The Free Sea. Hugo Grotius

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СКАЧАТЬ 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 therefore rightly saith that the Spaniards got no more authority over the Indians for this cause than the Indians had over the Spaniards if any of them had come formerly into Spain. Nor truly are the Indians out of their wits and unsensible but ingenious and sharp-witted, so that no pretence of subjecting them may be taken from hence, which notwithstanding by itself is sufficient manifest iniquity.¹³ Plutarch long since calleth it πρόϕασιν πλεονεξίας ἡμερώσαι τὰ βαρβαρικά, to wit, a wicked desire of that which is another’s, to pretend this color to himself that he may tame the barbarians.¹⁴ And now also that color of bringing the gentiles against their will to a more civil kind of behavior, which the Grecians in times past and Alexander used, is thought wicked and impious of all divines, but specially the Spaniards.¹⁵

      CHAPTER 3

      That the Portugals have no right of dominion over the Indians by title of the Pope’s gift

      Secondly, if they will use the division of Pope Alexander the Sixth, above all that is specially to be considered whether the Pope would only decide the controversies of Portugals and Spaniards, which surely he might do as a chosen arbitrator between them as the kings themselves had made certain covenants between them concerning that matter, and if it be so when the thing was done between others, it appertaineth not to the rest of the nations;¹ or whether he would give almost all the third part of the world to two peoples, which though the Pope could and would have done, yet shall it not presently follow that the Portugals are lords of those places, seeing their donation maketh not the lords but the livery² which followeth, for even to this cause possession ought to be added.³

      Moreover, if any man will search the law itself either divine or human and not measure it by his private commodity, he shall easily find such a kind of donation of that which is another’s to be of no moment. I will not here enter into disputation concerning the authority of the Pope, to wit, the bishop of the Church of Rome, nor will I absolutely set down anything but by hypothesis, to wit what the most learned men amongst them confess who attribute most to the authority of the Pope, chiefly the Spaniards who, considering through their quickness of wit and understanding they might easily see our lord Christ had rejected all earthly government,⁴ he had not truly dominion over the whole world as he was man, and if he had yet could it not be proved by any argument that such right was translated unto Peter or the Church of Rome by the right of vicar; seeing elsewhere also it is certain Christ had many things unto the which the Pope succeeded not,⁵ the interpreters affirmed (I will use their own words) that the Pope is not a civil or temporal lord of the whole world;⁶ yea, and that more is, if he had any such authority in the world, yet should he not rightly exercise the same, seeing he ought to content himself with his spiritual jurisdiction but could by no means grant it unto secular princes.⁷ So then if he have any temporal authority he hath it (as they say) by way of order unto spiritual things, wherefore he hath no authority over infidels seeing they appertain not unto the Church.⁸

      Whence it followeth, by the opinion of Cajetanus and Victoria and the better part as well divines as canonists, that it is not a sufficient title against the Indians either because the Pope gave those provinces as absolute lord or because they do not acknowledge the dominion of the Pope, so that the very Saracens were never spoiled under this color and pretence.⁹

      CHAPTER 4

      That the Portugals have no right of dominion over the Indians by title of war

      These things therefore being taken away, seeing it is manifest (which even Victoria writeth) that the Spaniards’ sailing to those remote countries brought no right with them of possessing those provinces, one only title of war remaineth which, though it had been just, yet could not profit them for dominion but by the right of prey, to wit, after the possession.¹ But it is so far from the matter that the Portugals possessed those things that they had no war at that time with many nations to whom the Hollanders went and so therefore no right could be gotten to them when also, if they had received any injuries from the Indians, they are supposed to have forgiven them by reason of the long peace and friendly traffic with them.

      

      Although there were no cause truly that they should pretend war. For they who pursue the barbarians with war, as the Spaniards do the people of America, are wont to pretend two things: that they are hindered from trading with them, or because they will not acknowledge the doctrine of true religion.² As for trading, the Portugals obtained it of the Indians, so that in this behalf they have no reason to complain. The other pretence is no juster than that of the Grecians against the barbarians whereat Boethius aimed:

       an distant, quia dissidentque mores,

       injustas acies, et fera bella movent,

       alternisque volunt perire telis?

       non est justa satis saevitiae ratio. ³

      But this is the conclusion both of Thomas and the Council of Toledo, and Gregory and the divines and canonists and almost all the civilians:⁴ although faith be declared to the barbarians (for concerning those who were subject before to Christian princes and also of apostates, the question is otherwise) probably and sufficiently and they will not respect it, yet notwithstanding it is not lawful for this reason to pursue them with wars and spoil them of their goods.⁵

      It is needful to set down the very words of Cajetan to this purpose:

      Certain infidels (saith he) neither in law nor in deed are subject to Christian СКАЧАТЬ