting services and duties that are generally rendered only to a master; what actual possession is will appear from the following.

We must accordingly adduce from reason what possession of immovables taken in war really is: it then becomes clear that when a part has been occupied, the whole is occupied and possessed if such is the intention of the captor, and thus Paulus also decides the matter. That this is a principle of natural as well as of civil law is abundantly proved by experience and by custom, that best of teachers. Possession extends over what is occupied, and by natural law, what is occupied is brought into our possession, but even that which has not been

On the Law of War and Peace, III. vi. 4.

De Re Militari, V. iii. 78. De Jure Feciali, II. ix. 48.

Digest, XLI. ii. 3.


touched all around by our hands and feet is conceived of as occupied, if that be the intention of the occupant, and the nature of the object so requires, as is the case with lands. If you disagree you will find difficulty in defining what occupation and possession are; for if you should insist that everything must be touched, it would not suffice to touch the surface of the ground, you would even have to walk all about it and to dig down into it.

But though it be true that when a part is taken the whole is taken if it be taken with this intent, the statement will hold only provided no other person has taken a part of the land concerned, for if another also possessed a part of the same whole, he would by the same reason possess the whole. But this cannot be, since, as Paulus truly says, two persons cannot possess the whole of the same thing, for the ownership of one would exclude the ownership of the other. Accordingly, if one possesses a thing, and a second person takes a part which the first person does not bodily occupy, he has taken nothing beyond what he has occupied by natural means. Neither will it be possible to divide possession in the unseized part into halves or into shares apportioned according to the size of the parts occupied, for in that part the rights of the former occupant are paramount and cannot be excluded by the similar claims of a second, supposing that the strength of the two are equal. And in that part which he holds, the latter occupant has done away with the so-called legal possession of the former only because he has seized the portion by natural means, and natural possession has superseded the legal one. This is the very thing that Celsus says: 'If an army has entered with great force it obtains possession only of that part which it has entered.' When he says 'with great force' he implies that there was resistance and that there were those who defended even by force the property rights of the former owners. Hence the enemy's army did not occupy the fields farther than it compelled ours to recede. This may perhaps be the meaning of Paulus when he says that upon a partial occupation the whole is indeed- occupied, if that be the intention, up to boundaries (usque ad terminum). This I interpret to mean: up to that part which another possesses, whether that other be a neighbour living upon the neighbouring estate, or some one else dwelling upon the very estate whose occupation is in question.

Hence in an occupied region it is not difficult to discover what ought to be considered as properly occupied. The metropolitan law has no bearing upon the case, for this is civil government which the defeated prince has established wherever he chooses. And if this be so, we readily comprehend that if the stronghold should be seized from which a region is ruled it does not follow that the cities, towns, and forts still in the possession of the sovereign shall also be con-

Digest, XLI. ii. 3. 5.

Digest, XLI. ii. 18. 4.

Digest, XLI. ii. 3. 5.


sidered occupied; their condition must be judged from the act itself of occupation and possession. Consequently we hold that, when a part of a region has been occupied, the whole is considered occupied unless the vanquished sovereign retains some part; if he still holds a part, only that may be considered occupied which the victor has forcibly taken from the vanquished and retains in his possession. But regarding several different countries that belong to one sovereign we may well ask whether we should use the same distinction that we employ in the case of contiguous private estates. If Titius has three contiguous farms, A, B, and C, and Gains occupies a part of A, it is agreed that he occupies the whole of it, but that he does not occupy B and C; for in taking possession of a given property we take possession up to its boundaries but not beyond. He who has entered upon a part of farm A is supposed to do so with the sole purpose of taking full possession of the one of which he has occupied a part; he is not supposed to have farms B and C in mind. When a part is seized, the boundary of possession is marked by the whole which constitutes a distinct thing separated from the rest, and that boundary we do not overstep whether the thing in question be a house, a farm, a storehouse, or anything else that falls in civil law under the term 'immovable property'. But in my opinion immovables that are occupied by right of conquest fall under a different principle. It is the intention of the victor not only to invade one country but the whole of the hostile empire, and to possess himself of all the countries of that empire, and the only boundary in question here is the territory which the vanquished sovereign still retains in his actual possession. If there is nothing that the victor cannot make his own, what is going to prevent him from progressing and taking possession? If the vanquished retains nothing, and the victor has occupied only one country, or even only the capital city, that will give him possession of the whole empire. Accordingly, the words were truly spoken which the envoy of the Emperor Justinian said to Chosroes, the Persian King: 'Is not he who is master of the ruler, also master of the ruler's subjects?' However, if the vanquished still retains something, then what the victor has taken from his empire and holds forcibly will not properly be considered 'a subject'. Deservedly, therefore, have sovereigns been ridiculed who because they held Rome and Constantinople claimed the dominion of the whole Roman world, while at that very time other princes occupied other important parts of the empire. Of the same nature was the arrogance of Belisarius as described by Procopius, for when Justinian had reduced Carthage and King Gelimer, he boasted openly that now everything belonged to him which Gelimer had possessed in Sicily. This was of course incorrect, for the right which he had over Carthage and the person of the King could not

Digest, XLI. ii. 3. 5.

Menander Protector, Hist, Bysant., I, p. 143.

Vandalic War, II. iv.


transfer to him the possession of the things which were in Sicily. Sicily defended itself by its own forces, and his whole dominion was not captured by his capture. Actual occupation is essential, or a cession, if this be agreed upon in the treaty. Now let us see what edicts and decrees the estates of the United Provinces have issued upon this subject. When by Article 3 of the truce between the Archduke of Austria and the States-General (April 9, 1609) it was agreed that each should continue during the truce to hold what he then possessed, and the Archduke had posted his edicts in the territory of Cuyk, the States-General, on August 20, 1609, decreed1 that this territory belonged to them, since they possessed the city of Grave to which that territory was subject, and they prohibited all others from exercising dominion there. Again, when the States-General had taken some forts in the Overmaze, and the Spaniards had nevertheless ordered the inhabitants not to submit themselves to the jurisdiction of the council of Brabant, sitting at The Hague, the States-General in retaliation opposed them by the decree of March 8, 1634.2 Furthermore when Bois-le-Duc belonged to the States-General, and the Spaniards created disturbances over the territory of that town, the States-General retorted by a number of decrees, namely on January 30, 1630, August 3, 1630, May 13, 1631, June 20, 1634, February 2 and December 2, 1636,3 and December 24, 1642.4 In two decrees, namely those of March 8, 1634, and February 2, 1636, there is cited the edict of the Spanish King dated July 10, 1628, in which that King argues at length that the territory that belongs to a city follows the conquest of the city. And this is the law that the States-General also with entire propriety adopted in the aforementioned edicts, because those who rule at pleasure over a territory are considered to have occupied that territory. However, if there be some as yet unoccupied stronghold in the territory, the possession and dominion of the invader does not extend over the port dominated by said stronghold.

If, as I think, the foregoing conclusions are correct, the council of Brabant, which legislates at The Hague for those regions of Brabant that the States-General have taken in war, was entirely correct when on October 26, 1629, it decreed that the fiefs of the territory of Bois-le-Duc must request the proper investiture from them, not from the Council of Brabant sitting at Brussels. And it also appears that the King of Spain had no right to issue the contradictory decree of November 15, 1629, of which Aitzema relates in detail.5 For when Bois-le-Duc was captured by the States-General the surrounding territory fell to them, and they became lords of the fiefs situated there,

1 Het Groot Plac. etc., II. 5. 5. 2. 1. 2 Ibid., II. 5. 5. 2. 4. 3 Ibid., I. 1. 4. 2, nos. 1-6. 4 Ibid., I. 3. 2. 1. 2. 5 Historien, IX, p. 882.


for a conquered vassal owes allegiance and services to the victor, not to the vanquished lord. There is even less doubt that if a province is ceded, the whole of it is ceded. Regarding this matter there is an edict of the States-General dated December 22, 1610,1 concerning Twent, a part of Overyssel.

1 Het Groot Plac., II. 5. 5. 2. 2.


CHAPTER VII

WHETHER THE ENEMY'S ACTIONS AND CREDITS MAY PROPERLY BE CONFISCATED AT THE OUTBREAK OF WAR

IF there are conventions between sovereigns permitting the withdrawal of goods within a stated time after the outbreak of hostilities, of which treaties I cited numerous examples in the second chapter, it follows that actions and credits may be withdrawn as well as goods. But if there are no such treaties, and if the goods and the actions are withdrawn, the question arises regarding the law in the case. And surely since the conditions of war are such that the enemies are proscribed and despoiled of every right, it is reasonable that whatever property of one enemy happens to be found in the country of the other changes its owner and is confiscated. Furthermore, it is a custom in almost all declarations of war to proclaim that the goods of the enemy, whether found among us or taken in war, shall be confiscated. Sometimes also there are special decrees concerning this matter either preceding or following the declaration of war. The Prince of Orange on August 25, 1572, inserted in the constitution 1 which he then made for Holland: 'that the goods of all those who acted publicly as his enemies should be immediately registered by the magistrates of the place where they were found, and their rents and profits should be taken for the benefit of the state.' This applies to immovables, I think, for it is the custom to register these so that during the war the rents and profits from them may fall to the public treasury. If we followed the law of war to the full extent, we might even sell all immovables, bringing their price into the treasury, as is done with other goods; but throughout most of Europe real estate is only registered so that the profits from it might accrue to the Treasury during war, but after the war the real estate itself is restored to the former owners according to treaties. Again, the States-General on April 2, 1599,2 with reference to all kinds of enemy's property wherever found, decreed as follows: 'We declare as lawful prize all persons and goods found under the jurisdiction of the King of Spain, wheresoever these may be taken.' There is also extant a letter of the Estates of Holland to the Court of Holland, dated November 25, 1672 3 ordering the seizure and confiscation of the goods of those who reside among the enemies; in answer to which the court decreed 4 on the same day that from that date such goods could not be restored to their owners.

1 Het Groot Plac. etc.. III. 1. 1. 23. 2 Ibid., II. 4. 2. 1. 2. Bella Juridico, Casus 52, n. 2 and 99, n. 2. 4 Het Groot Plac. etc., III. 1. 8. 2.


I am not here discussing whether this decree fully agrees with the conventions signed between the King of France and the States-General in 1662. Since, however, the word goods (bona) applies largely to inheritances, it is clear that an enemy cannot acquire an inheritance situated among us, whether it be due him by will or by succession. Accordingly, when in 1695 a man died intestate in Holland, whose nearest relatives and heirs were in France, the property was confiscated, as I remember.

Since the edicts that I have cited speak in general and all-inclusive terms, it would seem that they must be applied to all kinds of goods whether corporeal or incorporeal. And yet we find that there are doubts regarding incorporeal goods like actions and credits, that in fact the States-General have sometimes expressed doubts, and have even contradicted this principle. When the French King and the bishops of Cologne and of M�nster in 1673 had confiscated even actions, and had ordered the exaction of what their subjects owed to the citizens of the United Provinces, the States-General by the edict of July 6, 1673,1 disapproved, decreeing that payment could be made only to the real creditor, and that they would consider null and void such exactions whether made forcibly or by consent. But in fact it appears that by common law actions may be also confiscated, and that indeed by the same reason as any corporeal goods. Actions and credits are surely no less in our dominion according to the law of nations than are other goods; why then should we not apply the law of war to the former as well as to the latter? And if no argument appears to show any real distinction between the two, reason alone supports the common law; nor are there wanting examples and authorities to support it. It is apparent from Polybius that Antiochus and the Romans agreed to restore actions as well as every other thing confiscated in time of war, and this gives proof that even actions had been confiscated on both sides. That the Kings of France and Spain also exercised this right against each other is indicated by Article 22 of the treaty they signed on September 17, 1678,2 for there it is agreed that confiscated credits should not be restored. The King of Denmark also, upon declaring war against the Swedes on March 9, 1676,3 issued a public edict demanding that the goods of Swedes on Danish territory and also the debts due to individual Swedes should be handed over to the Treasury within six weeks under penalty of double the value and further discretionary punishment against those who did not obey. The Danish King issued a similar edict against the English in 1667 as Aitzema relates.4

That even the Dutch have not always been so averse to that

1 Het Groot Plac. etc., III. 1. 8. 4. 2 Francia anti Hispan., 218. 3 Hollandsche Mercurius, 1676, p. 47. 4 Historien, XLVII, p. 390.

XXI. xlv.


doctrine is apparent from the edict of July 18,1536,1 from the edict2 of Philip II against the French dated March 27, 1556, and from the edict of the Estates of Holland dated January 29, 1591.3 There is also extant the edict which the Prince of Orange and the Court of Holland issued on December 7, 15774 over the assumed name of Philip II, King of Spain, in which they confiscated not only the goods of those who deserted to John of Austria, but indeed all the goods movable and immovable, and even actions and credits, of all their enemies. The States-General also, on June 4, 1584 5 declared the men of Bruges and ofVrye their enemies because they had gone over to the Spaniards, and ordered their goods, actions, and credits as well private as public confiscated. Likewise when those of Venio had gone over to the Spaniards, the Earl of Leicester declaring by the edict of July 9, 1586,6 that they were guilty of treason, ordered their goods, movable and immovable, their actions and credits confiscated. And lest some one assume that these decrees attacked the people of Bruges, Vrye, and Venio on the ground of treason rather than of general enmity, since they had taken the oath of fidelity to the confederation of Utrecht, I should like to observe that the penalties of the edict of June 4, 1584, are applied to all 'who consider themselves to be our adversaries in whatever manner it may be', precisely just as in the aforecited edict of December 7, 1577, traitors and enemies are classed together in the matter of confiscations.

As bearing on this subject we should note the decree of the States-General dated October 2, 1590, and that of the Estates of Holland dated October 29,7 of the same year, both of which contain the following clause:'that those who come into these provinces from the enemy's country, even though provided with proper passports, shall not be qualified to bring any personal or real action either as plaintiff or as defendant, but shall be dismissed from court in order that hostility against the enemies, and the confiscation of their goods, rights, and actions, may remain to the fullest extent.' In accordance with these decrees not even personal actions can be brought, and the explanatory clause provides the reason for this, namely that actions as well as the goods of the enemy are confiscated by the law of war. Furthermore, when the King of France ordered the goods of Dutch subjects seized, the Estates of Holland on April 26, 1657,8 passed a similar decree regarding the goods of Frenchmen, prohibiting the making of any payment to them, and ordaining that if any one made such a payment, he must pay an equal amount into the Treasury, whence the loss could be made good to those who had suffered con-

1 Repertorium van de Placaten van Holland, p. 32 b. 2 Ibid., p. 88 a.

3 De Sententien van den Hoogen Rade, p. 143. 4 Het Groot Plac., etc.. Append., p. 2147.

5 Ibid., II. 4. 1. 1. 1. 6 Ibid., II. 4. 1. 1. 2.

7 Ibid., Append., p. 2209. 8 Ibid., II. 4. 28. 3. 1.


fiscation in France, and in addition half the amount of the debt by way of punishment. They also ordered the goods and credits of the French to be brought, under penalty, to officers appointed in each town for the purpose. It is apparent, therefore, that the Estates of Holland then thought it proper to confiscate credits, and in this I agree with them. Hence our courts have rightly held that if a subject pays to his government, which has confiscated enemy credits, the debts he owed the enemy, he is properly discharged.

However, these rules are suspended when wars are waged with such moderation that commerce is permitted from both sides: for there can be no commerce without contracts, nor contracts without actions, nor actions without courts, nor courts without persons who have proper standing before the courts. Would any one bring goods for sale to the enemy without hope of exacting the price? And is there any hope of exacting the price unless one can employ the courts against the enemy purchaser? Accordingly, even though an enemy may not have standing in court, as the aforesaid decrees of 1590 simply assume and as courts and jurists have held, yet exceptions are rightly made if the privileges of commerce are enjoyed on both sides;

but if not, actions, though arising out of commerce, may justly be confiscated. But are we to make a distinction between cases arising out of commerce and other cases, so that we grant the enemy standing in court in the former while we refuse it in the latter? The aforesaid decree makes this distinction, and if this is correct the distinction must of course apply to the confiscations of actions as well. But if we once permit the enemy to bring actions, it is difficult to distinguish from what causes they arise, nor have I been able to observe that this distinction has ever been carried into practice.

Moreover, if we forbid the enemy recourse to our courts, we cannot properly bring legal action against an enemy who happens to remain within our territory. Accordingly, the decision of our supreme senate1 confirming the decisions of the lower court and of the Court of Holland was unjust in holding that an enemy who had come to this country with a passport could be arrested and brought to trial. For it is manifestly wrong to forbid an enemy recourse to our courts,. as is done by the above-mentioned decrees of October 2 and 29, 1590,. without granting him the attendant privileges. By the law of war one must grant to the enemy what one arrogates to oneself.

What I said about the legality of confiscating actions holds true only if the sovereign has exacted for the Treasury the money that his subjects owed the enemy. If he has exacted it, the debt is paid in full; but if he has not, the right of the former creditor revives when peace is made, since the occupation caused by war consists more in

1 September 18, 1590, De Sententien van den Hoogen Rade, 170.

De Hollandsche Consultation, I, no. 297.

De Hollandsche Consultation, I, no. 289, and V, 168;

cf. Groenewegen on Code, III. vi. De Hollandsche Cons., I, no. 289, and Groenewegen, on Code, III. vi. No. 289.


fact than in law. Consequently, credits that were not exacted seem, as it were, to lie dormant during the war, and to return at peace to their former owner by a land of postliminy. On this principle it has generally been agreed among nations that credits confiscated in war are lost and forever extinct if they have been called in by the sovereign, but if not, they revive and return to the real creditors. Such agreements are found in Article 5 of the treaty between Frederick III of Denmark and Charles II of England, July 31, 1667,1 Article 37 of the treaty of September 21, 1667, between the Kings of Spain and England,2 and Article 22 of the treaty of September 17, 1678, between the kings of France and Spain. This last treaty I cited above to prove (as indeed the other two treaties also prove) that actions as well as goods have been confiscated in time of war, and have also not infrequently been exacted.

But it must not be supposed that actions are the only things that are not ipso jure confiscated, for this is also true of goods that are in an enemy's country and are perchance concealed. Hence the courts have rightly held that goods which we had in the enemy's country before the war and which were hidden during the war, hence escaping confiscation, became, if finally recaptured, not the property of the recaptors but of the former owners.

1 Aitzema, Historien, XLVII, p. 405. 2 Ibid., p. 653.

Het Nederlandsch Advis-boek, III. 67.


CHAPTER VIII

WHETHER IT IS LAWFUL TO PURSUE OR ATTACK AN ENEMY IN A NEUTRAL PORT OR TERRITORY

WE exercise the right of war against an enemy only in our own territory, the territory of the enemy, or the territory that belongs to no one. If we capture the enemy on our own territory there is nothing to hinder our treating him in a hostile manner, unless he has come with a safe-conduct. Considerations of war also permit us to invade the enemy's territory and capture booty there; and the same is permissible upon the high seas, as being the territory of no one. But he who commits hostilities on the territory of a neutral, makes war upon the sovereign who governs there, and who lawfully repels every attack by whomsoever it may be made. Therefore the Carthaginians, though superior in naval forces, did not dare attack the Romans in the harbours of the Numidian King, as Grotius, citing Livy, narrates. Zouche, who copies Grotius, brings up some contrary arguments, but even these Grotius had already mentioned and refuted.

Now although all writers on public law, without exception I think, prohibit the use of force in the dominions of another, it deserves to be considered whether or not the customs of nations and the decisions of our princes and legislative bodies have been in accord with this principle, and whether we ought in this discussion to distinguish between the right of pursuit and the right of aggression. To begin with the princes, Philip II, King of Spain, in his Leges Nauticae which he gave to the Belgians on October 31, 1563,1 ordained, under penalty of death, that no violence should be done on the sea for the sake of war or anything else against his subjects and allies, or against 'foreigners within sight of land or port'. It was understood, therefore, that the dominion of the mainland extended as far from land as the eye could see; and there are authorities who agree. But I have shown in my dissertation De Dominio Maris that this definition is too vague, for I hold that the territorial dominion ends where the power of weapons terminates. And I think I have shown in Chapters II and IV of the cited work that both the States-General and the Estates of Holland agree with me, in proof of which I cited two decrees relating to the salutation of princes.

It certainly is not permissible to attack or take an enemy in the port of a friend .who is also on friendly terms with our enemy. If any one should do this, it is the duty of our friends to procure the

1 Het Groot Plac. etc., I. 2. 7. 1. 2.

On the Law of War and Peace, III. iv. 8. 2 De Jure Feciali, II. ix. 7.

I. 27.

Chap.II.