The Free Sea: Grotius against the Portugals


by Eric Mack

Beyond his arguments for the right to trade and for the Sea being open to all who seek to travel for trade, a good deal of The Free Sea is devoted to countering various particular arguments that the Portugals might advance for their monopolizing trade with the East Indies. Grotius’ refutations of these arguments further reflect his proto-liberalism.
1. The Portugals may claim that finding the peoples of the East Indies provides them with the right to a monopoly of trade with them. However, according to Grotius, the Portugals clearly were not the first (non-Indians) to find the peoples of the East Indies. Not even counting the Persians and the Arabians, the Venetians had found and traded with East Indians long before the Portugals(14). In addition, “to find is not to see a thing with the eyes but to lay hold of it with the hands” (13) and to properly lay hold of a thing it must be that this thing “was no man’s before the finding” (14).  However,

. . . the Indians, when the Portugals came upon them, although they were partly idolaters, partly Mahometans, and entangled in grievous sins, yet had they both publically and privately authority over their own substance and possessions which without just cause could not be taken from them. (14)

Indeed,

. . . 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. (15)

The idea that an individual’s personal and economic rights are not forfeited even by paganism or Muhammadism comes to play a central role in seventeenth century arguments for intra-societal religious toleration.

2. The Portugals may claim to have a right of dominion over the Indians on the basis of Pope Alexander the Sixth’s declaration of 1483 (And two subsequent treaties between Portugal and Spain, the Treaty of Tordesillas, 1484 and the Treaty of Zaragoza,1529) which divided the world that European nations were beginning to colonize into a portion open to Portuguese control and a (roughly) equal portion open to Spanish control. However, according to Grotius, the Pope does not have the authority to rob the East Indians (nor the native Americans) for the sake of the Portugals and the Spanish. To have that authority the Pope would have to be “the civil or temporal lord of the whole world”(16). Yet, whatever authority the Pope has is purely spiritual. Furthermore,

. . 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. (16)

Religious leaders have no political authority.

3. The Portugals may claim to have dominium over the East Indians on the basis of the influence they are established through waging just war against them. However, according to Grotius, neither reason that the Portugals might offer for waging war against these peoples is sound. First, the Portugals cannot properly invoke the refusal of these peoples to trade with them since the East Indians welcomed trade. Second, the Portugals cannot properly contend that waging war against the East Indians was just since they are infidels who must be compelled to accept Christianity. For infidelity is not a just cause for war, and Christianity is not to be promoted by the sword. Grotius cites the Italian Dominican Cajetan,

. . . 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.  . . . [W]e should grievously offend if we went about to spread the faith of Jesus Christ by [war], nor should we be lawful lords over them but should commit great robberies and were bound to make restitution as unjust conquerors and possessors. (19)

Cajetan’s reasons for condemning the Spanish treatment of “the people of America” (19) apply equally to the Portugals for their treatment of the people of the East Indies. (Unfortunately, the actual conduct of the Dutch East India Company differed very little from the Portugals.)

The idea that even true religion may not be coercively enforced comes to play a central role in seventeenth century arguments for intra-societal religious toleration.

4. The Portugals may claim that the Dutch competition for the East Indian trade deprives the Portugals of at least some of their expected gains from trade. In response Grotius acknowledges that the Dutch seek trade with the East Indies for the sake of profit and that this trade will diminish the gains of the Portugals. Nevertheless, this competition is entirely permissible. For,

. . . it is natural and agreeable to the highest law and also to equity that every man should rather propound his own gain unto himself than another, although [it diminishes] his gain who took it before. Who could endure a craftsman complaining that another by exercising the same trade overthrew his commodity? (55)

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 the sea? But who hath promised those gains shall remain yours?” (56)

Commerce was not

. . . 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. (56)

Grotius does denounce “the engrossers of corn” i.e., those who wickedly raise their prices when corn or other commodities are scarce. "We hate and also punish engrossers of corn or other commodities in all cities. . . . For they do injury to nature which is plentiful and liberal to all in common. (56)"

Yet even the owner of the first shipload of corn who arrives at a food-depleted city and charges much more than an owner would charge under normal circumstances does not impose a loss on his customers. If the buyers complain about the higher than usual price of corn, that merchant can respond as Grotius envisions the Hollanders responding to a complaint by the Portugals. “Who hath promised you the same price for corn as when it was much more plentiful?” Surely Grotius should not criticize the owner of that first shipload for “mak[ing] a gain of scarcity. (56)” For on his own correct view every gain through trade is a gain through scarcity.

Grotius needs to distinguish between the seller who gains by being the first supplier to serve a given market – especially a desperately eager market -- and the seller whose gain arises through forcibly precluding competing sellers. The first sort of seller on net benefits his customers. The second sort of seller on net leaves his customers and his competitors off than they otherwise would be. What matters is not how much the seller gains but, rather, how the seller obtains his gains. Each trader may act “to increase his own estate [as long as he does not] “hurt another (56)” Lessening another’s gain through peaceful competition does not count as inflicting injury; but imposing a loss on others through coercive intervention wrongfully injures those others.

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