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The freedom of the seas

Chapter 12: CHAPTER III
By Hugo Grotius
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About This Book

The treatise advances a legal argument that the oceans are open to all for navigation and commerce, rejecting claims by certain states to exclude foreigners from maritime regions and colonial trade. It marshals natural-law reasoning and precedents to argue that no state can lawfully appropriate the high seas, defends a nation's right to engage in distant commerce, and addresses objections concerning conquest and exclusive possession. Organized as a concise juridical dissertation with systematic argumentation and scholarly notes, the work aims to justify maritime freedom as a principle of international law and practice.

CAPVT III

Lusitanos in Indos non habere ius dominii titulo donationis Pontificiae

Secundo si Pontificis Alexandri Sexti divisione utentur, ante omnia illud attendendum est, volueritne Pontifex contentiones tantum Lusitanorum et Castellanorum dirimere, quod potuit sane, ut lectus inter illos arbiter, sicut et ipsi Reges iam ante inter se ea de re foedera quaedam pepigerant;[29a] et hoc si ita est, cum res inter alios acta sit, ad ceteras gentes non pertinebit; an vero prope singulos mundi trientes duobus populis donare. Quod etsi voluisset, et potuisset Pontifex, non tamen continuo sequeretur dominos eorum locorum esse Lusitanos, cum donatio dominum non faciat, sed secuta traditio;[30a] quare et huic causae possessio deberet accedere.

Tum vero si quis ius ipsum sive divinum sive humanum scrutari volet, non autem ex commodo suo metiri, facile

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 VI* 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.

* [The Cambridge Modern History, I, 23-24, has a good paragraph upon this famous Papal Bull of May 14, 1493 (modified June 7, 1494, by treaty of Tordesillas).]

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.[29] 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 thing[30] 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