Front Page Titles (by Subject) CHAPTER II: The Portuguese have no right by title of discovery to sovereignty over the East Indies to which the Dutch make voyages - The Freedom of the Seas (Latin and English version, Magoffin trans.)
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CHAPTER II: The Portuguese have no right by title of discovery to sovereignty over the East Indies to which the Dutch make voyages - Hugo Grotius, The Freedom of the Seas (Latin and English version, Magoffin trans.) 
*The Freedom of the Seas, or the Right Which Belongs to the Dutch to take part in the East Indian Trade, *Translated by Ralph Van Deman Magoffin, Introduction by James Brown Scott, Director of the Carnegie Endowment for International Peace (New York: Oxford University Press, 1916).
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The Portuguese have no right by title of discovery to sovereignty over the East Indies to which the Dutch make voyages
The Portuguese are not sovereigns of those parts of the East Indies to which the Dutch sail, that is to say, Java, Ceylon, * and many of the Moluccas. This I prove by the incontrovertible argument that no one is sovereign of a thing which he himself has never possessed, and which no one else has ever held in his name. These islands of which we speak, now have and always have had their own kings, their own government, their own laws, and their own legal systems. The inhabitants allow the Portuguese to trade with them, just as they allow other nations the same privilege. Therefore, inasmuch as the Portuguese pay tolls, and obtain leave to trade from the rulers there, they thereby give sufficient proof that they do not go there as sovereigns but as foreigners. Indeed they only reside there on suffrance. And although the title to sovereignty is not sufficient, inasmuch as possession is a prerequisite—for having a thing is quite different from having the right to acquire it—nevertheless I affirm that in those places the Portuguese have no title at all to sovereignty which is not denied them by the opinion of learned men, even of the Spaniards.
First of all, if they say that those lands have come under their jurisdiction as the reward of discovery, THEY LIE, both in law and in fact. For to discover a thing is not only to seize it with the eyes but to take real possession thereof, as Gordian 1 points out in one of his letters. For that reason the Grammarians 2 give the same signification to the expressions ‘to find’ or ‘to discover’ and ‘to take possession of’ or ‘to occupy’; and all the Latin with which I am acquainted tells us that the opposite of ‘to find’ 3 is ‘to lose’. However, natural reason itself, the precise words of the law, and the interpretation of the more learned men 4 all show clearly that the act of discovery is sufficient to give a clear title of sovereignty only when it is accompanied by actual possession. And this only applies of course to movables or to such immovables as are actually inclosed within fixed bounds and guarded. 5 No such claim can be established in the present case, because the Portuguese maintain no garrisons in those regions. Neither can the Portuguese by any possible means claim to have discovered India, a country which was famous centuries and centuries ago! It was already known as early as the time of the emperor Augustus as the following quotation from Horace shows:
And have not the Romans described for us in the most exact way the greater part of Ceylon? 7 And as far as the other islands are concerned, not only the neighboring Persians and Arabs, but even Europeans, particularly the Venetians, knew them long before the Portuguese did.
But in addition to all this, discovery per se gives no legal rights over things unless before the alleged discovery they were res nullius.1 Now these Indians of the East, on the arrival of the Portuguese, although some of them were idolators, and some Mohammedans, and therefore sunk in grievous sin, had none the less perfect public and private ownership of their goods and possessions, from which they could not be dispossessed without just cause. 2 The Spanish writer Victoria, 3 following other writers of the highest authority, has the most certain warrant for his conclusion that Christians, whether of the laity or of the clergy, cannot deprive infidels of their civil power and sovereignty merely on the ground that they are infidels, unless some other wrong has been done by them.
For religious belief, as Thomas Aquinas 4 rightly observes, does not do away with either natural or human law from which sovereignty is derived. Surely it is a heresy to believe that infidels are not masters of their own property; consequently, to take from them their possessions on account of their religious belief is no less theft and robbery than it would be in the case of Christians.
Victoria then is right in saying 5 that the Spaniards have no more legal right over the East Indians because of their religion, than the East Indians would have had over the Spaniards if they had happened to be the first foreigners to come to Spain. Nor are the East Indians stupid and unthinking; on the contrary they are intelligent and shrewd, so that a pretext for subduing them on the ground of their character could not be sustained. Such a pretext on its very face is an injustice. Plutarch said long ago that it was greed that furnished the pretext for conquering barbarous countries, and it is not unsuspected that greedy longing for the property of another often hid itself behind a pretext of civilizing barbarians. And now that well-known pretext of forcing nations into a higher state of civilization against their will, the pretext once monopolized by the Greeks and by Alexander the Great, is considered by all theologians, especially those of Spain, 1 to be unjust and unholy.
[* ][Taprobane was the ancient name of Ceylon. Milton speaks of it in Paradise Regained IV, 75: “And utmost Indian Isle Taprobane.”]
[1 ]Code VIII, 40, 13 [Probably Fabius Claudius Gordianus Fulgentius (468–533), a Benedictine monk, one of the Latin Fathers].
[2 ]Nonius Marcellus, On the various significations of speech, under the word ‘occupare’; cf. Connan, Commentaries on the civil law III, 3; Donellus [Doneau], Commentaries on the civil law IV, 10. [François de Connan (1508–1551), a French jurisconsult, a pupil of Alciati; Hugues Doneau (1527–1591) a famous jurisconsult, who wrote many volumes of commentaries on the Digest and the Code.]
[3 ][See note on opposite page.]
[4 ]Institutes II, 1, 13.
[5 ]Digest XLI, 2, 3.
[6 ]Letters I, 1, 44–45 [Francis’s translation, English Poets XIX, 726].
[7 ]Pliny, Natural History, VI, 22.
[1 ]Digest XLI, 1, 3.
[2 ]Covarruvias in c. Peccatum § 10, n. 2, 4, 5.
[3 ]De potestate civili I, 9.
[4 ]Summa II. II, q. 10, a. 12 [Thomas Aquinas (1227–1274), one of the most famous of the Schoolmen and Theologians, spoken of often as Aquila Theologorum, and Doctor Angelicus].
[5 ]De Indis I, n. 4–7, 19.
[1 ]Vasquius, Preface (n. 5) to Controversiae illustres.