Front Page Titles (by Subject) CHAPTER XIII: The Dutch must maintain their right of trade with the East Indies by peace, by treaty, or by war - The Freedom of the Seas (Latin and English version, Magoffin trans.)
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CHAPTER XIII: The Dutch must maintain their right of trade with the East Indies by peace, by treaty, or by war - 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 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.