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 Münster (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 Münster 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 bâtiments 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.

Hollandiæ 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 præfati 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

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