Front Page Titles (by Subject) CHAPTER XII: Wherein It Is Shown That Even If the War Were a Private War, It Would Be Just, and the Prize Would Be Justly Acquired by the Dutch East India Company; and Wherein, Too, the Following Theses Are Presented: - Commentary on the Law of Prize and Booty
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CHAPTER XII: Wherein It Is Shown That Even If the War Were a Private War, It Would Be Just, and the Prize Would Be Justly Acquired by the Dutch East India Company; and Wherein, Too, the Following Theses Are Presented: - 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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Wherein It Is Shown That Even If the War Were a Private War, It Would Be Just, and the Prize Would Be Justly Acquired by the Dutch East India Company; and Wherein, Too, the Following Theses Are Presented:
Here follows an analytical discussion.1
1.Access to all nations is open to all, not merely by the permission but by the command of the law of nations.
2.Infidels cannot be divested of public or private rights of ownership merely because they are infidels, whether on the ground of discovery, or in virtue of a papal grant, or on grounds of war.
3.Neither the sea itself nor the right of navigation thereon can become the exclusive possession of a particular party, whether through seizure, through a papal grant, or through prescription (that is to say, custom).
4.The right to carry on trade with another nation cannot become the exclusive possession of a particular party, whether through seizure, or through a papal grant, or through prescription (that is to say, custom).
For if the seizure of the carack is carefully considered in the light of the doctrines above set forth concerning justice in relation to war and to spoils, we shall find that there is absolutely no respect in which the said seizure fails to accord perfectly with those doctrines.
First of all, then, with a view to covering all of the points included in that discussion of justice, let us treat of the incident as if we were dealing not with an act of public warfare (as is really the case) but with an act of private warfare. In other words, I suggest the following procedure: consider the cause of the East India Company as something apart from the public cause of the Dutch nation; imagine that the Company consists, not of Dutchmen who have long been at war with the Portuguese, but rather of any other [people]2 whatsoever, such as Frenchmen, Germans, Englishmen, or Venetians; and reflect carefully as to whether, in these circumstances, [any reason would exist to prevent us from] regarding the prize as justly and blamelessly acquired. After weighing the private cause involved, examine the public cause. Furthermore, in regard to both these phases of the subject, ask yourselves what was permissible [with respect to] the authors of the war who were acting on their own behalf, [and] what, [on the other hand,] was permissible [with respect to] allies. Turn your attention next to the question of the subjects, and weigh all the classifications and definitions of cause from the standpoint of the individuals involved.
Deduction from Article I, Conclusion V Initial passage and part relative to demonstration or explanation of same; Chap. vi, supra, pp. 92 ff.Now, in regard to the first phase of this examination, and in so far as it relates to the persons concerned, we find that Nature—the mistress and sovereign authority in this matter—withholds from no human being the right to carry on private wars; and therefore, no one will maintain that the East India Company is excluded from the exercise of that privilege, since whatever is right for single individuals is likewise right for a number of individuals acting as a group.
Accordingly, let us pass on to an investigation of the next point to be considered: the cause from which the war arises. We have already observeda that those same causes which render war just for the aggressor when they themselves are just, transfer this quality to the party defending itself b if that justice is wrongfully claimed for them. Therefore, let us ask of the Portuguese themselves, what it is that they require of the East India Company. Undoubtedly they will reply that their sole demand is this: that no one save themselves shall approach the East Indies for purposes of trade. Such a request, even if it were justly made, would still not serve automatically as an excuse for the stratagems and perfidious crimes above described. Nevertheless, since this pretext is pertinent[96′] to many of the points under discussion, it should be given consideration at the very outset.
Now, in the first place, we hold that, by the authority of that primary law of nations whose essential principles are universal and immutable, it is permissible for the Dutch to carry on trade with any nation whatsoever.
Thesis IFor God has not willed that nature shall supply every region with all the necessities of life; and furthermore, He has granted pre-eminence in different arts to different nations. Why are these things so, if not because it was His Will that human friendships should be fostered by mutual needs and resources, lest individuals, in deeming themselves self-sufficient, might thereby be rendered unsociable? In the existing state of affairs, it has come to pass, in accordance with the design of Divine Justice, that one nation supplies the needs of another, so that in this way (as Plinya observes) whatever has been produced in any region is regarded as a product native to all regions. Thus we hear the poets sing,
together with the remainder of the same passage.3
Consequently, anyone who abolishes this system of exchange, abolishes also the highly prized fellowship4 in which humanity is united. He destroys the opportunities for mutual benefactions. In short, he does violence to nature herself. Consider the ocean, with which God has encircled the different lands, and which is navigable from boundary to boundary; consider the breath of the winds in their regular courses and in their special deviations, blowing not always from one and the same region but from every region at one time or another: are these things not sufficient indications that nature has granted every nation access to every other nation? In Seneca’sd opinion, the supreme blessing conferred by nature resides in these facts: that by means of the winds she brings together peoples who are scattered in different localities, and that she distributes the sum of her gifts throughout various regions in such a way as to make reciprocal commerce a necessity for the members of the human race.
Therefore, the right to engage in commerce pertains equally to all peoples; and jurisconsultsa of the greatest renown extend the application of this principle to the point where they deny that any state or prince has the power to issue a general prohibition forbidding others to enjoy access to or trade with the subjects of that state or prince. This doctrine is the source of the sacrosanct law of hospitality. It is the basis of the Trojan complaints:
This other passage, too, is pertinent:
Moreover, we know that certain wars have been undertaken precisely on such grounds. This was true, for example, of the Megarean war against the Athenians,d and of the Bolognese war against the Venetians.e Similarly, Victoriaf holds that, if the Spaniards should be prohibited by the American Indians from travelling or residing among the latter, or if they should be prevented from sharing in those things which are common property under the law of nations or by custom—if, in short, they should be debarred from the practice of commerce—these causes might serve them as just grounds for war against the Indians; and, indeed, as grounds more plausible than others [discussed by Victoria in an earlier section of the same work]. A like example is recorded in the story of Mosesa and in a passage from Augustineb based upon that story. I allude to the fact that the Israelites waged war justly against the Amorites because the right of inoffensive transit through the Amorite territory was denied them, even though such transit ought to be freely permitted according to the absolutely just law of human fellowship. Hercules, too, made war upon the King of the Orchomenians,c and the Greeks (under the leadership of Agamemnon) upon the King of the Mysians, on this same ground, namely, that highways are (so to speak) free and open by natural disposition, as Baldusd has declared. Yet again, according to Tacitus,e the Germans accused the Romans of preventing conferences and assemblages among the various tribes, and of blocking off lands, rivers, and, in a sense, the very skies. Nor did the Christians in earlier times find any more acceptable justification for their crusades against the Saracens than the charge that the latter were barring the Christians from access to the land of Palestine.f
From the doctrine above set forth, it follows that the Portuguese, even if they were the owners of the regions sought by the Dutch, would nevertheless be inflicting an injury if they prevented the Dutch from entering those regions and engaging in commerce therein. How much more unjust, then, is the existing situation, in which persons desirous of commerce with peoples who share that desire, are cut off from the latter by the intervention of men who are not invested with power either over the said peoples or over the route to be followed! For there is no stronger reason underlying our abhorrence even of robbers and pirates than[97′] the fact that they besiege and render unsafe the thoroughfares of human intercourse.
In any case, we hold that the Portuguese are not the owners of the regions visited by the Dutch (that is to say, Java, Sumatra, and most of the Moluccas), on the basis of the incontrovertible argument that no one is owner of a thing which has never been taken into his possession either by his own direct action or by another party acting in his name. The islands in question now have, and always have had, their own rulers, governments, statutes, and legal systems. The Portuguese, like other peoples, are permitted to carry on trade there. Indeed, by paying the tributes levied and also by the very act of petitioning the rulers for the right of trade, the Portuguese themselves testify clearly enough to the fact that they are not the owners of those lands, but foreign visitors. Their very residence in the islands is allowed as a favour.
Moreover, aside from the fact that title does not suffice to constitute ownership, since possession is also a requisite (for possession of a thing is different from the right to seek possession thereof), I go so far as to assert that the Portuguese do not even have any title to ownership of the said regions which has not been taken from them by the pronouncements of learned men, among whom certain Spanish authorities are included.
In the first place, if the Portuguese maintain that those territories have passed into their hands as a reward for discovery, their contention will find support neither in law nor in fact.
DiscoveryFor discovery consists, not in perceiving a thing with the eye, but in actual seizure, as is intimated by the Emperor Gordian in one of his letters.a Thus the philologistsb treat the expressions “to discover” (invenire) and “to take possession of ” (occupare) as synonymous terms; and, according to all Latin usage,c we have “discovered” only that which we have acquired (adepti), the opposite process being that of “loss” (perdere). Furthermore, natural reason itself, the express statements of the law, and their interpretation by men of considerable learning,a all clearly indicate that discovery suffices to create a title to ownership only when possession is an accompanying factor;b that is to say, only in cases where movable articles are seized, or immovable property is marked off by boundaries and placed under guard.c In the particular case under discussion, it is in nowise possible to maintain that this requisite has been met; for the Portuguese have no garrisons stationed in those East Indian lands.
Besides, what answer can be made to the objection that the Portuguese cannot in any sense at all be said to have found the East Indies, a region exceedingly well known for so many centuries past, even as early as the time of Horace? [For we find these lines in his Epistles:]d
And what of the fact that the Romanse have described for us with the utmost exactitude the greater part of Taprobane?5 The other islands, too, were already known not only to the neighbouring Persians and Arabs but also to some European peoples, and in particular to the Venetians—before the Portuguese came to know them.
Thesis IIIn addition to the foregoing arguments, however, it should be noted that even discovery imparts no legal right save in the case of those things which were ownerless prior to the act of discovery.a But at the time when the Portuguese first came to the East Indies, the natives of that region—though they were in part idolaters, in part Mohammedans, and sunk in grievous sinb —nevertheless enjoyed public and private ownership of their own property and possessions, an attribute which could not be taken from them without just cause. This is the conclusion expounded by the Spaniard Victoria with irrefutable logic and in agreement with other authorities of the greatest renown.
Victoriac declares that “Christians, whether laymen or clerics, may not deprive infidels of their civil power and sovereignty merely on the ground that the latter are infidels, unless they have been guilty of some other wrong.” For the factor of religious faith, as Saint Thomasd rightly observes, does not cancel the natural or human law from which ownership has been derived. On the contrary, it is heretical to hold that infidels are not the owners of the property that belongs to them.e And the act of snatching from them, on the sole ground of their lack of faith, those goods which have been taken into their possession, is an act of thievery and rapine no less than it would be if perpetrated against Christians. Thus Victoria correctly maintains that the Spaniards acquired no greater right over the American Indians in consequence of that defect of faith, than the Indians would have possessed over the Spaniards if any of the former had been the first foreigners to come to Spain.
Furthermore, the Indians of the Orient are neither insane nor irrational, but clever and sagacious, so that not even in this respect can a pretext for their subjugation be found. For that matter, any such pretext is in itself clearly unjust. Long ago, Plutarcha pointed out[98′] that ἔμερω̑σαι τὰ βαρβαρικά [the civilizing of barbarians] served as πρόφασις πλεονεξίας [a cloak for greed], or in other words, that shameless lust for another’s property was wont to take cover under the excuse of introducing civilization into barbaric regions. Nowadays, even this pretext of bringing reluctant peoples to an acceptance of more refined customs—an explanation to which recourse was had in earlier times by the Greeks and by Alexander—is regarded in the judgement of all the theologians,b and particularly in that of the Spaniards, as unjust and impious.
Secondly,6 if the Portuguese are basing their claim upon the apportionment made by Pope Alexander the Sixth, it will be necessary to take under consideration before everything else the question of whether or not the Pope was interested exclusively in settling the disputes between the Portuguese and the Castilians. This task he was of course empowered to discharge in his capacity as chosen arbiter between the two peoples,c since the respective rulers themselves had previously concluded certain treaties on that very point. If we assume that the settlement of those disputes was the Pope’s sole aim, we must infer that the apportionment was drawn up only with reference to the Spaniards and the Portuguese and therefore will not affect the other peoples of the world. Or was it, instead, his intention to bestow almost a third of the whole earth upon each of the two nations above mentioned? Even in such circumstances—that is to say, if he had intended and had been empowered to make such a donation—nevertheless, it would not necessarily follow that the Portuguese had become the owners of the Orient, since it is not the act of donation but the subsequent delivery that creates ownership.a Therefore, in order to give validity to such a claim, it would be necessary to add the title of actual possession to the title of donation.
Furthermore, anyone who chooses to make a thorough examination of the question of law, whether divine or human, weighing the matter independently of his personal interests, will readily discern that a donation of this kind, concerning as it does the property of others, is without effect. I shall not enter here into any dispute as to the power pertaining to the Pope (in other words, to the Bishop of the Church of Rome); nor shall I make any assertion save on the basis of a hypothesis accepted by the most erudite of those persons who attribute the highest possible degree of authority to the papal office, and among whom the Spaniards in particular are included. The latter have boldly asserted (and I use their own words), that the Pope is not the civil or temporal lord of the whole earth;b for, with their characteristic acuteness, they have readily grasped these facts: that Christ the Lord renounced all earthly sovereignty;c that in His human form He certainly did not possess dominion over the entire world; and that if He had possessed such dominion, this sovereign right could not by any series of arguments be attributed to the Pope or transferred on a vicarious basis to the Church of Rome, inasmuch as it is indubitably true that in other respects, also, Christ possessed many things to which the Pope did not fall heir.d Certain other admissions should also be noted, namely: that even if the Pope did have worldly power of this kind, he would still not be right in exercising it, since he ought to be content with his spiritual jurisdiction;e that, in any case, he would in nowise be able to cede such power to secular princes; that, moreover, if he does possess any temporal power, he possesses it, as the phrase goes, for spiritual ends;a and that, consequently, he has no power at all over infidel peoples, since they are not members of the Church.
Thus it follows from the opinions laid down by Cajetan and by Victoria as well as from the preponderant authority of both theologians and canonists,b that there is no sound claim to be urged against the East Indians, either on the ground that the Pope as lord of the East Indian lands gave away this territory by an unrestricted act of donation, or on the ground that the inhabitants fail to acknowledge the papal dominion; and indeed, it is also clear that even the Saracens were never despoiled on such grounds.
Now that we have disposed of the pretexts just discussed, having plainly shown that (as Victoriac himself declares) the Hispanic peoples did not carry with them to still more distant regions any right to take possession of the lands to which they sailed, there remains for consideration only one possible title, based upon war. Such a title, even if it were in itself just, still could not create ownership save through the right attaching to captured property, that is to say, only after seizure. But the Portuguese, far from seizing the lands in question, were not engaged at the time in any war with the majority of the peoples visited by the Dutch. Consequently, there was no legal right that they could claim; for even if they had suffered injuries of any sort at the hands of the East Indians, it could reasonably be assumed that those injuries had been forgiven, in view of the long period of peace and the friendly commercial relations that had been established.
As a matter of fact, there was no pretext that the Portuguese could offer for going to war, since anyone who makes war upon barbarians (as the Spaniards did upon the American Indians) is wont to advance one of two pretexts: either that he is prevented by the said barbarians from engaging in trade, or else that the latter refuse to accept the doctrines of the true faith.
The Portuguese certainly did obtain rights of trade from the East Indians, so that they have no cause for complaint in this respect.
Moreover, St. Thomas, the Council of Toledo, Gregory, and practically all of the theologians, canonists, and juristsc arrive at the following conclusion: howsoever convincingly and fully the true faith may have been preached to barbarians (it is understood, of course, that quite a different question arises in the case of peoples previously subject to Christian princes, and likewise in the case of apostates), and even though the said barbarians may have refused to accept that faith, it is still not permissible to make war upon them or to deprive them of their goods merely on these grounds. It will be worth our while to quote in this connexion the exact words of Cajetan:
Some infidels (says Cajetan)d do not fall under the temporal jurisdiction of Christian princes either in law or in fact. Take as an example the case of pagans who were never subjects of the Roman Empire, and who dwell in lands where the term “Christian” was never heard. For surely the rulers of such persons are legitimate rulers, despite the fact that they are infidels and regardless of whether the government in question is a monarchical régime or a commonwealth; nor are they to be deprived of dominion over their own peoples on the ground of lack of faith, since dominion falls within the realm of positive law7 while lack of faith is a matter subject to divine law, and since the latter form of law does not abrogate the positive form, a point already established in the discussion of this question. Indeed, I do not know of any legal precept relative to such persons, in so far as temporal matters are concerned. No king, no emperor, not even the Church of Rome, is empowered to undertake war against them for the purpose of seizing their lands or reducing them to temporal subjection. Such an attempt would be based upon no just cause of war; for the emissaries sent forth to take possession of the world, by Jesus Christ the King of Kings, unto Whom power was given in heaven and on earth [Matthew, xxviii. 18], were not armed professional soldiers, but holy preachers, sheep in the midst of wolves [Matthew, x. 16; Luke, x. 3]. Thus I do not read in the Old Testament, in connection with the occasions on which it was necessary to seize possession by armed force, that war was ever declared against any nation of infidels on the ground that the latter did not profess the true faith. I find, instead, that the reason for such declarations of war was the unwillingness of the infidels to concede the right of passage, or the fact that they had attacked the faithful (as the Midianites did, for example), or a desire on the part of the believers to recover their own property, bestowed upon them by divine bounty. Hence it follows that we should be committing a very grave sin, if we strove to extend by such means the realm of the faith of Jesus Christ. Moreover, this course of action would not make us the legitimate masters of the infidels; we should merely be committing robbery on a large scale and placing ourselves under an obligation to make restitution as unjust conquerors or captors. Men of integrity ought to be sent as preachers to these infidels, in order that unbelievers may be induced by teaching and by example to seek God; but men ought not to be sent with the purpose of crushing, despoiling and tempting unbelievers, bringing them into subjection, and making them twofold more the children of hell [than the emissaries themselves],8 after the fashion of the Pharisees.
We are told, too,a that pronouncements to precisely the same effect have frequently been issued by the Senate in Spain and by the theologians (especially the Dominicans), ruling that the American Indians should be converted to the faith not through war but solely through the preaching of the Word, and that the liberty taken from them on the pretext of conversion should be restored to them. This policy is said to have been approved by Pope Paul III and by the Emperor Charles V, King of the Spanish realms. For the rest, we shall not dwell here upon the fact that in most regions the Portuguese are in no sense advancing the cause of religion, nor even making any effort to do so, since they are intent only upon gain. Nor shall we pause to comment upon the further fact that one might truthfully apply to the Portuguese in the East Indies the observation made by the Spanish writer Victoriab regarding the Spaniards in America, namely: that no reports are received of miracles, portents, or examples of pious conduct, such as might impel others to embrace the same faith, whereas, on the contrary, there are numerous reports of inducements to sin, criminal acts, and impiety.
Therefore, since the Portuguese lack both possession and title to possession, since the property and sovereign powers of the East Indians ought not to be regarded as things that had no owner prior to the advent of the Portuguese, and since that property and those powers—belonging as they did to the peoples of the Indies—could not rightly be acquired by other persons, it follows that the said peoples are not Portuguese chattels, but free men possessed of full social and civil rights [sui iuris]. On this point there is no doubt, even among Spanish authorities.c [100′]
Thesis IIIGranting, then, that the Portuguese have not acquired any legal right over the East Indian peoples, lands or governments, let us ascertain whether or not the former have been able to bring the sea and matters of navigation, or the conduct of trade, under their own jurisdiction.
We shall consider first the question of the sea. Although the sea is variously described in the phraseology of the law of nations as res nullius, as common property and as public property, the significance of these different terms will be very easily explained if, in imitation of the method employed by all the poets since the days of Hesiod as well as by the ancient philosophers and jurists, we draw a chronological distinction between things which are perhaps not differentiated from one another by any considerable interval of time, but which do indeed differ in certain underlying principles and by their very nature. Moreover, we ought not to be censured if, in our explanation of a right derived from nature, we avail ourselves of the authority and express statements of persons generally regarded as pre-eminent in natural powers of judgement.
New explanation Ownership and common possessionAccordingly, it must be understood that, during the earliest epoch of man’s history, ownership [dominium] and common possession [communio] were concepts whose significance differed from that now ascribed to them.a For in the present age, the term “ownership” connotes possession of something peculiarly one’s own, that is to say, something belonging to a given party in such a way that it cannot be similarly possessed by any other party; whereas the expression “common property” is applied to that which has been assigned to several parties, to be possessed by them in partnership (so to speak) and in mutual concord, to the exclusion of other parties. Owing to the poverty of human speech, however, it has become necessary to employ identical terms for concepts which are not identical. Consequently, because of a certain degree of similitude and by analogy, the above-mentioned expressions descriptive of our modern customs are applied to another right, which existed in early times. Thus with reference to that early age, the term “common” is nothing more nor less than the simple antonym of “private” [ proprium]; and the word “ownership” denotes the power to make use rightfully of common [i.e. public] property. This attribute the Scholastics choose to describe as a concept of fact but not of law. For the legal right now connoted by the term “use” [usus] is of a private nature; or, in other words (if I may borrow from the phraseology of the Scholastics),a “use” carries with it a privative force with respect to all extraneous parties.
There was no private property under the primary law of nations, to which we also give the name of “natural law,” from time to time, and which the poets represent in some passages as prevailing in the Golden Age while in other passages they assign it to the reign of Saturn or of Justice. In fact, we find this statement in the works of Cicero:b “There is, however, no such thing as private property in the natural order.” Horace,c too, wrote as follows:
For in the eyes of nature no distinctions of ownership were discernible. In this sense, then, we say that all things were common property in those distant days, meaning just what the poets do when they declare that the men of earliest times made acquisitions on behalf of the community, and that the communal character of goods was maintained by justice in accordance with a sacred pact. In order to clarify this point, they explain that fields were not divided by boundary lines in that age, and that there were no commercial transactions.
The word “seemed” was properly included in these lines, in recognition of the changed meaning of the term “common,” to which we alluded above. This concept of common ownership had reference, of course, to the use of the things involved.
Thus a certain form of ownership did exist, but it was ownership in a universal and indefinite sense. For God had given all things, not to this or that individual, but to the human race; and there was nothing to prevent a number of persons from being joint owners, in this fashion, of one and the same possession. But such a concept would be completely irrational if we were giving to the term “ownership” its modern significance, involving private possession [ proprietas], an attribute which did not reside in any person during that epoch. In fact, it has been most aptly observed that,
It is evident, however, that the present-day concept of distinctions in ownership was the result, not of any sudden transition, but of a gradual process whose initial steps were taken under the guidance of nature herself. For there are some things which are consumed by use, either in the sense that they are converted into the very substance of the user and therefore admit of no further use,c or else in the sense that they are rendered less fit for additional service by the fact that they have once been made to serve. Accordingly, it very soon became apparent, in regard to articles of the first class (for example, food and drink), that a certain form of private ownership was inseparable from use. For the essential characteristic of private property is the fact that it belongs to a given individual in such a way as to be incapable of belonging to any other individual. This basic concept was later extended by a logical process to include articles of the second class, such as clothing and various other things capable of being moved or of moving themselves. Because of these developments, it was not even possible for all immovable things (fields, for instance) to remain unapportioned, since the use of such things, while it does not consist directly in their consumption, is nevertheless bound up [in some cases] with purposes of consumption (as it is when arable lands and orchards are used with a view to obtaining food, or pastures for [animals intended to provide] clothing), and since there are not enough immovable goods to suffice for indiscriminate use by all persons.[101′]
The recognition of the existence of private property led to the establishment of a law on the matter, and this law was patterned after nature’s plan. For just as the right to use the goods in question was originally acquired through a physical act of attachment, the very source (as we have observed) of the institution of private property, so it was deemed desirable that each individual’s private possessions should be acquired, as such, through similar acts of attachment. This is the process known as “occupation” [occupatio], a particularly appropriate term in connexion with those goods which were formerly at the disposal of the community. Senecaa has in mind that very process, when he says, in one of his tragedies:
Again, speaking as a philosopher, heb makes this statement: “[. . . there are several kinds of common ownership.] The equestrian rows of seats belong to all the Roman knights; yet the place that I have occupied in those rows becomes my own.” Similarly, Quintilianc notes that certain things created for all, become the reward of the industrious. Cicero,d too, declares that some goods are acquired, in consequence of long occupancy, as the property of those who came upon them before they had been taken into anyone’s possession. This occupancy, [or tenure,] must be continuous, however, in the case of things that resist possession, such as wild beasts. In other cases, the only requisite is that the status of possession initiated by a physical act shall be continued mentally. With respect to movables, moreover, occupancy implies physical seizure [apprehensio]; with respect to immovables, it implies some activity involving construction or the definition of boundaries. It is for this reason that Hermogenianus,a [in listing certain effects of the law of nations,] mentions immediately after “determination of property rights,” these two items: “establishment of boundaries for lands” and “erection of buildings.” The same stage in the development of private property is described by the poets. Virgilb wrote:
In the works of Ovid,c we find the following passage:
During the same period, moreover, the establishment of states was first undertaken.
Accordingly, we find that those things which were wrested from the original domain of common ownership have been divided into two categories. For some are now public property, or in other words, they are owned by the people, which is the true meaning of the expression “public property”; and others are strictly private property, that is to say, they belong to individuals.
Nevertheless, occupancy of public possessions is achieved by the same method as occupancy of private possessions. Senecaa makes this observation: “We designate as ‘territory of the Athenians,’ or ‘territory of the Campanians,’ lands which the inhabitants in their turn divide among themselves by fixing private boundaries.” For every individual nation
In like manner, Ciceroc notes that the territory of Arpinum is said to belong to the people of Arpinum, and that of Tusculum to the Tusculans. To this he adds the following comment: “. . . and the apportionment of private property is similar. Accordingly, since each individual’s part of those things which nature gave as common property becomes his own, let each person retain possession of that which has fallen to his lot.” On the other hand, lands that did not fall into the possession of any nation in the process of apportionment, are called by Thucydidesd ἀόριστον, that is to say, “undefined” regions, marked by no fixed limits.
From the foregoing discussion, two inferences may be drawn. The first runs as follows: those things which are incapable of being occupied, or which never have been occupied, cannot be the private property of any owner,e since all property has its origin as such in occupancy. The second inference may be stated thus: all those things which have been so constituted by nature that, even when used by a specific individual, they nevertheless suffice for general use by other persons without discrimination, retain to-day and should retain for all time that status which characterized them when first they sprang from nature. Ciceroa upheld this principle, when he wrote: “Herein, to be sure, lies the most comprehensive of the bonds uniting men to men and all to all; and in observance thereof, our common participation in all things produced by nature for mankind’s common use should be maintained.”
Now, the category thus defined includes everything capable of serving the convenience of a given person without detriment to the interests of any other person; and this concept (according to Cicerob ) is the source of the maxim, “Deny to no one the water that flows by.” For running water, considered as such and not as a stream, is classed by the jurists among the things that are common to all. Ovidc adopts the same classification in the following lines:
Thus Ovid contends that the goods above mentioned are not private possessions according to nature’s plan; just as Ulpiand declares that by the said plan they are free to all. For, in the first place, they proceeded originally from nature and have not yet been placed under the ownership of anyone (as Neratiuse points out); and in the second place, it is evident (as Cicerof observes) that nature produced them for our common use. Ovid employs the term “public” in its old sense,g moreover, applying it to things that are the property not of a particular nation but of human society in general. In the precepts of the law of nations, too, such things are described as “public,” that is to say, as the common possession of all men and the private possession of none.a Air falls into this class for two reasons: first, because it is not possible for air to be made subject to occupancy; secondly, because all men have a common right to the use of air. For the same reasons, the sea is an element common to all, since it is so vast that no one could possibly take possession of it, and since it is fitted for use by all, “with reference to purposes of navigation and to purposes of fishing, as well.”b Furthermore, the right that exists in regard to the sea exists likewise in regard to anything that the latter has diverted from other uses and made its own, such as the sands of the sea, of which the portion merging into the land is called the shore. Therefore, Ciceroc is justified in asking, “What is so common . . . as is the sea to those who are tossed by the waves, or the shore to castaways?” Similarly, Virgild asserts that the air, the water, and the shore are freely accessible to everyone.
These, then, are the things described by the Romanse as common to all under natural law, or as public under the law of nations, which (according to the foregoing discussion) is another way of expressing the same concept. In like manner, the Romans sometimes describe the use of such things as common, while at other times they refer to it as public.
Nevertheless, even though the said things are correctly called res nullius in so far as private ownership is concerned, they are very different from those which are also res nullius but which have not been assigned for common use: e.g. wild beasts, fish, and birds. Items belonging to the latter class can be made subject to private ownership, provided that someone does take possession of them; whereas items falling within the former class have been rendered forever exempt from such ownership by the unanimous agreement of mankind, in view of the fact that the right to use them, pertaining as it does to all men, can no more be taken from humanity as a whole by one individual than my property can be taken from me by you. Among the prime functions of justice Ciceroa lists this very task of leading men to make use of common possessions for common interests. The Scholastics would say that the one class is common in a positive sense, and the other, in a privative sense. This distinction is not only familiar to the jurists, but also representative of the popular belief.
Thus Athenaeus depicts the master of the feast as maintaining that the sea is common property, whereas fish become the property of the persons who catch them. And again, in Plautus’ play entitled The Rope,b the fisherman assents when the young slave says,
but when the slave adds,
the fisherman justly objects,
It is, then, quite impossible for the sea to be made the private property of any individual; for nature does not merely permit, but rather commands, that the sea shall be held in common.c Furthermore, not even the shore can become private property.
These statements should be qualified, however, by the addition of an interpretative comment, to the following effect: if any part of the things in question is susceptible of occupancy in accordance with nature’s plan, that part may become the property of the person occupying it, in so far as is possible without impeding its common use. This principle is rightly accepted. For, under such circumstances, there is no longer any occasion to apply either of the two restrictive norms above-mentioned, which prohibit the transfer of certain things to the realm of private rights. Consequently, since the erection of buildings upon a given site constitutes a form of occupancy, it will be permissible to erect buildings upon the shorea subject to the condition (expressly laid down by Pomponiusb ) that one must be able to do so without inconveniencing other persons. Following Scaevola,c we shall interpret this condition as meaning that the public use (that is to say, the common use) of the shore may not be impeded. Moreover, the person who constructs the building will become the owner of the site, since the latter was not previously the private property of any individual, nor was it needed for the common use. Accordingly, it belongs to the person who occupies it, but only for the duration of such occupancy.d For the sea would seem to resist possession, after the fashion of a wild beast which is no longer the property of its captor once it has regained its natural liberty. In precisely this fashion, the shore returns to the sea, under the principle of postliminium.
We have also shown that anything capable of becoming private property through the process of occupancy, is likewise capable of becoming public property [in the modern sense], or in other words, the possession of a particular nation.
Thus Celsuse held that the shore included within the limits of the Roman Empire belonged to the Roman nation; and if this contention was correct, it was not at all strange that the said nation, acting through its prince or praetor, was able to allow its subjects a certain form of occupancy in regard to the shore.f This kind of occupancy, however, no less than the private form, should be subject to the restriction that it must not extend to a point where it will infringe upon the uses for which the law of nations provides. Accordingly, no one could be prevented by the Roman People from approaching the shore of the sea,g spreading his nets there to dry, and performing other acts which—as mankind[103′] had willed once and for all—were to be forever permissible to all men.a
The sea, on the other hand, differs by nature from the shore, in that the former (save for a very small portion thereof) cannot easily be built upon nor enclosed; and furthermore, even if this were not the case, the sea could hardly be so employed without hindrance to its common use. Nevertheless, if some tiny part of it does prove susceptible of such occupancy, that part is conceded to the occupant. Thus Horaceb was exaggerating when he wrote:
Certainly Celsusc maintains that piles driven into the sea are the property of him who placed them there, although the same authority adds that no such concession should be made if the structure in question is an impediment to the subsequent use of the sea. Ulpiand likewise declares that this protection must be extended to the rights of the person who has constructed a foundation in the sea provided that no damage to anyone else results therefrom, whereas the interdict prohibiting the erection of a building in any public place will undoubtedly be applicable if the structure is likely to conflict with the interests of another person. Similarly, Labeoe holds that if any structure of this kind is erected in the sea, recourse may properly be had to the interdict forbidding the construction therein of “anything whereby a harbour, a roadstead, or the course of navigation might be rendered less satisfactory.”
The principle applicable in regard to navigation—namely, that the activity in question shall remain open to all—should also be applied in connexion with fishing. No transgression will have been committed, however, if someone fences in a fishing-pool for himself in some small portion of the sea, surrounding it with stakes and thus turning the spot into private property, just as Lucullus brought the sea to his own villa by cutting through a mountain near Naples.a I suppose, indeed, that the marine fish-ponds mentioned by Varrob and by Columellac were of this nature. Martial,d too, in his description of Apollinaris’ villa at Formiae, referred to the same device as follows:
Yet again, we find this comment in the works of Ambrose:e “You bring the very sea into your estates, so that there may be no lack of fish.”
New explanationThe foregoing remarks will serve to clarify the meaning of Paulus in the passage where he says that if a given individual possesses a private right to any part of the sea, he will be entitled to apply the interdict Uti possidetis [in the event that he is hindered from exercising the said right]. Paulusf adds that this device was of course intended for use in private suits, and not in those of a public nature (among which are included the suits that may be brought in accordance with the common law of nations); but he holds that the case which he describes would relate to the enjoyment of a right based on a private—rather than on a public, or common—title. For (as the testimony of Marcianusg indicates) whatever has been subjected to occupancy and was properly susceptible of such subjection, no longer comes under the law of nations as the sea does. For example, if any person had prevented Lucullus or Apollinaris from fishing in one of the private preserves that they had constructed by enclosing a small portion of the sea, then, in the opinion of Paulus, the owner of the preserve would have been entitled to avail himself of an interdict—based, that is to say, on grounds of private possession—and not merely to bring an action for damages. Indeed, even in the case of a small inlet of the sea, just as in the case of a river-fork,a if I have taken over the locality as an occupant, if I have fished there, and above all if by pursuing this course over a period of many years I have formally proclaimed my intention of establishing private possession of the inlet, then I may prohibit other persons from enjoying the same rights (a conclusion drawn from the statement of Marcianusb ), precisely as I might do so with respect to a lake forming part of my own domain. This rule holds good for the duration of my occupancy, even as we have already shown that it does in regard to the shore.
If the region involved exceeds the limits proper to a small inlet, the said rule will not be applicable, for it might interfere with the common use of that region. Thus it has been assumed that I may prohibit fishing by any other person in front of my dwelling or country-seat, but the assumption lacks any legal basis. In fact, it is so gravely lacking in this respect that Ulpian,c in rejecting it, declares that anyone who is made the object of such a prohibition may bring an action for damages. The Emperor Leod (whose laws we do not observe) changed this ruling, in defiance of the underlying legal principles, and maintained that πρόθυρα, or coastal waters “opening out upon” the sea, were the private property of the persons dwelling along the shore, to whom he also assigned the fishing rights attached to such waters. He laid down one condition, however, for the applicability of his own ruling, namely, that the site in question should be brought under occupancy by means of certain structures which would block it off and which the Greeks called ἐποχαί e [checks, i.e. breakwaters]. Leof doubtless assumed that no person would begrudge another a tiny portion of the sea as long as he himself had access to [practically] all of its waters for fishing. Certainly it would be intolerably wicked for any individual to cut off a large part of the sea from public use, even if he were able to do so. Such wickedness is deservedly assailed by Saint Ambrose,a in the following terms: “They claim whole tracts of the sea for themselves by right of formal acquisition; and they remind us that rights over fishing, in precisely the same fashion as those over homeborn slaves, are subject to their will under conditions of servitude. ‘This curve of the sea,’ says one, ‘is mine; that curve belongs to someone else.’ The mighty divide the very elements among themselves.”
In short, the sea is included among those things which are not articles of commerce, that is to say, the things that cannot become part of anyone’s private domain.b Hence it follows—in the opinion of the more erudite authorities, and in the correct and strict sense—that no part of the sea may be regarded as pertaining to the domain of any given nation. Placentinus would seem to have been aware of this fact when he said that the sea was common to all in such a degree that no being save God alone could possess ownership over it. Apparently, too, Johannes Faberc was sensible of the same fact when he asserted that the sea had been left sui iuris, and still remained in that primeval state in which all things had been held in common.
If this were not the case, there would be no difference between[104′] things common to all, such as the sea, and things designated as public in the strict sense of the term, such as rivers. It was possible for a particular nation to take possession of a river, as of something enclosed within its own boundaries, but it was not possible to take possession of the sea in the same way. The dominion of a nation over its territories, however, must be the result of occupancy by that nation, just as private ownership results from occupation by individuals. This truth was perceived by Celsus,d who drew a very clear distinction between the shores of the sea, which the Roman nation was empowered to occupy (though only subject to the condition that the common use of the shores should not be impeded by that act), and the sea itself, which retained its pristine nature unimpaired. Nor is there any law that points to a contrary doctrine. The laws cited by writers who have held a contrary view,a relate in point of fact either to islands, which are clearly susceptible of occupation, or to harbours, which (properly speaking) are not common, but public. Furthermore, those authoritiesb who maintained that the sea was a part of the Roman Empire, interpreted their own statement in such a way as to restrict that Roman right over the sea to functions of protection and jurisdiction, distinguishing it from the right of ownership. Perhaps, too, the said authorities paid insufficient heed to the fact that it was not in virtue of a private right, but through a common maritime right possessed by other free nations also, that the Roman People were authorized to distribute fleets for the protection of sailors, and to punish pirates captured at sea.
On the other hand, we admit that it was possible for agreements to be drawn up between specific nations, stipulating that persons captured upon the sea in this or that particular region should be subject to judgement by this or that particular state; and we furthermore admit that, in this sense, boundaries upon the seas were indeed defined, for convenience in distinguishing the different areas of jurisdiction. Such an arrangement is binding, to be sure, upon the parties who have imposed a legal agreement of this kind upon themselves; but it is not binding in like manner upon other peoples, nor does it convert an area thus delimited into the private property of any possessor, for it merely establishes a right that has force between the contracting parties.c
This distinction, which is in conformity with natural reason, derives further confirmation from a reply made on a certain occasion by Ulpian,d when the jurist was asked whether the owner of two maritime estates had possessed the power to impose upon one of them, which he was selling, a servitude involving a prohibition against fishing from that estate in a certain part of the sea. Ulpian answered that the actual object concerned—namely, the sea—could not be subjected to a servitude, since it was by natural dispensation open to all; but he added that the factor of good faith implicit in a contract, demanded the observance of the conditions attaching to the sale, so that the parties actually in possession and those succeeding to the right of possession were personally bound by the said conditions. It is true that Ulpian was referring to private sales and to private law; but the same principle is equally applicable to the present discussion concerning the territories and laws of nations, since nations in their relation to the whole of mankind occupy the position of private individuals.a
Similarly,b the revenues levied on maritime fisheries and regarded as belonging to the Crown, constitute a binding obligation, not in their effect upon the object of the levies (namely, the sea or the particular fishery in question) but in their effect upon the persons concerned. Accordingly, it was perhaps permissible to make such levies compulsory in regard to subjects, over whom the state or prince exercises a legislative power that is valid by common consent; whereas, in so far as foreigners are concerned, fishing rights should everywhere be exempt from public charges, lest a servitude be imposed upon the sea, which cannot properly be subjected to any servitude. For, in the case of the sea, the basic principle involved is not the same as it would be in the case of a river, since the latter has a public character (that is to say, it is the property of the nation), so that even the right to fish therein may be conceded or leased by the nation or by the prince.c In fact, the ancientsd interpreted this right in such a way as to grant the lessee recourse to the interdict “Regarding the use of a public place,” subject to the following condition: “provided that the privilege of using that place, shall have been leased to the party in question by one who has the right of leasing it.” This condition could not be met in cases involving the sea.a For the rest, those persons who include fishing itself among the perquisites of the Crown have paid insufficient attention to the very passage which they themselves cite, an error that has not escaped the notice of Andrea d’Isernia and Jacopo Alvarotto.b
We have shown it to be impossible that any private right over the sea itself (for we made an exception in regard to small forks of the sea), should pertain to any nation or private individual, since occupation of the sea is impermissible both in the natural order and for reasons of public utility. Our examination of this question was undertaken, moreover, for the purpose of making it clear that the Portuguese have not established a private right over that part of the sea which one traverses in sailing to the East Indies. For both of the factors impeding private ownership are infinitely more cogent in this particular case than in any of the others mentioned. What constitutes merely a difficulty in those other cases is in the present instance an absolute impossibility; and[105′] what we condemned as an injustice in a different connexion is in this instance utterly barbarous and even inhuman.
We are not treating here of an inner sea which washes against the land on all sides and is in some places no wider than a mere river; but it is quite certain that the Roman jurists were referring to just such a concept in the above-mentionedc celebrated opinions opposing private avarice. The subject of our discussion is the Ocean, which was described in olden times as immense, infinite, the father of created things, and bounded only by the heavens; the Ocean, whose never-failing waters fed not only upon the springs and rivers and seas, according to the ancient belief, but upon the clouds, also, and in a certain measure upon the stars themselves; in fine, that Ocean which encompasses the terrestrial home of mankind with the ebb and flow of its tides, and which cannot be held nor enclosed, being itself the possessor rather than the possessed.
Moreover, the question at issue is not limited to some bay or strait located in the Ocean, nor even to the entire expanse of its waters visible from the shore. On the contrary, the Portuguese claim for themselves the whole tract lying between two parts of the world which are separated by spaces so vast that in the course of many centuries those two regions were not able to make themselves known to each other. Indeed, if the share of the Spaniards (who join in the same claim) is added to the share demanded by the Portuguese, very nearly the entire Ocean will have been delivered into the hands of two peoples, while all the remaining nations will find themselves restricted to the narrow waters of the north. Thus nature will have been sorely deceived; for when she encompassed all peoples with this watery element, she believed that it would likewise suffice for all. If anyone should cut off from the common domain, and reserve to himself, nothing more than sovereignty and dominion over so vast a body of water, he would nevertheless be regarded as a seeker after immoderate power; if he should forbid others to fish therein, he would not escape the stigma of monstrous cupidity; but what shall we say of one who obstructs even navigation upon those waters, despite the fact that he himself would suffer no loss in consequence of such navigation?
If the sole owner of a fire forbade another to take fire therefrom, or to take light from his light, I should prosecute him to the bitter end as a criminal under the law of human fellowship. For the very force and essence of that law are indicated in the words of Ennius:a
Why, then, since it is possible to do so without injury to oneself, should one not bestow upon another a share in those things which will be useful to the recipient and whose bestowal will not harm the giver?b It is to goods of this kind that the philosophersc refer, when they maintain that certain benefits should be accorded not merely to foreigners but even to ingrates.
Furthermore, that attitude which comes under the head of jealousy when it relates to private possessions, must be characterized as savagery when common property is involved. For it is the height of wickedness that a thing which is no less mine than yours by natural dispensation and by the common consent of nations, should be appropriated by you in such exclusive fashion that you deny me even its use, although that concession would render the property appropriated in nowise less your own than it was, previously.
Then, too, it should be noted that even those persons who fasten upon the possessions of others, or take for themselves exclusively property that is common to all, defend themselves on the ground that a certain form of possession has been established by them. For the institution of private property arose from original occupancy, as we have already indicated; and consequently, detention of a given thing, even though it be unjust detention, produces in a sense a semblance of ownership.
But have the Portuguese people encompassed that expanse of ocean with fortifications erected on all sides, as we are wont to do when tracts of land are seized, in such fashion that they have acquired the power to exclude whomsoever they will? Or is this so far from being the case that the Portuguese, in apportioning the world to the disadvantage of other peoples, have failed even to defend their claim by marking out boundaries (whether natural or artificial), relying instead upon an imaginary line? If this claim is to be recognized, and if such a method of measurement suffices to constitute valid possession, the geometers must have taken the earth from us long since, just as the astronomers must also have taken the heavens. Where, then, in the present case, do we encounter that factor of corporeal attachment without which ownership has never been established? Surely it must be obvious that no conceivable case could better illustrate the truth of the doctrine propounded by our own learned authorities,a namely: that the sea, since it is as incapable of being seized as the air, cannot have been attached to the possessions of any particular nation.
If, on the other hand, the Portuguese describe as “occupancy” the acts of navigating at an earlier date than other peoples and of more or less opening the way, what contention could be more absurd? For[106′] there is no part of the sea upon which someone has not been the first to enter, so that it would necessarily follow from such a contention that every navigable region had been “occupied” by some voyager. Thus we should be excluded from all parts of the sea. Indeed, it would even be necessary to admit that the [earliest] circumnavigators of the globe had acquired for themselves the whole Ocean! But no one is ignorant of the fact that a ship sailing over the sea no more leaves behind itself a legal right than it leaves a permanent track. In any case, the claim put forward by the Portuguese—namely, that no one had sailed over the aforesaid tracts of the Ocean before they themselves did so—is by no means true. For a large part of the waters in question, in the neighbourhood of Mauritania, was navigated in quite ancient times;a and a more distant portion of those same waters, lying toward the East, was traversed as far as the Arabian Gulf in the course of the victories won by Alexander the Great. There are, moreover, many indications that the people of Cadiz were formerly well acquainted with this navigable area: for example, the traces of ships recognized as remnants of wrecked Spanish vessels by Gaius Caesar, the [adopted] son of Augustus, when the former was in command over the Arabian Gulf; and the statement made by Caelius Antipater to the effect that he had seen a man who had voyaged from Spain to Ethiopia on a commercial mission. These very waters were known to the Arabs, also, if we may accept as true the account given by Cornelius Nepos, in which it is related that one of his contemporaries, a certain Eudoxus, sailed from the Arabian Gulf as far as Cadiz while fleeing from Lathyrus the King of Alexandria. Again, it is absolutely certain that the Carthaginians, who enjoyed great maritime power, did not long remain in ignorance regarding that part of the Ocean. For Hanno, in the days when Carthage was mighty, made the voyage from Cadiz to the borders of Arabia (that is to say, by sailing around the promontory that is now known as the Cape of Good Hope, although the ancient name appears to have been Hesperion Ceras); and he included in his record a description of the entire route, specifying the position of the coast and of the various islands, and stating that at the farthest point reached the sea had not ended but his supplies were indeed coming to an end. Furthermore, the route described by Pliny,a the embassies dispatched by the East Indians to Augustus as well as those sent from the island of Taprobane10 to Claudius, and subsequently the recorded deeds of Trajan and the writings of Ptolemy, have made it sufficiently evident that[106′] navigation was customary at the height of Rome’s power also, from the Gulf of Arabia to India, to the islands of the Indian Ocean, and even to the Golden Chersonese, which many persons identify with Japan.11 Indeed, as early as the age of Strabo,b according to his own testimony, a fleet belonging to Alexandrian merchants set sail from the Arabian Gulf in search of the farthest regions both of Ethiopia and of India, although few ships dared to attempt that voyage in ancient times. The Roman people derived rich revenue from these sources. Plinyc adds that companies of archers were attached to the ships, owing to fear of pirates; that every year India alone drew from the Roman Empire fifty million sesterces, or—if Arabia and China were also to be taken into account—that the sum received from the Empire amounted to one hundred million sesterces; and that the merchandise from those regions was sold for a hundred times as much. These examples recorded by antiquity certainly afford sufficient proof that the Portuguese were not the first [navigators of the waters above mentioned].
For that matter, each separate part of this oceanic tract was known before the Portuguese entered upon it; nor was there ever a time when those parts were unknown. For surely the Moors, the Ethiopians, the Arabs, the Persians, and the East Indians could not have been unacquainted with the seas near which they themselves dwelt. Therefore, those persons are lying who now boast of having discovered the seas in question.
Well, then (someone will ask), does it seem a trifling matter that the Portuguese were the first to restore to use a navigable area which had lain neglected for perhaps many centuries, and that they undeniably brought this region—at the cost of tremendous labour, expense, and peril on their own part—to the attention of the European nations not acquainted with it? By no means! If this was the purpose they cherished—namely, to point out to all the tract which they had rediscovered by their own unaided efforts—who will be so insensate as to withhold acknowledgement of the great debt that he owes to them? For in that event the Portuguese will have earned the same gratitude, praise, and undying glory with which all great discoverers have been content, whenever their discoveries were made in a zealous attempt to benefit not themselves but humanity.
If, on the other hand, the Portuguese acted with a view to their own enrichment, they should have been satisfied with the profits acquired; for in enterprises of this kind the greatest gain always falls to the earliest entrants. In fact, we know that the first Portuguese voyage yielded profits amounting in some instances to forty times the sum invested or even to larger returns; and we also know that, in consequence of these returns, a people who had long dwelt in poverty, suddenly burst into unlooked-for wealth and into such lavish pomp and luxury as had hardly been attained by the most prosperous nations at the very peak of ever-increasing good fortune.
Finally, if the Portuguese led the way into this enterprise with the intention of preventing all others from following in their[107′] footsteps, they deserve no gratitude, since they were mindful of their own profit [exclusively].
Yet they cannot properly speak of such profit as their “own,” inasmuch as they are snatching away something that belongs to others. For it has not been proven that no one else would have sought out the regions in question if the Portuguese had failed to do so. Indeed, the time was drawing on apace when the location of lands and seas, as well as almost every other aspect of art and science, was to become better known, day by day. The above-mentioned examples set in ancient times would in any case have excited interest; and even if those distant shores had not been laid open at a single stroke, at least they would have been revealed gradually in the course of different voyages, with each succeeding discovery pointing the way to another. In short, the achievement whose feasibility was demonstrated by the Portuguese would have been accomplished even without that people, since there were in existence many nations no less aflame with zeal for commerce and for enterprise in foreign lands. The Venetians, who had already learned a great deal about India, were eagerly disposed to seek after further knowledge. The unflagging assiduity of the Breton French, and the audacity of the English, would not have left the task unfinished. The Dutch themselves have undertaken ventures far more desperate.
Thus the contention of the Portuguese is supported neither by any argument based upon justice nor by any convincing citation of authorities. For every authoritya13 who does hold that the sea can be made subject to individual sovereignty, attributes such sovereignty to him who has dominion over the closest ports and neighbouring shores. But on all the vast extent of coast to which we have referred, the Portuguese can point to no possession, aside from a few fortified posts, which they may call their own.
Furthermore, even if a given person did possess sovereignty over the sea, he would still lack authority to diminish its common usefulness, just as the Roman People lacked authority to prevent the commission, on shores belonging to the Roman Empire, of any act whatsoever that was permissible under the law of nations.a Yet again, even if it were possible to prohibit some particular act of this kind, such as fishing (for it may be maintained that the supply of fish is, in a sense, exhaustible), it would in any case be impossible to prohibit navigation, through which the sea loses nothing. By far the most conclusive evidence in support of this point is the opinion already citedb by us from learned authorities, as follows: even in the case of land that has been assigned as private property, whether to nations or to single individuals, it is nevertheless unjust to deny the right of passage (that is to say, of course, unarmed and innocent passage) to men of any nation, precisely as it is unjust to deny them the right of drinking from a stream. The reason underlying this opinion is clear. For it would seem that, because nature has designed a given thing for more than one use, the nations have apportioned among themselves those rights to its use which cannot properly be exercised apart from private ownership, while retaining [for the whole of mankind], on the other hand, the rights of use whose exercise would not lead to impairment of the owner’s status.
It is, then, a universally recognized fact, that he who prohibits navigation on the part of another is supported by no law. In fact, Ulpianc declares that the person who issues such a prohibition is even liable for damages, and other authorities have furthermore held that an interdict against interference with [common] utilities would be admissible in such circumstances. Thus the Dutch plea rests upon a universal right, since it is admitted by all that navigation of the seas is open to any person whatsoever, even when permission to navigate them has not been obtained from any ruler.d Indeed, this principle is expressly set forth in the laws of Spain.e
The donation of Pope Alexander, which may be adduced by the Portuguese as a second argument in defence of their attempt to claim the sea or the right of navigation for themselves alone (since their claim on the ground of discovery fails them), is quite clearly revealed, in the light of the foregoing observations, as a vain and empty pretext. For a donation has no weight in regard to things that do not fall within the sphere of commerce; and therefore, since neither the sea nor the right of navigation thereon can be the private property of any man, it follows that such gifts could not have been bestowed by the Pope nor received by the Portuguese.
Moreover, in view of our earlier assertion (based upon the expressed opinion of particularly sagacious authorities) that the Pope is not the temporal lord of the whole earth, it will be quite readily understood that, similarly, he is not the temporal lord of the sea. But even if this form of dominion were conceded to him, it would still not be proper that part of a right attaching to the Pontificate should be transferred to any[108′] king or nation; just as the Emperor could not convert the provinces of the Empire to his own uses, nor transfer them by sale in accordance with some whim of his own.a In any case, only an utterly shameless person will deny the validity of the following argument: since no one concedes to the Pope the right to make rulings in temporal matters, save perhaps in so far as such intervention is required by some necessity derived from his spiritual functions, and since, moreover, the matters now under discussion—that is to say, the sea and the right of navigation—are being considered solely from the standpoint of profit and gain, not in connexion with any pious enterprise, it follows that in regard to the present question the papal power was null and void.
Then, too, what answer is there to the objection that even princes—in other words, temporal lords—are in no sense empowered to prohibit any person from navigation? For if such princes possess a right over the sea, it is merely a right of jurisdiction and protection.
Furthermore, it is a universally recognized principle, that the Pope has no authority to commit acts repugnant to the law of nature;a and we have already demonstrated quite clearly that it is repugnant to the law of nature for any person to possess the sea, or the use thereof, as private property.
Finally, since the Pope has no power whatsoever to deprive any man of his rights, what defence can be offered for his conduct, if we assume that he intended to exclude by a mere word a multitude of nations—undeserving of such treatment, not condemned for any fault, harmful to no one—from a right which belonged to them no less than to the Iberian peoples?
Therefore, we must conclude either that the proclamation, interpreted in the manner suggested, was without force, or else (and this alternative is no less credible) that the Pope’s intention was based upon a desire to intervene in the dispute between the Spaniards and the Portuguese without diminishing in the least degree the rights of other persons.
As a last resort, injustice is frequently defended on grounds of prescription or of custom. Accordingly, the Portuguese seek also to defend themselves upon these grounds; but irrefutable legal arguments prevent them from finding support in either concept.
For prescription is rooted in civil law. Therefore, it is not applicable between kings or between free peoples,b and far less can it have force in opposition to the law of nature, or [primary] law of nations, which is always stronger than civil law.
Furthermore, civil lawc itself presents an obstacle to prescription in the case under discussion. For this body of law prohibits acquisition by usucapion or by prescription,d in regard to those things which cannot be included under the head of property, and also in regard to those which are not susceptible of possession nor of quasi possession,e or which cannot be alienated;a and all of these characteristics are correctly ascribed to the sea and to the use thereof.
Again, since it is maintained that public property (in other words, the property of a given nation) cannot be [privately] acquiredb as a result of possession over any period of time, howsoever long, either because of the nature of the property involved or because of some prerogative pertaining to those persons who would be unfavourably affected by such a prescriptive process, how much more truly must it have been a requirement of justice that this same [permanent] right should have been granted to the whole human race, in preference to any single nation, in the case of common possessions! In fact, this is precisely the principle laid down in the writings of Papinian,c in the following terms: “Prescription based upon long possession is not usually conceded to have force for the acquisition of places that are public [i.e. common] by the law of nations.” Papinian mentions the seashore by way of illustration, referring to a hypothetical case in which a part of the shore has been occupied through the construction of a building on that spot; for if, in such a case, the said building should be demolished and another, belonging to a different person, should afterwards be erected on the same site, no exception could be taken to its erection [on the ground of previous occupancy]. He adds another illustration, based upon analogy with public [i.e. national] possessions, as follows: if a given person has fished for years in some small river fork [and has been the only one to do so], even then (assuming, of course, that there has been a subsequent interruption of this activity), he will not be empowered to prohibit another person from enjoying the same right.
Thus it seems that Angelus,d and those who have agreed with Angelus in saying that the Venetians and the Genoese were able to acquire through prescription a certain right over the maritime gulf adjacent to their shores, are either mistaken or guilty of deliberate deceit, as is all too often the case with jurists when they exercise the authority of their sacred profession, not in the interests of law and reason, but for the gratification of persons more powerful than themselves. For the reply of Marcianusa (to which we have referred in a previous context,[109′] also), if duly coupled with the words of Papinian, is certainly susceptible of no other interpretation than the one approved by Johannes and by Bartolus, and accepted now by all learned authorities.b This interpretation runs as follows: the right to impose the prohibition in question is valid while the occupation continues, but not if it has ceased; for (as Castrensisc correctly observes) once such an interruption occurs, occupation loses its force, though it may have continued previously throughout a thousand years. Moreover, even if Marcianus had meant to say that a prescriptive title is conceded wherever occupation is conceded (although one can scarcely believe that he entertained such an opinion), it would still be absurd to apply a statement regarding a public river to the common sea, or one regarding a small river fork to a gulf; for prescription affecting the sea or a gulf would impede the use of something that is common property by the law of nations, whereas in the other cases mentioned prescription would result in no great impediment to public use. Yet another argument drawn from Angelusd and concerned with aqueducts, is rightly rejected by all on the ground that it is (as that same Castrensis points out) entirely extraneous to the question.
Therefore, it is not true that prescription of the kind suggested had its origin in a remote period whose beginning lies beyond every record of memory. For that matter, in cases where the law absolutely does away with all prescription, not even such a tremendous lapse of time is accepted as a pertinent factor; that is to say (if we may borrow the explanation of Felinuse ), an object which is imprescriptible does not become prescriptible merely because of the passage of time immemorial. Balbusf grants the truth of these observations, but explains that the opinion of Angelus has been accepted, for the reason that a lapse of time extending beyond the limits of memory is regarded as having the same force as a legal grant of special privilege, in that a thoroughly satisfactory title is to be inferred therefrom.
On the basis of the foregoing comments, it is apparent that the opinion of the authorities cited was nothing more nor less than this: if any part of a state (for example, some part of the Roman Empire) had exercised a right of the kind in question, at a time antedating all the annals of memory, a prescriptive title would have been conceded to the said part on that pretext, just as it would have been conceded if a similar grant had previously been made by the prince. By the same token, since no person is the master of all mankind and therefore capable of having granted such a right to any particular man or nation as opposed to the whole human race, and since the said pretext is thus destroyed, it necessarily follows that the corresponding prescriptive title is also destroyed. Therefore, even according to the opinion held by those same authorities, the lapse of unmeasured time cannot avail to establish such a title in the relations between kings or free peoples.
Furthermore, Angelus propounded a thoroughly foolish doctrine when he maintained that even if prescription could not serve to produce ownership, nevertheless, an exception should be made in favour of possessors. For Papiniana distinctly denies the existence of such exceptions; nor would it have been possible for him to take a different stand, since prescription itself, in his day, was nothing more nor less than an exception.
Thus we have demonstrated the truth of the following conclusion, which is expressly confirmed by the very laws of Spain:b prescription, upon whatsoever interval of time it may be based, is not applicable in regard to those things which have been assigned to all mankind for its common use. One argument among others which support this assertion may be set forth as follows: he who makes use of common property is obviously exercising a common and not a private right, so that, because of imperfect possession, he has no more power than a usufructuary for the establishment of a prescriptive claim. This second argument, too, is worthy of consideration: even though there may be a [general] presumption favouring the existence of a title and of good faith in connexion with prescription based upon a lapse of time extending beyond the limits of memory,a nevertheless, if the facts of a particular case clearly show that absolutely no title can be granted and if the existence of bad faith is correspondingly evident (bad faith being regarded as a permanent factor in the case of a nation just as in that of an individual), the prescriptive claim is invalid because of this twofold defect.b Yet again, a third argument lies in the fact that the question under consideration relates to a simple facultative right, a form of right which (as we shall presently show) does not allow of prescription.
There is, however, no end to the subtleties advanced in disputing this point. Some persons have been known to draw a distinction in this connexion between prescription and custom, with a view, of course, to taking refuge in the latter concept if they are cut off from the former. But the distinction set up by them is indeed absurd. They assert that a right previously pertaining to one individual and subsequently taken from him is assigned to another person by the process of prescription,c whereas the process involved in assigning a certain right to a given individual without first taking it from another person is called custom. But this is equivalent to saying that when the right of navigation (originally bestowed upon all men in common) is usurped by one claimant to the exclusion of the rest, it does not necessarily follow that whatever is gained by that one is lost to mankind as a whole!d
The way was prepared for this error by a misinterpretation of the words of Paulus. Although Paulus was discussing a private maritime right pertaining to a specific person, Accursiusa claimed that the situation discussed in that passage could be brought about through[110′] privilege or through custom. This addition to the text of the jurist is in no sense concordant with it, and would seem to have been contributed by a poor guesser rather than by a good interpreter. We have already explained15 what Paulus had in mind. Moreover, if those persons who misinterpret his statement had even considered with sufficient care nothing more than the words of Ulpianb in the passage placed just before the one in question, they would have dealt with the matter in an entirely different fashion. For Ulpianc admits that anyone who has been forbidden to fish in front of my dwelling is indeed the victim of an act of usurpation, an act which has been encouraged by custom without being authorized by any law, so that the person on whom the prohibition was imposed should be allowed to bring an action for injury.
Thus Ulpian rejects the practice of imposing such prohibitions, describing it as “usurpation”; and, among the Christian authorities, Ambrosed does likewise. Are they not right in so doing? For what could be clearer than the fact that a custom diametrically opposed to the law of nature, or to the law of nations, is not valid?e Custom is a form of positive law, and positive law cannot invalidate universal precepts; but it is a universal precept that the use of the sea should be common to all. Furthermore, what we have said in discussing prescription is likewise true with respect to custom: any inquiry into the opinions of those authorities who hold an opposing view will certainly show that they place custom on the same level as privilege; yet no one has the power to grant a privilege unfavourable to the interests of the human race; and therefore, the custom above mentioned has no force where the relations between different states are involved.
As a matter of fact, this entire question has been quite thoroughly discussed by Vάzquez,a the pride of Spain, a jurist who in no instance leaves anything to be desired in the keenness of his investigation of law nor in the candour with which he expounds it. Vάzquez, then, having laid down a thesis which he confirms by citing many authorities—namely, the thesis that public places which are common by the law of nations cannot be made the objects of prescription—appends to this statement certain exceptions formulated by Angelus and by others, which we have already mentioned. Before undertaking an examination of these exceptions, however, he rightly observes that the truth in regard to such matters rests upon a true conception of both the law of nature and the law of nations. For Vάzquez argues that the law of nature, since it proceeds from Divine Providence, is immutable; and that the primary law of nations (which is regarded as different from the secondary or positive law of nations, the latter being susceptible to change whereas the former is immutable) constitutes a part of that natural law. For if there are certain customs incompatible with the primary law of nations, they are customs proper not to human beings (in the opinion of that same jurist) but to wild beasts; neither do they represent law and usage, but rather, corruption and abuse; and therefore, they cannot have assumed the form of prescriptions as the result of any interval of time whatsoever, they cannot have been justified by the establishment of any law, nor can they have been definitively confirmed by agreement, acceptance, and practice even on the part of many nations. Vάzquez strengthens this argument by citing several examples together with the testimony of the Spanish theologian, Alfonso de Castro.b
In the light of these observations (says Vάzquez),c we clearly perceive the questionable nature of the opinion held by the above-mentioned persons who believe that the Genoese or even the Venetians can, without inflicting injury, prohibit others from navigating the gulf or the open spaces of their respective seas, as if to claim by prescription the very surface of the waters. Such conduct would be contrary not only to the precepts of positive lawa but even to the law of nature itself, or primary law of nations, which we have already characterized as immutable. The fact that it would conflict with the latter, is perfectly evident: for not only the seas and the surface thereof, but also all other immovable objects, were common property according to the said law. Moreover, even though that law was in later times partially abrogated—for example, in so far as ownership and property rights over land were concerned, since ownership over lands, though common under the law of nature, was subjected to a process of differentiation and division which removed it from that communal sphereb —nevertheless, ownership of the seas was and still is a different matter. For the seas, from the beginning of the world down to the present day, are and have always been common property, unvaryingly and without exception, as is well known. To be sure, I have often heard that a great many Portuguese hold the opinion that their King has established a prescriptive right over navigation upon the seas of the West (perhaps [an error for] “East”)17Indies as well as upon that same vast Ocean, with the result that other peoples are not permitted to sail across those waters;[111′] and apparently the common people of our own country, Spain, cherish much the same belief—namely, that navigation upon the vast and boundless deep to the East Indian regions subjugated by our mighty rulers, the sovereigns of the Spanish realms, constitutes a right by no means open to any mortal other than the Spaniards, a contention equivalent to saying that this right was acquired by the latter through prescription. But the opinions of all these persons are no less wildly erroneous than the opinions of those who are wont to embrace a very similar delusion in regard to the Genoese and the Venetians. The absurdity of all such beliefs is rendered still more manifest by the fact that the individual nations involved are not able to set up prescriptions against themselves: that is to say, the Republic of Venice cannot set up a prescription against itself, the Republic of Genoa labours under a like disability as regards its own case, and the same is true of the Kingdoms of Spain and Portugal, respectively.a For the agent and the passive party must be different entities.b On the other hand, these nations are far less able to employ prescription against other peoples, inasmuch as the right to employ this device is strictly a civil right, a point fully brought out by us in an earlier passage.c Thus the said right ceases to exist when the interested parties are all princes or peoples who recognize no superior in temporal matters. For the strictly civil laws of a given region have no more bearing on the issue in so far as foreign peoples, states, or even individuals are concerned, than they would if those laws did not actually exist or had never existed. In dealing with such foreign entities, the common law of nations, either in its primary or in its secondary phase, must be consulted and applied; and it is a sufficiently well-established fact that the said law has not authorized such maritime prescription and usurpation. [In this respect,] the law of nations has precisely the same effect that it has always had, since the beginning of the world; for even today the use of waters constitutes a common right. Accordingly, in cases involving the sea or other waters, men do not and cannot possess any right other than that which relates to common use. Moreover, both natural law and divine law uphold that famous precept: “Do ye not unto others what ye would not have others do unto you.” Therefore, since navigation cannot prove injurious save perhaps to the navigator himself, it is fitting that the power and right to impede this activity should be denied to all persons, so that no one, by intervening in a matter whose very nature implies free participation and which is in no sense harmful to himself, shall obstruct the liberty of navigators, transgressing the aforesaid precept and the established rule.d Our argument is strengthened by the fact that all activities against which no express prohibition is found to exist, are understood to be permitted.a Indeed, it is not enough to say that an attempt to prevent such navigation by resorting to prescription, would be contrary to natural law, since that act of prevention would result in no advantage whatsoever to the agent [while it would result in injury to the party affected by the prohibition];18 for we are also under a positive obligation to pursue the opposite course, that is to say, an obligation to benefit all persons whom we can benefit without consequent injury to ourselves.
After citing numerous authorities, both divine and human, in support of the foregoing argument, Vάzquezb adds this statement:
Thus we also clearly perceive the questionable nature of the opinion held by certain persons already cited, namely, Joannes Faber, Angelus, Baldus and [ Joannes] Franciscus Balbus. For these authorities believe that places which are common property under the law of nations can be acquired through custom, even if they cannot be acquired through prescription. This contention is altogether false; and the doctrine implicit therein is vague, obscure, completely cut off from the light of reason and aimed at the establishment of a law upon a foundation of words, not facts.c For examples relating to the seas of the Spaniards, Portuguese, Venetians, Genoese, and other peoples clearly indicate that such a right to navigate and to prohibit navigation by others, can no more be acquired through custom than it can through prescription. For obviously, the principles involved are the same in both cases:d the laws and arguments adduced above show that acquisition of this right would be contrary to natural equity, and would produce no benefit but only injury, so that, just as such acquisition could not be expressly authorized by any precept of positive law,e it would likewise be impossible to authorize that same development on the basis of any tacit law, such as custom; and furthermore, the said development would not be justified by the passage of time, but would on the contrary grow daily less valid and more unjust.a
Vάzquez then proceeds to demonstrate that, from the time when lands first began to be occupied, it was possible for a particular people to possess the right of fishing in their own streams just as they possessed the right of hunting [in their own territory]; and he also shows that, after these rights had once been separated from the ancient community of rights in such a way as to admit of their assignment to specific[112′] individuals, it was possible for them to be acquired by the said individuals through prescription based upon the lapse of time immemorial, as if through a tacit concession on the part of the nation. In addition, however, Vάzquez stresses the point that such a result would be brought about through prescription and not through custom, inasmuch as only the status of the party making the acquisition is improved, while the status of the remaining parties is impaired. Again, after enumerating the three requisites for establishment by prescription of a private right over the fishing in a given stream, the same writerb adds:
And what shall we say in regard to the sea? In this connexion, indeed, the requirements are more stringent, for even the conjunction of the three requisites above mentioned would not suffice for the acquisition of such a maritime right. The reason for the distinction made between the sea, on the one hand, and lands or streams, on the other hand, is this: in cases involving the sea, today and for all time just as in earlier epochs, the right conferred by the primary law of nations in regard both to fishing and to navigation remains intact, nor has it ever been separated from the common body of human rights and attached to one or more specific individuals; whereas in cases coming under the latter head (that is to say, in those which relate to lands or streams), the course of events was different, as we have already explained. But why did the secondary law of nations cease to operate when the sea was involved, failing to produce that separation [of parts privately controlled] which it produced with respect to lands and streams? This question may be answered as follows: “Because, in the case of lands or streams, it was expedient that the law should operate thus, whereas it was not expedient in regard to the sea.” For it is generally agreed that, if a great many persons hunt or fish upon some wooded tract of land or in some stream, that wood or stream will probably be emptied of wild animals or fish, an objection which is not applicable to the sea. Similarly, the erection of edifices may easily impede or prevent the navigation of streams,a but not the navigation of the sea. Yet again, it is quite likely that the presence of aqueducts will leave a stream drained of its waters, but no such possibility exists where the sea is concerned. Therefore, the same line of reasoning cannot be followed in the two kinds of cases. Moreover, our preceding statement to the effect that the use of waters (including even springs and streams) constitutes a common right, is not pertinent to the question under consideration, inasmuch as the said statement is understood to refer to drinking and similar acts, by which ownership of the stream or rights possessed over it are impaired very slightly or not at all. For we are not concerned with points of trifling significance.b Our opinion is furthermore confirmed by the fact that unjust claims are not validated by prescription, regardless of the lapse of time involved, and that, consequently, an unjust law does not result in prescription, nor is it justified, because of the passage of time.c
A little farther on, Vάzquezd observes that “those things which are imprescriptible will not become the objects of prescription in consequence of legal measures, nor on the basis of lapse of time even after the passage of a thousand years.” This observation is supported by the testimony of innumerable learned authorities.e
It will now be clear to every reader that usurpation, no matter how long continued, does not avail to prevent the use of a common possession. We must add that the opinion of those who dissent from this general conclusion cannot in any event be applied to the particular question under discussion. For the said dissenters are referring to a Mediterranean sea, whereas we are referring to the Ocean; they are discussing a mere gulf, whereas we are discussing a vast maritime tract, two concepts which differ very widely in so far as occupation is concerned. Moreover, the peoples to whom the right of prescription is conceded by such authoritiesa (for example, the Venetians and the Genoese) are the possessors of uninterrupted coast-lines along the waters in question; but the same cannot be said of the Portuguese, as we have just clearly demonstrated.
Indeed, even if (as some persons believe) the passage of time could avail to establish prescriptive rights over the public possessions of a given nation, certain necessary requisites would still be lacking in the present case. For, first of all, according to the doctrine universally upheld,b anyone who claims a prescriptive right over a particular act must have practised that act, not merely for a long period of time, but for a period stretching back beyond the limits of memory. A second requirement runs as follows: during all of this period, no other person shall have practised the said act, save by permission of the claimant to the prescriptive right, or else clandestinely. It is furthermore required that the claimant shall have prohibited all other persons who wished to use the possession in question, from so doing; and that he shall have issued this prohibition with the knowledge and consent of the parties concerned. For even if he had always practised the act in question and had always prohibited its practice by some, but not all, of the persons desirous of engaging in that activity, the requirements would still not be fulfilled (according to the opinion of learned authorities), since some individuals would have practised the act freely while others would have been forbidden to do so. Then, too, it is apparent that all of the conditions above mentioned must be satisfied concurrently, partly because the law is inclined to oppose the prescription of public possessions, and partly in order to make it clear that the claimant has exercised a right that is truly his own, not a common right, and that he has exercised it in virtue of uninterrupted possession. Furthermore, since one requirement is the lapse of a period extending back beyond the limits of memory, it does not always suffice (a point brought out by the leading interpreters of the laws)a to prove that a century has elapsed; rather, there must be a well-established tradition, handed down to us from our forebears and of such sort that no surviving person has seen or heard any evidence conflicting with it.[113′]
The Portuguese first began to investigate the more remote regions of the Ocean during the reign of King John, in the year of Our Lord 1477,b and in connexion with their African interests. Twenty years later, after Emmanuel had ascended the throne, they voyaged past the Cape of Good Hope. Much later still, they came to Malacca and the more distant islands, whither the Dutch also directed their ships, in 1595, certainly less than a century after the advent of the Portuguese. Moreover, even during that interval, the use made of the maritime tract in question by certain parties in opposition to others, had created an impediment to prescription by any one of the parties involved. As early as the year 1519, Portuguese possession of the sea in the vicinity of the Moluccas was rendered doubtful by the Castilians. The French and the English also pushed their way into that part of the world, not clandestinely but by employing open force. Then, too, the inhabitants of all these regions, both in Africa and in Asia, continually used the part of the sea nearest each of these peoples respectively for fishing and navigation; nor did the Portuguese at any time prohibit that practice.
Therefore, we must conclude that the Portuguese do not possess any right in virtue whereof they may forbid any other nation whatsoever to navigate the oceanic tract extending to the East Indies.
Furthermore, if the Portuguese maintain that they are the possessors of a certain exclusive right to engage in trade with the East Indians, their contention will be refuted by all of the arguments already advanced, in practically the same form. We shall review those arguments briefly, adapting them to this particular phase of the discussion.
New explanationUnder the law of nations, the following principle was established: that all men should be privileged to trade freely with one another,a nor might they be deprived of that privilege by any person.New explanation Since the need for this principle existed as soon as distinctions of ownership had been drawn, it is clearly quite ancient in origin. For, as Aristotleb has acutely observed: μεταβλητικὴ ἀναπλήρωσις τη̑ς κατὰ φύσιν αὐταρκείας; in other words, barter supplies what nature lacks in order to meet properly the needs of all men. Therefore, according to the law of nations, the privilege of barter must be common to all, not only in a negative [i.e. non-exclusive] sense, but also positively (as the experts say)c or, to use another term, affirmatively. Now, the negative dispositions of the law of nations are subject to change, whereas its affirmative dispositions are immutable.
This statement of the case may be clarified as follows. Nature had given all things to all men. Nevertheless, owing to the fact that the distances separating different regions prevented men from using many of the goods desirable for human life (since not all things are produced in all localities, as we have pointed out in another context), passage to and fro was found to be a necessity. Barter in the true sense was not practised as yet in that early epoch, but men followed their own judgement in using what they discovered in one another’s territory, very much after the fashion in which commerce is said to be conducted among the Chinese, who leave their goods in some lonely place and rely entirely upon the scrupulousness of the persons with whom the exchange is made.d But as soon as movables had passed into the domain of private property rights (under pressure of necessity, as we have just explained), the process of barter was devised,e in order that one person’s lack might be remedied by means of another person’s surplus. Thus (as Plinyf shows, citing Homer) the practice of commerce was developed for the sake of the necessities of life. Moreover, after immovables also began to be divided among different owners, the general abolition of communal ownership made commerce necessary not only among men separated from one another by geographical distance but also among residents of the same vicinity. Subsequently, with a view to facilitating this commercial activity, money was inventeda and was given its [Latin] name, [nummus,] ἀπὸ του̑ νόμου, “from the Greek term νόμοςb [custom or law],” because money was a civil institution.c
We find, then, that the general principle underlying all contracts, ἔ μεταβλητική [the principle of exchange], is in itself derived from nature;d whereas various specific forms of exchange, and the actual payment of a price, ἔ χρηματιστική [the money-making process], are derived from law or tradition,20 a distinction which the older interpreters of the law have not made sufficiently clear. Nevertheless, it is universally agreed that private ownership—in the case of movable possessions, at least—has its origin in the primary law of nations,e and that the same is true of all contracts not involving the payment of a price.
The philosophersf distinguish between two kinds of μεταβλητική, a term which may be translated as “exchange,” namely: ἔ ἐμπορικὴ καὶ ἔ καπηλική [wholesale commerce and retail trade]. Of these, the former—which is practised between widely separated nations, as the term itself indicates—takes precedence in the natural order, and is so ranked by Plato.g The latter form of exchange would seem to be identical with Aristotle’s παράστασις,h “shopkeeping,” or trade practised on a stationary basis among fellow citizens. That same author makes a division of ἔ ἐμπορική [wholesale commerce] into ναυκληρία [ship-owning] and φορτηγία [hauling],21 referring in the latter case to merchandise transported by land and in the former case to merchandise transported overseas. Retail trade is of course a comparatively humble pursuit;a [114′] but wholesale commerce is more creditable, and especially so when maritime transportation is involved, since this phase of commerce enables many people to enjoy a share in many things. Herein lies the reason for Ulpian’sb assertion that the management of ships is a matter of the greatest concern to the commonwealth, whereas the services of [petty] agents22 have not the same value. In fact, the former pursuit is absolutely necessary according to nature’s plan. Thus Aristotlec has said: ἔστι γὰρ ἔ μεταβλητικὴ πάντων ἀρξαμἑνη τὸ μὲν πρω̑τον ἐκ του̑ κατὰ φύσιν τῳ̑ τὰ μὲν πλείω, τὰ δὲ ἐλάττω τω̑ν ἱκανω̑ν ἔχειν τοὺς ἀνθρώπους; “For there exists in connexion with all things a process of exchange that originated in the first instance from the natural order, because men had more than enough of some things and less than enough of others.” Seneca,d too, lays down this rule: “The law of nations decrees that you may sell what you have bought.”
Freedom of trade, then, springs from the primary law of nations, which has a natural and permanent cause, so that it cannot be abrogated. Moreover, even if its abrogation were possible, such a result could be achieved only with the consent of all nations. Accordingly, it is not remotely conceivable that one nation may justly impose any hindrance whatsoever upon two other nations that wish to enter into a contract with each other.
Now, in the first place, neither discovery nor occupation can have any bearing upon freedom of trade. For the right to trade freely is not a corporeal object, susceptible of seizure. Nor would the Portuguese position be strengthened even if the Portuguese people had been the first to engage in trade with the East Indians, although such a claim on their part could be regarded only as an absolute falsehood. Owing to the fact that, in the very beginning, different peoples proceeded in different directions, there must be some who were the first traders [in each of the various regions]; yet it is certain beyond all possibility of doubt that those earliest traders did not thereby acquire special rights.
Therefore, if the Portuguese do possess any right that gives them an exclusive privilege of trade with the East Indians, that right must have arisen, after the fashion of other servitudes, from an express grant, or from a tacit concession (that is to say, from prescription); for under no other circumstances could it exist.
But no one made such an express grant, unless perchance the Pope did so; and he was not properly empowered to act thus. For there is no person who has the power to bestow by grant that which is not his own; and the Pope—unless he is the temporal master of the whole world, an assumption which wise men reject—cannot maintain that even the universal right of trade falls within his jurisdiction. This objection is particularly forceful when the case in question relates solely to material gain and has no bearing whatsoever upon spiritual administration; for the papal power loses its force (as is universally admitted) beyond the limits of that spiritual sphere. Furthermore, if the Pope wished to bestow the said right upon the Portuguese alone, while taking it away from other men, he would be inflicting a twofold injury. First, he would be injuring the East Indians, who (as we have observed) are in no sense subject to the Pope, inasmuch as they were placed outside the fold of the Church. Thus the Pope has no power to deprive the latter people of anything that belongs to them; and therefore he cannot have had the power to take from them the right (which they do possess) to carry on trade with whomsoever they please. Secondly, the Pope would be injuring all other men, both Christians and non-Christians; for he has not been empowered to deprive those others of the right in question, without cause and a public hearing of that cause. Indeed, how can such a papal claim be sustained, in view of the fact (which we have already demonstrated both on a logical basis and by citation of authorities) that not even temporal lords have the power to prohibit freedom of trade within their own domains? By the same token, it must also be acknowledged that no papal authority is effective against the eternal law of nature and of nations, the source of that very freedom which is destined to endure for all time.
There remains for consideration the question of prescription, or custom, if the reader prefers the latter term. But we have shown, in agreement with Vάzquez, that neither custom nor prescription has any force in the relations between free nations or between the rulers of different peoples; and again, that these two factors are likewise without force when opposed to the principles introduced by the earliest form of law. Accordingly, in this connexion, too, we find that no lapse of time avails to make a private possession of the right to trade, a right which is in itself incapable of assuming the character of private property. Consequently, in the case under discussion, neither a title nor good faith can have been present; and according to the canonists, when these elements are clearly lacking, prescription will be regarded not as a right but as a wrong.
Furthermore, the very concept of quasi-possession of trade would seem to be based, not upon a private right, but upon a common right which pertains to all men alike; so that, conversely, it should not be supposed, merely because non-Portuguese peoples may have neglected to engage in commerce with the East Indies, that they refrained from so doing out of deference to the Portuguese, since one ought rather to assume that they considered the omission expedient for themselves. This attitude on their part will by no means prevent them from undertaking, at any time when such a course shall seem advantageous, the commercial activity from which they previously abstained. In fact, learned authoritiesa have laid down an infallible rule regarding these matters which involve free judgement or a simple optional faculty, to the effect that acts falling within this sphere represent merely the exercise of that power or faculty and do not constitute any new right, nor will the passage of so much as a thousand years avail in such cases to create a title based upon prescription or upon custom. This principle operates (as Vάzqueza maintains) both affirmatively and negatively. For I am not compelled to continue doing what I have done voluntarily, nor am I compelled to refrain from doing that which hitherto I have voluntarily left undone. What could be more absurd than the conclusion which would necessarily follow upon any other line of reasoning, namely, that in consequence of our inability as individuals to enter at all times into contracts with[115′] other individuals, the right to conclude such contracts at some future time, if occasion should arise, will not be preserved to us? Moreover, that same Vάzquezb quite rightly declares that not even the passage of immeasurable time will cause a given course of conduct to be regarded as compulsory rather than voluntary.
Therefore, in order to establish any claim of this kind, the Portuguese will have to prove that an element of coercion was involved. But coercion—since it would in the present case be contrary to the law of nature and injurious to mankind as a whole—could not of itself create the right claimed. It would also be necessary for that coercion to have persisted throughout a period extending back beyond the limits of memory;c and this is so far from being a fact, that not even a hundred years have passed since the time when almost the entire trade with the East Indies was in the hands of the Venetians, who conducted it by way of Alexandria.d Another requisite would be the absence of resistance to such coercion; but the French, the English, and others did resist it.e Neither will the requirements be met by the fact that some persons were coerced. On the contrary, all persons must have been subjected to the coercion, since the claim to possession of freedom is maintained on behalf of all by failure to coerce a single individual. But the Arabs and the Chinese have traded continuously with the East Indians throughout several centuries, and are still trading with them at the present day. Consequently, the claim based upon usurpation is not valid.
The foregoing comments reveal clearly enough the blind covetousness of those who, in an attempt to prevent admittance of any other person to a share of the gains, are striving to placate their consciences with arguments which are indisputably worthless, as is convincingly demonstrated by the very Spanish authoritiesa who are their partisans. For the said authorities intimate, as plainly as they are permitted to do so, that all of the pretexts advanced in connexion with the Indian23 questions are seized upon unjustly; and they add that the matter has never been seriously examined and approved by the theologians.
Indeed, what could be more unjust than the complaint of the Portuguese that their own profits are drained away by the multitude of persons bidding against them? For among the most incontrovertible principles of law we find the following presumption:b he who is availing himself of his own right is not engaged in deceitful wrongdoing, nor in contriving a fraud, nor even in the infliction of loss upon another. This presumption holds good particularly for cases wherein an act is committed, not for the purpose of causing harm to another person, but rather with the intention of advancing the interests of the agent himself.c For attention should be fixed upon the basic purpose of the act, not upon its extrinsic consequences.d As a matter of fact, according to the strict interpretation placed upon such cases by Ulpian,a the agent does not inflict a loss, but merely prevents another person from continuing to enjoy a benefit which the latter was enjoying hitherto. Furthermore, it is natural,b and compatible with the highest form of law as well as with the principle of equity, that every individual should prefer to have for himself a commonly accessible source of profit, rather than to see it in the hands of another, even though it may previously have been seized by that other.c Who would have patience with any artisan given over to complaining that his profits are being cut off by another artisan’s practice of the same craft? Yet the cause of the Dutch is more just than that of such a competitor, inasmuch as their own profit in this case is bound up with profit to the entire human race, a universal benefit which the Portuguese are attempting to destroy.
Nor can it fairly be said that the activities of the Dutch are motivated by the spirit of rivalry, a point also brought out by Vάzquezd in connexion with a similar case. For such an assertion must be roundly denied, unless it is taken as referring to a kind of rivalry that is not merely good but even excellent in the highest degree: the kind described by Hesiode when he declares that, ἀγαθὴ δ’ ἔρις ἥδε βροτοι̑σι, “Such strife is wholesome for mankind.” Thus Vάzquez says that any man who may be moved by compassion to sell grain at a comparatively low price during a time of extreme scarcity, will meet with opposition from the shamelessly hard-hearted individuals who had intended to sell their own grain at a higher price than usual because of the cruel lack. It is true that such charitable measures lessen the proceeds accruing to other persons. “Nor do we deny this,” Vάzquezf adds. “But the diminution of those proceeds is advantageous for the human race as a whole. Would that the profits accruing to all the princes and tyrants of this world might be lessened in like manner!”
What, then, can be so manifestly unjust as a situation in which the Iberian peoples would hold the entire world tributary, in such fashion that neither buying nor selling would be permissible save in accordance with their pleasure? In every state, hatred and even punishment are loosed upon speculators in grain;a nor is any other way of life held to be so abominable as this practice of whipping up the market-price of produce. Assuredly, that hatred is justified. For such speculators are committing an offence against Nature, who is fruitful for all in common.b Moreover, it is not to be supposed that the institution of trade was devised for the benefit of a few persons. On the contrary, it was established in order that one person’s lack might be compensated by recourse to the abundance enjoyed by another, though not without a just profit for all individuals taking upon themselves the labour and peril involved[116′] in the process of transfer.c Shall we say, then, that the above-mentioned practice, which is regarded as gravely pernicious when carried on within a single state (that is to say, within a comparatively small unit of humanity), should be tolerated within that great community made up of the human race, thus enabling the Iberian nations to establish a monopoly over the whole earth?24
In short, let the Portuguese cry out, as loud and as long as they will: “You are cutting off our profits!” The Dutch will answer: “Not at all! We are looking out for our own profit!” [“You are cutting off our profits!”] “Are you indignant because we are acquiring a share in the winds and the sea?” [“You are cutting off our profits!”] “Besides, who promised that you would retain those profits of yours?” [“You are cutting off our profits!”] “You still possess unimpaired the same benefits with which we are content. [We trade at fair prices.” “You are cutting off our profits!” “You maintain, then, that one should not yield to another’s claim in anything that is a possible source of profit to oneself!”]
Accordingly, since it has been demonstrated abovea (with authoritative confirmation drawn from Victoria and with the aid of examples) that a just cause of war exists when the freedom of trade is being defended against those who would obstruct it, we arrive at the conclusion that the Dutch had a just cause for war against the Portuguese. Further proof of this conclusion may be derived from the following detailed arguments.
Ded. from Art. I, Conclusion VI, and inferences supported thereby. Analysis IThe defence or recovery of possessions, and the exaction of a debt or of penalties due, all constitute just causes of war. Under the head of “possessions,” even rights should be included. Thus Baldusb declares that it is proper for me to attack the person who prohibits me from exercising my right. But the concept of “rights” embraces both that which is due to us in our capacity as private individuals, and that which is our due by the law of human fellowship (a point noted by Augustinea in connexion with the cause for war against the Amorites): that is to say, the use of whatever is common—e.g. the sea and commercial opportunities— forms a part of the said concept. Therefore, if any person has quasi-possession of such a right, it will be proper for him to defend that claim.b Similarly, Pomponiusc asserts that he who appropriates for himself to the detriment of others a thing that is the common property of all, should be forcibly restrained. For in all cases to which prohibitory interdicts are properly applicable in court procedure, armed opposition is25 proper outside the courts. The Praetord says: “I forbid the use of force to prevent a boat or raft from sailing over a public stream, or to prevent the unloading of such a vessel along the bank of that stream.” The interpreterse of this prohibition, following the example set by Labeo,f maintain that an interdict should be laid down in the same form with respect to the sea. For Labeo,g in commenting upon the Praetor’s interdict which runs, “It is decreed that nothing shall be done in a public stream nor on the bank thereof, that may be detrimental either to the anchorage or to the transit of boats,” makes the observation that a similar interdict will lie when applied to the sea in these terms: “Nothing shall be done in the sea nor on the seashore, that may be detrimental to the use of ports by boats or to anchorage or to the transit of boats.” In short, unjust force of the kind described is to be repelled by just force. Other writers,h too, whose subject is war, have upheld this same principle, asserting that war, since it may be undertaken for the defence of possessions, may likewise and above all26 be undertaken to defend the use of those things which, according to natural law, should be commonly enjoyed; and therefore (so the said writers maintain), those who block the routes along which necessities are transported to and fro may be actively resisted, even without authorization from the ruler [of the resisting parties]. This resistance is justified, moreover, by the very imposition of a prohibition [against common use of a common possession].
Furthermore, after the prohibition has been imposed, recourse can properly be had to an action for injuries (in lieu of a restorative interdict), in cases where a given person has been forbidden to sail upon the sea, to sell his own property, or to make use thereof. This is the decision formulated by Ulpiana in numerous passages. Therefore such a prohibition must constitute an injury; and injury received from another provides one with a just cause of war.b Besides, even as it would be permissible for us to recover property that had been snatched from us, just so we may properly recover the right in question when it has been forcibly diverted from us.
Let us consider next the cause afforded by the existence of a debt.c For any person who has impeded another in the exercise of the said right, is bound by natural law, also, to make reparation for the loss inflicted. Sylvesterd says: “He who prevents a fisherman, or a fowler, from catching the fish or birds (for these are things included within the sphere of common rights)e that he probably would have caught, has placed himself under an obligation in the opinion of righteous men, because the private use of the said fish or birds, which was attached to them as a free and independent right, has been cut off, together with the potential profit implicit (so to speak) in that right.” The same authority adds: “Those persons who obstruct the importation of grain or other merchandise to any land, in order that they themselves may make sales at higher prices, are in debt to the purchasers who have paid the increased prices, to the extent of that increase; and they are also in debt to the persons who expected to convey the goods, to the extent of the loss suffered by the latter. For the parties creating the obstruction have acted unjustly in placing their private and personal interests above the public and common welfare. The same conclusion holds true in regard to persons who conspire to buy up the entire supply of some merchandise in order to sell it according to their own pleasure, inasmuch as such persons are under an obligation to make restitution for all of the loss involved.”
Aside from that loss, however, their very guilt of itself creates an obligation,a a point which we have discussed elsewhere.b For it is contrary to natural reason that wickedness should go unpunished.c Civil[119′] law punishes the infliction of injuries, for the most part, with fines;d violence directed against liberty, with the loss of part of the offender’s goods;e and the creation of monopolies, with public confiscation of all goods belonging to the guilty party.f In the present case, all of these offences are combined.
It is of course true that the severity of punishments for wrongdoing is increased or abated in accordance with considerations of public welfare. But in the case of those offences which are evil by nature rather than by law or tradition,27 and essentially impermissible from the standpoint of due proportion, punishment may be exacted even apart from the measures provided in the laws. Accordingly, since nature rules that we ought not to convert into personal property any part of that which belongs to another, it follows that those persons who attempt to convert the common right of all mankind into a private possession of their own, sin all the more gravely in proportion to the greater number of individuals injured by such an undertaking. Moreover, that sin is particularly grave whereby harm is inflicted upon the whole of human society, to which we are bound and made answerable by the oldest of ties. It is this consideration that impels Ambrosea to cry out against persons who block entry to the seas; Augustine,b against those who obstruct the highways; and Saint Gregory Nazianzen,c against those who buy up and keep back commodities, hoping to reap profit for themselves alone from the universal need and, as he himself puts it, employing want as a means to an end (καταπραγματεύονται τη̑ς ἐνδείας). Indeed, in the opinion of this holy sage, [Saint Gregory,] ὁ συνἑχων σι̑τον δημοκατάρατος; in other words, that person is marked out for public execration and is held to be accursed, who juggles with the market-price of grain by holding back supplies. All of these practices, then, are wholly and unreservedly bad; and they merit punishment for the sake of the example involved, if for no other reason. But such punishment is inflicted upon no one more justly than upon those who have reserved for themselves the exercise of a common right. Baldus,d moreover, has said that both by canon law and by the law of conscience (which is the same as natural law) all the goods of the offender are tacitly rendered liable for the purpose of giving satisfaction. Therefore, in their war against the Portuguese, the Dutch were justified on this ground, too, as well as on those previously mentioned.
All of the foregoing arguments are based upon the bare fact that commerce was prohibited; but others no less forceful may be derived from the mode of prohibition, under which head we should place the calumnies recorded in an earlier passage.e
Ded. from Article I, Conclusion VI Analysis IIAssuming that it is proper for us to defend our own possessions and that they ought not to be taken from us by anyone, we may ask, “What is so much a personal possession as the good name of the virtuous man, an asset certainly more precious to persons distinguished for nobility of spirit than any material profit, and almost more precious than life itself?”a So truly does defamation of character constitute an injury, that the general term for injurious acts as a class has come to connote specifically this defamatory act; for we can find no more expressive word than “injury”b to describe contumelious conduct,28 or what the Greeks called ὕβρις [wanton outrage]. Nor are we dealing in the present instance with contumely of a trifling sort, pleasurable to those who inflict it and not very harmful to those upon whom it is inflicted. On the contrary, we refer to that contumely which left an infamous brand upon Hollanders throughout the whole world, and which brought down upon them, by means of accusations no less false than horrible, the hatred of mankind; that contumely which caused numerous kings and peoples to abominate even contact with the Hollanders as an impious and execrable experience. In earlier times, infamy was attached to certain peoples: to the Cilicians, because of their piracy; to the Cecropians,29 because of their thieving ways; to the Persians, because of their unspeakable love affairs, and to the Nomads because of their lawless and unsociable manner of life. But every charge that can be brought is exceeded by the abominable wickedness ascribed to those men who acknowledge no god and no religion; for such an attitude is so abhorrent to human nature that one may truthfully deny the existence of any nation that does not cherish some innate conception of divinity and practise some form of divine worship.a Yet all of these charges have been heaped upon the Hollanders by the Portuguese, who were so blinded by their lust for slander that it is impossible to point out a single accusation on their part which would not be more appropriate to any other nation than to our people, against whom it was brought. Indeed, the foreign scholarsb who have devoted rather more than ordinary care to the study of questions pertaining to the Low Countries (for we shall not involve ourselves in an examination of all historical records) offer a wealth of testimony to the fact that the people of these countries are extremely zealous in the cultivation not of piracy but of commerce, being moreover free from every rapacious inclination, superior to all others in sexual temperance and in their whole way of life, and characterized by the most profound reverence for the laws, for the magistrates, and above all for religion.
Therefore, when the Hollanders found that they were being dishonoured in this fashion, they acted justly in vindicating their good name; and they rightly showed, by their very deeds, against whom they[120′] were bearing arms, so that all suspicion might be cleared from the minds of the East Indians. For how can that which is permitted in defence of other things be less permissible in defence of one’s reputation?c In other words, how can it be impermissible to employ arms in order to preserve the integrity of one’s reputation, and in order to restore its integrity after injury? This is what occurs when he who has unjustly besmirched the fair fame of the innocent, is rightfully vanquished and by his own dishonour purges the name that was defiled.d Nor can it be doubted that a detractor, like a thief, is under an obligation to make amendse which will even assume the form of pecuniary fines if due reparation cannot be provided in any other manner. Moreover, it is possible to take not only civila but also criminal action for injuries inflicted;b and it was on this ground that the Turpilian Decree of the Senate imposed a penalty upon slanderers.c Accordingly, it is right to take up arms for the same causes. In the works of Virgil,d we find these lines:
Indeed, we frequently find that even in time of war persons who have assailed the enemy with excessively bitter abuse are punished by the victor,e a practice which seems to indicate that war itself does not excuse such virulence.
Ded. from Article I, Conclusion VI Analysis IIIThe causes above set forth certainly constituted just grounds for undertaking a war. In addition, however, we have observedf that not every right [justifying belligerent measures] exists prior to the outbreak of war. There is a form of right which arises in the midst of armed conflict and in defence whereof warfare is properly continued.
Defence of one’s own life is included under this head.g For when we are defending or attempting to recover our property, or seeking to obtain that which is our right, while our adversary offers armed opposition to such attempts on our part, it is evident that we, though innocent, are thus brought into peril of our lives. This situation constitutes the oldest and most just of the causes of war. Moreover, it is certain that belligerent activities were not even initiated on the part of the Dutch prior to the existence of such a cause, a fact already brought out in our account of the order of events.a
Let us consider next another of these causes, namely: defence of possessionsb [threatened in war], recovery of the actual possessions lost through war, or attainment of what may be regarded as the equivalent of property so lost. For he who wages war unjustly is liable to the just belligerent for all the losses that befall the latter by reason of the conflict. Now, it is a well-established fact that certain vessels, together with the merchandise they carried, were violently snatched from the Dutch by the Portuguese;c and also that many other losses were suffered, such as those resulting from the various occasions when the Dutch themselves, after undergoing disastrous defeats, were compelled to abandon and burn their own ships.
Another point to be considered is the process of exacting the debt owed by one hostile party to the other.d Under this head, we must include a reckoning of the costs involved. For he who was the author of an unjust war is in debt to the innocent party, to the full extent of the expenses incurred through that conflict. The whole record of events surely affords sufficient proof of the fact that it was not possible to resist the Portuguese in such a remote region of the earth without expending tremendous sums.e Items properly falling under this classification are: the outfitting of the ships, a process as costly as it was necessary; the employment of a larger number of sailors; the increase in the rate of pay because of the dangers involved, and the expenditures necessitated in connexion with treatment of wounds or with rewards for zeal in active service.
Furthermore, our comments regarding losses and expenses should be extended to apply also to those losses and expenses which the Dutch suffered or may have been fearful of suffering at the hands of persons who were suborned by the Portuguese. For he who gives the command [for an injurious act], as well [as the person who commits the act], is under an obligation to make reparation.a Under this head, a claim may be entered for the payments made to barbarians as ransom for captives.
The execution of punishment is the last item on our list of reasons justifying warfare.
For any person who knowingly wages an unjust war commits a very serious offence; and therefore, he ought properly to be punished, since the magnitude of the sin should not serve as protection for the sinner.b The injuries brought about by the Portuguese—partly through the medium of others, partly by direct action—are indeed grave.c Moreover, there is no difference, according to the jurists,d between the direct infliction of injuries and the infliction of the same injuries through an agent. Nor is the person who issues an injurious command any less guilty—on the contrary, he is even more guilty!—than the person who has lent his services in response to the command. It has been ruled,e and rightly so, that he who causes an assault by giving the command to attack or by persuasion, is justly attacked in return. For human beings should not imitate the behaviour of dogs, who rush at the stone that struck them (so the old saying goes) and not at the person who aimed the blow.[121′] To cases of this kind one may appropriately apply the moral brought out in the well-known story about the trumpeter, namely, that those individuals who incite others to war while they themselves venture nothing are especially deserving of punishment. Indeed, according to Seneca,f “The man who practises violence, and the man who employs for his own gain the things supplied through [the violence of]30 another, deserve equally to be punished.” The same author,a in one of his tragedies, acutely observes:
The events narrated above also exemplify the different classes of crime.
The slaughter of a human being is the gravest of criminal offences, a fact that accounts for the laws against assassins.b Now, the Portuguese slaughtered many Hollanders in the vilest and most brutal fashion, and therefore, the East India Company could not conscientiously have neglected to avenge its servants. Homerc represents Thetis as saying:
Again, since slavery is comparable to death, liberty must needs be placed almost on an equality with life. From this comparison, one may easily deduce the gravity of the offence involved in dragging a free-born man into unmerited captivity,d and in subjecting him to chains and torture, as the Portuguese have done and are still doing to many Hollanders. In fact, so stubbornly do the Portuguese cling to this course of conduct, that they have in no instance allowed such captives to be ransomed, in exchange either for a much larger number offered from among their own captive comrades or for an adequate sum of money. They have chosen, instead, to deliver into perpetual slavery the men whom they themselves have captured, a practice denounced by all the juristsa as impermissible even in a legitimate war between Christians, since it is contrary to established law.
Yet again, what is more abominable than perjury, or perfidy of any kind?b For other evil deeds affect, as a rule, the particular individual against whom they are directed; but those persons who are guilty of perfidy offend against God Himself, calling upon Him as a witness (perhaps in a set verbal formula, or at least by invoking His testimony in some other way), as well as against the whole of human society, thus severing the bond which alone gives us security when we are among men entirely unknown to us. In earlier times, the Romans were wont to issue a statement breaking off friendly relations before they would declare war even upon those peoples against whom they had just cause to take up arms.c The Portuguese, on the contrary, while engaged in devising acts of exceeding cruelty against the Dutch, and with the very purpose of facilitating the success of their cruel plans, were taking advantage of the disguise afforded by a pretence of friendship.d But this manifestation of bad faith did not suffice them! Their outrageous conduct toward the Dutch reached the point of open defiance against the sacred insignia of peace, against pacts allowing of no ambiguity, against the holy obligations imposed by a sworn oath: in short, nothing was so sacrosanct that it could restrain the Portuguese from shedding the blood of Hollanders.
Similar to these deeds of perfidy was the Portuguese practice of resorting to poisons, and to assassins dispatched under the guise of friendship.e The comment formulated long ago in regard to King Perseus is applicable in the present connexion: the Portuguese were not making ready for a just war; rather, they were “perpetrating crimes of robbery and violence, with the aid of every clandestine means.”a The words addressed by Alexander to Darius could also be applied here: “You engage in impious wars; and though you have weapons at your disposal, you bid for the heads of your enemies.”b Assuredly, according to that same Alexander, the person who commits such deeds “should be pursued, not as a just enemy but as an assassin and poisoner, until he is utterly destroyed.”c
Certain additional offences (of a trifling nature as compared with those discussed above, but nevertheless notable if considered in themselves) still remain to be mentioned: for example, violence (public, private, or armed violence, or forceful seizure of property),d and other forms of crime that can hardly fail to develop in the course of an unjust war. The fact that they did develop among the Portuguese has been brought out in our narrative.
Nor should punishment even of attempted crimee (in the more atrocious cases, at least) be omitted. Thus the Portuguese ought not to escape punishment for the fact that they were deterred from burning whole fleets together with the men aboard, as well as from the performance of many similar misdeeds, by lack of fortune’s favour but not by any lack of malicious intent. This principle is admirably expounded by Seneca, in the following statements: “He who intends to do an injury is already doing it”;f “A man becomes a brigand even before he has stained his hands with blood, by virtue of the fact that he has already armed himself for slaughter and entertains the will to rob and slay”;g and, “In so far as a sufficient degree of guilt is concerned, all crimes are completed even before the actual deed is accomplished.”a [122′]
Yet another principle is generally accepted, namely: if an offence is committed against any man, even though he be a free man, and an affront to a third party is involved in that act, not only the person directly injured but also the party attacked through his association (so to speak) with the direct object of the attack, will have a right to bring action for injury.b Thus the Hollanders are entitled to bring action against the Portuguese on the ground of wrongs inflicted upon the East Indians,c just as if they were bringing it in their own name.
Lastly, bearing in mind the fact that a state and its magistrates incur guilt when they fail to curb the openly shameful conduct of their own people,d we shall list as the final cause the offence committed by the Portuguese nation as a whole, since that nation connived at the evil deeds recorded above.e
Inasmuch as all of the offences listed are of a grave nature, the punishments imposed for them must by any proper reckoning be correspondingly severe. According to the precepts of civil lawf a very few of the punishments in question are limited to fines, a great number involve the confiscation of goods in conjunction with banishment or disgrace, and many carry with them the death penalty. Therefore, it was permissible to exact such penalties as these by force of arms, since (as we shall presently explain) they could not be exacted through judicial procedure.g For we have certainly shown that it is right to attack in war, with the purpose of inflicting punishment for the sins committed against us, even those persons who are not subject to our power in any other sense; and we have also shown that he who justly wages war is invested with all the powers of a judge.
Up to this point, we have been discussing causes. Let us consider next that phase of the question which relates directly to the enemies themselves.Ded. from Article II, Conclusion VI Now, we have already concluded that war is justly waged against individuals, and against a state, when those individuals or that state or its magistrates have committed an injurious act; that a war is also just when waged against a state defending a citizen who is the author of an injurious act; and that the same is true in regard to the allies and subjects of all who commit such an act.
In the first place, then, it was permissible for the Dutch East India Company to attack in war the individual Portuguese who committed the crimes described above.
In the second place, such an attack was also permissible against the state in question, that is to say, against the Portuguese people. For there is nothing to prevent a war from being private for one side, public for the other, and at the same time just for the former. The war waged by Abraham against the kings was of this nature, and another instance is perhaps afforded by the war of David against Saul. Furthermore, the Portuguese people deserved to be attacked in war, for two reasons.
The first reason consists in the fact that the said people injured traders in the East Indies, either by their own direct action or through their magistrates. It is universally admitteda that acts which have taken place because of the state’s decision, and even those which have been decreed by a major part of the whole state or by the magistrates, are acts of the whole community.32 This point has been established in another part of the present treatise. Now, it was a decision of the state that caused Manoel, brother of the Governor of Goa, to be dispatched with some ships, under instructions to make a warlike attack upon the Hollanders at their very first approach, and even to inflict punishment upon those who might be unwilling to join him in the attack.a It is by decision of the state that more and still more vessels (Spanish aid also having been invoked) are being equipped against the Dutch.b By state decision was that dread fleet assembled, under the command of Andrés Hurtado, which was to bring utter destruction upon all the Hollanders and upon those who had granted admittance to the Hollanders.c Furthermore, this same Hurtado, who even now remains close to Malacca with a large fleet, is under orders to rid the entire region of all foreign merchants. Lastly, it is by decision of the state that Dutchmen are being detained as captives and sent to Portugal.
The second reason for making war upon the Portuguese people lies in the failure of the Portuguese state to take steps for the punishment of Portuguese individuals because of the crimes perpetrated by the latter against the Dutch. As a matter of fact, the state protects these malefactors, and impedes the infliction of punishment. The juristsd are unanimous in condemning not only states that expressly deny justice, but also those which are negligent of justice, provided that the case in question involves openly and persistently injurious conduct which the state has power to prevent or punish. To what situation will such a description apply, if not to the present case? How often, pray, have the Dutch suffered the gravest injuries at the hands of the Portuguese? Once? That would be comparatively nothing! Ten times? A scanty estimate! A hundred times? That does not approach the true number! Let us say, rather, “as often as there was any opportunity to do harm.” Moreover,[123′] these injuries were inflicted not in secret but openly, in the sight of all India, on land and on sea. What obstacle, then, prevented the imposition of punishment upon the authors of such evil deeds, or at least the removal of their power to injure, other than this fact: that the thought shared by all alike, the resolution entertained by the whole nation, the sentiment supported by every individual Portuguese, is that no foreigner shall be suffered to approach the lands in question?
In the third place,33 the subjects of a state that is shown to have inflicted an injury are liable, as such, to warlike attack; that is to say, every Portuguese person without exception is thus liable. This is true partly because subjects are compelled to defend their state, and partly because the act of a state is the concern of its individual members. The words of Augustinea may well be adapted to the present case, as follows: “The sin privately committed by any individual from among a given people, is one thing; that which is done in common, as the expression of one mind and one will, when an act is performed by a united multitude, is a different thing. Where the whole body of citizens is present, there the individual citizens are also present; but where individuals are present, it does not necessarily follow that there the whole body of the citizens is also to be found. For individuals may exist apart from the whole; but the whole must contain the various individuals, since it consists in the said individuals, gathered together or reckoned as a sum total.” Of this all-inclusive nature is the extreme and headstrong obstinacy of the Portuguese, with which they strive—both as a body and individually, uniting their fortunes and their corporeal strength for the attainment of their purpose—to prevent any Dutchman from being safe in India.
We find, then, not only that there were underlying causes to justify the war, but also that the Portuguese deserved to be numbered among the enemy. The difficult part of our problem lies in the fact that the power to begin a war would not seem to be granted readily to private parties.
Ded. from Article I, Conclusion VIINevertheless, we have demonstrated that in so far as judicial recourse is lacking, private individuals are not prohibited from undertaking a war. Accordingly, when the lack of judicial recourse is of continued duration, everything that is permissible by the law of nature is permissible for private individuals. Thus it is universally acknowledged that a debt may be exacted by [private] force of arms. To this thesis we have added a contention based upon the opinion of particularly judicious authorities, namely, that in such cases of necessity even the power to inflict punishment concordant with the rule of justice should not be denied.
Now, the continued lack of judicial recourse in the affair under consideration is certainly a self-evident fact. Almost all of the events that gave rise to this war took place upon the ocean; but we have maintaineda (and rightly, I believe) that no one can claim special jurisdiction over the ocean with respect to locality. Furthermore, if any such special jurisdiction did exist [in the present instance], it would be that of the East Indian rulers, who do not wish to become involved in the case and who are not recognized by the Portuguese as judges thereof. From the standpoint of locality, therefore, judicial recourse is lacking both in law and in fact. From the standpoint of the persons involved, there could have been no judge other than the Portuguese State or ruler, or the Dutch State, since the matter is one which concerns the Portuguese and the Dutch. The Portuguese State and its ruler were the very parties who took the first step, not only in the public infliction of injury upon the Dutch, but also in initiating the war. This fact clearly deprived them of the power to serve as judges, not to mention the further consideration that, after numerous instances of perfidy, when the Portuguese (in defiance even of a formal agreement) were extending merciless treatment to the Dutch envoys, any recourse to the former might justifiably have been shunned. Consequently, the proper procedure would have consisted in resorting to the Dutch State as judge, and such action was impossible because of the vast distances between the localities involved. Thus the lack[124′] of judicial recourse was not momentary, but continuous and of long duration. The validity of this conclusion is especially evident if we bear in mind the sequence and interrelationship of the events that occurred in the East Indies, viewed as forming a coherent pattern of time and place.
Granting that the war was just, we have yet to consider the question of how much was permissible in the course of that war.
Ded. from Part I, Article III, Conclusion VIIWe have already made it clear that one may not exceed the limits proper for the right contested and for the persons liable under the said right. The nature of the particular rights upheld by the Dutch against the Portuguese has been discussed in connexion with the causes of the war. But let us put aside every claim to vengeance which would have justified the Dutch in punishing the Portuguese for violating the law of nations by their restraint of commerce, for false and savage calumny, for homicide, perfidy, and rapine. No loss suffered by the Portuguese can ever afford satisfaction for these claims.
Let us turn our attention rather to the following contention, whose validity has been proved beyond any possibility of dispute: the Portuguese have prevented the Dutch from trading freely with whatsoever East Indian nations the latter might choose for their trade, and are therefore under an obligation to make reparation for all of the profits lost to the Dutch by reason of that interference. The losses so caused amount to a truly enormous sum, since the first voyages were rendered practically futile and fruitless in consequence of the snares set by the Portuguese. Let us also take into consideration the fact that these same Portuguese are responsible for the damages resulting from a war unjustly initiated (including even damages incurred under the head of expenses), whose principal categories we have already indicated briefly. If an accurate reckoning were made of all such items—the interruption of profitable enterprises, and the infliction of losses and expenses—and if, on the other hand, the value of the captured carack and its cargo of merchandise should be estimated, there is no doubt but that the total cost borne by the Dutch would prove to be considerably greater than the total amount taken by them, or that the sum charged on their account against the Portuguese would be greater than the sum charged against the Dutch themselves because of their victory. In any case, it is just that an amount should have been taken from the Portuguese, sufficient to provide an additional reserve fund for future warfare, since the injury has not been wiped out, the peril has not ceased and the struggle increases in severity. Thus we find, not only that the warlike act in question did not pass beyond the limits of the right contested, but that it even stopped far short of those limits.
Neither will anyone contend that the persons from whom the goods were taken were not liable to such action. For the Portuguese State, or Portuguese people, were certainly under an obligation to provide redress for all of the items that I have mentioned, since the said people impeded the practice of commerce, initiated a war, and neglected to punish the guilty. Now, we have already shown that the debt owed by a state may be exacted from individual members of that state (not, indeed, under civil law, but under the law of nations); and in this connexion we adduced, in addition to sound arguments and authoritative citations, the specific example provided by the institution of reprisals, through which any person injured by the citizen of a state that fails to enforce justice, or (still more emphatically) any person injured directly by a given state, justly recovers his due from any other person whatsoever who is a citizen of the state in question.Ded. from Corollary I, Chapter VIII Thus we arrive at the very conclusion supported by the testimony of the Spaniards themselves, a conclusion which runs as follows: harm may not be inflicted upon the persons of subjects in excess of that which the subjects themselves merit because of their own transgressions or because they are hindering the execution of justice; whereas spoils may justly be taken from all subjects, at any time, until the entire sum of the debt [owed by their state] has been recovered, without any exception in favour of merchants or other classes, howsoever innocent such classes may be. Therefore, it was clearly permissible to wage war upon the merchants who were the owners of the said carack and merchandise, to the extent necessary in order to bring about the surrender of those goods as prize. In this particular case, indeed, special note should also be made of the fact that the captured carack and the owners of merchandise who were on board had set sail from Macao,a that is to say, from the place where approximately a score of Hollanders had been gibbeted or drowned as victims of Portuguese fury. Who would describe those owners as innocent persons? Moreover, I have another and more conclusive point to make: on the ship itself, clothing and pitiful belongings stripped from the slain were found, articles which the Portuguese were taking to their native land as spoils of a glorious victory (so to speak), doubtless in the fear that without proofs of this kind people would be insufficiently convinced that anyone had actually practised such extreme cruelty. Will pity be felt, then, for any of those men aboard the carack? Or is it not more likely that even the[125′] Portuguese will scoff at the kindliness of the Dutch, who have been content to instil fear through property losses while sparing the lives of the persons capable of perpetrating such acts as are described above?
Ded. from Part II, Article III, Conclusion VIIWe have laid down another restriction for warfare, however, in addition to those turning upon the right contested. I refer to the restriction imposed by good faith. In the present instance, no promise has been made to the enemy that has not been more than amply fulfilled. To that same people who had butchered the Dutch in time of peace, life was promised and granted when they themselves had been conquered in war [by the Dutch]; and not only life but liberty, too, was freely conceded, although it would have been permissible to extort a considerable price. Furthermore, lest any part of these benefactions should have been conferred in vain, a Dutch guard was given to the Portuguese, to take them back to Malacca after their release. In short, the kindnesses extended by the victorious people to the vanquished were so considerable that the Portuguese, who marvel all the more at these virtues because they themselves are strangers to such qualities, offered the Dutch a notable testimony to their benevolence, with express mention of their good faith, as is evidenced by the letters (appended to this treatise)34 from the Senate of Malacca, the Governor of Malacca, and the Commander of the captured ship.August 1603 Finally, it is a fact that the Portuguese, some time after their defeat by the ships of Van Warwijck, proclaimed in Macao their intention not to deal so gently with the Dutch if they themselves should gain the upper hand.
As for the aims of war, every individual is answerable to himself on that point. Nor is this matter subject to human judgements save in so far as the spirit of any nation has a quality common to all its people. In that sense, to be sure, individual actions form a basis for conjectural inference. We have said that the true end of war is the attainment of one’s right.Ded. from Article I, Conclusion VIII If the seizure of spoil serves this end, the spoil should be regarded as something justly and equitably acquired; but it should not be so regarded when a warrior is merely eager for personal gain. Let us see whether the latter supposition is more credible in the case of the Portuguese, or in the case of the Dutch.
Writers of ancient timesa tell us that even long ago the Portuguese people were accustomed to live by robbery and plundering; and persons of the better class among the Portuguese themselvesb are by no means unaware of the vileness and avarice of the blood that has been intermingled with their race since those bygone times, nor have they failed to note the vast number of Portuguese who are not seriously regarded, among Christians, as Christians.
I shall not reproduce here the exceedingly honourable records which are available, by way of contrast, with reference to the Dutch. Let us be satisfied with the statement made in an earlier passage but pertinent also in the present context, to the effect that among all the peoples of these [Germanic] territories there has never been one more free from greed for spoils. Thus, when Tacitusc describes the war of Civilis, he depicts the Germans as fighting for plunder, and the Dutch as fighting for glory. Foreign writersd belonging approximately to our own period have likewise declared that the Hollanders are conspicuous among Germanic peoples for their freedom from covetousness in regard to the property of others. The sentiments which the Portuguese in India itself are even now compelled to entertain with respect to the Dutch are quite adequately indicated in the letter written by the Bishop of Malacca to the King. The Bishop says: “They have done no harm to the natives, much less to the Portuguese. In short, they have caused no trouble for any nation.” Farther on, he adds: “Among the natives, they were most welcome and well liked, because they practised commerce justly, without resorting to violence or injury.” It is clear that the Dutch were pursuing commercial aims only, and that they would have been content with the attainment of such aims, had they not been forced into war. This fact is brought out by the whole series of events from the very beginning of their voyages, and by their patience in maintaining the peace for so long a period. For example (as we have already pointed out),a although they encountered four Portuguese vessels on their first trip, each of which was sailing singly, an easy prey for the covetous, the vessels were sent on their way unharmed. Furthermore, there were even occasions when things that had been captured from the Portuguese were voluntarily returned to them. That was the course of conduct adopted, for example, by Wolphert Harmensz, in connexion with a ship (belonging to the class known as “caravels”) which had been dispatched to Pernambuco and had come to this side of the Equator. But when experience showed that the Portuguese would rage all the more boldly against the Dutch as the fear of retaliation grew less, the latter bestirred themselves in the mildest possible way, attempting to discover whether men no less avaricious than cruel might not at least be induced through loss of their goods to show respect for justice and peace.[126′]
A recital of the various instances of self-restraint on the part of the Dutch would constitute, in reality, an affront to the worth and reputation of that people; but there is one episode which I shall not pass over in silence, an event whose history is bound up with the very time at which the prize in question was seized. When the ruler of Damma was detaining as captives the twenty men who had been sent to him in the capacity of agents (an incident which we have mentioned elsewhere),a and when he had extorted a price for the lives of eight of them but was refusing to release the others on any condition, Heemskerck—who held that no Dutchman’s freedom should be treacherously surrendered, and that this was especially true when such perfidy would plunge the victim into a condition of wretchedness—decided that vengeance should be exacted from pledges held as security. It so happened that, among other vessels from Johore, one of the type called “junks” was sailing to Damma; and Heemskerck, regarding it as property that belonged to that state, simply detained it. He sent messengers to the King in Damma, promising that, if the twelve Dutch agents who remained there should be released, he himself would in return restore the vessel and extend his friendship to Damma thereafter. But the King, entirely unmoved by Heemskerck’s offer, even attempted to snatch from its guards by armed force the vessel that was being detained. In view of this reaction, it seemed that the best plan was to remove the merchandise and send the shipmaster, together with the vessel itself and seventy men, to Damma, adding a promise to the effect that, if the shipmaster should succeed in obtaining the release of the Dutchmen, either the merchandise or its equivalent in value (which had been estimated at five catties in gold) would be returned to him. Later, when seasonal considerations and the lack of fresh water made a change of anchorage necessary, Heemskerck sent all the East Indians who were in his power back to their own homes. Two he dispatched as legates to Johore, that he might make his excuses through them, asking that some authorized person be sent him, to whom he could pay the aforementioned five gold catties. The King, however, replied that he perceived nothing that called for excuses in what Heemskerck had done, since it had been made sufficiently clear that the Hollanders were so inoffensive as to wish no harm to any peace-loving person, and since, for the rest, it was not only a blameless act but an act praiseworthy in the eyes of all nations, to avenge oneself upon those who had previously inflicted an injury. He added that, if the fortunes of war had caused such vengeance to be exacted at his expense or at the expense of one of his subjects, this circumstance did not constitute a reason for less equanimity on his part in enduring the outcome. As far as he himself was concerned, the friendship of the Hollanders would alone suffice by way of complete and abundant indemnification. Subsequently, when Heemskerck came to Johore for business purposes, it was only with difficulty and through entreaties that he obtained the royal permission to make reparation to the master of the ship that had been detained, a man named Rasaduta. Accordingly, in lieu of the five gold catties, he paid the willing Rasaduta twelve hundred reaes, even though the merchandise was worth scarcely seven hundred.
What feature of this episode is best calculated to arouse wonder? The fact that a price was paid in exchange for men who had been captured by no lawful right and in defiance of good faith? The act of releasing the East Indians while men of that race were still holding Dutchmen in captivity? Heemskerck’s self-accusation before the ruler of Johore? The fact that he even pleaded [with that ruler for the privilege of making reparation]? Heemskerck’s payment of more than he owed, when it was possible to refrain from making any payment whatsoever? Certainly no plunderer is so generous!
Therefore, since the more favourable interpretation should be applied in doubtful cases, even when proofs of the kind above listed do not exist, it is proper to suppose that the intentions and inclinations of the men who defeated the Portuguese consisted in the purpose of at least compelling the persons they had been unable to pacify through kindness to adopt a different course of action in view of their own losses. As Ambrosea has said, those whom we have been unable to deprive of the will to rob should be deprived of the power to rob.
Would that the Portuguese might lay aside their savagery, even now, acknowledging the fellowship of mankind and contending only as competitors in the prices bid! The Dutch are ready to dispense with enmity, and to forget all the crimes that we have mentioned as well as their own excellent opportunities for waging a successful war. The profits derived from willing sources are sufficient for them.[127′]
Accordingly, whether we choose to interpret the aim of this war as reparation for losses and expenses, or whether we maintain that it includes also the overthrow of unjust malice,Ded. from Conclusion IV either aim suffices, and both are unquestionably just. After examining all of the causes involved, we arrive at the following verdict: the war which is being waged by the Dutch East India Company against the Portuguese,Ded. from Conclusion III the former owners of the captured vessel, is a just war; and the seizure of the prize in question was therefore entirely just, a deduction clearly indicated by the basic principles which we have already laid down.Ded. from Part I, Article I, Conclusion IX Furthermore, since the spoils acquired through private warfare become first of all and in their entirety the property of him who is the author of a just war, up to the point where the debt owed him is satisfactorily discharged (as we have demonstrated by means of incontrovertible arguments), it will readily be granted that the carack and captured merchandise of which we are speaking, and which (as we have shown) were in any case insufficient to meet the debt that was owed, have become possessions of the East India Company, at whose private expense this war has been conducted. For we have made it clear that acquisition of spoils plays a part in private warfare no less than in public warfare. With respect to this point, indeed, even those persons who disagree on the terms to be employed, are in agreement on the essential fact. For it is universally concededa that in the absence of any judge, even though this defect be temporary, the possessions of adversaries may be seized for the purpose of recovering property and collecting compensation for debts due (including costs), except that in certain cases some authorities require subsequent settlement by a judicial decree. When, in these circumstances, the seizure of spoil has been followed by the issuance of such a decree, no doubt remains.b The Scholastics,c moreover, lay down a doctrine of still broader scope, as follows: Even when a war is unjust from the standpoints of cause, intent, persons concerned, and authorization, nevertheless, if some question of property is involved—for example, as a result of the fact that the war was undertaken for the purpose of reclaiming property, always assuming that an interval of time has been allowed to elapse—the party who began the war is not in conscience bound to make restitution, unless he has taken an amount, or caused losses, in excess of what has been unjustly retained from his own property by his adversary.
The foregoing observations should be applied to the cause of the Dutch East India Company, in so far as its recourse to arms on its own behalf is concerned.
Similarly, in view of what has been said above,a there should be no doubt but that the said Company was empowered to take up arms on the ground of injuries inflicted upon its allies and friends (such as the Zeeland Company), and to reckon whatever might be acquired in consequence as compensation, first of all, for the expenses thus incurred by the Dutch East India Company itself. In this sense, it is possible to holdDed. from Article I, Conclusion V (in the middle) and subsequent conclusions up to and including Part II, Article I, Conclusion IX that the Hollanders themselves did not begin the armed conflict but merely joined the forces of the Zeelanders, or the East Indians, who were initiating that conflict; in which case, the spoils taken would become the property of the Hollanders to the extent of the allotment made to them by the authors of the war. However, since the alliance of private individuals with East Indian princes or peoples constitutes a public rather than a private war, the question just raised will be postponed for discussion in a later and more appropriate context.
As for the problems relating to subjects engaged in private warfare— or more specifically,Ded. from Article I, Conclusion V (at end); Articles III & IV, Conclusion VI; Article IV, Conclusion VII, with following Corollaries; Article II, Conclusion VIII, & Part II, Article I, Conclusion IX to the sailors and to the individuals serving the said Company in positions of greater or less importance—discussion is practically superfluous: partly because our investigations were not undertaken primarily with reference to such persons, and partly because, in the light of the observations made above, and after evaluating them on the bases of the dogmas laid down at the outset, we cannot doubt but that, in a cause so palpably just, these subject persons conducted themselves aright in rendering obedience to the Company and in carrying out its orders in its war against the Portuguese. Accordingly, if the said persons have also been assigned some part of the prize by the Company, their retention of that part will be a blameless and upright act.
[1. ]Collotype p. 95′ contains only a deleted heading, restored at the bottom of p. 96 and reading as follows: “The Freedom of the Seas, or a Dissertation on the Right of the Dutch to Carry on Trade in the East Indies.” This is the full title of Grotius’s celebrated treatise on the freedom of the seas (the Mare Liberum), now known to be simply a revised version of Chapter XII of the Commentary on the Law of Prize and Booty.
[2. ]The bracketed material in this paragraph corresponds to the fragment of text now missing from manuscript p. 96, which is mutilated along the margin. For purposes of translation, the missing text has been supplied from Hamaker’s edition of the Commentary, evidently prepared before the mutilation occurred, since Hamaker does not indicate in any way that the Latin has been conjecturally restored at this point. According to his reading, the broken lines originally terminated as follows: (1) quavi [s gente]; (2) nu [m quid obstet]; (3) cense [ri posset]; (4) auctor [ibus]; (5) a [utem pro].
[a. ]Chap. vii, not far from the beginning, supra, p. 106.
[b. ]See Law VII, supra, p. 37.
[a. ]Panegyric [xxix. 7].
[b. ][Virgil, Georgics, II. 109.]
[c. ][Virgil, Aeneid, VI. 847 f.]
[3. ]I.e. the passage in which Anchises foretells Rome’s destiny as a leader in the arts of war and government.
[4. ]In the collotype, the right-hand margin of manuscript p. 96′ is imperfectly reproduced. For the benefit of the reader who wishes to follow the Latin word by word, it should be noted that other reproductions, in which the margin is not defective, complete the broken words as follows: so [cie]tatem; O [ce]anus; sta [ti];n [on]; concessum [a]; summ [um]; dissipata [s]; necess [a]rium; iu [s]; Iurisc [on]sulti; Princi [pem]; al [ii]; sa [nc]tissimum.
[d. ]Natural Questions, III. iv [V. xviii].
[a. ]Institutes, II. i. 1; Dig. I. viii. 4; see Gentili, De Iure Belli, I. xix; Code, IV. lxiii. 4.
[b. ]Virgil, Aeneid, I [539 f.].
[c. ]Ibid. VII [229 f.].
[d. ]Dio. Sic. XI [XII. xxxix]; Plutarch, Pericles [xxix, p. 168 b].
[e. ]Sigonio, Hist. de Regno Italiae, last book.
[f. ]De Indis, II. 1–7; add Covarr., On Sext, rule peccatum, § 9, n. 4: word Quinta.
[a. ]Numbers, xx [14–22].
[b. ]Qu. on Heptateuch, IV, qu. 44, On Numbers, cited in Decretum, II. xxiii. 2. 3.
[c. ]Sophocles, Trachinian Women [found in Apollodorus, Library, II. vii. 7].
[d. ]Consilia, III. 293.
[e. ]Histories, IV [lxiv].
[f. ]Alciati, Consilia, VII. 130; Covarr., On Sext, rule peccatum, Pt. II, § 9 [§ 10]; Bartolus, On Code, I. xi. 1.
[a. ]Code, VIII. xli. 13.
[b. ]Nonius Marcellus [De Compendiosa Doctrina], IV, on word occupare.
[c. ]See Connan, Commentaria Juris Civilis, III. iii, at end.
[a. ]See Doneau, Commentaries, IV. x.
[b. ]Institutes, II. i. 13.
[c. ]Dig. XLI. ii. 3, § 3.
[d. ]I. i [45 f.].
[e. ]Pliny, Nat. Hist. VI. xxii [xxiv].
[5. ]The name applied by Grotius to Sumatra, and so translated in most passages of the present volume (cf. note 4, p. 14, supra). This use of the Latin name Taprobane was not uncommon at the time when Grotius wrote. Expert Latinists now agree, however, in rendering Taprobane as “Ceylon” when it appears in the works of Pliny (above cited) or any other Classical Latin author. In fact, it is commonly held that Sumatra was not even known to the western world until long after the age of Pliny.
[a. ]Dig. XLI. i. 3.
[b. ]Covarr., On Sext, rule peccatum, Pt. II, § 10, nn. 2, 4, 5.
[c. ]De Potestate Civili, I. 9.
[d. ]II–II, qu. 10, art. 12.
[e. ]Vict., De Indis, I. 4–7 and 19.
[a. ][Pompey, lxx. 3.]
[b. ]See Vάzquez, Ill. Cont. in Pref. n. 5[–6].
[6. ]The first suggested basis for the Portuguese claim was “reward for discovery” (supra, p. 306).
[c. ]See Osorio [History of Emmanuel].
[a. ]See Institutes, II. i. 40.
[b. ]See Vάzquez, Ill. Cont. xxi; Torquemada [Summa de Ecclesia], II. cxiii; Hugo of Pisa [Summa on Decretum], I. lxix [xcvi] 6; Bernard of Clairvaux, De Consideratione ad Eugenium, II [vi. 9–11]; Vict., De Indis, I. 27 [II. 3]; Covarr., On Sext, rule peccatum, Pt. II, § 9, n. 7.
[c. ]Luke, xii. 14; St. John, xviii. 36; Vict., De Indis, I. 25 [II. 1].
[d. ]Vict., ibid. 27 [II. 3].
[e. ]Matthew, xx. 26; St. John, vi. 15; Matthew, xvii. 27 [25–7].
[a. ]Vict., ibid. 28 [II. 4]; Covarr., ibid.; 1 Corinthians, v, at end.
[b. ]Th. Aq. II–II, qu. 12, art. 2; Ayala, I. ii. 29; Vict., ibid. 30 [II. 6]; Covarr., ibid. Cajetan, On II–II, qu. 66, art. 8; Th. Aq. II–II, qu. 66, art. 8; Sylvester, on words [infidelitate, et] infidelibus, vii [viii]; Innocent, On Decretals, III. xxxiv. 8; Vict., ibid. 31 [II. 7].
[c. ]Vict., De Indis, 31 [II. 7].
[a. ]See Vάzquez, Ill. Cont. xxiv; Vict., De Indis, II. 10.
[b. ]The Consolation of Philosophy, IV. iv [7 ff.].
[c. ]Matthew, x. 23; Th. Aq. II–II, qu. 10, art. 8; Decretum, I. xlv. 5; ibid. 3; Innocent thereon; Bartolus, On Code, I. xi. 1; Covarr., On Sext, rule peccatum, Pt. II, §§ 9–10; Ayala, I. ii. 28.
[d. ]On II–II, qu. 66, art. 8.
[7. ]I.e. human positive law.
[8. ]The bracketed phrase is inserted because Cajetan obviously had in mind the Biblical verse, “Woe unto you, scribes and Pharisees, hypocrites! for ye compass sea and land to make one proselyte, and when he is made, ye make him twofold more the child of hell than yourselves” (Matthew, xxiii. 15).
[a. ]John Metal [Matal] in Osorio, History of Emmanuel, Pref.
[b. ][De Indis,] I. 38 [II. 14].
[c. ]Vict., De Indis, at end of Pt. II [I. 24].
[a. ]Glossators and Castrensis, On Dig. I. i. 5 and Glossators, On Decretum, I. i. 7.
[a. ]Vάzquez, Ill. Cont. i. 10; Sext, V. xii. 3; Constitutions of Clement, V. xi. 1.
[b. ][On Duties, I. viii. 21.]
[c. ][Satires, II. ii. 129 f.]
[d. ]Avienus, On Aratus, Phaenomena [302 f.].
[a. ]Seneca, Octavia [402 f.].
[b. ]Avienus [ibid. 301 f.].
[c. ]Dig. VII. v; Extravagantes, XIV. iii and v; Th. Aq. II–II, qu. 78, art. 1.
[a. ]Seneca, Thyestes [203–4].
[b. ]Seneca, On Benefits, VII. xii.
[c. ]Declamations, xiii .
[d. ]On Duties, I [vii. 21].
[a. ]Dig. I. i. 5.
[b. ]Georgics, I [139–40].
[c. ]Metamorphoses, I [121, 135 f.].
[d. ][Metamorphoses, I. 134.]
[9. ]It should be noted that the order of events as depicted by Ovid differs slightly from that indicated above. According to the author of the Metamorphoses, houses were first used in the Silver, or Second Age, whereas the navigation of unknown waters and the marking of boundaries were both activities of the Fourth or Iron Age.
[a. ]On Benefits, VII. iv.
[b. ]Seneca, Octavia [420 f.].
[c. ]On Duties, I [vii. 21].
[d. ]I [cxxxix].
[e. ]Duaren, On Dig. I. viii.
[a. ]On Duties, I [xvi. 51].
[b. ][Ibid. 52.]
[c. ]Metamorphoses, VI [349 ff.].
[d. ]Dig. VIII. iv. 13.
[e. ]Dig. XLI. i. 14.
[f. ]Loc. cit. [On Duties, I. xvi. 51].
[g. ]See Connan, Comm. Juris Civilis, III. ii; Doneau, Comm. IV. ii.
[a. ]Dig. XLI. iii. 49 .
[b. ]Dig. I. viii. 10 .
[c. ]Loc. cit. [In Defence of Sextus Roscius, xxvi. 72].
[d. ][Aeneid, VII. 230.]
[e. ]Institutes, II. i, §§ 1, 5; Dig. I. viii. 1, 2, 10; ibid. XLI. i. 14 and 50; ibid. XLVII. x. 13, § 7; ibid. XLIII. viii. 3, 4.
[a. ]On Duties, I [vii. 20].
[b. ]IV. iii [975, 977, 985].
[c. ]See Doneau, IV. ii.
[a. ]Institutes, II. i, § 5; Dig. I. viii. 5, § 1; ibid. XXXIX. ii. 24.
[b. ]Dig. XLI. i. 50.
[c. ]Dig. XLIII. viii. 4.
[d. ]Dig. I. viii. 10; ibid. XLI. i. 14.
[e. ]Dig. XLIII. viii. 3; Doneau, IV. ii, ix.
[f. ]Dig. XLI. i. 50; ibid. XLIII. viii. 2, §§ 10 and 16.
[g. ]Dig. I. viii. 4.
[a. ]Dig. XLIII. viii. 3.
[b. ]Odes, III [i. 33 f.].
[c. ]Dig. XLIII. viii. 3.
[d. ]Ibid. 2, § 8.
[e. ]Ibid. xii.1, § 17.
[a. ]Pliny, Nat. Hist. X. liv [X. lxxx. 170].
[b. ][On Farming, III. xvii. 9.]
[c. ][Ibid. VIII. xvi and xvii.]
[d. ]Epigrams, X. xxx [19–20].
[e. ]On Naboth, iii .
[f. ]Dig. XLVII. x. 14.
[g. ]Dig. I. viii. 4.
[a. ]Dig. XLIV. iii. 7.
[b. ]Dig. XLVII. x. 13, § 7; ibid. XLI. iii. 45.
[c. ]Dig. XLVII. x. 13, § 7.
[d. ]Constitution lvi.
[e. ][Ibid. lvii.]
[f. ]Constitution, cii, ciii, civ; see also Cujas, Observationes, XIV. i.
[a. ]Hexaemeron, V. x .
[b. ]Doneau, Commentaries, IV. vi.
[c. ]On Institutes, II. i. 5; add Doctors, On Dig. XIV. ii. 9.
[d. ]Dig. XLIII. viii. 3.
[a. ]Dig. V. i. 9; ibid. XXXIX. iv. 15.
[b. ]Glossators, On Dig. I. viii. 2; Baldus and Glossators, On Institutes, II. i. 1 and 5.
[c. ]Baldus, On Feuds [p. 19]; add Code, XI. xiii (xii); Angelus de Ubaldis, On Dig. XLVII. x. 14.
[d. ]Dig. VIII. iv. 13; add ibid. 4.
[a. ]See supra, pp. 319–24 and 327–28.
[b. ]Feuds, II. lvi.
[c. ]Balbus, De Praescriptionibus, Princ. 5, pt. 4, qu. 6, n. 4.
[d. ]Dig. XLVII. x. 13, § 7.
[a. ]Dig. XLIII. ix.
[b. ]On Feuds, Rubric: Quae sunt Regalia, n. 72.
[c. ]Cited above, supra, this chap., passim.
[a. ][In Cicero, On Duties, I. xvi. 52.]
[b. ]Ibid. [xvi. 51–2].
[c. ]Seneca, On Benefits, III. xxviii [IV. xxviii].
[a. ]Joh. Faber, On Institutes, II. i. 5.
[a. ]Pliny, Nat. Hist. II. lxix [lxvii]; ibid. VI. xxxi; Mela, III [ix].
[a. ]Ibid. VI. xxiii [xxiv].
[10. ]Probably Ceylon. Cf. note 4, p. 14, supra.
[11. ]Chersonesus Aurea, “the Golden Peninsula,” is usually regarded as the ancient name for Malacca (cf. note 9, p. 265, supra). It should be noted, moreover, that Grotius himself does not expressly approve the identification of this region with Japan.
[b. ]Strabo [Geography], II [v. 12] and XVII.
[a. ]Glossators, On Sext, I. vi. 3. 2 and canonists thereon; Glossators, On Decretals, II. ix. 3.
[13. ]Reading “tit.” for a reference to the Decretals in place of “ff ” for Digest.
[a. ]Dig. I. viii. 4; and Gentili, I. xix, at end.
[b. ]This chap., supra, pp. 303–4, and p. 320–21.
[d. ]Baldus, On Dig. I. viii. 3; Rod. Suάrez, De Usu Maris, Consil. 1.
[e. ][Las Siete Partidas,] Pt. III, tit. xxviii, laws 10 and 12 [law 3].
[a. ]Vict., De Indis, 26 [II. 2].
[a. ]Syl., on word Papa, xvi.
[b. ]Vάzquez, li .
[c. ]See Doneau, Comm. V. xxii f.
[d. ]Dig. XVIII. i. 6; ibid. XLI. iii. 9.
[e. ]Ibid. 25; Sext, V. xii, ult., reg. 3.
[a. ]Dig. L. xvi. 28; ibid. XXIII. v. 16.
[b. ]Code, VIII. xi (xii). 6; ibid. XI. xlii. 9; Dig. XLIII. xi. 2.
[c. ]Ibid. XLI. iii. 49 .
[d. ]Consilium 289. This is the theme in the other chaps. on peace.
[a. ]Dig. XLIV. iii. 7.
[b. ]Duaren, On Dig. XLI, iii; Cujas, ibid. 49 ; Doneau, Commentaries, V. xxii.
[c. ]On Dig. XLI. i. 14, n. 4.
[d. ]On Code, XI. xliii (xlii). 4; cf. ibid. 9; Dig. XLIII. xx. 3, § 4.
[e. ]On Decretals, II. xxvi. 11.
[f. ]De Praescriptionibus, Princ. 5, pt. 4, qu. 6, n. 8.
[a. ]Dig. XLI. iii. 45.
[b. ]Pt. III, tit. xxix, law 7, in chap. Placa; Rod. Suάrez, De Usu Maris, Consil. 1, n. 4.
[a. ]Fachineus, Controversiarum Juris Libri Tredecim, VIII. xxvi and xxxiii; Covarr., On Sext, rule De Praesc. [ possessor], Pt. II, § 2, n. 8; ibid., § 8 , nn. 5 and 6.
[b. ]Fachineus, ibid. VIII. xxviii.
[c. ][Angelus] Aretinus, On Dig. I. viii [On Institutes, II. i. 2]; Balbus, De Praescriptionibus, Princ. 5, pt. 4, qu. 6, n. 2.
[d. ]See Vάzquez, xxix. 38 [xx. 38].
[a. ]On Dig. XLVII. x. 14.
[15. ]Supra, pp. 326–27.
[b. ]Dig. XLVII. x. 13, § 7.
[c. ]See Glossators, On Dig. XLVII. x. 13, § 7.
[d. ]On Duties, I. xxviii ; Gentili, I. xix, near end.
[e. ]Authentica on Code, IX. xlviii. 1 [= Novels, ix]; Decretals, I. iv. 11.
[a. ]Ill. Cont. lxxxix. 12 ff.
[b. ]De Potestate Legis Poenalis, II. xiv, p. 572.
[a. ]As stated in Dig. XLI. i. 14; ibid. iii. 49 ; Institutes, II. i. 2; Dig. XLIV. iii. 7; ibid. XLVII. x. 14.
[b. ]As stated in Dig. I. i. 5; Institutes, I. ii, at beg.; ibid. I. ii. 1.
[17. ]This parenthetical phrase was added by Grotius.
[a. ]Dig. XLI. iii. 4, § 27; Institutes, IV. vi. 14.
[b. ]As in the aforesaid laws of the Civil Law and Dig. XXX. i. 11; and in Bartolus and Jason, On Dig. XXX. i, discussed there at length by commentators.
[c. ]Pt. I, at beg. of Qq. 3 and 4 [of Vάzquez].
[d. ]Dig. I. v. 4; Institutes, I. iii. 1; Dig. XLIII. xxix. 1–2; ibid. XLIV. v. 1, § 5; Code, III. xxviii. 35, § 1.
[a. ]Dig. IV. vi. 28 § 2; Code, III. xliv. 7.
[18. ]The phrase et impedito noceat, inserted at this point in Hamaker’s edition of the Commentary without any editorial explanation, certainly serves to clarify the argument.
[b. ][Code, III. lxxxix.] 36.
[c. ]Contra Code, VI. xliv. 2.
[d. ]Dig. IX. ii. 32.
[e. ]Decretum, I. iv. 2; Dig. I. iii. 1–2; ibid. I. iii. 32 f.
[a. ]Decretals, II. xxvi. 20.
[b. ]Ibid. 39[–41].
[a. ]Dig. XLIII. xiii, whole title.
[b. ]Dig. IV. i. 4; Vάzquez, De Successionum Resolutione, I. vii.
[c. ]Balbus, De Praescriptionibus, Princ. 5, pt. 5, qu. 11 and elsewhere in Princ. 5; Glossators, On Decretum, II. x. 3. 8; Alph. de Castro, De Potestate Legis Poenalis, II. xiv.
[d. ][Ill. Cont. lxxxix.] 44.
[e. ]Baldus and Angelus de Ubaldis, On Code, VII. xxxix. 4.
[a. ]See Angelus de Ubaldis, On Institutes, II. i. 5 and others noted above.
[b. ]Angelus de Ubaldis, On Institutes, II. i. 38.
[a. ]Covarr., On Sext, rule possessor, Pt. II, § 3. n. 6.
[b. ]Osorio [History of King Emmanuel], I [pp. 15 ff.].
[a. ]Dig. I. i. 5 and Bartolus thereon [n. 8].
[b. ]Politics, I. ix [iii].
[c. ]See Covarr., On Sext, rule peccatum, Pt. II § 8.
[d. ]Pomponius Mela, III [vii].
[e. ]Dig. XVIII. i. 1.
[f. ][Nat. Hist.] XXXIII. i.
[a. ]Dig. XVIII. i. 1.
[b. ]Arist., Nic. Ethics, V. viii [V. v. 10]; id., Politics, I. ix [I. iii. 15].
[d. ]Decretum, I. i. 7; Arist., Politics, I. ix [I. iii].
[20. ]The Latin term institutum may refer to law or to tradition. Since the context indicates that Grotius had in mind both connotations, ab instituto is rendered here by the expanded English phrase.
[e. ]Castrensis citing Cynus and others, On Dig. I. i. 5, nn. 20, 28.
[f. ]Plato, Sophist [p. 223 d].
[g. ]Plato, Republic, II [xi–xii], which is cited in Dig. L. xi. 2.
[h. ]Politics, I. xi [I. iii. 16].
[21. ]Strictly speaking, the Aristotelian passage cited contains a threefold division of commerce in general: ship-owning, hauling, and retail trade. Thus Grotius’s twofold division of all commerce exclusive of retail trade, is implied, but not expressed, in that passage.
[a. ]Cicero, On Duties, I [.xlii. 150] and Arist. Politics, I. ix [I. iii].
[b. ]Dig. XIV. i. 1, § 20.
[22. ]institorum, used by Ulpian in the primary sense of the term, “an agent who sells goods for another”; but Grotius’s argument suggests that he himself had in mind the secondary meaning of “huckster,” or “peddler.”
[c. ]Ibid. [Politics, I. iii. 12].
[d. ]On Benefits, I. ix.
[a. ]Glossators and Bartolus, On Dig. XLIII. xi. 2; Balbus, De Praescriptionibus, Princ. 5, pt. 4, qu. 1; Panormitanus, On Decretals, III. viii. 10; Doctors, On Dig. XLI. ii. 41 and as stated by Covarr., On Sext, rule possessor, Pt. II, § 4, n. 6.
[a. ]Ill. Cont. iv. 10 and 12.
[b. ]Ibid. 12.
[c. ]Ibid. 11.
[d. ]Guicciardini, History of Italy, XIX.
[e. ]See supra, p. 337.
[a. ]Vάzquez, x. 10; Vict., De Indis, I [III]. 3.
[23. ]Indicis, evidently used here with reference both to the East Indian questions in which Grotius was particularly interested, and to the questions concerning American Indians which are treated in the works of the Spanish authorities above cited.
[b. ]Dig. VI. i. 27, § 4; ibid. L. xvii. 55; ibid. XLII. viii. 13; ibid. XXXIX. ii. 24, § 12; ibid. L. xvii. 151; Bartolus, On Dig. XLIII. xii. 1, n. 5; Castrensis, On Code, III. xxxiv. 10.
[c. ]Dig. XXXIX. iii. 1, § 23.
[d. ]See Vάzquez, iv. 3 f.
[a. ]Dig. XXXIX. ii. 26.
[b. ]See discussion of Law II, chap. ii, supra, p. 23.
[c. ]Vάzquez, ibid.
[d. ]Ibid. 5.
[e. ][Works and Days, 24.]
[a. ]Code, IV. lix. 1.
[b. ]Cajetan, On II–II, qu. 77, art. 1, ad 3.
[c. ]Arist., Politics I. ix [I. iii].
[24. ]The marginal passage inserted at this point on manuscript p. 116′ is one of those omitted from the present translation, as part of the emended Mare Liberum text but not part of the original Commentary (cf. note 1, p. 300–301, supra). On the other hand, certain phrases deleted from the upper portion of this manuscript page, together with the entire lower portion of the same page (which was also deleted), are retained in the English because they seem to have been rejected only in connexion with the revision of the text for the Mare Liberum. For the same reasons, pp. 117–18′ (text and notes for Chapter XIII of the Mare Liberum) are omitted from the translation, which passes from the bottom of p. 116′ to the top of p. 119, and includes all of the deleted material extending from that point to the bottom of p. 121′.
[a. ]Beg. of this chap.
[b. ]On Code, VIII. iv. 1, n. 38 .
[a. ]Cited supra [Augustine, Qu. on Heptateuch, On Numbers, IV. 44].
[b. ]Cf. Laws II and IV, Chap. ii, supra, pp. 23 and 27.
[c. ]Dig. XLI. i. 50.
[25. ]Vide note 24, p. 362.
[d. ]Dig. XLIII. xiv. 1.
[e. ]Glossators thereon.
[f. ]Dig. XLIII. xii. 1.
[g. ]Ibid. 1. § 17.
[h. ]Henry of Gorkum, De Bello Iusto, Prop. 9.
[26. ]Interpreting the largely illegible phrase or word interlineated in the manuscript at this point, as in primo or imprimis.
[a. ]Dig. XLIII. viii. 2, § 9; ibid. XLVII. x. 13 [§ 7]; ibid. 24.
[b. ]Decretum, II. xxiii. 2. 2.
[c. ]Cf. Law VI.
[d. ]On word restitutio, Pt. III, at end [xii. 4].
[e. ]As stated by Gerardus, Oldradus, and Archiepiscopus.
[a. ]As stated in Dig. XLVIII. xii. 2; ibid. XLVII. xi. 6 and Glossators thereon.
[b. ]Cf. Law V, supra, p. 29; see Chap. iv, at beg., supra, pp. 74 ff.; and Chap. x, supra, pp. 195 f.
[c. ]Dig. XLVII. x, whole title and Doctors thereon.
[d. ]Dig. XLVIII. vi and vii.
[e. ]Add Dig. XLIII. xvi. 11.
[f. ]Code, IV. lix.
[27. ]non ab instituto; for this rather full translation of the Latin phrase, vide note 20, p. 355, supra.
[a. ]Hexaemeron, V. x.
[b. ]Cited in Decretum, II. xxiii. 2. 3.
[c. ]In Funus Basilii [Oration xliii, § 34, p. 797 d].
[d. ]On Code, VI. ii. 15.
[e. ]Pt. II, Art. I, Chap. xi, supra, pp. 261 ff.
[a. ]Ecclesiasticus, xxvi. 7; Ancharano, Consilium, 325.
[b. ]Dig. XLVII. x. 1.
[28. ]The passage cited above from the Digest contains the following statement: specialiter autem iniuria dicitur contumelia (but specifically, the term “injury” denotes “contumely”).
[29. ]Reading Cercopes for Cecropes (perhaps written by confusion with Cecropii, “people of Athens or Attica”). According to Ovid (Metamorphoses, xiv. 91–100), the Cercopes, or Cecropians, were a race much given to fraud and treachery, and were changed into monkeys by Jupiter because of their crimes.
[a. ]Cicero, On the Nature of the Gods, I [xvi. 43].
[b. ]See Chasseneus, Consuetudines Burgundiae, Pref. word Hollande; [Lodovico] Guicciardini, De Rebus Belgicis, Chaps. De Moribus et Consuetudinibus, De Hollandia and De Regimine.
[c. ]See Law II, Chap. ii, supra, p. 23.
[d. ]Doctors, On Dig. XLVIII. viii. 9 and ibid. xix. 1; Vict., De Jure Belli, 4; Panormitanus, On Decretals, II. xiii. 12, n. 17.
[e. ]Cf. Law VI.
[a. ]Cf. Law V.
[b. ]Institutes, IV. iv. 10.
[c. ]Dig. XLVIII. xvi, whole title.
[d. ][Aeneid, IV. 590 ff.]
[e. ]Plutarch, Timoleon [xxxii–xxxiii]; see also Gentili, II. xviii.
[f. ]See discussion of Art. I, Chap. vii, supra, p. 106.
[g. ]Cf. Law I.
[a. ]Cf. Historical Analysis, Pt. II, Arts. II, IV, Chap. xi, supra, pp. 265 ff., 284 ff.
[b. ]Cf. Law II, supra, p. 23; add what is stated in General Exposition in Chap. iv, supra, p. 68.
[c. ]Cf. Hist. Anal. [Chap. xi], articles above cited.
[d. ]Cf. Law VI, supra, p. 29, and add what is stated in General Exposition in Chap. iv, supra, p. 68.
[e. ]Cf. Hist. Anal., Pt. II, in entirety, Chap. xi, supra, pp. 261 ff.
[a. ]Th. Aq. II–II, qu. 62, art. 7, in concl.
[b. ]Cf. Law V, supra, p. 29; and Chap. iv as cited, supra, pp. 74 ff.
[c. ]Cf. Hist. Anal. [Chap. xi], articles above cited.
[d. ]See Angelus [Aretinus] and his statements in De Maleficiis, § Et Sempronium.
[e. ]Baldus, On Code, VIII. iv. 1, n. 56 , statements of Innocent.
[f. ]Seneca (?).
[30. ]In the preparation of the present translation, this passage was not located in the works of Seneca. Consequently, the bracketed phrase represents merely a conjecture regarding the context of the passage.
[a. ]Seneca, Medea [500 f.].
[b. ]Dig. XLVIII. viii; Code, IX. xvi.
[c. ][Iliad, XVIII. 128–9.]
[31. ]There is an unusually noteworthy discrepancy here between the Latin of Grotius (which is followed in the English translation) and the original Greek. The former refers to vengeance for comrades already slain, thus bearing out Grotius’s argument at this point; the latter, however, merely commends the act of warding off destruction from living comrades.
[d. ]Dig. XLVIII. xv, whole tit. and XLIII. xxix [whole tit.].
[a. ]Bartolus, and Doctors, On Dig. XLIX. xv. 24 [nn. 11–12]; Covarr., On Sext, rule peccatum, Pt. II, § 11, n. 6.
[b. ]See Doctors, On Dig. XII. ii. 13, § 6; add Dig. XLVII. xx. 4; Code, II. iv. 41. See Gellius [Attic Nights], VII [VI]. xviii and what was said in Concl. VII, Art. III, Pt. II, supra, pp. 172 f.
[c. ]Livy, XXXVI [iii] and other books passim.
[d. ]Cf. Hist. Anal. Pt. II, pp. 261 ff., esp. Art. III, supra, pp. 274 ff.
[e. ]See supra, pp. 172 ff., aforesaid, Concl. VII, Art. III, Pt. II.
[a. ]Livy, XLII [xviii].
[b. ]Curtius, IV [i. 12].
[c. ]Ibid. [xi. 18].
[d. ]See Dig. and Code, whole titles [Dig. XLVIII. vi and vii; ibid. XLIII. xvi and Code, IX. xii].
[e. ]Dig. XLVII. x. 15, § 1, and Doctors thereon; Code, IX. xvi. 7.
[f. ]Seneca, On Anger, I. iii [1–2].
[g. ]Seneca, On Benefits, V. xiv.
[a. ]Seneca, On the Firmness of the Wise Man, vii .
[b. ]See Bartolus, On Dig. XLVII. i. 3; Doctors, On Institutes, IV. iv. 6.
[c. ]Cf. Hist. Anal. [Chap. xi], Pt. II Art. V, supra, pp. 288 ff.
[d. ]Decretum, II. xxiii. 2. 2.
[e. ]See Hist. Anal., Chap. xi, whole chap.
[f. ]Shown by passages cited, supra, pp. 366 ff.
[g. ]See discussion of Rule IX, Chap. ii, supra, p. 47; Vict., De Jure Belli, 13 and 19.
[a. ]Panormitanus, Super Conc. Basileense; Alex. of Imola, Consilia, VI. 13; Jason, On Dig. XII. i. 27.
[32. ]Originally, Grotius wrote: Omnes fatentur teneri universitatem ex iis factis quae (It is universally agreed that the whole community is bound by those acts which . . .). In altering this sentence to read as it now stands, he introduced a new verb, esse (are), without deleting teneri (is bound). Even though, by a rather forced interpretation, the latter term might be retained in the sense of “are regarded [as acts of the whole community],” it is omitted from the English translation on the far more likely assumption that Grotius merely forgot to strike it out when he made the other alterations.
[a. ]Cf. Hist. Anal., Pt. II, Art. IV, Second Episode, supra, p. 285.
[b. ]Same Art., Fourth Episode, and ff. [Chap. xi], supra, pp. 286 ff.
[c. ]See Art. V, Second Episode [Chap. xi], supra, pp. 289 ff.
[d. ]Ferrettus, Consilia, II; Alciati, Consilia, V. xxiii; Jason, On Dig. XII. i. 27; Doctors, On Dig. L. xvii. 50; Decio, Consilium, 486; see Gentili, De Iure Belli, I. xxi.
[33. ]This is the third main conclusion relative to the enemies who may properly be attacked, considered as a question apart from the proper causes of the war. Grotius’s numbering in this connexion should not be confused with his numbering of the reasons for attacking the Portuguese people as a whole, which constitute the two immediately preceding subdivisions under the main conclusion introduced by the phrase, “In the second place . . .” (supra, p. 377).
[a. ][Qu. on Heptateuch, III,] qu. 26, On Leviticus.
[a. ]Supra, this chap., pp. 315 ff.
[a. ]See Hist. Anal., Pt. II, Art. III, Fifth Episode, supra, pp. 178 ff.
[34. ]The last page of the MS. of the Commentary (p. 163) contains a list of certain documents, including the letters above mentioned, which Grotius meant to append to his own text; vide infra, p. 497 of the present translation. The documents in question were not found with Grotius’s papers, but all of them were subsequently located by Professor Fruin in the original Dutch or German texts.
[a. ]Strabo [III. iii. 6]; Diodorus Siculus [V. 34]; Servius, On the Georgics, III .
[b. ]See Osorio [Hist. of Emmanuel], I.
[c. ]Histories, IV [lxxiii].
[d. ]Chasseneus, Consult. Ducatus Burg. ac Fere totius Galliae, in Pref. word Holande.
[a. ]Hist. Anal., Pt. II, Art. IV, First Episode, supra, pp. 284 f.
[a. ]Hist. Anal., Pt. II, Art. II, Eighth Episode, supra, pp. 274 f.
[a. ]On Psalms, CXVIII, sermon viii, verse 2 [verse 58, n. 25] and also in Decretum, II. xxiii. 4. 33.
[a. ]See what is said at beg. of Chap. x and add Bartolus, On Reprisals, Qu. 9, ad 4, near end.
[b. ]See end of Pt. II in next Chap., infra, pp. 431–32.
[c. ]Sylvester, on word bellum, [Pt.] I. x .
[a. ]See what precedes Concl. VIII, Art. I, Chap. ix, supra, pp. 184 ff. and discussion before Concl. IX, Art. I, Pt. I, supra, Chap. x, pp. 194 f. and 200 ff.
Book XII of Pliny has not yet appeared in the Loeb series. This reference has, therefore, been checked in the edition of Gronovius (Leyden, 1669).
The margin of the manuscript is torn at this point. The missing parts of this marginal note and the two following, have been supplied from Grotius’s Mare Liberum.
The marginal references found in this and the following quotations from Vάzquez are his own.
This marginal reference was probably intended to be deleted together with the passage which was crossed out in the text.