GROTIUS Freedom of The Seas

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
New York
Oxford University Press
London, Toronto, Melbourne, and Bombay
Humphrey Milford
1916
Batoche Books Limited

Kitchener
2000
Batoche Books
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Kitchener, Ontario
N2G 3L1
Canada
email: [email protected]
ISBN: 1-55273-048-4
Contents
Translators Preface ........................................................................... 5
Chapter I .......................................................................................... 12
Chapter II ......................................................................................... 14
Chapter III ....................................................................................... 16
Chapter IV ....................................................................................... 17
Chapter V ......................................................................................... 20
Chapter VI ...................................................................................... 35
Chapter VII ...................................................................................... 36
Chapter VIII ..................................................................................... 45
Chapter IX ....................................................................................... 47
Chapter X ......................................................................................... 47
Chapter XI ....................................................................................... 48
Chapter XII ...................................................................................... 49
Chapter XIII ..................................................................................... 51
Appendix .......................................................................................... 53
Notes ................................................................................................ 55
Translators Preface
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.
6/Hugo Grotius
List of Abbreviations
Auth., Authenticum.
Clem., Constitutiones Clementis Papae Quinti.
Dist., Distinctio Decreti Gratiani.
Extravag., Constitutiones XX D. 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.
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 forte 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 furthermore He had given them the same ori-
8/Hugo Grotius
gin, 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?
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
The Freedom of the Seas/9

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.
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
10/Hugo Grotius
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 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 nonChristian. 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 au-

thority and the authority of 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 ones 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.
Chapter I
By the Law of Nations navigation is free to all persons whatsoever
My intention is to demonstrate briefly and clearly that the Dutchthat
is to say, the subjects of the United Netherlandshave 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 spellbind 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 would the running mass
Of metals, etc.3
Those therefore who deny this law, destroy this most praiseworthy
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? Seneca4 thinks
this is Natures 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
jurists5 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 Athenians,8 and
that of the Bolognese against the Venetians.9 Again, Victoria10 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 Mysia13 on the ground that, as Baldus14
has said, high roads were free by nature. Again, as we read in Tacitus,15
14/Hugo Grotius
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?
Chapter II
The Portuguese have no right by title of discovery to sovereignty over
the East Indies to which the Dutch make voyages
The Portuguese are not sovereigns of those parts of the East Indies to
which the Dutch sail, that is to say, Java, Ceylon,17 and many of the
Moluccas. This I prove by the incontrovertible argument that no one is
sovereign of a thing which he himself has never possessed, and which
no one else has ever held in his name. These islands of which we speak,
now have and always have had their own kings, their own government,
their own laws, and their own legal systems. The inhabitants allow the
Portuguese to trade with them, just as they allow other nations the same
privilege. Therefore, inasmuch as the Portuguese pay tolls, and obtain
leave to trade from the rulers there, they thereby give sufficient proof
that they do not go there as sovereigns but as foreigners. Indeed they
only reside there on suffrance. And although the title to sovereignty is
not sufficient, inasmuch as possession is a prerequisitefor having a
thing is quite different from having the right to acquire itnevertheless
I affirm that in those places the Portuguese have no title at all to sovereignty which is not denied them by the opinion of learned men, even of
the Spaniards.
First of all, if they say that those lands have come under their jurisdiction as the reward of discovery, they lie both in law and in fact. For to

discover a thing is not only to seize it with the eyes but to take real
possession thereof, as Gordian18 points out in one of his letters. For that
reason the Grammarians19 give the same signification to the expressions
to find and to occupy; and all Latinity applies the phrase we have
found only to the thing which we have seized; and the opposite of this
is to lose. However, natural reason itself, the precise words of the law,
and the interpretation of the more learned men20 all slow clearly that the
act of discovery is sufficient to give a clear title of sovereignty only
when it is accompanied by actual possession. And this only applies of
course to movables or to such immovables as are actually inclosed within
fixed bounds and guarded.21 No such claim can be established in the
present case, because the Portuguese maintain no garrisons in those
regions. Neither can the Portuguese by any possible means claim to
have discovered India, a country which was famous centuries and centuries ago! It was already known as early as the time of the emperor
Augustus as the following quotation from Horace shows:
That worst of evils, poverty, to shun
Dauntless through seas, and rocks, and fires you run
To furthest Ind,22
And have not the Romans described for us in the most exact way
the greater part of Ceylon?23 And as far as the other islands are concerned, not only the neighboring Persians and Arabs, but even Europeans, particularly the Venetians, knew them long before the Portuguese
did.
But in addition to all this, discovery per se gives no legal rights over
things unless before the alleged discovery they were res nullius.24 Now
these Indians of the East, on the arrival of the Portuguese, although
some of them were idolaters, and some Mohammedans, and therefore
sunk in grievous sin, had none the less perfect public and private ownership of their goods and possessions, from which they could not be dispossessed without just cause.25 The Spanish writer Victoria,26 following
other writers of the highest authority, has the most certain warrant for
his conclusion that Christians, whether of the laity or of the clergy, cannot deprive infidels of their civil power and sovereignty merely on the
ground that they are infidels, unless some other wrong has been done by
them.
For religious belief, as Thomas Aquinas27 rightly observes, does
16/Hugo Grotius
not do away with either natural or human law from which sovereignty is
derived. Surely it is a heresy to believe that infidels are not masters of
their own property; consequently, to take from them their possessions
on account of their religious belief is no less theft and robbery than it
would be in the case of Christians.
Victoria then is right in saying28 that the Spaniards have no more
legal right over the East Indians because of their religion, than the East
Indians would have had over the Spaniards if they had happened to be
the first foreigners to come to Spain. Nor are the East Indians stupid
and unthinking; on the contrary they are intelligent and shrewd, so that
pretext for subduing them on the ground of their character could not be
sustained. Such a pretext on its very face is an injustice. Plutarch said
long ago that the civilizing of barbarians had been made the pretext for
aggression, which is to say that a greedy longing for the property of
another often hides itself behind such a pretext And now that well-known
pretext of forcing nations into a higher state of civilization against their
will, the pretext once seized by the Greeks and by Alexander the Great,29
is considered by all theologians, especially those of Spain,30 to be unjust
and unholy.
Chapter III
The Portuguese have no right of sovereignty over the East Indies by
virtue of title based on the Papal Donation
Next, if the partition made by the Pope Alexander VI31 is to be used by
the Portuguese as authority for jurisdiction in the East Indies, then before all things else two points must be taken into consideration.
First, did the Pope merely desire to settle the disputes between the
Portuguese and the Spaniards?
This was clearly within his power, inasmuch as he had been chosen
to arbitrate between them, and in fact the kings of both countries had
previously concluded certain treaties with each other on this very matter.32 Now if this be the case, seeing that the question concerns only the
Portuguese and Spaniards, the decision of the Pope will of course not
affect the other peoples of the world.
Second, did the Pope intend to give to two nations, each one third of
the whole world?
But even if the Pope had intended and had had the power to make
such a gift, still it would not have made the Portuguese sovereigns of

those places. For it is not a donation that makes a sovereign, it is the
consequent delivery of a thing33 and the subsequent possession thereof.
Now, if any one will scrutinize either divine or human law, not merely
with a view to his own interests, he will easily apprehend the property of
that a donation of this kind, dealing with others, is of no effect. I shall
not enter here upon any discussion as to the power of the Pope, that is
the Bishop of the Roman Church, nor shall I advance anything but a
hypothesis which is accepted by men of the greatest erudition, who lay
the greatest stress on the power of the Pope, especially the Spaniards,
who with their perspicacity easily see that our Lord Jesus Christ when
he said My kingdom is not of this world thereby renounced all earthly
power,34 and that while He was on earth as a man, He certainly did not
have dominion over the whole world, and if He had had such dominion,
still by no arguments could such a right be transferred to Peter, or be
transmitted to the Roman Church by authority of the Vicar of Christ;
indeed, inasmuch as Christ had many things to which the Pope did not
succeed,35 it has been boldly affirmedand I shall use the very words
of the writersthat the Pope is neither civil nor temporal Lord of the
whole world.36 On the contrary, even if the Pope did have any such
power on earth, still he would not be right in using it, because he ought
to be satisfied with his own spiritual jurisdiction, and be utterly unable
to grant that power to temporal princes. So then, if the Pope has any
power at all, he has it, as they say, in the spiritual realm only.37 Therefore he has no authority over infidel nations, for they do not belong to
the Church.38
It follows therefore according to the opinions of Cajetan and Victoria
and the more authoritative of the Theologians and writers on Canon
Law,39 that there is no clear title against the East Indians, based either
on the ground that the Pope made an absolute grant of those provinces
as if he were their sovereign, or on the pretext that the East Indians do
not recognize his sovereignty. Indeed, and in truth, it may be affirmed
that no such pretext as that was ever invoked to despoil even the Saracens.
Chapter IV
The Portuguese have no right of sovereignty over the East Indies by
title of war
Since it is clear, (as Victoria also says),40 from the refutation of any
claim to title from the Popes Donation, that the Spaniards when they
sailed to those distant lands did not carry with them any right to occupy
18/Hugo Grotius
them as provinces, only one kind of title remains to be considered, namely,
that based upon war. But even if this title could be justified, it would not
serve to establish sovereignty, except by right of conquest, that is to say,
occupation would be a prerequisite. But the Portuguese were as far as
possible from occupation of those lands. They were not even at war
with most of the peoples whom the Dutch visited So therefore no legal
claim could be established there by the Portuguese, because even if they
had suffered wrongs from the East Indians, it might reasonably be considered by the long peace and friendly commercial relations that those
injuries had been forgiven.
Indeed there was no pretext at all for going to war. For those who
force war upon barbarous peoples, as the Spaniards did upon the aborigines of America, commonly allege one of two pretexts: either that
they have been refused the right to trade, or that the barbarians are
unwilling to acknowledge the doctrines of the True Faith. But as the
Portuguese actually obtained from the East Indians the right to trade,41
they have, on that score at least, no grounds of complaint. Nor is there
any better justification for the other pretext than the one alleged by the
Greeks against the barbarians, to which Bothius makes the following
allusion:
Unjust and cruel wars they wage,
And haste with flying darts the death to meet or deal.
No right nor reason can they show;
Tis but because their lands and laws are not the same.42
Moreover the verdict of Thomas Aquinas, of the Council of Toledo,

of Gregory, and of nearly all theologians, canonists, and jurists, is as
follows:43 However persuasively and sufficiently the True Faith has been
preached to the heathenformer subjects of Christian princes or apostates are quite another questionif they are unwilling to heed it, that is
not sufficient cause to justify war upon them, or to despoil them of their
goods.44
It is worth while on this point to quote the actual words of Cajetan:45
There are some infidels who are neither in law nor in fact under the
temporal jurisdiction of Christian princes; just as there were pagans
who were never subjects of the Roman Empire, and vet who inhabit
lands where the name of Christ was never heard. Tow their rulers, though
heathen, are legitimate rulers, whether the people live under a monar-

chical or a democratic regime. They are not to be deprived of sovereignty over their possessions because of their unbelief, since sovereignty
is a matter of positive law, and unbelief is a matter of divine law, which
cannot annul positive law, as has been argued above. In fact I know of
no law against such unbelievers as regards their temporal possessions.
Against them no King, no Emperor, not even the Roman Church, can
declare war for the purpose of occupying their lands, or of subjecting
them to temporal sway. For there is no just cause for war, since Jesus
Christ the King of Kings, to whom all power was given in heaven and
on earth, sent out for the conquest of the world not armed soldiers, but
holy disciples, as sheep in the midst of wolves. Nor do I read in the
Old Testament, when possession had to be obtained by force of arms,
that the Israelites waged war on any heathen land because of the unbelief of its inhabitants; but it was because the heathen refused them the
right of innocent passage, or attacked them, as the Midianites did; or it
was to recover the possessions which had been bestowed upon them by
divine bounty. Wherefore we should be most miserable sinners if we
should attempt to extend the religion of Jesus Christ by such means.
Nor should we be their lawful rulers, but, on the contrary, we should be
committing great robberies, and be compelled to make restitution as
unjust conquerors and invaders. There must be sent to them as preachers, good men to convert them to God by their teaching and example;
not men who will oppress them, despoil them, subdue and proselytize
them, and make them twofold more the children of hell than themselves,46 after the manner of the Pharisees.
Indeed I have often heard that it has been decreed by the Council of
Spain, and by the Churchmen, especially the Dominicans, that the Americans (Aztecs and Indians) should be converted to the Faith by the preaching of the Word alone, and not by war, and even that their liberty of
which they had been robbed in the name of religion should be restored.
This policy is said to have received the approval of pope Paul III, and of
Emperor Charles V, King of the Spains.
I pass over the fact that the Portuguese in most places do not further
the extension of the faith, or indeed, pay any attention to it at all, since
they are alive only to the acquisition of wealth. Nay, the very thing that
is true of them, is the very thing which has been written of the Spaniards
in America by a Spaniard, namely, that nothing is heard of miracles or
wonders or examples of devout and religious life such as might convert
others to the same faith, but on the other hand no end of scandals, of
20/Hugo Grotius
crimes, of impious deeds.
Wherefore, since both possession and a title of possession are lacking, and since the property and the sovereignty of the East Indies ought
not to be considered as if they had previously been res nullius, and
since, as they belong to the East Indians, they could not have been acquired legally by other persons, it follows that the East Indian nations in
question are not the chattels of the Portuguese, but are free men and sui
juris. This is not denied even by the Spanish jurists themselves.47
Chapter V
Neither the Indian Ocean nor the right of navigation thereon belongs
to the Portuguese by title of occupation
If therefore the Portuguese have acquired no legal right over the nations
of the East Indies, and their territory and sovereignty, let us consider
whether they have been able to obtain exclusive jurisdiction over the sea
and its navigation or over trade. Let us first consider the case of the sea.
Now, in the legal phraseology of the Law of Nations, the sea is called
indifferently the property of no one (res nullius), or a common possession (res communis), or public property (res publica). It will be most
convenient to explain the signification of these terms if we follow the
practice of all the poets since Hesiod, of the philosophers and jurists of
the past, and distinguish certain epochs, the divisions of which are marked
off perhaps not so much by intervals of time as by obvious logic and
essential character. And we ought not to be criticised if in our explanation of a law deriving from nature, we use the authority and definition of
those whose natural judgment admittedly is held in the highest esteem.
It is therefore necessary to explain that in the earliest stages of human existence both sovereignty and common possession had meanings
other than those which they bear at the present time.48 For nowadays
sovereignty means a particular kind of proprietorship, such in fact that
it absolutely excludes like possession by any one else. On the other
hand, we call a thing common when its ownership or possession is
held by several persons jointly according to a kind of partnership or
mutual agreement from which all other persons are excluded. Poverty
of language compels the use of the same words for things that are not
the same. And so because of a certain similarity and likeness, our modern nomenclature is applied to that state of primitive law. Now, in ancient times, common meant simply the opposite of particular; and
sovereignty or ownership, meant the privilege of lawfully using com-

mon property. This seemed to the Scholastics49 to be a use in fact but
not in law, because what now in law is called use, is a particular right,
or if I may use their phraseology, is, in respect to other persons, a privative right.
In the primitive law of nations, which is sometimes called Natural
Law, and which the poets sometimes portray as having existed in a
Golden Age, and sometimes in the reign of Saturn or of Justice, there
was no particular right. As Cicero says: But nothing is by nature private property. And Horace:50 For nature has decreed to be the master
of private soil neither him, nor me, nor anyone else. For nature knows
no sovereigns. Therefore in this sense we say that in those ancient times
all things were held in common, meaning what the poets do when they
say that primitive men acquired everything in common, and that Justice
maintained a community of goods by means of an inviolable compact.
And to make this clearer, they say that in those primitive times the fields
were not delimited by boundary lines, and that there was no commercial
intercourse. As Avienus says:51 The promiscuity of the fields had made
everything seem common to all.
The word seemed is rightly added, owing, to the changed meaning
of the words, as we have noted above.
But that kind of common possession relates to use, as is seen from a
quotation from Seneca:52
Every path was free,
All things were used in common.
According to his reasoning there was a kind of sovereignty, but it

was universal and unlimited. For God had not given all things to this
individual or to that, but to the entire human race, and thus a number of
persons, as it were en masse, were not debarred from being substantially sovereigns or owners of the same thing, which is quite contradictory to our modern meaning of sovereignty. For it now implies particular or private ownership, a thing which no one then had. Avienus has
said very pertinently:53 All things belonged to him who had possession
of them.
It seems certain that the transition to the present distinction of ownerships did not come violently, but gradually, nature herself pointing out
the way. For since there are some things, the use of which consists in
their being used up, either because having become part of the very sub-
22/Hugo Grotius
stance of the user they can never be used again, or because by use they
become less fit for future use, it has become apparent, especially in
dealing with the first category, such things as food and drink for example, that a certain kind of ownership is inseparable from use.54 For
own implies that a thing belongs to some one person, in such a way
that it cannot belong to any other person. By the process of reasoning
this was next extended to things of the second category, such as clothes
and movables and some living things.
When that had come about, not even immovables, such, for instance,
as fields, could remain unapportioned. For although their use does not
consist merely in consumption, nevertheless it is bound up with subsequent consumption, as fields and plants are used to get food, and pastures to get clothing. There is, however, not enough fixed property to
satisfy the use of everybody indiscriminately.
When property or ownership was invented, the law of property was
established to imitate nature. For as that use began in connection with
bodily needs, from which as we have said property first arose, so by a
similar connection it was decided that things were the property of individuals. This is called occupation, a word most appropriate to those
things which in former times had been held in common. It is this to
which Seneca alludes in his tragedy Thyestes,
Crime is between to be seized by one.55
And in one of his philosophical writings he also says:56 The equestrian rows of seats belong to all the equites; nevertheless, the seat of
which I have taken possession is my own private place. Further,
Quintilian remarks57 that a thing which is created for all is the reward of
industry, and Cicero says58 that things which have been occupied for a
long time become the property of those who originally found them unoccupied.
This occupation or possession, however, in the case of things which
resist seizure, like wild animals for example, must be uninterrupted or
perpetually maintained, but in the case of other things it is sufficient if
after physical possession is once taken the intention to possess is maintained. Possession of movables implies seizure, and possession of immovables either the erection of buildings or some determination of boundaries, such as fencing in. Hence Hermogenianus, in speaking of separate ownerships, adds the boundaries set to the fields and the buildings

thereon constructed.59 This state of things is described thus by the poets
Vergil and Ovid:
Then toils for beasts, and lime for birds, there found,60
Then first men made homes.

Then landmarks limited to each his right,
For all before was coalition as the light.61
In still another place, as Hermogenianus points out, Ovid praises commerce, for the sake of which:62
Ships in triumph sail the unknown seas.
At the same time, however, states began to be established, and so

two categories were made of the things which had been wrested away
from early ownership in common. For some things were public, that is,
were the property of the people (which is the real meaning of that expression), while other things were private, that is, were the propertyof
individuals. Ownership, however, both public and private, arises in the
same way. On this point Seneca says:63 We speak in general of the land
of the Athenians or the Campanians. It is the same land which again by
means of private boundaries is divided among individual owners. For
each nation, Seneca says in another place, made its territories into
separate kingdoms new cities.64 Thus Cicero says: On this principle
the lands of Arpinum are said to belong to the Arpinates, the Tusculan
lands to the Tusculans; and similar is the assignment of private property. Therefore, inasmuch as in each case some of those things which by
nature had been common property became the property of individuals,
each one should retain possession of that which has fallen to his lot.65
On the other hand Thucydides66 calls the land which in the division falls
to no nation, aoristoj, that is, undefined, and undetermined by boundaries.67
Two conclusions may be drawn from what has thus far been said.
The first is, that that which cannot be occupied, or which never has been
occupied, cannot be the property of any one, because all property has
arisen from occupation. The second is, that all that which has been so
constituted by nature that although serving some one person it still suf-
24/Hugo Grotius
fices for the common use of all other persons, is today and ought in
perpetuity to remain in the same condition as when it was first created
by nature. This is what Cicero meant when he wrote: This then is the
most comprehensive bond that unites together men as men and all to all;
and under it the common right to all things that nature has produced for
the common use of man is to be maintained.68 All things which can be
used without loss to any one else come under this category. Hence, says
Cicero, comes the well known prohibition:69 Deny no one the water that
flows by. For running water considered as such and not as a stream, is
classed by the jurists among the things common to all mankind; as is
done also by Ovid:70 Why do you deny me water? Its use is free to all.
Nature has made neither sun nor air nor waves private property; they
are public gifts.
He says that these things are not by nature private possession, but
that, as Ulpian claims,71 they are by nature things open to the use of all,
both because in the first place they were produced by nature, and have
never yet come under the sovereignty of any one, as Neratius says;72 and
in the second place because, as Cicero says, they seem to have been
created by nature for common use. But the poet uses public, in its
usual meaning, not of those things which belong to any one people, but
to human society as a whole; that is to say, things which are called
public are, according to the Laws of the law of nations, the common
property of all, and the private property of none.
The air belongs to this class of things for two reasons. First, it is not
susceptible of occupation; and second its common use is destined for all
men. For the same reasons t he sea is common to all, because it is so
limitless that it cannot become a possession of any one, and because it is
adapted for the use of all, whether we consider it from the point of view
of navigation or of fisheries. Now, the same right which applies to the
sea applies also to the things which the sea has carried away from other
uses and made its own, such for example as the sands of the sea, of
which the portion adjoining the land is called the coast or shore.73 Cicero
therefore argues correctly:74 What is so common as the sea for those
who are being tossed upon it, the shore for those who have been cast
thereon. Vergil also says that the air, the sea, and the shore are open to
all men.
These things therefore are what the Romans call common to all
men by natural law,75 or as we have said, public according to the law
of nations; and indeed they call their use sometimes common, some-

times public. Nevertheless, although those things are with reason said to
be res nullius, so far as private ownership is concerned, still they differ
very much from those things which, though also res nullius, have not
been marked out for common use, such for example as wild animals,
fish, and birds. For if any one seizes those things and assumes possession of them, they can become objects of private ownership, but the
things in the former category by the consensus of opinion of all mankind
are forever exempt from such private ownership on account of their
susceptibility to universal use; and as they belong to all they cannot be
taken away from all by any one person any more than what is mine can
be taken away from me by you. And Cicero says that one of the first
gifts of Justice is the use of common property for common benefit. The
Scholastics would define one of these categories as common in an affirmative, the other in a privative sense. This distinction is not only familiar to jurists, but it also expresses the popular belief. In Athenaeus for
instance the host is made to say that the sea is the common property of
all, but that fish are the private property of him who catches them. And
in Plautus Rudens when the slave says:76 The sea is certainly common
to all persons, the fisherman agrees; but when the slave adds: Then
what is found in the common sea is common property. he rightly objects, saying: But what my net and books have taken, is absolutely my
own.
Therefore the sea can in no way become the private property of any
one, because nature not only allows but enjoins its common use.77 Neither can the shore become the private property of any one. The following qualification, however, must be made. If any part of these things is
by nature susceptible of occupation, it may become the property of the
one who occupies it only so far as such occupation does not affect its
common use. This qualification is deservedly recognized. For in such a
case both conditions vanish through which it might eventuate, as we
have said, that all of it would pass into private ownership.
Since therefore, to cite Pomponius, building is one kind of occupation, it is permissible to build upon the shore, if this can be done without
inconvenience to other people;78 that is to say (I here follow Scaevola) if
such building can be done without hindrance to public or common use
of the shore. And whoever shall have constructed a building under the
aforesaid circumstances will become the owner of the ground upon which
said building is; because this ground is neither the property of any one
else, nor is it necessary to common use. It becomes therefore the prop-
26/Hugo Grotius
erty of the occupier, but his ownership lasts no longer than his occupation lasts, inasmuch as the sea seems by nature to resist ownership. For
just as a wild animal, if it shall have escaped and thus recovered its
natural liberty, is no longer the property of its captor, so also the sea
may recover its possession of the shore.
We have now shown that whatever by occupation can become private property can also become public property, that is, the private property of a whole nation.79 And so Celsus considered the shore included
within the limits of the Roman Empire to be the property of the Roman
people. There is not therefore the least reason for surprise that the Roman people through their emperors or praetors was able to grant to its
subjects the right of occupying the shore. This public occupation, however, no less than private occupation, was subject to the restriction that
it should not infringe on international rights. Therefore the Roman people
could not forbid any one from having access to the seashore,80 and from
spreading his fishing nets there to dry, and from doing other things which
all men long ago decided were always permissible.
The nature of the sea, however, differs from that of the shore, because the sea, except for a very restricted space, can neither easily be
built upon, nor inclosed; if the contrary were true yet this could hardly
happen without hindrance to the general use. Nevertheless, if any small
portion of the sea can be thus occupied, the occupation is recognized.
The famous hyperbole of Horace must be quoted here: The fishes note
the narrowing of the waters by piers of rock laid in their depths.81
Now Celsus holds that piles driven into the sea belong to the man
who drove them.82 But such an act is not permissible if the use of the sea
be thereby impaired. And Ulpian says that whoever builds a breakwater
must be protected if it is not prejudicial to the interests of any one; for if
this construction is likely to work an injury to any one, the injunction.
Nothing may be built on public property would apply. Labeo, however, holds that in case any such construction should be made in the sea,
the following injunction is to be enforced: Nothing may be built in the
sea whereby the harbor, the roadstead, or the channel be rendered less
safe for navigation,83
Now the same principle which applies to navigation applies also to
fishing, namely, that it remains free and open to all. Nevertheless there
shall be no prejudice if any one shall by fencing off with stakes an inlet
of the sea make a fish pond for himself, and so establish a private preserve. Thus Lucullus once brought the water of the sea to his villa by

cutting a tunnel through a mountain near Naples.84 I suspect too that the
seawater reservoirs for fish mentioned by Varro and Columella were of
this sort. And Martial had the same thing in mind when he says of the
Formian villa of Apollinaris:85 Whenever Nereus feels the power of
Aeolus, the table safe in its own resources laughs at the gale. Ambrose
also has something to say on the same subject:86 You bring the very sea
into your estates that you may not lack for fish. In the light of all this
the meaning of Paulus is clear when he says87 that if any one has a
private right over the sea, the rule uti possidetis applies. This rule however is applicable only to private suits, and not to public ones, among
which are also to be included those suits which can be brought under the
common law of nations. But here the question is one which concerns the
right of use arising in a private suit, but not in a public or common one.
For according to the authority of Marcianus whatever has been occupied and can be occupied is no longer subject to the law of nations as the
sea is. Let us take an example. If any one had prevented Lucullus or
Apollinaris from fishing in the private fish ponds which they had made
by inclosing a small portion of the sea, according to the opinion of Paulus
they would have the right of bringing an injunction, not merely an action
for damages based on private ownership.88
Indeed, if I shall have staked off such an inclosure in an inlet of the
sea, just as in a branch of a river, and have fished there, especially if by
doing so continuously for many years I shall have given proof of my
intention to establish private ownership, I shall certainly prevent any
one else from enjoying the same rights. I gather from Marcianus that
this case is identical with that of the ownership of a lake, and it is true
however long occupation lasts, as we have said above about the shore.
But outside of an inlet this will not hold, for then the common use of the
sea might be hindered.89
Therefore if any one is prevented from fishing in front of my town
house or country seat, it is a usurpation, but an illegal one, although
Ulpian, who rather makes light of this usurpation, does say that if any
one is so prevented he can bring an action for damages.90 The Emperor
Leo, whose laws we do not use, contrary to the intent of the law, changed
this, and declared that the entrances, or vestibules as it were, to the sea,
were the private property of those who inhabited the shore, and that they
had the right of fishing there.91 However he attached this condition, that
the place should be occupied by certain jetty or pile constructions, such
as the Greeks call {epoxai}, thinking doubtless that no one who was
28/Hugo Grotius
himself allowed to fish anywhere in the sea would grudge any one else a
small portion of it. To be sure it would be an intolerable outrage for any
one to snatch away, even if he could do so, from public use a large area
of the sea; an act which is justly reprehended by the Holy Man,92 who
says: The lords of the earth claim for themselves a wide expanse of sea
by jus mancipii, and they regard the right of fishing as a servitude over
which their right is the same as that over their slaves. That gulf, says
one, belongs to me, and that gulf to some one else. They divide the very
elements among themselves, these great men!
Therefore the sea is one of those things which is not an article of
merchandise,93 and which cannot become private property. Hence it follows, to speak strictly, that no part of the sea can be considered as the
territory of any people whatsoever. Placentinus seems to have recognized this when he said: The sea is a thing so clearly common to all,
that it cannot be the property of any one save God alone. Johannes
Faber94 also asserts that the sea has been left sui juris, and remains in
the primitive condition where all things were common. If it were otherwise there would be no difference between the things which are common to all, and those which are strictly termed public; no difference,
that is, between the sea and a river. A nation can take possession of a
river, as it is inclosed within their boundaries, with the sea, they cannot
do so.
Now, public territory arises out of the occupation of nations, just as
private property arises out of the occupation of individuals. This is recognized by Celsus, who has drawn a sharp distinction between the shores
of the sea,95 which the Roman people could occupy in such a way that
its common use was not harmed, and the sea itself, which retained its
primitive nature. In fact no law intimates a contrary view.96 Such laws
as are cited by writers who are of the contrary opinion apply either to
islands, which evidently could be occupied, or to harbors, which are not
common, but public, that is, national.
Now those who say that a certain sea belonged to the Roman people
explain their statement to mean that the right of the Romans did not
extend beyond protection and jurisdiction; this right they distinguish
from ownership. Perchance they do not pay sufficient attention to the
fact that although the Roman People were able to maintain fleets for the
protection of navigation and to punish pirates captured on the sea, it
was not done by private right, but by the common right which other free
peoples also enjoy on the sea. We recognize, however, that certain peoples

have agreed that pirates captured in this or in that part of the sea should
come under the jurisdiction of this state or of that, and further that certain convenient limits of distinct jurisdiction have been apportioned on
the sea. Now, this agreement does bind those who are parties to it,97 but
it has no binding force on other nations, nor does it make the delimited
area of the sea the private property of any one. It merely constitutes a
personal right between contracting parties.
This distinction so conformable to natural reason is also confirmed
by a reply once made by Ulpian. Upon being asked whether the owner
of two maritime estates could on selling either of them impose on it such
a servitude as the prohibition of fishing in a particular part of the sea, he
replied that the thing in question, evidently the sea, could not be subjected to a servitude, because it was by nature open to all persons; but
that since a contract made in good faith demands that the condition of a
sale be respected, the present possessors and those who succeed to their
rights were bound to observe that condition. It is true that the jurist is
speaking of private estates and of private law, but in speaking here of
the territory of peoples and of public law the same reasoning applies,
because from the point of view of the whole human race peoples are
treated as individuals.
Similarly, revenues levied on maritime fisheries are held to belong
to the Crown, but they do not bind the sea itself or the fisheries, but only
the persons engaged in fishing.98 Wherefore subjects, for whom a state
or a ruler is by common consent competent to make laws, will perhaps
be compelled to bear such charges, but so far as other persons are concerned the right of fishing ought everywhere to be exempt from tolls,
lest a servitude be imposed upon the sea, which is not susceptible to a
servitude.
The case of the sea is not the same as that of a river,99 for as a river
is the property of a nation, the right to fish in it can be passed or leased
by the nation or by the ruler, in such a way (and the like is true with the
ancients) that the lessee enjoys the operation of the injunction de loco
publico fruendo by virtue of the clause He who has the right to lease
has leased the exclusive right of enjoyment.100 Such a condition cannot
arise in respect to the sea. Finally those who count fishing among the
properties of the Crown have not examined carefully enough the very
passage which they cite to prove their contention, as Isernia101 and
Alvotus102 have noticed.
It has therefore been demonstrated that neither a nation nor an indi-
30/Hugo Grotius
vidual can establish any right of private ownership over the sea itself (I
except inlets of the sea), inasmuch as its occupation is not permissible
either by nature or on grounds of public utility. The discussion of this
matter has been taken up for this reason, namely, that it may be seen
that the Portuguese have not established private ownership over the sea
by which people go to the East Indies. For the two reasons that stand in
the way of ownership are in this case infinitely more powerful than in all
others. That which in other cases seems difficult, is here absolutely impossible; and what in other cases we recognize as unjust is here most
barbarous and inhuman
The question at issue then is not one that concerns an Inner Sea, one
which is surrounded on all sides by the land and at some places does not
even exceed a river in breadth, although it is well known that the Roman
jurists cited such an inner sea in their famous opinions condemning private avarice. No! the question at issue is the Outer Sea, the Ocean, that
expanse of water which antiquity describes as the immense, the infinite,
bounded only by the heavens, parent of all things; the ocean which the
ancients believed was perpetually supplied with water not only by fountains, rivers, and seas, but by the clouds, and by the very stars of heaven
themselves; the ocean which, although surrounding this earth, the home
of the human race, with the ebb and flow of its tides, can be neither
seized nor inclosed; nay, which rather possesses the earth than is by it
possessed.
Further, the question at issue does not concern a gulf or a strait in
this ocean, nor even all the expanse of sea which is visible from the
shore. [But consider this!!] The Portuguese claim as their own the whole
expanse of the sea which separates two parts of the world so far distant
the one from the other, that in all the preceding centuries neither one has
so much as heard of the other. Indeed, if we take into account the share
of the Spaniards, whose claim is the same as that of the Portuguese,
only a little less than the whole ocean is found to be subject to two
nations, while all the rest of the peoples in the world are restricted to the
narrow bounds of the northern seas. Nature was greatly deceived if
when she spread the sea around all peoples she believed that it would
also be adequate for the use of them all. If in a thing so vast as the sea a
man were to reserve to himself from general use nothing more than mere
sovereignty, still he would be considered a seeker after unreasonable
power. If a man were to enjoin other people from fishing, he would not
escape the reproach of monstrous greed. But the man who even prevents

navigation, a thing which means no loss to himself, what are we to say
of him?
If any person should prevent any other person from taking in his
fire or a light from his torch, I should accuse him of violating the law of
human society, because that is the essence of its very nature, as Ennius
has said:
No less shines his, when, he his friends hath lit.103
Why then, when it can be done without any prejudice to his own
interests, will not one person share with another things which are useful
to the recipient, and no loss to the giver?104 These are services which the
ancient philosophers105 thought ought to be rendered not only to foreigners but even to the ungrateful. But the same act which when private
possessions are in question is jealousy can be nothing but cruelty when
a common possession is in question. For it is most outrageous for you to
appropriate a thing, which both by ordinance of nature and by common
consent is as much mine as yours, so exclusively that you will not grant
me a right of use in it which leaves it no less yours than it was before.
Nevertheless, even those who lay burdens upon foreigners, or appropriate things common to all, rely upon a possession which is to some
extent real. For since original occupation created private property, therefore detention of a thing, though unjust, gives an appearance of ownership. But have the Portuguese completely covered the ocean, as we are
wont to do on land, by laying out estates on it in such a way that they
have the right to exclude from that ocean whom they will? Not at all! On
the contrary, they are so far from having done so, that when they divide
up the world to the disadvantage of other nations, they cannot even
defend their action by showing boundaries either natural or artificial,
but are compelled to fall back upon some imaginary line. Indeed, if that
were a recognized method, and such a delimitation of boundaries were
sufficient to make possession valid, our geometers long since would
have got possession of the face of the earth, our astronomers of the very
skies.
But where in this case is that corporal possession or physical appropriation, without which no ownerships arise? There appears to be
nothing truer than what our learned jurists have enunciated, namely,106
that since the sea is just as insusceptible of physical appropriation as the
air, it cannot be attached to the possessions of any nation.
32/Hugo Grotius
But if the Portuguese call occupying the sea merely to have sailed
over it before other people, and to have, as it were, opened the way,
could anything in the world be more ridiculous? For, as there is no part
of the sea on which some person has not already sailed, it will necessarily follow that every route of navigation is occupied by some one. Therefore we peoples of today are all absolutely excluded. Why will not those
men who have circumnavigated the globe be justified in saying that they
have acquired for themselves the possession of the whole ocean! But
there is not a single person in the world who does not know that a ship
sailing through the sea leaves behind it no more legal right than it does
a track. And as for the assumption of the Portuguese that no one has
sailed that ocean before themselves, that is any thing but true. For a
great part of that sea near Morocco, which is in dispute, had already
been navigated long before, and the sea as far east as the Arabian gulf
has been made famous by the victories of Alexander the Great, as both
Pliny and Mela tell us.107
There is also much to substantiate the belief that the inhabitants of
Cadiz were well acquainted long ago with this route, because when Gaius
Caesar,108 the son of Augustus, held command in the Arabian gulf, pieces
were found of shipwrecks recognized as Spanish. Caelius Antipater also
has told us in his writings that he himself saw a Spaniard who had sailed
from Spain to Ethiopia on a commercial voyage. Also the Arabians
knew those seas, if the testimony of Cornelius Nepos is to be believed,
because he says that in his own day a certain Eudoxus, fleeing from
Lathyrus, king of Alexandria, sailed from the Arabian gulf and finally
reached Cadiz. However, by far the most famous example is that of the
Carthaginians. Those most famous mariners were well acquainted with
that sea, because Hanno, when Carthage was at the height of her power,
sailing from Cadiz to the farthest confines of Arabia, and doubling the
promontory now known as the Cape of Good Hope (the ancient name
seems to have been Hesperion Ceras), described in a book the entire
route he had taken, the appearance of the coasts, and the location of the
islands, declaring that at the farthest point he reached the sea had not yet
given out but his provisions had.
Plinys description of the route to the East,109 the embassies from
the Indies to Augustus, and those from Ceylon to the emperor Claudius,
and finally the accounts of the deeds of Trajan, and the writings of
Ptolemaeus, all make it quite clear that in the days of Romes greatest
splendor voyages were made regularly from the Arabian gulf to India,

to the islands of the Indian ocean, and even so far as to the golden
Chersonesus, which many people think was Japan. Strabo says110 that
in his own time a fleet of Alexandrian merchantmen set sail from the
Arabian gulf for the distant lands of Ethiopia and India, although few
ships had ever before attempted that voyage. The Roman people had a
large revenue from the East. Pliny says111 that cohorts of archers were
carried on the boats engaged in trade as protection against pirates; he
states also that every year 500,000 sesterces112 were taken out of the
Roman empire by India alone, or 1,000,000 sesterces if you add Arabia
and China; further, that merchandise brought from the East sold for one
hundred times its original cost.
These examples cited from ancient times are sufficient proof that
the Portuguese were not the first in that part of the world. Long before
they ever came, every single part of that ocean had been long since
explored. For how possibly could the Moors, the Ethiopians, the Arabians, the Persians, the peoples of India, have remained in ignorance of
that part of the sea adjacent to their coasts!
Therefore they lie, who today boast that they discovered that sea.
Well then, some one will say, does it seem to be a matter of little
moment that the Portuguese were the first to restore a navigation interrupted perhaps for many centuries, and unknownas cannot be deniedat least to the nations of Europe, at great labor and cost and
danger to themselves? On the contrary, if they had laid weight upon the
fact that they were pointing out to all what they alone had rediscovered,
there is no one so lacking in sense that he would not acknowledge the
greatest obligation to them. For the Portuguese will have earned the
same thanks, praise, and immortal glory with which all discoverers of
great things have been content, whenever they have striven to benefit
not themselves but the whole human race. But if the Portuguese had
before their eyes only their own financial gain, surely their profit, which
is always the largest for those first in a new field of enterprise, ought to
have satisfied them. For we know that their first voyages returned a
profit sometimes of forty times the original investment, and sometimes
even more. And by this overseas trade it has come about that a people,
previously for a long time poor, have leaped suddenly into the possession of great riches, and have surrounded themselves with such outward
signs of luxurious magnificence as scarcely the most prosperous nations have been able to display at the height of their fortunes.
But if these Portuguese have led the way in this matter in order that
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no one may follow them, then they do not deserve any thanks, inasmuch
as they have considered only their own profit. Nor can they call it their
profit, because they are taking the profit of some one else. For it is not at
all demonstrable that, if the Portuguese had not gone to the East Indies,
no one else would have gone. For the times were coming on apace in
which along with other sciences the geographical locations of seas and
lands were being better known every day. The reports of the expeditions
of the ancients mentioned above had aroused people, and even if all
foreign shores had not been laid open at a single stroke as it were, yet
they would have been brought to light gradually by sailing voyages,
each new discovery pointing the way to the next. And so there would
finally have been accomplished what the Portuguese showed could be
done, because there were many nations with no less ardor than theirs to
engage in commerce and to learn of foreign things. The Venetians, who
already knew much about India, were ready to push their knowledge
farther; the indefatigable zeal of the French of Brittany, and the boldness of the English would not have failed to make such an attempt;
indeed the Dutch themselves have embarked upon much more desperate
enterprises.
Therefore the Portuguese have neither just reason nor respectable
authority to support their position, for all those persons who assume
that the sea can be subjected to the sovereignty of any one assign it to
him who holds in his power the nearest ports and the circumjacent
shores.113 But in all that great extent of coast line reaching to the East
Indies the Portuguese have nothing which they can call their own except
a few fortified posts.
And then even if a man were to have dominion over the sea, still he
could not take away anything from its common use, just as the Roman
people could not prevent any one from doing on the shores of their dominions all those things which were permitted by the law of nations.114
And if it were possible to prohibit any of those things, say for example,
fishing, for in a way it can be maintained that fish are exhaustible, still
it would not be possible to prohibit navigation, for the sea is not exhausted by that use.
The most conclusive argument on this question by far however is
the one that we have already brought forward based on the opinions of
eminent jurists, namely, that even over land which had been converted
into private property either by states or individuals, unarmed and innocent passage is not justly to be denied to persons of any country, exactly

as the right to drink from a river is not to be denied. The reason is clear,
because, inasmuch as one and the same thing is susceptible by nature to
different uses, the nations seem on the one hand to have apportioned
among themselves that use which cannot be maintained conveniently
apart from private ownership; but on the other hand to have reserved
that use through the exercise of which the condition of the owner would
not be impaired.
It is clear therefore to every one that he who prevents another from
navigating the sea has no support in law. Ulpian has said115 that he was
even bound to pay damages, and other jurists have thought that the
injunction utile prohibito could also be brought against him.116
Finally, the relief prayed for by the Dutch rests upon a common
right, since it is universally admitted that navigation on the sea is open
to any one, even if permission is not obtained from any ruler. And this is
specificially expressed in the Spanish laws.117
Chapter VI
Neither Sea nor the right of navigation thereon belongs to the Portuguese by virtue of title based on the Papal Donation
The Donation of Pope Alexander, inasmuch as the title based on discovery is seen to be deficient, may next be invoked by the Portuguese to
justify their exclusive appropriation of the sea and the right of navigation thereon. But from what has been said above, that Donation is clearly
convicted of being an act of empty ostentation. For a Donation has no
effect on things outside the realm of trade. Wherefore since neither the
sea nor the right of navigating it can become the private property of any
man, it follows that it could not have been given by the Pope, nor accepted by the Portuguese. Besides, as has been mentioned above, following the opinion of all men of sound judgment, it is sufficiently well
recognized that the Pope is not the temporal lord of the earth, and certainly not of the sea. Even if it be granted for the sake of argument that
such were the case, still a right attaching to the Pontificate ought not to
be transferred wholly or in part to any king or nation. Similarly no
emperor could convert to his own uses or alienate at his own pleasure
the provinces of his empire.118
Now, inasmuch as no one concedes to the Pope in temporal matters
a jus disponendi, except perhaps in so far as it is demanded by the
necessity of spiritual matters, and inasmuch as the things now under
discussion, namely, the sea and the right of navigating it, are concerned
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only with money and profits, not with piety, surely no one can have the
face to insist that the Pope had any jurisdiction here. What of the fact
that not even rulers, that is to say, temporal lords, can any one from
navigation, since if they have any right at all upon the sea it is merely
one of jurisdiction and protection! It is also a fact universally recognized that the Pope has no authority to commit acts repugnant to the law
of nature.119 But it is repugnant to the law of nature, as we have already
proved beyond a doubt, for any one to have as his own private property
either the sea or its use. Finally, since the Pope is wholly unable to
deprive any one of his own rights, what defense will there be for that
Donation of his, if by a word he intended to exclude so many innocent,
uncondemned, and guiltless nations from a right which belongs no less
to them than to the Spaniards?
Therefore, either it must be affirmed that a pronunciamento of this
sort has no force, or, as is no less credible, that it was the desire of the
Pope to intercede in the quarrel between the Spaniards and the Portuguese, and that he had no concomitant intention of violating the rights of
others.
Chapter VII
Neither the Sea nor the right of navigation thereon belongs to the Portuguese by title of prescription or custom
The last defense of injustice is usually a claim or plea based on prescription or on custom. To this defense therefore the Portuguese have
resorted. But the best established reasoning of the law precludes them
from enjoying the protection of either plea.
Prescription is a matter of municipal law; hence it cannot be applied as between kings, or as between free and independent nations.120 It
has even less standing when it is in conflict with that which is always
stronger than the municipal law, namely, the law of nature or nations.
Nay, even municipal law itself prevents prescription in this case.121 For
it is impossible to acquire by usucaption or prescription things which
cannot become property, that is, which are not susceptible of possession
or of quasi-possession, and which cannot be alienated. All of which is
true with respect to the sea and its use.
And since public things, that is, things which are the property of a
nation, cannot be acquired by mere efflux of time, either because of
their nature, or because of the prerogatives of those against whom such
prescription would act, is it not vastly more just that the benefits accru-

ing from the enjoyment of common things should be given to the entire
human race than to one nation alone? On this point Papinian has said:122
Prescription raised by long possession is not customarily recognized as
valid in the acquisition of places known to international law as public. As an example, to illustrate this point, he cites a shore some part
of which had been occupied by means of a building constructed on it.
But if this building should be destroyed, and some one else later should
construct a building on the same spot, no exception could be taken to it.
Then he illustrates the same point by the analogous case of a res publica. If, for example, any one has fished for many years in a branch of a
river, and has then stopped fishing there, after that he cannot prevent
any one else from enjoying the same right that he had.
Wherefore it appears that Angeli123 and his followers who have said
that the Venetians and Genoese were able to acquire by prescription
certain specific rights in the gulfs of the sea adjacent to their shores,
either are mistaken, or are deceiving others; a thing which happens all
too frequently with jurists when they exercise the authority of their sacred profession not for justice and law, but in order to gain the gratitude
of the powerful. There is also an opinion of Marcianus, already cited
above in another connection, which, when carefully compared with the
words of Papinian,124 can have no other interpretation than the one formerly adopted by Johannes and Bartolus,125 and now accepted by all
learned men,126 namely, that the jus prohibendi is in effect only while
occupation lasts; it loses its force if occupation cease; and occupation
once interrupted, even if it had been continuous for a thousand years,
loses its rights, as Paul de Castro127 justly observes. And even if
Marcianus had meantwhich certainly was not in his mind at allthat
acquisition by prescription is to be recognized wherever occupation is
recognized, still it would have been absurd to apply what had been said
about a public river to the common sea, or what had been said about an
inlet or a river branch to a bay, since in the latter case prescription
would hinder the use of something common to all by the law of nations,
and in the former case would work no great injury to public use. Moreover, another argument brought forward by Angeli based on the use of
aqueducts,128 has quite properly been rejected by every one, being, as de
Castro pointed out, entirely aside from the point.
It is not true then that such prescription rises even at a time beyond
the period of the memory of man. For since the law absolutely denies all
prescription, not even immemorial time has any effect on the question;
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that is, as Felinus129 says, things imprescriptible by nature do not become prescriptible by the mere efflux of immemorial time. Balbus admits the truth of these arguments,130 but says that the opinion of Angeli
is to be accepted on the ground that time immemorial is believed to have
the same validity as prerogative for setting up a title, since a perfect title
is presumed from such efflux of time. Hence it appears that the jurists
thought if some part of a state, say of the Roman empire for example, at
a period before the memory of man had exercised such a right, that a
title by prescription would have to be admitted on that ground, exactly
as if there had been a previous grant from a Prince. But inasmuch as
there is no one who is sovereign of the whole human race with competence to grant to any man or to any nation such a right against all other
men, with the annihilation of that pretext, title by prescription is also
necessarily destroyed. Therefore the opinion of the jurists is that not
even an infinite lapse of time is able to set up a right as between kings or
independent nations.
Moreover Angeli brought forward a most foolish argument, affirming that even if prescription could not create ownership, still an exception ought to be made in favor of a possessor. Papinian however in
unmistakable words says there is no exception,131 nor could he think
otherwise, because in his day prescription was itself an exception. It is
therefore true, as expressed also in the laws of Spain,132 that prescription based on no matter how immemorial a time, sets up no title to those
things which are recognized as common to the use of mankind. One
reason among others which can be given for this definition is that any
one who uses a res communis does so evidently by virtue of common
and not private right, and because of the imperfect character of possession he can therefore no more set up a legal title by prescription than can
a usufructuary.133
A second reason not to be overlooked is that although a title and
good faith are presumed in a prescriptive right created by the efflux of
immemorial time, nevertheless if it appears from the nature of the thing
itself that no title at all can be established, and if thus there becomes
evident bad faitha thing held to be permanent in a nation as well as in
an individualthen prescription fails because of a double defect.134 Also
a third reason is that we have under consideration a merely facultative
right which is not prescriptible, as we shall show below.
But there is no end to their subtilties. There are jurists who in this
case would distinguish custom from prescription, so that if they are

debarred from the one, they may fall back upon the other. But the distinction which they set up is most absurd. They say that the right of one
person which is taken away from him is given to another by prescription;135 but that when any right is given to any one in such a way that it
is not taken away from any one else, then it is called custom. As if
indeed the right of navigation, which is common to all, upon being usurped
by some one to the exclusion of all others, would not necessarily when it
became the property of one be lost to all!
This error receives support from misinterpretation of what Paulus
has to say about a private right of possession on the sea.136 Accursius137
said that such a right could be acquired by privilege or custom. But this
addition which in no way agrees with the text of the jurist seems to be
rather the interpretation of a mischievous guesser than of a faithful interpreter. The real meaning of the words of Paulus has been already
explained. Besides, if more careful consideration had been given to the
words of Ulpian138 which almost immediately precede those of Paulus, a
very different assertion would have been made. For Ulpian acknowledges that if any one is prohibited from fishing in front of my house,
such prohibition is a usurpation of right,1 allowed, it is true, by custom,
but based on no law, and that an action for damages could not be denied
the person thus prohibited from fishing.
He therefore condemns this practice, and calls it a usurpation; of
the Christian jurists Ambrose139 does likewise, and both are right. For
what is clearer than that custom is not valid when it is diametrically
opposed to the law of nature or of nations?140 Indeed, custom is a sort of
affirmative right, which cannot invalidate general or universal law. And
it is a universal law that the sea and its use is common to all. Moreover
what we have said about prescription applies with equal truth and force
to custom; and if any one should investigate the opinions of those who
have differed upon this matter, he would find no other opinion but that
custom is established by privilege. No one has the power to confer a
privilege which is prejudicial to the rights of the human race; wherefore
such a custom has no force as between different states.
This entire question however has been most thoroughly treated by
Vasquez,141 that glory of Spain, who leaves nothing ever to be desired
when it comes to subtle examination of the law or to the exposition of
the principles of liberty. He lays down this thesis: Places public and
common to all by the law of nations cannot become objects of prescription. This thesis he supports by many authorities, and then he subjoins
40/Hugo Grotius
the objections fabricated by Angeli and others, which we have enumerated above. But before examining these objections he makes the just and
reasonable statement that the truth of all these matters depends upon a
true conception both of the law of nature and the law of nations. For,
since the law of nature arises out of Divine Providence, it is immutable;
but a part of this natural law is the primary or primitive law of nations,
differing from the secondary or positive law of nations, which is mutable. For if there are customs incompatible with the primary law of
nations, then, according to the judgment of Vasguez, they are not customs belonging to men, but to wild beasts, customs which are corruptions and abuses, not laws and usages. Therefore those customs cannot
become prescriptions by mere lapse of time, cannot be justified by the
passage of any law, cannot be established by the consent, the protection,
or the practice even of many nations. These statements he confirms by a
number of examples, and particularly by the testimony of Alphonse de
Castro142 the Spanish theologian.
It is evident therefore, he says, how much to be suspected is the
opinion of those persons mentioned above, who think that the Genoese
or the Venetians can without injustice prohibit other nations from navigating the gulfs or bays of their respective seas, as if they had a prescriptive right to the very water itself. Such an act is not only contrary
to the laws,143 but is contrary also to natural law or the primary law of
nations, which we have said is immutable. And this is seen to be true
because by that same law not only the seas or waters, but also all other
immovables were res communes. And although in later times there was
a partial abandonment of that law, in so far as concerns sovereignty and
ownership of landswhich by natural law at first were held in common, then distinguished and divided, and thus finally separated from the
primitive community of use;nevertheless144 it was different as regards
sovereignty over the sea, which from the beginning of the world down to
this very day is and always has been a res communis, and which, as is
well known, has in no wise changed from that status.
And although, he continues, I have often heard that a great many
Portuguese believe that their king has a prescriptive right over the navigation of the vast seas of the West Indies (probably the East Indies too)
such that other nations are not allowed to traverse those waters; and
although the common people among our own Spaniards seem to be of
the same opinion, namely, that absolutely no one in the world except us
Spaniards ourselves has the least right to navigate the great and im-

mense sea which stretches to the regions of the Indies once subdued by
our most powerful kings, as if that right has been ours alone by prescription; although, I repeat, I have heard both these things, nevertheless the belief of all those people is no less extravagantly foolish than
that of those who are always cherishing the same delusions with respect
to the Genoese and Venetians. Indeed the opinions of them all appear the
more manifestly absurd, because no one of those nations can erect a
prescription against itself; that is to say, not the Venetian republic, nor
the Genoese republic, nor the kingdom of Spain nor of Portugal can
raise prescriptions against rights they already possess by nature.145 For
the one who claims a prescriptive right and the one who suffers by the
establishment of such a claim must not be one and the same person.
Against other nations they are even much less competent to raise a
prescription, because the right of prescription is only a municipal right,
as we have shown above at some length. Therefore such a right ceases
to have any effect as between rulers or nations who do not recognize a
superior in the temporal domain. For so far as the merely municipal
laws of any place are concerned, they do not affect foreign peoples,
nations, or even individuals, any more than if they did not exist or never
had existed. Therefore it was necessary to have recourse to the common
law of nations, primary as well as secondary, and to use a law which
clearly had not admitted any such prescription and usurpation of the
sea. For today the use of the waters is common, exactly as it has been
since the creation of the world. Therefore no man has a right nor can
acquire a right over the seas and waters which would be prejudicial to
their common use. Besides, there is both in natural and divine law that
famous rule: Whatsoever ye would that men should not do to you, do
not ye even so to them. Hence it follows, since navigation cannot harm
any one except the navigator himself, it is only just that no one either
can or ought to be interdicted therefrom, lest nature, free in her own
realm, and least hurtful to herself, be found impeding the liberty of navigation, and thus offending against the accepted precept and rule that all
things are supposed to be permitted which are not found expressly forbidden.146 Besides, not only would it be contrary to natural law to wish
to prevent such free navigation, but we are even bound to do the opposite, that is, bound to assist such navigation in whatever way we can,
when it can be done without any prejudice to ourselves.
After Vasquez had established his point by the help of many authorities both human and divine, he added:147 It appears then, from
42/Hugo Grotius
what has gone before that the opinion held by Johannes Faber, Angeli,
Baldus, and Franciscus Balbus, whom we have cited above, is not to be
trusted, because they thinly that places common by the law of nations,
even if not open to acquisition by prescription, can nevertheless be acquired by custom; but this is entirely false, and is a teaching which is
both obscure and vague, which lacks the faintest glimmer of reasonableness, and which sets up a law in word but not in fact.148 For it is well
established from the examples taken from the seas of the Spaniards,
Portuguese, Venetians, Genoese, and others, that an exclusive right of
navigation and a right of prohibiting others from navigation is no more
to be acquired by custom than by prescription.149 And it is apparent that
the reason is the same in both cases. And since according to the laws
and reasons adduced above this would be contrary to natural equity and
would not bring benefit but only injury, therefore as it could not be
introduced by an express law, neither could it be introduced by a tacit or
implied law, and that is what custom is.150 And far from justifying itself
by any lapse of time, it rather becomes worse, and every day more injurious.
Vasquez next shows that from the time of the earliest occupation of
the earth every people possessed the right of hunting in its own territory,
and of fishing in its own rivers. After those rights were once separated
from the ancient community of rights in such a way that they admitted
of particular attachments, they could be acquired by prescription based
upon such an efflux of time that the memory of its beginning does not
exist, as if by the tacit permission of a nation. This comes about, however, by prescription and not by custom, because only the condition of
him who acquires is bettered, while that of all other persons is made
worse. Then after Vasquez had enumerated three conditions which are
requisite in order that a private right of fishing in a river may become a
right by prescription, he continues as follows:
But what are we to say as regards the sea? There is more to say
about it, because even the combination of the three conditions mentioned is not sufficient here for the acquisition of such a right. The reason for the difference between the sea on one hand and land and rivers
on the other, is that in the case of the sea the same primitive right of
nations regarding fishing and navigation which existed in the earliest
times, still today exists undiminished and always will, and because that
right was never separated from the community right of all mankind, and
attached to any person or group of persons. But in the latter case, that of

the land and rivers, it was different, as we have already set forth.
But why, it is asked, does the secondary law of nations which brings
about this separation when we consider lands and rivers cease to operate in the same way when we consider the sea? I reply, because in the
former case it was expedient and necessary. For every one admits that if
a great many persons hunt on the land or fish in a river, the forest is
easily exhausted of wild animals and the river of fish, but such a contingency is impossible in the case of the sea. Again, the navigation of rivers is easily lessened and impeded by constructions placed therein, but
this is not true of the sea. Again, a river is easily emptied by means of
aqueducts but the sea cannot be emptied by any such means.151 Therefore there is not equal reason on both sides.
Neither does what we have said above about the common use of
waters, springs, and rivers, apply in this case, for common use is recognized in them all for purposes of drinking and the like, such usages
namely as do not injure at all or in the slightest degree him who owns a
river or has some other right in one.152 These are trifles for which we
have no time. What makes for our contention is the fact that no lapse of
time will give a prescriptive right to anything unjust. Therefore an unjust law is not capable of erecting a prescriptive right or of being justified by efflux of time. A little farther on Vasquez says: Things which
are imprescriptible by the disposition of the law, may not become objects of prescription even after the lapse of a thousand years. This statement he supports by countless citations from the jurists.153
Every one perceives that no usurpation no matter how long continued is competent to intercept the use of a res communis. And it must
also be added, that the authority of those who hold dissenting opinions
cannot possibly be applied to the question here at issue. For they are
talking about the Mediterranean, we are talking about the Ocean; they
speak of a gulf, we of the boundless sea; and from the point of view of
occupation these are wholly different things. And too, those peoples, to
whom the authorities just mentioned concede prescription, the Venetians and Genoese for example, possess a continuous shore line on the
sea, but it is clear that not even that kind of possession can be claimed
for the Portuguese.
Further, even if mere lapse of time, as some think, could establish a
right by prescription over public property, still the conditions absolutely
indispensable for the creation of such a right are in this case absent. The
conditions demanded are these: first, all jurists teach that he who sets up
44/Hugo Grotius
a prescriptive right of this sort shall have been in actual possession not
only for a considerable period, but from time immemorial; next, that
during all that time no one else shall have exercised the same right of
possession unless by permission of that possessor or clandestinely; besides that, it is necessary that he shall have prevented other persons
wishing to use his possession from so doing, and that such measures he
a matter of common knowledge and done by the suffrance of those concerned in the matter. For even if he had continuously exercised his right
of possession, and had always prevented from using his possession some
of those who wished to do so, but not all; then, because some had been
prevented from exercising and others freely allowed to exercise that
use, that kind of possession according to the opinion of the jurists, is not
sufficient to establish a right by prescription.
It is clear therefore that all these conditions should be present, both
because law is opposed to the prescription of public things, and in order
that he who sets up such a prescription may seem to have used his own
private right, not a public right, and that too by continuous possession.
Now, inasmuch as time beyond the period of the memory of man is
demanded for the creation of a prescriptive right, it is not always sufficient, as the best commentators point out, to prove the lapse of a hundred years, but the tradition handed down to us by our ancestors ought
to be undisputed, provided no one is left alive who has seen or heard
anything to the contrary. It was during the reign of King John,154 in the
year of our Lord 1477, at the time of the wars in Africa, that the Portuguese began to push their discoveries first into the more distant parts of
the Ocean. Twenty years later, during the reign of King Emmanuel, they
rounded the Cape of Good Hope, and somewhat later yet, reached Malacca, and the islands beyond, the very islands, indeed, to which the
Dutch began to sail in the year 1595, that is, well within a hundred years
of the time that the Portuguese first arrived. And in truth even in that
interval, the usurpation of rights there by other parties had interrupted
the competence of everybody else to create a prescriptive right. For
example, from the year 1519, the Spaniards rendered the possession by
the Portuguese of the sea around the Moluccas a very uncertain one.
Even the French and English made their way to those newly discovered
places not secretly, but by force of arms. And besides these, the inhabitants of the entire coast of Africa and Asia constantly used for fishing
and navigation that part of the sea nearest their own several coasts, and
were never interdicted from such use by the Portuguese.

The conclusion of the whole matter therefore is that the Portuguese
are in possession of no right whereby they may interdict to any nation
whatsoever the navigation of the Ocean to the East Indies.
Chapter VIII
By the Law of Nations trade is free to all persons whatsoever
If however the Portuguese claim that they have an exclusive right to
trade with the East Indies, their claim will be refuted by practically all
the same arguments which already have been brought forward. Nevertheless I shall repeat them briefly, and apply them to this particular
claim.
By the law of nations the principle was introduced that the opportunity to engage in trade, of which no one can be deprived,155 should be
free to all men. This principle, inasmuch as its application was straightway necessary after the distinctions of private ownerships were made,
can therefore be seen to have had a very remote origin. Aristotle, in a
very clever phrase, in his work entitled the Politics,156 has said that the
art of exchange is a completion of the independence which Nature requires. Therefore trade ought to be common to all according to the law
of nations, not only in a negative but also in a positive, or as the jurists
say, affirmative sense.157 The things that come under the former category are subject to change, those of the latter category are not. This
statement is to be explained in the following way.
Nature had given all things to all men. But since men were prevented from using many things which were desirable in every day life
because they lived so far apart, and because, as we have said above,
everything was not found everywhere, it was necessary to transport things
from one place to another; not that there was yet an interchange of commodities, but that people were accustomed to make reciprocal use of
things found in one anothers territory according to their own judgment.
They say that trade arose among the Chinese in about this way. Things
were deposited at places out in the desert and left to the good faith and
conscience of those who exchanged things of their own for what they
took.158
But when movables passed into private ownership (a change brought
about by necessity, as has been explained above), straightway there arose
a method of exchange by which the lack of one person was supplemented by that of which another person had an over supply.159 Hence
commerce was born out of necessity for the commodities of life, as
46/Hugo Grotius
Pliny shows by a citation from Homer.160 But after immovables also
began to be recognized as private property, the consequent annihilation
of universal community of use made commerce a necessity not only
between men whose habitations were far apart but even between men
who were neighbors; and in order that trade might be carried on more
easily, somewhat later they invented money, which, as the derivation of
the word shows, is a civic institution.161
Therefore the universal basis of all contracts, namely exchange, is
derived from nature; but some particular kinds of exchange, and the
money payment itself, are derived from law;162 although the older commentators on the law have not made this distinction sufficiently clear.
Nevertheless all authorities agree that the ownership of things, particularly of movables,arises out of the primary law of nations, and that all
contracts in which a price is not mentioned, are derived from the same
source.163 The philosophers164 distinguish two kinds of exchange using
Greek words which we shall take the liberty to translate as wholesale
and retail trade. The former, as the Greek word shows, signifies trade
or exchange between widely separated nations, and it ranks first in the
order of Nature, as is shown in Platos Republic.165 The latter seems to
be the same kind of exchange that Aristotle calls by another Greek word166
which means retail or shop trade between citizens. Aristotle makes a
further division of wholesale trade into overland and overseas trade.167
But of the two, retail trade is the more petty and sordid, and wholesale
the more honorable; but most honorable of all is the wholesale overseas
trade, because it makes so many people sharers in so many things.
Hence Ulpian says that the maintenance of ships is the highest duty
of a state, because it is an absolutely natural necessity, but that the
maintenance of hucksters has not the same value. In another place
Aristotle says: For the art of exchange extends to all possessions, and
it arises at first in a natural manner from the circumstance that some
have too little, others too much.168 And Seneca is also to be cited in this
connection for he has said that buying and selling is the law of nations.169
Therefore freedom of trade is based on a primitive right of nations
which has a natural and permanent cause; and so that right cannot be
destroyed, or at all events it may not be destroyed except by the consent
of all nations. For surely no one nation may justly oppose in any way
two nations that desire to enter into a contract with each other.
Chapter IX
Trade with the East Indies does not belong to the Portuguese by title of
occupation
Neither discovery nor occupation, is to be invoked on the point here
under consideration, because the right of carrying on trade is not something corporal, which can be physically seized; nor would discovery or
occupation help the case of the Portuguese even if they had been the
very first persons to trade with the East Indies, although such a claim
would be entirely untenable and false. For since in the beginning peoples
set out along different paths, it was necessary that some become the first
traders, nevertheless it is absolutely certain that those traders did not on
that account acquire any rights. Wherefore if the Portuguese have any
right by virtue of which they alone may trade with the East Indies, that
right like other servitudes ought to arise from concession, either express
or tacit, that is to say, from prescription. Otherwise no such right can
exist.
Chapter X
Trade with the East Indies does not belong to the Portuguese by virtue
of title based on the Papal Donation
No one has granted it except perhaps the Pope, and he did not have the
power. For no one can give away what he does not himself possess. But
the Pope, unless he were the temporal master of the whole world, which
sensible men deny, cannot say that the universal right in respect of trade
belongs to him. Especially is this true since trade has to do only with
material gains, and has no concern at all with spiritual matters, outside
of which, as all admit, Papal power ceases. Besides, if the Pope wished
to give that right to the Portuguese alone, and to deprive all other men of
the same right, he would be doing a double injustice. In the first place,
he would do an injustice to the people of the East Indies who, placed as
we have said outside the Church, are in no way subjects of the Pope.
Therefore, since the Pope cannot take away from them anything that is
theirs, he could not take away their right of trading with whomsoever
they please. In the second place, he would do an injustice to all other
men both Christian and non-Christian, from whom he could not take
that same right without a hearing. Besides, what are we to say of the
fact that not even temporal lords in their own dominions are competent
to prohibit the freedom of trade, as has been demonstrated above by
reasonable and authoritative statements?
48/Hugo Grotius
Therefore it must be acknowledged, that the authority of the Pope
has absolutely no force against the eternal law of nature and of nations,
from whence came that liberty which is destined to endure for ever and
ever.
Chapter XI
Trade with the East Indies does not belong the Portuguese by title of
prescription or custom
Last of all, prescription, or if you prefer the term, custom. We have
shown that according to Vasquez, neither prescription nor custom had
any force as between free nations or the rulers of different peoples, or
any force against those principles which were introduced by primitive
law. And here as before, mere efflux of time does not bring it to pass
that the right of trade, which does not partake of the nature of ownership, becomes a private possession. Now in this case neither title nor
good faith can be shown, and inasmuch as good faith is clearly absent,
according to legal rules prescription will not be called a right, but an
injury.
Nay, the very possession involved in trading seems not to have arisen
out of a private right, but out of a public right which belongs equally to
all; so on the other hand, because nations perhaps neglected to trade
with the East Indies, it must not be presumed that they did so as a favor
to the Portuguese, but because they believed it to be to their own best
interests. But nothing stands in their way, when once expediency shall
have persuaded them, to prevent them from doing what they had not
previously done. For the jurists170 have handed down as incontestable
the principle that where things arbitrable or facultative are such that
they produce nothing more than the facultative act per se, but do not
create a new right, that in all such cases not even a thousand years will
create a title by prescription or custom. This, as Vasquez points out,
acts both affirmatively and negatively. For I am not compelled to do
what I have hitherto done of my own free will, nor am I compelled to
stop doing what I have never done.
What moreover could be more absurd then to deduce from the fact
that we as individuals are not able always to conclude a bargain with
other individuals, that there is not preserved to us for the future the right
of bargaining with them if opportunity shall have offered? The same
Vasquez has also most justly said that not even the lapse of infinite time
establishes a right which seems to have arisen from necessity rather

than choice.
Therefore in order to establish a prescriptive right to the trade with
the East Indies the Portuguese would be compelled to prove coercion.
But since in such a case as this coercion is contrary to the law of nature
and obnoxious to all mankind, it cannot establish a right.171 Next, that
coercion must needs have been in existence for so long a time that the
memory of its beginning does not exist; that, however, is so far from
being the case that not even a hundred years had elapsed since the Venetians controlled nearly the entire trade with the East Indies, carrying it
via Alexandria.172 Again, the coercion ought to have been such that it
was not resisted; but the English and the French and other nations besides, did resist it. Finally, it is not sufficient that some be coerced, but
it is indispensable that all be coerced, because the possession of freedom of trade is preserved to all by a failure to use coercion upon even
one person. Moreover, the Arabians and the Chinese are at the present
day still carrying on with the people of the East Indies a trade which has
been uninterrupted for several centuries. Portuguese usurpation is worthless.
Chapter XII
The Portuguese prohibition of trade has no foundations in equity
From what has been said thus far it is easy to see the blind cupidity of
those who in order not to admit any one else to a share in their gains,
strive to still their consciences by the very arguments which the Spanish
jurists, interested too in the same case, show to be absolutely empty.173
For they intimate as clearly as they can that as regards India all the
pretexts employed, are far fetched and unjust. They add that this right
was never seriously approved by the swarm of theologians. Indeed, what
is more unjust than the complaint made by the Portuguese that their
profits are drained off by the number of their competitors? An incontrovertible rule of law lays down that a man who uses his own right is
justly presumed to be contriving neither a deceit nor a fraud, in fact not
even to be doing any one an injury. This is particularly true, if he has no
intention to harm any one, but only to increase his own property.174 For
what ought to be considered is the chief and ultimate intent not the irrelevant consequence. Indeed, if we may with propriety agree with Ulpian,
he is not doing an injury, but he is preventing some one from getting a
profit which another was previously enjoying.
Moreover it is natural and conformable to the highest law as well as
50/Hugo Grotius
equity, that when a gain open to all is concerned every person prefers it
for himself rather than for another, even if that other had already discovered it.175 Who would countenance an artisan who complained that
another artisan was taking away his profits by the exercise of the same
craft? But the cause of the Dutch is the more reasonable, because their
advantage in this matter is bound up with the advantage of the whole
human race, an advantage which the Portuguese are trying to destroy.176
Nor will it be correct to say, that this is done in rivalry, as Vasquez
shows in a similar case. For clearly we must either deny this or affirm
that it is done not only in honorable but in most honorable rivalry, for,
as Hesiod says, This rivalry is honorable for mortal men.177 For, says
Vasquez, if any one should be so moved by love for his fellow man as to
offer grain at a time of great scarcity for a lower price than usual, he
would be prevented by the wicked and hardhearted men who had the
intention of selling their grain at a higher price than usual, because of
the pinch caused by the scarcity. But, some one will object, by such
methods the profits of others will be made less. We do not deny it, says
Vasquez, but they are made less to the corresponding advantage of all
other men. And would that the profits of all Rulers and Tyrants of this
world could be thus lessened!
Indeed can anything more unjust be conceived than for the Spaniards to hold the entire world tributary, so that it is not permissible either
to buy or to sell except at their good pleasure?178 In all states we heap
odium upon grain speculators and even bring them to punishment; and
in very truth there seems to be no other sort of business so disgraceful as
that of forcing up prices in the grain market.179 That is not to be wondered at, for such speculators are doing an injury to nature, who, as
Aristotle says, is fertile for all alike.180 Accordingly it ought not to be
supposed that trade was invented for the benefit of a few, but in order
that the lack of one would be counterbalanced by the oversupply of
another, a fair return also being guaranteed to all who take upon themselves the work and the danger of transport.
Is the same thing then which is considered grievous and pernicious
in the smaller community of a state to be put up with at all in that great
community of the human race? Shall the people of Spain, forsooth, assume a monopoly of all the world? Ambrose inveighs against those who
interfere with the freedom of the sea;181 Augustine against those who
obstruct the overland routes; and Gregory of Nazianzus182 against those
who buy goods and hold them, and thus (as he eloquently says) make

profits for themselves alone out of the helplessness and need of others.
Indeed in the opinion of this wise and holy man any person who holds
back grain and thus forces up the market price ought to be given over to
public punishment and be adjudged worthy of death.
Therefore the Portuguese may cry as loud and as long as they shall
please: You are cutting down our profits! The Dutch will answer: Nay!
we are but looking out for our own interests! Are you angry because we
share with you in the winds and the sea? Pray, who had promised that
you would always have those advantages? You are secure in the possession of that with which we are quite content.
Chapter XIII
The Dutch must maintain their right of trade with the East Indies by
peace, by treaty, or by war
Wherefore since both law and equity demand that trade with the East
Indies be as free to us as to any one else, it follows that we are to
maintain at all hazards that freedom which is ours by nature, either by
coming to a peace agreement with the Spaniards, or by concluding a
treaty, or by continuing the war. So far as peace is concerned, it is well
known that there are two kinds of peace, one made on terms of equality,
the other on unequal terms. The Greeks183 call the former kind a compact between equals, the latter an enjoined truce; the former is meant for
high soured men, the latter for servile spirits. Demosthenes in his speech
on the liberty of the Rhodians184 says that it was necessary for those
who wished to be free to keep away from treaties which were imposed
upon them, because such treaties were almost the same as slavery. Such
conditions are all those by which one party is lessened in its own right,
according to the definition of Isocrates.185 For if, as Cicero says,186 wars
must be undertaken in order that people may live in peace unharmed, it
follows that peace ought to mean not an agreement which entails slavery, but an undisturbed liberty, especially as peace and justice according to the opinion of many philosophers and theologians187 differ more
in name than in fact, and as peace is a harmonious agreement based not
on individual whim, but on well ordered regulations.
If however a truce is arranged for, it is quite clear from the very
nature of a truce, that during its continuance no ones condition ought to
change for the worse, inasmuch as both parties stand on the equivalent
of a uti possidetis.
But if we are driven into war by the injustice of our enemies, the
52/Hugo Grotius
justice of our cause ought to bring hope and confidence in a happy
outcome. For, as Demosthenes has said, every one fights his hardest
to recover what he has lost; but when men endeavor to gain at the expense of others it is not so.188 The Emperor Alexander has expressed
his idea in this way: Those who begin unjust deeds, must bear the greatest
blame; but those who repel aggressors are twice armed, both with courage because of their just cause, and with the highest hope because they
are not doing a wrong, but are warding off a wrong.
Therefore, if it be necessary, arise, O nation unconquered on the
sea, and fight boldly, not only for your own liberty, but for that of the
human race. Nor let it fright thee that their fleet is winged, each ship,
with an hundred oars. The sea whereon it sails will have none of it. And
though the prows bear figures threatening to cast rocks such as Centaurs throw, thou shalt find them but hollow planks and painted terrors.
Tis his cause that makes or mars a soldiers strength. If the cause be
not just, shame strikes the weapon from his hands.189
If many writers, Augustine himself190 among them, believed it was
right to take up arms because innocent passage was refused across foreign territory, how much more justly will arms be taken up against those
from whom the demand is made of the common and innocent use of the
sea, which by the law of nature is common to all? If those nations which
interdicted others from trade on their own soil are justly attacked, what
of those nations which separate by force and interrupt the mutual intercourse of peoples over whom they have no rights at all? If this case
should be taken into court, there can be no doubt what opinion ought to
be anticipated from a just judge. The praetors law says:191 I forbid
force to be used in preventing any one from sailing a ship or a boat on a
public river, or from unloading his cargo on the bank. The commentators say that the injunction must be applied in the same manner to the
sea and to the seashore. Labeo, for example, in commenting on the
praetors edict,192 Let nothing be done in a public river or on its bank,
by which a landing or a channel for shipping be obstructed, said there
was a similar interdict which applied to the sea, namely,193 Let nothing
be done on the sea or on the seashore by which a harbor, a landing, or a
channel for shipping be obstructed.
Nay more, after such a prohibition, if, namely, a man be prevented
from navigating the sea, or not allowed to sell or to make use of his own
wares and products, Ulpian says that he can bring an action for damages on that ground.194 Also the theologians and the casuists agree that

he who prevents another from buying or selling, or who puts his private
interests before the public and common interests, or who in any way
hinders another in the use of something which is his by common right, is
held in damages to complete restitution in an amount fixed by an honorable arbitrator.
Following these principles a good judge would award to the Dutch
the freedom of trade, and would forbid the Portuguese and others from
using force to hinder that freedom, and would order the payment of just
damages. But when a judgment which would be rendered in a court
cannot be obtained, it should with justice be demanded in a war. Augustine195 acknowledges this when he says: The injustice of an adversary
brings a just war. Cicero also says:196 There are two ways of settling
a dispute; first, by discussion; second, by physical force; we must resort
to force only in case we may not avail ourselves of discussion. And
King Theodoric says: Recourse must then be had to arms when justice
can find no lodgment in an adversarys heart. Pomponius, however,
has handed down a decision which has more bearing on our argument197
than any of the citations already made. He declared that the man who
seized a thing common to all to the prejudice of every one else must be
forcibly prevented from so doing. The theologians also say that just as
war is righteously undertaken in defense of individual property, so no
less righteously is it undertaken in behalf of the use of those things
which by natural law ought to be common property. Therefore he who
closes up roads and hinders the export of merchandise ought to be prevented from so doing via facti, even without waiting for any public
authority.
Since these things are so, there need not be the slightest fear that
God will prosper the efforts of those who violate that most stable law of
nature which He himself has instituted, or that even men will allow
those to go unpunished who for the sake alone of private gain oppose a
common benefit of the human race.
Appendix
Two letters of Philip III, King of Spain
As several letters of the King of Spain have come of late into our hands,
in which his design and that of the Portuguese is clearly disclosed, it
seemed worth while to translate into Latin two of them which had particular bearing upon the controversy at issue, and to append them here.
54/Hugo Grotius
Letter I
To Don Martin Alfonso de Castro, our beloved viceroy; I, the King,
send many greetings: Together with this letter will come to you a copy
printed in type of an edict which I have taken much pains to draw up, by
which, for reasons which you will see expressed, and for other reasons
which are consonant with my interests, I prohibit all commerce of foreigners in India itself, and in all other regions across the seas. As this
matter is of the greatest importance and serviceableness, and ought to
be carried out with the highest zeal, I command you, as soon as you
shall have received this letter and edict, to further with all diligence its
publication in all places and districts under your jurisdiction, and to
carry out the provisions of the edict without exception of any person
whatsoever, no matter what his quality, age, or condition, and without
delay and excuse, and to proceed to the fulfilment of this command with
the full power of your authority, no delay, appeal, or obstacle to the
contrary, being admitted, of any kind, sort, or quality.
Therefore I order that this duty be discharged by those officers to
whom its execution belongs, and that they be informed that not only will
those who disobey serve me ill, but that I will punish them by depriving
them of the offices in which they now serve me.
Further, inasmuch as it has been reported to me that within your
jurisdiction there are sojourning many foreigners of different nations,
Italians, French, Germans, and men of the Low Countries, the larger
part of whom as we know came there by way of Persia and Turkey, and
not through our realm; and inasmuch as, if this edict be rigidly enforced
against those persons to the letter, some inconveniences might follow, if
they should escape to the Moors, our enemies, and make known to our
neighbors the disposition of my forces, and thus show ways that they
might be able to harm my dominion: Therefore, I wish you to carry out
the provisions of this edict as the exigencies of circumstances and occasion demand, and to use all prudence necessary in order to avoid those
difficulties, taking especial pains to keep all foreigners in your power,
and to guard them in accordance with their individual rank, so that they
may have no opportunity to attempt anything prejudicial to our power,
that thus I may attain fully that end which I have set forth in this edict.
Given at Lisbon, on the 28th of November in the year of our Lord,
1606. Signed by the king, and addressed: For the king, to Don Martin
Alfonso de Castro, his Councillor, and Viceroy for the East Indies.
Letter II
To our beloved viceroy, I, the King send many greetings:
Although I consider it absolutely certain that your presence and the
forces which you took with you into those Eastern regions, guarantee
that our enemies, the Dutch, who infest those quarters as well as the
natives who give them a welcome reception, will be so thoroughly punished that neither the one nor the other will ever dare such practices in
the future: still it will be expedient for the protection of our interests,
that, when you shall return to Goa, you leave in those parts of the sea a
fleet large and capable enough to do the business, and also that you
delegate the supreme command of that fleet to Andrea Hurtado de
Mendoza, or to any one else whom you shall consider better fitted for
this post. I rely upon your affection for me, knowing that in this matter
you will do nothing but what will be most useful to my interests.
Given at Madrid the 27th day of January in the year of our Lord
1607. Signed by the king, and addressed: For the king, to Don Martin
Alfonso de Castro, his Councillor, and Viceroy for the East Indies.
Notes
1. Panegyric 29, 2.
2. Georgics II, 109 [Drydens translation, VI, 154].
3. Aeneid VI, 847853, [Drydens translation, VI, 11681169].
4. Natural Questions III, IV.
5. Institutes II, 1; Digest I, I, 4; cf. Gentilis, De jure belli I, 19; cf. Code
IV, 63, 4 [Grotius refers particularly to his famous predecessor
Albericus Gentilis (15521608), an Italian who came to England and
was appointed to the chair of Regius Professor of Civil Law at Oxford. He published his De Jure Belli in 1588].
6. Aeneid I, 539540 [Drydens translation, 1, 760763].
7. Aeneid VII, 229230 [Drydens translation, VII, 313314].
8. Diodorus Siculus XI; Plutarch, Pericles XXIX, 4. [The Athenian
decree prohibiting the Megarians from trading with Athens or any
part of the Athenian Empire was one of the leading causes of the
Peloponnesian War.]
9. Carlo Sigonio [ (15231534), an Italian humanist, in his work] On
the Kingdom of Italy. Victoria, De Indis II, n. 17; Covarruvias, in
e. Peccatum, 9, n. 4, ibi Quinta [Franciscus de Victoria (1480
1546), the famous Spanish Scholastic, a Dominican, and Professor
of Theology at Salamanca from 1521 until his death His thirteen
56/Hugo Grotius
Relectiones (De Indis is no. V) were published (vitiosa et corrupta)
in 1557 after his death; the 1686 Cologne edition is held to be the
best.
10. Diego Covarruvias (15121577), styled the Bartolo of Spain. He
should probably be credited with formulating the reform decrees of
the Council of Trent The 5 vol. Antwerp 1762 edition of his works is
the best.]
11. Numbers XXI, 2126.
12. Locutionum IV (on Numbers), 44; Estius, c. ult. 23, 4, 2 [Estius (?
1613) was a Dutch commentator on the Epistles of St. Paul and on
the works of St. Augustine].
13. [Grotius refers to the Trachiniae of Sophocles, but probably from
memory, for there is no such reference in that play.]
14. Baldus de Ubaldis, Consilia III, 293 [Baldus (13271406) was a
pupil of the great Bartolus].
15. Histories IV, 64 [In connection with the revolt of Civilis].
16. Andrea Alciati, Commentaria VII, 130; Covarruvias in c. Peccatum,
p. 2 9; Bartolus on Code I, 11 [Alchati (14921550) was made
Comes Plalatinus by the Emperor Charles V, and offered a Cardinals
hat by Pope Paul III, which he refused, but he did become a
Protonotarius Apostolicus].
17. [Taprobane was the ancient name of Ceylon. Milton speaks of it in
Paradise Regained IV, 75:
And utmost Indian Isle Taprobane.]
18. Code VIII. 40, 13 [Probably Fabius Claudius Gordianus Fulgentius
(468533), a Benedictine monk, one of the Latin Fathers].
19. Nonius Marcellus, On the various significations of speech, under
the word occupare; cf. Connan, Commentaries on the civil law IV,
3, Donellus [Doneau], Commentaries on the civil lawI. IV 10.
[Franois de Connan (15091551), a French Jurisconsult, a pupil of
Alciati; Hugues Doneau (15271591) a famous jurisconsult, who
wrote many volurnes of commentaries on the Digest and the Code.]
20. Institutes II. 1, 13.
21. Digest XLI. 2. 3.
22. Letters I. 1, 4445 [Franoiss translation, English Poets XIX, 726].
23. Pliny, Natural History, VI, 22.
24. Digest XLI, 1, 3.
25. Covarruvias in c. Peccatum 10, n. 2, 4, 5.
26. De potestate civili I, 9.

27. Summa II. II, q. 10, a. 12 [Thomas Aquinas (12271274), one of
the most famous of the Schoolmen and Theologians, spoken of often
as Aquila Theologorum and Doctor Angelicus].
28. De Indis I, n. 47, 19.
29. [Cf. Plutarch, Of the Fortune or Virtue of Alexander the Great I, 5].
30. Vaquius, Preface (n. 5) to Controversiae illustres.
31. [The Cambridge Modern History, I, 2324, has a good paragraph
upon this famous Papal Bull of May 14, 1493 (modified June 7,
1494, by treaty of Tordesillas).]
32. [Grotius cites Osorius, but gives no reference.]
33. Institutes II, 1, 40.
34. Luke XII, 14; John XVIII, 36. Victoria, De Indis I, n. 25.
35. Victoria XVI, n. 27.
36. Vasquius, Controversiae illustres, c. 21; Torquemada II, c. 113;
Hugo on Dist XCVI, C. VI; St. Bernard, Admonitory epistle to Pope
Eugene III, book 2; Victoria, De Indis I, n. 27; Covarruvias in c.
Peccatum 9, n. 7.
37. Matthew XVII, 27; XX, 26; John VI, 15.
38. Victoria, De Indis I, n. 28, 30, Covarruvias on I Corinthinas V, at
the end, Thomas Aquinas, Summa II. II, q. 12, a. 2; Ayala, De Jure I,
2, 29 [Best edition of Ayala is in The Classics of International Law,
Carnegie Institution of Washington, 2 vol., 1912].
39. Thomas Aquinas, Summa II. II, q. 66, a. 8; Silvius, De infidelibus
7; Innocent on the Decretals of Pope Gregory IX, III, 34, 8; Victoria,
De Indis I, n. 31. [Franciscus Silvius, or Sylvius, or du Bois (1681
1649), was a Belgian theologian.]
40. De Indis I, n. 31.
41. Vasquius, Controversiae illustres, c. 24; Victoria, De Indis II, n. 10.
42. On the Consolation of Philosophy IV, 4, 710 [H. R. James translation, page 194]
43. Thomas Aquinas, Summa II. II, q. 10, a. 8; Dist. XLV, C. V, C. III;
Innocent, see note 1, page 17; Bartolus on Code I, 11, 1; Covarruvias
in c. Peccatum, 9, 10; Ayala, De Jure I, 2, 28.
44. Matthew X, 23.
45. On Thomas Aquinas, Summa II. II, q. 4, 66, a. 8 [Thomas de Cajetan
(14691534), an Italian cardinal, wrote voluminous commentaries
on Thomas Aquinas, Aristotle, and the Bible].
46. Matthew XXIII, 15.
47. Victoria, De Indis II, 1.
58/Hugo Grotius
48. Paul de Castro on Digest 1, 1, 5; Dist. 1, C. VII.
49. Vasquius, Controversiae illustres, c. 1, n. 10; Lib. VI, V 12, 3.
Clem. V, 11.
50. Satires II, 2, 129130.
51. Aratus 302303.
52. Octavia 413414 [Translation by F. T. Harris (Act II, Scene 1)].
53. Artutus 30.
54. Digest VII, 5; Extravagantes of Pope John XXII, XIV, 3 and 5;
Thomas Aquinas, Summa II. 11, q. 78.
55. 203204 [E. I. Harris translation (Act II, Scene 1)].
56. De beneficiis VII, 12, 3.
57. Speech XIII, In behalf of the poor man.
58. De officiis I.
59. Digest 1, 1, 5.
60. Vergil, Geordics I, 135136) [Drydens translation I, 211]; Ovid,
Metamorphoses I, 121.
61. Ovid, Metamorphoses 1, 135136 [Drydens translation I (English
Poets XX 432)].
62. Ovid, Metarnorphoses I, 134.
63. De beneficiis VII, 4, 3.
64. Octavia 431432 [Grotius here takes a slight liberty with the context].
65. De officiis 1, 21 [Walter Millers (Loeb) translation, page 23].
66. History 1, 139, 2.
67. Duaren [a French humanist (15091659)], on Digest 1, 8.
68. De officiis 1, 51 [Walter Millers (Loeb) translation, page 55].
69. De officiis 1, 52.
70. Metamorphoses VI, 349351.
71. Digest VIII, 4, 13.
72. Digest XLI, 1, 14; Comines, Memoirs III, 2; Donellus IV, 2, Digest
XLI 3, 49. Philippe de Comines (11451509), a French historian,
and one of the negotiators of the treaty of Senlis (1493).]
73. Digest 1, 8, 10.
74. Pro Sex. Roscio Amerino 26, 72.
75. Institutes II, 1, 1 and 5; Digest I. 8, 1, 2, 10, XLI, 1, 14 and 50,
XLVII, 10, 13; XLIII, 8, 3, and 47.
76. Act IV. Scene 3 (975, 977, 985).
77. Donellus IV, 2.
78. Digest XXXIX, 2, 24: other references same as note 1, page 29.

79. Donellus IV, 2 and 9; also references in note 1, page 29.
80. Digest I, 8, 4; XLVII, 8, 3.
81. Odes III, i, 3334 [Bennetts (Loeb) translation, page 171].
82. Digest XLIII, 8. 3; 8, 2.
83. Digest XLIII, 12, 1.
84. Pliny, Natural History IX, 54, 170.
85. Epigrams X, 30, 1920.
86. De Nabuthe, cap. 3.
87. Digest XLVII, 10, 14.
88. Digest XLIV, 3, 7.
89. Digest XLI, 3, 45.
91. Novels of Leo, 102, 103, 104; See also Cujas XIV, 1.
92. Hexameron V, 10, 27 [St. Ambrose (c. 333397), Bishop of Milan,
is meant].
93. Donellus IV, 6.
94. On Institutes II, 1; Digest XIV, 2, 9 [Johannes Faber (c. 1570c.
1640) was Bishop of Vienna, and Court preacher to Emperor
Ferdinand. He was known popularly as Malleus Haereticorum].
96. Digest V, 1, 9; XXXIX, 4, 15; Glossators on Digest I, 8, 2, Institutes II, 1; Baldus on L. Quaedam, in Digest I, 8, 2.
97. Baldus, Quibus modis feudi amittuntur, chapter beginning In principio
second column; Code XI, 13, 1; Angeli on Digest XLVII, 10, 11;
Digest VIII, 4, 13 and 4.
98. C. Quae sint Regalia, in Feudis.
99. Balbus, De praescriptionibus IV, b; 1, q. 6, n. 4.
100. Digest XLVII, 10, 13; XLIII, 9, 1.
101. [Andrea dIsernia (c. 14801553), an Italian commentator, called
often Feudistarum Patriarcha.]
102. [Probably a misprint for Alvarus (Alvarez).]
103. [Quoted in Cicero, De officiis 1, 51, and here taken from Walter
Millers (Loeb) translation, page 56.]
104. Cicero, De officiis I, 51.
105. Seneca, De beneficiis IV, 28.
106. Johannes Faber on Institutes II, 1, 5.
107. Pliny, Natural History II, 69; VI, 2.; Pomponius Mela, De situ
orbis III.
108. [Strictly speaking, Gaius was the grandson of Augustus, but was
60/Hugo Grotius
adopted as his son.]
109. Natural History VI, 20.
110. Geography II and XVII.
111. Natural History VI, 23.
112. [A Roman sestertius was about four cents.]
113. Glossators on Lib. VI, I, 6, 3; on Digest II, 12, 3.
114. Digest I, 8, 4; Gentilis, De jure belli I, 19.
116. Glossators on Digest XLIII, 14.
117. Baldus on Digest 1, 8. 3; Zuarius, Consilia duo de usu maris 1, 3,
28, L. 10 and 12. [Rodericus Zuarius, Consilia published in 1621].
118. Victoria, De Indis I, n. 26.
119. Silvestris, In verbo Papa. n. 16.
120. Vasquius, Controversiae illustres, c. 51.
121. Donellus, V 22 ff.; Digest XVIII, 1, 6; XLI, 3, 9, 25; Lib. VI, V, 12
(Reg Sine possessions); Digest L, 16, 28;.XXIII, 5, 16.
122. Digest XLI, 3, 45; Code VIII, 11, G; XI, 43, 9; Digest XLIII, 11,
2; XLI, 3, 49.
123. Consilia 286 [Angelus Aretinus a Gambellionibus (?1445), a
voluminous commentator on the Digest and the Institutes].
124. Digest XLIV, 3, 7.
125. [Bartolus de Saxoferrato (13141357) the most famous of the Postglossators, was called by many of his biographers Optimus auriga
in hac civili sapientia.]
126. Duren, De usucapionibus, c. 3; Cujas on Digest XLI, 3, 49; Donellus
V, 22 on Digest XLI, 1, 14.
127. [The celebrated Italian jurist (?1420 or 1437) of whom Cujas
said: Si vous nnvez pas Paul de Castro, vendez votre chemise pour
lacheter, (Note from page 53 of the French translation of Grotius
by de Grandpont.)]
128. Code XI, 43, 4; cf. XI, 43, 9; cf. Digest XLIII, 20, 3.
129. On the Decretals of Pope Gregory IX, II, 26, 11 [Felinus Maria
Sandeus (c. 14271503), Bishop of Lucca].
130. De praescriptionibus IV, 5, q. 6, n. 8 [Johannes Franciscus Balbus,
a priest and jurisconsult at Muentz-hof].
131. On Digest XLI, 3, 49.
132. Par. 3, tit. 29, 1. 7 in c. Placa.; Zuarius, Consilia, num. 4.
133. Fachinham VIII, c. 26 and c. 33; Duaren, De praescriptionibus,
parte 2, 2, n. 8; 8, n. s and 6. [Nicholas Fachinham (?1407), a

Franciscan, who taught Theology at Oxford.]
134. Fachinham VIII, c. 28.
135. Angelus Aretinus on Digest I, 8; Balbus, De praescriptionibus IV,
5. q. 6, n. 2; see Vasquius, Controversiae illustres c. 29, n. 38.
136. On Digest XLVII, 10, 14.
137. [Franciscus (?) Accursius (?1259) (a pupil of the famous Monarcha
juris Azzo), with whose name the Glossa Magna is almost synonymous. He was called Advocatorum Idolum.]
139. De officiis ministrorum I, 28; Gentilis I, 19.
140. Auth. Ut nulli Iudicum 1, c. cum tanto de consuetudine.
141. Controversiac illustres c. 89, n. 12 ff. [Ferdinand Manchaea Vasquez
(15091566) the famous Spanish jurisconsult, who held many high
honors of the realm].
142. De potestate legis poenalis II, 14, part 572 [Alphonse de Castro
(?l558). Theologian at Salamanca, confessor to the Emperor Charles
V.]
143. Digest XLI, 1, 14; XLI, 3; Institutes II, 1, 2; Divest XLIV, 3, 7;
XLVII, 10, 14.
144. Digest I, 1, 5; Institutes 1, 2, 2.
145. Digest XLI, 3, 4, 26 (27); Institutes IV, 6, 14; Bartolus and Jason
on Digest XXX, 11.
146. Digest 1, 5, 4; Institutes I, 3, 4; Digest XLIII, 29, 12; XLIV, 5, 1;
Code III, 28, 35; Digest IV, 6, 28.
147. Code III, 44, 7.
148. Code VI, 43.
149. Digest IX, 2, 32.
150. Dist IV, C. II; Digest I, 3, 12, 32; Decretals of Pope Gregory IX,
II, 26, 20.
151. Digest XLIII, 13.
152. Digest IV, 4, 3; Arasquius, De successionum progressu I, 7.
153. Balbus, De praescriptionibus 3, 11; 16, 3; Alphonse de Castro, De
potestate legis poenalis II, 14; Balbus and Angelus on Code VII, 39,
4.
154. Osorius, De rebus Emmanuelis regis Lusitaniae I [Hieronymus
Osorius (15061580) was known as the Portuguese Cicero].
155. Digest I, 1, 5.
156. I, 9 (1257a, 30).
157. Cf. Covarruvias in c. Peccatum, 8.
62/Hugo Grotius
158. Pomponius Mela, De situ orbis III, 7.
159. Digest XVIII, 1, 1.
160. Natural History XXXIII, 1.
161. Aristotle, Nicomechean Ethics 5, 5, 11 (1133a 20); Politics I, 9
(1237b 10) [Nummus = {nomos}. The fact that this is an incorrect
derivation does not of course affect the argument.]
162. Dist. I, C. VII; Aristotle.
163. Castrensis from Cinus and others on Digest I, 1, 5.
164. Plato, Sophista 223d
165. II (p. 371) cited in Digest L, 11, 2.
166. Politics I, 11 (1258b 2223).
167. [The text here is somewhat expanded.]
168. Cicero, De officiis I, 150151; Aristotle, Politics I, 9. 7. Politics I,
9 (1257a 1417) [Jowetts translation, Vol. I, page 15].
169. De beneficiis V, 8 [not a quotation, but a summing up of the chapter].
170. On Digest XLIII, 11, 2; Balbus 4, 5 pr qu. 1; Panormitanus on the
Decretals of Pope Gregory IX, III, 8, 10; Digest XLI, 2, 41;
Covarruvias in c. possessor. 2, 4; Vasquius, Controversiae illustres
c. 4, n. 10 and 12.
171. Vasquius, Controversiae illustres c. 4, n. 11.
172. Guicciardini, Storia dItalia XIX.
173. Vasquius, Controversiae illustres c. 10, n. 10; Victoria, De Indis I,
1, n. 3; Digest VI, 1, 27; L, 17, 55, 151; XLII, 8, 13; XXXIX, 2, 24;
Bartolus on Digest XLIII, 12, l; Castrensis on Code III, 34, 10; Digest XXXIX, 3, 1.
174. Vasquius, Controversiae illustres c. 4, n. 3 ff.; Digest XXXIX, 2,
26.
175. Vasquius, same reference.
176. Vasquius, same reference, n. 5.
177. In his Works and Days [The entire passage as translated by A. W.
Mair (Oxford translation, page 1) is: For when he that hath no business looketh on him that is rich, he hasteth to plow and to array his
house: and neighbour vieth with neighbour hasting to be rich: good is
this Strife for men.].
178. Code IV, 59.
179. Cajetan on Thomas Aquinas, Summa II. II, q. 77, a. 1, ad 3.
180. Politics 1, 9.
181. Hexameron V, 10, 4, q. 44.

182. In funere Basilii.
183. Thucydides, Isocrates, Andocides.
184. Isocrates, Archidamos 51 [Grotius probably quoted here from
memory].
185. Panegyric 176.
186. De officiis I, 35.
187. Polus Lucanus apud Stobaeum, De iustitia; Clemens Alexandrinus,
Stromateis; Augustine, City of God IV, 15.
188. On the liberty of the Rhodians XV, 10 [Pickard-Cambridges translation I, page 59].
189. Propertius IV, vi, 47-52. [Butlers (Loeb) translation, page 305].
190. City of God V, 1.
194. Digest XLIII, 8, 2; XLVII, 10, 13 and 24, Silvestris, on the word
restitutio; Oldradus and Archidiaeonus on Digest XLVIII, 12, 2,
and XLVII 11, 6 [Oldrado de Ponte (?1335), a Bologna canonist.
Archidiaconus is probably the Italian decretulist Guido Bosius.]
195. City of God IV.
196. De officiis I, 34 [Walter Millers (Loeb) translation, page 37].
197. Digest XLI, 1, 50; Heinrich von Gorcum, De bello justo 9.

GROTIUS Freedom of The Seas

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The Freedom of the Seas

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To the Rulers and to the Free and Independent Nations

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The Freedom of the Seas/11

and in another place:

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Moreover the verdict of Thomas Aquinas, of the Council of Toledo,

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According to his reasoning there was a kind of sovereignty, but it

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Then first men made homes.

At the same time, however, states began to be established, and so

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The Freedom of the Seas/45

The Freedom of the Seas/47

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