The Free Sea
A Disputation Concerning the Right Which the
Hollanders Ought to Have to the Indian
Merchandise for Trading
the chapters of the
- [1.] That by the law of nations any man may sail freely to whomsoever. 10
- [2.] That the Portugals have no right of dominion over those Indians by title of invention unto whom the Hollanders do sail. 13
- [3. That the Portugals have no right of dominion over the Indians by title of the Pope’s gift.] 15
- [4.] That the Portugals have no right of dominion over the Indians by title of war. 17
- [5.] That the sea to the Indians or the right of sailing thither is not proper to the Portugals by title of possession. 20
- [6.] That the sea or right of sailing belongeth not properly to
the Portugals by the Pope’s donation. 38
- [7.] That the sea or right of sailing is not proper to the Portugals by title of prescription or custom. 39
- [8.] That by the law of nations traffic is free with all. 49
- [9. That merchandise or trading with the Indians is not proper to the Portugals by title of possession.] 51
- [10.] That traffic with the Indians is not proper to the Portugals by title of the Pope’s gift. 52
- [11.] That traffic with the Indians is not proper to the Portugals by right of prescription or custom. 53
- [12.] That the Portugals incline not to equity in forbidding trade. 54
- [13.] That the right of the Indian trade is to be retained of the Hollanders both by peace, truce and war. 57
To the Princes and Free States
of the Christian World
It is no less ancient than a pestilent error wherewith many men (but they chiefly who abound in power and riches) persuade themselves, or (as I think more truly) go about to persuade, that right and wrong are distinguished not according to their own nature but by a certain vain opinion and custom of men. These men therefore think that both laws and show of equity were invented for this purpose: that their dissensions and tumults might be restrained who are born in the condition of obeying; but unto such as are placed in the height of fortune they say that all right is to be measured by the will and the will by profits. And it is not so great a wonder that this absurd opinion, and altogether contrary to nature, hath procured unto itself some little authority, seeing to that common disease of mankind (whereby, as vice, so we follow the defense thereof) the craft and subtlety of flatterers is added, whereunto all power is subject.
But on the contrary part, in all ages there have been some wise and religious men (not of servile condition) who would pluck this persuasion out of the minds of simple men and convince the others, being defenders thereof, of impudency. For they declared God to be the creator and governor of the world, especially the father of the nature of man which, therefore not as other living creatures, he severed into divers kinds and divers differences, but would have them of one kind and to be contained under one name; and gave moreover the same beginning and the like composition of members, countenances turned each to other and speech also, and other instruments of imparting, that all might understand there was a natural society and kindred between them. And to this house or city built by him that great prince and householder had written certain laws of his, not in brass or tables, but in the minds and senses of everyone, where they shall offer themselves to be read of the unwilling and such as refuse. By these laws both high and low are bound. It is no more lawful for kings to transgress these than for the common people to impugn the decrees of senators, senators to resist the edicts of presidents, and viceroys the laws and statutes of their kings, for those very laws of people and all cities flowed from that fountain; thence they received their sanctimony and majesty.
But as in man himself there are some things which are common with all, and other some whereby everyone is to be distinguished from other, so of those things which nature had brought forth for the use of man she would that some of them should remain common and others through every one’s labor and industry to become proper. But laws were set down for both, that all surely might use common things without the damage of all and, for the rest, every man contented with his portion should abstain from another’s.
If no one can be ignorant of these things, unless he cease to be a man, if the nations saw this to whom the light of nature only shined (who otherwise were dull sighted in discerning truth), what beseemeth ye to think and do who are princes and Christian people?
If any think it hard that those things should be exacted of him which the profession of so holy a name requireth (the least whereof is to abstain from injuries) surely everyone may know what his duty is by that which he commandeth another. There is none of you who would not publicly exclaim that everyone should be moderator and arbitrator in his own matter, who would not command all citizens to use rivers and public places equally and indifferently, who would not with all his power defend the liberty of going hither and thither and trading.
If that little society which we call a commonwealth is thought not to stand without this (and indeed cannot stand without it), why shall not the self-same things be necessary to uphold the society and concord of all mankind? If any man violate these ye are justly displeased and make them also examples according to the quality and greatness of the offence, for no other reason but because the state of empire and government can never be quiet where these things may everywhere be done. If so be a king offer injury and violence unto a king, and people unto peoples, doth it not concern the perturbation of the peace and quiet of that city and the injury of the great keeper and commander? This only is the difference, that as subordinate magistrates judge the people, you the magistrates, so the king of all the world hath commanded you to take notice and punish all other men’s faults. Yours only he hath excepted to himself who, though he hath reserved to himself the highest degree of punishment, slow, secret and inevitable, yet hath he assigned two judges from himself to be always present in men’s affairs, whom the most happy offender cannot escape: to wit, every man’s own conscience and fame, or other men’s estimation of them. These seats of judgement stand always open to them to whom other tribunals are shut up; to these the weak and poor complain; in these they that master others in strength are vanquished themselves who are licentious out of measure, who esteem that at a base rate which was bought with man’s blood, who defend injuries with injuries, whose manifest wickedness must needs be both condemned by the consenting judgment of the good and also not to be absolved in the opinion of their own mind.
To both these judgment places we bring a new case. Not truly of sinks or gutters or joining one rafter in another (as private men’s cases are wont to be), nor yet of that kind which is usual among the people, of the right of a field bordering upon us or of the possession of a river or island, but almost of the whole sea, of the right of navigation and the liberty of traffic. These things are litigious between the Spaniards and us: whether the huge and vast sea be the addition of one kingdom (and that not the greatest); whether it be lawful for any people to forbid people that are willing neither to sell, buy nor change nor yet to come together; and whether any man could ever give that which was never his or find that which was another’s before, or whether the manifest injury of long time give any right.
In this disputation we offer the counters to those who among the Spaniards are the principal doctors of the divine and humane law; and, to conclude, we desire the proper laws of Spain. If that prevail not, and covetousness forbid them to desist whom some reason convinceth, we appeal, oh ye princes, to your majesty; we appeal to your upright conscience and fidelity, oh ye nations, how many soever you be, wheresoever dispersed.
We move no doubtful or entangled question, not of doubtful principles in religion, which seem to have much obscurity, which being so long disputed with so stout courage, have almost left this for certain amongst wise men: that truth is never less found than when consent is compelled; not of the state of our commonwealth and liberty scarce gotten but defended by taking arms, whereof they can rightly determine who have exactly known the country laws of the Belgae, their ancient customs, and that it was not made a kingdom against the laws but an earldom by the laws. In which question, notwithstanding necessity was driven from equal judges of extreme servitude, making a more curious search the authority of the decree of so many nations became public; the confession of the adversaries, even to the malicious and ill-willers, left no matter of doubt.
But that which we here propound hath nothing common with these; it needeth no man’s curious search; it dependeth not on the exposition of the Bible (whereof many understand not many things), not on the decrees of one people whereof the rest may justly be ignorant.
That law by whose prescript form we are to judge is not hard to be found out, being the same with all and easy to be understood, which being bred with everyone is engrafted in the minds of all. But the right which we desire is such as the king himself ought not deny unto his subjects, nor a Christian to infidels, for it hath his original from nature, which is an indifferent and equal parent to all, bountiful towards all, whose royal authority extendeth itself over those who rule the nations and is most sacred amongst them who have profited most in piety.
Understand this cause, oh yea, princes, and consider it, oh yea, people. If we demand any unjust thing, ye know of what account your authority and theirs who amongst you are nearer unto us hath always been with us: advise us, and we will obey. But if we have offended anything in this matter, we beseech you not to be offended; the hatred of mankind we pray not against. But if the matter fall out otherwise, we leave it to your religion and equity what you censure of it and what is to be done.
In times past, among the milder people it was accounted great impiety to assail them by war who would put their cause to arbitrement; on the contrary part, they who would refuse so equal a condition were repressed by the common aid not as enemies of one but of all. Therefore to that purpose we have seen truces made and judges appointed, kings themselves and puissant nations accounted nothing so glorious and honorable as to restrain others’ insolency and to support others’ infirmity and innocence.
Which custom, if it were in use at this day, that men thought no human thing strange unto them, surely we might have a more quiet world, for the presumption of many would wax cold and they who now neglect justice for profit’s sake should learn to forget injustice with their own loss.
But as in this cause peradventure we hope for that in vain, so this we verily believe: that things being well weighed, you will all think the delays of peace are no more to be imputed unto us than the causes of war, and therefore as hitherto you have been well-willers and favorable friends unto us so you will much more befriend us hereafter, than the which nothing more desired can befall them who think it the first part of felicity to do well and the other to be well reported.
The Free Sea, or a Disputation Concerning
the Right Which the Hollanders Ought
to Have to the Indian Trade
By the law of nations navigation is free
for any to whomsoever
Our purpose is shortly and clearly to demonstrate that it is lawful for the Hollanders, that is the subjects of the confederate states of the Low Countries, to sail to the Indians as they do and entertain traffic with them. We will lay this certain rule of the law of nations (which they call primary) as the foundation, the reason whereof is clear and immutable: that it is lawful for any nation to go to any other and to trade with it.
God himself speaketh this in nature, seeing he will not have all those things, whereof the life of man standeth in need, to be sufficiently ministered by nature in all places and also vouchsafeth some nations to excel others in arts. To what end are these things but that he would maintain human friendship by their mutual wants and plenty, lest everyone thinking themselves sufficient for themselves for this only thing should be made insociable? Now it cometh to pass that one nation should supply the want of another by the appointment of divine justice, that thereby (as Pliny saith) that which is brought forth anywhere might seem to be bred with all; therefore we hear poets speaking,
- nec vero terrae ferre omnes omnia possunt,
and so forth.
They, therefore, that take away this, take away that most laudable society of mankind; they take away the mutual occasions of doing good and, to conclude, violate nature herself. For even that ocean wherewith God hath compassed the Earth is navigable on every side round about, and the settled or extraordinary blasts of wind, not always blowing from the same quarter, and sometimes from every quarter, do they not sufficiently signify that nature hath granted a passage from all nations unto all? This Seneca thinketh the greatest benefit of nature, that even by the wind she hath mingled nations scattered in regard of place and hath so divided all her goods into countries that mortal men must needs traffic among themselves. This right therefore equally appertaineth to all nations, which the most famous lawyers enlarge so far that they deny any commonwealth or prince to be able wholly to forbid others to come unto their subjects and trade with them. Hence descendeth that most sacred law of hospitality; hence complaints,
- quod genus hoc hominum, quaeve hunc tam barbara morem
- permittit patria? hospitio prohibemur arenae,
and in another place,
- litusque rogamus
- innocuum, et cunctis undamque auramque patentem.
We know also that wars began for this cause, as with the Magarensians against the Athenians, and the Bononians against the Venetians, and that these also were just causes of war to the Castilians against the Americans, and more probable than the rest. Victoria also thinketh it a just cause of war if they should be forbidden to go on pilgrimage and to live with them; if they were denied from the participation of those things which by the law of nations or customs are common; if, finally, they were not admitted to traffic.
The like whereof is that which we read in the history of Moses, and Augustine thereupon: that the Israelites made just war against the Amorites because a harmless passage was denied which by the most just law of human society ought to have been open to them. And for this cause Hercules made war with the King of the Orchomenians, the Grecians under Agamemnon with the king of the Mysians, as if naturally (as Baldus saith) ways and passage should be free, and the Romans in Tacitus are accused of the Germans because they barred the conference and resort of the nations and shut up rivers and earth and heaven itself after a certain manner. Nor did any title against the Saracens in times past please the Christians better than that they were stopped by them from entering into the land of Jewry.
It followeth upon this opinion that the Portugals, although they had been lords of those countries whither the Hollanders go, yet they should do wrong if they stopped the passage and trade of the Hollanders.
How much more unjust is it therefore for any that are willing to be secluded from intercourse and interchange with people who are also willing, and that by their means in whose power neither these people are nor the thing itself whereby we make our way, seeing we detest not thieves and pirates more for any other cause than that they beset and molest the meetings of men among themselves?
That the Portugals have no right of dominion over those Indians to whom the Hollanders
sail by title of invention
But that the Portugals are not lords of those parts whither the Hollanders go—to wit, of Java, Tabrobana and the greatest part of the Moluccas—we gather by a most certain argument, because no man is lord of that thing which neither he himself ever possessed nor any other in his name. These islands we speak of have, and always had, their kings, their commonwealth, their laws and their liberties. Trading is granted to the Portugals as to other nations; therefore, when they both pay tribute and obtain liberty of trade of the princes, they testify sufficiently that they are not lords but arrive there as foreigners, for they do not so much as dwell there but by entreaty. And although title be not sufficient for dominion, because possession also is required, seeing it is one thing to have a thing, another to have right to obtain it, yet I affirm that the Portugals have not so much as a title of dominion over those parts, which the opinion of the doctors (and those Spaniards) will not take from them.
First, if they will say those countries appertain unto them for a reward of the finding, they shall speak nor law nor truth, for to find is not to see a thing with the eyes but to lay hold of it with the hands, as in the epistle of Gordianus is declared. Whence the grammarians use the words invenire and occupare for words of one signification, and all the Latin tongue saith, “we have found that which we have gotten,” the contrary whereof is to lose. Moreover, even natural reason itself and the express words of the laws and the interpretation of the most learned show that such a finding sufficeth to get title of common as is joined with possession: to wit, movable things are laid hold on or immovable things are bounded and guarded, which in this kind can no way be said, for the Portugals have no garrisons there. How can it be said by any means that the Portugals have found out India which was so famous many ages since, even from the time of Horace?
- impiger extremos currit mercator ad Indos
- per mare pauperiem fugiens.
How exactly have the Romans described many things unto us of Taprobane? Now, as touching the other islands, not only the borderers, the Persians and Arabians, but the Europeans also (especially the Venetians), knew them before the Portugals.
Besides, the finding of them gives no right but in that which was no man’s before their finding. But the Indians, when the Portugals came unto them, although they were partly idolaters, partly Mahometans, and entangled in grievous sins, yet had they both publicly and privately authority over their own substance and possessions which without just cause could not be taken from them. So with most sound reasons (following other authors of greatest account) the Spaniard Victoria concludeth, “Secular or ecclesiastical Christians,” saith he, “cannot deprive infidels of their equal power and sovereignty for that color only because they are infidels, unless some injury proceeded from them before.” “For faith,” as Thomas saith well, “doth not take away natural or human law from whence dominion proceedeth; nay, it is a point of heresy to believe that infidels are not lords of their own goods, and to take from them their goods which they possess for this very cause is theft and robbery no less than if the same be done to Christians.”
Victoria therefore rightly saith that the Spaniards got no more authority over the Indians for this cause than the Indians had over the Spaniards if any of them had come formerly into Spain. Nor truly are the Indians out of their wits and unsensible but ingenious and sharp-witted, so that no pretence of subjecting them may be taken from hence, which notwithstanding by itself is sufficient manifest iniquity. Plutarch long since calleth it πρόϕασιν πλεονεξίας ημερώσαι τὰ βαρβαρικά, to wit, a wicked desire of that which is another’s, to pretend this color to himself that he may tame the barbarians. And now also that color of bringing the gentiles against their will to a more civil kind of behavior, which the Grecians in times past and Alexander used, is thought wicked and impious of all divines, but specially the Spaniards.
That the Portugals have no right of dominion over the Indians by title of the Pope’s gift
Secondly, if they will use the division of Pope Alexander the Sixth, above all that is specially to be considered whether the Pope would only decide the controversies of Portugals and Spaniards, which surely he might do as a chosen arbitrator between them as the kings themselves had made certain covenants between them concerning that matter, and if it be so when the thing was done between others, it appertaineth not to the rest of the nations; or whether he would give almost all the third part of the world to two peoples, which though the Pope could and would have done, yet shall it not presently follow that the Portugals are lords of those places, seeing their donation maketh not the lords but the livery which followeth, for even to this cause possession ought to be added.
Moreover, if any man will search the law itself either divine or human and not measure it by his private commodity, he shall easily find such a kind of donation of that which is another’s to be of no moment. I will not here enter into disputation concerning the authority of the Pope, to wit, the bishop of the Church of Rome, nor will I absolutely set down anything but by hypothesis, to wit what the most learned men amongst them confess who attribute most to the authority of the Pope, chiefly the Spaniards who, considering through their quickness of wit and understanding they might easily see our lord Christ had rejected all earthly government, he had not truly dominion over the whole world as he was man, and if he had yet could it not be proved by any argument that such right was translated unto Peter or the Church of Rome by the right of vicar; seeing elsewhere also it is certain Christ had many things unto the which the Pope succeeded not, the interpreters affirmed (I will use their own words) that the Pope is not a civil or temporal lord of the whole world; yea, and that more is, if he had any such authority in the world, yet should he not rightly exercise the same, seeing he ought to content himself with his spiritual jurisdiction but could by no means grant it unto secular princes. So then if he have any temporal authority he hath it (as they say) by way of order unto spiritual things, wherefore he hath no authority over infidels seeing they appertain not unto the Church.
Whence it followeth, by the opinion of Cajetanus and Victoria and the better part as well divines as canonists, that it is not a sufficient title against the Indians either because the Pope gave those provinces as absolute lord or because they do not acknowledge the dominion of the Pope, so that the very Saracens were never spoiled under this color and pretence.
That the Portugals have no right of dominion over the Indians by title of war
These things therefore being taken away, seeing it is manifest (which even Victoria writeth) that the Spaniards’ sailing to those remote countries brought no right with them of possessing those provinces, one only title of war remaineth which, though it had been just, yet could not profit them for dominion but by the right of prey, to wit, after the possession. But it is so far from the matter that the Portugals possessed those things that they had no war at that time with many nations to whom the Hollanders went and so therefore no right could be gotten to them when also, if they had received any injuries from the Indians, they are supposed to have forgiven them by reason of the long peace and friendly traffic with them.
Although there were no cause truly that they should pretend war. For they who pursue the barbarians with war, as the Spaniards do the people of America, are wont to pretend two things: that they are hindered from trading with them, or because they will not acknowledge the doctrine of true religion. As for trading, the Portugals obtained it of the Indians, so that in this behalf they have no reason to complain. The other pretence is no juster than that of the Grecians against the barbarians whereat Boethius aimed:
- an distant, quia dissidentque mores,
- injustas acies, et fera bella movent,
- alternisque volunt perire telis?
- non est justa satis saevitiae ratio.
But this is the conclusion both of Thomas and the Council of Toledo, and Gregory and the divines and canonists and almost all the civilians: although faith be declared to the barbarians (for concerning those who were subject before to Christian princes and also of apostates, the question is otherwise) probably and sufficiently and they will not respect it, yet notwithstanding it is not lawful for this reason to pursue them with wars and spoil them of their goods.
It is needful to set down the very words of Cajetan to this purpose:
Certain infidels (saith he) neither in law nor in deed are subject to Christian princes as touching temporal jurisdiction, as they are found pagans who never were subject to the empire of Rome, inhabiting countries where the Christian name never came. For the lords thereof, although infidels, are lawful lords, whether they be governed by regal or politic government, neither are they deprived of the dominion of their lands or goods for their infidelity, seeing dominion is by a positive law and infidelity by the divine law which taketh not away the law positive, as is handled in the question before. And touching these, I know no law concerning temporal things. Against these no king, no emperor, nor the Church of Rome itself, can make war to possess their countries or subdue them temporally because there is no just cause of war, seeing Jesus Christ, the king of kings, to whom power is given in heaven and in earth, hath not sent soldiers of an armed warfare to take possession of the world but holy preachers as sheep among wolves. Whereupon I do not read in the Old Testament where possession was to be taken by arms that war was proclaimed against any country of the infidels because they were infidels but because they would not grant passage or because they had offended them, as the Midianites, or that they might recover their own granted unto them by the divine liberality. Wherefore we should grievously offend if we went about to spread the faith of Jesus Christ by this means, nor should we be lawful lords over them but should commit great robberies and were bound to make restitution as unjust conquerors and possessors. Good preachers should be sent unto them who by the word and their good example should convert them unto God, and not such as might oppress, spoil, offend and conquer them and make them twice more the children of hell after the manner of the Pharisees.
And after this manner we hear it hath been often decreed by the senate in Spain and divines (but chiefly the Dominicans) that the Americans are to be converted to the faith by the preaching of the word only and not by war, and that the liberty also which had been taken from them for that cause should be restored, which is said to be approved of Paulus III the Pope and the emperor Charles the Fifth, king of Spain.
We omit to speak that the Portugals now in most parts promote not religion nor so much as do there endeavor, seeing they are wholly bent to lucre, nay and that also to be true there which a Spaniard writ of the Spaniards of America, that no miracles, no signs and tokens, are to be heard of, no examples of a religious life which might vehemently persuade others to the same faith, but many scandals, many wicked deeds, many impieties.
Wherefore, seeing both possession and title of possession fail, neither the substance nor jurisdiction of the Indians should be accounted in that nature as if they had been no man’s before, neither seeing they were theirs could be rightly gotten by others. It follows that the peoples of India of whom we speak are not proper to the Portugals but free and in their own power, whereof the very Spanish doctors themselves make no question.
That the sea or right of sailing on it is not proper to the Portugals by title of possession
If then the Portugals obtained no right over the people, countries, and jurisdictions, let us see whether they can make the sea and navigation or traffic to be in their power. Let us first consider of the sea which, seeing it is everywhere said to be no man’s right, or common, or the public right of nations, what these words signify shall be most fitly declared if, following all poets from Hesiodus and philosophers and ancient civilians, we distinguish those things into times, which peradventure not a long time, yet notwithstanding by certain reason and their nature, are distinguished. Neither are we to be blamed if in the explanation of the law of nature we use their authority and words who (as it is manifest) were most powerful in the judgment of nature.
We are to know, therefore, in the first beginning of the life of man, dominion was another thing and communion differing from that which they are now. For now dominion properly signifieth that which so appertaineth unto one that after the same manner it cannot be another’s, but we call that common whose propriety is conferred among many with a certain fellowship and agreement excluding the rest. The defect of tongues hath enforced to use the same words in a thing which was not the same. And so these names of our custom are referred to that ancient law by a certain similitude and resemblance. That, therefore, which at that time was common was no other thing than that which is simply opposed unto proper. But dominion is a just or lawful power to use a common thing, which it seemed good to the Schoolmen to call usum facti, non juris because that use which is now called use in law or right is a certain propriety, or (that I may speak after their manner) is said privatively unto others.
By the first law of nations, which sometimes also is called natural and which the poets elsewhere describe in the golden age, and in another place in the kingdom of Saturn or Justice, nothing was proper, which Cicero affirmed: “For by nature nothing is private.” And Horace:
- nam proprie telluris herum natura nec illum,
- nec me, nec quemquam statuit.
For nature could not distinguish lords. In this signification, therefore, we affirm all things common at that time, signifying the same thing which the poets do when they say the first men sought the middle and justice held the middle of things by a chaste and inviolable covenant; which, that they might more plainly express, they deny that the fields were divided by bounds at that time or that there was any traffic:
- promiscua rura per agros
- praestiterant cunctis communia cuncta videri.
This word videri is rightly added by reason of the translation of the word as we have said. But this communion was referred unto use:
- pervium cunctis iter,
- communis usus omnium rerum fuit.
By reason whereof there was a certain kind of dominion, but universal and indefinite. For God gave all things not to this man or that but to mankind and after that manner many may be wholly lords of the same thing; but if we take dominion in that signification which it hath at this day it is against all reason, for this includeth a propriety which then no man had. But that is most aptly spoken:
- omnia rerum
- usurpantis erant.
But it seemeth we are come to that distinction of dominions which is now not violent but by little and little, nature showing the beginning thereof. For seeing there are many things the use whereof consisteth in abuse, or for that being converted into the substance of the user they admit no use after, or because by use they are made worse for use, in things of the former kind, as meat and drink, a certain propriety appeared not severed from use. For this is to be proper, so to appertain to any that it cannot also be another’s, which afterwards by a certain reason was derived to things of the latter kind, to wit, garments and chattels or movables; which being so, all immovable things—to wit, fields—could not remain undivided, although the use of them consist not simply in abuse, yet the use thereof was procured by reason of some abuse, as ploughed fields and orchards of fruit trees for food, pastures also for raiment, but they could not in common suffice for the use of all people. Property being found out, there was a law set down which should imitate nature. For, as in the beginning that use was had by corporal application whence, we said before, property had his original, so by the like application it seemed good they should be made the proper goods of everyone. This is that which is called occupation by a word most aptly applied unto those things which before were indifferent. Whereunto the tragedian Seneca alludeth,
- in medio est scelus
- positum occupanti,
and the philosopher, “All things pertaining to the Horsemen belonged to the gentlemen of Rome, yet amongst them is my proper place which I possessed.” Hereupon Quintilian saith it is natural to all that there should be a reward of industry and Tully that things by ancient occupation became theirs who in times past succeeded into the goods of the dead. But this occupation in those things which resist possession, as wild beasts, ought to be perpetual; in other things it sufficeth that a corporal possession begun be retained in the mind. Occupation or possession in movables is apprehension; in immovables, instruction and limitation. Whereupon when Hermogenianus saith they were distinct dominions he added that the fields were bounded and houses built. This state of things is declared of poets:
- tum laqueis captare feras, et fallere visco
- tum primum subiere domos;
- communemque prius, ceu lumina solis et aurae
- cautus humum longo signavit limite messor.
After these things, intercourse of merchandise began to come in use, for which cause,
- fluctibus ignotis insultavere carinae.
The same time commonwealths began to be instituted and established. And so of those which were divided or separated from the first common two kinds are made, for some things are public, to wit, proper to the people (which is the double signification of this word), some things mere private, to wit, proper to every particular man. But occupation is made public after the same manner that it is made private. Seneca saith, “we call those the bounds of the Athenians or Campanians which afterward the borderers divide among themselves by private bounds.” For every nation,
- partita fines regna constituit, novas
- extruxit urbes.
After this manner Cicero saith, “the territory of the Arpinates is called Arpinatum, of the Tusculans, Tusculanum; the like description,” saith he, “is of private possessions, whereupon because every man’s own consisteth of those things which by nature were common, let every man hold that which fell to his share.” But contrariwise Thucydides calleth that land which fell to no people in division ἀοριστον, to wit, indefinite.
Of these things which hitherto have been spoken two things may be gathered. The first is that those things which cannot be occupied or were never occupied can be proper to none because all propriety hath his beginning from occupation. The other is that all those things which are so ordained by nature that anyone using them they may nevertheless suffice others whomsoever for the common use are at this day (and perpetually ought to be) of the same condition whereof they were when nature first discovered them. Cicero meaneth this when he saith, “This society among all showeth itself far to all men among themselves, in the which a community of all those things which nature brought forth for the common use is to be preserved.” But all things are of this kind, wherein without the damage of one another may be pleasured. Hence, saith Cicero, is that “not to forbid running water.” For running water as it is such, not as it is a river, is acknowledged of the civilians to be in the number of those things which are common to all; and of the poet,
- quid prohibetis aquas? usus communis aquarum est.
- nec solem proprium natura, nec aera fecit,
- nec tenues undas: in publica munera veni.
He affirmeth these things not to be proper by nature—as Ulpian saith, they lie open to all by nature —both because they were first discovered by nature and never came as yet into the dominion of any (as Neratius speaketh), and also because (as Cicero saith) they seem to be brought forth of nature for the common use. But he calleth those things public by a translated signification, not which appertain to any one country and people but to the whole society of mankind, which in the laws are called publica juris gentium: that is, common to all and proper to none. Of this kind the air is for a double reason, both because it cannot be possessed and also because it oweth a common use to men. And for the same cause the element of the sea is common to all, to wit, so infinite that it cannot be possessed and applied to all uses, whether we respect navigation or fishing. Whose ever the sea is, theirs also are those things which the sea, taking away from others’ uses, hath made for own, as the sands of the sea, part whereof joining to the land is called the shore. Cicero therefore saith well, “what is so common as the sea to them that float thereon and the shore for them that are cast out.” Virgil also saith that the air, the water and the shore lie open unto all.
These things therefore are those which the Romans call common unto all by the laws of nature, or which are said to be the same publica juris gentium, as also they call the use of them sometimes common and sometimes public. But although even those things are rightly said to be no man’s as touching the property, yet they differ much from those things which are no man’s and are not attributed to common use, as wild beasts, fishes and birds. For if any man possess these they may become his proper right, but those things by the consent of all mankind are perpetually exempted from propriety for use which, seeing it belongeth to all, it can no more be taken away by one from all than you may take away that from me which is mine. This is that which Cicero saith, that it is among the first or chief duties of justice to use common things for common things. The Schoolmen would say that some things are common affirmatively and some privatively. This distinction is not only very common among the civilians but also it expresseth the confession of the common people, whereupon the master of the feast in Athenaeus saith the sea was common but the fishes theirs that could take them. And in Plautina, to one that said unto him, keeping his cable, “The sea was common for all,” the fisherman consented, but when he added, “It was found in the sea; it is common,” it came well to hand: “That which my net and hooks have gotten is principally mine.”
The sea therefore cannot be altogether proper unto any because nature doth not permit but commandeth it should be common, no nor so much as the shore, but that this interpretation is to be added: that if any of those things by nature may be occupied, that may so far forth become the occupant’s as by such occupation the common use be not hindered. Which is worthily received and approved, for seeing it is so, both exceptions cease whereby we said it came to pass that all things should not be transferred to proper right.
Because therefore building is a kind of occupation, it is lawful to build upon the shore if it may be without the hurt of the rest, as Pomponius speaketh, which we will expound out of Scaevola, unless the public, that is to say, the common use should be hindered. And he which hath built shall become lord of the soil because that ground was proper to none nor necessary for the common use; it is therefore the occupant’s, but no longer than the occupation continueth, because the sea seemeth to resist possession, by the example of a wild beast which, if it betake itself to the natural liberty, is no longer his who was the taker; so also the shore, which afterward giveth place unto the sea again.
But whatsoever may become private by occupation we have declared that the same may also become public, that is to say, proper to the people. So Celsus thinketh that the shore enclosed within the bounds of the empire of Rome appertaineth to the people of Rome; which, if it be so, it is no marvel that the same people could grant a means (by their prince or praetor) to their subjects how to possess the shore. But even this occupation, no less than private, is so to be restrained that it stretch no further than that the public use may be preserved. No man therefore may be forbidden by the people of Rome to come unto the sea-shore and to dry their nets and do other things which once all men would have perpetually to be lawful for them.
But the nature of the sea differeth in this from the shore in that the sea, unless it be in some small part thereof, cannot easily be built upon nor can be included, and though it could, yet this notwithstanding should scarce happen without the impediment of the common use, yet if any little part may so be occupied it is granted to the occupant. It is therefore a hyperbole:
- contracta pisces aequora sentiunt
- iactis in altum molibus.
For Celsus saith that planks or piles laid in the sea are his who laid them, but that is not to be granted if the use of the sea by that means shall become worse. And Ulpian saith that he that dams up the sea is so to be allowed and defended if no man be hurt thereby. For if this thing shall hurt any man surely he must be forbidden, that nothing be done in a public place. As Labeo also saith, if any such thing be built in the sea he will have him forbidden, “that nothing be done in the sea whereby the haven, road or way for ships may be made the worse.”
And the same regard that is to be had of navigation is to be had likewise of fishing, that it may remain common unto all. Yet shall not he offend that encloseth a place of fishing for himself with stakes or piles in a creek of the sea and so maketh it private, as Lucullus who cut down a hill at Naples to let in the sea to his farm? And of this kind I think the fishponds upon the sea-coast were whereof Varro and Columella make mention. Neither did Martial mean otherwise when he speaketh of Formianus of Apollinaris:
- si quando Nereus sentit Aeoli regnum,
- ridet procellas tuta de suo mensa.
And Ambrose: “Thou bringest the sea within thy manors lest monsters should be wanting.” Hence it may appear of what mind Paul[us] was: “if the proper right of the sea appertain to any, as ye possess them, he must be forbidden.” That this interdiction was ordained for private causes not for public, wherein also those things are comprehended which by the common law of nature we may do, but here the right of enjoying is handled which happeneth upon a private cause, not public or common. For Marcian testifieth whatsoever is possessed or may be possessed, that now appertaineth not to the law of nations as the sea doth: as, for example, if any had forbid Lucullus or Apollinaris to fish in that which was private unto them in regard they enclosed a creek of the sea, Paulus thought they were to be forbidden, not only an action of trespass to be brought against them by reason of the private possession.
Nay, in a creek of the sea, as in a creek of a river, if I have possessed such a place and have fished there, specially if I have testified my purpose privately of possessing it by the continuance of many years, by that right I may forbid another to use the same (as we gather out of Marcian) no otherwise than in a lake in my jurisdiction, which is true so long as occupation continueth, as we said before of the shore. The same shall not be without the creek lest the common use be hindered.
It is a very usual thing therefore that men forbid any to fish before my house or the prince’s palace, but by no right, so that Ulpian contemning that usurpation saith if any be forbid he may have an action of trespass. The emperor Leo (whose laws we use not) changed this against the reason of the law and would have προθυρα, that is to say, the front of the sea, to be proper unto them who inhabited that coast, and that they have right of fishing there; which yet he would have proceed so far, that the place should be possessed with certain stopping enclosures or sluices, which the Greeks call ∊ποχας, thinking doubtless it should not come to pass that any should envy another a little portion of the sea who should be admitted himself to fish in the whole sea. Surely, howsoever any take away a great part of the sea from public utility, although he be able to do it, it is intolerable wickedness against which the holy man Ambrose inveigheth: “They challenge unto themselves the length of the sea by the law of a bondslave, and mention the right of fishes as of slaves subject to them in a servile condition. This gulf of the sea,” saith he, “is mine; that, another’s. Thus mighty men divide the elements unto themselves.”
The sea therefore is in the number of those things which are not in merchandise and trading, that is to say, which cannot be made proper. Whence it followeth, if we speak properly, no part of the sea can be accompted in the territory of any people. Which thing Placentius seemeth to have meant when he said, “That the sea was so common, that it may be in the dominion of none but God alone,” and Johannes Faber, “When the sea shall depart, left in his ancient right and being, wherein all things were common,” otherwise those things which are common to all shall differ nothing from those things which are properly called public, as the sea from a river. The people of a country might possess a river as included within their bounds, but so could they not the sea.
But territories are of the possession of a people as private dominions are of the possessions of particular men. Celsus saw this, who clearly enough distinguisheth between the shores which the people of Rome might occupy, yet so that the common use should not be hurt and the sea which retained her ancient nature. Neither doth any law show the contrary. But those laws which are cited out of authors of contrary opinion either speak concerning islands (which is clear might be possessed) or else concerning a haven, which is not common but properly public.
But they who say that some sea appertaineth to the empire of Rome interpret their saying so that they affirm that right over the sea proceedeth not beyond protection and jurisdiction, which right they distinguish from propriety; nor peradventure do they sufficiently observe that, in that the people of Rome might appoint a convoy for the aid and succor of such as passed the seas and punish such pirates as were taken on the sea, it happened not by any proper right but of the common right which also other free nations have in the sea. In the mean space we yet confess this that some nations might agree among themselves that such as were taken in this or that part should be judged by this or that commonwealth, and so for the benefit of distinguishing jurisdictions the bounds in the sea to be described, which truly bindeth the making that law to themselves which could not bind other people in like manner. Neither doth it make the place proper to any but conferreth the right upon the persons of the contractors.
Which distinction, as it is agreeable to nature, so it was approved by a certain answer of Ulpian who, being demanded whether the lord of two manors upon the sea could impose servitude upon one of them which he would sell, that it should not thereby be lawful to fish in a certain place of the sea, answered the thing itself, that the sea could not have any servitude imposed on it because by nature it should be open to all, but seeing the true meaning of a contract required the law of sale to be kept, the persons of the possessors and such as succeeded in their right were bound by this law. It is true that the lawyer spoke of private manors and a private law but in a territory and law of the people here is the same reason, because the people in respect of all mankind have the place of private men.
In like manner, the rents which are set down for fishing upon the sea-coast are reckoned in the number of royalties, and bind not the thing, that is, the sea or fishing, but the persons. Wherefore subjects over whom the commonwealth or prince have power to make a law by consent may peradventure be compelled to these burdens and impositions, but the right of fishing everywhere ought to be free to foreigners, that servitude be not imposed on the sea, which cannot serve.
For the reason of the sea and of a river is not the same, which seeing it is public, that is to say, the people’s, the right also of fishing in it may be granted or letten by the people or prince, so that they of ancient time gave a prohibition of enjoying a public place to him who hired it, adding a condition “if he who had the right of letting let it to any to enjoy,” which condition cannot be in the sea. But they that reckon fishing in the number of royalties did not sufficiently consider that place which they interpreted, whereof Isernia and Alvarotus were not ignorant.
It hath been declared that neither the people nor any private man can have any property in the sea (for we excepted a creek), seeing neither the consideration of public use nor nature permitted occupation. And indeed this disputation was appointed for this purpose that it might appear the Portugals have not made the sea whereby we sail to the Indies to be in their jurisdiction. For both reasons which hinder propriety are infinitely more effectual in this case than in all the rest. That which in other things seemeth hard cannot be so at all in this; that which we judge unjust in others in this is most barbarous and inhuman.
We treat not here of an inland sea which here and there spreading itself upon the earth and somewhere also exceeds not the breadth of a river, whereof yet it is manifest the Roman lawyers spake when they uttered or published those noble sentences against private avarice. The question is concerning the whole ocean, which antiquity calleth unmeasurable and infinite, the parent of things bordering upon heaven, with whose perpetual moisture the ancients supposed not only fountains and rivers and seas, but also the clouds and the very stars themselves, in some sort to be maintained, which finally compassing the earth (this seat of mankind) by the reciprocal courses of tides can neither be kept back nor included and more truly possesseth than is possessed.
And in this ocean the controversy is not of a bay or narrow strait or concerning all that may be seen from the shore. The Portugals challenge to themselves whatsoever lies between two worlds divided by so great distance that in many ages they could not from place to place convey the report of them. But if the portion of the Castilians (who are in the same case) be added, little less than the whole ocean is enthralled to two nations, so many other nations being brought to the narrow straits of the north, and nature is much deceived who, seeing she hath scattered this element over all, thought also it should suffice all. If any in so great a sea should take empire and jurisdiction wholly to himself from the common use, yet nevertheless he should be accompted an ambitious seeker of excessive dominion; if any should forbid others to fish, he could not escape the brand of the brainsick covetousness. But he that doth also hinder navigation whereby he loseth nothing, what shall we conclude of him?
If any should forbid another to take fire from his fire, which is wholly his, and light from his light, by the law of human society I would accuse and sue him to condemnation, because the force of this nature is such
- ut nihilominus ipsi luceat, cum illi accenderit.
What else, for when he may without his own damage let him impart unto another in such things as are profitable to the receiver and not offensive to the giver?
These be the duties which the philosophers will have performed not only to strangers but also to the unthankful. That which is envy in private things in a common thing cannot but be cruelty. For this is most wicked for thee so to intercept that which by the appointment of nature and by the consent of nations is no less mine than thine, that thou wilt not grant me so much as the use, which granted, that may be thine no less than it was before.
But then if they also who violently take other men’s goods and intercept common things defend themselves with a certain kind of possession. For because (as we said) the first possession maketh things proper, therefore a detaining, although it be unjust, carrieth a certain kind of show of dominion. But whither have the Portugals compassed that sea with garrisons placed there, as we use to do the land, that so it should be in their power to exclude whom they would? Or whither is it so far off that they also, when they divide the world against other nations they defend themselves, not by any limits either by nature or set by hand but by a certain imaginary line? Which if it be allowed, and such a dimension be sufficient for possession, the geometricians should long since have taken away the earth from us and the astronomers heaven.
Where is therefore this adjoining of body to body, without which no dominion began? Surely that which our doctors have delivered appeareth not more truly spoken in anything: that seeing the sea is incomprehensible, no less than the air, it can be added to the goods of no nation.
But if they call this possession, that they sailed before others and after a sort opened the way, what can be more ridiculous? For seeing there is no part of the sea into the which someone hath not entered first, it will follow that all navigation was possessed of some. So we are every way excluded. And they also who were carried about the whole world shall be said to have gotten the whole ocean to themselves. But no man is ignorant that a ship passing the seas leaveth no more right than the way thereof. But that they also assume unto themselves that no man sailed that ocean before them it is not true, for a great part of that sea whereof we speak, round about Mauritania, was long since sailed and that part of the sea beyond, bending toward the east, in the victories of Alexander the Great was compassed, even to the gulf of Arabia.
There are also many arguments to prove that this voyage by sea was well known in times past to those people or islanders of Gades. Caius Caesar, the son of Augustus, having to do in the gulf of Arabia, the marks or tokens of ships remaining of the Spanish wrecks were known unto him of old, which also Caelius Antipater reported he saw, who sailed from Spain to Aethiopia for trade of merchandise, and to the Arabians also, if it be true which Cornelius Nepos witnesseth, that a certain man called Eudoxus in his times, when he fled from Lathyrus, king of Alexandria, coming forth of the Arabian Gulf, was brought to the islands Gades. It is most evident also that the Carthaginians, who were well skilled in matters of the sea, could not be ignorant of that ocean, seeing Hanno, when Carthage most flourished, being carried about from Gades to the uttermost bounds of Arabia, sailing by the promontory now called the Cape de Bona Esperanza (whose ancient name seemeth to have been Hesperion Ceras), hath set down all that voyage in writing with the situation of the shore and islands, and witnesseth at last that not the sea but provisions failed him.
That also in the flourishing estate of Rome they were wont to sail from the Arabian gulf to India and the islands of the Indian Ocean, even to golden Chersonesus (which most men suppose to be Japan), the voyage described of Pliny, the embassages from the Indies to Augustus, to Claudius also from the island Taprobane, besides the worthy acts of Trajan and Ptolemy’s tables, sufficiently declare. Strabo witnesseth that even in his time a fleet of Alexandrian merchants out of the Arabian Gulf sailed to the furthest parts of Aethiopia, and so of India, when in times past few ships durst attempt it. Thereby the people of Rome had great revenues. Pliny addeth that they sailed having shipped bands of archers for fear of pirates, and that India alone took away yearly from the empire of Rome 500 sestertia (if you add Arabia and Seres they took 1,000), and that the merchandise were sold for a hundredfold more.
These ancient testimonies sufficiently argue that the Portugals were not the first. That ocean in every particular part thereof, both then when the Portugals first entered it and also before, was never unknown, for the Moors, Aethiopians, Arabians, Persians, and Indians could no way be ignorant of that part of the sea whereof they were borderers. They therefore speak untruly who boast that they first found out that sea.
What therefore shall any man say? Seemeth it a final matter that the Portugals have renewed navigation first, intermitted peradventure so many ages and (which cannot be denied) have discovered it unknown to the nations of Europe through their great labor, cost and danger? Nay truly, if this hath been all the care and endeavor, to show that to all which they only have found, who is so mad that would not profess himself much indebted unto them? For they should deserve the same thanks, praise and immortal glory wherewith all discoverers of great matters have been contented, how many soever have endeavored not to benefit themselves but mankind. But if the Portugals had their own gain before their eyes, gain (which always is the greatest thing in perverting negotiations) ought to suffice them. For we know the first voyages sometimes have yielded fortyfold increase or more, whereby it came to pass that a people who were long time poor came suddenly to unexpected riches, in so great excess of riot as scarce befell the happiest nations in the highest degree of fortune’s long progress.
But if they went before in this, that no man should follow, they deserve no thanks, seeing they respected their own gain, but they cannot call it their gain when they take away that which is another’s. Neither is that certain unless the Portugals had gone thither that no man would have gone, for the times were at hand wherein, as almost all arts, so the situation of seas and countries were daily more clearly known unto us. The ancient examples which we now reported would have provoked us, and if all had not been discovered at one clap yet by little and little the shores had been descried by sailing, one shore always discovering another. Finally that had come to pass which the Portugals hath taught us might be done, seeing there were many nations no less inflamed with the desire of merchandise and foreign commodities. The Venetians, who had learned many things of India, would have been as ready to seek as the rest. The undaunted diligence of the Bretons of France and the stout courage of the English should not have been wanting to this enterprise. And the Hollanders themselves have attempted much more desperate matters.
No reason therefore of equity nor surely any probable opinion maketh for the Portugals. For all they who will by possibility have the sea subject to the command of any attribute it to him who have the next havens and bordering shores in his jurisdiction. But the Portugals in that huge coast of shores have nothing except a few garrisons which they may call theirs.
Moreover, also he that should have authority over the sea could diminish nothing of the common use, as the people of Rome could hinder none from using all things in the shore of the empire of Rome which were permitted by the law of nations. And if it could forbid any of those things, to wit, fishing, whereby it may be said after a sort that fishes should be taken, yet they could not forbid navigation, whereby the sea loseth nothing.
For proof whereof that which we have delivered by the opinion of doctors is a most certain argument: that on the land, which is given both to nations and every particular man in property, a quiet and harmless passage can justly be denied to no men of any nation, no more than drink out of a river. The reason appeareth because, seeing the uses of one thing were naturally divers, the nations only seem to have divided it among themselves, which cannot conveniently without property be had and contrarily he received it by whom the condition of the lord should not be made the worse.
All men therefore see that he who would forbid another to sail can defend himself by no law, seeing Ulpian saith he is guilty of wrong. Others also thought that he that is forbid may have a prohibition.
And so the intention of the Hollanders is grounded upon the common law, seeing all men confess that all men are permitted to sail in the sea though leave be obtained of no prince, which is plainly expressed in the Spanish laws.
The sea or right of navigation is not proper to
the Portugals by title of the Pope’s gift
The donation of Pope Alexander, which may be alleged in the second place by the Portugals challenging the sea or right of sailing only to themselves, seeing the title of invention faileth, is sufficiently convinced of vanity by that which hath been spoken before. For donation hath no force in things which are without the compass of merchandise, wherefore, seeing the sea or the right of sailing in it can be proper to no man, it follows that it could neither be given by the Pope nor received of the Portugals. Further, seeing it is before declared by the opinion of all men of sound judgment that the Pope is not a temporal lord of the whole world, it is sufficiently understood that he is not lord of the sea. Although that be granted, yet the right annexed to the papacy should in no part be transferred to any king or people, as the emperor could not convert or alien at his pleasure the provinces of the empire to his own uses.
That no man, at the least that hath any shame, will deny, seeing no man will grant the Pope right of disposing in temporal things unless peradventure so much as his necessity of spiritual things requireth, but these things whereof we now treat—to wit, the sea and the right of sailing—respect gain and mere profit, not the affairs of piety; it follows that his power in this was nothing. What, cannot princes indeed, that is temporal lords, by any means hinder any from navigation, seeing if they have any right in the sea it is only the right of protection and jurisdiction? That also is well known among all that the Pope hath no authority to do these things which are contrary to the law of nature. But it is contrary to the law of nature that anyone should have the sea or the use thereof proper to himself, as we have now sufficiently declared. To conclude, therefore: seeing the Pope cannot take any man’s right from him, what defense shall this fact have if with one word he should exclude so many people, undeserving, uncondemned and harmless, from that right which no less appertained unto them than to the Spaniards?
Therefore we must either say that such a pronouncing was of no force or, which is no less credible, that the Pope’s meaning was such that he desired the strife between the Castilians and the Portugals should be mediated but nothing of others’ right diminished.
That the sea or right of sailing is not proper to
the Portugals by title of prescription or custom
The last defense of injustice is wont to be in prescription or custom. And the Portugals therefore come thronging hither, but the most certain reason of the law debarreth them of either defense. For prescription is from the civil law, wherefore it can have no place among kings or among free people, much less where the law of nature or nations resisteth it, which always is more forcible than the civil law. But here even the very civil law itself forbiddeth prescription. For those things are forbidden to be gotten by prescription which cannot be accounted in the nature of goods, next those things which at all cannot be possessed nor as it were possessed and whose alienation is prohibited. But all these are truly said of the sea and the use thereof.
And seeing public things—that is to say, appertaining to any people—can be said to be gotten by no possession of time, either by reason of the nature of the thing or by reason of their privilege against whom this prescription should proceed, how much more justly was that benefit to be given in common things to mankind than to one people? And this that which Papinianus hath left in writing, that prescription of long possession to obtain the public place of the law of nations is not wont to be granted. And he giveth an example thereof in a shore, part whereof was possessed by a building set upon it, for that being overthrown and another man’s building set up in the same place afterward could not be opposed as an exception, which he illustrateth by a similitude of a public thing. For although any man have fished many years in the creek river, afterwards, the fishing being interrupted, he could not forbid another by the same right.
It is apparent therefore that Angelus and they who with Angelus said that the Venetians and Janueses might get sound right to a bay of their sea lying before their shore were either deceived or deceivers, which is too usual among lawyers, seeing they confer the authority of a holy profession not to reason and laws but to the favor of the more mighty. For surely Marcianus’ answer (whereof also we spake before), if it be rightly compared with Papinianus’ word, can receive no other interpretation than that which was sometimes allowed of Johannes and Bartolus and is now received of all the learned: to wit, that the right of prohibiting should proceed so long as the occupation continueth, but not if it be omitted. For being omitted it profiteth not, although it had been continued a thousand years, as Castrensis rightly observeth. And although Marcianus would have had it so (which he is not supposed to have thought) that prescription should be granted in the same place where the occupation is granted, yet to apply that which was spoken of a public river to the common sea, and of a creek to a bay, was absurd, seeing this prescription should hinder that use which by the law of nations is common, but that should not much hurt the public use. But the other argument of Angelus, drawn from conduit, by the opinion of the same Castrensis is worthily exploded of all as furthest from the question.
It is false therefore that such a prescription should be created at that time whose beginning might exceed all memory. For where the law taketh away all prescription, this time surely is not admitted; that is to say, as Felinus speaketh, a matter unprescribable is not made prescribable by time out of mind. Balbus confesseth this to be true but saith that the opinion of Angelus was allowed for this reason: because time out of mind is supposed to be of the same validity that privilege is, seeing the best title may be presumed to be drawn from such a time. Hereby it appeareth that they meant nothing else than if any part of a commonwealth (as, for example, the empire of Rome) beyond all memory had used such a right, by this color a prescription was to be given unto it as though the grant of the prince had gone before. Wherefore, seeing no man may be lord of all mankind who might grant that right to any man or people against all men, that color being taken away it is necessary also that prescription should be overthrown. And so also by their opinion the course of infinite time among kings or free people can nothing avail.
But that also is most vain or foolish which Angelus taught: although prescription cannot profit for dominion yet an exception was to be given to the possessor. For Papinian in plain words denieth the exception. And he could not think otherwise, seeing in his time prescription was nothing else but exception. It is true, therefore, which the Spanish laws express: in those things which are attributed to the common use of men, no prescription of time at all can proceed, of which definition that reason before the rest may begin, that who so useth a common thing seemeth to use it as common, not in his proper right, and so can no more prescribe than he that taketh the benefit of a thing by the fault of possession.
This other also is not lightly to be regarded: that in prescription of time out of mind, although title and plain dealing may be presumed, yet if it appear indeed that no title may be given and so the deceit be manifest (which specially in the people, as in one body, is thought to be perpetual), the prescription faileth by reason of the double effect. But the third reason is because this thing is of mere faculty, whereof there is no prescription, as we will show hereafter.
But there is no end of subtle arguments. There are some found who in this argument would distinguish custom from prescription, that being excluded from that they might fly unto this. But the difference they make herein is ridiculous. They say that by prescription the right which is taken from one is applied unto another, but when any right is so applied to any that it be not taken away from another, then it is called custom. As if when the right of navigation (which commonly appertaineth unto all) is usurped of one, excluding others, it is not necessary that so much as cometh unto one should be lost unto all. The words of Paulus not rightly understood gave occasion to this error, who, when he spake of the proper right of the sea appertaining to any, Accursius said it might to be done by privilege or custom, which additament no way agreeing with the text of the lawyer seemeth rather to be the addition of an evil conjecturer than a good interpreter. The meaning of Paulus is before declared. But if they had advisedly considered but the very words of Ulpian which go a little before they would have said far otherwise. For he confesseth it was a usual thing to forbid any to fish before my house—that is to say, received by custom but by no right—and therefore an action of trespass was not to be denied him who was forbidden.
He therefore contemneth this custom and calleth it usurpation, as also Ambrose doth amongst the Christian doctors. And worthily. For what is more clear than that such a custom should not be of force which is opposed clean contrary to the law of nature or the law of nations? For custom is a kind of positive law which cannot derogate from the perpetual law. But that law is perpetual that the sea should be common in use unto all. But what we said in prescription, the same is true in custom; if any man examine the meaning of them who have delivered the contrary, he shall find no other thing but that custom is equivalent to privilege. But no man hath power to grant a privilege against mankind. Wherefore between divers commonwealths this custom hath no force.
But Vasquius, the honor of Spain, hath most carefully handled all this question, whose subtlety in sifting the law and liberty in teaching you would never look for. He, therefore, setting down the question that public places and such as are common by the law of nations cannot be prescribed, confirmeth it by many authorities and after addeth the exceptions framed by Angelus and others which we have before recited. And being about to examine these things, he rightly judgeth that the truth thereof dependeth as well upon the true knowledge of the law of nature as of the law of nations. For seeing the law of nature proceedeth from the divine providence, it is immutable. But part of this natural law is the law of nations, which is said to be that of the first age, diverse from the secondary or positive law of nations, whereof the latter may be changed. For if any customs be contrary to the ancient laws of nations, those be not human (thyself being judge) but brutish corruption and abuses not laws and customs. Therefore they could be prescribed by no time, justified by no law, nor be established, although it were by the consent, entertainment or exercise of many nations, which he confirmeth by some examples and the testimony of Alphonsus Castrensis the Spanish divine:
By the which it appeareth (saith he) how much their opinion, of whom we spoke before, is to be suspected who think the Genoese or also the Venetians might lawfully prohibit others to sail through the gulf of their sea, as if they would prescribe for the sea itself, which is not only against the laws but also against the law of nature itself or the ancient law of nations which, as we have said, cannot be changed. That it is against that law it is manifest, because not only the sea or air by that law were common, but also all things else that were immovable. And albeit in part they afterward varied from that law, to wit, as concerning dominion and property of countries, the dominion whereof by nature being common was distinguished and divided, and so there was a separation from that community. Yet it was and is differing in the dominion of the sea which from the beginning of the world even to this day and always hath been in common, in no part changed, as is well known.
And although I have often heard a great multitude of the Portugals to be of this opinion that their king hath so prescribed for navigation of the West Indian (peradventure the East), yea and that a most huge sea, that it should not be lawful for other nations to cross those seas, and among our Spanish nation the common sort seem almost to be of the same opinion that it should not be lawful for others save only the Spaniards to sail through that huge and vast sea to the Indies which our most puissant kings have conquered, as if they prescribed for that right. Yet all these men’s opinions are no less foolish than theirs who, as touching the Genoese and Venetians, are wont to be in the same dream, which opinions that they are fond appeareth more clearly even by this, that every one of these nations cannot prescribe against themselves. That is to say, the commonwealth of the Venetians cannot prescribe against itself, nor the commonwealth of the Genoese against itself, nor the kingdom of Spain against itself, nor the kingdom of Portugal against itself. For there ought to be a difference between the agent and the patient.
But against other nations they can prescribe much less because the right of prescription is mere civil, as we have before declared at large. Therefore, such a right ceaseth when the case is between princes or people not acknowledging a superior in temporal things. For laws which are mere civil, of what country soever, as touching foreign people, nations, or particular men, are no more in consideration than if indeed there were no such law or never had been, and we must have recourse to the ancient common or secondary law of nations and are to use the same, by which law it is sufficiently known that such prescription and usurpation of the sea was not admitted. It maketh for our purpose, for even at this day the use of waters is common no otherwise than it was from the beginning of the world. Therefore in the seas and waters no other right can be to mankind than for the common use. Moreover, by law natural and divine it is commanded that thou do not that to another which thou would desire not have done to thee. Whereupon, seeing navigation can be hurtful to none but to him that saileth, it is meet that none either ought or can be barred, lest in a thing which is free by nature and nothing at all hurtful unto him he hinder or hurt the liberty of such as sail contrary to the said precept and contrary to the rule, especially seeing all things are understood to be permitted which are not found expressly forbidden. Furthermore, it should not only be against the law natural to be willing to hinder such navigation, but also we are bound to do the contrary: to wit, to profit those whom we may when it may be done without our damage.
Which, when he had confirmed by many divine and human authorities, he added after:
By those things which have been formerly delivered it appeareth also that the opinion of Faber, Angelus, Baldus, and Franciscus Balbus (whom we before recited) is suspected, who thought that common places, by the law of nations although they could not be gotten by prescription yet by custom they might, which is altogether false, and that tradition is a blind tradition and of no force and without any light of reason and making a law for words and not for things. For in the examples of the sea of the Spaniards, Portugals, Venetians, Genoese and the rest, it is manifest that such a right of sailing and of forbidding others to sail is no more gained by custom than by prescription. For in both cases, as appeareth, the reason is alike. And because by the laws and reasons before alleged it had been against natural equity nor should procure any benefit but only hurt, and so as by express law they could not be brought in, so also nor by the secret law such as custom is. And it could not be justified by time, but should daily be made worse and more injurious.
After that he showeth that from the first possession of countries, as the right of hunting so the right of fishing in their own river may belong to a people, and after those things are once separated from the ancient community so that they admit a particular application by prescription of that time, the memory of whose beginning is not extant, they may, as it were by the secret grant of the people, be gotten and obtained. But that this cometh to pass by prescription not by custom, because the condition only of the getter should be made the better and the estate of the rest the worse. And when he had reckoned up three things which are required to prescribe a property for fishing in a river, he addeth:
But what for the sea? And therein it is more, that even the concurring of these three things would not suffice to get a right. The reason of the difference of the sea on the one part and the earth and rivers on the other is this: because in that case, as in times past so at this day and always, as well for fishing and for navigation, the ancient law of nations remained entire, nor was it ever separated from the community of men and applied to a particular man or to any. But in the latter case, to wit, in the land or rivers, it was otherwise, as we have now disputed.
But why did the secondary law of nations, as it maketh that separation for countries and rivers, cease to do the same in the sea? Answer, because in that case it was expedient it should be so, but in this case it was not expedient. For it is manifest that if many hunt on the land or fish in a river, the forest will soon be without game and the river without fishes, which is not so in the sea. Further, a river is easily emptied by conduit; it is not so in the sea. Therefore in both the reason is not alike.
Nor doth it appertain to the matter which we said before, that the use of waters was common, even of fountains and rivers. For it is understood concerning drinking thereof and the like which lightly, or little or nothing, hurt him who hath the right or dominion of the river. For the least things are not respected in the law. It maketh for our opinions because unjust things can be prescribed by no time and therefore an unjust law is prescribed or justified by no time.
Again, those things which are unprescribable by the disposition of the law should not be prescribed, though by a thousand years, which he maintaineth by innumerable testimonies of doctors.
No man but now seeth that for the intercepting or forestalling of the use of a common thing no usurpation of any time how long soever can profit or avail. Whereunto we must also add that their authority who dissent or disagree can no way be applied to this question, for they speak of the Midland Sea, we of the ocean, they of a gulf, we of the huge sea, which in the manner of occupation differs much. And they to whom they lightly grant prescription, even they possess the shores bordering on the sea, as the Venetians and the Genoese, which even now was plainly proved could in no wise be said of the Portugals.
Nay, but if time could profit anything, as something it may in public things which appertain unto the people, yet those things appear not which are necessarily required. For first all men teach that it is required that he who prescribeth for such an act should exercise the same not only a long time but such a time as exceedeth memory; then, that for so long time no man else exercised the same act, but by his grant, though it were secretly; and further that he hath forbid others that would use it, they to whom the matter appertaineth knowing and suffering it. For although he had always exercised it and had always forbid some who would have exercised it yet not all, because some were forbidden but some exercised it freely, that truly was not sufficient by the doctors’ opinion.
But it appeareth that all these things must concur, both because the law is an enemy to prescription of public things and also that he which prescribeth may seem to have used his own right and not the common right, and that without interrupting his possession. And seeing such a time is required of whose beginning there is no memory, it is not always sufficient, as the best interpreters declare, to prove that one age is run out. But it ought to be manifest that the fame or report of the thing was delivered over by our elders unto us, so that none remaineth alive who hath seen or heard the contrary.
The Portugals by occasion of the affairs in Africa, in the reign of king John in the year of our Lord God 1477, began first to search into the farthest parts of the ocean. Twenty years after, under king Emmanuel, they sailed beyond the Cape de Bona Esperanza, and long after they came to Malacca and the further islands, unto the which the Hollanders began to sail in anno 1595, doubtless within an hundred years. But now also, forasmuch as the usurpation of others came between in that time, it hath hindered or barred prescription, even against all others. The Castilians from the year 1519 have made the possession of the sea about the Moluccas doubtful to the Portugals. The French also and English, not privily but by open violence, have broke through thither. Besides, the borderers of all the coast of Africa or Asia have every one of them usurped by fishing and sailing part of the sea next unto them never forbidden of the Portugals.
Let us therefore conclude that the Portugals have no right whereby they may forbid any other nation from sailing the ocean to the Indians.
That trading is free by the law of nations
among all or between any
If the Portugals say that a certain proper right appertaineth unto them of exercising trade with the Indians they shall be confuted almost by the same arguments. We will briefly repeat them and apply them.
This was brought in by the law of nations that all men should have free liberty of negotiation among themselves which no man could take away. And as this was immediately necessary after distinction of dominion so it may seem to have a more ancient beginning. For Aristotle subtly called μεταβλητικήν ἀναπλήρωσιν τη̑ς κατὰ ϕύσιν αυταρκείας, that is to say, that what was wanting to nature was supplied by negotiation that everyone conveniently might have enough. It ought therefore to be common by the law of nations not only privatively but also positively or affirmatively, as the Schoolmen say.
That may thus be understood. Nature had given all things to all men, but seeing they were barred from the use of many things whereof man’s life standeth in need by reason of the distance of places, it was needful to pass over from place to place. Neither yet was there permutation, but finding other things with others they used them at their pleasure by course. Almost after the same manner they report the Seres do, who, leaving their goods in the wilderness, the bargain is made only by the honesty and conscience of the changers.
But so soon as movable things (necessity which was even now declared pointing at it) passed into proper right, permutation was found out, whereby that which is wanting unto one should be supplied of that which is superfluous to another. So Pliny proveth out of Homer that traffic was found out for the maintenance of the life of man. But after that immovable things began to be divided unto lords and owners, community being on all parts taken away made trading necessary, not only between men divided by distance of places but also between neighbors, which that it might more easily proceed money was afterward invented, so called απο του νομου, because it was a civil institution.
The universal reason therefore of all contracts η μεταβλητική was from nature, but some particular means and the price itself η χρηματιστική, from institution, which the ancient interpreters of the law did not sufficiently distinguish, yet all men confess that property of things (at the least of movables) to have proceeded from the primary law of nations and also all contracts whereunto no price is added. The philosophers of τη̑ς μεταβλητικη̑ς, which we may call translation, make two kinds, τήν ∊μπορικὴν καὶ τὴν καπηλικὴν, of the which ∊μπορική, which is as the word itself declareth between nations far distant, by the order of nature is the foremost and is so set down by Plato.Καπηλική seemeth to be same which Aristotle calleth παράστασις, a standing or shop negotiation between citizens. The same Aristotle divideth τὴν ∊μπορικὴν into ναυκληρίαν and ϕορτηγίαν, whereof the one carrieth merchandise by land, the other by sea. But καπηλική is the baser and contrariwise ∊μπορική the more honest or honorable and that chiefly which concerneth the sea, because it imparteth many things to many.
Whereupon Ulpian saith that taking of money for freight of shipping appertaineth to the highest and greatest commonwealth. And that there is not the same use of such as are allowed to buy and sell because according to nature that is altogether necessary. Aristotle saith, ἔστι γὰρ η μεταβλητικὴ πάντων, ἀρξαμένη τὸ μὲν πρôτον ∊κ του̑ κατὰ ϕύσιν, τ˛ τὰ μὲν πλείω, τὰ δέ ∊λάττω τôν ἱκανôν ἔχειν τοὺς ανθρώπους, that is to say, for translation of things began from the beginning from that which is according to nature, when men had partly more than was sufficient and partly less. Seneca saith, “the law of nations warranteth thee to sell that which thou has bought.”
Therefore, the liberty of trading is agreeable to the primary law of nations which hath a natural and perpetual cause and therefore cannot be taken away and, if it might, yet could it not but by the consent of all nations, so far off is it that any nation, by any means, may justly hinder two nations that are willing to trade between themselves.
That merchandise or trading with the Indians is not
proper to the Portugals by title of possession
Invention or occupation hath not the first place here because the right of buying and selling is no corporal thing which may be apprehended. Nor should it profit the Portugals although they had been the first men which had traffic with the Indians, which, notwithstanding, cannot but be most untrue. For seeing in the beginning people went into divers parts, it is necessary that some should be the first merchants who, notwithstanding (it is most certain), gained no right at all. Wherefore, if any right belonged to the Portugals that they should only trade with the Indians, by the example of other servitudes it must proceed from some grant either expressed or secret, to wit, from prescription. For otherwise it cannot be.
That trading with the Indians is not proper to
the Portugals by title of the Pope’s donation
No man granted it unless peradventure the Pope, who could not. For no man can grant that which is none of his own. But the Pope, unless he be temporal lord of the whole world (which wise men deny), cannot say that the universal right also of merchandising is in his authority. But chiefly when the thing is wholly applied unto gain and nothing appertaining to the promoting of spiritual things, without which (as all men confess) the Pope’s power ceaseth. Further, if the Pope would give that right only to the Portugals, and would take away the same from other men, he should commit double injury. First, to the Indians who, as they are put out of the Church, were no way subject to the Pope, as we have said. Seeing therefore the Pope could take away nothing from them which was theirs, he could not take away that right which they have of trading with whom they pleased. Next, to all other Christian men and infidels, from whom he could not take that right without cause or their cause not being heard. What, cannot temporal lords indeed in their dominions forbid the liberty of trading, as by reasons and authorities before is declared?
So then this likewise is to be confessed, that no authority of the Pope is of force against the perpetual law of nature and nations whence this liberty took beginning, which shall continue forever.
That trading with the Indians is not proper to the Portugals by the right of prescription or custom
Prescription remaineth, or custom, whether you please to call it. But that neither the one nor the other have any force among free nations or princes of divers nations, nor against those things which were brought in by the first original law, we have with Vasquius declared. Wherefore here also that the right of trading should become proper, which receiveth not the nature of property, no time can effect. Therefore neither could this title be, nor yet honest and plain dealing, which when it manifestly ceaseth, prescription according to the canons shall not be called right but injury.
But even that very possession, as it were, of trading seemeth not to have befallen them of any proper right but by the common right which equally appertaineth unto all. As, contrarily, in that other nations neglected to contract with the Indians they are not supposed to have done it for the Portugals’ sakes, but because they thought it was expedient for them so to do, which hindereth not that they should be less able (when profit shall persuade) to do that which before they did not. For that is a most certain rule delivered by the doctors that in those things which stand in free will and mere faculty, so that by themselves they work an act of that faculty only and not a new right, a thousand years are nothing worth, neither by title of prescription nor custom, which Vasquius teacheth proceedeth both affirmatively and negatively. For I am neither compelled to do that which I did freely nor to omit that which I did not.
Else what were more absurd than for that we cannot all at all times contract with all, thereby our right of contracting with them hereafter (if need require) should not be preserved? The same Vasquius, and that most aptly, affirmeth that an infinite time cannot effect that anything should rather seem to be done by necessity than of free will. The Portugals therefore should procure the coaction, which thing itself, seeing in this it is contrary to the law of nature and hurtful to all mankind, it cannot do right. Again, that coaction or constraint ought to have continued for such a time of whose beginning no memory remaineth. But it is so far from that that scarce an hundred years are run out since all the Indian trade almost was in the power of the Venetians by the passages of Alexandria. And the coaction also ought to be such against which there was no resistance. But the French, the English and others resisted. Nor doth it suffice that some should be compelled but it is required that all should be compelled, seeing that possession of liberty in a common cause is kept even by one man not being compelled. But the Arabians and Sinenses from so many ages past unto this day perpetually traffic with the Indians.
Therefore, this their usurpation profiteth nothing.
That the Portugals incline not to equity
in forbidding trade
By those things which have been spoken, their blind covetousness sufficiently appeareth who, that they may admit none to take part of the gain, go about to pacify their consciences with those reasons which the Spanish doctors (who are in the same cause) convince of manifest vanity. For they sufficiently declare all those colors which are used in Indian affairs to be unjustly taken and add further that it was never approved by the serious and diligent examination of the divines. But what is more unjust than that complaint that the Portugals say their gains are consumed and spent through the multitude of those who are licensed to the contrary? For among the positions of the laws this is most certain, that he who useth his own right is not guilty of deceit nor dealeth fraudulently, much less seemeth to endamage another, which is most true if anything be done with a purpose to increase his own estate not to hurt another. For that which is principally done ought to be looked into, not that which outwardly cometh in consequence. Nay, if we speak properly with Ulpian, he doth not prejudice any, but hindereth him from that gain which yet another used.
But it is natural and agreeable to the highest law and also to equity itself that every man should rather propound his own gain unto himself than another, although his gain who took it before. Who could endure a craftsman complaining that another by exercising the same trade overthrew his commodity? But the Hollanders’ cause is so much the more just because their profit in this behalf is joined with the benefit of all mankind which the Portugals go about to overthrow. Nor shall this rightly be said to be done for envy or emulation, as in the like matter Vasquius declareth, for either this is plainly to be denied or we must say it is done not only for a good but also for the best kind of emulation, according to Hesiodus, ἀγαθὴ δ’ ἔρις ἥδε βροτοîσιν: “This is a good contention among men.” For, saith he, if any moved with pity should sell corn cheaper in a great dearth, the wicked cruelty of such should be hindered who in the extremity of penury would sell theirs dearer. “It is true,” saith he, “that by such means other men’s revenues are diminished, nor do we deny it, but they are diminished with the benefit of all. And I would to God the revenues of all the princes and tyrants of the world were so diminished!”
What, therefore, may seem so unjust as that the Spaniards should have the whole world tributary, so that they might neither buy nor sell but at their pleasure? We hate and also punish engrossers of corn or other commodities in all cities. Nor doth any trade of life seem so wicked and hateful as this engrossing of corn. And that worthily too. For they do injury to nature which is plentiful and liberal to all in common. Nor is to be thought that negotiation was found out for a few men’s uses, but to the end that what was wanting unto one should be recompensed through the plenty of another yet with a just advantage or profit propounded unto all who should undertake the danger and labor of transporting.
That very thing therefore which in a commonwealth, to wit, in a less assembly of men, is judged and esteemed grievous and dangerous, is it tolerable in that great society of mankind that the Spanish people should make a monopoly of the whole world? Ambrose inveigheth against them that shut up the seas, Augustine those that stop trading, Nazianzene against co-emptors and suppressors of merchandise who only make a gain by other men’s wants and as he most eloquently speaketh, καταπραγματεύονται τη̑ς ∊νδείας, make a gain of scarcity. Moreover, also by the opinion of that divine wise man, he is publicly bequeathed to the devil and counted accursed who, suppressing sustenance, enhanceth the price of victuals: ο συνέχων σîτον δημοκατάρατος.
Let the Portugals therefore exclaim as much and as long as they list, “Ye take away our gain!” The Hollanders will answer, “Nay, we are careful of our own. Are you angry at this, that we take part with the winds and sea? But who hath promised those gains shall remain yours? It is well with you wherewith we are contented.”
That the right of the Indian trade is to be retained and maintained both by peace, truce and war
Wherefore seeing both law and equity required that the trade of India should be free for us as for any other, it remaineth that we wholly maintain that liberty which we have by nature, whether we have peace, truce or war with the Spaniard. For, as touching peace, it is well known it is of two kinds. For it is entertained either upon equal or unequal conditions. The Grecians call that συνθήκην ∊ξ ἴσου, this σπονδὰς ∊ξ ∊πιταγμάτων, that appertaineth to men, this to servile dispositions; Demosthenes in his oration concerning the liberty of the Rhodians, καί τοι χρὴ τοὺς βουλομένους ελευθερους ειναι τὰς ∊κ τôν ∊πιταγμάτων συνθήκας ϕεύγειν, ὡς ∊γγὺς δουλείας οὔσας: “it behooveth all those that will be free to avoid all conditions whereon laws are imposed as those which are next to servitude.” But all conditions are such whereby the one party is abridged in his right, according to the definition of Isocrates who called προστάγματα τὰ τοὺς ἑτέρους ∊λαττου̑ντα παρὰ τὸ δίκαιον. For if, as Cicero saith, wars are to be undertaken for that cause that we may live peaceably without injury, it followeth by the same author that peace is not to be called a covenant of slavery but a quiet liberty, seeing that in the judgment of very many, both philosophers and divines, peace and justice differ rather in name than in deed and that peace is not any agreement whatsoever but a well ordered and disposed concord.
But if truce be made it appeareth sufficiently by the nature itself of truces that the condition of any should not in the meantime be made the worse, seeing they may obtain an action in the nature of an interdiction of uti possidetis.
But if we be violently compelled to war through the unjust dealing of the enemies, the equity of our cause ought to give hope and assurance unto us of good success. For ὑπὲρ μὲν ὡ̑ν ἄν ∊λαττôνται μέχρι δυνατου̑ πάντες πολέμουσι, περὶ δὲ του̑ πλεονέκτειν ουχ οὕτως: “For those things wherein all men are injured, all men may fight for them as much as they can. But for the greedy desire of that which is another’s they may not do so.” Which also Alexander the emperor hath thus expressed, τὸ μὲν ἄρχειν ἀδικôν ἔργων ουκ ἀγνώμονα ἔχει τὴν πρόκλησιν, τὸ δὲ του̑ς ὀχλου̑ντας ἀποσείεσθαι ἔκ τε της ἀγαθη̑ς συνειδηρεôς ἔχει τὸ θαρραλέον, καὶ ∊κ του̑ μὴ ἀδίκειν ἀλλ’ ἀμύνασθαι ὑπάρχει τὸ εὔελπι: “His provocation from whom the injury began is most spiteful. But when robbers and murderers are discomfited, as a good conscience bringeth boldness and assurance with it, so because we go about to revenge and not to do a wrong it giveth occasion to hope well.”
If it must needs be so, proceed, thou most invincible nation on the sea, and boldly fight not only for thine own liberty but for the freedom and liberty of all mankind!
- nec te, quod classis centenis remigat alis
- terreat (invito labitur illa mari)
- quodve vehunt prorae Centaurica saxa minantes,
- tigna cava et pictos experiere metus.
- frangit et attollit vires in milite causa,
- quae nisi justa subest, excudit arma pudor.
If many, and even Augustus [sc. Augustine] himself, have thought that arms might justly be taken for that cause by reason a harmless passage was denied through other men’s countries, how much more just shall those arms be whereby the common and harmless use of the sea is required, which by the law of nature is common unto all? If those nations were justly assailed who in their own land forbid trading unto others, what shall become of those who by violence withhold people which appertain not unto them and restrain their mutual meetings? If this thing were judicially disputed that sentence which should be expected from a good man could not be doubted of. Praetor saith, “I forbid any violence to be done whereby it should not be lawful to convey a ship or a raft in a public river or whereby men might not unlade upon the shore.” The interpreters teach that an interdiction is to be granted after the same form for the sea and the shore by the example of Labeo who, when Praetor interdicted, “That you should not do anything in a public river or shore thereof whereby the road or way for ships should be made worse,” said the like interdiction laid for the sea: “That you do nothing in the sea or shore whereby any haven, road, or way for ships should be the worse.”
Nay, and that after prohibition if any were forbidden to sail on the sea or not permitted to sell his goods or use that which was his own, for that cause Ulpian answered he might have an action of trespass. Moreover, the divines and such as have to do with cases (as they call them) of conscience with one consent deliver that he who hindereth another to buy or sell or preferreth his proper commodity before the public and common benefit, or any way hindereth another in that which appertaineth to the common right, is bound to make restitution of all the loss by the arbitrement of a good man.
According to these things, therefore, a good man judging it would adjudge liberty of merchandise unto the Hollanders and would forbid the Portugals and others who hinder that liberty to do any violence, and would command them to restore their losses. But that which should be obtained in judgment, where justice could not be had by just war should be revenged. Augustine saith, “the unjust dealing of the adverse party procureth just war.” And Cicero: “Seeing there are two kinds of striving, the one by debating, the other by violence, we must fly to the latter if we cannot use the former.” And King Theodoricus: “We are then compelled to arms when justice findeth no place with the adversary.” And that which is nearer to our argument, Pomponius answered that he who would usurp a thing common to all with the discommodity of the rest was to be resisted by a strong hand. The divines also teach that as war is rightly undertaken for the defense of everyone’s goods, so is it no less rightly undertaken for the use of those things which by the law of nature ought to be common. Wherefore he that shall stop the passage and hinder the carrying out of merchandise may be resisted by way of fact, as they say, even without expecting any public authority.
Which being so, it is not to be feared either that God will not prosper their endeavors who violate the undoubted law of nature instituted by him, or that men themselves would suffer those multitudes who for the only respect of their own gain oppose themselves against the common benefit of mankind.
Soli Deo Laus et Gloria
Seeing about this time very many of the king of Spain’s letters came to our hands, wherein his and the Portugals’ purpose is manifestly discovered, I thought it needful of those (whereof there were many of the same argument) to translate two of them into the Latin tongue.
Beloved Viceroy, Signior Martin Alphonsus de Castro,
I the king heartily salute you. A printed copy of the edict which I caused to be made shall come to your hands with these letters, wherein for these reasons which you shall see expressed and others expedient for my affairs I forbid all trade of strangers in the parts of India and other countries beyond the seas. Seeing this thing may be of moment and greatest use, and which ought to be effected with greatest care, I command you that so soon as you shall receive these letters and the edict you would procure the publication thereof with all diligence to be made in all parts and places of this empire, and that you execute that which is contained in the edict without exception of any person of what quality, age or condition soever he be and that without all delay or excuse, and that you proceed to the fulfilling of the commandment by way of mere execution, admitting no impediment, appeal, or grievance to the contrary of whatsoever matter, kind, or quality.
I therefore command this to be fulfilled by those ministers unto whom execution appertaineth, and that it be signified unto them who shall do the contrary that they shall not only do me ill service, but also that I will punish the same parties by depriving them of the offices wherein they serve me. And because it is reported unto me that many strangers of divers nations, Italians, French, Germans, and Low-Country men, remain in those parts, the greater part whereof (as far as we understand) came thither by Persia, and the Turks’ kingdom, and not many by this kingdom. Against whom if according to the prescript form and rigor of this edict we proceed, many difficulties may follow thereupon if they fly to the Moors our enemies and show to the bordering neighbors the ordering of my munition and declare the means whereby they may prejudice my estate. I will that you execute this edict as the matter and time will permit and use that wisdom whereby these difficulties may be avoided by providing that you may have all the strangers in your power and keep them according to every man’s quality, so that they may be able to attempt nothing against our empire and that I may wholly obtain that end which I have propounded unto myself by this edict.
Written at Lisbon, 28 of November, anno 1606. It was signed under “Rex”; the superscription, “For the king: to Signior Martin Alphonso de Castro his Councillor, and Viceroy of India.”
Beloved Viceroy, I the King heartily salute you.
Although I am assured that by your presence and those forces wherewith you went into the southern parts the Hollanders our rebels who remain there and also the inhabitants of the country who gave them entertainment shall be so chastised that neither the one nor the other dare hereafter attempt any such thing, yet notwithstanding it shall be expedient for our safety that you leave a convenient fleet fit for that purpose in these parts of the sea when you shall returne to Goa, and that you commit the command and chief managing thereof to Andreas Furtado Mendosa or if you shall judge any other fitter for that place, as I trust for your dutiful affection towards me you will respect no other thing in that matter than what shall be most profitable for my affairs.
Written at Madrid, 27 January 1607. Signed “Rex”; the superscription, “For the king: to Signior Martin Alphonsus de Castro, his Councillor and Viceroy of India.”