TRANSCRIBER’S NOTE
The original book _Mare Liberum_ was first published in 1608 in
renaissance latin. The latin of this book is based on a later 1633
printing. The english translation carefully maintains the meaning,
and clarifies the context, of the original latin.
In this 1916 book, following the Introductory Note and Preface, the
latin text and the translated english text were on alternate pages
i.e. the first page of latin text was followed by the first page of
corresponding english text, then the next (second) page of latin
text was followed by the second page of corresponding english text,
and so on.
This etext follows the same alternating pagination. A row of dashes
has been inserted between the english and latin pages to give a
visual separation.
There are three different sets of Footnotes.
(a) The five Footnotes in the Introductory Note have anchors [A]
to [E].
(b) The 192 Footnotes associated with the latin text have anchors
[1a] [2a] through [192a].
(c) The 192 Footnotes associated with the english text have anchors
[1] [2] through [192].
All these Footnotes have been placed after the Index at the end of
the book.
In addition there are 17 Notes, distinct from Footnotes, which
are anchored with * or †. These Notes by the translator have been
placed at the end of the paragraph containing the anchor.
Italic text is denoted by _underscores_.
A superscript is denoted by ^x or ^{xx}.
Some minor changes to the text are noted at the end of the book.
HVGONIS GROTII
MARE LIBERVM
SIVE
DE IVRE QVOD BATAVIS
COMPETIT
AD INDICANA COMMERCIA,
DISSERTATIO
1608
Carnegie Endowment for International Peace
DIVISION OF INTERNATIONAL LAW
THE FREEDOM OF THE SEAS
OR
THE RIGHT WHICH BELONGS TO THE DUTCH
TO TAKE PART IN THE EAST INDIAN TRADE
A DISSERTATION BY
HUGO GROTIUS
TRANSLATED WITH A REVISION OF THE LATIN TEXT OF 1633
BY
RALPH VAN DEMAN MAGOFFIN, PH.D.
Associate Professor of Greek and Roman History
The Johns Hopkins University
EDITED WITH AN INTRODUCTORY NOTE
BY
JAMES BROWN SCOTT
DIRECTOR
NEW YORK
OXFORD UNIVERSITY PRESS
AMERICAN BRANCH: 35 WEST 32ND STREET
LONDON, TORONTO, MELBOURNE, AND BOMBAY
HUMPHREY MILFORD
1916
COPYRIGHT 1916
BY THE
CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE
WASHINGTON, D. C.
THE QUINN & BODEN CO. PRESS
RAHWAY, N. J.
INTRODUCTORY NOTE
Since the month of August, 1914, the expression “Freedom of the
Seas” has been on the lips alike of belligerent and neutral, and
it seems as advisable as it is timely to issue--for the first time
in English--the famous Latin tractate of Grotius proclaiming,
explaining, and in no small measure making the “freedom of the
seas.”[A]
The title of the little book, first published, anonymously, in
November, 1608, explains the reason for its composition: “The Freedom
of the Seas, or the Right which belongs to the Dutch to take part in
the East Indian trade.” It was an open secret that it was written by
the young Dutch scholar and lawyer, Hugo Grotius. It was a secret
and remained a secret until 1868 that the _Mare Liberum_ was none
other than Chapter XII of the treatise _De Jure Praedae_, written by
Grotius in the winter of 1604-5, which first came to light in 1864
and was given to the world four years later.[B]
The publication of the treatise on the law of prize is important
as showing that the author of the _Mare Liberum_ was already an
accomplished international lawyer, and it proves beyond peradventure
that the masterpiece of 1625 on the “Law of War and Peace” was not
a hurried production, but the culmination of study and reflection
extending over twenty years and more. More important still is the
fact that neither the law of prize nor the _Mare Liberum_ was a
philosophic exercise, for it appears that Grotius had been retained
by the Dutch East India Company to justify the capture by one of
its ships of a Portuguese galleon in the straits of Malacca in the
year 1602; that the treatise on the law of prize, of which the _Mare
Liberum_ is a chapter, was in the nature of a brief; and that the
first systematic treatise on the law of nations--The Law of War
and Peace--was not merely a philosophical disquisition, but that
it was the direct outgrowth of an actual case and of professional
employment.[C]
The Spaniards, as is well known, then claimed the Pacific Ocean
and the Gulf of Mexico, and Portugal claimed, in like manner, the
Atlantic south of Morocco and the Indian Ocean, and both nations, at
this time under a common sovereign, claimed and sought to exercise
the right of excluding all foreigners from navigating or entering
these waters. The Dutch, then at war with Spain, although not
technically at war with Portugal, established themselves in 1598 in
the island of Mauritius. Shortly thereafter they made settlements
in Java and in the Moluccas. In 1602 the Dutch East India Company
was formed, and, as it attempted to trade with the East Indies, its
vessels came into competition with those of the Portuguese engaged
in the Eastern trade, which sought to exclude them from the Indian
waters. One Heemskerck, a captain in the employ of the Company, took
a large Portuguese galleon in the Straits of Malacca. To trade with
the East Indies was one thing, to capture Portuguese vessels was
quite another thing. Therefore, some members of the Company refused
their parts of the prize; others sold their shares in the company,
and still others thought of establishing a new company in France,
under the protection of King Henry IV, which should trade in peace
and abstain from all warlike action. The matter was therefore one of
no little importance, and it appears that Grotius was consulted and
wrote his treatise on the law of prize, which is in the nature of a
brief and is, at any rate, a lawyer’s argument.[D]
In 1608 Spain and Holland began negotiations which, on April 9, 1609,
resulted in the truce of Antwerp for the period of 12 years, and, in
the course of the negotiations, Spain tried to secure from the United
Provinces a renunciation of their right to trade in the East and West
Indies. The Dutch East India Company thereupon, it would appear,
requested Grotius to publish that part of his brief dealing with the
freedom of the seas. This was done under the title of _Mare Liberum_,
with such changes as were necessary to enable it to stand alone.
It will be observed that the _Mare Liberum_ was written to refute
the unjustified claims of Spain and Portugal to the high seas and to
exclude foreigners therefrom. The claims of England, less extensive
but not less unjustifiable, were not mentioned, and yet, if the
arguments of Grotius were sound, the English claims to the high seas
to the south and east of England, as well as to undefined regions to
the north and west, would likewise fall to the ground. Therefore the
distinguished English lawyer, scholar, and publicist, John Selden by
name, bestirred himself in behalf of his country and wrote his _Mare
Clausum_ in 1617 or 1618, although it was not published until 1635,
to refute the little tractate, _Mare Liberum_.[E] In the dedication
to King Charles I, Selden said: “There are among foreign writers,
who rashly attribute your Majesty’s more southern and eastern sea to
their princes. Nor are there a few, who following chiefly some of
the ancient Caesarian lawyers, endeavor to affirm, or beyond reason
too easily admit, that all seas are common to the universality of
mankind.” The thesis of Selden was twofold: first, “that the sea, by
the law of nature or nations, is not common to all men, but capable
of private dominion or property as well as the land”; second, “that
the King of Great Britain is lord of the sea flowing about, as an
inseparable and perpetual appendant of the British Empire.”
In this battle of books, to use the happy expression of Professor
Nys, the Dutch Scholar has had the better of his English antagonist.
If it cannot be said that Grotius wears his learning “lightly like
a flower”, the treatise of Selden is, in comparison, over-freighted
with it; the _Mare Liberum_ is still an open book, the _Mare Clausum_
is indeed a closed one, and as flotsam or jetsam on troubled waters,
Chapter XII of the Law of Prize rides the waves, whereas its rival,
heavy and water-logged, has gone under.
In the leading case of The Louis (2 Dodson 210), decided in 1817,
some two hundred years after Selden’s book was written, Sir William
Scott, later Lord Stowell and one of Selden’s most distinguished
countrymen, said, in rejecting the claim of his country to the
exercise of jurisdiction beyond a marine league from the British
shore:
I have to observe, that two principles of public law are
generally recognized as fundamental.
One is the perfect equality and entire independence of all
distinct states. Relative magnitude creates no distinction of
right; relative imbecility, whether permanent or casual, gives no
additional right to the more powerful neighbor; and any advantage
seized upon that ground is mere usurpation. This is the great
foundation of public law, which it mainly concerns the peace
of mankind, both in their politic and private capacities, to
preserve inviolate.
The second is, that all nations being equal, all have an equal
right to the uninterrupted use of the unappropriated parts of the
ocean for their navigation. In places where no local authority
exists, where the subjects of all states meet upon a footing of
entire equality and independence, no one state, or any of its
subjects, has a right to assume or exercise authority over the
subjects of another.
In closing the preface to the _Mare Clausum_, Selden used language,
which the undersigned quotes, albeit in an inverse sense, as a fit
ending to this subject:
“Other passages there are everywhere of the same kind. But I enlarge
myself too much in a thing so manifest. Therefore I forbear to light
a candle to the sun. Farewell reader.”
JAMES BROWN SCOTT,
_Director of the Division of_
_International Law_.
WASHINGTON, D. C.,
_February 28, 1916_.
TRANSLATOR’S PREFACE
_The Latin Text_
The Latin Text is based upon the Elzevir edition of 1633, the
modifications being only such as to bring the Latin into conformity
with the present day Teubner and Oxford texts.
References in the notes to classic authors are given in unabbreviated
form, following in other respects the Thesaurus Linguae Latinae
Index. Citations to the Civil Law are given in the modern notation,
which is followed, in parentheses, by the older method of reference.
The text used is that of Mommsen, Krueger, Schoell et Kroll. The
Canon Law is cited from the Friedberg edition of 1879-81. The
abbreviations used are explained below.
_The Translation_
The translator wishes to make due acknowledgment for the passages
from classic writers quoted from standard translations, to which
references are also made in the notes. He has also consulted the
French translation of Grotius by A. Guichon de Grandpont (1845). But
his chief acknowledgment is to his colleague and friend, Professor
Kirby Flower Smith of The Johns Hopkins University, to whom he read
the translation, and who gave him the benefit of his knowledge of
Latin and his taste in English, in a number of troublesome passages.
Many niceties of the translation belong to Professor Smith, but
mistakes in interpretation belong to the translator alone.
Acknowledgment and thanks are also due to Professor Westel Woodbury
Willoughby of Johns Hopkins, who has been so good as to read the
translation through in galley proof and give the translator the
benefit of his technical knowledge of law; to his Johns Hopkins
colleague, Professor Wilfred P. Mustard, who has helped him out
of a number of difficulties; to Bishop Shahan, Rector of the
Catholic University of America, who has given of his time to help
expand several of Grotius’ abbreviated references to theological
or canonical authors; to John Curlett Martin, Johns Hopkins Fellow
in Greek, who has been of great assistance in the verification of
references; and to the men of the Quinn and Boden Company for their
courteous assistance while the book was going through the press.
_List of Abbreviations_
Auth., Authenticum.
Clem., Constitutiones Clementis Papae Quinti.
Dist., Distinctio Decreti Gratiani.
Extravag., Constitutiones XXD. Ioannis Papae XXII.
Lib. VI, Liber sextus Decretalium D. Bonifacii Papae VIII.
Other abbreviations should offer no difficulties.
_Notes of Explanation_
The words and phrases in the Latin text in capitals follow the type
of the Elzevir text.
In order that both text and translation may be complete in
themselves, the notes below the translation follow the notes of the
text in shortened or expanded form, or in duplicate, as the occasion
would seem to demand. The notes in Grotius’ Latin text are in a most
abbreviated form, and the references are seldom specific. They have
been expanded without further explanation.
[ ] in the translation, text, or notes, inclose additions made by the
translator.
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CAPITA DISSERTATIONIS HVGONIS GROTII DE MARE LIBERO
PAGINA
Ad Principes populosque liberos orbis Christiani 1
CAPVT
I. Iure gentium quibusvis ad quosvis liberam esse
navigationem 7
II. Lusitanos nullum habere ius dominii in eos
Indos ad quos Batavi navigant titulo inventionis 11
III. Lusitanos in Indos non habere ius dominii titulo
donationis Pontificiae 15
IV. Lusitanos in Indos non habere ius dominii titulo
belli 18
V. Mare ad Indos aut ius eo navigandi non esse
proprium Lusitanorum titulo occupationis 22
VI. Mare aut ius navigandi proprium non esse
Lusitanorum titulo donationis Pontificiae 45
VII. Mare aut ius navigandi proprium non esse
Lusitanorum titulo praescriptionis aut consuetudinis 47
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TABLE OF CONTENTS
PAGE
Introductory Note v
Translator’s Preface xi
FREEDOM OF THE SEAS
To the rulers and to the free and independent
nations of Christendom 1
CHAPTER
I. By the Law of Nations navigation is free to all
persons whatsoever 7
II. The Portuguese have no right by title of discovery
to sovereignty over the East Indies
to which the Dutch make voyages 11
III. The Portuguese have no right of sovereignty
over the East Indies by virtue of title based
on the Papal Donation 15
IV. The Portuguese have no right of sovereignty
over the East Indies by title of war 18
V. Neither the Indian Ocean nor the right of navigation
thereon belongs to the Portuguese by
title of occupation 22
VI. Neither the Sea nor the right of navigation
thereon belongs to the Portuguese by virtue
of title based on the Papal Donation 45
VII. Neither the Sea nor the right of navigation
thereon belongs to the Portuguese by title
of prescription or custom 47
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CAPVT PAGINA
VIII. Iure gentium inter quosvis liberam esse mercaturam 61
IX. Mercaturam cum Indis propriam non esse
Lusitanorum titulo occupationis 65
X. Mercaturam cum Indis propriam non esse
Lusitanorum titulo donationis Pontificiae 66
XI. Mercaturam cum Indis non esse Lusitanorum
propriam iure praescriptionis aut consuetudinis 67
XII. Nulla aequitate niti Lusitanos in prohibendo
commercio 69
XIII. Batavis ius commercii Indicani, qua pace, qua
indutiis, qua bello retinendum 72
Regis Hispaniarum litterae 77
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CHAPTER PAGE
VIII. By the Law of Nations trade is free to all persons
whatsoever 61
IX. Trade with the East Indies does not belong to
the Portuguese by title of occupation 65
X. Trade with the East Indies does not belong
to the Portuguese by virtue of title based
on the Papal Donation 66
XI. Trade with the East Indies does not belong to
the Portuguese by title of prescription or
custom 67
XII. The Portuguese prohibition of trade has no
foundation in equity 69
XIII. The Dutch must maintain their right of trade
with the East Indies by peace, by treaty,
or by war 72
Appendix: Two letters of Philip III, King of
Spain 77
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AD PRINCIPES POPVLOSQVE LIBEROS ORBIS CHRISTIANI
Error est non minus vetus quam pestilens, quo multi mortales, ii
autem maxime qui plurimum vi atque opibus valent, persuadent sibi,
aut, quod verius puto, persuadere conantur, iustum atque iniustum non
suapte natura, sed hominum inani quadam opinione atque consuetudine
distingui. Itaque illi et leges et aequitatis speciem in hoc inventa
existimant, ut eorum qui in parendi condicione nati sunt dissensiones
atque tumultus coerceantur; ipsis vero qui in summa fortuna sunt
collocati, ius omne aiunt ex voluntate, voluntatem ex utilitate
metiendam. Hanc autem sententiam absurdam plane atque naturae
contrariam auctoritatis sibi nonnihil conciliasse haud adeo mirum
est, cum ad morbum communem humani generis, quo sicut vitia ita
vitiorum patrocinia sectamur, accesserint adulantium artes quibus
omnis potestas obnoxia est.
Sed contra exstiterunt nullo non saeculo viri liberi, sapientes,
religiosi, qui falsam hanc persuasionem animis simplicium evellerent
ceteros autem eius defensores impudentiae convincerent. Deum quippe
esse monstrabant conditorem rectoremque universi, imprimis autem
humanae naturae parentem, quam ideo, non uti cetera animantia, in
species diversas, variaque discrimina segregasset, sed unius esse
generis, una etiam appellatione voluisset contineri,
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TO THE RULERS AND TO THE FREE AND INDEPENDENT NATIONS OF CHRISTENDOM
The delusion is as old as it is detestable with which many men,
especially those who by their wealth and power exercise the greatest
influence, persuade themselves, or as I rather believe, try to
persuade themselves, that justice and injustice are distinguished
the one from the other not by their own nature, but in some fashion
merely by the opinion and the custom of mankind. Those men therefore
think that both the laws and the semblance of equity were devised
for the sole purpose of repressing the dissensions and rebellions of
those persons born in a subordinate position, affirming meanwhile
that they themselves, being placed in a high position, ought to
dispense all justice in accordance with their own good pleasure,
and that their pleasure ought to be bounded only by their own view
of what is expedient. This opinion, absurd and unnatural as it
clearly is, has gained considerable currency; but this should by
no means occasion surprise, inasmuch as there has to be taken into
consideration not only the common frailty of the human race by which
we pursue not only vices and their purveyors, but also the arts of
flatterers, to whom power is always exposed.
But, on the other hand, there have stood forth in every age
independent and wise and devout men able to root out this false
doctrine from the minds of the simple, and to convict its advocates
of shamelessness. For they showed that God was the founder and ruler
of the universe, and especially that being the Father of all mankind,
He had not separated human beings, as He had the rest of living
things, into different species and various divisions, but had willed
them to be of one race and to be known by one name; that
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dedisset insuper originem eandem, similem membrorum compagem, vultus
inter se obversos, sermonem quoque et alia communicandi instrumenta,
ut intelligerent omnes naturalem inter se societatem esse atque
cognationem. Huic autem a se fundatae aut domui aut civitati summum
illum principem patremque familias suas quasdam scripsisse leges,
non in aere aut tabulis, sed in sensibus animisque singulorum, ubi
invitis etiam et aversantibus legendae occurrent his legibus summos
pariter atque infimos teneri, in has non plus regibus licere, quam
plebi adversus decreta decurionum, decurionibus contra praesidium
edicta, praesidibus in regum ipsorum sanctiones. Quin illa ipsa
populorum atque urbium singularum iura ex illo fonte dimanare, inde
sanctimoniam suam atque maiestatem accipere.
Sicut autem in ipso homine alia sunt quae habet cum omnibus communia,
alia quibus ab altero quisque distinguitur, ita earum rerum quas in
usum hominis produxisset natura alias eam manere communes, alias
cuiusque industria ac labore proprias fieri voluisse, de utrisque
autem datas leges, ut communibus quidem sine detrimento omnium omnes
uterentur, de ceteris autem quod cuique contigisset eo contentus
abstineret alieno.
Haec si homo nullus nescire potest nisi homo esse desierit, haec si
gentes viderunt quibus ad verum omne caecutientibus sola naturae fax
illuxit, quid vos sentire ac facere aequum est, principes populique
Christiani?
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furthermore He had given them the same origin, the same structural
organism, the ability to look each other in the face, language too,
and other means of communication, in order that they all might
recognize their natural social bond and kinship. They showed too
that He is the supreme Lord and Father of this family; and that for
the household or the state which He had thus founded, He had drawn
up certain laws not graven on tablets of bronze or stone but written
in the minds and on the hearts of every individual, where even the
unwilling and the refractory must read them. That these laws were
binding on great and small alike; that kings have no more power
against them than have the common people against the decrees of the
magistrates, than have the magistrates against the edicts of the
governors, than have the governors against the ordinances of the
kings themselves; nay more, that those very laws themselves of each
and every nation and city flow from that Divine source, and from that
source receive their sanctity and their majesty.
Now, as there are some things which every man enjoys in common with
all other men, and as there are other things which are distinctly
his and belong to no one else, just so has nature willed that some
of the things which she has created for the use of mankind remain
common to all, and that others through the industry and labor of each
man become his own. Laws moreover were given to cover both cases so
that all men might use common property without prejudice to any one
else, and in respect to other things so that each man being content
with what he himself owns might refrain from laying his hands on the
property of others.
Now since no man can be ignorant of these facts unless he ceases
to be a man, and since races blind to all truth except what they
receive from the light of nature, have recognized their force, what,
O Christian Kings and Nations, ought you to think, and what ought you
to do?
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Si quis durum putat ea a se exigi quae tam sancti nominis professio
requirit, cuius minimum est ab iniuriis abstinere, certe quid sui
sit offici scire quisque potest ex eo quod alteri praecipit. Nemo
est vestrum qui non palam edicat rei quemque suae esse moderatorem
et arbitrum: qui non fluminibus locisque publicis cives omnes uti
ex aequo et promiscue iubeat, qui non commeandi commercandique
libertatem omni ope defendat.
Sine his si parva illa societas, quam rempublicam vocamus, constare
non posse iudicatur (et certe constare non potest) quamobrem non
eadem illa ad sustinendam totius humani generis societatem atque
concordiam erunt necessaria? Si quis adversus haec vim faciat,
merito indignamini, exempla etiam pro flagiti magnitudine statuitis,
non alia de causa nisi quia ubi ista passim licent status imperi
tranquillus esse non potest. Quod si rex in regem, populus in
populum inique et violente agat, id nonne ad perturbandam magnae
illius civitatis quietem et ad summi custodis spectat iniuriam?
Hoc interest, quod sicut magistratus minores de vulgo iudicant,
vos de magistratibus, ita omnium aliorum delicta cognoscenda vobis
et punienda mandavit rex universi, vestra excepit sibi. Is autem
quamquam supremam animadversionem sibi reservat, tardam, occultam,
inevitabilem, nihilominus duos a se iudices delegat qui rebus humanis
intersint, quos nocentium felicissimus non effugit, conscientiam
cuique suam, et famam sive existimationem
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If any one thinks it hard that those things are demanded of him which
the profession of a religion so sacred requires, the very least
obligation of which is to refrain from injustice, certainly every
one can know what his own duty is from the very demands he makes of
others. There is not one of you who does not openly proclaim that
every man is entitled to manage and dispose of his own property;
there is not one of you who does not insist that all citizens have
equal and indiscriminate right to use rivers and public places; not
one of you who does not defend with all his might the freedom of
travel and of trade.
If it be thought that the small society which we call a state cannot
exist without the application of these principles (and certainly it
cannot), why will not those same principles be necessary to uphold
the social structure of the whole human race and to maintain the
harmony thereof? If any one rebels against these principles of law
and order you are justly indignant, and you even decree punishments
in proportion to the magnitude of the offense, for no other reason
than that a government cannot be tranquil where trespasses of that
sort are allowed. If king act unjustly and violently against king,
and nation against nation, such action involves a disturbance of the
peace of that universal state, and constitutes a trespass against the
supreme Ruler, does it not? There is however this difference: just
as the lesser magistrates judge the common people, and as you judge
the magistrates, so the King of the universe has laid upon you the
command to take cognizance of the trespasses of all other men, and
to punish them; but He has reserved for Himself the punishment of
your own trespasses. But although He reserves to himself the final
punishment, slow and unseen but none the less inevitable, yet He
appoints to intervene in human affairs two judges whom the luckiest
of sinners does not escape, namely, Conscience, or the innate
estimation of oneself, and Public Opinion, or the estimation of
others.
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alienam. Haec tribunalia illis patent quibus alia praeclusa sunt; ad
haec infirmi provocant; in his vincuntur qui vincunt viribus, qui
licentiae modum non statuunt, qui vili putant constare quod emitur
humano sanguine, qui iniurias iniuriis defendunt, quorum manifesta
facinora necesse est et consentiente bonorum iudicio damnari, et sui
ipsorum animi sententia non absolvi.
Ad utrumque hoc forum nos quoque novam causam afferimus; non hercule
de stillicidiis aut tigno iniuncto, quales esse privatorum solent, ac
ne ex eo quidem genere quod frequens est inter populos, de agri iure
in confinio haerentis, de amnis aut insulae possessione; sed de omni
prope oceano, de iure navigandi, de libertate commerciorum. Inter
nos et Hispanos haec controversa sunt: Sitne immensum et vastum mare
regni unius nec maximi accessio; populone cuiquam ius sit volentes
populos prohibere ne vendant, ne permutent, ne denique commeent
inter sese; potueritne quisquam quod suum numquam fuit elargiri, aut
invenire quod iam erat alienum; an ius aliquod tribuat manifesta
longi temporis iniuria.
In hac disceptatione ipsis qui inter Hispanos praecipui sunt divini
atque humani iuris magistri calculum porrigimus, ipsius denique
Hispaniae proprias leges imploramus. Id si nihil iuvat, et eos quos
ratio certa convincit cupiditas vetat desistere, vestram principes
maiestatem, vestram fidem quotquot estis ubique gentes appellamus.
Non perplexam, non intricatam movemus quaestionem. Non de ambiguis in
religione capitibus, quae plurimum
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These two tribunals are open to those who are debarred from all
others; to these the powerless appeal; in them are defeated those
who are wont to win by might, those who put no bounds to their
presumption, those who consider cheap anything bought at the price
of human blood, those who defend injustice by injustice, men whose
wickedness is so manifest that they must needs be condemned by the
unanimous judgment of the good, and cannot be cleared before the bar
of their own souls.
To this double tribunal we bring a new case. It is in very truth no
petty case such as private citizens are wont to bring against their
neighbors about dripping eaves or party walls; nor is it a case such
as nations frequently bring against one another about boundary lines
or the possession of a river or an island. No! It is a case which
concerns practically the entire expanse of the high seas, the right
of navigation, the freedom of trade!! Between us and the Spaniards
the following points are in dispute: Can the vast, the boundless
sea be the appanage of one kingdom alone, and it not the greatest?
Can any one nation have the right to prevent other nations which
so desire, from selling to one another, from bartering with one
another, actually from communicating with one another? Can any nation
give away what it never owned, or discover what already belonged to
some one else? Does a manifest injustice of long standing create a
specific right?
In this controversy we appeal to those jurists among the Spanish
themselves who are especially skilled both in divine and human law;
we actually invoke the very laws of Spain itself. If that is of no
avail, and those whom reason clearly convicts of wrong are induced
by greed to maintain that stand, we invoke your majesty, ye Princes,
your good faith, ye Peoples, whoever and wherever ye may be.
It is not an involved, it is not an intricate question that I am
raising. It is not a question of ambiguous points of
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habere videntur obscuritatis, quae tantis tam diu animis decertata,
apud sapientes hoc fere certum reliquerunt, nusquam minus inveniri
veritatem quam ubi cogitur assensus. Non de statu nostrae
reipublicae, et libertate armis haud parta sed vindicata; de qua
recte statuere ii demum possunt qui iura patria Belgarum, mores
avitos, et institutum non in leges regnum, sed ex legibus principatum
accurate cognoverint, in qua tamen quaestione aequis iudicibus
extremae servitutis depulsa necessitas, subtilius inquirentibus
decreti* tot nationum publica auctoritas, infensis etiam et malevolis
adversariorum confessio nihil dubitandum reliquit.
* [decreta (?); decreti is the reading of the 1633 and 1720 texts].
Sed quod hic proponimus nihil cum istis commune habet, nullius
indiget anxiae disquisitionis, non ex divini codicis pendet
explicatione, cuius multa multi non capiunt, non ex unius populi
scitis quae ceteri merito ignorant.
Lex illa e cuius praescripto iudicandum est, inventu est non
difficilis, utpote eadem apud omnes; et facilis intellectu, utpote
nata cum singulis, singulorum mentibus insita. Ius autem quod petimus
tale est quod nec rex subditis negare debeat, neque Christianus non
Christianis. A natura enim oritur, quae ex aequo omnium parens est,
in omnes munifica, cuius imperium in eos extenditur qui gentibus
imperant, et apud eos sanctissimum est qui in pietate plurimum
profecerunt.
Cognoscite hanc causam principes! cognoscite populi! si quid iniquum
postulamus, scitis quae vestra et e vobis eorum qui viciniores nobis
estis apud nos semper fuerit auctoritas!
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theology which seem to be wrapped in the deepest obscurity, which
have been debated already so long and with such heat, that wise men
are almost convinced that truth is never so rarely found as when
assent thereto is forced. It is not a question of the status of our
government and of independence not won by arms but restored. On
this point those can reach a right decision who have an accurate
knowledge of the ancestral laws and hereditary customs of the people
of the Netherlands, and who have recognized that their state is not
a kingdom illegally founded but is a government based upon law. In
this matter, however, just judges no longer compelled to subordinate
their convictions have been persuaded; the public authority of many
nations has entirely satisfied those who were seeking a precedent;
and the admissions of our adversaries have left even the foolish and
malevolent no room for doubt.
But what I here submit has nothing in common with these matters. It
calls for no troublesome investigation. It does not depend upon an
interpretation of Holy Writ in which many people find many things
they cannot understand, nor upon the decrees of any one nation of
which the rest of the world very properly knows nothing.
The law by which our case must be decided is not difficult to
find, seeing that it is the same among all nations; and it is easy
to understand, seeing that it is innate in every individual and
implanted in his mind. Moreover the law to which we appeal is one
such as no king ought to deny to his subjects, and one no Christian
ought to refuse to a non-Christian. For it is a law derived from
nature, the common mother of us all, whose bounty falls on all, and
whose sway extends over those who rule nations, and which is held
most sacred by those who are most scrupulously just.
Take cognizance of this cause, ye Princes, take cognizance of it,
ye Nations! If we are making an unjust demand, you know what your
authority and the authority of
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Monete, parebimus. Quin si quid a nobis hac in re peccatum est, iram
vestram, odium denique humani generis non deprecamur. Sin contra se
res habet, quid vobis censendum, quid agendum sit, vestrae religioni
et aequitati relinquimus.
Olim inter populos humaniores summum nefas habebatur armis eos
impetere qui res suas arbitris permitterent, contra qui tam
aequam condicionem recusarent, ii non ut unius sed ut omnium
hostes ope communi comprimebantur. Itaque eam in rem videmus icta
foedera, iudices constitutos. Reges ipsi validaeque gentes nihil
aeque gloriosum ac magnificum deputabant, quam aliorum coercere
insolentiam, aliorum infirmitatem atque innocentiam sublevare.
Qui si mos hodieque obtineret, ut humani nihil a se alienum*
homines arbitrarentur, profecto orbe non paulo pacatiore uteremur;
refrigesceret enim multorum audacia, et qui iustitiam utilitatis
causa nunc negligunt, iniustitiam damno suo dediscerent.
* [Cf. Terence, Hautontimorumenos 77].
Sed hoc ut in causa istac non frustra forte speramus, ita illud certo
confidimus, bene rebus expensis existimaturos vos omnes imputari
nobis non magis posse pacis moras, quam belli causas; ac proinde
uti hactenus amici nobis faventes atque benevoli fuistis, ita vos
aut etiam magis in posterum fore, quo nihil optatius iis potest
contingere qui primam partem felicitatis putant bene facere, alteram
bene audire.
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those of you who are our nearer neighbors has always been so far as
we are concerned. Caution us, we will obey. Verily, if we have done
any wrong in this our cause, we will not deprecate your wrath, nor
even the hatred of the human race. But if we are right, we leave to
your sense of righteousness and of fairness what you ought to think
about this matter and what course of action you ought to pursue.
In ancient times among the more civilized peoples it was held to be
the greatest of all crimes to make war upon those who were willing
to submit to arbitration the settlement of their difficulties; but
against those who declined so fair an offer all others turned, and
with their combined resources overwhelmed them, not as enemies of
any one nation, but as enemies of them all alike. So for this very
object we see that treaties are made and arbiters appointed. Kings
themselves and powerful nations used to think that nothing was so
chivalrous or so noble as to coerce the insolent and to help the weak
and innocent.
If today the custom held of considering that everything pertaining to
mankind pertained also to one’s self, we should surely live in a much
more peaceable world. For the presumptuousness of many would abate,
and those who now neglect justice on the pretext of expediency would
unlearn the lesson of injustice at their own expense.
We have felt that perhaps we were not entertaining a foolish hope for
our cause. At all events we are confident that you will all recognize
after duly weighing the facts in the case that the delays to peace
can no more be laid to our charge than can the causes of war; and as
hitherto you have been indulgent, even favorably disposed to us, we
feel sure that you will not only remain in this mind, but be even
more friendly to us in the future. Nothing more to be desired than
this can come to men who think that the first condition of happiness
is good deeds; the second, good repute.
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CAPVT I
_Iure gentium quibusvis ad quosvis liberam esse navigationem_
Propositum est nobis breviter ac dilucide demonstrare ius esse
Batavis, hoc est, Ordinum Foederatorum Belgico-Germaniae subditis
ad Indos, ita uti navigant navigare, cumque ipsis commercia colere.
Fundamentum struemus hanc iuris gentium, quod primarium vocant
regulam certissimam, cuius perspicua atque immutabilis est ratio;
licere cuivis genti quamvis alteram adire, cumque ea negotiari.
Deus hoc ipse per naturam loquitur, cum ea cuncta quibus vita
indiget, omnibus locis suppeditari a natura non vult: artibus etiam
aliis alias gentes dat excellere. Quo ista, nisi quod voluit mutua
egestate et copia humanas foveri amicitias, ne singuli se putantes
sibi ipsis sufficere, hoc ipso redderentur insociabiles? Nunc factum
est ut gens altera alterius suppleret inopiam, divinae iustitiae
instituto, ut eo modo (sicut Plinius dicit[1a]) quod genitum esset
uspiam, apud omnes natum videretur. Poetas itaque canentes audimus:
_Nec vero terrae ferre omnes omnia possunt._[2a]
Item:
_Excudent alii_,
et quae sequuntur.[3a]
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CHAPTER I
_By the Law of Nations navigation is free to all persons whatsoever_
My intention is to demonstrate briefly and clearly that the
Dutch--that is to say, the subjects of the United Netherlands--have
the right to sail to the East Indies, as they are now doing, and to
engage in trade with the people there. I shall base my argument on
the following most specific and unimpeachable axiom of the Law of
Nations, called a primary rule or first principle, the spirit of
which is self-evident and immutable, to wit: Every nation is free to
travel to every other nation, and to trade with it.
God Himself says this speaking through the voice of nature; and
inasmuch as it is not His will to have Nature supply every place with
all the necessaries of life, He ordains that some nations excel in
one art and others in another. Why is this His will, except it be
that He wished human friendships to be engendered by mutual needs and
resources, lest individuals deeming themselves entirely sufficient
unto themselves should for that very reason be rendered unsociable?
So by the decree of divine justice it was brought about that one
people should supply the needs of another, in order, as Pliny the
Roman writer says,[1] that in this way, whatever has been produced
anywhere should seem to have been destined for all. Vergil also sings
in this wise:
“_Not every plant on every soil will grow_,”[2]
and in another place:
“_Let others better mould the running mass
Of metals_,” etc.[3]
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Hoc igitur qui tollunt, illam laudatissimam tollunt humani generis
societatem, tollunt mutuas benefaciendi occasiones, naturam denique
ipsam violant. Nam et ille quem Deus terris circumfudit Oceanus,
undique et undique versus navigabilis, et ventorum stati aut
extraordinarii flatus, non ab eadem semper, et a nulla non aliquando
regione spirantes, nonne significant satis concessum a natura cunctis
gentibus ad cunctas aditum? Hoc Seneca[4a] summum Naturae beneficium
putat, quod et vento gentes locis dissipatas miscuit, et sua omnia in
regiones ita descripsit, ut necessarium mortalibus esset inter ipsos
commercium. Hoc igitur ius ad cunctas gentes aequaliter pertinet:
quod clarissimi Iurisconsulti[5a] eo usque producunt, ut negent ullam
rempublicam aut Principem prohibere in universum posse, quo minus
alii ad subditos suos accedant, et cum illis negotientur. Hinc ius
descendit hospitale sanctissimum: hinc querelae:
_Quod genus hoc hominum? quaeve hunc tam barbara morem
Permittit patria? hospitio prohibemur harenae._[6a]
Et alibi
_litusque rogamus
Innocuum et cunctis undamque auramque patentem._[7a]
Et scimus bella quaedam ex hac causa coepisse, ut Megarensibus
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Those therefore who deny this law, destroy this most praise-worthy
bond of human fellowship, remove the opportunities for doing mutual
service, in a word do violence to Nature herself. For do not the
ocean, navigable in every direction with which God has encompassed
all the earth, and the regular and the occasional winds which blow
now from one quarter and now from another, offer sufficient proof
that Nature has given to all peoples a right of access to all
other peoples? Seneca[4] thinks this is Nature’s greatest service,
that by the wind she united the widely scattered peoples, and yet
did so distribute all her products over the earth that commercial
intercourse was a necessity to mankind. Therefore this right belongs
equally to all nations. Indeed the most famous jurists[5] extend
its application so far as to deny that any state or any ruler can
debar foreigners from having access to their subjects and trading
with them. Hence is derived that law of hospitality which is of the
highest sanctity; hence the complaint of the poet Vergil:
“_What men, what monsters, what inhuman race,
What laws, what barbarous customs of the place,
Shut up a desert shore to drowning men,
And drive us to the cruel seas again._”[6]
And:
“_To beg what you without your want may spare--
The common water, and the common air._”[7]
We know that certain wars have arisen over this very matter; such for
example as the war of the Megarians against the
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in Athenienses.[8a] Bononiensibus in. Venetos,[9a] Castellanis etiam
in Americanos has iustas potuisse belli causas esse, et ceteris
probabiliores Victoria putat,[10a] si peregrinari et degere apud
illos prohiberentur, si arcerentur a participatione earum rerum quae
iure gentium aut moribus communia sunt, si denique ad commercia non
admitterentur.
Cui simile est quod in Mosis[11a] historia et inde apud Augustinum
legimus,[12a] iusta bella Israelitas contra Amorrhaeos gessisse,
quia innoxius transitus denegabatur; qui IVRE HVMANAE SOCIETATIS
aequissimo patere debebat. Et hoc nomine Hercules Orchomeniorum,
Graeci sub Agamemnone Mysorum Regi arma intulerunt,[13a] quasi libera
essent naturaliter itinera, ut Baldus dixit.[14a] Accusanturque
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Athenians,[8] and that of the Bolognese against the Venetians.[9]
Again, Victoria[10] holds that the Spaniards could have shown just
reasons for making war upon the Aztecs and the Indians in America,
more plausible reasons certainly than were alleged, if they really
were prevented from traveling or sojourning among those peoples,
and were denied the right to share in those things which by the Law
of Nations or by Custom are common to all, and finally if they were
debarred from trade.
We read of a similar case in the history of Moses,[11] which we find
mentioned also in the writings of Augustine,[12] where the Israelites
justly smote with the edge of the sword the Amorites because they had
denied the Israelites an innocent passage through their territory,
a right which according to the Law of Human Society ought in all
justice to have been allowed. In defense of this principle Hercules
attacked the king of Orchomenus in Boeotia; and the Greeks under
their leader Agamemnon waged war against the king of Mysia[13] on the
ground that, as Baldus[14] has said, high roads were free
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a Germanis apud Tacitum[15a] Romani, quod colloquia congressusque
gentium arcerent, fluminaque et terras et coelum quodam modo ipsum
clauderent. Nec ullus titulus Christianis quondam in Saracenos magis
placuit, quam quod per illos terrae Iudaeae aditu arcerentur.[16a]
Sequitur ex sententia Lusitanos etiamsi domini essent earum regionum
ad quas Batavi proficiscuntur, iniuriam tamen facturos si aditum
Batavis et mercatum praecluderent.
Quanto igitur iniquius est volentes aliquos a volentium populorum
commercio secludi, illorum opera quorum in potestate nec populi isti
sunt, nec illud ipsum, qua iter est, quando latrones etiam et piratas
non alio magis nomine detestamur, quam quod illi hominum inter se
commeatus obsident atque infestant?
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by nature. Again, as we read in Tacitus,[15] the Germans accused the
Romans of ‘preventing all intercourse between them and of closing up
to them the rivers and roads, and almost the very air of heaven’.
When in days gone by the Christians made crusades against the
Saracens, no other pretext was so welcome or so plausible as that
they were denied by the infidels free access to the Holy Land.[16]
It follows therefore that the Portuguese, even if they had been
sovereigns in those parts to which the Dutch make voyages, would
nevertheless be doing them an injury if they should forbid them
access to those places and from trading there.
Is it not then an incalculably greater injury for nations which
desire reciprocal commercial relations to be debarred therefrom
by the acts of those who are sovereigns neither of the nations
interested, nor of the element over which their connecting high road
runs? Is not that the very cause which for the most part prompts us
to execrate robbers and pirates, namely, that they beset and infest
our trade routes?
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CAPUT II
_Lusitanos nullum habere ius dominii in eos Indos ad quos Batavi
navigant titulo inventionis_
Non esse autem Lusitanos earum partium dominos ad quas Batavi
accedunt, puta Iavae, Taprobanae, partis maximae Moluccarum,
certissimo argumento colligimus, quia dominus nemo est eius rei
quam nec ipse umquam nec alter ipsius nomine possedit. Habent
insulae istae quas dicimus et semper habuerunt suos reges, suam
rempublican, suas leges, sua iura; Lusitanis mercatus, ut aliis
gentibus conceditur; itaque et tributa cum pendunt, et ius mercandi
a principibus exorant, dominos se non esse, sed ut externos advenire
satis testantur; ne habitant quidem nisi precario. Et quamquam ad
dominium titulus non sufficiat, quia et possessio requiritur, cum
aliud sit rem habere, aliud ius ad rem consequendam, tamen ne titulum
quidem dominii in eas partes Lusitanis ullum esse affirmo, quem non
ipsis eripuerit Doctorum, et quidem Hispanorum sententia.
Primum si dicent inventionis praemio eas terras sibi cessisse, nec
ius, nec verum dicent. Invenire enim non illud est oculis usurpare,
sed apprehendere, ut Gordiani epistola
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