The Free Sea. Hugo Grotius

or a Disputation Concerning

      the Right Which the Hollanders Ought

      to Have to the Indian Trade

      CHAPTER 1

      By the law of nations navigation is free

      for any to whomsoever

      Our purpose is shortly and clearly to demonstrate that it is lawful for the Hollanders, that is the subjects of the confederate states of the Low Countries, to sail to the Indians as they do and entertain traffic with them. We will lay this certain rule of the law of nations (which they call primary) as the foundation, the reason whereof is clear and immutable: that it is lawful for any nation to go to any other and to trade with it.

      God himself speaketh this in nature, seeing he will not have all those things, whereof the life of man standeth in need, to be sufficiently ministered by nature in all places and also vouchsafeth some nations to excel others in arts. To what end are these things but that he would maintain human friendship by their mutual wants and plenty, lest everyone thinking themselves sufficient for themselves for this only thing should be made insociable? Now it cometh to pass that one nation should supply the want of another by the appointment of divine justice, that thereby (as Pliny saith) that which is brought forth anywhere might seem to be bred with all;¹ therefore we hear poets speaking,

       nec vero terrae ferre omnes omnia possunt, ²

      also:

       excudent alii, ³

      and so forth.

      They, therefore, that take away this, take away that most laudable society of mankind; they take away the mutual occasions of doing good and, to conclude, violate nature herself. For even that ocean wherewith God hath compassed the Earth is navigable on every side round about, and the settled or extraordinary blasts of wind, not always blowing from the same quarter, and sometimes from every quarter, do they not sufficiently signify that nature hath granted a passage from all nations unto all? This Seneca thinketh the greatest benefit of nature, that even by the wind she hath mingled nations scattered in regard of place and hath so divided all her goods into countries that mortal men must needs traffic among themselves.⁴ This right therefore equally appertaineth to all nations, which the most famous lawyers enlarge so far that they deny any commonwealth or prince to be able wholly to forbid others to come unto their subjects and trade with them.⁵ Hence descendeth that most sacred law of hospitality; hence complaints,

       quod genus hoc hominum, quaeve hunc tam barbara morem

       permittit patria? hospitio prohibemur arenae, ⁶

      and in another place,

       litusque rogamus

       innocuum, et cunctis undamque auramque patentem. ⁷

      We know also that wars began for this cause, as with the Magarensians against the Athenians,⁸ and the Bononians against the Venetians,⁹ and that these also were just causes of war to the Castilians against the Americans, and more probable than the rest. Victoria also thinketh it a just cause of war if they should be forbidden to go on pilgrimage and to live with them; if they were denied from the participation of those things which by the law of nations or customs are common; if, finally, they were not admitted to traffic.¹⁰

      The like whereof is that which we read in the history of Moses, and Augustine thereupon: that the Israelites made just war against the Amorites because a harmless passage was denied which by the most just law of human society ought to have been open to them.¹¹ And for this cause Hercules made war with the King of the Orchomenians,¹² the Grecians under Agamemnon with the king of the Mysians, as if naturally (as Baldus saith) ways and passage should be free,¹³ and the Romans in Tacitus are accused of the Germans because they barred the conference and resort of the nations and shut up rivers and earth and heaven itself after a certain manner.¹⁴ Nor did any title against the Saracens in times past please the Christians better than that they were stopped by them from entering into the land of Jewry.¹⁵

      It followeth upon this opinion that the Portugals, although they had been lords of those countries whither the Hollanders go, yet they should do wrong if they stopped the passage and trade of the Hollanders.

      How much more unjust is it therefore for any that are willing to be secluded from intercourse and interchange with people who are also willing, and that by their means in whose power neither these people are nor the thing itself whereby we make our way, seeing we detest not thieves and pirates more for any other cause than that they beset and molest the meetings of men among themselves?

      CHAPTER 2

      That the Portugals have no right of dominion over those Indians to whom the Hollanders

      sail by title of invention

      But that the Portugals are not lords of those parts whither the Hollanders go—to wit, of Java, Tabrobana¹ and the greatest part of the Moluccas—we gather by a most certain argument, because no man is lord of that thing which neither he himself ever possessed nor any other in his name. These islands we speak of have, and always had, their kings, their commonwealth, their laws and their liberties. Trading is granted to the Portugals as to other nations; therefore, when they both pay tribute and obtain liberty of trade of the princes, they testify sufficiently that they are not lords but arrive there as foreigners, for they do not so much as dwell there but by entreaty. And although title be not sufficient for dominion, because possession also is required, seeing it is one thing to have a thing, another to have right to obtain it, yet I affirm that the Portugals have not so much as a title of dominion over those parts, which the opinion of the doctors (and those Spaniards) will not take from them.

First, if they will say those countries appertain unto them for a reward of the finding, they shall speak nor law nor truth, for to find is not to see a thing with the eyes but to lay hold of it with the hands, as in the epistle of Gordianus is declared.² Whence the grammarians use the words invenire and occupare for words of one signification, and all the Latin tongue saith, “we have found that which we have gotten,” the contrary whereof is to lose.³ Moreover, even natural reason itself and the express words of the laws and the interpretation of the most learned show that such a finding sufficeth to get title of common as is joined with possession:⁴ to wit, movable things are laid hold on or immovable things are bounded and guarded,⁵ which in this kind can no way be said, for the Portugals have no garrisons there. How can it be said by any means that the Portugals have found out India which was so famous many ages since, even from the time of Horace?⁶

       impiger extremos currit mercator ad Indos

       per mare pauperiem fugiens. ⁷

      How exactly have the Romans described many things unto us of Taprobane?⁸ Now, as touching the other islands, not only the borderers, the Persians and Arabians, but the Europeans also (especially the Venetians), knew them before the Portugals.

Besides, the finding of them gives no right but in that which was no man’s before their finding.⁹ But the Indians, when the Portugals came unto them, although they were partly idolaters, partly Mahometans, and entangled in grievous sins, yet had they both publicly and privately authority over their own substance and possessions which without just cause could not be taken from them.¹⁰ So with most sound reasons (following other authors of greatest account) the Spaniard Victoria concludeth, “Secular or ecclesiastical Christians,” saith he, “cannot deprive infidels of their equal power and sovereignty for that color only because they are infidels, unless some injury proceeded from them before.”¹¹ “For faith,” as Thomas saith well, “doth not take away natural or human law from whence dominion proceedeth; nay, it is a point of heresy to believe that infidels are not lords of their own goods, and to take from them their goods which they possess for this very cause is theft and robbery no less than if the same be done to Christians.”¹²

      Victoria