CtonteH WLmvmxty ff itaeg THE QIFT OF £>ji:.cL.£LVvto .^.3.^3=1. 3.hJ.K.\no Cornell University Library JX4423.G88 1916 The freedom of the seas :or, The right w 3 1924 005 221 498 * Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924005221498 HVGONIS GROTII MARE LIBERVM SIVE DE IVRE QVOD BATAVIS COMPETIT AD INDICANA COMMERCIA, DISSERTATIO 1608 Carnegie Endowment for International Peace DIVISION OF INTERNATIONAL LAW THE FREEDOM OF THE SEAS OR THE RIGHT WHICH BELONGS TO THE DUTCH TO TAKE PART IN THE EAST INDIAN TRADE A DISSERTATION BY HUGO GROTIUS TRANSLATED WITH A REVISION OF THE LATIN TEXT OF 1633 BY RALPH VAN DEM AN MAGOFFIN, Ph.D. Associate in Greek and Roman History and Roman Archaeology The Johns Hopkins University EDITED, WITH AN INTRODUCTORY NOTE BY JAMES BROWN SCOTT DIRECTOR NEW YORK OXFORD UNIVERSITY PRESS AMERICAN BRANCH: 35 Wbst S?nd Strut LONDON, TORONTO. MELBOURNE. AND BOMBAY HUMPHREY MILFORD 1916 /\.3U,3f3 t ] COPYRIGHT 1916 BY THE CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE Washington, D. C. THE QUINN A BOOER CO. PRESS RAHWAY, N. J. INTRODUCTORY NOTE Since the month of August, 1914, the expression " Free- dom of the Seas " has been on the lips alike of belligerent and neutral, and it seems as advisable as it is timely to issue — for the first time in English — the famous Latin tractate of Grotius proclaiming, explaining, and in no small measure making the " freedom of the seas." x The title of the little book, first published, anonymously, in November, 1608, explains the reason for its composition: " The Freedom of the Seas, or the Right which belongs to the Dutch to take part in the East Indian trade." It was an open secret that it was written by the young Dutch scholar and lawyer, Hugo Grotius. It was a secret and remained a secret until 1868 that the Mare Liberum was none other than Chapter XII of the treatise De Jure Praedae, written by Grotius in the winter of 1604-5, which first came to light in 1864 and was given to the world four years later. 2 The publication of the treatise on the law of prize is important as showing that the author of the Mare Liberum was already an accomplished international lawyer, and it 1 For the freedom of the seas and the relation of Grotius to the doctrine, see Ernest Nys's Les Origines du Droit International (1894), pp. 379-387, and the same author's Etudes de Droit International et de Droit Politique, 2 e serie (1901), Une Bataille de Livres, pp. 260-272. For an account in English see Walker's History of the Law of Nations, Vol. I (1899), pp. 278-283. For an interesting sketch of the illustrious author of the Mare Liberum, see Motley's The Life and Death of John of Barneveld, Vol. II, Chap. XXII; for an analysis of Grotius' views on the law of nations, see Hallam's Intro- duction to the Literature of Europe (4th edition), Vol. II, Part III, Chap. IV, Sec. Ill; for an account of Grotius as a humanist, see Sandys' History of Classical Scholarship (1908), Vol. II, pp. 315-319. * Hugonis Orotii De Jure Praedae, edited, with an introduction, by H. G. Hamaker, and published at The Hague in 1868 by Martinus Nijhoff. vi INTRODUCTORY NOTE proves beyond peradventure that the masterpiece of 1625 on the " Law of War and Peace " was not a hurried pro- duction, but the culmination of study and reflection ex- tending over twenty years and more. More important still is the fact that neither the law of prize nor the Mare Liberum was a philosophic exercise, for it appears that Grotius had been retained by the Dutch East India Com- pany to justify the capture by one of its ships of a Portu- guese galleon in the straits of Malacca in the year 1602; that the treatise on the law of prize, of which the Mare Liberum is a chapter, was in the nature of a brief; and that the first systematic treatise on the law of nations — The Law of War and Peace — was not merely a philosophical disquisi- tion, but that it was the direct outgrowth of an actual case and of professional employment. 1 1 In support of the view that Grotius appeared as counsel in cases arising out of captures made by vessels in the service of the Dutch East India Company, and that the treatise, De Jure Praedae, is a legal brief, see R. Fruin's Een Onuitgegeven Werk van Hugo De Groot in Verspreide Getschriften, Vol. Ill, pp. 367-445. The following passages are quoted from this remarkable essay: " While busy with the sale of the goods [of the captured merchantman Catherine, which had been unloaded in the Amsterdam arsenal], the process of adjudicating the booty before the admiralty court was conducted in the usual forms. Claimants: Advocate General of Holland, the Board of eight Aldermen, and Admiral Heemskerck; ... on Thursday, September 9, 1604, final sentence was rendered, and 'the merchantman together with the goods taken from it were declared forfeited and confiscated'" (pp. 389-390). " Hulsius in some measure replaces what the fire at the Marine Arsenal has robbed us of; among other records he has preserved for us in his Achte Schifart the sentence pronounced in this matter by the admiralty, and of which we have knowledge from no other sources. From it we learn the grounds upon which the claimants demanded the adjudication of the booty. These grounds are the same twelve which De Groot discusses in his book. . . . This concordance can be explained on the ground that De Groot must have had acquaintance with the sentence; but he was not a man merely to repeat what others had before him witnessed. I should be inclined to feel that in the process he had served as counsel for the Company, and that he himself was one of the authors of the written claim upon which the sentence was based. It would not then be sur- prising if in his book he should develop at greater length and throw light upon what had already been set forth in the claim" (pp. 390-391). " I cannot state definitely that Hugo De Groot was persuaded by the Directors to write such an argument; I have been unable to discover any evidence to INTRODUCTORY NOTE vii The Spaniards, as is well known, then claimed the Pacific Ocean and the Gulf of Mexico, and Portugal claimed, in like manner, the Atlantic south of Morocco and the Indian Ocean, and both nations, at this time under a common sovereign, claimed and sought to exercise the right of excluding all foreigners from navigating or entering these waters. The Dutch, then at war with Spain, although not technically at war with Portugal, established themselves in 1598 in the island of Mauritius. Shortly thereafter they made settlements in Java and in the Moluccas. In 1602 the Dutch East India Company was formed, and, as it at- tempted to trade with the East Indies, its vessels came into competition with those of the Portuguese engaged in the Eastern trade, which sought to exclude them from the Indian waters. One Heemskerck, a captain in the employ of the Company, took a large Portuguese galleon in the Straits of Malacca. To trade with the East Indies was one thing, to capture Portuguese vessels was quite another thing. Therefore, some members of the Company refused their parts of the prize; others sold their shares in the company, and still others thought of establishing a new company in France, under the protection of King Henry IV-, which should trade in peace and abstain from all warlike action. The matter was therefore one of no little importance, and it appears that Grotius was consulted and wrote his treatise on the law of prize, which is in the nature of a brief and is, at any rate, a lawyer's argument. 1 that end. That he was in close relations with the Company, he himself says in a letter of later date, addressed to his brother. Nor can there be any doubt that in writing his work he made use of the archives of the United Company and of its predecessor. If the supposition, which I have elsewhere ventured to make is correct, that is to say, that in the conduct of the case he appeared as advocate for the Company, it would then appear most probable that, after consultation with the directors, he set about writing his book, which was to be a second plea in their behalf" (p. 403). 1 For the account which Grotius himself gives of the incident, see his Annates et Historiae de Rebus Belgicis ab Obitu Philippi Regis usque ad Inducias Aimi 1609, written in 1612, but first published in 1658, Book 1, p. 429. viii INTRODUCTORY NOTE In 1608 Spain and Holland began negotiations which, on April 9, 1609, resulted in the truce of Antwerp for the period of 12 years, and, in the course of the negotiations, Spain tried to secure from the United Provinces a renuncia- tion of their right to trade in the East and West Indies. The Dutch East India Company thereupon, it would appear, requested Grotius to publish that part of his brief dealing with the freedom of the seas. This was done under the title of Mare Liberum, with such changes as were necessary to enable it to stand alone. It will be observed that the Mare Liberum was written to refute the unjustified claims of Spain and Portugal to the high seas and to exclude foreigners therefrom. The claims of England, less extensive but not less unjustifiable, were not mentioned, and yet, if the arguments of Grotius were sound, the English claims to the high seas to the south and east of England, as well as to undefined regions to the north and west, would likewise fall to the ground. Therefore the distinguished English lawyer, scholar, and publicist, John Selden by name, bestirred himself in behalf of his country and wrote his Mare Clausum in 1617 or 1618, although it was not published until 1635, to refute the little tractate, Mare Liberum. 1 In the dedication to King Charles I, For a. fuller account of the circumstances under which the treatise on the law of prize was written, see Hamaker's edition of the De Jure Praedae, pp. vii-viii. The distinguished historian and scholar, Robert J. Fruin, after an exhaustive examination of the evidence, informed Hamaker that Grotius was retained by the Company to prepare the commentary on the law of prize. The English translation of Hamaker's exact statement reads as follows: "Fruin is of the opinion that he [Grotius] undertook this work at the instance of the Company, and that he appeared in it as their spokesman." For an analysis of the commentary De Jure Praedae and the circumstances under which it was written, see Jules Basdevant's study on Grotius, pp. 131- 137, 155-179, in Pillet's Les Fondaieurs du Droit International (1904)., 1 Selden's Mare Clausum was not the only defense of England, nor was the Mare Liberum the only lance which Grotius broke for the freedom of the seas. In 1613 William Welwod, professor of Civil Law at the University of Aberdeen, published a little book entitled An Abridgement of all the Sea-Lawes, in which he maintained the English side of the question, of which Title XXVII, pp. 61- INTRODUCTORY NOTE ix Selden said: "There are among foreign writers, who rashly attribute your Majesty's more southern and eastern sea to their princes. Nor are there a few, who following chiefly some of the ancient Caesarian lawyers, endeavor to affirm, or beyond reason too easily admit, that all seas are common to the universality of mankind." The thesis of Selden was twofold: first, "that the sea, by the law of nature or nations, is not common to all men, but capable of private dominion or property as well as the land " ; second, " that the King of Great Britain is lord of the sea flowing about, as an inseparable and perpetual appendant of the British Empire." In this battle of books, to use the happy expression of Professor Nys, the Dutch Scholar has had the better of his English antagonist. If it cannot be said that Grotius wears his learning " lightly like a flower ", the treatise of Selden is, in comparison, over-freighted with it; the Mare Liberum is still an open book, the Mare Clausum is indeed a closed one, and as flotsam or jetsam on troubled waters, Chapter XII of the Law of Prize rides the waves, whereas its rival, heavy and water-logged, has gone under. In the leading case of The Louis (2 Dodson 210), de- cided in 1817, some two hundred years after Selden's book was written, Sir William Scott, later Lord Stowell and one of Selden's most distinguished countrymen, said, in reject- ing the claim of his country to the exercise of jurisdiction beyond a marine league from the British shore: 73, deals with the community arid property of the seas. Two years later Welwod published a second work, this time in Latin, entitled De Dominio Maris Juribusque ad Dominium praecipue Spectantibus Assertia Brevis ac Methodica. Grotius prepared, but did not publish, a reply to Welwod's first attack, entitled Defensio Capitis Quinti Maris Liberi Oppugnati a Gulielmo Welwodo Juris Civilis Professore, Capite XXVII ejus Libri Scripti Anglica Sermone cui TituVwm Fecit Compendium Legum Maritimarum. It was discovered at the same time as the commentary De Jure Praedae and was published in 1872 in Muller's Mare Clausum, Bijdrage tot de geschiedenis der rivaliteit van Engeland en Nederland in de zeventiende eeuw. x INTRODUCTORY NOTE I have to observe, that two principles of public law are generally recognized as fundamental. One is the perfect equality and entire independence of all distinct states. Relative magnitude creates no distinction of right; relative imbecility, whether per- manent or casual, gives no additional right to the more powerful neighbor; and any advantage seized upon that ground is mere usurpation. This is the great foundation of public law, which it mainly concerns the peace of mankind, both in their politic and private capacities, to preserve inviolate. The second is, that all nations being equal, all have an equal right to the uninterrupted use of the unappropriated parts of the ocean for their navigation. In places where no local authority exists, where the subjects of all states meet upon a footing of entire equality and independence, no one state, or any of its subjects, has a right to assume or exercise authority over the subjects of another. In closing the preface to the Mare Clausum, Selden used language, which the undersigned quotes, albeit in an inverse sense, as a fit ending to this subject: " Other passages there are everywhere of the same kind. But I enlarge myself too much in a thing so manifest. Therefore I forbear to light a candle to the sun. Farewell reader." James Brown Scott, Director of the Division of International Law. Washington, D. C, February 28, 1916. TRANSLATOR'S PREFACE The Latin Text The Latin Text is based upon the Elzevir edition of 1633, the modifications being only such as to bring the Latin into conformity with the present day Teubner and Oxford texts. References in the notes to classic authors are given in unabbreviated form, following in other respects the The- saurus Linguae Latinae Index. Citations to the Civil Law are given in the modern notation, which is followed, in parentheses, by the older method of reference. The text used is that of Mommsen, Krueger, Schoell et Kroll. The Canon Law is cited from the Friedberg edition of 1879-81. The abbreviations used are explained below. The Translation The translator wishes to make due acknowledgment for the passages from classic writers quoted from standard translations, to which references are also made in the notes. He has also consulted the French translation of Grotius by A. Guichon de Grandpont (1845). But his chief acknowl- edgment is to his colleague and friend, Professor Kirby Flower Smith of The Johns Hopkins University, to whom he read the translation, and who gave him the benefit of his knowledge of Latin and his taste in English, in a number of troublesome passages. Many niceties of the translation belong to Professor Smith, but mistakes in interpretation belong to the translator alone. Acknowledgment and thanks are also due to Professor xi xii PREFACE Westel Woodbury Willoughby of Johns Hopkins, who has been so good as to read the translation through in galley proof and give the translator the benefit of his technical knowledge of law; to Bishop Shahan, Rector of the Catholic University of America, who has given of his time to help expand several of Grotius' abbreviated references to theo- logical or canonical authors; and to John Curlett Martin, Johns Hopkins Fellow in Greek, who has been of great assistance in the verification of references. List of Abbreviations Auth., Authenticum. Clem., Constitutiones dementis Papae Quinti. Dist., Distinctio Decreti Gratiani. Extravag., Constitutiones XX D. Ioannis Papae XXII. Lib. VI, Liber sextus Decretalium D. Bonifacii Papae VIII. Other abbreviations should offer no difficulties. Notes of Explanation The words and phrases in the Latin text in capitals follow the type of the Elzevir text. In order that both text and translation may be complete in themselves, the notes below the translation follow the notes of the text in shortened or expanded form, or in duplicate, as the occasion would seem to demand. [ ] in the translation, text, or notes, inclose additions made by the translator. CAPITA DISSERTATIONIS HVGONIS GROTII DE MARE LIBERO PAGINA Ad Principes populosque liberos orbis Chris- tiani 1 CAPVT I. lure gentium quibusvis ad quosvis liberam esse navigationem 7 II. Lusitanos nullum habere ius dominii in eos Indos ad quos Batavi navigant titulo inven- tionis 11 III. Lusitanos in Indos non habere ius dominii titulo donationis Pontificiae 15 IV. Lusitanos in Indos non habere ius dominii titulo belli 18 V. Mare ad Indos aut ius eo navigandi non esse proprium Lusitanorum titulo occupationis . 22 VI. Mare aut ius navigandi proprium non esse Lusitanorum titulo donationis Pontificiae . 45 VII. Mare aut ius navigandi proprium non esse Lusitanorum titulo praescriptionis aut con- suetudinis 47 xiv TABLE OF CONTENTS CHAPTER PAGE Introductory Note v Translator's Preface xi Freedom of the Seas To the rulers and to the free and independent nations of Christendom 1 I. By the Law of Nations navigation is free to all persons whatsoever 7 II. The Portuguese have no right by title of dis- covery to sovereignty over the East Indies to which the Dutch make voyages . . 11 III. The Portuguese have no right of sovereignty over the East Indies by virtue of title based on the Papal Donation 15 IV. The Portuguese have no right of sovereignty over the East Indies by title of war . . 18 V. Neither the Indian Ocean nor the right of navi- gation thereon belongs to the Portuguese by title of occupation 22 VI. Neither the Sea nor the right of navigation thereon belongs to the Portuguese by virtue of title based on the Papal Donation . . 45 VII. Neither the Sea nor the right of navigation thereon belongs to the Portuguese by title of prescription or custom .... 47 CAPITA DISSERTATIONIS xv CAPVT PAQIHA VIII. lure gentium inter quosvis liberam esse mer- caturam 61 IX. Mercaturam cum Indis propriam non esse Lusitanorum titulo occupationis ... 65 X. Mercaturam cum Indis propriam non esse Lusitanorum titulo donationis Pontificiae . 66 XL Mercaturam cum Indis non esse Lusitanorum propriam iure praescriptionis aut consuetu- dinis 67 XII. Nulla aequitate niti Lusitanos in prohibendo commercio 69 XIII. Batavis ius commercii Indicani, qua pace, qua indutiis, qua bello retinendum ... 72 Regis Hispaniarum litterae .... 77 CONTENTS xv CHAPTER PAGB VIII. By the Law of Nations trade is free to all per- sons whatsoever 61 IX. Trade with the East Indies does not belong to the Portuguese by title of occupation . . 65 X. Trade with the East Indies does not belong to the Portuguese by virtue of title based on the Papal Donation 66 XI. Trade with the East Indies does not belong to the Portuguese by title of prescription or custom 67 XII. The Portuguese prohibition of trade has no foundation in equity 69 XIII. The Dutch must maintain their right of trade with the East Indies by peace, by treaty, or by war 72 Appendix: Two letters of Philip III, King of Spain 77 AD PRINCIPES POPVLOSQVE LIBEROS ORBIS CHRISTIANI Error est non minus vetus quam pestilens, quo multi mortales, ii autem maxime qui plurimum vi atque opibus valent, persuadent sibi, aut, quod verius puto, persuadere conantur, iustum atque iniustum non suapte natura, sed hominum inani quadam opinione atque consuetudine dis- tingui. Itaque illi et leges et aequitatis speciem in hoc in- venta existimant, ut eorum qui in parendi condicione nati sunt dissensiones atque tumultus coerceantur ; ipsis vero qui in summa fortuna sunt collocati, ius omne aiunt ex volun- tate, voluntatem ex utilitate metiendam. Hanc autem sen- tentiam absurdam plane atque naturae contrariam auc- toritatis sibi nonnihil conciliasse haud adeo mirum est, cum ad morbum communem humani generis, quo sicut vitia ita vitiorum patrocinia sectamur, accesserint adulantium artes quibus omnis potestas obnoxia est. Sed contra exstiterunt nullo non saeculo viri liberi, sapientes, religiosi, qui falsam hanc persuasionem animis simplicium evellerent ceteros autem eius defensores impu- dentiae convincerent. Deum quippe esse monstrabant con- ditorem rectoremque universi, imprimis autem humanae naturae parentem, quam ideo, non uti cetera animantia, in species diversas, variaque discrimina segregasset, sed unius esse generis, una etiam appellatione voluisset contineri, TO THE RULERS AND TO THE FREE AND INDEPENDENT NATIONS OF CHRISTENDOM The delusion is as old as it is detestable with which many men, especially those who by their wealth and power exercise the greatest influence, persuade themselves, or as I rather believe, try to persuade themselves, that justice and injustice are distinguished the one from the other not by their own nature, but in some fashion merely by the opinion and the custom of mankind. Those men therefore think that both the laws and the semblance of equity were devised for the sole purpose of repressing the dissensions and rebellions of those persons born in a subordinate position, affirming mean- while that they themselves, being placed in a high position, ought to dispense all justice in accordance with their own good pleasure, and that their pleasure ought to be bounded only by their own view of what is expedient. This opinion, absurd and unnatural as it clearly is, has gained considerable currency; but this should by no means occasion surprise, inasmuch as there has to be taken into consideration not only the common frailty of the human race by which we pursue not only vices and their purveyors, but also the arts of flat- terers, to whom power is always exposed. But, on the other hand, there have stood forth in every age independent and wise and devout men able to root out this false doctrine from the minds of the simple, and to convict its advocates of shamelessness. For they showed I that God was the founder and ruler of the universe, and especially that being the Father of all mankind, He had not separated human beings, as He had the rest of living things, into different species and various divisions, but had willed them to be of one race and to be known by one name ; that l 2 MARE LIBERVM dedisset insuper originem eandem, similem membrorum compagem, vultus inter se obversos, sermonem quoque et alia communicandi instrumenta, ut intelligerent omnes naturalem inter se societatem esse atque cognationem. Huic autem a se fundatae aut domui aut civitati summum ilium principem patremque familias suas quasdam scripsisse leges, non in aere aut tabulis, sed in sensibus animisque singulorum, ubi invitis etiam et aversantibus legendae occurrent his legibus summos pariter atque infimos teneri, in has non plus regibus licere, quam plebi adversus decreta decurionum, decurionibus contra praesidium edicta, prae- sidibus in regum ipsorum sanctiones. Quin ilia ipsa popu- lorum atque urbium singularum iura ex illo f onte dimanare, inde sanctimoniam suam atque maiestatem accipere. Sicut autem in ipso homine alia sunt quae habet cum omnibus communia, alia quibus ab altero quisque distin- guitur, ita earum rerum quas in usum hominis produxisset natura alias earn manere communes, alias cuiusque indus- tria ac labore proprias fieri voluisse, de utrisque autem datas leges, ut communibus quidem sine detrimento omnium omnes uterentur, de ceteris autem quod cuique contigisset eo contentus abstineret alieno. Haec si homo nullus nescire potest nisi homo esse desierit, hac si gentes viderunt quibus ad verum omne caecutientibus sola naturae fax illuxit, quid vos sentire ac facere aequum est, principes populique Christiani? FREEDOM OF THE SEAS 2 furthermore He had given them the same origin, the same structural organism, the ability to look each other in the face, language too, and other means of communication, in order that they all might recognize their natural social bond , and kinship. They showed too that He is the supreme Lord and Father of this family; and that for the household or the state which He had thus founded, He had drawn up certain laws not graven on tablets of bronze or stone but written in the minds and on the hearts of every individual, where even the unwilling and the refractory must read them. That these laws were binding on great and small alike ; that kings have no more power against them than have the com- mon people against the decrees of the magistrates, than have the magistrates against the edicts of the governors, than have the governors against the ordinances of the kings them- selves; nay more, that those very laws themselves of each and every nation and city flow from that Divine source, and from that source receive their sanctity and their majesty. Now, as there are some things which every man enjoys in common with all other men, and as there are other things which are distinctly his and belong to no one else, just so has nature willed that some of the things which she has created for the use of mankind remain common to all, and that others through the industry and labor of each man be- come his own. Laws moreover were given to cover both cases so that all men might use common property without prejudice to any one else, and in respect to other things so that each man being content with what he himself owns might refrain from laying his hands on the property of others. H ■"-'*] Now since no man can be ignorant of these facts unless he ceases to be a man, and since races blind to all truth except what they receive from the light of nature, have rec- ognized their force, what, O Christian Kings and Nations, ought you to think, and what ought you to do? 3 MARE LIBERVM Si quis durum putat ea a se exigi quae tarn sancti nominis professio requirit, cuius minimum est ab iniuriis abstinere, certe quid sui sit offici scire quisque potest ex eo quod alteri praecipit. Nemo est vestrum qui non palam edicat rei quemque suae esse moderatorem et arbitrum: qui non fluminibus locisque pubbcis cives omnes uti ex aequo et promiscue iubeat, qui non commeandi commercandique libertatem omni ope defendat. Sine his si parva ilia societas, quam rempublicam vo- camus, constare non posse iudicatur (et certe constare non potest) quamobrem non eadem ilia ad sustinendam totius humani generis societatem atque concordiam erunt neces- saria? Si quis adversus haec vim faciat, merito indignamini, exempla etiam pro flagiti magnitudine statuitis, non alia de causa nisi quia ubi ista passim licent status imperi tran- quillus esse non potest. Quod si rex in regem, populus in populum inique et violente agat, id nonne ad perturbandam magnae illius civitatis quietem et ad summi custodis spectat iniuriam? Hoc interest, quod sicut magistratus minores de vulgo iudicant, vos de magistratibus, ita omnium aliorum delicta cognoscenda vobis et punienda mandavit rex universi, vestra excepit sibi. Is autem quamquam supremam animadversionem sibi reservat, tardam, occultam, inevita- bilem, nihilominus duos a se iudices delegat qui rebus humanis intersint, quos nocentium felicissimus non effugit, conscientiam cuique suam, et famam sive existimationem FREEDOM OF THE SEAS 3 If any one thinks it hard that those things are demanded of him which the profession of a religion so sacred requires, the very least obligation of which is to refrain from injustice, certainly every one can know what his own duty is from the very demands he makes of others. There is not one of you who does not openly proclaim that every man is entitled to manage and dispose of his own property; there is not one of you who does not insist that all citizens have equal and indiscriminate right to use rivers and public places ; not one of you who does not defend with all his might the freedom of travel and of trade. If it be thought that the small society which we call a state cannot exist without the application of these principles (and certainly it cannot) , why will not those same principles be necessary to uphold the social structure of the whole human race and to maintain the harmony thereof? If any one rebels against these principles of law and order you are justly indignant, and you even decree punishments in pro- portion to the magnitude of the offense, for no other reason than that a government cannot be tranquil where trespasses of that sort are allowed. If king act unjustly and violently against king, and nation against nation, such action involves , a disturbance of the peace of that universal state, and con- stitutes a trespass against the supreme Ruler, does it not? There is however this difference: just as the lesser magis- trates judge the common people, and as you judge the magis- trates, so the King of the universe has laid upon you the command to take cognizance of the trespasses of all other men, and to punish them; but He has reserved for Himself the punishment of your own trespasses. A But although He reserves to himself the final punishment, slow and unseen but none the less inevitable, yet He appoints to intervene in human affairs two judges whom the luckiest of sinners does! not escape, namely, Conscience, or the innate estimation of j oneself, and Public Opinion, or the estimation of others. I 4 MARE LIBERVM alienam. Haec tribunalia illis patent quibus alia praeclusa sunt; ad haec infirmi provocant; in his vincuntur qui vincunt viribus, qui licentiae modum non statuunt, qui vili putant constare quod emitur humano sanguine, qui iniurias iniuriis defendunt, quorum manifesta facinora necesse est et con- sentiente bonorum iudicio damnari, et sui ipsorum animi sententia non absolvi. Ad utrumque hoc forum nos quoque novam causam afferimus; non hercule de stillicidiis aut tigno iniuncto, quales esse privatorum solent, ac ne ex eo quidem genere quod frequens est inter populos, de agri hire in confinio haerentis, de amnis aut insulae possessione; sed de omni prope oceano, de iure navigandi, de libertate commerciorum. Inter nos et Hispanos haec controversa sunt: Sitne immen- sum et vastum mare regni unius nee maximi accessio ; popu- lone cuiquam ius sit volentes populos prohibere ne vendant, ne permutent, ne denique commeent inter sese; potuerit ne quisquam quod suum numquam fuit elargiri, aut invenire quod iam erat alienum; an ius aliquod tribuat manifesta longi temporis iniuria. In hac disceptatione ipsis qui inter Hispanos praecipui sunt divini atque humani iuris magistri calculum porrigimus, ipsius denique Hispaniae proprias leges imploramus. Id si nihil iuvat, et eos quos ratio certa convincit cupiditas vetat desistere, vestram principes maiestatem, vestram fidem quotquot estis ubique gentes appellamus. Non perplexam, non intricatam movemus quaestionem. Non de ambiguis in religione capitibus, quae plurimum FREEDOM OF THE SEAS 4 These two tribunals are open to those who are debarred from all others; to these the powerless appeal; in them are de- feated those who are wont to win by might, those who put no bounds to their presumption, those who consider cheap anything bought at the price of human blood, those who de- fend injustice by injustice, men whose wickedness is so mani- fest that they must needs be condemned by the unanimous judgment of the good, and cannot be cleared before the bar of their own souls. To this double tribunal we bring a new case. It is in very truth no petty case such as private citizens are wont to bring against their neighbors about dripping eaves or party walls ; nor is it a case such as nations frequently bring against one another about boundary lines or the possession of a river or an island. No! It is a case which concerns practically the entire expanse of the high seas, the right of navigation, the freedom of trade!! Between us and the Spaniards the fol- lowing points are in dispute: Can the vast, the boundless sea be the appanage of one kingdom alone, and it not the greatest? Can any one nation have the right to prevent other nations which so desire, from selling to one another, from bartering with one another, actually from communicat- ing with one another? Can any nation give away what it never owned, or discover what already belonged to some one else? Does a manifest injustice of long standing create a specific right? In this controversy we appeal to those jurists among the Spanish themselves who are especially skilled both in divine and human law; we actually invoke the very laws of Spain itself. If that is of no avail, and those whom reason clearly convicts of wrong are induced by greed to maintain that stand, we invoke your majesty, ye Princes, your good faith, ye Peoples, whoever and wherever ye may be. It is not an involved, it is not an intricate question that I am raising. It is not a question of ambiguous points of 5 MAKE LIBERVM habere videntur obscuritatis, quae tantis tam diu animis decertata, apud sapientes hoc fere certum reliquerunt, nus- quam minus inveniri veritatem quam ubi cogitur assensus. Non de statu nostrae reipublicae, et libertate armis haud parta sed vindicata; de qua recte statuere ii demum possunt qui iura patria Belgarum, mores avitos, et institutum non in leges regnum, sed ex legibus principatum accurate cog- noverint, in qua tamen quaestione aequis iudicibus extremae servitutis depulsa necessitas, subtilius inquirentibus decreti tot nationum publica auctoritas, infensis etiam et malevolis adversariorum confessio nihil dubitandum reliquit. Sed quod hie proponimus nihil cum istis commune habet, nullius indiget anxiae disquisitionis, non ex divini codicis pendet explicatione, cuius multa multi non capiunt, non ex unius populi scitis quae ceteri merito ignorant. Lex ilia e cuius praescripto iudicandum est, inventu est non difficilis, utpote eadem apud omnes ; et f acilis intellectu, utpote nata cum singulis, singulorum mentibus insita. Ius autem quod petimus tale est quod nee rex subditis negare debeat, neque Christianus non Christianis. A natura enim oritur, quae ex aequo omnium parens est, in omnes munifica, cuius imperium in eos extenditur qui gentibus imperant, et apud eos sanctissimum est qui in pietate plurimum pro- fecerunt. Cognoscite hanc causam principes! cognoscite populi! si quid iniquum postulamus, scitis quae vestra et e vobis eorum qui viciniores nobis estis apud nos semper fuerit auctoritas! FREEDOM OF THE SEAS 5 theology which seem to be wrapped in the deepest obscurity, which have been debated already so long and with- such heat, that wise men are almost convinced that truth is never so rarely found as when assent thereto is forced. It is not a question of the status of our government and of inde- pendence not won by arms but restored. On this point those can reach a right decision who have an accurate knowledge of the ancestral laws and hereditary customs of the people of the Netherlands, and who have recognized that their state is not a kingdom illegally founded but is a government based upon law. In this matter, however, just judges no longer compelled to subordinate their convictions have been per- suaded; the public authority of many nations has entirely satisfied those who were seeking a precedent ; and the admis- sions of our adversaries have left even the foolish and malevolent no room for doubt. But what I here submit has nothing in common with these matters. It calls for no troublesome investigation. It does not depend upon an interpretation of Holy Writ in which many people find many things they cannot understand, nor upon the decrees of any one nation of which the rest of the world very properly knows nothing. The law by which our case must be decided is not difficult to find, seeing that it is the same among all nations; and it js easy toundj^stand, seeing that it is innate in every in- dividual and implanted in his mind. Moreover the law to which we appeal is one such as no king ought to deny to his subjects, and one no Christian ought to refuse to a non- Christian. For it is a law derived from nature, the common mother of us all, whose bounty falls on all, and whose sway extends over those who rule nations, and which is held most sacred by those who are most scrupulously just. Take cognizance of this cause, ye Princes, take cog- nizance of it, ye Nations! If we are making an unjust de- mand, you know what your authority and the authority of 6 MARE LIBERVM Monete, parebimus. Quin si quid a nobis hac in re peccatum est, iram vestram, odium denique humani generis non deprecamur. Sin contra se res habet, quid vobis censendum, quid agendum sit, vestrae religioni et aequitati relinquimus. Olim inter populos humaniores summum nef as habebatur armis eos impetere qui res suas arbitris permitterent, contra qui tarn aequam condicionem recusarent, ii non ut unius sed ut omnium hostes ope communi comprimebantur. Itaque earn in rem videmus icta foedera, iudices constitutos. Reges ipsi validaeque gentes nihil aeque gloriosum ac magnificum deputabant, quam aliorum coercere insolentiam, aliorum in- firmitatem atque innocentiam sublevare. Qui si mos hodieque obtineret, ut humani nihil a se alienum homines arbitrarentur, profecto orbe non paulo pacatiore uteremur; refrigesceret enim multorum audacia, et qui iustitiam utilitatis causa nunc negligunt, iniustitiam damno suo dediscerent. Sed hoc ut in causa istac non frustra forte speramus, ita illud certo confidimus, bene rebus expensis existimaturos vos omnes imputari nobis non magis posse pacis moras, quam belli causas; ac proinde uti hactenus amici nobis fa- ventes atque benevoli fuistis, ita vos aut etiam magis in posterum fore, quo nihil optatius iis potest contingere qui primam partem felicitatis putant bene facere, alteram bene audire. FREEDOM OF THE SEAS 6 those of you who are our nearer neighbors has always been so far as we are concerned. Caution us, we will obey. Verily, if we have done any wrong in this our cause, we will not deprecate your wrath, nor even the hatred of the human race. But if we are right, we leave to your sense of right- eousness and of fairness what you ought to think about this matter and what course of action you ought to pursue. In ancient times among the more civilized peoples it was held to be the greatest of all crimes to make war upon those who were willing to submit to arbitration the settlement of their difficulties; but against those who declined so fair an offer all others turned, and with their combined resources overwhelmed them, not as enemies of any one nation, but as enemies of them all alike. So for this very object we see that treaties are made and arbiters appointed. Kings them- selves and powerful nations used to think that nothing was so chivalrous or so noble as to coerce the insolent and to help the weak and innocent. If today the custom held of considering that everything pertaining to mankind pertained also to one's self, we should surely live in a much more peaceable world. For the pre- sumptuOusness of many would abate, and those who now neglect justice on the pretext of expediency would unlearn the lesson of injustice at their own expense. We have felt that perhaps we were not entertaining a foolish hope for our cause. At all events we are confident that you will all recognize after duly weighing the facts in the case that the delays to peace can no more be laid to our charge than can the causes of war ; and as hitherto you have been indulgent, even favorably disposed to us, we feel sure that you will not only remain in this mind, but be even more friendly to us in the future. Nothing more to be desired than this can come to men who think that the first condi- tion of happiness is good deeds ; the second, good repute. CAPVT I lure gentium quibusvis ad quosvis liberam esse navigationem Propositum est nobis breviter ac dilucide demonstrare ius esse Batavis, hoc est, Ordinum Foederatorum Belgico-Ger- maniae subditis ad Indos, ita uti navigant navigare, cumque ipsis commercia colere. Fundamentum struemus hanc iuris gentium, quod primarium vocant regulam certissimam, cuius perspicua atque immutabilis est ratio; licere cuivis genti quamvis alteram adire, cumque ea negotiari. Deus hoc ipse naturam loquitur, cum ea cuncta quibus vita indiget, omnibus locis suppeditari a natura non vult: artibus etiam aliis alias gentes dat excellere. Quo ista, nisi quod voluit mutua egestate et copia humanas f overi amicitias, ne singuli se putantes sibi ipsis sufficere, hoc ipso redderentur insociabiles? Nunc factum est ut gens altera alterius sup- pleret inopiam, divinae iustitiae instituto, ut eo modo (sicut Plinius dicit *') quod genitum esset uspiam, apud omnes natum videretur. Poetas itaque canentes audimus: Nee vero terrae ferre omnes omnia possunt. 2 Item: Excudent alii, et quae sequuntur. 3 1 Panegyricus 29, 2 : quod genitum esset usquam, id apud omnes natum esse videtur. 'Vergil, Georgics II, 109. ■ Vergil, Aeneid VI, 847-853. CHAPTER I By the Law of Nations navigation is free to all persons •whatsoever My intention is to demonstrate briefly and clearly that the Dutch — that is to say, the subjects of the United Netherlands — have the right to sail to the East Indies, as they are now doing, and to engage in trade with the people there. I jshall_basejgiy__ argument. . on Jflie_jfoUowing jnost specific and unimpeachable axiom of the Law of Nations, called a ^primary rule or first principle, the spirit of which is self-evident and immutable, to wit: Every nation is free to travel to every other nation, and to trade with it. God Himself says this speaking through the voice of nature; and inasmuch as it is not His will to have Nature supply every place with all the necessaries of life, He ordains that some nations excel in one art and others in another. Why is this His will, except it be that He wished human friendships to be engendered by mutual needs and resources, lest individuals deeming themselves entirely sufficient unto themselves should for that very reason be rendered unso- ciable? So by the decree of divine justice it was brought about that one people should supply the needs of another, in order, as Pliny the Roman writer says, 1 that in this way, whatever has been produced anywhere should seem to have been destined for all. Vergil also sings in this wise : " Not every plant on every soil will grow" 2 and in another place : " Let others better mould the running mass Of metals" etc. 3 1 Panegyric 29, 2. 2 Georgics II, 109 [Dryden's translation, II, 154]. "Aeneid VI, 847-853 [Dryden's translation, VI, 1168-1169]. 7 8 MARE LIBERVM Hoc igitur qui tollunt, illam laudatissimam tollunt humani generis societatem, tollunt mutuas benefaciendi occasiones, naturam denique ipsam violant. Nam et ille quern Deus terris circumfudit Oceanus, undique et undique versus navi- gabilis, et ventorum stati aut extraordinarii flatus, non ab eadem semper, et a nulla non aliquando regione spirantes, nonne significant satis concessum a natura cunctis gentibus ad cunctas aditum? Hoc Seneca 1 summum Naturae bene- ficium putat, quod et vento gentes locis dissipatas miscuit, et sua omnia in regiones ita descripsit, ut necessarium morta- libus esset inter ipsos commercium. Hoc igitur ius ad cunctas gentes aequaliter pertinet : quod clarissimi Iuriscon- sulti 2 eo usque producunt, ut negent ullam rempublicam aut Principem prohibere in universum posse, quo minus alii ad subditos suos accedant, et cum illis negotientur. Hinc ius descendit hospitale sanctissimum: hinc querelae: Quod genus hoc hominum? quaeve hunc tarn barbara morem Permittit patria? hospitio prohibemur harenae. 3 Et alibi litusque rogamus Innocuum et cunctis undamque auramque patentem.* Et scimus bella quaedam ex hac causa coepisse, ut Me- 1 Naturales Quaestiones III, IV. 'Institutes II, 1 (De rerum divisione, § 1); Digest 1, 8, 4 (eod. tit., L. Nemo igitur); cf. Gentilis, De jure belli I, 19; cf. Code IV, 63, 4 (De com- merces, L. Mercatores). ■ Vergil, Aeneid I, S39-540. " Vergil, Aeneid VII, 229-330. FREEDOM OF THE SEAS 8 Those therefore who deny this law, destroy this most praise- worthy bond of human fellowship, remove the opportunities for doing mutual service, in a word do violence to Nature herself. For do not the ocean, navigable in every jljiection with which God has encompassed alltihe^earth, and the regu- lar and the occasional winds which blow now from one quarter and now from another, offer sufficient proof that Nature has given to all peoples a right of access to all other peoples? Seneca 1 thinks this is Nature's greatest service, that by the wind she united the widely scattered peoples, and yet did so distribute all her products over the earth that commercial intercourse was a necessity to mankind. There- fore this right belongs equally to all nations. Indeed the most famous jurists 2 extend its_app.hcation so f ar as to deny that any state or any ruler can debar foreigners from having access to their subjects and trading with them. Hence is derived that law of hospitality which is of the highest sanc- tity ; hence the complaint of the poet Vergil : " What men, what monsters, what inhuman race, What laws, what barbarous customs of the place, Shut up a desert shore to drowning men, And drive us to the cruel seas again." 3 And: To beg what you without your want may spare- The common water, and the common air." 4 We know that certain wars have arisen over this very matter ; such for example as the war of the Megarians against the 1 Natural Questions III, IV. "Institutes II, 1; Digest I, 8, 4; cf. Gentilis, De jure belli I, 19; cf. Code IV, 63, 4 [Grotius refers particularly to his famous predecessor Albericus Gentilis (1552-1608), an Italian who came to England and was appointed to the chair of Regius Professor of Civil Law at Oxford. He published his De Jure Belli in 1558]. 3 Aeneid I, 539-540 [Dryden's translation, I, 760-763]. 'Aeneid VII, 229-230 [Dryden's translation, VII, 313-314]. 9 MARE LIBERVM garensibus in Athenienses, 1 Bononiensibus in. Venetos, 2 Cas- tellanis etiam in Americanos has iustas potuisse belli causas esse, et ceteris probabiliores Victoria putat, 8 si peregrinari et degere apud illos prohiberentur, si arcerentur a partici- patione earum rerum quae hire gentium aut moribus com- munia sunt, si denique ad commercia non admitterentur. Cui simile est quod in Mosis 4 historia et inde apud Augustinum legimus, 5 iusta bella Israelitas contra Amor- rhaeos gessisse, quia innoxius transitus denegabatur; qui IVRE HVMANAE SOCIETATIS aequissimo patere debebat. Et hoc nomine Hercules Orchomeniorum, Graeci sub Agamemnone Mysorum Regi arma intulerunt, 8 quasi libera essent naturaliter itinera, ut Baldus dixit. 7 Accusan- 1 Diodorus Siculus XI; Plutarch, Pericles XXIX, 4. 2 Sigonius, De regno Italiae. "Victoria, De Indis II, n. 1-7; Covarruvias, in c. Peccatum, § 9, n. 4, ibi Quinta. * Numbers XXI, 21-26. 5 Augustinus, Locutionum IV (de Numeris), 44; Et Estius, c. ult. 23, 4, 2. Sophocles, Trachiniae. ' Baldus de Ubaldis, Consilia III, 293. FREEDOM OF THE SEAS 9 Athenians, 1 and that of the Bolognese against the Venetians. 2 Again, Victoria 3 holds that the Spaniards could have shown just reasons for making war upon the Aztecs and the In- dians in America, more plausible reasons certainly than were alleged, if they really were prevented from traveling or sojourning among those peoples, and were denied the right to share in those things which by the Law of Nations or by Custom are common to all, and finally if they were de- barred from trade. We read of a similar case in the history of Moses, 4 which we find mentioned also in the writings of Augustine, 5 where the Israelites justly smote with the edge of the sword the Amorites because they had denied the Israelites an innocent passage through their territory, a right which according to the Law of Human Society ought in all justice to have been allowed. In defense of this principle Hercules attacked the king of Orchomenus in Boeotia ; and the Greeks under their leader Agamemnon waged war against the king of Mysia 8 on the ground that, as Baldus 7 has said, high roads were free 1 Diodorus Siculus XI; Plutarch, Pericles XXIX, 4. [The Athenian de- cree prohibiting the Megarians from trading with Athens or any part of the Athenian Empire was one of the leading causes of the Peloponnesian War.] 'Carlo Sigonio [(1523-1584), an Italian humanist, in his work] On the Kingdom of Italy. 'Victoria, De Indis II, n. 1-7; Covarruvias, in c. Peccatum, § 9, n. 4, ibi Quinta [Franciscus de Victoria (1480-1546), the famous Spanish Scholastic, a Dominican, and Professor of Theology at Salamanca from 1521 until his death. His thirteen Relectiones (De Indis is no. V) were published (' vitiosa et corrupta') in 1557 after his death; the 1686 Cologne edition is held to be the best. Diego Covarruvias (1512-1577), styled the Bartolo of Spain. He should probably be credited with formulating the reform decrees of the Council of Trent. The 5 vol. Antwerp 1762 edition of his works is the best.] "Numbers XXI, 21-26. " Locutionum IV (on Numbers), 44; Estius, c. ult. 23, 4, 2 [Estius (M613) was a Dutch commentator on the Epistles of St. Paul and on the works of St Augustine]. [Grotius refers to the Trachiniae of Sophocles, but probably from memory, for there is no such reference in that play.] * Baldus de Ubaldis, Consilia III, 293 [Baldus (1327-1406) was a pupil of the great Bartolus]. 10 MARE LIBERVM turque a Germanis apud Taciturn 1 Romani, quod colloquia congressusque gentium arcerent, fluminaque et terras et coelum quodam modo ipsum clauderent. Nee ullus titulus Christianis quondam in Saracenos magis placuit, quam quod per illos terrae Iudaeae aditu arcerentur. 2 Sequitur ex sententia Lusitanos etiamsi domini essent earum regionum ad quas Batavi proficiscuntur, iniuriam tamen facturos si aditum Batavis et mercatum praecluderent. Quanto igitur iniquius est volentes aliquos a volentium populorum commercio secludi, illorum opera quorum in potestate nee populi isti sunt, nee illud ipsum, qua iter est, quando latrones etiam et piratas non alio magis nomine detestamur, quam quod illi hominum inter se commeatus obsident atque infestant? 1 Tacitus, Historiae IV, 64. • Andreas Alciatus, Commentaria VII, 130 ; Covarruvias in c. Peccatum, p. 2 § 9; Bartolus on Code 1, 11 (De paganis, L. 1). FREEDOM OF THE SEAS 10 by nature. Again, as we read in Tacitus, 1 the Germans accused the Romans of ' preventing all intercourse between them and of closing up to them the rivers and roads, and almost the very air of heaven '. When in days gone by the Christians made crusades against the Saracens, no other pre- text was so welcome or so plausible as that they were denied by the infidels free access to the Holy Land. 2 It follows therefore that the Portuguese, even if they had been sovereigns in those parts to which the Dutch make voyages, would nevertheless be doing them an injury if they should forbid them access to those places and from trading there. Is it not then an incalculably greater injury for nations which desire reciprocal commercial relations to be debarred therefrom by the acts of those who are sovereigns neither of the nations interested, nor of the element over which their connecting high road runs? Is not that the very cause which for the most partprompts us to execrate robbers and pirates, namely, that they beset and infest our trade routes? 1 Histories IV, 64 [In connection with the revolt of Civilis]. a Andrea Alciati, Commentaria VII, 130; Covarruvias in c. Peccatum, p. 2 § 9; Bartolus on Code I, 11 [Alciati (1492-1550) was made Comes Palatinus by the Emperor Charles V, and offered a Cardinal's hat by Pope Paul III, which he refused, but he did become a Protonotarius Apostolicus]. CAPVT II Lusitanos nullum habere ius dominii in eos Indos ad quos Batavi navigant titulo inventionis Non esse autem Lusitanos earum partium dominos ad quas Batavi accedunt, puta Iavae, Taprobanae, partis maximae Moluccarum, certissimo argumento colligimus, quia dominus nemo est eius rei quam nee ipse uraquam nee alter ipsius nomine possedit. Habent insulae istae quas dicimus et semper habuerunt suos reges, suam rempublican, suas leges, sua iura; Lusitanis mercatus, ut aliis gentibus conceditur; itaque et tributa cum pendunt, et ius mercandi a principibus exorant, dominos se non esse, sed ut externos advenire satis testantur; ne habitant quidem nisi precario. Et quamquam ad dominium titulus non sufficiat, quia et possessio requiritur, cum aliud sit rem habere, aliud ius ad rem consequendam, tamen ne titulum quidem dominii in eas partes Lusitanis ullum esse affirmo, quern non ipsis eripuerit Doctorum, et quidem Hispanorum sententia. Primum si dicent inventionis praemio eas terras sibi cessisse, nee ius, nee verum dicent. Invenire enim non illud est oculis usurpare, sed apprehendere, ut Gordiani epistola 11 CHAPTER II The Portuguese have no right by title of discovery to sovereignty over the East Indies to which the Dutch make voyages The Portuguese are not sovereigns of those parts of the East Indies to which the Dutch sail, that is to say, Java, Ceylon,* and many of the Moluccas. This I prove by the incontrovertible argument that no one is sovereign of a thing which he himself has never possessed, and which no one else has ever held in his name. These islands of which we speak, now have and always have had their own kings, their own government, their own laws, and their own legal systems. The inhabitants allow the Portuguese to trade with them, just as they allow other nations the same privi- lege. Therefore, inasmuch as the Portuguese pay tolls, and obtain leave to trade from the rulers there, they thereby give sufficient proof that they do not go there as sovereigns but as foreigners. Indeed they only reside there on suf- france. And although the title to sovereignty is not suffi- cient, inasmuch as possession is a prerequisite — for having a thing is quite different from having the right to acquire it — nevertheless I affirm that in those places the Portuguese have no title at all to sovereignty which is not denied them by the opinion of learned men, even of the Spaniards. First of all, if they say that those lands have come under their jurisdiction as the reward of discovery, THEY LIE, both in law and in fact. Forjto_discoyer^a thingJs not-only to seize it with the eyes but to take real possession thereof, * [Taprobane was the ancient name of Ceylon. Milton speaks of it in Paradise Regained IV, 75: " And utmost Indian Isle Taprobane."] 11 12 MARE LIBERVM ostenditur ; 1 unde Grammatici 2 invenire et occupare pro verbis ponunt idem significantibus ; et tota Latinitas quod adepti sumus, id demum invenisse 3 nos dicit, cui oppositum est perdere. Quin et ipsa naturalis ratio, et legum diserta verba, et eruditiorum interpretatio * manifeste ostendit, ad titulum dominii parandum earn demum sufficere inven- tionem quae cum possessione coniuncta est, ubi scuicet res mobiles apprehenduntur, aut immobiles terminis atque cus- todia sepiuntur ; B quod in hac specie dici nullo modo potest. Nam presidia illuc Lusitani nulla habent. Quid quod ne reperisse quidem Indiam ullo modo dici possunt Lusitani, quae tot a saeculis fuerat celeberrima. lam ab Horati tempore : 8 Impiger extremos currit mercator ad Indos Per mare pauperiem fugiens. Taprobanes pleraque quam exacte nobis Romani descrip- sere? 7 lam vero et ceteras insulas ante Lusitanos non 1 Code VIII, 40, 13 (De fideiussoribus, L. Si Barsagoram). 2 Nonius Marcellus, De varia significations sermonum, in verbo ' occupare ' (p. 562, Lindsay); cf. Connanus, Commentarii juris civilis III, 3; cf. Donellus Commentarii de jure civili IV, 10. 3 [' invenire esse ' would seem to be the reading demanded rather than ' invenisse.'] 'Institutes II, 1, 13 (De rerum divisione, § Illud quaesitum est). •Digest XLI, 2, 3 (De adquirenda possessione, § Neratius). • Epistulae I, 1, 44-45. ' Pliny, Naturalis historia VI, 22. FREEDOM OF THE SEAS 12 as Gordian 1 points out in one of his letters. For that reason the Grammarians 2 give the same signification to the expressions ' to find ' or ' to discover ' and ' to take posses- sion of ' or ' to occupy ' ; and all the Latin with which I am acquainted tells us that the opposite of ' to find ' s is ' to lose '. However, natural reason itself, the precise words of the law, and the interpretation of the more learned men * all show clearly that the act- of discovery is sufficient to give a clear title of sovereignty only when it is accompanied by actual possession. And this only applies of course to mov- ables or to such immovables as are actually inclosed within fixed bounds and guarded. 5 No such claim can be estab- lished in the present case, because the Portuguese maintain no garrisons in those regions. Neither can the Portuguese by any possible means claim to have discovered India, a country which was famous centuries and centuries ago! It was already known as early as the time of the emperor Augustus as the following quotation from Horace shows: " That worst of evils, poverty, to shun Dauntless through seas, and rocks, and fires you run To furthest Ind," 6 And have not the Romans described for us in the most exact way the greater part of Ceylon? 7 And as far as the other islands are concerned, not only the neighboring 1 Code VIII, 40, 13 [Probably Fabius Claudius Gordianus Fulgentius (468- 533), » Benedictine monk, one of the Latin Fathers]. 'Nonius Marcellus, On the various significations of speech, under the word •occupare'; cf. Connan, Commentaries on the civil law III, 3; Donellus [Doneau], Commentaries on the civil law IV, 10. [Francois de Connan (1508-1551), a French jurisconsult, a pupil of Alciati; Hugues Doneau (1527-1591) a famous jurisconsult, who wrote many volumes of commentaries on the Digest and the Code.] " [See note on opposite page.] 4 Institutes II, 1, 13. •Digest XLI, 2, 3. •Letters I, 1, 44-45 [Francis's translation, English Poets XIX, 726]. 'Pliny, Natural History, VI, 22. 13 MAKE LIBERVM finitimi tantum Persae et Arabes, sed Europaei etiam, praecipue Veneti noverant. Praeterea inventio nihil iuris tribuit, nisi in ea quae ante inventionem nullius fuerant. 1 Atqui Indi cum ad eos Lusi- tani venerunt, etsi partim idololatrae, partim Mahumetani erant, gravibusque peccatis involuti nihilominus publice atque privatim rerum possessionumque suarum dominium habuerunt, quod illis sine iusta causa eripi non potuit. 2 Ita certissimis rationibus post alios auctores maximi nominis concludit Hispanus Victoria: 3 'Non possunt', inquit, ' Christiani saeculares aut Ecclesiastici potestate civili et principatu privare infideles, eo dumtaxat titulo, quia in- fideles sunt, nisi ab eis alia iniuria profecta sit '. Fides enim, ut recte inquit Thomas 4 non tollit ius natu- rale aut humanum ex eo dominia profecta sunt. Immo credere infideles non esse rerum suarum dominos, haereticum est ; et res ab illis possessas illis ob hoc ipsum eripere f urtum est et rapina, non minus quam si idem fiat Christianis. Recte igitur dicit Victoria 6 non magis ista ex causa Hispanis ius in Indos quaesitum, quam Indis fuisset in Hispanos, si qui illorum priores in Hispaniam venissent. Neque vero sunt Indi Orientis amentes et insensati, sed 'Digest XLI, 1, 3 (De adquirendo rerum dominio). ' Covarruvias in c. Peccatum § 10, n. 2, 4, 5. ' De potestate civili I, 9. 4 Thomas Aquinas, Summa II. II, q. 10, a. 12. ' De Indis I, n. 4-7, 19. FREEDOM OF THE SEAS 13 Persians and Arabs, but even Europeans, particularly the Venetians, knew them long before the Portuguese did. But in addition to all this, discovery per se gives no legal rights over things u nless b efore the alleged discovery they _were^ res nullius. 1 Now these Indians of the East, on the arrival of the Portuguese, although some of them were idolators, and some Mohammedans, and therefore sunk in grievous sin, had none the less perfect public and private ownership of their goods and possessions, from which they could not be dispossessed without just cause. 2 The Spanish writer Victoria, 3 following other writers of the highest authority, has the most certain warrant for his conclusion that Christians, whether of the laity or of the clergy, can- not deprive infidels of their civil power and sovereignty merely on the ground that they are infidels, unless some other wrong has been done by them. For religious belief, as Thomas Aquinas 4 rightly ob- serves, does not do away with either natural or human law from which sovereignty is derived. Surely it is a heresy to believe that infidels are not masters of their own prop- erty; consequently, to take from them their possessions on account of their religious belief is no less theft and robbery than it would be in the case of Christians. Victoria then is right in saying 5 that the Spaniards have no more legal right over the East Indians because of their religion, than the East Indians would have had over the Spaniards if they had happened to be the first foreigners to come to Spain. Nor are the East Indians stupid and unthinking; on the contrary they are intelligent and shrewd, 1 Digest XLI, 1, 3. 3 Covarruvias in c. Peccatum § 10, n. 2, 4, 5. 8 De potestate civili I, 9. 4 Summa II. II, q. 10, a. 12 [Thomas Aquinas (1227-1274), one of the most famous of the Schoolmen and Theologians, spoken of often as Aquila Theologorum, and Doctor Angelicus]. ■ De Indis I, n. 4-7, 19. 14 MARE LIBERVM ingeniosi et solertes, ita ut ne hinc quidem praetextus subiciendi possit desumi, qui tamen per se satis est mani- festae iniquitatis. lam olim Plutarchus npoopTjfyia, irapiorami; are the exact words, e Cicero, De officiis I, 150-151; Aristotle, Politica I, 9. * L. c. (1257* 14-17). 8 De benefices V, 8. FREEDOM OF THE SEAS 63 authorities agree that the ownership of things, particularly of movables, arises out of the primary law of nations, and that all contracts in which a price is not mentioned, are de- rived from the same source. 1 The philosophers 2 distinguish two kinds of exchange using Greek words which we shall take the liberty to translate as ' wholesale ' and ' retail ' trade. The former, as the Greek word shows, signifies trade or exchange between widely separated nations, and it ranks first in the order of Nature, as is shown in Plato's Republic. 3 The latter seems to be the same kind of ex- change that Aristotle calls by another Greek word * which means retail or shop trade between citizens. Aristotle makes a further division of wholesale trade into overland and overseas trade. 5 But of the two, retail trade is the more petty and sordid, and wholesale the more honorable; but most honorable of all is the wholesale overseas trade, because it makes so many people sharers in so many things. 6 Hence Ulpian says that the maintenance of ships is the highest duty of a state, because it is an absolutely natural necessity, but that the maintenance of hucksters has not the same value. In another place Aristotle says : " For the art of exchange extends to all possessions, and it arises at first in a natural manner from the circumstance that some have too little, others too much." 7 And Seneca is also to be cited in this connection for he has said that buying and selling is the law of nations. 8 Therefore freedom of trade is based on a primitive right of nations which has a natural and permanent cause; and 1 Castrensis from Cinus and others on Digest I, 1, 5. * Plato, Sophista 2233. 3 II (p. 371) cited in Digest L, 11, 2. * Politics I, 11 (1258b 22-23). 5 [The text here is somewhat expanded.] 8 Cicero, De officiis I, 150-151; Aristotle, Politics I, 9. 7 Politics I, 9 (1257a. 14-17) [Jowett's translation, Vol. I, page 15]. t» * De beneficiis V, 8 [Not a quotation, but a summing up of the chapter]. 64 MARE LIBERVM tium, quod naturalem et perpetuam causam habet, ideoque tolli non potest, et si posset non tamen posset nisi omnium gentium consensu: tantum abest ut ullo modo gens aliqua gentes duas inter se contrahere volentes iuste impediat. FREEDOM OF THE SEAS 64 so that right cannot he destroyed, or at all events it may not be destroyed except by the consent of all nations. So far is that from being the case, that any one nation may justly oppose in any way, any other two nations that desire to enter into a mutual and exclusive contractual relation. CAPVT IX Mercaturam cum Indis propriam non esse Lusitanorum titulo occupationis Primum inventio aut occupatio hie locum non habet, quia ius mercandi non est aliquid corporate, quod possit apprehendi; neque prodesset Lusitanis etiamsi primi homi- num cum Indis habuissent commercia, quod tamen non potest non esse falsissimum. Nam et cum initio populi in diversa iere, aliquos necesse est primos fuisse mercatores, quos tamen ius nullum acquisivisse certo est certius. Quare si Lusitanis ius aliquod competit, ut soli cum Indis nego- tientur, id exemplo ceterarum servitutum, ex concessione oriri debuit aut expressa aut tacita, hoc est praescriptione ; neque aliter potest. 65 CHAPTER IX Trade with the East Indies does not belong to the Portuguese by title of occupation Neither discovery nor occupation [which have been fully treated in Chapters II and V], is to be invoked on the point here under consideration, because the right of carrying on trade is not something corporal, which can be physically seized; nor would discovery or occupation help the case of the Portuguese even if they had been the very first persons to trade with the East Indies, although such a claim would be entirely untenable and false. For since in the beginning peoples set out along different paths, it was necessary that some become the first traders, never- theless it is absolutely certain that those traders did not on that account acquire any rights. Wherefore if the Portu- guese have any right by virtue of which they alone may trade with the East Indies, that right like other servitudes ought to arise from concession, either express or tacit, that is to say, from prescription. Otherwise no such right ean exist. 65 CAPVT X Mercaturam cum Indis propriam non esse Lusitanorum titulo donationis Pontificiae Concessit nemo, nisi forte Pontifex, qui non potuit. 1 Nemo enim quod suum non est concedere potest. At Pon- tifex, nisi totius Mundi temporalis sit Dominus, quod negant sapientes, ius etiam commerciorum universale sui iuris dicere non potest. Maxime vero cum res sit ad solum quaestum accommodata, nihilque ad spiritualem procura- tionem pertinens, extra quam cessat, ut f atentur omnes, Pon- tificia potestas. Praeterea si Pontifex solis illud Lusitanis ius tribuere vellet idemque adimere hominibus ceteris, dupli- cem faceret iniuriam: Primum Indis, quos ut extra Eccle- siam positos Pontifici nulla ex parte subditos esse diximus. His igitur cum nihil quod ipsorum est adimere possit Ponti- fex, etiam ius illud quod habent cum quibuslibet negotiandi adimere non potuit. Deinde aliis hominibus omnibus Chris- tianis et non Christianis, quibus idem illud ius adimere non potuit sine causa indicta. Quid quod ne temporales quidem Domini in suis imperiis prohibere possunt commerciorum libertatem, uti rationibus et auctoritatibus ante demonstra- tum est? Sicut et illud confitendum est, contra ius perpetuum naturae gentiumque, unde ista libertas originem sumpsit in omne tempus duratura, nullam valere Pontificis auctori- tatem. 1 Cf. cap. Ill et VI. 66 CHAPTER X Trade with the East Indies does not belong to the Portu- guese by virtue of title based on the Papal Donation No one has granted it except perhaps the Pope, and he did not have the power. 1 For no one can give away what he does not himself possess. But the Pope, unless he were the temporal master of the whole world, which sen- sible men deny, cannot say that the universal right in re- spect of trade belongs to him. Especially is this true since trade has to do only with material gains, and has no con- cern at all with spiritual matters, outside of which, as all admit, Papal power ceases. Besides, if the Pope wished to give that right to the Portuguese alone, and to deprive all other men of the same right, he would be doing a double injustice. In the first place, he would do an injustice to the people of the East Indies who, placed as we have said outside the Church, are in no way subjects of the Pope. Therefore, since the Pope cannot take away from them anything that is theirs, he could not take away their right of trading with whomsoever they please. In the second place, he would do an injustice to all other men both Chris- tian and non- Christian, from whom he could not take that same right without a hearing. Besides, what are we to say of the fact that not even temporal lords in their own do- minions are competent to prohibit the freedom of trade, as has been demonstrated above by reasonable and authorita- tive statements? Therefore it must be acknowledged, that the authority of the Pope has absolutely no force against the eternal law of nature and of nations, from whence came that liberty which is destined to endure for ever and ever. 1 See chapters III and VI. 66 CAPVT XI Mercaturam cum Indis non esse Lusitanorum propriam iure praescriptionis aut consuetudinis Restat praescriptio, seu consuetudinem mavis dicere. 1 Sed nee huius nee illius vim esse aliquam inter liberas na- tiones, aut diversarum gentium Principes, nee adversus ea quae primigenio iure introducta sunt, cum Vasquio ostendi- mus. Quare et hie ut ius mercandi proprium fiat, quod proprietatis naturam non recipit, nullo tempore efficitur. Itaque nee titulus hie adfuisse potest, nee bona fides, quae cum manifesto desinit, praescriptio secundum Canones non ius dicetur, sed iniuria. Quin et ipsa mercandi quasi possessio non ex iure proprio contigisse videtur, sed ex iure communi quod ad omnes aequaliter pertinet; sicut contra, quod aliae nationes cum Indis contrahere forte neglexerunt, id non Lusitanorum gratia fecisse existimandi sunt, sed quia sibi expedire credi- derunt; quod nihil obstat quo minus ubi suaserit utilitas, id facere possint, quod antea non fecerint. Certissima enim ilia regula a doctoribus traditur, 2 in his quae sunt arbitrii seu merae facultatis, ita ut per se actum tantum facultatis eius, non autem ius novum operentur, nee praescriptionis nee consuetudinis titulo annos etiam mille valituros : quod et l Cf. cap. VII. 2 Gloss, et Bartolus on Digest XLIII, 11, 2 (De via publica, L. Viam publicam) ; Balbus 4, 5 pr. qu. 1 ; Panormitanus on Decretales Gregorii Papae IX, III, 8, 10 (De concessione praebendae, c. Ex parte Hastenen.) ; Digest XLI, 2, 41 (De adquirenda possessione, L. Qui iure familiaritatis) ; Covarruvias in c. possessor. 2, § 4; Vasquius, Controversiae illustres c. 4, n. 10 et 12. 67 CHAPTER XI Trade with the East Indies does not belong to the Portu- guese by title of prescription or custom Last of all, prescription, or if you prefer the term, custom. 1 We have shown that according to Vasquez, neither prescription nor custom had any force as between free nations or the rulers of different peoples, or any force against those principles which were introduced by primitive law. And here as before, mere efflux of time does not bring it to pass that the right of trade, which does not partake of the nature of ownership, becomes a private possession. Now in this case neither title nor good faith can be shown, and inasmuch as good faith is clearly absent, according to legal rules prescription will not be called a right, but an injury. Nay, the very possession involved in trading seems not to have arisen out of a private right, but out of a public right which belongs equally to all; so on the other hand, because nations perhaps neglected to trade with the East Indies, it must not be presumed that they did so as a favor to the Portuguese, but because they believed it to be to their own best interests. But nothing stands in their way, when once expediency shall have persuaded them, to prevent them from doing what they had not previously done. For the jurists 2 have handed down as incontestable the principle that where things arbitrable or facultative are such that they pro- duce nothing more than the facultative act per se, but do not create a new right, that in all such cases not even a thou- sand years will create a title by prescription or custom. 1 See chapter VII. 3 On Digest XLIII, 11, 2; Balbus 4, 5 pr. qu. 1; Panormitanus on the Decre- tals of Pope Gregory IX, III, 8, 10; Digest XLI, 2, 41; Covarruvias in c. possessor. 2,' § 4; Vasquius, Controversial illustres c. 4, n. 10 and 12. 67 68 MAKE LIBERVM affirmative et negative procedit, ut docet Vasquius. Nee enim quod libere feci facere cogor, nee quod non feci omittere. Alioquin quid esset absurdius quam ex eo quod singuli non possumus cum singulis semper contrahere, salvum nobis in posterum non esse ius cum illis, usus tulerit, con- trahendi? Idem Vasquius et illud rectissime, ne infinito quidem tempore effici, ut quid necessitate potius, quam sponte factum videatur. Probanda itaque Lusitanis foret coactio, quae tamen ipsa cum hac in re iuri naturae sit contraria, et omni homi- num generi noxia, ius facere non potest. 1 Deinde ilia coactio durasse debuit per tempus, cuius initii non exstet memoria; id vero tantum hinc abest, ut ne centum quidem anni exierint, ex quo tota fere negotiatio Indica penes Venetos fuit, per Alexandrinas traiectiones. 2 Debuit etiam talis esse coactio, cui restitum non sit. At restiterunt Galli et Angli, aliique. Neque sufficit aliquos esse coactos, sed ut omnes coacti sint requiritur, cum per unum non coactum ser- vetur in causa communi libertatis possessio. Arabes autem et Sinenses a saeculis aliquot ad hunc usque diem perpetuo cum Indis negotiantur. Nihil prodest ista usurpatio. 1 Vasquius, 1. c. n. 11. * Guicciardini, Storia d'ltalia XIX. FREEDOM OF THE SEAS 68 This, as Vasquez points out, acts both affirmatively and negatively. For I am not compelled to do what I have hitherto done of my own free will, nor am I compelled to stop doing what I have never done. What moreover could be more absurd then to deduce from the fact that we as individuals are not able always to conclude a bargain with other individuals, that there is not preserved to us for the future the right of bargaining with them if opportunity shall have offered? The same Vasquez has also most justly said that not even the lapse of infinite time establishes a right which seems to have arisen from necessity rather than choice. Therefore in order to establish a prescriptive right to the trade with the East Indies the Portuguese would be compelled to prove coercion. But since in such a case as this coercion is contrary to the law of nature and obnoxious to all mankind, it cannot establish a right. 1 Next, that coercion must needs have been in existence for so long a time that " the memory of its beginning does not exist " ; that, how- ever, is so far from being the case that not even a hun- dred years had elapsed since the Venetians controlled nearly the entire trade with the East Indies, carrying it via Alex- andria. 2 Again, the coercion ought to have been such that it was not resisted; but the English and the French and other nations besides, did resist it. Finally, it is not suffi- cient that some be coerced, but it is indispensable that all be coerced, because the possession of freedom of trade is preserved to all by a failure to use coercion upon even one person. Moreover, the Arabians and the Chinese are at the present day still carrying on with the people of the East Indies a trade which has been uninterrupted for several centuries. Portuguese usurpation is worthless. 1 Vasquius, Controversiae illustres c. 4, n. 11. ' Guicciardini, Storia d'ltalia XIX. CAPVT XII Nulla aequitate niti Lusitanos in prohibendo commercio Ex his quae dicta sunt satis perspicitur eorum caeca aviditas, qui, ne quemquam in partem lucri admittant, illis rationibus conscientiam suam placare student, quas ipsi magistri Hispanorum qui in eadem sunt causa manifestae vanitatis convincunt. 1 Omnes enim qui in rebus Indicis usur- pantur colores iniuste captari quantum ipsis licet, satis innuunt, adduntque numquam earn rem serio Theologorum examine probatam. Ilia vero querela quid est iniquius, quod dicunt Lusitani quaestus suos exhauriri copia contra licen- tiam? Inter certissima enim Iuris enuntiata est, nee in dolo eum versari, nee fraudem facere, ne damnum quidem alteri dare videri, qui iure suo utitur ; quod maxime verum est, si non ut alteri noceatur, sed rem suam augendi animo quippiam fiat. 2 Inspici enim debet id quod principaliter agitur, non quod extrinsecus in consequentiam venit. Immo si proprie loquimur cum Vlpiano, non ille damum dat, sed lucro quo adhuc alter utebatur eum prohibet. Naturale autem est et summo iuri atque etiam aequitati 1 Vasquius, Controversiae illustres c, 10, n. 10; Victoria, De Indis I, 1, n. 3; Digest VI, 1, 27 (De rei vindicatione, L. Sin autem, § penult.) L, 17, 55 et 151 (De diversis regulis, L. Nullus videtur, et L. Nemo damnum) ; XLII, 8, 13 (Quae in fraudem creditorum, L. Illud constat) ; XXXIX, 2, 24 (De damno infecto, L. Fluminum, § ult.) ; Bartolus on Digest XLIII, 12, 1 (De fluminibus, L, 1, § 5) ; Castrensis on Code III, 34, 10 (De servitutibus, L. Si tibi) ; Digest XXXIX, 3, 1 (De aqua, L. Si cui, § Denique). 2 Vasquius, Controversiae illustres c. 4, n. 3 et seq. ; Digest XXXIX, 2, 26 (De damno infecto, L. Proculus). 69 CHAPTER XII The Portuguese prohibition of trade has no foundation in equity From what has been said thus far it is easy to see the blind cupidity of those who in order not to admit any one else to a share in their gains, strive to still their consciences by the very arguments which the Spanish jurists, interested too in the same case, show to be absolutely empty. 1 For they intimate as clearly as they can that as regards India all the pretexts employed, are far fetched and unjust. They add that this right was never seriously approved by the swarm of theologians. Indeed, what is more unjust than the com- plaint made by the Portuguese that their profits are drained off by a freedom which is incompatible with their license? An incontrovertible rule of law lays down that a man who uses his own right is justly presumed to be contriving neither a deceit nor a fraud, in fact not even to be doing any one an injury. This is particularly true, if he has no inten- tion to harm any one, but only to increase his own property. 2 For what ought to be considered is the chief and ultimate intent not the irrelevant consequence. Indeed, if we may with propriety agree with Ulpian, he is not doing an injury, but he is preventing some one from getting a profit which another was previously enjoying. Moreover it is natural and conformable to the highest law as well as equity, that when a gain open to all is con- cerned every person prefers it for himself rather than for 1 Vasquius, Controversiae illustres c. 10, n. 10; Victoria, De Indis I, 1, n. 3; Digest VI, 1. '37; I,, 17, 55, 151; XLII, 8, 13; XXXIX, 9, 24; Bartolus on Digest XI.III, 12, 1; Castrensis on Code III, 34, 10; Digest XXXIX, 3, 1. ' Vasquius, Controversiae illustres c. 4, n. 3ff.; Digest XXXIX, 2, 26. 69 70 MARE LIBERVM conveniens, ut lucrum in medio positum suum quisque malit quam alterius, etiam qui ante perceperat. 1 Quis ferat querentem opificem quod alter eiusdem artis exercitio ipsius commoda evertat? Batavorum autem causa eo est iustior, quia ipsorum hac in parte utilitas cum totius humani generis utilitate coniuncta est, quam Lusitani eversum eunt. 2 Neque hoc recte dicetur ad aemulationem fieri, ut in re simili ostendit Vasquius : aut enim plane hoc negandum est, aut asseveran- dum non ad bonam modo, verum etiam ad optimam aemu- lationem fieri, iuxta Hesiodum: 3 ayadrj 6' "Epi? r/8s pporolai 1 bona lis mortalibus haec est '. Nam etiam si quis pietate motus, inquit ille, frumentum in summa penuria vilius venderet, impediretur improba duritie eorum hominum, qui saeviente penuria suum carius fuerant vendituri. Verum est talibus modis minui aliorum reditus: nee id negamus, ait, ' sed minuuntur cum universorum hominum commodo : ET VTINAM omnium PRINCIPVM et TYRRANO- RVM ORBIS reditus ita minuerentur '. Quid ergo tarn iniquum videri potest, quam Hispanos vectigalem habere Terrarum Orbem, ut nisi ad illorum nutum nee emere liceat nee vendere? 4 In cunctis civitatibus dardanarios odio atque etiam poenis prosequimur; nee ullum tarn nefarium vitae genus videtur, quam ista annonae flagellatio. 5 Merito quidem. Naturae enim faciunt 1 Vasquius, 1. c. 2 Vasquius, 1. c. n. 5. 3 "Bpyo/tai 'S/iipai 24. * Code IV, 59 (De monopoliis, L.l). e Caietanus on Thomas Aquinas, Summa II. II, q. 77, a. 1, ad 3. FREEDOM OF THE SEAS 70 another, even if that other had already discovered it. 1 Who would countenance an artisan who complained that another artisan was taking away his profits by the exercise of the same craft? But the cause of the Dutch is the more reason- able, because their advantage in this matter is bound up with the advantage of the whole human race, an advantage which the Portuguese are trying to destroy. 2 Nor will it be correct to say, that this is done in rivalry, as Vasquez shows in a similar case. For clearly we must either deny or affirm that this is done not only in honorable but in most honorable rivalry, and, according to Hesiod, ' This rivalry is honorable for mortal men \ 3 For, says Vasquez, if any one should be so moved by love for his fellow men that he sells grain in hard times for a lower price than usual, he would diminish the wicked oppression of those men who in the same season of cruel financial stringency would have sold their grain at a higher price than usual. But, some one will object, by such methods the profits of others will be made less. ' We do not deny it ', says Vasquez, ' but they are made less to the corresponding advantage of all other men. And would that the profits of all Rulers and Tyrants of this world could be thus lessened ' ! Indeed can anything more unjust be conceived than for the Spaniards to hold the entire world tributary, so that it is not permissible either to buy or to sell except at their good pleasure? * In all states we heap odium upon grain specu- lators and even bring them to punishment ; and in very truth there seems to be no other sort of business so disgraceful as that of forcing up prices in the grain market. 5 That is not 1 Vasquius, same reference. s Vasquius, same reference, n. S. * In his Works and Days [The entire passage as translated by A. W. Mair (Oxford translation, page 1) is: "For when he that hath no business looketh on him that is rich, he hasteth to plow and to array his house: and neighbour vieth with neighbour hasting to be rich: good is this Strife for men."]. * Code IV, 59. ' Cajetan on Thomas Aquinas, Summa II. II, q. 77, a. 1, ad 3. 71 MARE LIBERVM iniuriam, quae in commune f ecunda est : 1 neque vero cen- seri debet in usus paucorum reperta negotiatio, sed ut quod alteri deest alterius copia pensaretur, iusto tamen com- pendio omnibus proposito, qui laborem ac periculum trans- ferendi in se suscipiunt. Hoc ipsum igitur quod in republica, id est, minore hominum conventu, grave et perniciosum iudicatur, in magna ilia humani generis societate ferendumne est? ut scilicet totius mundi monopolium faciant populi His- pani? Invehitur Ambrosius in eos qui maria claudunt, 2 Augustinus in eos qui itinera obstruunt ; Nazianzenus in s coemptores suppressoresque mercium, qui ex inopia aliorum soli quaestum faciunt, et ut ipse facundissime loquitur HaranpayfiaTevovrai tf/s svdeiaz. Quin et divini sapientis sententia publicis diris devovetur sacerque habetur, qui alimenta supprimendo vexat annonam: o ffvrixcov eirov SrifiOKat apar oi. Clament igitur Lusitani quantum, et quam diu libebit: ' Lucra nostra deciditis '. Respondebunt Batavi: ' Immo nostris invigilamus. Hocne indignamini in partem nos venire ventorum et maris? Et quis ilia vobis lucra mansura promiserat? Salvum est vobis, quo nos contenti sumus '. 1 Aristotle, Politica I, 9. 2 Hexameron V, 10, 4, q. 44. B In funere Basilii. FREEDOM OF THE SEAS 71 to be wondered at, for such speculators are doing an injury to nature, who, as Aristotle says, is fertile for all alike. 1 Accordingly it ought not to be supposed that trade was in- vented for the benefit of a few, but in order that the lack of one would be counterbalanced by the oversupply of another, a fair return also being guaranteed to all who take upon themselves the work and the danger of transport. Is the same thing then which is considered grievous and pernicious in the smaller community of a state to be put up with at all in that great community of the human race? Shall the people of Spain, forsooth, assume a monopoly of all the world? Ambrose inveighs against those who inter- fere with the freedom of the sea; 2 Augustine against those who obstruct the overland routes ; and Gregory of Nazianzus 3 against those who buy goods and hold them, and thus (as he eloquently says) make profits for themselves alone out of the helplessness and need of others. Indeed in the opinion of this wise and holy man any person who holds back grain and thus forces up the market price ought to be given over to public punishment and be adjudged worthy of death. Therefore the Portuguese may cry as loud and as long as they shall please : ' You are cutting down our profits ' ! The Dutch will answer : ' Nay ! we are but looking out for our own interests! Are you angry because we share with you in the winds and the sea? Pray, who had promised that you would always have those advantages? You are secure in the possession of that with which we are quite content '. 'Politics I, 9. 2 Hexameron V, 10, 4, q. 44. 8 In funere Basilii. CAPVT XIII Batavis ius commercii Indicant qua •pace, qua indutiis, qua hello retinendum Quare cum et ius et aequum postulet, libera nobis ita ut cuiquam esse Indiae commercia, superest, ut sive cum Hispanis pax, sive indutiae fiunt, sive bellum manet, omnino earn, quam a natura habemus libertatem tueamur. Nam ad pacem quod attinet, notum est earn esse duorum generum: aut enim pari foedere, aut impari coitur. Graeci 1 istam vocant awd^Ktjv iS i'ffov hanc anovdds i£ imrctyixutoov ilia virorum est, haec ingeniorum servilium. Demosthenes in oratione de libertate Rhodiorum: 2 nairoi xpv rovi /3ov- \ojxivovS e\ev8epovS eivai rai eh rwv tmrayndtoav ffvvdijjtaS qiBvyeiv, a'f eyyvi SovXeiaS ovffaS, ' eos qui volunt esse bberi oportet omnes condiciones quibus leges imponuntur ita fugere tamquam quae proximae sunt servituti '. Tales autem sunt omnes quibus pars altera in iure suo imminuitur, iuxta Isocratis definitionem s vocantis rd rovi sripovS tXarrovvra irotpd to Slnaiov. Si enim, ut inquit Cicero, 4 ' suscipienda bella sunt ob earn causam, ut sine iniuria in pace vivatur ', sequitur eodem auctore, pacem esse vocandam, non pactionem servitutis, sed tranquillam libertatem; quippe cum et Philosophorum et Theologorum 1 Thucydides, Isocrates, Andocides. 1 Isocrates, Archidamos 51. * Panegyricus 176. * De Oftdis I, 35. 72 CHAPTER XIII The Dutch must maintain their right of trade with the East \ Indies by peace, by treaty, or by war Wherefore since both law and equity demand that trade with the East Indies be as free to us as to any one else, it follows that we are to maintain at all hazards that free- dom which is ours by nature, either by coming to a peace agreement with the Spaniards, or by concluding a treaty, or by continuing the war. So far as peace is concerned, it is well known that there are two kinds of peace, one made on terms of equality, the other on unequal terms. The Greeks x call the former kind a compact between equals, the latter an enjoined truce; the former is meant for high souled men, the latter for servile spirits. Demosthenes in his speech on the liberty of the Rhodians 2 says that it was necessary for those who wished to be free to keep away from treaties which were imposed upon them, because such treaties were almost the same as slavery. Such conditions are all those by which one party is lessened in its own right, according to the definition of Isocrates. 8 For if, as Cicero says,* wars must be undertaken in order that people may live in peace unharmed, it follows that peace must be called not a pact which entails slavery but which brings undis- turbed liberty, especially as peace and justice according to 1 Thucydides, Isocrates, Andocides. 3 Isocrates, Archidamos 51 [Grotius probably quoted here from memory]. ' Panegyric 176. 4 De officiis I, 35. 72 73 MARE LIBERVM complurium 1 iudicio pax et iustitia nominibus magis quam re differant, sitque pax non qualiscumque, sed ordinata concordia. Indutiae autem si fiunt satis apparet ex ipsa indutiarum natura non debere medio earum tempore condicionem cuiusquam deteriorem fieri, cum ferme interdicti uti possi- detis instar obtineant. Quod si in bellum trudimur hostium iniquitate, debet nobis causae aequitas spem ac fiduciam boni eventus addere. Nam 2 vitep cov av IXatrdovTai f*£XP^ Svvarov itavTEi noke- /Aovffi, nspl 6k tov nXsovsHtelv ovx ovroo?, ' pro his in quibus iniuria afficiuntur omnes quantum omnino possunt depugnant: at propter alieni cupiditatem non item'; quod et Alexander Imperator ita expressit: to /xkv apxetv adiKoov spyoav ovh ayrd fiova &x ei r V v nponXr/aiv, to 6i tov? ox^-ovvrai anoaeieaOai i'n ts ttj? ayaOfj? avvsiSijasoaS e^a to Qotppoikkov, nai sk tov fit} \adineiv aXW afxvvasQai vnapxei to evsXni, ' eius a quo coepit iniuria, provocatio maxime invidiosa est; at cum depelluntur aggressores, sicut bona conscientia fiduciam secum fert, ita quia de vindicanda non de inferenda iniuria laboratur, spes etiam adsunt optimae '. Si ita necesse est, perge gens mari invictissima, nee tuam tantum, sed humani generis libertatem audacter propugna. Nee te, quod classis centenis remigat alls, Terreat: INVITO labitur ilia MARI: Quodve vehunt prorae Centaurica saxa minantes, Tigna cava et pictos experiere metus. Frangit et attollit vires in milite causa; Quae nisi iusta subest, eoccutit arma pudor* 1 Polus Lucanus apud Stobaeum, De iustitia (III, p. 362 Wachsmut-Hense) ; Clemens Alexandrinus, Stromateis; Augustinus, De civitate Dei IV, IS. 'Demosthenes, De libertate Rhodiorum XV, 10 (p. 193 R.). * Propertius IV, vi, 47-52. FREEDOM OF THE SEAS 73 the opinion of many philosophers and theologians 1 differ more in name than in fact, and as peace is a harmonious agreement based not on individual whim, but on well ordered regulations. If however a truce is arranged for, it is quite clear from the very nature of a truce, that during its continuance no one's condition ought to change for the worse, inasmuch as both parties stand on the equivalent of a uti possidetis. But if we are driven into war by the injustice of our enemies, the justice of our cause ought to bring hope and confidence in a happy outcome. " For," as Demosthenes has said, " every one fights his hardest to recover what he has lost; but when men endeavor to gain at the expense of others it is not so." 2 The Emperor Alexander has ex- pressed his idea in this way: ' Those who begin unjust deeds, must bear the greatest blame; but those who repel aggres- sors are twice armed, both with courage because of their just cause, and with the highest hope because they are not doing a wrong, but are warding off a wrong '. Therefore, if it be necessary, arise, O nation uncon- quered on the sea, and fight boldly, not only for your own lib- erty, but for that of the human race. " Nor let it fright thee that their fleet is winged, each ship, with an hundred oars. The sea whereon it sails will have none of it. And though the prows bear figures threatening to cast rocks such as Centaurs throw, thou shalt find them but hollow planks and painted terrors. 'Tis his cause that makes or mars a soldier's strength. If 'the cause be not just, shame strikes the weapon from his hands." 3 1 Polus Lucanus apud Stobaeum, De iustitia; Clemens Alexandrinus, Stro- mateis; Augustine, City of God IV, IS. 2 On the liberty of the Rhodians XV, 10 [Pickard-Cambridge's translation I, page 59]. 3 Propertius IV, vi s 47-52 [Butler's (Loeb) translation, page 305]. 74 MARE LIBERVM Si iusta multi, et ipse Augustinus, 1 arma crediderunt eo nomine suscipi, quod per terras alienas iter innoxium ne- garetur, quanto ilia erunt iustiora, quibus maris, quod naturae lege commune est, usus communis et innoxius postu- latur? Si iuste oppugnatae sunt gentes quae in suo solo commercia aliis interdicebant, quid illae quae populos ad se nihil pertinentes per vim distinent, ac mutuos earum com- meatus intercludunt? Si res ista in iudicio agitaretur, du- bitari non potest quae a viro bono expectari deberet sen- tentia, ait Praetor: 2 ' Quo minus illi in flumine publico navem agere, ratem agere, quove minus per ripam exonerare liceat, vim fieri veto '. De mari et litore in eandem f ormam dandum interdictum docent interpretes, exemplo Labeonis, qui cum interdiceret Praetor: 3 ' Ne quid in flumine publico ripave eius facias, quo statio iterve navigio deterius sit, fiat ' ; simile dixit interdictum competere in mari : i ' Ne quid in mari inve litore facias, quo portus, statio, interve navigio deterius sit, fiat '. Immo et post prohibitionem, si quis scilicet in mari navigare prohibitus sit, aut non permissus rem suam ven- dere, aut re sua uti, miuriarum eo nomine competere actionem Vlpianus respondit. 5 Theologi insuper et qui tractant casus, quos vocant, conscientiarum, Concordes tra- 1 De civitate Dei V, 1. 'Digest XLIII, 14, 1 (Ut in flumine publico navigare liceat). ' Digest XLIII, 12, 1 (De fluminibus, L. 1, in principio). 4 Digest XLIII, 12, 1 (De fluminibus, L. 1, § Si in mari aliquid). "Digest XLIII, 8, 2 (Ne quid in loco publico, L. 2, § Si quis); XLVII, 10, 13 et 24 (De iniuriis, L. Iniuriarum actio, et L. Si quis proprium) ; Silvestris, In verbo 'restitutio', 3 sub finem; Oldradus et Archidiaconus on Digest XLVIII, 12, 2 (De lege Iulia de annona), and XLVII, 11, 6 (De extraordinariis criminibus. L. Annonam). FREEDOM OF THE SEAS 74 If many writers, Augustine himself 1 among them, be- lieved it was right to take up arms because innocent pas- sage was refused across foreign territory, how^auch more. i justly will arms be taken up against those from whom the demand is made of the common and innocent use of the sea, .which by the law of nature is common to all? If those nations which interdicted others from trade on their own soil are justly attacked, what of those nations which sep- arate by force and interrupt the mutual intercourse of peo- ples over whom they have no rights at all? If this case should be taken into court, there can be no doubt what opinion ought to be anticipated from a just judge. The praetor's law says : z ' I forbid force to be used in preventing any one from sailing a ship or a boat on a public river, or from unloading his cargo on the bank '. The commentators say that the injunction must be applied in the same man- ner to the sea and to the seashore. Labeo, for example, in commenting on the praetor's edict, 3 ' Let nothing be done in a public river or on its bank, by which a landing or a channel for shipping be obstructed ', said there was a similar interdict which applied to the sea, namely, 4 ' Let nothing be done on the sea or on the seashore by which a harbor, a landing, or a channel for shipping be obstructed '. Now after this explicit prohibition, if any one be pre- vented from navigating the sea, or not allowed to sell or to make use of his own wares and products, Ulpian says that he can bring an action for damages on that ground. 5 Also the theologians and the casuists agree that he who prevents another from buying or selling, or who puts his 1 City of God V, 1. * Digest XLIII, 14, 1. 8 Digest XLIII, 12, 1. * Digest XLIII, 12, 1. •Digest XLIII, 8, 2; XLVII, 10, 13 and 24; Silvestris, on the word 're- stitutio'; Oldradus and Archidiaconus on Digest XLVIII, 12, 2, and XLVII, 11, 6 [Oldrado de Ponte (P-133S), a Bologna canonist. Archidiaconus is probably the Italian decretalist Guido Bosius.] 75 MARE LIBERVM dunt, eum qui alteram vendere aut emere impediat, utilita- temve propriam publicae ac communi praeponat, aut ullo modo alteram in eo quod est iuris communis impediat, ad restitutionem teneri omnis damni viri boni arbitrio. Secundum haec igitur vir bonus iudicans, Batavis liber- tatem commerciorum adiudicaret, Lusitanos et ceteros, qui earn libertatem impediunt, vetaret vim facere, et damna restituere iuberet. Quod autem in iudicio obtineretur, id ubi iudicium haberi non potest, iusto bello vindicatur. Augustinus : 1 ' Iniquitas partis adversae iusta ingerit bella '. Et Cicero : 2 ' Cum sint duo genera decertandi, unum per disceptationem, alteram per vim, conf ugiendum ad posterius, si uti non licet priore '. Et Rex Theodoricus : ' Veniendum tunc ad arma, cum locum apud adversarium iustitia non potest reperire '. Et quod proprius est nostro argumento, 8 Pomponius eum qui rem omnibus communem cum incom- modo ceterorum usurpet, MANV PROHIBENDVM respondit. Theologi quoque tradunt, sicuti pro rerum cuiusque defensione bellum recte suscipitur, ita non minus recte suscipi, pro usu earum rerum quae naturali hire debent esse communes. Quare ei qui itinera praecludat, evection- emque mercium impediat, etiam non expectata ulla publica auctoritate, via facti, ut loquuntur, posse occurri. Quae cum ita sint, minime verendum est, ne aut Deus 1 De civitate Dei IV. 1 De officiis I, 34. * Digest XLI, 1, 50 (De adquirendo rerum dominie, L. Quamvis quod in litore) ; Henricus von Gorcum, De bello justo 9. FREEDOM OF THE SEAS 75 private interests before the public and common interests, or who in any way hinders another in the use of something which is his by common right, is held in damages to complete restitution in an amount fixed by an honorable arbitrator. Following these principles a good judge would award to the Dutch the freedom of trade, and would forbid the Portuguese and others from using force to hinder that free- dom, and would order the payment of just damages. But when a judgment which would be rendered in a court cannot be obtained, it should with justice be demanded in a war. Augustine 1 acknowledges this when he says : ' The injustice of an adversary brings a just war '. Cicero also says: 2 "There are two ways of settling a dispute; first, by discussion; second, by physical force; we must resort to force only in case we may not avail ourselves of discussion." And King Theodoric says: 'Recourse must then be had to arms when justice can find no lodg- ment in an adversary's heart '. Pomponius, however, has handed down a decision which has more bearing on our argu- ment 3 than any of the citations already made. He declared that the man who seized a thing common to all to the prejudice of every one else must be forcibly prevented from so doing. The theologians also say that just as war is righteously undertaken in defense of individual property, so no less righteously is it undertaken in behalf of the use of those things which by natural law ought to be common property. Therefore he who closes up roads and hinders the export of merchandise ought to be prevented from so doing via facti, even without waiting for any public authority. Since these things are so, there need not be the slightest 1 City of God IV. ' De officiis I, 34 [Walter Miller's (Loeb) translation, page 37]. "Digest XLI, 1, SO; Heinrich von Gorcum, De bello justo 9. 76 MARE LIBERVM eorum conatus secundet, qui ab ipso institutum ius naturae certissimum violant, aut homines ipsi eos inultos patiantur, qui solo quaestus sui respectu communem humani generis utilitatem oppugnant. FREEDOM OF THE SEAS 76 fear that God will prosper the efforts of those who violate that most stable law of nature which He himself has in- stituted, or that even men will allow those to go unpunished who for the sake alone of private gain oppose a common benefit of the human race. CVM SVB HOC TEMPVS PLVEIMAE REGIS HlSPANIARVM LITTEEAE IN MANVS NOSTRAS VENISSENT, QVIBTS IPSIVS ET LVSITANOBVM INSTITVTVM MANIFESTS DETEGITVE, OPEEAE PEETITM VISVM EST EX IIS, QTAE PLEBAEQVE EODEM EEANT AEGVMENTO, BINAS IN L.ATINVM SEE- MONEM TEANSLATAS EXHIBEBE. Domine Martine Alphonse de Castro, Prorex amice, ego Rex multam tibi salutem mitto: Cum hisce litteris perveniet ad te exemplum typis im- pressum Edicti quod faciendum curavi, quo, ob rationes quas expressas videbis, aliasque meis rebus conducentes prohibeo commercium omne externorum in ipsis partibus Indiae aliisque regionibus transmarinis. Quandoquidem res haec est momenti atque usus maximi, et quae effici summa cum industria debeat, impero tibi, ut simulatque litteras has et edictum acceperis, publicationem eius omni diligentia pro- cures in omnibus locis ac partibus istius imperi, idque ipsum quod edicto continetur exsequaris sine uUius personae ex- ceptione, cuiuscumque qualitatis, aetatis, condicionisve sit, citra omnem moram atque excusationem, procedasque ad impletionem mandati via merae exsecutionis, nullo admisso impedimento, appellatione, aut gravamine in contrarium, cuiuscumque materiae generis aut qualitatis. Iubeo itaque hoc ipsum impleri per eos ministros ad quos exsecutio per- tinet, iisque significari, non modo eos qui contra fecerint malam operam mihi navaturos, sed eosdem me puniturum privatione officiorum in quibus mihi serviunt. Quia autem relatum est mihi commorari in istis partibus 77 APPENDIX Two letters of Philip III, King of Spain As several letters of the King of Spain have come of late into our hands, in which his design and that of the Portuguese is clearly disclosed, it seemed worth while to translate into Latin two of them which had particular bear- ing upon the controversy at issue, and to append them here. LETTER I To Don Martin Alphonse de Castro, our beloved viceroy, I, the King, send many greetings: Together with this letter will come to you a copy printed in type of an edict which I have taken much pains to draw up, by which, for reasons which you will see expressed, and for other reasons which are consonant with my interests, I prohibit all commerce of foreigners in India itself, and in all other regions across the seas. As this matter is of the greatest importance and serviceableness, and ought to be carried out with the highest zeal, I command you, as soon as you shall have received this letter and edict, to further with all diligence its publication in all places and districts under your jurisdiction, and to carry out the provisions of the edict without exception of any person whatsoever, no matter what his quality, age, or condition, and without delay and excuse, and to proceed to the fulfilment of this com- mand with the full power of your authority, no delay, appeal, or obstacle to the contrary, being admitted, of any kind, sort, or quality. Therefore I order that this duty be discharged by those 77 78 MARE LIBERVM externos multos variarum nationum, Italos, Gallos, Ger- manos, Belgas, quorum pars maior, quantum intelligimus, eo venit per Persida et Turcarum imperium, non per hoc regnum, adversus quos si ex huius Edicti praescripto ac rigore procedatur, posse inde nonnullas difficultates sequi, si illi ad Mauros inimicos perfugiant, vicinisque munitionum mearum dispositionem indicent, rationesque monstrent quae rebus meis nocere possent, exsequi te hoc edictum volo prout res et tempus ferent, atque ea uti prudentia, qua illae diffi- cultates evitentur, curando ut omnes externos in potestate tua habeas eosque custodias pro cuiusque qualitate, ita ut adversus imperium nostrum nihil valeant attentare, utque ergo omnino eum finem consequar quern hoc Edicto mihi proposui. Scriptae Vlyssipone XXVIII Novembris, Anno MDCVI. Subsignatum erat Rex. Inscriptio. Pro Rege. Ad Dominum Martinum Alfonsum de Castro Consiliarium suum, et suum Proregem Indiae. Prorex amice Rex multam salutem tibi mitto: Etsi pro certo habeo tua praesentia, iisque viribus cum quibus in partes austrinas concessisti, perduelles Hollandos, FREEDOM OF THE SEAS 78 officers to whom its execution belongs, and that they be in- formed that not only will those who disobey serve me ill, but that I will punish them by depriving them of the offices in which they now serve me. Further, inasmuch as it has been reported to me that within your jurisdiction there are sojourning many for- eigners of different nations, Italians, French, Germans, and men of the Low Countries, the larger part of whom as we know came there by way of Persia and Turkey, and not through our realm; and inasmuch as, if this edict be rigidly enforced against those persons to the letter, some incon- veniences might follow, if they should escape to the Moors, our enemies, and make known to our neighbors the dis- position of my forces, and thus show ways that they might be able to harm my dominion: Therefore, I wish you to carry out the provisions of this edict as the exigencies of circumstances and occasion demand, and to use all pru- dence necessary in order to avoid those difficulties, taking especial pains to keep all foreigners in your power, and to guard them in accordance with their individual rank, so that they may have no opportunity to attempt anything preju- dicial to our power, that thus I may attain fully that end which I have set forth in this edict. Given at Lisbon, on the 28th of November in the year of our Lord, 1606. Signed by the king, and addressed : For the king, to Don Martin Alphonso de Castro, his Councillor, and Viceroy for the East Indies. UETTEB, II To our beloved viceroy, I, the King send many greetings: Although I consider it absolutely certain that your pres- ence and the forces which you took with you into those Eastern regions, guarantee that our enemies, the Dutch, 79 MARE LIBERVM qui illic haerent, nee minus indigenas qui eis receptum prae- bent, ita castigates fore, ut nee hi, nee illi tale quicquam in posterum audeant ; expediet tamen, ad res tuendas, ut iustam classem, eique operi idoneam, cum tu Goam redibis, in istis Maris partibus relinquas, eiusque imperium et summam praefecturam mandes Andreae Hurtado Mendosae, aut si quern ei muneri aptiorem iudicabis, quemadmodum pro tuo in me affectu confido, ea in re non aliud te respecturum quam quod rebus meis erit utilissimum. Scriptae Madritii XXVII Ian. MDCVII. Signatum Rex. Inscriptio. Pro Rege. Ad Dominum Martinum Al- fonsum de Castro suum Consiliarium, et suum Proregem Indiae. FREEDOM OF THE SEAS 79 who infest those quarters as well as the natives who give them a welcome reception, will be so thoroughly punished that neither the one nor the other will ever dare such prac- tices in the future: still it will be expedient for the protec- tion of our interests, that, when you shall return to Goa, you leave in those parts of the sea a fleet large and capable enough to do the business, and also that you delegate the supreme command of that fleet to Andrea Hurtado de Mendoza, or to any one else whom you shall consider better fitted for this post. I rely upon your affection for me, knowing that in this matter you will do nothing but what will be most useful to my interests. Given at Madrid the 27th day of January in the year of our Lord 1607. Signed by the king, and addressed: For the king, to Don Martin Alfonso de Castro, his Councillor, and Viceroy for the East Indies. INDEX References are to page* of text and translation alike. Accursius, biographical note, 51, n. t; cited, 51. Agamemnon, mention of, 9. Agreements, when not binding, 35. Air, common to all, 28; nature of, 39. Alciatus, A., biographical note, 10 n. 2. Alexander, Emperor, quoted, 73. Alexander the Great, mention of, 14, 40. Alexander VI, Pope, reference to, 15, 45. Alexandria, mention of, 68. Ambrose, St., biographical note, 33 n. 5; cited, 52, 71; quoted, 32. Amorites, mention of, 9. Andocides, cited, 72 n. 1. Angelus Aretinus, biographical note, 48 n. 2; reference to, 48, 49, 50, 52, 55. Apollinaris, mention of, 32. Aquinas, Thos., biographical note, 13 n. 4; mention of, 13, 19. Arabians, mention of, 40, 68. Arbitration, 6. Archidiaconus, cited, 74 n. 5. Aristotle, cited, 61, 63, 71; quoted, 63. Art of exchange, definition of, 61. Athenaeus, reference to, 29. Athenians, mention of, 9. Augustine, St., cited, 71, 74; quoted, 75; reference to, 9. Augustus, mention of, 12, 41. Avienus, quoted, 23, 24. Ayala, reference to, 16 n. 5. Aztecs, mention of, 9. Balbus, J. F., biographical note, 49 n. 3; cited, 49; mention of, 55. Baldis de Ubaldis, biographical note, 9 n. 7; mention of, 9, 55. Bartolus, biographical note, 48 n. *; cited, 48; reference from, 19 n. 2. Bennett, C. E., translation from, 31. Bernhardus, St., reference from, 16 n. 3. Boethius, quoted, 19. du Bois, see Silvius. Bolognese, mention of, 9. Butler, translation from, 73. Cadiz, mention of, 40. Caelius Antipater, cited, 40. Caietanus, T. (Cajetan), biographical note, 19 n. 4; reference to, 17, 19. 81 Cape of Good Hope, mention of, 40, 59. Castrensis, A. de, biographical note, 53 n. 1; cited, 63. Castrensis, P. de (de Castro), bio- graphical note, 49 n. *; reference from, 22 n. 1. Castro, M, C. de, letters to, 77. Celsus, cited, 30, 31, 34. Ceylon, mention of, 11, 12. Charles V, Emperor, reference to, 21. Chinese, mention of, 62, 68. Cicero, cited, 72; quoted, 23, 25, 27, 28, 75; reference to, 29. Cinus, cited, 63 n. 1. Claudius, Emperor, mention of, 41. Clemens Alexandrinus, cited, 73 n. 1. Coercion, Portuguese, in case of East Indies, 68. Columella, reference to, 32. Comines, P. de, biographical note, 28 n. 3. Commerce, origin of, 62. Common ownership, definition of, 23. Common right, 44. Community of use, annihilation of, 62. Connanus, F. de, biographical note, 12 n. 2. Conscience, 3. Contract, nature of, 35. Cornelius Nepos, cited, 40. Council of Spain, mention of, 20. Council of Toledo, mention of, 19. Covarruvias, D., biographical note, 9 n. 3. Crown properties, in sea and river, 36. Custom, established by privilege, 52. Demosthenes, cited, 72; quoted, 73. Divine law, 1. Donation of Pope Alexander VI, ref- erence to, 15, 18, 45, 66. Donellus, H. (Doneau), biographical note, 12 n. 2. Dryden, J., translations from, 7, 8, 26. Duarenus, biographical note, 27 n. 4. Dutch, answer to Portuguese, 71; East India trade to be maintained by, 72; navigation by, 59; reasonable claims of, 70. East Indies, mention of, 65; not chat- tels of Portuguese, 21, 60, 68; Portu- 82 INDEX guese claim of exclusive right to trade in, 61; Portuguese not first in, 41; right of trade to be kept with, 72; way is free to, 37. Emmanuel, King of Portugal, mention of, 59. English, mention of, 43. Ennius, quoted, 38. Equity, chapter on, 69. Estius, biographical note, 9 n. S. Exchange, art of, defined, 61; deriva- tion of, 62. Exhaustion, question of, 57. Expediency, 1. Faber, J., biographical note, 34 n. 2; reference to, 34, 55. Fachinham, N., biographical note, 50 n. 3. Felinus, M. S., biographical note, 49 n. 2; cited, 49. Fishing, an ancient national right, 56; free to all, 32, 38; not legal to pre- vent, 33, 51 ; revenues from, 36 ; » servitude, 34. Fleets, maintenance of, 35. Free navigation, chapter on, 7. Freedom of trade, basis of, 63; chap- ter on, 61 ; Dutch should have, 75. French, mention of, 43; navigation by, 59. Gaius Caesar, mention of, 40. Genoese, mention of, 48, 53, 54, 56, 58. Gentilis, A., biographical note, 8 n. 2. Goa, mention of, 79. Gorcum, H. v., cited, 75 n. 3. Gordianus, Fab. Claud., biographical note, 12 n. 1; mention of, 12. Grandpont, A. G. de., xi. Greeks, reference to, 19 Gregory, mention of, 19. Gregory of Nazianzus, cited, 71. Guicciardini, cited, 68 n. 2. Hanno, reference to, 40. Harris, E. I., translations from, 24, 25. Hercules, mention of, 9. Hermogenianus, quoted, 26. Hesiod, quoted, 70; reference to, 22. Homer, cited, 62. Horace, quoted, 12, 23, 31. Hugo, reference from, 16 n. 3. Hunting, an ancient national right, 56. India, mention of, 12. Inner sea, as distinguished from outer sea, 37. Innocentius, reference from, 19 n. 2. Innocent passage, 20, 43, 74. International rights, 31. Isernia, A., biographical note, 36 n. *. Isocrates, cited, 72 n. 1, 2. Israelites, mention of, 9. James, H. R., translation from, 19. Jason, cited, 54 n. 1. Java, mention of, 11. John, King of Portugal, mention of, 59. Jowett, B., translation from, 63. Jurisdiction, distinguished from owner- ship, 35. Labeo, quoted, 31, 74. Law of Human Society, 9. Law of Nations, 7, 9, 28, 31, 61, 63; right conception of, 52. ^ Law of Nature, 2, 5, 23; right con- ception of, 52. Law of property, 25. Legitimate rulers, 19. Leo, Emperor, cited, 33. Lucullus, mention of, 32. Mair, A. W., translation from, 70. Malacca, mention of, 59. Marcianus, cited, 32, 48, 49; reference to, 33. Martial, quoted, 32. Martin, J. C, xii. Megarians, mention of, 8. Mendoza, A. H. de, mention of, 79. Miller, W., translations from, 27, 38, 75. Milton, quoted, 11 n. *. Moluccas, mention of, 11. Monopoly, question of, 71. Morocco, mention of, 40. Natural Law, 2, 5, 23, 53. Navigation, Dutch, 59; free to all, 7, 32, 38, 44, 46, 55, 56; Portuguese, 59; prescriptive right claimed by Portu- guese, 54, 60; protection of, 35. Nazianzenus, see Gregory of Nazianzus. Neratius, reference to, 28. Nonius Marcellus, quoted, 12 u. 2. Occupation, definition of, 25, 39, 48; mention of, 27, 34; not to affect common use, 30. Oldradus (Oldrado de Ponte), bio- graphical note, 74 n. 5. Osorius, H., biographical note, 59 n. 1. Outer sea, as distinguished from inner sea, 37. Ovid, quoted, 26, 28. Ownership, common, 26; private, 29, 33, 62; transition to, 24. Panormitanus, cited, 67 n. 2. Papal Donation, chapters on, 15, 45, 66. Papinian, cited, 60; quoted, 48. INDEX 83 Paul III, Pope, reference to, 21. Paulus, cited, 32, 51. Personal right, 35. Peter, St., mention of, 16. Philip III of Spain, letters of, 77. Pickard-Cambridge, translation from, 73. Pirates, treatment of, 35. Placentinus, quoted, 34. Plato, cited, 63. Plautus, quoted, 29. Pliny, cited, 12, 32, 40, 41, 62; quoted, 7. Plutarch, reference to, 14. Polus Lucanus, cited, 73 n. 1. Pomponius, cited, 30, 75. Pomponius Mela, quoted, 40 n. 1. Pope, The, no right in temporal mat- ters, 45; no authority against law of nature and of nations, 66. Portuguese, arrogant pretensions of, 39, 40, 43, 75; claim of exclusive right to trade, 61; claim to ocean, 37; desire for profits, 42, 69, 71; mention of, 56, 65; not first in East Indies, 41. Prescription, acquisition by, 49, 59; chapters on, 47, 67; definition of, 47; failure of, 50, 51; immemorial time no help to, 49, 58; reference to, 4, S3. Pretexts for war, 18. Private possessions, reference to, 28. Privative right, 23. Propertius, quoted, 73. Property, origin of, 27. Ptolemaeus, cited, 41. Public opinion, 3. Public territory, origin of, 34. Quintilian, quoted, 25. Revenues, on fisheries, 36. Right of innocent passage, 20, 43, 74. Right of navigation, not Portuguese be- cause of Papal Donation, 45. Rivalry, comment on, 70. Roman Church, mention of, 19. Sandeus, see Felinus. Saracens, reference to, 10, 17. Scaevola, mention of, 30. Scott, J. B., Introductory note by, v. Sea, The, common to all, 28, 30, 34, 37, 43, 44, 52, 55; defined by law of nations, 22; nature of, 31, 39; not exhausted by use, 43, 57; not mer- chandise, 34; not Portuguese by Papal Donation, 45; not subject to servitude, 35, 36; sovereignty of, 53. Seashore, common to all, 28, 30; how to be used, 30, 34; right of Roman people to, 31. Seneca, cited, 63; quoted, 8, 24, 25, 26, 27. Shahan, Bishop, xii. Sigonius, C, biographical note, 9 n. 2. Silvestris, cited, 46 n. 1. Silvius, F., biograpnical note, 17 n. 1; reference from, 17. Smith, K. F., xi. Sovereignty, grant by reason of, 17; matter of positive law, 20; Papal Donation gives no right to, chapter on, 15; a particular proprietorship, 22, 24; by right of conquest, 18; by right of discovery, 11; title to, 11; universal, 24. Spaniards, arrogance of, 70, 71; claim to ocean, 37, 54; mention of, 56. Strabo, quoted, 41. Sylvius, see Silvius. Tacitus, quoted, 10. Temporal possessions, 19. Theodoric, King, quoted, 75. Thucydides, cited, 72 n. 1; quoted, 27. Title by prescription, destroyed, 50. Tolls, 11, 36. Torquemada, see Turre Cremata. Trade, freedom of, 61, 63, 72; origin of, 62; Portuguese claim to right of, 61. Trajan, mention of, 41. Turre Cremata, reference from, 16 n. 3. Ulpian, cited, 31, 33, 35, 44, 51, 63, 74; reference to, 28, 69. Use, definition of, 24, 27; sea not ex- hausted by, 43; things susceptible to universal, 29. Usurpation, definition of, 52; Portu- guese worthless, 68. Uti possidetis, 32, 73. Varro, reference to, 32. Vasquius, F. M. (Vasquez), biographi- cal note, 52 n. 4; cited, 53, 67, 68; quoted, 52, 55, 56, 58, 70. Venetians, mention of, 9, 43, 48, 53, 54, 56, 58. Vergil, quoted, 7, 8, 26; reference to, 29. Victoria, F. de, biographical note^ 9 n. 3; reference to, 9, 13, 17, 18. War, pretexts for, 18, 20. Water, common to all, 28. West Indies, claimed by Portuguese, 54. Willoughby, W. W., xii. World monopoly, question of, 71. Zuerius, P., biographical note, 44 n. 3.