Front Page Titles (by Subject) CHAPTER I: Introductory Remarks—Outline [ of the Case ] —Divisions [ of the Discussion ] —Method—Order - Commentary on the Law of Prize and Booty
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CHAPTER I: Introductory Remarks—Outline [ of the Case ] —Divisions [ of the Discussion ] —Method—Order - Hugo Grotius, Commentary on the Law of Prize and Booty 
Commentary on the Law of Prize and Booty, ed. and with an Introduction by Martine Julia van Ittersum (Indianapolis: Liberty Fund, 2006).
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Introductory Remarks—Outline [of the Case]—Divisions [of the Discussion]—Method—Order
Introductory remarksA situation has arisen that is truly novel, and scarcely credible to foreign observers, namely: that those men who have been so long at war with the Spaniards and who have furthermore suffered the most grievous personal injuries, are debating as to whether or not, in a just war and with public authorization, they can rightfully despoil an exceedingly cruel enemy who has already violated the rules of international commerce. Thus we find that a considerable number of Hollanders (a people surpassed by none in their eagerness for honourable gain) are apparently ashamed to lay claim to the spoils of war, being moved forsooth, by compassion for those who in their own relations with the Dutch have failed to observe even the legal rights of enemies!
Since this state of affairs is due partly to the malicious falsehoods of certain persons insufficiently devoted to the commonwealth, partly to the scruples and somewhat superstitious self-restraint of other individuals, it has seemed expedient that we should undertake to enlighten the artless innocence of the latter while combating the malice of the former. For no discerning person can be unaware of the consequences toward which these debates are tending, nor of the hostile wiles intermingled with them. That is to say, if the Dutch cease to harass the Spanish [and Portuguese]1 blockaders of the sea (which will certainly be the outcome if their efforts result only in profitless peril), the savage insolence of the Iberian peoples will swell to immeasurable proportions, the shores of the whole world will soon be blocked off, and all commerce with Asia will collapse—that commerce by which (as the Dutch know, nor is the enemy ignorant of the fact) the wealth of our state is chiefly if not entirely sustained. On the other hand, if the Dutch choose to avail themselves of their good fortune, God has provided a weapon against the inmost heart of the enemy’s power, nor is there any weapon that offers a surer hope of liberty.
Yet there is some reason to congratulate the fatherland on these erroneous scruples, since it is a rather strong indication of Dutch innocence that Hollanders should hesitate even before committing acts sanctioned by the moral law of nations and by the precepts of public law. Justice can never be found wanting, nor can there be a lack of good faith, in those who proceed so carefully and with hesitant tread (so to speak) in exercising this right which is most certainly possessed by all peoples and which would seem questionable to no one save the Dutch themselves.
It is, however, indubitably true that virtue, at both extremes,[2′] borders upon vice.a While this fact is fairly obvious in some cases, in others it more easily escapes notice, owing to the magnitude of the evil opposed to the particular virtue involved. For example, because of our aversion to a wrathful disposition, we so disregard the stolidity which constitutes the opposite extreme of vice, and which the Greeksa called ἀοργησίαν [lack of rancour], that this quality has not even found a Latin name. Assuredly, too, the consuming greed for gain denoted by the Greek term αἰσχροκερδεία [sordid covetousness], is a vile disease of the spirit, characterized by complete disrespect for law and morality; yet it is possible to sin in contrary fashion, neglecting opportunities to promote one’s own interests, through an anxious and overnice avoidance of things not essentially dishonourable. For the Socratists show that the wise and good man is φῐλοκερδής, that is to say, by no means disregardful of his own advantage. The philosophers likewise deny that justice is οἰκοφθόρον and πτωχοποιόν, “a destroyer of domestic property” and “the author of indigence.”b As Luciliusc has correctly observed, it is indeed
but it is also
Even in this [abstention from greed], we should guard against excess. In other words, let us not imagine that to be vicious which is devoid of vice; and let us not be unjust to ourselves while shunning injustice toward others. The weapon that flies far past the target, misses the mark no less than the weapon that falls short of its aim. Both extremes are blameworthy; both are tainted by error. The fault of those persons whose hearts have grown hardened to every evil deed is perhaps the more shocking and execrable (though one can also conceive of a disposition to take offence at entirely inoffensive things, which may be described as excessively delicate and scrupulous); but impious irreverence for justice and equity is sufficiently revealed through its own infamy because it is repugnant to human nature, whereas there is more need to guard against that other form of vice, the form rooted in a sense of superiority, for the reason that it bears no distinctive mark and therefore easily assumes the aspect of virtue, under which guise it creeps into our hearts. Such is the vice epitomized in the old saying as “hunting for knots in a bulrush” [i.e. seeking for trouble where it does not exist].
Justice consists in taking a middle course.a It is wrong to inflict injury, but it is also wrong to endure injury. The former is, of course, the graver misdeed, but the latter is also to be avoided.
Owing, however, to the fact that we are more frequently impelled toward the first extreme, the precept of regard for others is usually held up to us with excessive zeal, the implication being that we are by nature sufficiently inclined to care for ourselves. Nevertheless, the wise man does not belittle himself, nor does he neglect to avail himself of his own advantages, since no other person will use them more properly.b By the same token, he will repel every injury to himself in so far as law and justice permit him to do so.c Thus the truly good man will be free from μειονεξία, that is to say, from the disposition to accord himself less than his due.
To be sure, such a disposition, as long as the loss resulting from it affects no one save the individual in error, customarily excites more ridicule than reproach and is called folly rather than injustice. But if at any time private loss brings common peril in its train, then indeed, we must combat it with all our force, lest the public welfare be harmfully affected by the mistaken convictions of individual citizens. Under this head should be placed the weakness of those persons who betrayed their own possessions to the enemy because some conscientious scruple prevented them from fighting. We know about the Jewish Sabbathsd and the Greek Moons.e,2 If there be other men who have not borne sufficiently in mind the famous epic passage, let them remember that:
I could cite numerous examples of persons who have sinned in this way, but what need is there of such citations? For who doubts but that the Hebrews thought themselves pious and humane because they did not savagely massacre the Midianites and Canaanites?b Who does not know of Saul’s mistaken pity for the conquered king?c Yet on this very score both Saul and the Hebrews were severely rebuked and punished. Moreover, the case with which we are dealing does not even involve this question of slaughter, but turns merely upon the issue of not leaving in the enemy’s possession resources which may be used to destroy the innocent.
Saint Augustine,d that supreme authority on piety and morals,[3′] spoke truly indeed when he declared that it was characteristic of timid men,3 not of the pious, to condemn war because of the ills—such as slaughter and plunder—which follow in its train.
For unless I am mistaken, we may appropriately borrow here the words of the poet Lucretius, since it is solely from that very “mien of nature” and from no other source that one should seek to ascertain how much is owed to others and how much to oneself. Accordingly, after a careful study of the law of war, in which special attention will be given to the precepts governing captured property, we shall find that this whole question has become clear to any person not devoid of ordinary intelligence.
Outline [of the case]The particular case underlying this discussion is summarized in the following paragraph.
Ships dispatched by the merchants of Holland and Zeeland to the various islands of the Indian Ocean not subject to Portuguese rule had been sailing forth on commercial ventures from as far back as 1595, when our sailors at last prepared to seek vengeance for the slaughter of many of their comrades, as well as for the losses suffered both by themselves and by their allies either in consequence of Portuguese calumnies or at the hands of Portuguese emissaries, through the perfidy of the latter and finally through the open armed violence of that people and their allies. In the year 1602, after several manifestations of hostility on both sides, it so happened that Jacob Heemskerck (Commander of the Amsterdam fleet of eight ships lying in the Strait of Singapore, one of the two straits by which Sumatra4 is separated from the Malay Peninsula) forced a Portuguese vessel to surrender and, disbanding its crew, sailed it home. This vessel, the Catharine by name, a ship of the class known as “caracks,” was laden with merchandise. Quite similar acts had of course been committed by other persons prior to that time, and have also been committed since then; but inasmuch as this particular instance is for many reasons the most widely celebrated, we have chosen it for examination as the episode representative of all such captures, so that on the basis of this investigation judgement may readily be passed in regard to the other cases.
Upon approaching the task indicated,Divisions [of the discussion] however, I find myself involved in an extremely complex debate: not because our thesis is at all difficult in itself, but because of the differing views of the very persons who dispute it. Some of these critics, guided in a sense by punctilious motives, hesitate to approve of the prize, apparently regarding it as something wrongfully acquired and illegitimate. Others, though they entertain no doubt from the standpoint of legitimacy, seem fearful of bringing some stain upon their reputations by such an act of approval. Again, there may be individuals who have no misgivings regarding the justice of the cause in question and who do not believe that their good name can be impaired thereby, but who nevertheless imagine that this very proposition which at the moment appears to be beneficial and profitable, may eventually result in some still latent loss and harm.
Thus our undertaking requires a combination of all the various forms of discourse customarily employed by orators.a It calls not only for debate as to whether the aforesaid act was right or wrong, to be conducted as if the point were being argued in court, but also for the assumption of the censor’s functions of praise and blame; and furthermore, since the circumstances that gave rise to the act remain unchanged, advice must be given as to whether or not the course of action already adopted is expedient for the future.
First of all, then, we must examine the matter from the standpoint of law, thus establishing a basis, so to speak, for the treatment of the other questions to be considered.
MethodThe ordered plan of nature to which I referred above has a very important bearing upon this phase of the discussion. For, in my opinion, it would be a waste of effort to pass judgement regarding acts whose scope is international rather than domestic—acts committed, more-over, under conditions not of peace but of war—solely on the basis of written laws. That Dioa who is called “the golden-tongued” by[4′] virtue of his eloquence, puts the point very neatly, when he says: τω̑ν μὲν ἐγγράφων οὐδὲν ἐν τοι̑ς πολεμίοις ἰσχύει· τά τε ἔθη φυλάττεται παρὰ πα̑σι, κἂν εἰς ἐσχάτην ἔχθραν προἑλθωσι. “To be sure, nothing written is valid between enemies; but customs are observed by all, even when the extreme of hatred has been reached.” In the passage just quoted, the term “customs” is equivalent to Cicero’sb concept in the phrase, “not written law, but the law sprung from Nature,” and to that expressed in the words of Sophocles,c ἄγραπτα κἀσφαλη̑ θεω̑ν νόμιμα, “not those written laws, indeed, but the immutable laws of Heaven.” Yet again, Lactantiusd goes so far as to censure the philosophers because in their discussion of military duties they take as their criterion, not true justice, but civic life and custom. If those persons [who base their judgement on written laws] do not read the works of the authors above cited, they ought at least to pay heed to their own Baldus,e who has wisely ruled that in any controversy arising between claimants of sovereign power the sole judge is natural reason, the arbiter of good and evil. Other quite learned authoritiesf uphold this same doctrine. Nor does it differ greatly from the popular maxim that he who seeks for a statutory law where natural reason suffices, is lacking in intelligence. Therefore, it is from some source other than the Corpus of Roman laws that one must seek to derive that pre-eminent science which is embodied, according to Cicero,g in the treaties, pacts, and agreements of peoples, kings, and foreign tribes, or—to put it briefly—in every law of war and peace.
Considerably better and more dependable is the method chosen by those who prefer to have such questions decided on the basis of Holy Writ, except that the persons employing this method frequently cite simple historical accounts or the civil law of the Hebrews in the place of divine law. For the materials collected indiscriminately from the annals of all nations, while they are extremely valuable in elucidating the question, have little or no value in providing a solution, since as a general rule the wrong course is the one more often followed [in the instances recorded in those annals].
The true way, then, has been prepared for us by those juristsa of antiquity whose names we revere, and who repeatedly refer the art of civil government back to the very fount of nature. This is the course indicated also in the works of Cicero.b For he declares that the science of law must be derived, not from the Praetor’s edict (the method adopted by the majority in Cicero’s day), nor yet from the Twelve Tables (the method of his predecessors), but from the inmost heart of philosophy.
Accordingly, we must concern ourselves primarily with the establishment of this natural derivation. Nevertheless, it will be of no slight value as a confirmation of our belief, if the conviction already formed by us on the basis of natural reason is sanctioned by divine authority, or if we find that this same conviction was approved in earlier times by men of wisdom and by nations of the highest repute.
For the rest,Order it is expedient for our purposes to order the discussion as follows: first, let us see what is true universally and as a general proposition; then, let us gradually narrow this generalization, adapting it to the special nature of the case under consideration. Just as the mathematicians customarily prefix to any concrete demonstration a preliminary statement of certain broad axioms on which all persons are easily agreed, in order that there may be some fixed point from which to trace the proof of what follows, so shall we point out certain rules and laws of the most general nature, presenting them as preliminary assumptions which need to be recalled rather than learned for the first time, with the purpose of laying a foundation upon which our other conclusions may safely rest.
In this connexion I must crave indulgence for the novelty and also, perhaps, for the prolixity of my work. Accordingly, I ask the reader to be patient and to accept on faith for the moment my assurance as to what the event will later confirm, namely: that the accuracy of the arguments to be derived from our premisses will compensate for any tedium caused by this preliminary matter, which will be regarded by many critics as already sufficiently familiar and by everyone as too repetitious in its presentation. Moreover, I can quite truthfully assert that certain problems bound up with the law of war and hitherto exceedingly confused, are susceptible of explanation and solution (even though they will not all be expressly mentioned in this treatise) on the basis of the said premisses and by the very method of demonstration herein employed.
Here follow the dogmas relating to the law of prize and booty.
[1. ]Hispanos: Grotius sometimes uses the terms “Spaniards,” “Spanish,” “Spain,” &c., in the strict sense (as in the immediately preceding paragraph, where he refers to a war that did not officially involve the Portuguese); but in many instances the historical facts or the trend of Grotius’s own argument point to the necessity or advisability of interpreting the same terms to include the Portuguese, who were ruled by the King of Spain at the time of the events described. In this particular instance, the reference to a blockade affecting commerce with Asia (a Portuguese rather than a Spanish sphere of interest), as well as the indirect allusion to the reward due the representatives of the East India Company for their defiance of Portuguese threats, necessitate the insertion of the bracketed phrase.
[a. ]Aristotle, Nicomachean Ethics, II. vii [II. vi. 13–17].
[a. ]Gellius, I. xxvi ; Arist., Nic. Ethics, IV. xi [IV. v. 5].
[b. ]Plutarch, Cato [Comparison of Aristides and Cato, iii. 3].
[c. ][Lactantius, Divine Institutes, VI. v.]
[a. ]Arist., Nic. Ethics, V. ix [V. v. 17] and xv [V. xi. 7–8].
[b. ]Ibid. IX. iv  and ibid. viii  and Arist., Politics, II. v [II. ii. 6].
[c. ]Arist., Nic. Ethics, V. xii [V. ix. 6].
[d. ]Josephus [ Jewish Antiquities] XIV. viii [XIV. 63].
[e. ]Herodotus, VIII [VI. 106]; Lucian, Astrology .
[2. ] That is to say, certain periods of certain months devoted to religious festivals, during which it was considered unlawful to undertake a military expedition.
[a. ]Homer, Iliad, XII .
[b. ]Numbers, xxxi [1–19]; Deuteronomy, vii. 2.
[c. ]1 Samuel, xv; Ambrose, On Duties [On Psalms, CXVIII. lviii. 25], cited in Decretum, II. xxiii. 4. 33.
[d. ]Augustine, Against Faustus, XXII. lxxiv, cited in Decretum, II. xxiii. 1. 4.
[3. ]Words written entirely in capital letters in Grotius’s manuscript are italicized in the English translation. In the case of quoted passages this does not necessarily indicate that the words thus italicized were stressed by either device in the original work.
[e. ]Lucretius [De Rerum Natura], II [59–61].
[4. ]Taprobane in the Latin, a term generally interpreted as the ancient and medieval name of Ceylon. Nevertheless, the geographical data presented here and elsewhere in the Commentary, taken in conjunction with the categorical assertion that Taprobane is “an island . . . which is now called Sumatra” (infra, p. 263), prove beyond any possibility of doubt that Grotius himself was speaking of Sumatra. Accordingly, wherever Grotius is not citing another author on the subject of Taprobane, the rendering “Sumatra” is adopted throughout the translation. On the other hand, in those passages where Classical Latin descriptions of Taprobane are quoted or paraphrased, the Latin term is retained and footnotes call attention to the fact that most authorities interpret such descriptions as references to Ceylon.
[a. ]Quintilian [Institutes of Oratory], III. iv.
[a. ]In oration On Custom [Orations, lxxvi, pp. 269–70].
[b. ]For Milo [iv. 10].
[c. ]Antigone [454–5].
[d. ]Divine Institutes, VI. vi.
[e. ]In Preface On Code.
[f. ]Vάzquez, Illustrium Controversiarum, li. 29.
[g. ]For Balbus [vi. 15].
[a. ]On Dig. I. i, XLI. i, XLI. ii and elsewhere passim; also On Dig. V. i. 76 and XLI. iii. 30.
[b. ]On Laws, I [v. 17].