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Gordon: A Supplement to the London-Journal of March 25, 1721; being the State of the Case relating to the Surrender of Mr. Knight, Farther Considered. Anno 1728. - John Trenchard, A Collection of Tracts, vol. I [1751]

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A Collection of Tracts. By the Late John Trenchard, Esq; and Thomas Gordon, Esq; The First Volume. (London: F. Cogan, 1751).

Part of: A Collection of Tracts, 2 vols.

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A Supplement to the London-Journal of March 25, 1721; being the State of the Case relating to the Surrender of Mr. Knight, Farther Considered.

Anno 1728.

By T. Gordon, Esq;

To the Author of the London Journal.

SIR,

MR. Knight being still protected at Antwerp, notwithstanding the pressing Instances made by His Majesty for his Surrender; I desire you will, as a Supplement to your Paper of the 25th of last Month, give the following Argument to the Publick as soon as possible; which I have just receiv’d in a Letter from a very great Civilian at Brussels; and which I have faithfully translated, that the English Nation may see the Sentiments of a Brabander, upon the great Point in Questiokn, between the High and Mighty States of Brabant, and our Abus’d and Unhappy Country.

I am, SIR, Your Constant Friend.

April 21, 1721.

A Native of Great Britain, and Person in a publick Office, where he had the Management of publick Money, being suspected of Maiversation, was personally and juridically cited to appear before competent Judges, to answer to Interrogatories relating to certain Facts laid to his Charge; which was comply’d with accordingly: But he (fearing a Decree against him of bodily Imprisonment) takes his Measure to escape, and actually flies the Kingdom; carrying with him (as ’tis presumed) considerable Sums, as well in Money as Effects. And after having crossed the Sea, and Flanders, and Brabant, as far as to Tirlemont, (with an apparent Intention of leaving Brabant) he there is overtaken and seized by the Authority of the Government.

The Question is,

Whether any Potentate, Authority, or Judge, being thereto duly required, can, with Justice, refuse to surrender the Person so arrested, and hinder his transport out of Brabant; in order to be delivered to the Power so claiming and demanding him?

The Opinion is in the Negative.

In order to consider the Question thoroughly, we must in the first place examine, upon what Eoundation such a Refufal can be supposed to be laid; and shew that none of them are of any Avail in the present Case.

This Refusal may be founded upon two Heads;

The First, is the Right of Azylum or Refuge simple and common.

The Second, is the particular Privileges of Brabant, granted to them by the 17th Article of the Joyful Entry* , which forbids the transporting of a Prisoner out of the Province.

As to the Right of Azylum or Refuge, ’tis neither founded upon Divine Right, nor the Right of Nature, nor the Right of Nations, but purely positive. [Ains purement positif.] On the contrary: Suum cuique tribuere, & crimina non relinquere impunita, [to give to every Man his Due, and not to leave Crimes unpunished,] is agreeable to all Right. And in order to distinguish, whether the pretended Right of Azylum can take place, we must consider the Case either as Criminal or Civil.

It is most certain, that even in Germany (where by Reason of the great Numbers of Princes and States, the Jealousy of their Privileges, in relation to the Azylum, or of giving Refuge and Protection [called Freijhung] is greater than any where else) the Person now arrested, would never have had the Privilege of Azylum: For there ’tis properly designed, pro subditis & etiam forensibus in principis territorio delinquentibus, [For Subjects, and also, for Strangers transgressing within the Territories of the Prince.] For which, the decisive Reason in the Case of Foreigners is, That the Person committing the Fault or Delinquency within the Territory of the Prince, may be said to violate only the Jurisdiction of the Lord, and not of any other Prince; and therefore he against whom the Crime is committed, may remit the Crime: [tit. Pro Forensibus: Quod delinquens in Prinipis territorio solummodo jurisdictionem Domini, (non verò alterius Principis) violare dicatur. Ideo hanc injuriam quoque remittere potest is in quem injuria commissa est. Quod variis rationibus confirmat Nicolaus ab Ehrenbach Tract. de jure Azyli.]

And although that upon the Dispute, Whether a Prince of the Empire, setting up an Azylum or Right of Refuge in any City of his Dominions, can bestow upon it so great a Privilege, as that a Foreigner being a Delinquent, or committing his Crime out of the Dominions of the said Prince, [which is the present Case] can enjoy so far an Immunity, that this Azylum or Right of Refuge can be of Force and Extension to all the Criminals in the Empire? I say, although the Affirmative of the Case thus stated may be probable, grounded principally upon this, Because the Avocations and Commissions of Delinquents do now depend upon the Will and Pleasure of the Prince of the Territory, whether he will send back the Delinquent at the Instance of the Requirer or not? Yet all Authors agree, That these sort of Azylums (so commended in Deuteronomy and Joshua) are only so far praise-worthy, and ought of right to subsist, whilst they afford Protection (not to voluntary Delinquents, nor to deceitful ones) but to imprudent Persons: Haec Azyla tantum Laudem mereri, & de Jure subsistere, quando patrocinantur non voluntariis nec dolosis [Den Muthwinligen und vorsetzlichen] sed imprudentibus.

Now that the Malversations which a Person commits, in his Office, and in the Money depending thereon, are voluntary and deceitful Crimes, is as clear as possible, and is further confirmed by the Flight of the Delinquent out of Great Britain; which excludes him from the Right of Azylum in all Nations; more especially he having been personally cited, and having answered to Interrogatories, (which is a Commencement of a criminal Procedure) the Delinquent being fixed and limited to a certain Town, Province, or Kingdom for his Prison; in which Case; (were there no other) the Right of Refuge in a Foreign Country is very disputable; I say, upon this very Head.

And without entering into the Discussion of this Question, ’tis not to be believed, that the Sovereign will ever grant a Protection or Azylum in his Territories to a Delinquent who was but a Passenger thorough them, and was already upon the utmost Limits of them, in order to save himself in some other Country.

Besides, it is to be observed, That the German Authors, treating of this Matter, spake, de forensibus, sed sub Imperio; [of Foreigners, but such as are under the Jurisdiction] and not of absolute Strangers: Forasmuch as ’tis commonly received among all Potentates of the Earth, who are not in actual War, (and in particular, by the Great Allies) that Princes take not the Subjects or Vassals of each other into their Protection, without their Prince’s particular Consent, let the Case be either Criminal or Civil (as Bodin, in his Treatise, de Republicâ, very well observes;) unless the Person so protected were banished by his Prince. This agrees with Solon’s Law, which forbids, that any Foreigner should have the Right of Burgessship in Athens, who was not banished from his own Country; and without giving these Instances, we may generally say, in the Terms of the Law, That the Right of Burgessship is not lost, nor the Power of the natural Prince over his Subject taken away by Reason of his changing his Place or Country.

’Tis very true, that often Princes do draw, and entice Strangers to them, either upon the Score of Religion, or to People their Country, or in order to weaken the Power of their Neighbours, or to gain excellent Artificers, and Persons of superior Abilities, or upon other Views. But on the other hand, we likewise see that all Princes do what is in their Power to hinder this Practice, by forbidding their Subjects to quit their Dominions without Leave: Thus ’tis in Britain, Denmark, Sweden, Naples, and elsewhere; the Nobility of which cannot absent themselves without Permission.

And altho’ the Low Countries (especially Brabant) be a very free Country, where, according to the Ordinances of the Year 1312, Strangers might come and establish their Housholds, and these might afterwards remove themselves whither they pleased: Yet the several Placards of the 18th of September, 1567; the 1st of July, 1609; the 15th of November, 1627, with the Notes of Zipens de notitiâ Juris Belgici, according to the Customs of Flanders, by him cited, shew that this Liberty is very much limited in several Particulars; and even in our Days we see the Fiscals exert themselves, when the Case touches the Conservation of the Good of the State, in whatsoever Province, City, or Fraternities of Trade (wherein the Diminution, or Disadvantage of the Publick, may be concerned) it may happen. And therefore (over and above the several Treaties) Princes make By-Laws and Ordinances for the Conservation of the State, which ought certainly to be reckoned among the Fundamental Laws, tho’ they may not perhaps be called by that Name. And we may conclude with Bodinus, that Princes are accustomed among themselves for this Reason to put in force Rogatory Commissions, or Letters of Marque, to make their Subjects obey, and to evoke or reclaim the Causes and Pursuits against them, (except in Cases of Right determined;) and upon this Point we often see War declared between the Princes requiring and refusing.

Now as to the Second Head founded upon the particular Privileges of Brabant, this ought not to come under Consideration till the Person arrested has declared, by some Remonstrance, that he insists upon it, and pretends to make his use of it. For whosoever builds upon a Privilege, ought to alledge and prove it first. Notwithstanding, whilst we are in the Dark, whether such Remonstrance was ever made or not, we may venture to say, that this Privilege can no way operate in the present Case. All that the Person arrested can alledge must be, that the Text of the Joyful Entry, in the 17th Article, wherein it is said, So what Person; Whatsoever Person, &c. comprehends in general, and without Distinction, Restriction, or Modification (in respect to the Person arrested) all sorts of People, whether of Brabant, or of all the Low Countries, or any other way a Subject of the Prince, or an utter Stranger; and that this Privilege is real, and attached and annexed to the Land of Brabant. But if any one wou’d penetrate into the true Sense of this they wou’d find that the Meaning of it must be, that when a Brabander is made a Prisoner in Brabant, the Duke shall neither cause, nor suffer him to be conveyed a Prisoner out of the Land of Brabant. The Word So what Person, finds its Signification in the Person of a Subject of Brabant, of whatsoever Condition or Sex it may be, whether Man or Woman, Ecclesiastick or Secular, Noble or Ignoble. The Word Gevangen, or Prisoner, signifies properly a Criminal Prisoner; and the meaning is, that a Brabander being there made Prisoner, shall be absolutely and finally judged by Judges of Brabant, and according to the Laws of Brabant [as in England, all Persons are to be tried by the Vicinage.] This Law, in its self is good and just, and this corresponds with many other of the Articles in the same Joyful Entry, which speak of Judges, and the Execution of Justice; but if we should stretch the Interpretation of it to Strangers indifferently, it wou’d become very unjust.

All Privileges are to be regularly taken upon the Foot of Remuneration; and shou’d this Article be construed so generally, as to extend to Strangers, it wou’d follow, that all Nations in the World had merited from the Brabanders and their Duke.

In the Duke of Alva’s Time, this Matter was pushed very far in favour of the Belgian Provinces in general (they being all then united under the same Sovereign) but never in favour of absolute Strangers. And altho’ we should suppose that Great Britain had merited very much at the Brabanders Hands, wou’d it therefore follow, or be thought to be allowed in favour of a particular Subject of Great Britain, to the Disadvantage of that King, the Kingdom, or the States of it? Ought this Merit to be recompenced the quite contrary way?

In fine, let us take this Privilege in the most general and comprehensive Sense; and for as strong and fundamental a Law as some wou’d have it: I am going to prove, that it can have no manner of Operation in the present Case.

By the 24th Article of the Joyful Entry ’tis stipulated, That the Duke shall not suffer his Subjects of Brabant to arrest or implead each other out of the Jurisdiction of Brabant: And you may note, by the way, that this Law binds and obliges a Subject of Brabant, tho’ he be out out of the Prince’s Territory; and this shews you, that as well in Brabant as elsewhere, what we averred before is true, viz. that the Power of the Prince over his Subject is not lost or diminished by the changing his Place of Abode or Country; and most certainly can never be supposed otherwise, quando mutatio est momentanea, when this Change is of a sudden, and but for a short time: And every Man will readily believe, that if this case should happen in Great Britain, the King would give a speedy Redress upon the first Requisition and Instance of the Duke of Brabant. These two Privileges, contained in the 17th and 24th Articles (whereof the Second, taken generally, is more strong than the First) ought, with great Reason, to lie under the same Restrictions and Modifications. The Second is actually modified in Terms by the said 24th Article, wherein these Words follow immediately those before quoted, unless the Person to be arrested be a Fugitive; if then, a Brabander may lawfully arrest his Debtor Brabander out of that Country, in case he be a Fugitive; it is much more equitable to grant the same Privilege in Brabant to Strangers.

But further, whoever peruses the Treaties between England and the Sovereign of Brabant, will find by them, that the Obligations between these two Nations are much stronger than between Brabant and any other Foreign Country. The Treaty of 1495, confirmed by several subsequent Treaties, viz. those of 1604, 1630, and 1660, contains this Clause, as translated out of the Latin, Chap. 27, That any Subject of either of the two Princes, alledging, That his Debitor is justly suspected to be a Fugitive, the said Debitor ought to be put and held under Arrest, unless he proves, that he ought not to be suspected of being such Fugitive. But here the Question is not between particular Subjects of the different Potentates, whereof the one is barely suspected of Flight; but wherein a King, a Kingdom, a whole Nation is concerned, pursuing a Subject, truly a Fugitive, by such plain Proofs as admit of no Contradiction: A Subject in a publick Office, entrusted with the Management and Disposal of vast Sums of Money, whereon depends the Publick Credit of the whole Nation: A Person who ought to be sent back to be judged according to the Laws of his own Country; it being a Thing impossible, that those Laws should be thoroughly understood by any Judges of a strange Country.

And who can imagine, that the Sovereign of Brabant should refuse to send him home, considering, that by the Stipulations in the Treaties, the two Princes have obliged themselves reciprocally to procure and promote, in all Things, whatsoever shall be to the Advantage of each of them and of his Nation; and also, to hinder every thing that may be any ways hurtful? And as to the States of Brabant, how should they dare to oppose the Surrender and Return of such a Criminal? Surely, they would not be willing that the like should happen in their own Case, if one of the Receivers of publick Money should run away and take shelter in Great Britain. There is a Rule which is very good and natural, which dictates, Quod tibi non nocet, Alteri Prodest, facile est concedendum! maxime dum non solum non prodesset, sed multum noceret si non fieret. Whatever does you no harm, and does Another Person good, ought to be easily granted; but especially, when it would do no good, but might do a great deal of harm if it were not done. Now No-body can see what Harm or Wrong it would do the Brabanders, if the Person arrested were sent over; or to their Privilege, whereof the Sense and Meaning has been declared dubious by the Act of the Magistrate of Brussels, made the 6th Day of October, 1692, and signed, H. Jacobs, at the Instance of the Scout of Amsterdam against Peter Baltazar Lievens, a Bankrupt of Amsterdam, detained a Prisoner in the Vrunt, (a Prison so called at that Time) the Words of that Act are, That whereas the Prisoner pleaded, that the Privileges of Brabant ought to operate in his Favour, altho’ he was neither a Brabander nor a Subject of his Majesty; under the Pretext, that the Article was couched in general Terms; therefore, in order to avoid any Infraction, it was resolved, to leave the Sense and Iaterpretation of it to the Council of Brabant: Which at last was finally determined and put beyond all doubt by the Decree of the Governour General, with the Advice and Consent of the said Council and of the Estates. By Virtue of which, the Prisoner was surrendered, and put into the Possession of the Resident of the States-General of the United Provinces.

There were these further Differences and Singularities between this and the present Case; That the said Lievens was a Roman Catholick; and alledged, that he retired into Brabant in order to have the freer Exercise of his Religion. That he came into Brabant, with a Design to fix his Houshold and Family there; that he had already for a long time dwelt there. That the Jurisdiction of the Judge over him in Holland, was not yet thoroughly founded by any Act of Summons, or otherwise.

In the present Case it is therefore most certain, that the Requisitories, or Instances of his Majesty of GreatBritain’s Ministers ought to take place, notwithstanding all Privileges of this Nature; which according to the Opinion of the before-cited Zipeus, (in his Introduction) might even be abrogated. His Words are as follows———Sed & hæc ipsa (privilegia) frequentem patiuntur abrogationem, si quod in utilitatem publicæ considerationis concessum est incipiat vergere in nimium damnum, vel etiam modum excedat: Et etiam possunt ipsi ordines privilegia concessa remittere, dummodo causa aliqua subsit; imo potest princeps Leges publicas & promissas non tenere si irrationibiles sint vel deveniant, & aliud salus publica exigat.——— But the very Privileges do frequently bear an Abrogation, if what was at first granted for the Sake of the publick Utility, should begin to turn to its great Damage, or should exceed a just Measure; and the very States themselves can, upon Occasion, remit the Privileges granted to them: Nay the Prince may suspend the publick Laws and his Promises, if they be or become unreasonable, and the Publick Safety require it.

And ’tis believed, for this very Reason, at the Time of the Joyful Entry of Philip the Second [Charles the 5th of immortal Memory, being then present and assisting, in the Year 1549] after several Conferences and Debates held between the Prince and the States (by Commissaries, who thoroughly understood the Authority and Superiority of the Prince, as well as the Original Rights and Privileges of the Country) upon occasion of changing or moderating the Articles, according as they should be observable, or non-observable, in respect to the Promise made by the Prince, to observe them in the last Article but one that this Clause was added,——— so far as the said Articles are to be observed, or are observable; which Clause has ever since been inserted in all the subsequent Joyful Entries. And we think ’tis sufficiently demonstrated, that the Privilege in Question is among the Number of the Non-observables with Regard to Foreigners. And namely, in the Case of a Subject of Great Britain; who besides of all the foregoing Reasons, was in procinctu, just ready to run out of Brabant itself, and has thereby rendered himself unworthy of any Privileges belonging to a Brabander.

[* ]Item, Dat so wat Persoon binnen onsen Lande van Brabant ende van Over Maeze, ghevangen wort, dat wij dien niet en sullen doen voeren, noch laeten voeren ghevangen buijten onsen voorsz Lande.

Translated verbatim.

Item, That if any Person within our Territories of Brabant and Over Maeze, be made a Prisoner, that we shall not order such a Person, nor permit him to be carried Prisoner out of our aforesaid Territories.