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• Introduction
• A Note On the Texts
• Acknowledgments
• The Free Sea, Or a Disputation Concerning the Right Which the Hollanders Ought to Have to the Indian Merchandise For Trading
• To the Princes and Free States of the Christian World
• Chapter 1: By the Law of Nations Navigation Is Free For Any to Whomsoever
• Chapter 2: That the Portugals Have No Right of Dominion Over Those Indians to Whom the Hollanders Sail By Title of Invention
• Chapter 3: That the Portugals Have No Right of Dominion Over the Indians By Title of the Pope’s Gift
• Chapter 4: That the Portugals Have No Right of Dominion Over the Indians By Title of War
• Chapter 5: That the Sea Or Right of Sailing On It Is Not Proper to the Portugals By Title of Possession
• Chapter 6: The Sea Or Right of Navigation Is Not Proper to the Portugals By Title of the Pope’s Gift
• Chapter 7: That the Sea Or Right of Sailing Is Not Proper to the Portugals By Title of Prescription Or Custom
• Chapter 8: That Trading Is Free By the Law of Nations Among All Or Between Any
• Chapter 9: That Merchandise Or Trading With the Indians Is Not Proper to the Portugals By Title of Possession
• Chapter 10: That Trading With the Indians Is Not Proper to the Portugals By Title of the Pope’s Donation
• Chapter 11: That Trading With the Indians Is Not Proper to the Portugals By the Right of Prescription Or Custom
• Chapter 12: That the Portugals Incline Not to Equity In Forbidding Trade
• Chapter 13: That the Right of the Indian Trade Is to Be Retained and Maintained Both By Peace, Truce and War
• William Welwod’s Critique: “of the Community and Propriety of the Seas”
• Hugo Grotius’s Reply: “defense of Chapter V of the Mare Liberum ” Which Had Been Attacked By William Welwod, Professor of Civil Law, In Chapter Xxvii of That Book Written In English to Which He Gave the Title “ an Abridgement of All Sea-lawes ”
• Bibliography

chapter 11

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.1 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.2 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.3 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.4 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.5 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.

[1]

See above, pp. 44–45.

[2]

Glossators and Bartolus on Digest, XLIII. 11. 2; Balbus, De praescriptionibus, V. 4, q. 1; Panormitanus on Decretum, III. 8. 10; Doctors on Digest, XLI. 2. 41; Covarruvias, on Sext, rule possessor, Pt. II, § 4, n. 6; Vázquez, Controversiae illustres, I. 4. 10, 12.

[3]

Vázquez, Controversiae illustres, I. 4. 12.

[4]

Ibid., 11.

[5]

Guicciardini, Storia d’Italia, XIX.