Front Page Titles (by Subject) CHAPTER XIII: Wherein It Is Shown That the War Is Just, and That the Prize in Question Was Justly Acquired by the Company, in the Public Cause of the Fatherland - Commentary on the Law of Prize and Booty
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CHAPTER XIII: Wherein It Is Shown That the War Is Just, and That the Prize in Question Was Justly Acquired by the Company, in the Public Cause of the Fatherland - 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 the War Is Just, and That the Prize in Question Was Justly Acquired by the Company, in the Public Cause of the Fatherland
Part I. This Assertion Is True with Respect to the Governmental Assemblies1 [of Holland and of the United Provinces], in Their Character as Voluntary Agents.
Part II. It Is True with Respect to the East India Company, in Its Character as a Subject of the Said Assemblies.
Part III. [The War and the Afore-mentioned Acquisition Are] Also [ Just] on the Basis of the Public Cause of Our Allies.
In this same chapter the following theses are presented:[128 a]
1.A politically organized community, or its various internal states, even when they are ruled by a prince, nevertheless possess authority to enter publicly into a war.
2.A just ground for war against a prince is the defence of long-established hereditary laws by which the principate is bound.
3.War against the prince does not require a declaration of war.
4.It is the part of a good citizen to obey the magistrates currently in office.
5.A citizen fights in good faith against the prince, when fighting in defence of the state and the laws.
6.The war of a state against a prince who was formerly its own ruler is a foreign war.
7.It is sometimes right for Christians to enter into an alliance of war with infidels who are fighting against Christians.
Part I of Chapter XIII Ded. from Article II, Conclusion VAlthough, in the sense already indicated, this conflict could have been waged as a private war, and a just one, too, it is nevertheless more accurate to say that in actual fact it is a public war and that the prize in question was acquired in accordance with public law, the author of the conflict being, in reality, the States Assembly of Holland, now allied with the other Provinces of the Low Countries.
We have declared that the primary and supreme power to make war resides within the state, and that any perfect community is (so to speak) a true state. Thus (as Victoriaa observes) the Kingdom of Aragon forms a state that is distinct from the Kingdom of Castile, notwithstanding the fact that both kingdoms are subject to one and the same prince. So, too, the domain of Holland in itself constitutes a whole state. Moreover, just as he who speaks of troops and cohorts is speaking of an army, so he who refers to the internal states [that make up a given political community] wishes to be understood as referring to nothing more nor less than the said community, since all the parts of an entity, when taken together, are exactly equivalent in point of fact to the whole.[128′]
Thesis IIt is a familiar observation in the learned discussions of the philosophers, that a thing which constitutes in itself the cause of a certain quality in some other thing, likewise possesses that same quality, and in a far greater degree, provided only that it is essentially capable of possessing such an attribute at all. Now, both by natural and by divine law (according to the thoroughly sound conclusion which we borrow from the aforementioned Victoria),b all civil power resides in the state, which is by its very nature competent to govern itself, administer its own affairs and order all its faculties for the common good. Princes, on the other hand, are invested with no just power that has not been derived from the power of the state through election either of individual rulers or of dynasties,a so that the right to undertake a war pertains to the prince only in the sense that he is acting for the state and has received a mandate from it.b Therefore, the greater and prior power to declare war lies within the state itself,c which is regarded as having set up the prince as its substitute for those purposes which the state could not conveniently realize by its own direct action. Thus the power of the state remains intact even after the establishment of a principate:d so truly intact, indeed, that the Spanish theologiane above cited proves that the state may change one prince for another or transfer the principate from one dynasty to another. In this connexion, Victoria mentions as an example [the deposition of Childeric by] the Franks.
In the light of these arguments, it is clear that the state of Holland, even if it was subject to a prince, did not lack authority to undertake a public war independently of that ruler; for otherwise the said state would not have been self-sufficient. Victoria,f too, employs this very argument of self-sufficiency to prove that kings, even when subject to an emperor, are not forbidden to undertake war independently.
Furthermore, even if those entities which we call “internal states” were not equivalent [in the aggregate] to the state itself, but had instead the character of magistracies established by the latter and inferior in rank to the prince, the conflict in question would still be a public war. For we have maintained, in agreement with Victoriag and with other authorities, that in cases where the prince is inactive, inferior magistrates are empowered not only to repel injuries but also to initiate a public war for the purpose of punishing foreign malefactors. According to Covarruvias,a even one part of a given nation may elect magistrates for itself because of such a defect in princely government, although the appointment of those magistrates might otherwise be possible only through the king. For (as Covarruvias observes) the people have retained the power conferred upon them by natural law, and may avail themselves thereof on occasions when the king himself is not making use of his own power. “Otherwise,” [Covarruvias continues,] “the people themselves, and the state itself, would be exposed to an exceedingly grave and critical danger to which they could offer no opposition, a hypothesis that is absurd in the extreme.” From the standpoint of law, nonexistence and existence without effect are mutually equivalent concepts. Castrensisb says: “It is one and the same thing to have no superior, and to have a negligent superior.”
If the absence or negligence of the prince makes it permissible for inferior magistrates to undertake a war, how much more surely is this permissible when the prince himself does the state an injury that can be checked only by resort to arms? Not only those theologiansc who regard the Pope as subject to the Council but even the members of the opposite faction, which sets the papal authority above that of the Council, concede (despite the latter doctrine) that in cases where the Pope is following a course destructive to the Church, the Council may be convoked in defiance of his will; and that, by the authority of the said Council, he may be resisted and the execution of his commands impeded, even forcibly, should such action prove necessary. Now, what is the Council, other than an ecclesiastical States Assembly? And what is a [political] States Assembly, other than a civic Council? Indeed, on the basis of this analogy, even greater licence should be conceded to the political assembly for opposing the prince than to the Council for opposing the Pope, since the very persons who declare that the Pope has received his power directly from Christ and not from the Church, nevertheless admit that the prince possesses no authority save that derived from the state.a
Therefore, the States Assembly of Holland had a right to declare war.
This same fact is brought out even far more clearly by the sanctity invariably accorded the authority of that Assemblyb since the earliest days of the political entity of Holland, and by the confirmation of the said authority through long-continued usage, as well as by our hereditary laws, established originally at Brabant and subsequently introduced into the rest of the Low Countries. For these hereditary precepts expressly provide that the Assembly shall have full power to refuse all fealty and respect to a prince who violates the law of the land.c [129′]
We should, of course, be exceeding the scope of the task undertaken if we attempted to discuss the causes underlying the war waged by the Hollanders in conjunction with the other peoples of the Low Countries,d first against Alba and the Spaniards who accompanied him, and later against King Philip, who was also Count of Holland. Certainly, in view of all the treatises long ago made available to the public on this matter, it does not behove me to tamper with the admirable account already provided by other writers. I shall not refrain, however, from making a statement in passing, to cover such points as will suffice for present purposes.
Madrid, Feb. 16, 1568It is well known that Alba and the Spaniards publicly declared, and even formally decreed, that all the statutes and ancestral laws of the Low Countries had been committed (so to speak) to the discretion of the prince. Yet the only pretext that could be offered in defence of this proclamation was the fact that certain disorders had arisen, caused by a few individuals in accordance with their private designs, and taking the form of a sudden uprising that was suppressed by the magistrates as quickly as possible. All legal authoritiesa unanimously and most consistently maintain that the community is not to be held liable for such offences; and therefore, any step taken under the aforementioned pretext and impermissible apart from that pretext, was certainly unjust, and called for resistance.b
Ded. from Article I (First Analysis), Conclusion VIAccordingly, since the members of the States General, in their capacity of supreme magistrates, were charged with the function of watching over the rights of both state and citizenry,c it was their duty to defend the former against the violence imposed upon a peaceful situation by foreign arms illegally introduced.d Secondly, it was their duty to protect the lives and possessions of the citizens against the illegal judgements, incompatible with the forms of commonly accepted law and with our native customs, which were being carried into effect by meddling foreigners. Yet again, it was incumbent upon them to release the state and the individual citizens from requisitions of a nature not only directly contrary to the lawse but inimical also to the common liberty of mankind, since (as the Spanish authority Vάzquezf observes) such requisitions open the way to immediate pillage and to future servitude. As one of their chief functions, moreover, it behoved these supreme magistrates to take pains to ensure the careful observance of the covenants handed down by our forebearsg and consecrated by the oaths of princes, covenants which gave continuity to our sovereign form of government, lest, through the violation of those sacred pacts which had served for many centuries as the basic safeguard of our state, the latter should be made subject, after the fashion of a province, to the greedy caprice of the Spaniards. And lastly, it was also obligatory that punitive measures be taken to restrain the persons who were heaping injury and abuse upon the fatherland or upon its citizens.a
Thesis IIIn the circumstances described, it was undoubtedly incumbent upon Philip himself—to whom so many entreaties had been addressed—to defend the Dutch and the other peoples of the Low Countries who were being crushed by armed force, and to bring the offenders to justice. For such are the two sole functions motivating the establishment of any principate. Furthermore, leading authoritiesb on law declare that a nation may break away from its prince on the ground that he has neglected to defend them; and, according to the same authorities, not even the power to choose another ruler should be denied to such a nation. The above-mentioned learned Spaniard,c who was also (still more significantly) a Senator of the Supreme Council of that same Philip, maintains that superiors, when they refuse justice to their subjects, are not only deprived ipso iure of supreme jurisdiction, but also become forever incapacitated from recovering that jurisdiction. “Therefore,” [Vάzquez adds,] “princes ought to observe the greatest caution lest, while they wrongfully and hastily deny justice, the subjects themselves in their turn should rush right-fully into disobedience and rebellion.” What, then, must be said in regard to that prince who not only fails to exact justice of persons responsible for wrongdoing but even exalts those very persons by conferring honours upon them? What must be said of a prince who does not merely fail to defend his oppressed people but personally contributes toward their oppression his counsels, money, fleets, and army, with the purpose, moreover, of imposing upon them, as upon a conquered people, in defiance of an ancient form of government, such laws as he may arbitrarily choose? Surely, in these circumstances, there is much more justification for renunciation of allegiance.
New explanationA sentence pronounced contrary to the rights of any party is said to be unjust; a sentence pronounced contrary to judicial forms is not even a true sentence. The same criteria may be applied to laws. According to divine law, a marriage is dissolved only in consequence of that sin which is contrary to the very nature of marriage and which is known as adultery. In like manner, he who is guilty of any crime other than an attack upon the state, is a citizen as long as he has not been convicted; but he who attacks the state ceases forthwith to be a citizen.a A similar principle prevails in regard to magistrates, including even those of the highest rank. It was on this ground that the Romans refused to recognize Antony as Consul.b To take another example, the statements selected by Plutarchc from the speech of Tiberius Gracchus are absolutely true, even though they were perhaps inaccurately applied by Plutarch. In[130′] [a translation based upon] the Latin text of these statements, they will read as follows:
The tribune is sacrosanct because he has been consecrated to the cause of the common people and because he is their defender. But if he changes his character, wrongfully harasses the people, destroys their power and abolishes the right of suffrage, then by his own conduct he will have deprived himself of his magisterial office through the commission of every act that deviates from the purposes for which he was invested with the said office. For, in any other circumstances, even if he should proceed to demolish the Capitol and should set fire to the public dockyards, would he not2 still be permitted to discharge his functions as tribune? Indeed, even if he conducted himself thus, he would nevertheless be a tribune, though a bad one; but when he overthrows the rights of the common people, he is not a tribune at all.
Again, what power could be more exalted, or more sacred, than that which some personsa now attribute to the Pope of Rome, when they deny that he is subject to any human judge, basing their denial on the ground that his supreme power is received not from men but from God alone? Yet these same persons admit that the Pope deposes himself by his own act if he turns away from the faith; and that, furthermore, the Council may in such a case declare him to have been deposed, since heresy is of course in direct conflict with the very institution of the papacy. For the Pope must function as a head, instilling life into the body, and therefore (so the said persons hold) he cannot be retained in the papal office after he has suffered spiritual death. Howsoever the head may be affected by illness, and even though it may be reduced to inactivity, it is still the head; but when it has been cut off, it is no longer the head. By the same token, when the Pope conducts himself in a manner contrary to the underlying pattern of the papal institution, he loses ipso facto all his rights and powers.b Moreover, if such a pontiff seeks to regain by armed force the papal power lost in the manner described, there is not the least doubt but that he ought to be restrained by armed force.c
Now, these same conclusions may be applied—and far more readily—to cases involving a principate, which carries with it no right other than that derived from the state. Thus (according to a doctrine which finds its chief support among the Spaniardsd themselves), the power that has been bestowed upon a prince can be revoked, particularly when that prince exceeds the bounds defining his office, since in such circumstances he ceases ipso facto to be regarded as a prince.e For he who abuses sovereign power renders himself unworthy of sovereignty, and ceases to be a prince, in consequence of the very act by which he converts himself into a tyrant.a The status that will be accorded him even in the estimation of those persons who regard the state as subject to the prince, becomes clear if we consider an analogous case, relative to vassals, who are released by law from the obligation of obedience to savagely cruel masters.b
Argument based upon Article I, (Analysis II), Conclusion VI See discussion in Chap. VII on art. cited.But that which has rightly been lost cannot be reclaimed without wrongdoing. Therefore, when Philip strove to regain through war the sovereign status from which he had fallen, and when he sought to have punishment inflicted even for righteous deeds, the Dutch were provided with an exceedingly just motive for war, namely, the defence of their lives, property, and lawful liberty.c
Subsequently, the very course of the war gave rise to additional rights,d one after another: first, as a consequence of the tremendous losses which the Spanish inflicted unjustly upon the Hollanderse (in the early period of the war, by laying waste the fields or by destroying and ravaging the cities, and later, throughout many years, by the seizure of spoils); secondly, as a consequence of the expenses of the war itself, which (as we quite truthfully pointed out)f have been and still are so heavy from day to day that they practically defy comparison with any ever before incurred, a fact that is understandable if one considers the long duration of the conflict and the wealth of the enemy whom the Dutch were obliged to resist; and thirdly, on the ground of offences committed,g under which head I include not only the slaughter of the innocent, rapine, and all other violent deeds of this kind, which are sinful in warfare to the extent that a given war is unjust, but also other acts which would not be permissible even for one who was waging a just war. The countless examples of offences belonging to this latter group—examples of cruelty, perfidy, and lust—so far exceed our own ability to enumerate them, that they could not be adequately described even in an historical work. If the three heads listed above are combined as one, they will form an almost immeasurable aggregation of rights, or at least an aggregation that exceeds the possibility of full recovery at any time, through whatsoever victories.
Argument based upon Article I (Analysis III), Conclusion VIAgainst the Portuguese themselves, since they took the initiative in warlike attack (as they did, for example, when their forces formed part of the Spanish fleet), these same considerationsa —self-defence against the infliction of losses, recovery for expenditures, and just punishment—constituted proper grounds for war. We should also list as justificatory grounds,b recovery and punishment in connexion with all that befell the Dutch ships and sailors in Portugal, where they were detained on so many occasions. And indeed, the same comment is no less applicable in connexion with everything suffered by despoiled and slaughtered Hollandersc throughout the whole world, wherever Portuguese power (innately designed, so it would seem, for injurious uses) has penetrated. In India itself, however, special causes existed to justify the course taken by the Dutch State. Some of these causes concerned the welfare of the state as such; and others, the welfare of its citizens.
Under the first head, we may place the injuries through which the entire Dutch people has been debarred from commerce and brought into ill repute among foreign nations.d Both heads have been discussed in an earlier passage, relative to the causes of private war,e but one point merits specific mention in the present context, as follows: even if the right to carry on trade with the East Indians had belonged to the Portuguese so exclusively that the latter were empowered to prevent other nations from participating in that trade, nevertheless, owing to the fact that Holland was engaged in a just war against the ruler of the Portuguese, it would still have been permissible for the Dutch to seize for themselves this right which the Portuguese could have claimed as a unique privilege in other circumstances, just as it was permissible for the Dutch to appropriate the property of the enemy’s subjects.
With respect to the second group of causes, [those relative to the welfare of Dutch citizens,] it is sufficiently evident that the state ought to have at heart the protection, the rights, and the avenging of its citizens, inasmuch as civil society was established chiefly in order that whole groups might be able to accomplish what could not be[131′] accomplished by individuals.a If (as Cicerob tells us) the Romans frequently engaged in wars because their [merchants or] shipowners3 had suffered excessively injurious treatment, what should the Dutch not have done for the sake of that East India Company through which the lives of so many of our citizens are sustained? Certainly the Dutch were empowered—more than that, in so far as considerations of state permitted, they were in duty bound—to defend their fellow citizens before death,c and to avenge them after death; and in like manner, they could and should have protected or reclaimed by armed force the property of those citizens. Is there any ground for war more sacred than that which has been established both in Holy Writ and in the most ancient law of nations, as well as in civil law:d namely, violation of the sanctity of embassies? In what, moreover, does instigation to war consist? In failure to grant admission to the sea and to ports? The Portuguese [did not merely fail to grant admission; they] furthermore took every measure within their power to drive others away! Does it consist in the capture of human beings? But the Portuguese did not even permit the ransoming of captives! In the slaying of human beings? The Portuguese were not satisfied with slaughter unless they had first mangled their victims with torture! In martial attack? Are such attacks not far exceeded in savagery by the infliction of ills more cruel than any known to war, upon persons attracted by a pretence of peace? But I shall not overload these pages with a repetition of statements that can be found either in the portion of this work devoted to narrative or in our discussion of private war.a For the state must have possessed in defence of its citizens the same rights, without exception, that were possessed by the citizens themselves.
Ded. from Article II, Conclusion VIThe Dutch are justified, then, in regarding Philip and the Spaniards and the Portuguese as enemies, one and all, in view of the injuries inflicted upon our people by those three parties; and this conclusion may be based in each case upon the particular causes afforded by each of the said parties. We have already pointed out, however, that even if there were no special grounds for war against the Portuguese, the allies or subjects of enemies would in any case have the status of enemies. Now, the Portuguese were formerly subjects of King Philip the Second; and they are at present subjects of Philip the Third,b who succeeded his father not only on the throne but also in the war with the Dutch. This war, moreover, is deriving support from Portuguese tribute. At the same time, the Portuguese are allies of the Spaniards, and alternately offer or ask for mutual assistance against the Dutch, a point clearly brought outc in [the composition and activities of] the Spanish fleet, and generally indicated in our narration of events in the East Indies. Furthermore, certain arguments already presentedd so often as to preclude their repetition here, show that our classification of the Portuguese as enemies should be understood as referring to individuals no less than to the state.
Ded. from Article II, Conclusion VIIThe manner in which the Dutch entered into war against the Duke of Alba and his Spaniards, then against Philip, and finally against the Portuguese, was also just: that is to say, it conformed to the law of necessity. For we have shown that no formal demand for “redress as an alternative to hostilities” [clarigatio], nor any decree of war, is required of him who is first attacked in war. Now, it is perfectly clear that Alba and his utterly unbridled army interfered in what was at the time a peaceful situation,a and that Philip took up arms against the Dutch while they were still honouring him under the title of Prince.b The very course of events, too, has made it plain that the Portuguese were the first to engage in war.c Moreover, safe access to the Duke of Alba was not allowed, for he was observing in his conduct toward his enemies none of their lawful rights; and as for Philip, who would not fear to seek a meeting with him in Spain, after the deaths of the envoys, the Marquis van den Berg and the Lord of Montigny? Yet again, what security existed for any person mingling with the Portuguese in India, where not even pacts availed to protect those who came bearing flags of truce? Besides, as we have already stated, whenever the laws relative to embassies and the commercial rights of nations have been violated, no declaration of war is required.
Thesis IIIIt is furthermore worthy of note that, up until the time of the proclamation rejecting Philip’s sovereignty, the struggle in defence of the Dutch was a civil war in so far as the principal combatants were concerned. For both the chief regional official as such, and the prince as a prince, are regarded as parts of the state, just as (according to the teachings of the theologians),d in the case of an abjudication against the Pope, the latter is regarded for the purposes of the judicial decree, not as the head of the Church but as a member thereof. Consequently, even if the enemy had not first resorted to armed force nor violated the law of nations, a declaration of hostilities, which is a formality proper to war with foreign enemies, would still have been unnecessary. Thus (as we observed in an earlier context) Cicero very aptly concluded that such a declaration, through envoys, was not obligatory against Antony, even though Antony was a consul, or in other words, a supreme magistrate of the Roman People. For the Tarquins themselves were condemned by a public decree unaccompanied by any declaration of war against the king, yet no one held the war to be less just for that reason. A vote of war, then, would suffice [in any such case of civil revolt]; and a vote of this kind was indeed passed, both against the Duke of Alba by the States Assembly of Holland, and against Philip not only by this same Assembly but also by those of other nations (including almost every nation of the Low Countries), legally convoked in council.a
In regard to the Portuguese, moreover, our point is still more readily proved on the basis of the following principle, already laid down by us and rejected by none of the authorities on the subject: when a war has been undertaken against a given party, it is held that an adequate declaration of war has been communicated ipso facto to all allies and subjects of that party, since persons who have attached themselves to the enemy must also be enemies. Nor is this argument impaired in any way by that peaceful modus vivendi adopted with respect to India, to which the Dutch conformed while they were allowed to do so, but which was broken off by the Portuguese. For it is quite generally agreed that,b when a truce has been terminated or violated, the ensuing hostilities are to be considered as constituting not a new war but part of the war previously initiated, so that there is no need for a formal declaration. As a matter of fact, however, even from the standpoint of the Portuguese,[132′] the edict issued by the States General of the United Provinces,c which orders that the goods of all persons subject to the King of Spain shall be regarded as spoils, is equivalent to a decree of war.
Argument based upon Article III (Part I), Conclusion VII See also Chap. XII; discussion based upon same art.It is also clear, in the light of the observations made above with reference to private wars, that the particular act of war in question did not exceed the bounds of the right contested. For we have demonstrated that the prize which is under consideration cannot even compensate for the bare losses inflicted upon the Hollanders by the Portuguese. How much greater, then, is the right which should have been ascribed to the States Assembly! For the Assembly was empowered to exact compensation not only for those particular losses, but also for all others suffered by its citizens in all parts of the world and especially in Portugal, through the seizure of ships; its members were also empowered, in their capacity as judges of the war, to impose well-deserved penalties upon the authors of so many ills; and furthermore, they were authorized to exact payment from the Portuguese, no less than from others, for the vast expenditures involved in the entire war against the Spaniards.
Argument based upon Corollary I, Chapter VIIINor does any cause for doubt remain in regard to the persons concerned [in the seizure of the prize]. For that opinion is absolutely true and universally approved which was set forth by the Spanish theologian, Victoria,a in the following terms: if the enemy is unwilling to make due restitution, and if there is no other source from which the injured party can properly recover compensation, he may obtain satisfaction from any source whatsoever, whether from the guilty or from the innocent. “For example,” Victoria continues, “if French brigands shall have seized booty upon Spanish soil and the French King is unwilling, though able, to compel those brigands to make restitution, the Spaniards, with the authorization of their own sovereign, are entitled to despoil French merchants or farmers, howsoever innocent those Frenchmen may be. For though the French State or Prince may perhaps have been blameless at the outset, that state or ruler is now deserving of blame, on the ground (as Augustinea declares) of neglecting to make amends for the wrongful acts committed by subjects; and the injured prince may obtain satisfaction from any member or part of the said state.”
Argument based upon Article III (Part II), Conclusion VIINeither is it possible to impugn the good faith of the Dutch from any standpoint. For no promise was made to the Portuguese in the name of the Dutch State, unless one chooses to place in this category the papers ensuring free transit which were granted to the Portuguese and which we have mentioned in another contextb as testimonials to the candour of the Dutch. Those papers, however, concede nothing more than permission to make journeys from hostile localities to Dutch territory and back again. They do not concede additional permission to pass to and fro between hostile localities and any other place whatsoever, much less between one hostile locality and another. Quite obviously, the reason for this restricted concession was the fact that our exceedingly benevolent leaders wished to advance the commercial interests of their fellow citizens, an objective advantageous also to the public treasury, but did not wish to provide our enemies with an opportunity to enrich themselves, since such a course of action would be not only profitless but even dangerous for those very leaders. Moreover, even though the most liberal interpretation may [ordinarily] be given to benefits conferred by the state, it is generally recognizedc that this principle of liberality is not applicable in the interpretation of the privileges and dispensations of which we are speaking. For such privileges and dispensations, since they are incompatible with universal law, must not be extended to accord with their most far-reaching implications. For the moment, I shall not dwell upon the fact that a rather narrow construction should be placed upon certain other benefits,d too (principally upon those granted at the request of the party concerned), if they involve any new and unusual element or, in particular, any lurking threat to the public welfare. But how much more surely does this warning apply to privileges conceded to enemies, who as individuals are by no means to be favoured, and with respect to whom, moreover, the underlying motive is not only different from the motive usual in such cases, but even of a contrary nature! Nor do I need to point out that, even if the grant in question could be interpreted in the extremely broad sense suggested, anyone who has read the account of the deeds committed by the Portuguese after the grant was made will in any case not entertain the least doubt but that they have shown themselves to be unworthy of such generosity.
Argument based upon Article I, Conclusion VIIIIn regard to the aims sought in the present war, whether we refer to the war as a whole or specifically to the struggle against the Portuguese, it is likewise evident that the States General has aimed solely at the attainment of rights due either to the state or to its citizens, namely: the establishment of a peace devoid of snares when the malice of the enemy has eventually been exhausted, and the maintenance meanwhile, under conditions as tranquil as possible, of a commercial interchange which is not only open to all by nature’s plan but also especially well adapted to the inclinations of our people.
Ded. from Conclusions IV & IIIBy every criterion, then, including the criterion of conscience, the war against the Portuguese is absolutely just; and therefore, the seizure of the prize in question was also just.
Ded. from Article II (Part I), Conclusion IX4 This prize must be regarded as having constituted first of all an acquisition of the state (even though it may have been acquired through the services of some member of the state), up to the point where full satisfaction could be provided for the right defended, which in the present case greatly outweighs the value of the prize taken. Nevertheless,[133′] it was possible for the same prize to become the property of the Dutch East India Company in consequence of a grant made by the state. In a later and more appropriate context, we shall show that such a grant was actually bestowed upon the Company.
Part II of Chapter XIIIAccordingly, the truth of the foregoing assertions, already demonstrated by us with respect to the authors of the war (that is to say, the States General), will be revealed on a much more certain basis if we turn our attention to the subjects engaged in that conflict, such as the East India Company, which obeys the orders of the States General. For it will suffice, in so far as subjects are concerned, if those things are shown to be probable which must be proven as inescapably true when we are considering the authors of a war. Let us pause to develop this point, however, by applying here the principles relative to subjects which have been introduced into the laws of prize and booty from both the primary and the secondary law of nations.
Argument based upon Article II (at close of discussion), Conclusion V, Thesis IVIn the first place, then, it is a generally accepted fact that the individuals who compose the East India Company are subject to the said States General. For all persons within the territory in question have pledged allegiance by oath to that assembly, or else tacitly give adequate assurance, by making themselves a part of the political community governed by the latter, of their intention to live in accordance with the customs of this community and to obey the magistrates recognized by it. Such an assurance (as we have pointed out in another passage)a is no less binding than the spoken word. It was Euripidesb who said:
Another tragediana expressed a similar thought in these lines:
For, as Alcibiades declared, it is most just, ὅπερ ἐδἑξατό τις σχη̑μα τη̑ς πολιτείας του̑το ξυνδιασώζειν, “that we should strive to preserve that form of government which has been handed down to us.”b Augustus, no less truly than wisely, defined such conduct as the duty of a good man and good citizen.c Indeed, even He who is the Way and the Truth did not command the Jews to inquire into the right by which the Romans had taken possession of Palestine; on the contrary, because they were dwelling within the Roman Empire He bade them render obedience to the Caesars, who were at that time the lords of the Empire, as was indicated by the coin stamped with Caesar’s image.d
Moreover, the States General should be obeyed by its subjects not only because the rule of this assembly is at present the accepted form of government, but also because its sovereignty is supported by common law. For the Dutch, and those who have formed a federation with the Dutch, owe no allegiance nowadays to any prince whatsoever. Among these peoples, it is customary for all princely power to originate in a mutually binding oath, and since the death of Philip the Second there has been no prince to whom they have sworn the prescribed oath. In fact, Philip the Third, who wishes to have it believed that he completely and voluntarily renounced his sovereignty over the Flemish peoples, has retained no right at all over them. Nor is it possible for Albert and his wife6 to possess powers in excess of those received in accordance with the will of the States General, since it is perfectly clear that not even any part of a people can be transferred against its will to the domain of another people.a Now, in every case of any kind where there is no prince, nothing is more certain than the fact that all sovereign power is given over to the commonwealth, which is divided into various internal states, or (as Covarruviasb tells us) to the aristocrats and chief personages who represent the whole commonwealth and are correctly designated as a body by the title “States General,” or “States Assembly.”7 “For it makes very little difference,” says Paulus the jurist,c “whether a given act has been performed by the entire body,8 or by the person to whom that body has entrusted the undertaking.”
Ded. from Article III, Conclusion VITherefore, since the persons of whom we are speaking are subjects of the States General, they are sufficiently absolved from responsibility if they do not regard as unjust the war waged by that assembly, always provided that no inexcusable error is involved in such an estimate. The fact that all dutiful and conscientious citizens (for it is on their behalf that the present discourse has been undertaken, the rest of the citizens being unworthy of consideration) are free from the belief that the war in question is unjust, may be proved by means of a very convincing argument, as follows: no one can with a clear conscience take part in, and support with all his might, a war which he considers to be unjust; and the above-mentioned citizens, by playing such a part (not unwillingly, moreover) bear witness to their own favourable opinion of[134′] the war. Furthermore, in the light of the statements made by us a little earliera regarding the cause of this conflict, the quite unimpeachable reasoning on which that opinion is based will be readily perceived by all. Besides, even if the matter were open to question, it would still be obligatory to yield to the authority of magistrates in a doubtful case, and especially to the authority acknowledged to be supreme at the time and place involved; and the Dutch, as we have already pointed out, now recognize no supreme magisterial power other than that of the States General. For these reasons, not only the persons who are at present fighting against the Portuguese, but also those who formerly took up arms against the Duke of Alba and even against Philip himself, with the public authorization of the States General, must be regarded as combatants acting in good faith.
Thesis VThe very nature of the case under consideration necessitates the avoidance here of that detestable practice of adulation which is unworthy of freeborn men and characteristic of persons who seem to have been created for the express purpose of corrupting the finest princely spirits. For such flatterers maintain that there is no such thing as a just cause for rebellion. If they are in earnest, and if they mean to say that no just cause can possibly arise for revolting or taking up arms against him who is or has been the prince, they are threatening every established throne, since at the present day hardly any sovereign power is vested in the same source as in early times. On the other hand, in the case of those rulers who cannot have claimed any valid cause at all, not even the exceptional conditions attending an extremely long interval of power will result in security of conscience. I shall not dwell upon the famous example set by David, who defended himself against Saul, nor upon that offered by the city of Libnah, which withdrew from the rule of Jehoram.a But what will our opponents say in regard to Abraham? Sacred history clearly bears witness to the fact that when the kingdom composed of Sodom and neighbouring cities had been for twelve years subject to Chedorlaomer, King of the Elamites, that kingdom revolted against his rule, an event which in turn caused Elam to move against Sodom. Shall we believe, then, that Abraham, a man of the most saintly character, gave aid to rebels;9 that he placed obstacles in the path of a king who was rightfully punishing his own subjects; in short, that he involved himself in a war against the said king for which there was absolutely no justification? Or is there more truth in the words of Saint Thomas Aquinas?b According to the Angelic Doctor, the rule of a tyrant is unjust, because it is directed to private advantage instead of to the public good, and therefore those persons who stir up strife against his régime are falsely charged with sedition; for it would be more accurate to say that the tyrant is seditious, since he feeds his subject people upon discord and civil dissension in order that he himself may rule in greater security. Nor is there any need of arguments to prove that the name of tyrant befits not only those individuals who usurp through violence a sovereign power that is not rightfully theirs, but also those who abuse with violence their lawful sovereignty;c that is to say, the term is applicable in cases where the fault lies not in the title to power but in the exercise thereof. Even when the sovereign concerned is the Pope or the Emperor (so Panormitanusd tells us), and even in the eyes of his own subjects, it is not the mere fact that the Pope or Emperor is waging a war which makes that war seem just; for these potentates, too, are capable of transgressing. On the contrary, there must be an underlying cause for the war.
Consequently, although we shall not say that the sovereign authority of the prince may rashly be set aside, or that injury of any kind suffices to justify so grave a measure, it must nevertheless be firmly denied that all persons who have ever rejected princely authority are guilty of the crime of rebellion. For such a sweeping conclusion is subject to a number of qualifications, two of which we shall discuss forthwith.
New explanationIn the first place, even if it were in some way possible for a whole state to sin against its prince, the state that sinned thus still could not be called rebellious.a For the prince exists through and for the state; the latter does not exist through or for the prince.b Therefore, the reason for condemning as rebels those persons who have failed to obey the prince,c consists in the fact that such persons are offending against authority derived from the state, and are injuring in the person of one man, not a single individual but the whole community. Our opponents themselves,d when they seek to demonstrate that there can be no just cause against a prince, rely solely upon the following argument: there can be no just cause against the fatherland; and the state [or fatherland] is closely identified with the prince. By the same token, it is no more correct to say that a whole state is rebellious, than it would be correct to speak of a given individual as committing an injury against himself.e In fact, if it were worth our while, I could cite many examples, scattered throughout all the records of history, of peoples who shook off the rule of some sovereign and set themselves free without being described as rebel peoples.f Furthermore, the argument drawn from pontifical law and employed by some authorities in discussing this question, to the effect that it is in nowise possible for the members of a body to separate themselves from its head, is quite unsuitable when applied to sovereignty derived from human sources; for (as Vάzqueza rightly observes) such an analogy involves no obstacle that would prevent the state as a whole from serving as its own head. The state can exist apart from the prince; but the prince can be created only by the general consent of the state. As for certain additional objections, frequently included in harangues against government by the people, they are in no sense pertinent here; for not[135′] all popular governments are bad, nor is every régime devoid of a prince, a popular government.
There is another qualification to be considered, however—one which is pointed out by the very proponents of the theory that princes ought to be obeyed absolutely and at all times. For the personsb who support this theory explain that it is applicable only when the power of the prince is unadulterated and supreme, so that it does not hold good if his sovereignty is restricted by some other power vested in the laws or in the magistrates. It was for this reason that the Romans proceeded against the Volscians, Latins, Spaniards, and Carthaginians who attempted to withdraw from the Roman Empire, as they would have proceeded not against rebels but against lawful enemies, in warfare formally declared and proclaimed, even at a time when these peoples were tributaries of the Romans, were paying taxes, and were under an obligation to respect the majesty of the Roman People. Take as examples also, on the one hand, the Spartan Ephors, and the Roman and Venetian Senates; on the other hand, the rulers Pausanias, Nero, and Falieri.10 Will not everyone agree that the members of the latter group were more truly rebels than those of the former group? Moreover, Cajetanc declares that the statutes governing many localities are of such a nature that kings are kings only in name. Again, according to Proculus,a not every nation that acknowledges the supremacy of another nation, ceases to be free. Many other authoritiesb express similar views.
To be sure, we do not deny that for all good citizens the authority of the prince must take precedence over the authority of any inferior magistrate in cases that are at all doubtful; but, according to the same line of reasoning, the common decision of the state as a whole should have more force among those citizens than the will of the prince alone, since the power of the latter is derived from the power of the state.c In like manner, it is right that the authority of the laws handed down by our forefathers should take precedence over the authority of the prince, to the same extent that the commands of law are characterized by more sanctity and less corruption than the commands of individuals.d
Furthermore, if the principate has already been abolished, and a republican form of government set up, the course properly to be followed by citizens in doubtful cases will be indicated by the laws that favour the claims of liberty:e and rightly so, since liberty is derived from nature while the power to command is derived from human acts, and since those things which have a natural origin are preferred and given the benefit of a favourable presumptionf wherever doubt exists. Later authorities,g too, have laid down the following doctrine: no preceding judgement adverse to liberty shall be brought forward against subjects who are engaged in litigation regarding their own status. This principle holds good, above all, with reference to that form of liberty which is neither immoderate nor unbridled (for liberty attended by these attributes is more accurately called “licence”), or in other words, with reference to that free status which is confirmed by the princely power of the governing officials, by the authority of the country’s most important men and by the goodwill of the citizens. The foregoing statements, although they are formulated in general terms, can without any difficulty be specifically applied to our own thesis.
For the rest, the cause of our governing body should be rendered still more acceptable to good citizens by the fact that it has been defended, both in writing and in action, by almost all neighbouring princes.a For one can scarcely believe that those princes would have encouraged a war of the kind in question if it had not been based upon an absolutely clear right. Where there is no such basis, indeed, it is above all needful,
The tacit admission made by our enemies themselves has some force in regard to this same point. To be sure, when the disturbances mentioned first arose, the said enemies raged against their captives, imposing sentences for high treason and exacting capital punishment; but as soon as our state had acquired unquestionable strength and was able to oppose the foe with a well-ordered martial force, that same foe turned to the practice of ransoming captives, to the laws governing the acquisition of spoils, and to other institutions affecting reciprocal relations in time of war. Now, all of these institutions are instruments brought into use only in connexion with a just enemy: that is to say (according to the interpretation of the term adopted by us in another context),c an enemy supported by magisterial authority which is at least acceptable after the probabilities have been weighed. Moreover, such an interpretation is correct, if Cicerod does not mislead us by describing a lawful enemy as[136′] follows: one who is possessed of a state, [a senate,]11 a treasury, general support and concord among the citizens, and some rational basis on which—if the occasion permits—peace and a treaty may be founded.
There is, then, no motive that might impel our citizens to adopt an unfavourable opinion regarding the war against Philip, and far less, regarding the war against the Portuguese. The validity of our conclusion is confirmed, in particular, by the fact that ordinary reason deduces from incontrovertible natural principles, these two dictates: freedom of commerce must not be impeded, and good faith must not be violated. For everyone is aware of the reports indicating that the Portuguese indulge daily in both of these forbidden practices.
Having established the good faith of the said citizens, we find that we have disposed of all the other points which remained to be settled. For,Argument based upon Article IV, Conclusion VI from the standpoint of subjects acting in good faith, a war is just when it is waged against those whom the magistrates regard as enemies; and the Portuguese, both collectively and individually, are regarded as enemies by the States General. The truth of this last assertion is clearly indicated by the fleet dispatched under the command of Pieter van der Does to the island of Santo Tomάs and to Brazil,a as well as by the many ships and great quantity of merchandise that the warships of the States General took from the Portuguese; and it is, moreover, self-evident that whenever a prince is an enemy, his subjects are also enemies.
On the other hand, I shall not categorically deny the possibility of good faith on the part of the Portuguese. For they may perhaps be of the opinion that Philip, their prince, probably has just grounds for his war against the Dutch, although it would be difficult for them to arrive at such a conclusion, and especially difficult for the persons dwelling among the East Indians, in view of the injuries openly committed.
Ded. from Article II, Corollary, Chapter VII Argument based upon Article IV, Conclusion VIIIn this sense, indeed (with reference to the citizens, whether Dutch or Portuguese), the war may have been just and waged with a clear conscience, on both sides. In such a war, however, that is licit which is permitted by the respective magistrates; and the States General does concede that it is permissible to despoil the Portuguese individuals who owned the carack in question.
Dated April 2, 1599Proof of this concession is contained in the edict promulgated by the aforesaid States General of the United Provinces, after the Spaniards furnished the ultimate evidence of their own perfidy by violently seizing the vessels which had approached under assurance of public protection, and by delivering the men on board into imprisonment and the most bitter kind of slavery.a On the basis of this evidence, the States General was able to show12 that the Spaniards and all persons favouring the Spaniards or adhering to their cause, had been rendered so savage by insatiable lust for dominion (a lust from which no nation was safe) that, moved by their failure thus far to subjugate the Dutch and their allies through any violent or fraudulent means, they were now employing the same violence and trickery, even in contravention of their own plighted faith, in an effort to exclude those other peoples from trade with any part of the world. Accordingly, since it was the purpose of the States General to curb such savage endeavours by taking the offensive against the Spaniards in the kingdoms and provinces which the latter had occupied, and by exacting reimbursement and reparations for the losses inflicted, with the aid not only of vessels belonging to the state but also of the individuals whose interests were concerned, an order to this effect was issued by the said assembly, and it was deemed absolutely necessary to bar all transportation to and fro among the Spaniards as well as among the partisans and adherents of the Spanish cause, prohibiting the conveyance of ships or merchandise of any kind to such persons, whether by land or by sea, in any manner whatsoever. This plan of action was in conformity not only with the public law of nations,b Roman law, and accepted usage among belligerents, but also with the edicts published earlier by the States General itself and by the Queen of England. Accordingly, the aforementioned Edict of 1599 declares that all men and all goods subject to the dominion of the King of the Spanish realms, in whatsoever place the said men and goods may eventually be located, are to be regarded as just spoils. Moreover, in the same document, a strict prohibition and interdict is once more laid upon the conveyance, carrying, or transportation of ships or goods or any merchandise, by land or by water, directly or by a roundabout route, under any pretext or excuse whatsoever, by any or all persons without exception, of whatsoever condition, realm, or region, to any port, town, or place belonging to the enemy (whether it be situated in the Kingdom of Spain, in that of Portugal, or in some other European kingdom) and subject to the power of the present King of the Spanish realms or to the rule of the Archduke [Albert] and his wife [Isabella]; and this prohibition is imposed under pain of loss of the said ships, goods, and merchandise, together with other penalties set forth in the edict. The States General furthermore orders that the officials in charge of maritime affairs (known collectively as the Admiralty Board), who ordinarily take cognizance of cases of this kind, shall pass judgement, in accordance with the prescriptions laid down in the said edict, concerning intercepted goods originally destined for the enemy.[137′]
[Interpretation of letters of free transit] dated September 12, 1603The interpretation placed by this same assembly upon the letters of free transit granted to the Portuguese people conforms to the Edict of 1599.a For, in view of the fact that some persons were making use of those letters in a manner foreign to their intent and for forbidden purposes, the States General issued the following pronouncements: the documents in question were to be interpreted in such a way as to assure complete security, under public guaranty, for Portuguese persons and goods found within the territory of the United Provinces of the Low Countries, as well as for those goods which the same Portuguese persons were merely transporting from that territory to other lands, after obtaining special permission in accordance with the custom of the Low Countries; but if the Portuguese should be found moving merchandise either from hostile localities to other hostile localities (for example, from the Island of Santo Tomάs or from Brazil to Lisbon, or vice versa), or else from hostile localities to others not hostile, or from the latter to hostile destinations, such Portuguese men, ships, or goods as might be taken in the course of that transaction would enjoy no publicly pledged security, for on the contrary, once captured either by ships belonging to the state or by other means, they would be treated as spoils of war.
Consequently, it is clear that the carack Catharine and its cargo of merchandise fell by a threefold right into the possession of the captors: first, because that vessel and cargo belonged to the Portuguese, subjects of the King of Spain; secondly, because the said vessel and cargo were coming from Macao, which is a Portuguese colony and should therefore be regarded as a hostile locality; thirdly, because their destination was Lisbon, a city of Portugal.
As for the closely related question of whether or not the persons who captured the carack had orders to do so, it is obvious that any discussion of this point would be superfluous. For in war every duty incumbent upon subjects concerns either the foe or the magistrates of the subjects themselves; but the question of whether or not an order was given is plainly a matter which in nowise concerns the foe, for whom it should suffice that cause for attack existed; and therefore, since the Portuguese occupy the status of a foe in their relation to the Dutch and since they were indeed liable to despoliation, the problem of whether they were despoiled by command or independently of any command is no concern of theirs. This distinction was quite pertinently brought into play by the Carthaginian Senate in reply to the Roman inquiries regarding an act committed by Hannibal, when one of the Carthaginian nobles (so we are told) answered [in part] as follows:a “In my opinion, however, you should ask, not whether Saguntum was besieged as a result of private or of public policy, but whether it was besieged justly or unjustly. For inquiry as to whether our fellow citizen has acted on our authority or on his own, and the infliction of punishment upon him in that connexion, are matters which concern us alone. We have only one question to discuss with you, namely: was his act permissible under the treaty?”
Accordingly, from the Portuguese standpoint, there is no doubt but that it was permissible to do what was actually done [in regard to the carack Catharine]. In any case, both the States General of the United Provinces and the States Assembly of Holland (the entities properly concerned with this secondary question) were so far from condemning the action of the East India Company and its servants, that they sanctioned it not only by intervening in the apportionment of the prize but also by the bestowal of rewards and honours. Thus, even if no order had been given, the lack of such authorization would nevertheless have been counterbalanced by the execution of a publicly advantageous enterprise, and by retroactive approval,a so to speak.
However, it is not true that no order was given in advance of the act; for it is a well-known fact—and one confirmed,Dated September 1, 1604 moreover, by a decree of the States Assembly of Holland—that long before Heemskerck set out on his voyage, the Directors of the East India Company were warned by the said Assembly that the Company must make preparations for the protection of its business and must arm itself with that end in view, in such a way that it would be in a position not merely to ward off hostile attempts on the part of the Portuguese but also to take the initiative in making war upon the latter. Here, then, we have an order issued by a supreme magisterial body, a point which should settle the matter beyond all doubt.
Furthermore, nothing would have been easier, if such a measure had seemed necessary, than to obtain from our most illustrious Prince Maurice of Nassau, in addition to the above-mentioned order, letters granting the fullest authority to wage war, such as are customarily denied to no one. The Dutch, however (as we pointed out in another[138′] passage,b also), have been so consistently mild-tempered that they disregarded the grounds for public war, in so far as was possible, seeking only to be safe from injury by the Portuguese and resolving to have recourse to armed violence solely in case of absolute necessity. Nevertheless, it may be argued that the act in question was authorized by such letters as were received, even if other authorizations were lacking. For certain letters were indeed granted to Heemskerck, the admiral of the fleet, and certain others to the commanders of individual ships, by the aforesaid Prince Maurice, whose supremacy is derived both from his lineage and from his personal exploits, and who undoubtedly possessed the right to command that war be waged, according to the arguments elsewhere propounded by us,a since by order of the States General he is invested with supreme powers for warfare on land or sea. The letters addressed to Heemskerck forbid him to join battle with anyone, unless he is compelled to do so by injuries essayed against himself, his men, or his ships; but in the event that such an attempt is made, he is not merely permitted but even commanded to avail himself of all means that he may consider necessary either for the defence of his person, men, and ships, or for the reparation of injuries. Consequently, if individuals who have thus manifested their hostility shall fall into the power of Heemskerck, he shall either bring them before the Prince, or make such disposition of them as he may deem expedient and suitable to the occasion. For, in view of the fact that the law of all nations permits the use of force to resist force, the Prince declares that he also considers this practice to be just and honourable.Dated November 20, 1600 Moreover, the men in command of the individual vessels are invested by the letters of the Prince with the powers proper to captains, or centurions; and this grant of power is given in conjunction with the order that they shall select sailors and appoint officers for the respective ships in accordance with their own judgement. The same commanders are furthermore forbidden to take up arms, unless it shall so happen that some person makes a hostile attempt to prevent them from engagingin navigation or in commerce; for, in the event of any such attempt, they are under strict orders to spare no effort for the subjugation of the persons who have conducted themselves in this hostile manner, with the additional proviso that the goods thus captured shall be conveyed by the said commanders to the territory of the United Provinces, to be awarded as prize by the maritime judges of the locality to which the goods are brought, or else disposed of in some other way that circumstances may render advisable. Briefly, the commander of each vessel is ordered to discharge all of the functions proper to a naval captain.
When a prince gives his consent to everything necessary in order to obtain satisfaction for injuries, and when in so doing he invokes the law of nations, one must assume that he is consenting to the exaction of reparations not only from the individuals who actually inflicted the injuries but also from all persons upon whom the law of nations imposes the obligation to make such reparations. For the alternative interpretation—namely, that we are to pursue and overtake the identical persons who harmed us—is difficult to put into practice in any situation, and almost impossible to apply in the maritime case to which we refer. Nor is it correct to suppose that orders authorizing the waging of war are of narrower import than [letters of] reprisal. Therefore the effect of the orders received is as follows: whatever acts could have been committed by private individuals under the law of nations [and have been committed in the present case], those individuals shall now be held to have committed with retroactive public authorization and in circumstances equivalent to a decree of war.
Furthermore, we have shown that,a according to the law of nations, acts of the state or the magistrates impose an obligation upon individual subjects, while acts of the subjects—which cannot go unpunished without guilt [on the part of the state]—impose an obligation upon the state as a whole, so that one citizen is in this sense placed under an obligation by the act of another citizen. It should be remembered, too, that the expression “reparation for injury,” implies not only exaction of compensation for losses and expenses, but also punitive measures, which undoubtedly come within the scope of the state’s power to command. For all of the writersb who interpret this point are agreed that the state has a right to inflict punishment upon foreigners in their turn, according to their deserts, as well as upon its own citizens.
Let us ascertain, then, whether or not any act classifiable as one of those which the States Assembly or the Prince intended to include under the head of “injuries” was committed against Heemskerck, or his ships, or persons properly to be numbered among Heemskerck’s men.
In this connexion, I shall forbear to stimulate ill will against[139′] the Portuguese by calling to mind the pitiful spoils discovered in that very carack,a spoils previously stripped from Hollanders whom the Portuguese had strangled and drowned near Macao, in contravention of every precept of divine law and good faith. Nevertheless, the connexion of those Hollanders with the fatherland and the further fact that they had been sent out by the same Company that was retaining Heemskerck’s services, made it impossible to regard them as strangers;b nor was it any less fitting for the Admiral and all his sailors to be deeply moved by the memory of that crime, than it was certain that the States General and the Prince, if they could have been summoned to witness the affair, would have decreed war because of it and would have entrusted the conduct of the war to that same Commander and to his men. I shall also refrain from describing again the manner in which the Portuguese intercepted certain companions attached to Heemskerck on his preceding voyage (when these men were being sent from Banda to Amboyna),c and foully butchered one of them. Yet I am not unaware of the fact that, according to the laws,d he who avenges injuries inflicted upon his friends is avenging not only their wrongs but also, in a sense, his own; and I realize that this principle is particularly applicable when we find ourselves in such distant regions, far from kindred and home, so that we cherish all of our fellow countrymen as if they were intimate friends, the ties of the fatherland binding us the more firmly in proportion to the distance separating us from it. Nor shall I even recalle how frequently the men placed in charge of earlier expeditions by this very Company were forced to join battle with the Portuguese. [In short, our discussion here will be confined strictly to the following question:] What injuries, of what degree, were suffered by Heemskerck himself and by his sailors and captains [during the voyage when the capture of the carack took place]?
Hardly had Heemskerck and his men sailed past the Canary Islands, when they encountered a Spanish fleet composed of thirteen armed vessels. The Spaniards, correctly deciding that those whom they saw were Dutchmen bound for the Indies, rushed headlong to attack them as enemies. The Dutch ships were pierced with shots from cannon and rifles, and were even besieged in hand-to-hand combat. Some of the sailors were killed; not a few were wounded. Moreover, the foe very nearly gained possession of the ship called The Red Lion; but Heemskerck came to its aid in the nick of time, though some of his subordinates were slain before his very eyes, while others were mutilated. The merchandise, the ships, and the lives of Heemskerck’s band were forcibly imperilled by that encounter. These evils were augmented by the fact that The Red Lion, in consequence of the disastrous damages inflicted, was compelled to abandon the fleet and return to the fatherland. Furthermore, on the day after the battle, this same vessel, which was second only to that of the Admiral, once more had an encounter with the Spaniards, and barely succeeded in extricating itself from the gravest peril. Nor, indeed, was it able to rejoin the Dutch fleet at a later date, a great inconvenience in the expedition that had been undertaken.
These events, to be sure, were brought about by the Spaniards. But it cannot be denied that the latter are a people who have not only the same ruler as the Portuguese but also common causes for war, and common grudges, against the Dutch; and it was Spanish aid (as we have already pointed out) that was invoked by the Portuguese to combat the Dutch even in the East Indian regions. Therefore, we are justified in imitating their own example and failing to make any distinction between the two peoples. From the works of a famous jurista —and, indeed, from the law of nations itself—we derive the following maxim: just as it is permissible to defend one’s own allies, so it is permissible to attack the allies of the perpetrators of crime and all persons whatsoever who have a share in the criminal guilt or criminal acts of aggressors. The force of this maxim is increased in the present case by the fact that the harm done by the Spaniards to the Dutchmen who were seeking the East Indies, was undoubtedly done at the official recommendation and request of the Portuguese, or at least for their gratification.
On the other hand, with respect to those of Heemskerck’s men who were captured under pretence of commercial negotiations and held in slavery by the King of Dammaa without any antecedent cause based on war, I shall dismiss the complaint against the Portuguese as insufficiently established, even though there is not the least doubt but that the King of Damma himself placed the blame for that affair on them. In short, I shall confine my arguments exclusively to facts that I have seen clearly proved.
When the Portuguese heard that the King of Johore was disposed to allow Heemskerck to enter into commercial relations, they assured the King, through the envoys whom we have mentioned elsewhere,b [140′] not only that all Hollanders were men of an exceedingly rapacious character, but also that Heemskerck had been sent out as a spy to explore the territory which the said Hollanders would attack with a great naval force and take into their own possession at some future date, after expelling the present possessors. If such calumny does not constitute an injury, what conduct can be called by that name? And who is more directly affected by the calumny than Heemskerck himself and his companions, even though in a broader sense its effects are felt by our whole nation? The Portuguese furthermore threaten to resort to war in the event that anyone shall grant admittance to the Dutch. Is this threat not also a grave injury? Nor do they merely threaten. On the contrary, they actually make war, employing the same ships as a twofold means of despoiling the people of Johore and striving to cut off the Dutch from access to that region. As we explained in an earlier context,a real injury is inflicted when one party is driven to accept calumnies against another, and when any person is debarred from that which is his right under the law of nations.
Therefore, when we approach the question from the standpoint indicated by the letters of authorization addressed to Heemskerck, we find that there is no doubt as to the existence of injuries calling for reparation; and when we consider it from the standpoint of the orders issued to the naval captains, we see plainly that certain persons were engaged in activities detrimental to commerce. Moreover, all of the Portuguese, collectively and individually, but especially the Portuguese who were situated in that particular part of the world, were responsible for the injuries in question, not merely because of their failure to punish the crimes of certain individuals,b but also because of the fact that an embassy and ships were dispatched by authorization of their state and in accordance with a decree issued by the officials who govern Malacca. Consequently, there can be no doubt as to the measures permissible against the Portuguese carack under the orders given, if the question is considered either in the light of the letters addressed to the Admiral, which confer (and this is the weightier argument) the right to make decisions even regarding the disposal of persons, or in the light of those addressed to the various captains, which refer expressly to prize.
Thus a mandate to wage war was entrusted both to the Admiral and to his captains; and also, through those officers, to the sailors, whom the officers were of course authorized to select, by virtue of that mandate,c just as truly as if they had been in command of an army on land. Moreover, the said sailors were sworn under military oath to spare neither their lives nor their persons in disregard of the needs of the captains or the orders of their superiors. We shall make no mistake, then, in agreeing with Ulpiana that not only ship’s captains and commanders of triremes but all the sailors and oarsmen of a fleet, too, are classed as soldiers.
It should also be noted, however, that even if no order specifically concerned with prize had been issued, nevertheless, owing to the fact that both the Admiral of the fleet and the captains of the individual vessels had been granted jurisdiction by the state, these commanders would have been empowered—in the absence of other judges, and in defence of the rights of subjects as well as of their own authority—to impose punishment upon Portuguese offenders against that authority, and to seize the property of such offenders. According to experts in the fields of both canon and civil law,b this conclusion is especially tenable in the event that it is supported by a decree issued in advance; and inDated December 4, 1602 the present case such a decree was issued by the Admiral and rendered duly effective by the supreme naval council which assisted him in an assessorial capacity. Gaius Pinariusc acted more or less on this very principle. For, despite the fact that he had been left at Henna in Sicily to govern not the city but the garrison, when he perceived that a rebellion on the part of the townsmen was impending and that neither the Roman People nor even the Consul had the power to undertake an attack, he not only inflicted capital punishment for that incipient treachery, but also handed over the entire city to be plundered by the soldiery.
Ded. from Corollaries II and III, Chapter VIIIAccordingly, since both the cause of the Dutch and that of the Portuguese were supported by public authority, and since the Dutch cause was sanctioned by every consideration of good faith, it follows, if one assumes the existence of equal good faith on the part of the Portuguese, that the things captured by either party were not merely susceptible of retention with a clear conscience but even became in actual fact the property of the captors, in accordance with the secondary law of nations.
Thesis VIFor the war in question is not a civil but a foreign war, inasmuch as the Dutch State is distinct from that of the Portuguese. Indeed, even the war against Philip was not a civil war; for as a result of that conflict no part of the State of Holland remained loyal to Philip and he himself was declared to have lost his sovereignty over Holland. Cassius, in his Oration to the Rhodians (as it is quoted by Appian),a maintains that when a state fights for its freedom against the despotism of one individual it is engaged not in civil dissension but in open warfare. The war of the Romans against the Tarquinsb and the allies of the Tarquins, was nothing less than civil [foreign?]13 warfare; and accordingly, we read that spoils were acquired by both parties, and that even the Etruscans (who were adherents of the Tarquins just as the Portuguese are adherents of Philip) were despoiled by the Romans. Moreover, our own Bartolusc (who is followed on this point by other authorities), after declaring in a closely preceding passage that the cities of Etruria were absolutely subject to the Emperor in law and also partly subject to him in fact, nevertheless addedd that in the event of war between the Emperor and[141′] a city assuming itself to be free (such as the city state of Florence, for example, or that of Pisa), seizure of spoils would be permissible under public law.
Argument based upon Article II, Conclusion VIIINor will anyone imagine that, in the present case, either the East India Company or the men who commanded the ships as representatives of the Company, were inspired by any purpose other than that of lending their services and their allegiance to the States General, which was in its turn desirous of providing both for public vengeance and for the rights of the Company itself.
Ded. from Conclusions IV and IIIIn the light of all these observations, it is apparent that the war, in so far as concerns the aspects that can be considered here, is just for the subjects involved, and that the prize in question was justly acquired. The truth of both deductions is acknowledged by that exceedingly judicious man, Fernão dal Buquerque (the Governor of Malacca),Dated March 9, 1603 in a letter addressed to Heemskerck. Dal Buquerque says: “You have captured a valuable vessel. Enjoy her, since she was captured in just warfare.”
Argument based upon Article II (Part II), Conclusion IXNow, we have already stated that spoils taken in a public war are acquired—in a direct sense, that is to say, and ipso iure —for the state; but we have also indicated that it is possible for such spoils to be converted, either in whole or in part, by special assignment or by a general law, into an acquisition of the very individuals through whom they first became an acquisition of the state. In fact, according to a very old custom of France and the Low Countries, and also under a statute expressly established by the Dutch, a fifth part of the spoils taken by command of the state but through the instrumentality of privately equipped vessels, is owed to the state; a tenth part is the due of the admiral; and the remainder is divided among the ship-masters, captains, officials, and sailors, in the proportions consonant with custom or with such agreements as may have been adopted.a Therefore, since the vessels employed in the capture of the Catharine were the property of the Dutch East India Company itself, since the ship’s captains and the sailors were all paid employees of the Company, which also supplied the arms—in short, since the entire risk and expense was the concern of that Company and the latter was not promised any reward by the State—the whole of the prize,Ded. from Corollary, Chapter X aside from the portion specifically excepted and the share due the sailors, belongs to the East India Company, not only in virtue of the above-mentioned Dutch statute, but also by universally accepted law.
Dated September 9, 1604The foregoing inference is in accord, first of all, with the Opinion handed down by the Admiralty Board, whose members declared— after issuing at the request of the Company a summons to all parties concerned in the case, and after conducting a trial at which one of the parties failed to appear—that the prize in question was held to be a just prize, justly acquired. Secondly, that same inference is in conformity with the Decree promulgated by the States Assembly of Holland [on September 1, 1604].a For even though the right of the public treasury was brought into the controversy as a factor opposed to the right of the Dutch East India Company, the seizure of the prize was approved in the most laudatory terms, and the Assembly gave orders to the State Treasurer, the other Treasury officials and all the magistrates, that this prize and whatever spoils might in future be taken in the East Indian region, should be regarded as acquisitions obtained in a public war, and that the disposition of such spoils should be left to the discretion of the States General of the United Provinces and of the Admiralty Board.
Part III of Chapter XIIIThe observations already set forth ought surely to suffice for our discussion of the question propounded at the outset [regarding the justice of the case under consideration, on the basis of the public cause of the fatherland]. Nevertheless, in order that no possible grounds for dispute may remain, we shall add this further assertion: even if the said case be considered apart from the cause defended by our governmental assemblies and from the orders issued by them, the war was in any event not only just but also public in character, and the prize was acquired for the East India Company.
Argument based upon Article II, Conclusion V See also discussion thereon, in Chap. vi, at end.This assertion is confirmed by the law of those [East Indian] peoples to whom the Company lent aid in time of war, through its servants. There is in India a kingdom called Johore, which has long been considered a sovereign principality, so that its ruler clearly possessed the authority necessary to conduct a public war. This ruler asked for help in warfare, from the Hollanders who had come to his land with their ships. Now, we have shown in another passageb how well it accords with nature’s plan and with human brotherhood that one person should give aid to another, and therefore we readily see that the entrance of the Dutch into the war as allies of the King of Johore was permissible. One may go farther and say that, since the Hollanders were well able to assist him thus, they could hardly have remained guiltless while withholding assistance.
This is the inference to be drawn whether we consult that page of Holy Writa which bids us deliver the innocent from destruction, or whether we turn to the philosophers,b who maintain that there are two kinds of injustice: the kind characteristic of persons who inflict injury; and the kind characteristic of those who fail to ward off injury, when they are able to do so, from the victims upon whom it is inflicted. For he who neither repels nor resists injury when such resistance lies within his power, is as gravely at fault as if he were forsaking his parents or friends or native land,c since (according to the aforesaid philosophers) the contention that one must have regard for one’s fellow citizens but not for foreigners, is assuredly equivalent to repudiation of the universal bond of human fellowship, a bond which one cannot repudiate without being adjudged impious toward God Himself, the Author thereof.[142′] Our jurists,d too, are of the opinion that the person responsible for such an omission shares in the guilt attaching to the injurious act; and the Church Fatherse hold that he who has failed to resist injury to his fellow man is no less culpable than the individual who inflicts that injury.
According to Aristotle,f this principle is based upon particularly firm grounds when the very persons on whom injury is now being visited have previously bestowed some benefit upon us. What, then, shall we suppose that Aristotle would have said of a case in which one party undergoes injury from others precisely for the reason that the victim has conferred a benefit upon us? For that is exactly what has happened to the East Indians. Both the King of Johore and the [East Indian] nations elsewhere mentioned by us,a are being ravaged by the Portuguese with slaughter and rapine on no other pretext than this, that the said ruler and nations granted admittance to the Dutch. In the light of these arguments, is there anyone who will deny that the injuries suffered by these East Indians are properly the concern of the Dutch?
Thesis VIIOr do we perhaps believe that we have nothing in common with persons who have not accepted the Christian faith? Such a belief would be very far removed from the pious doctrine of Augustine,b who declares (in his interpretation of the precept of Our Lord whereby we are bidden to love our neighbours) that the term “neighbours” obviously includes every human being. Moreover, the famous parable of the good Samaritan which is contained in the Gospels,c teaches us that the obligations of humane conduct are not dispelled on grounds of religion. Accordingly, not only is it universally admitted that the protection of infidels from injury (even from injury by Christians) is never unjust, but it is furthermore maintained, by authoritiesd who have examined this particular point, that alliances and treaties with infidels may in many cases be justly contracted for the purpose of defending one’s own rights, too. Such a course of action was adopted (so we are told) by Abraham, Isaac, David, Solomon, and the Maccabees.e
Ded. from Article I, Conclusion VIIn any case, it is certain that the cause of the King of Johore was exceedingly just.f For what could be more inequitable than a prohibition imposed by a mercantile people upon a free king to prevent him from carrying on trade with another people?a And what would constitute interference both with the law of nations and with the distinct jurisdictions of different princes, if such a prohibition does not? Therefore,Ded. from Article II, Conclusion VI since the injury in question was inflicted upon the King of Johore with official authorization, since he was also formally threatened with war as the penalty for failure to comply with the order, and since war was forthwith begun against him, he rightly regarded the Portuguese—collectively and individually—as enemies;b for no one will deny that those who have decreed war against us are indeed our enemies. Consequently,Ded. from Article II, Conclusion VII it was not necessary for this king to issue a declaration of war; and it was particularly unnecessary in view of the fact that the Portuguese had already besieged his ports with hostile ships and ravaged his shores.Ded. from Article III, Conclusion VII, & Corollary I, Chapter VIII Thus there is not the slightest excuse for doubting that the Portuguese were open to despoliation under the auspices of the ruler of Johore, since they were obligated by those crimes to give compensation for costs and damages, and to pay in addition a penalty for such flagrantly injurious conduct.
Ded. from Article I, Conclusion VIII See discussion thereon.Now, just as the King himself acted with excellent motives in striving to uphold his rights and protect his subjects, so the kindness of the Dutch in coming to his assistance was similarly laudable. In fact, there is nothing that serves the cause of the true religion better than such acts of kindness. Care must be taken to keep men safe, lest the hope of converting them (as the Church Fathers were formerly wont to say) should perish with their bodies. The Indian peoples must be shown what it means to be a Christian, in order that they may not believe all Christians to be as the Spaniards are. Let those peoples look upon religion stripped of false symbols, commerce devoid of fraud, arms unattended by injuries. Let them marvel at the faith which forbids that even infidels should be neglected. In achieving these ends, we shall be preparing men for God.
Deds. from Conclusion IV; Conclusion III; Article II (Parts I & II) of Conclusion IX; & Corollary in Chapter XThus, from every standpoint, the war was just both for the King of Johore, and for the Dutch as defenders of that King. Therefore, the seizure of the prize was also just. To be sure, by natural law the right to that prize was vested in the ruler of Johore himself; but it was also capable of becoming a Dutch right, through a grant on his part. Moreover, since war was waged on his behalf by means of ships belonging to the East India Company, at the Company’s expense and at its peril, too (in so far as any unfavourable turn of fortune was concerned), as well as by the exertions of the Company’s servants, without any formal agreement as to compensation, the commonly accepted usages of war,a confirmed by natural equity, quite clearly indicate that the prize in question was acquired ipso iure for the said Company.
Moreover, the statements just made with reference to the part played by the East India Company in this matter, may likewise be applied to the part played by our governmental assemblies, as follows: the prize was acquired at the command of those assemblies, on the grounds furnished by the war waged in the name of Johore, at the expense of the Company, for that Company itself. Indeed, the justice of such a title to[143′] acquisition is so fully sanctioned that learned authoritiesb bestow special commendation upon the Roman Empire precisely because the Empire strengthened itself at the expense of its enemies, in the process of protecting its allies. The Spaniards, as allies of the Tlascalans, based their claims against [other] Mexican Indians on this same title;c and the Portuguese themselves did likewise in many East Indian regions.
Having thoroughly examined these questions, we conclude that the war in which the Portuguese carack and its cargo were captured was just in every respect, not merely for our government but much more so for the East India Company, regardless of whether that war was public or private, and of whether—assuming that it was public—it was waged on behalf of the fatherland or on behalf of allies; and we furthermore conclude that the Company itself became the owner of the above-mentioned prize, from the standpoint of all law.[144′]
[1. ]Ordinum. See note 3, p. 245, supra.
[a. ]De Jure Belli, 7.
[b. ]De Potestate Civili, 7; also discussed by Covarr., Practicae Quaestiones, i, concl. 1; see in discussion of Law X, Chap. ii, supra, p. 44.
[a. ]Covarr., ibid. concl. 4; Vάzquez, xx. 24 ff.; ibid. xlvii. 5; Durandus, De Origine Jurisdictionum.
[b. ]Vict., De Jure Belli, 6.
[c. ]Henry of Gorkum, in Pref. and in Prop. 12, ans. to last arg.
[d. ]So asserts Vάzquez, xlvii. 11.
[e. ]Vict., De Indis, Pt. I [Sect. III], 16.
[f. ]De Jure Belli, 8.
[g. ]Ibid. 9.
[a. ]Pract. Quaes., iv. 3.
[b. ]On Dig. I. i. 5, n. 18.
[c. ]Sylvester, on word Papa, iv; Torquemada, III. x; Vict., De Potestate Papae et Concilii, 23–4.
[a. ]Vict., De Potestate Ecclesiae, Qu. 3, n. 2; Covarr., Pract. Quaes. i. 2; and in c. peccatum, § 9, n. 6; stated by Cajetan, On II–II, qu. 1, art. 10 and id., De Pot. Papae et Concl. [De Comparatione Auctoritatis Papae et Concilii], II. i.
[b. ]See Hist. Anal., Pt. I, First Episode [First Art.], supra, p. 245.
[c. ]See at end of Introd. to Laetus and Guicciardini [De Rebus Belgicis] c. De Privilegiis Brabantorum.
[d. ]See Hist. Anal. Pt. I, Art. I, supra, pp. 244 ff.
[a. ]Bartolus, On Dig. XLVIII. xix. 16, § 10; Baldus, On Feuds [p. 19]; Jason, On Dig. XII. i. 27; Andreas Gail, De Pace Publica, II. ix.
[b. ]Code, X. i. 5; Code, XII. xl. 5; elsewhere, in Bartolus, Tract. On Guelfs and Ghibellines, 8. See also Law I, Chap. ii, supra, p. 23.
[c. ]Vάzquez, xli. 20 ff. and xviii. 7.
[d. ]See Laws I and II, supra, p. 23.
[e. ]See Law II, supra, p. 23.
[f. ]Vάzquez, viii; vii in entirety, and xliii. 6.
[g. ]See Law VI together with Rule III, supra, pp. 29 and 34.
[a. ]See Law V, supra, p. 29.
[b. ]Vάzquez, v. 10; Castrensis, On Dig. I. i. 5, nn. 17 and 18; Doctors, On Dig. XLVIII. xix. 19.
[c. ]Vάzquez, Pref., nn. 16 and 17.
[a. ]Cicero, Against Catiline, I [xi. 28].
[b. ]Cicero, Philippics, IV [iii. 6 ff.], and passim.
[c. ]Tiberius Gracchus [xv. 2–3].
[2. ]Although Grotius uses the interrogative -ne here, simply asking for information, nonne, calling for an affirmative answer, would have reproduced more accurately the thought in the passage cited, which states specifically that “there would be no interference with a tribune even if he should attempt to demolish the Capitol,” &c.
[a. ]Syl. on word Papa, iv; Torquemada, Summa, IV, pt. ii, chap. xix–xx.
[b. ]Decretum, II. xxiv. 1. 1. 3, 4, 31.
[c. ]See supra, pp. 309 ff. (?), discussion of Concl. V, Art. [Thesis?] II.
[d. ]Vάzquez, i. 8, third case, citing Isernia, St. Thomas, and Hostiensis.
[e. ]Vάzquez, viii. 19.
[a. ]Vάzquez, i. 8, first case; ibid. viii. 11; ibid. xviii. 10; Covarr., Pract. Quaes. i. 6, near end; arg. of Decretum, II. ii. 7. 29.
[b. ]Baldus, On Feuds [p. 51], at end; add Institutes, I. viii, at end; see Feuds, II. xxvi and xlvii; and Baldus thereon [p. 80 verso].
[c. ]See Laws I and II. See text of Dig. I. ii. 2, § 3 and Bartolus, De Tyrannia, 3, at end.
[d. ]See discussion of Art. I, Chap. vii, supra, p. 106, and Chap. iv, after beg., supra, pp. 74 ff.
[e. ]See Law II.
[f. ]See Law VI and Hist. Anal. [Chap. xi], Pt. I, Art. I, supra, pp. 244 ff.
[g. ]See Law V.
[a. ]See Laws I, II, V, VI. Also Hist. Anal., Pt. I, Art. III, supra, pp. 248 f.
[b. ]See Laws II and VI, and Hist. Anal., Pt. I, Art. V, supra.
[c. ]See Laws II and VI and Hist. Anal., Pt. [I], Arts. VI and VII, supra, pp. 253 ff.
[d. ]See Concl. VI, Art. I, Analyses I and II, Chap. xii, supra, pp. 363–70 and the examples there cited which apply.
[e. ]See Chap. vi, shortly after Art. I, supra, p. 96, and Chap. ix, discussion of Concl. VIII, Art. I, supra, pp. 182 ff., esp. p. 185.
[a. ]See Chap. ii, discussion of Laws VII and VIII, supra.
[b. ]On the Manilian Law [v. 11].
[3. ]Mercatoribus aut naviculariis in Cicero’s text; hence the bracketed phrase in the translation.
[c. ]See Laws I, V, II, and VI.
[d. ]2 Samuel, x, and according to all historians. Dig., L. vii. 18 (17).
[a. ]See Hist. Anal., Pt. II, in entirety, supra, pp. 261 ff. See Chap. ii and Concl. VI, Art. I, Analysis III, supra, pp. 370 ff.
[b. ]See Hist. Anal., Pt. I, Art. III, supra, p. 248.
[c. ]See Hist. Anal., Pt. II, Art. V, Fourth Episode at end, supra, p. 296.
[d. ]See Hist. Anal. Pt. II, Art. II, supra, pp. 265 ff., and see Chap. xii, discussion of same art. [Concl. VI, Art. II], supra, pp. 377 ff. See discussion of Concl. VII, Art. III, with Corollary, infra, pp. 406 ff.
[a. ]Hist. Anal., Pt. I, Art. I, supra, pp. 244 ff.
[c. ]Hist. Anal., Pt. II, Art. IV, supra, pp. 284 ff.
[d. ]Syl. on word Papa, iv.
[a. ]See Hist. Anal., Pt. I, Art. I, supra, pp. 245 f.
[b. ]Laudensis, De Bello, 29; see also Gentili, II. ii.
[c. ]See Pt. II, this chap., infra, pp. 419 f.
[a. ]De Jure Belli, 41.
[a. ][Questions on Heptateuch, VI, qu. 10.]
[b. ]Hist. Anal., Pt. I, Art. IV, supra, pp. 249 f.
[c. ]Jason, On Dig. I. iv. 3, nn. 33 and 37.
[d. ]Ibid., n. 32.
[a. ]A little after Rule III, Chap. ii, supra, p. 19 and before Law VII, supra, p. 36. See also Chap. viii, before Concl. VII, Art. III, Pt. II, supra, pp. 172 f.
[a. ]Sophocles, Ajax [666 ff.].
[b. ]Thucydides [History of the Peloponnesian War], VI [lxxxix. 6].
[c. ]Macrobius, Saturnalia, II. iv.
[d. ]Matthew, xxii. 21; Mark, xii. 17; Luke, xx. 25.
[6. ]Isabella, the daughter of Philip the Second.
[a. ]Vάzquez, v, whole chap.; Ayala, I. vi. 9.
[b. ]Pract. Quaes. i. 4.
[7. ]These two titles are a translation of the single Latin term, Ordines. Cf. note 3, p. 245, supra.
[c. ]Dig. III. iv. 6 [§ 1]; add Joh. Faber, On Institutes, IV. xvi. 3, and On Dig. I. ii. 2, § 6.
[8. ]Ordo. In the passage cited above from the Digest, this term (the singular of Ordines) refers to corporations and associations of various kinds.
[a. ]See what was said in discussion of Art. III, Chap. vii, supra, pp. 114 f.; Decretum, II. xi. 3. 94.
[a. ]1 Samuel, whole book [xxiii ff.]; 2 Chronicles, xxi ; Genesis, xiv.
[9. ]Abraham aided the Sodomites, in particular, after Chedorlaomer and his allies had engaged in retaliatory measures.
[b. ]II–II, qu. 42, art. 2, ad 3.
[c. ]Bartolus, De Tyrannia, 27.
[d. ]On Decretals, II. xiii. 12, n. 12; Syl. on word bellum [Pt.] I. iv.
[a. ]See Vάzquez, lxxxii. 6 and 9.
[b. ]Ibid. i. 10.
[c. ]See Dig. XLVIII. iv. 11.
[d. ]Ayala, I. ii. 22.
[e. ]See Arist., Nic. Ethics, V. xi, at end.
[f. ]Vάzquez, viii. 21. ff.
[a. ]Ibid. lxxxii. 9.
[b. ]Ayala, I. ii. 26, at end.
[10. ]The Spartan general Pausanias legitimately exercised certain royal powers in the name of his cousin and ward, but the Ephors ordered his arrest because of his treasonable overtures to the King of Persia. Nero was condemned to death by the Roman Senate for his crimes. Marino Falieri (or “Faliero”), Doge of Venice, was beheaded by order of the Venetian Council of Ten (not by order of the Senate, as Grotius implies) because he had incited the plebeians to conspire against the nobles.
[c. ]On II–II, qu. 40, art. 1.
[a. ]Dig. XLIX. xv. 7.
[b. ]Vάzquez, iii. 3; ibid. xxiii. 3; ibid. xlvii. 9 ff.
[c. ]Ibid. i. 11.
[d. ]Ibid. xli. 26 and 27; Vict. De Potestate Papae et Concilii, 23, at end.
[e. ]Code, VII. xvi. 14; Livy, III [xliv ff.], story of Virginia; Institutes, I. ii. 2; words: iure enim.
[f. ]See Chap. vii, before Concl. VI, Art. III, supra, pp. 113–14.
[g. ]Baldus, On Code, VI. xxx. 21, towards the end.
[a. ]See Declaratio Reginae Angliae, de Causis Susceptae Defensionis Belgarum.
[b. ]Seneca, Oedipus .
[c. ]See Chap. vii, near end, supra, p. 126.
[d. ]Philippics, IV [vi. 14].
[11. ]Cicero’s description includes the specification curiam (a senate), which is omitted in Grotius’s otherwise almost literal paraphrase.
[a. ]Hist. Anal., Pt. I, Art. III, supra, pp. 248–49.
[a. ]Hist. Anal., Pt. I, Art. V, supra, pp. 252 f.
[12. ]I.e., in the above-mentioned Edict. The remainder of this paragraph is in large measure a paraphrase, and in some instances a literal reproduction, of the Edict.
[b. ]See Chap. viii, before Coroll. I, supra, pp. 164 ff.
[a. ]See Hist. Anal., Pt. I, Art. IV, supra, pp. 249 ff.
[a. ]Livy, XXI [xviii. 6–7].
[a. ]Sext, V, ult., reg. 10.
[b. ]At end of Chap. xi, supra, pp. 298 f.
[a. ]Before Concl. VII, Art. IV [Chap. viii], supra, p. 174 f.
[a. ]See before Concl. VII, Art. III, Pt. I, supra, pp. 114 ff., and Chap. xii, in discussion of same article [Concl. VII, Art. III], supra, p. 382, and in discussion of Concl. VI, Art. II, supra, pp. 377 ff. Also in discussion of same arts, in first part of this chap. [xiii].
[b. ]See Vict., De Jure Belli, 19; Cajetan, On II–II, qu. 64, art. 3.
[a. ]See Chap. xii, supra, p. 406, in discussion of Coroll. I, Chap. viii.
[b. ]See Card. [Zabarella], On Clementines, I. iii. 3, § verum.
[c. ]In Hist. Anal., Pt. II, Art. IV, Sixth Episode, supra, pp. 287 f.
[d. ]Gail, On Dig. III. iii. 35; Baldus, On Code, IX. ii. 1; Glossators, On Code, XI. xlix. 2; Alexander of Imola, On Dig. XLVIII. i. 4; ibid. ii. 2.
[e. ]In Hist. Anal., article cited [Pt. II, Art. IV], supra, pp. 284 ff.
[a. ]Baldus, On Code, VIII. iv. 1, n. 24 ; Legnano, De Repraesaliis, II. iii, qu. 2, beg. [chap. cxxxiv].
[a. ]In Hist. Anal., Pt. II, Art. II, Eighth Episode, supra, pp. 274 f.
[b. ]In Hist. Anal., Pt. II, Art. I, Seventh Episode, supra, pp. 264 f., and Pt. II, Art. V, Fifth Episode, supra, p. 297.
[a. ]In Chap. xii, discussion of Concl. VI, Art. I, supra, pp. 363 ff.; Dig. XLVII. x. 13; Doctors, On Dig. XLVII. i. 3.
[b. ]Cf. with Chap. xii, in discussion of Concl. VI, Art. II, supra, pp. 376 ff.
[c. ]See supra, pp. 422 f., with respect to letters on powers of centurions. And add didactic discussion preceding Concl. VII, Art. IV, supra, p. 174 f.
[a. ]Dig. XXXVII. xiii. 1 [§ 1].
[b. ]Bartolus, On Dig. XLIX. xv. 24, nn. 11 and 12; Innocent, On Decretals, II. xiii. 12, n. 9 and ibid. xxiv. 29, n. 5 and Panormitanus, thereon, n. 9.
[c. ]From Frontinus [Stratagems, IV. vii. 22] and Polyaenus [Stratagems, VIII. xxi].
[a. ]Civil Wars, IV. [ix. 69].
[b. ]Livy, II [ passim].
[13. ]In view of the context, it would seem that civile (civil) was written inadvertently here for the antithetical term externum (foreign), or possibly for apertum (open).
[c. ]On Dig. XLIX. xv. 24, nn. 3 and 4; Panormitanus, On Decretals, II. xxiv. 29, n. 12.
[d. ]Bartolus, ibid., n. 16.
[a. ]See before Corollary [Chap. x], supra, pp. 239 ff. Instructiones Collegii Admiralitatis, Art. 22 [in Groot Placaet-Boeck, V. viii. 1].
[a. ]See above.
[b. ]In discussion of same Concl. [V], Art. I, supra, pp. 92 f.
[a. ]Proverbs, xxii. ii [xxxi. 8].
[b. ]Cicero, On Duties, I [vii. 23]; add Ecclesiasticus, iv. 9.
[c. ]Cicero, On Duties, III [vi. 28].
[d. ]Baldus, On Code, VI. i. 1.
[e. ]Ambrose, On Duties, I. xxxvi .
[f. ]Rhetoric to Alexander, iii [ii = pp. 1424 b, 1425 a].
[a. ]In Hist. Anal., Pt. II, Art. V, supra, pp. 288 ff.
[b. ]On Christian Doctrine [I. xxx. 32].
[c. ]Luke, x. 29 ff.
[d. ]Arias, De Bello, 192; Panormitanus, On Decretals, III. xxxiv. 8, n. 15; Vict., Rel. I, pt. ii, nn. 15 and 17 [De Indis, Sect. III, nn. 15 and 17].
[e. ]Genesis, xxi, at end; ibid. xxvi, at end; 1 Samuel, xxvii ff.; see Nicholas of Lyra thereon; 1 Kings, iii and v; Syl. on word bellum [Pt. I] ix. 3.
[f. ]See Hist. Anal., Pt. II, Art. V, Fifth Episode, supra, pp. 296 ff.
[a. ]See discussion of same art. [Concl. VI, Art. I], Chap. xii, supra, pp. 363 ff.
[b. ]Dig. L. xvi. 118.
[a. ]Lupus, De Bello, § Si bene advertas and others cited on same Corollary.
[b. ]Th. Aq., De Regimine Principum, III [xiii].
[c. ]Vict., De Indis, Sect. III, n. 17.
This cross-reference at the bottom of collotype p. 133 (ex concl. ix. art. ii. parte i.), is followed at the top of p. 133′ by a deleted phrase, “parte ii.,” which evidently complements the reference to Part II of Article II, Conclusion IX. Since both parts of the article in question are exceedingly pertinent to Grotius’s argument at this point, it seems probable that the deleted reference to the second part was stricken out inadvertently as an apparent duplication of the immediately following reference to Part II of Chapter XIII, and should have been retained. In that case, the cross-reference would read: “Deduction from Art. II (Parts I and II), Conclusion IX.”
The Editor has not been able to locate this quotation in the Loeb editions of Euripides’ works. Since Grotius himself gives us only a blind reference, it may be suggested that the line is either inaccurately quoted or else mistakenly ascribed to Euripides. Possibly, Grotius was confusing a similar passage from some other author with the Euripidean verse from The Phoenician Maidens (l. 393) which he quotes in a similar connexion in the De Jure Belli ac Pacis (Bk. I, chap. iv, sec. 2, subsec. 2), and which runs as follows in the Loeb translation:The unwisdom of his rulers must one bear.