Front Page Titles (by Subject) CHAPTER VIII: By the Law of Nations trade is free to all persons whatsoever - The Freedom of the Seas (Latin and English version, Magoffin trans.)
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CHAPTER VIII: By the Law of Nations trade is free to all persons whatsoever - 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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By the Law of Nations trade is free to all persons whatsoever
If however the Portuguese claim that they have an exclusive right to trade with the East Indies, their claim will be refuted by practically all the same arguments which already have been brought forward. Nevertheless I shall repeat them briefly, and apply them to this particular claim.
By the law of nations the principle was introduced that the opportunity to engage in trade, of which no one can be deprived, 1 should be free to all men. This principle, inasmuch as its application was continually necessary after the distinctions of private ownerships were made, can therefore be seen to have had a very remote origin. Aristotle, in a very clever phrase, in his work entitled the Politics, 2 has said that the art of exchange is a completion of the independence which Nature requires. Therefore trade ought to be common to all according to the law of nations, not only in a negative but also in a positive, or as the jurists say, affirmative sense. 3 The things that come under the former category are subject to change, those of the latter category are not. This statement is to be explained in the following way.
Nature had given all things to all men. But since men were prevented from using many things which were desirable in every day life because they lived so far apart, and because, as we have said above, everything was not found everywhere, it was necessary to transport things from one place to another; not that there was yet an interchange of commodities, but that people were accustomed to make reciprocal use of things found in one another’s territory according to their own judgment. They say that trade arose among the Chinese in about this way. Things were deposited at places out in the desert and left to the good faith and conscience of those who exchanged things of their own for what they took. 1
But when movables passed into private ownership (a change brought about by necessity, as has been explained above), straightway there arose a method of exchange by which the lack of one person was supplemented by that of which another person had an over supply. 2 Hence commerce was born out of necessity for the commodities of life, as Pliny shows by a citation from Homer. 3 But after immovables also began to be recognized as private property, the consequent annihilation of universal community of use made commerce a necessity not only between men whose habitations were far apart but even between men who were neighbors; and in order that trade might be carried on more easily, somewhat later they invented money, which, as the derivation of the word shows, is a civic institution. 4
Therefore the universal basis of all contracts, namely exchange, is derived from nature; but some particular kinds of exchange, and the money payment itself, are derived from law; 5 although the older commentators on the law have not made this distinction sufficiently clear. Nevertheless all authorities agree that the ownership of things, particularly of movables, arises out of the primary law of nations, and that all contracts in which a price is not mentioned, are derived from the same source. 1 The philosophers 2 distinguish two kinds of exchange using Greek words which we shall take the liberty to translate as ‘wholesale’ and ‘retail’ trade. The former, as the Greek word shows, signifies trade or exchange between widely separated nations, and it ranks first in the order of Nature, as is shown in Plato’s Republic. 3 The latter seems to be the same kind of exchange that Aristotle calls by another Greek word 4 which means retail or shop trade between citizens. Aristotle makes a further division of wholesale trade into overland and overseas trade. 5 But of the two, retail trade is the more petty and sordid, and wholesale the more honorable; but most honorable of all is the wholesale overseas trade, because it makes so many people sharers in so many things. 6
Hence Ulpian says that the maintenance of ships is the highest duty of a state, because it is an absolutely natural necessity, but that the maintenance of hucksters has not the same value. In another place Aristotle says: “For the art of exchange extends to all possessions, and it arises at first in a natural manner from the circumstance that some have too little, others too much.” 7 And Seneca is also to be cited in this connection for he has said that buying and selling is the law of nations. 8
Therefore freedom of trade is based on a primitive right of nations which has a natural and permanent cause; and so that right cannot be destroyed, or at all events it may not be destroyed except by the consent of all nations. So far is that from being the case, that any one nation may justly oppose in any way, any other two nations that desire to enter into a mutual and exclusive contractual relation.
Trade with the East Indies does not belong to the Portuguese by title of occupation
Neither discovery nor occupation [which have been fully treated in Chapters II and V], is to be invoked on the point here under consideration, because the right of carrying on trade is not something corporal, which can be physically seized; nor would discovery or occupation help the case of the Portuguese even if they had been the very first persons to trade with the East Indies, although such a claim would be entirely untenable and false. For since in the beginning peoples set out along different paths, it was necessary that some become the first traders, nevertheless it is absolutely certain that those traders did not on that account acquire any rights. Wherefore if the Portuguese have any right by virtue of which they alone may trade with the East Indies, that right like other servitudes ought to arise from concession, either express or tacit, that is to say, from prescription. Otherwise no such right can exist.
Trade with the East Indies does not belong to the Portuguese by virtue of title based on the Papal Donation
No one has granted it except perhaps the Pope, and he did not have the power. 1 For no one can give away what he does not himself possess. But the Pope, unless he were the temporal master of the whole world, which sensible men deny, cannot say that the universal right in respect of trade belongs to him. Especially is this true since trade has to do only with material gains, and has no concern at all with spiritual matters, outside of which, as all admit, Papal power ceases. Besides, if the Pope wished to give that right to the Portuguese alone, and to deprive all other men of the same right, he would be doing a double injustice. In the first place, he would do an injustice to the people of the East Indies who, placed as we have said outside the Church, are in no way subjects of the Pope. Therefore, since the Pope cannot take away from them anything that is theirs, he could not take away their right of trading with whomsoever they please. In the second place, he would do an injustice to all other men both Christian and non-Christian, from whom he could not take that same right without a hearing. Besides, what are we to say of the fact that not even temporal lords in their own dominions are competent to prohibit the freedom of trade, as has been demonstrated above by reasonable and authoritative statements?
Therefore it must be acknowledged, that the authority of the Pope has absolutely no force against the eternal law of nature and of nations, from whence came that liberty which is destined to endure for ever and ever.
Trade with the East Indies does not belong to the Portuguese by title of prescription or custom
Last of all, prescription, or if you prefer the term, custom. 1 We have shown that according to Vasquez, neither prescription nor custom had any force as between free nations or the rulers of different peoples, or any force against those principles which were introduced by primitive law. And here as before, mere efflux of time does not bring it to pass that the right of trade, which does not partake of the nature of ownership, becomes a private possession. Now in this case neither title nor good faith can be shown, and inasmuch as good faith is clearly absent, according to legal rules prescription will not be called a right, but an injury.
Nay, the very possession involved in trading seems not to have arisen out of a private right, but out of a public right which belongs equally to all; so on the other hand, because nations perhaps neglected to trade with the East Indies, it must not be presumed that they did so as a favor to the Portuguese, but because they believed it to be to their own best interests. But nothing stands in their way, when once expediency shall have persuaded them, to prevent them from doing what they had not previously done. For the jurists 2 have handed down as incontestable the principle that where things arbitrable or facultative are such that they produce nothing more than the facultative act per se, but do not create a new right, that in all such cases not even a thousand years will create a title by prescription or custom. This, as Vasquez points out, acts both affirmatively and negatively. For I am not compelled to do what I have hitherto done of my own free will, nor am I compelled to stop doing what I have never done.
What moreover could be more absurd then to deduce from the fact that we as individuals are not able always to conclude a bargain with other individuals, that there is not preserved to us for the future the right of bargaining with them if opportunity shall have offered? The same Vasquez has also most justly said that not even the lapse of infinite time establishes a right which seems to have arisen from necessity rather than choice.
Therefore in order to establish a prescriptive right to the trade with the East Indies the Portuguese would be compelled to prove coercion. But since in such a case as this coercion is contrary to the law of nature and obnoxious to all mankind, it cannot establish a right. 1 Next, that coercion must needs have been in existence for so long a time that “the memory of its beginning does not exist”; that, however, is so far from being the case that not even a hundred years had elapsed since the Venetians controlled nearly the entire trade with the East Indies, carrying it via Alexandria. 2 Again, the coercion ought to have been such that it was not resisted; but the English and the French and other nations besides, did resist it. Finally, it is not sufficient that some be coerced, but it is indispensable that all be coerced, because the possession of freedom of trade is preserved to all by a failure to use coercion upon even one person. Moreover, the Arabians and the Chinese are at the present day still carrying on with the people of the East Indies a trade which has been uninterrupted for several centuries.
Portuguese usurpation is worthless.
The Portuguese prohibition of trade has no foundation in equity
From what has been said thus far it is easy to see the blind cupidity of those who in order not to admit any one else to a share in their gains, strive to still their consciences by the very arguments which the Spanish jurists, interested too in the same case, show to be absolutely empty. 1 For they intimate as clearly as they can that as regards India all the pretexts employed, are far fetched and unjust. They add that this right was never seriously approved by the swarm of theologians. Indeed, what is more unjust than the complaint made by the Portuguese that their profits are drained off by a freedom which is incompatible with their license? An incontrovertible rule of law lays down that a man who uses his own right is justly presumed to be contriving neither a deceit nor a fraud, in fact not even to be doing any one an injury. This is particularly true, if he has no intention to harm any one, but only to increase his own property. 2 For what ought to be considered is the chief and ultimate intent not the irrelevant consequence. Indeed, if we may with propriety agree with Ulpian, he is not doing an injury, but he is preventing some one from getting a profit which another was previously enjoying.
Moreover it is natural and conformable to the highest law as well as equity, that when a gain open to all is concerned every person prefers it for himself rather than for another, even if that other had already discovered it. 1 Who would countenance an artisan who complained that another artisan was taking away his profits by the exercise of the same craft? But the cause of the Dutch is the more reasonable, because their advantage in this matter is bound up with the advantage of the whole human race, an advantage which the Portuguese are trying to destroy. 2 Nor will it be correct to say, that this is done in rivalry, as Vasquez shows in a similar case. For clearly we must either deny or affirm that this is done not only in honorable but in most honorable rivalry, and, according to Hesiod, ‘This rivalry is honorable for mortal men’. 3 For, says Vasquez, if any one should be so moved by love for his fellow men that he sells grain in hard times for a lower price than usual, he would diminish the wicked oppression of those men who in the same season of cruel financial stringency would have sold their grain at a higher price than usual. But, some one will object, by such methods the profits of others will be made less. ‘We do not deny it’, says Vasquez, ‘but they are made less to the corresponding advantage of all other men. And would that the profits of all Rulers and Tyrants of this world could be thus lessened’!
Indeed can anything more unjust be conceived than for the Spaniards to hold the entire world tributary, so that it is not permissible either to buy or to sell except at their good pleasure? 4 In all states we heap odium upon grain speculators and even bring them to punishment; and in very truth there seems to be no other sort of business so disgraceful as that of forcing up prices in the grain market. 5 That is not to be wondered at, for such speculators are doing an injury to nature, who, as Aristotle says, is fertile for all alike. 1 Accordingly it ought not to be supposed that trade was invented for the benefit of a few, but in order that the lack of one would be counterbalanced by the oversupply of another, a fair return also being guaranteed to all who take upon themselves the work and the danger of transport.
Is the same thing then which is considered grievous and pernicious in the smaller community of a state to be put up with at all in that great community of the human race? Shall the people of Spain, forsooth, assume a monopoly of all the world? Ambrose inveighs against those who interfere with the freedom of the sea; 2 Augustine against those who obstruct the overland routes; and Gregory of Nazianzus 3 against those who buy goods and hold them, and thus (as he eloquently says) make profits for themselves alone out of the helplessness and need of others. Indeed in the opinion of this wise and holy man any person who holds back grain and thus forces up the market price ought to be given over to public punishment and be adjudged worthy of death.
Therefore the Portuguese may cry as loud and as long as they shall please: ‘You are cutting down our profits’! The Dutch will answer: ‘Nay! we are but looking out for our own interests! Are you angry because we share with you in the winds and the sea? Pray, who had promised that you would always have those advantages? You are secure in the possession of that with which we are quite content’.
The Dutch must maintain their right of trade with the East Indies by peace, by treaty, or by war
Wherefore since both law and equity demand that trade with the East Indies be as free to us as to any one else, it follows that we are to maintain at all hazards that freedom which is ours by nature, either by coming to a peace agreement with the Spaniards, or by concluding a treaty, or by continuing the war. So far as peace is concerned, it is well known that there are two kinds of peace, one made on terms of equality, the other on unequal terms. The Greeks 1 call the former kind a compact between equals, the latter an enjoined truce; the former is meant for high souled men, the latter for servile spirits. Demosthenes in his speech on the liberty of the Rhodians 2 says that it was necessary for those who wished to be free to keep away from treaties which were imposed upon them, because such treaties were almost the same as slavery. Such conditions are all those by which one party is lessened in its own right, according to the definition of Isocrates. 3 For if, as Cicero says, 4 wars must be undertaken in order that people may live in peace unharmed, it follows that peace must be called not a pact which entails slavery but which brings undisturbed liberty, especially as peace and justice according to the opinion of many philosophers and theologians 1 differ more in name than in fact, and as peace is a harmonious agreement based not on individual whim, but on well ordered regulations.
If however a truce is arranged for, it is quite clear from the very nature of a truce, that during its continuance no one’s condition ought to change for the worse, inasmuch as both parties stand on the equivalent of a uti possidetis.
But if we are driven into war by the injustice of our enemies, the justice of our cause ought to bring hope and confidence in a happy outcome. “For,” as Demosthenes has said, “every one fights his hardest to recover what he has lost; but when men endeavor to gain at the expense of others it is not so.” 2 The Emperor Alexander has expressed his idea in this way: ‘Those who begin unjust deeds, must bear the greatest blame; but those who repel aggressors are twice armed, both with courage because of their just cause, and with the highest hope because they are not doing a wrong, but are warding off a wrong’.
Therefore, if it be necessary, arise, O nation unconquered on the sea, and fight boldly, not only for your own liberty, but for that of the human race. “Nor let it fright thee that their fleet is winged, each ship, with an hundred oars. The sea whereon it sails will have none of it. And though the prows bear figures threatening to cast rocks such as Centaurs throw, thou shalt find them but hollow planks and painted terrors. ’Tis his cause that makes or mars a soldier’s strength. If the cause be not just, shame strikes the weapon from his hands.” 3
If many writers, Augustine himself 1 among them, believed it was right to take up arms because innocent passage was refused across foreign territory, how much more justly will arms be taken up against those from whom the demand is made of the common and innocent use of the sea, which by the law of nature is common to all? If those nations which interdicted others from trade on their own soil are justly attacked, what of those nations which separate by force and interrupt the mutual intercourse of peoples over whom they have no rights at all? If this case should be taken into court, there can be no doubt what opinion ought to be anticipated from a just judge. The praetor’s law says: 2 ‘I forbid force to be used in preventing any one from sailing a ship or a boat on a public river, or from unloading his cargo on the bank’. The commentators say that the injunction must be applied in the same manner to the sea and to the seashore. Labeo, for example, in commenting on the praetor’s edict, 3 ‘Let nothing be done in a public river or on its bank, by which a landing or a channel for shipping be obstructed’, said there was a similar interdict which applied to the sea, namely, 4 ‘Let nothing be done on the sea or on the seashore by which a harbor, a landing, or a channel for shipping be obstructed’.
Now after this explicit prohibition, if any one be prevented from navigating the sea, or not allowed to sell or to make use of his own wares and products, Ulpian says that he can bring an action for damages on that ground. 5 Also the theologians and the casuists agree that he who prevents another from buying or selling, or who puts his private interests before the public and common interests, or who in any way hinders another in the use of something which is his by common right, is held in damages to complete restitution in an amount fixed by an honorable arbitrator.
Following these principles a good judge would award to the Dutch the freedom of trade, and would forbid the Portuguese and others from using force to hinder that freedom, and would order the payment of just damages. But when a judgment which would be rendered in a court cannot be obtained, it should with justice be demanded in a war. Augustine 1 acknowledges this when he says: ‘The injustice of an adversary brings a just war’. Cicero also says: 2 “There are two ways of settling a dispute; first, by discussion; second, by physical force; we must resort to force only in case we may not avail ourselves of discussion.” And King Theodoric says: ‘Recourse must then be had to arms when justice can find no lodgment in an adversary’s heart’. Pomponius, however, has handed down a decision which has more bearing on our argument 3 than any of the citations already made. He declared that the man who seized a thing common to all to the prejudice of every one else must be forcibly prevented from so doing. The theologians also say that just as war is righteously undertaken in defense of individual property, so no less righteously is it undertaken in behalf of the use of those things which by natural law ought to be common property. Therefore he who closes up roads and hinders the export of merchandise ought to be prevented from so doing via facti, even without waiting for any public authority.
Since these things are so, there need not be the slightest fear that God will prosper the efforts of those who violate that most stable law of nature which He himself has instituted, or that even men will allow those to go unpunished who for the sake alone of private gain oppose a common benefit of the human race.
[1 ]Digest I, 1, 5.
[2 ]I, 9 (1257a 30).
[3 ]Cf. Covarruvias in c. Peccatum, § 8.
[1 ]Pomponius Mela, De situ orbis III, 7.
[2 ]Digest XVIII, 1, 1.
[3 ]Natural History XXXIII, 1.
[4 ]Aristotle, Nicomachean Ethics 5, 5, 11 (1133a 20); Politics I, 9 (1257b 10) [Nummus = νόμος. The fact that this is an incorrect derivation does not of course affect the argument].
[5 ]Dist. I, C. VII; Aristotle, see note 4 above.
[1 ]Castrensis from Cinus and others on Digest I, 1, 5.
[2 ]Plato, Sophista 223d.
[3 ]II (p. 371) cited in Digest L, 11, 2.
[4 ]Politics I, 11 (1258b 22–23).
[5 ][The text here is somewhat expanded.]
[6 ]Cicero, De officiis I, 150–151; Aristotle, Politics I, 9.
[7 ]Politics I, 9 (1257a 14–17) [Jowett’s translation, Vol. I, page 15].
[8 ]De beneficiis V, 8 [Not a quotation, but a summing up of the chapter].
[1 ]See chapters III and VI.
[1 ]See chapter VII.
[2 ]On Digest XLIII, 11, 2; Balbus 4, 5 pr. qu. 1; Panormitanus on the Decretals of Pope Gregory IX, III, 8, 10; Digest XLI, 2, 41; Covarruvias in c. possessor. 2, § 4; Vasquius, Controversiae illustres c. 4, n. 10 and 12.
[1 ]Vasquius, Controversiae illustres c. 4, n. 11.
[2 ]Guicciardini, Storia d’Italia XIX.
[1 ]Vasquius, Controversiae illustres c. 10, n. 10; Victoria, De Indis I, 1, n. 3; Digest VI, 1. 27; L, 17, 55, 151; XLII, 8, 13; XXXIX, 2, 24; Bartolus on Digest XLIII, 12, 1; Castrensis on Code III, 34, 10; Digest XXXIX, 3, 1.
[2 ]Vasquius, Controversiae illustres c. 4, n. 3 ff.; Digest XXXIX, 2, 26.
[1 ]Vasquius, same reference.
[2 ]Vasquius, same reference, n. 5.
[3 ]In his Works and Days [The entire passage as translated by A. W. Mair (Oxford translation, page 1) is: “For when he that hath no business looketh on him that is rich, he hasteth to plow and to array his house: and neighbour vieth with neighbour hasting to be rich: good is this Strife for men.”].
[4 ]Code IV, 59.
[5 ]Cajetan on Thomas Aquinas, Summa II. II, q. 77, a. 1, ad 3.
[1 ]Politics I, 9.
[2 ]Hexameron V, 10, 4, q. 44.
[3 ]In funere Basilii.
[1 ]Thucydides, Isocrates, Andocides.
[2 ]Isocrates, Archidamos 51 [Grotius probably quoted here from memory].
[3 ]Panegyric 176.
[4 ]De officiis I, 35.
[1 ]Polus Lucanus apud Stobaeum, De iustitia; Clemens Alexandrinus, Stromateis; Augustine, City of God IV, 15.
[2 ]On the liberty of the Rhodians XV, 10 [Pickard-Cambridge’s translation I, page 59].
[3 ]Propertius IV, vi, 47–52 [Butler’s (Loeb) translation, page 305].
[1 ]City of God V, 1.
[2 ]Digest XLIII, 14, 1.
[3 ]Digest XLIII, 12, 1.
[4 ]Digest XLIII, 12, 1.
[5 ]Digest XLIII, 8, 2; XLVII, 10, 13 and 24; Silvestris, on the word ‘restitutio’; Oldradus and Archidiaconus on Digest XLVIII, 12, 2, and XLVII, 11, 6 [Oldrado de Ponte (?-1335), a Bologna canonist. Archidiaconus is probably the Italian decretalist Guido Bosius.]
[1 ]City of God IV.
[2 ]De officiis I, 34 [Walter Miller’s (Loeb) translation, page 37].
[3 ]Digest XLI, 1, 50; Heinrich von Gorcum, De bello justo 9.