CHAPTER I

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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The freedom of the seas · 第 1 / 13 章