ONE HUGO THE GREAT
On the night of February 24, 1603, three Dutch ships reached the mouth of the Johor River off the Strait of Singapore. They dropped anchor in the olive-green waters and waited. The next morning, the men woke to a wondrous sight: The Portuguese great-ship Santa Catarina had arrived during the night and was moored right beside them.1
The Santa Catarina was a gigantic carrack, a U-shaped boat with towering fore- and aft-castles, designed to be invulnerable to smaller ships. It rode high in the water, allowing for a daunting number of cannons as well as ample room for cargo. To give a sense of scale, the Victoria, the carrack in which Magellan circumnavigated the world, weighed 85 tons.2
The Santa Catarina weighed 1,500.3
It was able to transport nearly a thousand people: seven hundred soldiers, one hundred women and children (some were probably family members, others captured natives to be sold as slaves), and assorted crew.4
At eight in the morning, the captain of the fleet, Jacob van Heemskerck, ordered his crew to attack, instructing them to fire only at the carrack’s mainsails. It was important to avoid puncturing its hull, he warned,
“lest we destroy our booty by means of our own cannonades.”5
The attack was one-sided. The Santa Catarina was nearly three times larger than any of Van Heemskerck’s ships, but its enormous size made it cumbersome to maneuver. It also had too many people and the confusion on deck made coordination impossible. Nor was the crew practiced in naval warfare. The Portuguese did not choose their bombardiers on the basis of skill or experience; they auctioned the positions off to the highest bidders. What was a great way to raise money turned out to be a lousy way to keep it.6
The battle was over by six-thirty in the evening. The Santa Catarina’s sails were in tatters, and the ship was in danger of crashing into the shallow rocks on the eastern shore of Singapore Island. The Portuguese captain, Sebastiano Serrao, surrendered to Van Heemskerck, thereby setting into motion a series of events that would change the world.
By the time Van Heemskerck returned to the Netherlands in 1604, the United Amsterdam Company, the trading corporation that had sent him to the East Indies, no longer existed. It had been acquired by the newly formed Dutch East India Company. The supreme legislative body of the Dutch Republic, the States-General, had granted the Dutch East India Company a monopoly to avoid damaging competition among Dutch traders. Having towed the Santa Catarina all the way back from Singapore—twelve thousand nautical miles—Van Heemskerck delivered it to his new employer in Amsterdam.7
Following standard procedure, the Dutch East India Company and Van Heemskerck filed a lawsuit before the Amsterdam Admiralty Board to secure rights to the ship and its cargo.8
The suit alleged the following facts: The company “had sent a fleet of eight ships to the East Indies under the command of [Jacob van Heemskerck] in order to trade with the inhabitants in the usual fashion.”9
When Van Heemskerck arrived in the Indies, however, he discovered that the Portuguese government had designed an extensive terror campaign to drive out the Dutch, who were threatening Portugal’s monopoly over the Asian spice trade. The commander of the mission, Captain André Furtado de Mendonça, had led an armada of
warships to Bantam in Java in an effort “to destroy all Dutch ships and their crews.”10
He had also punished the natives who had granted the Dutch “access to their harbors and markets,” by attacking them as well.11
His mission laid waste to Ambon, one of the largest of the Spice Islands (today the Maluku Islands in Indonesia), and “brutally tyrannized the poor inhabitants.”12
Van Heemskerck also discovered that the Portuguese in Macao, China, had murdered seventeen sailors from another Dutch expedition. One of the men who stayed behind from Van Heemskerck’s previous voyage to set up trading posts in the Spice Islands “was captured by the Portuguese and quartered alive by means of four galleys.”13
Outraged by these atrocities, Van Heemskerck and his crew prepared to retaliate against the Portuguese. After spending months looking for a carrack to capture, they found one on the morning of February 25, 1603, conveniently moored beside them. And not just any carrack, but the treasure ship Santa Catarina.14
After the lawsuit was filed, the Admiralty Board sent out notices summoning all claimants to contest the seizure and they repeated the process every fortnight for the next six weeks. Nobody responded, of course: The Portuguese owners of the Santa Catarina were halfway around the world and never saw the notices. On September 9, 1604, the Admiralty Board issued its opinion declaring the seizure to be “good prize” and ordering it to be “auctioned off in its entirety and the proceeds to be divided among the plaintiffs.”15
News of the Santa Catarina’s capture spread quickly and the auction of its cargo attracted interest from all over Europe. At the public sale in Amsterdam, merchants marveled at the legendary riches of Ming Dynasty China. The ship’s bounty included over seventy tons of gold, over a thousand bales of raw Chinese silk, chests filled with colored damask, atlas (a type of polished silk), taffetas, large quantities of gold thread, robes and bed canopies spun with gold, silk bedcovers and bedspreads, sixty tons of porcelain dishes, substantial amounts of sugar, spices, gum, and musk (a crucial ingredient in perfume), wooden beds and boxes, some lavishly adorned in gold, and a bejeweled throne, which one awestruck observer described as a “wonder.”16
The expedition yielded a staggering profit. Proceeds of the auction
amounted to 3.5 million guilders, or 37.5 metric tons of silver. In English currency, it converted to £300,000—more than 60 percent of the average annual expenditures of the English government at that time.17
The Dutch East India Company awarded Van Heemskerck 1 percent of the sale and the crew split 3 percent. The company kept the rest.18
HUGO GROTIUS, CORPORATE LAWYER
Even though they had won the case, the company directors were nevertheless concerned. Their shareholders complained about the seizure. They had invested in a trading company, they protested, not a freebooting operation. The decision of the Admiralty Board did little to quell the criticism, for its reasoning was a jumble.19
To address these worries, and perhaps to clear the way for future captures of this kind, the directors sought a lawyer who could offer a better public defense of Van Heemskerck’s actions.20
The assignment was offered to an ambitious and talented young man named Hugo Grotius.21
Grotius was an inspired choice. Born in Delft, Holland, on Easter Sunday 1583, Grotius—the family name in Dutch is de Groot (literally, “the Great”), but he preferred the Latinized “Grotius”—was a renowned child prodigy. When only eight years old, he wrote such expert Latin verse that one of his poems was presented to Prince Maurice, the military leader of the Dutch Republic, as a gift.22
At eleven, he matriculated at State College (soon to be Leiden University). His professors there were so impressed that one of them composed a poem comparing the adolescent Grotius to his country’s most famous man of letters, Erasmus. “Am I deceived?” the professor gushed. “Or was our Erasmus even so great?”23
At age fifteen, Grotius accompanied a diplomatic mission to the French court. According to legend, Henry IV of France was so overwhelmed by Grotius’s erudition that he dubbed him “the Miracle of Holland” and presented him with a gold pendant bearing the royal likeness.24
Grotius stayed in Paris for five more months and received a doctorate in law from the University of Orléans.25
He was licensed to practice law shortly after returning to Holland. A silverpoint drawing by the Dutch engraver Jacques de Gheyn commemorates
The caption states that Grotius is fifteen, but he looks no more than twelve. De Gheyn was clearly aiming to capture his subject’s legendary precocity, depicting his youthful face with a conspicuously furrowed brow, but the effect is more comic than dramatic.27
Grotius’s friend Daniel Heinsius later noted that Hugo never had a childhood. “Others were men after a long time, but Grotius was born a man.”28
A portrait painted only a few months later shows a different person. Jan van Ravesteyn’s circular panel depicts a handsome teenager, elfin in appearance, with rosy cheeks and a hint of a smile. He is clean-shaven, still too young for the fashionable Van Dyke beard he would later grow. Posed in partial profile, he is relaxed, full of hope and promise. But like so many others before and after him, Grotius would soon discover that practicing law can be frustrating and disappointing. “You know not, my worthy Heinsius,” the young lawyer wrote to his friend, “how much time the ungrateful practice robs me of. In no case has the fruit repaid the cost of the work done.”29
Grotius described himself as a “vulturiolus togatus,” a vulture in a gown.30
He would have preferred to spend his time on literary pursuits. In this area, too, Grotius distinguished himself at an early age. At eighteen, he completed a biblical play, Adam the Exile, which became a critical hit and helped inspire the great English poet John Milton to write Paradise Lost. Milton considered Grotius one of his heroes.31
In 1601, Grotius was named official historian for the State of Holland. The eighteen-year-old was chosen over Dominicus Baudius, a prominent scholar more than twice his age who, after losing to Grotius, was appointed Extraordinary Professor of Rhetoric at Leiden.32
Baudius probably did not object to finishing second to Grotius. In a letter written five years later, Baudius confessed how he had been so intimidated when the Miracle of Holland unexpectedly showed up at one of his lectures that he got lockjaw.33
Afterward, he begged Grotius’s forgiveness for having given such a poor performance.
Hugo the Great was a rising star in Dutch public life, with powerful friends and an even more powerful mind. The Dutch East India Company would be well served by hiring this illustrious and connected polymath. And Grotius would be well served, too. Grotius was nothing if not
ambitious and a high-profile case would increase his public standing and accelerate his political career.34
Grotius had a personal stake in the case as well. The maiden name of his paternal grandmother was Elselinge van Heemskerck.35
In justifying the capture of the Santa Catarina, Grotius was not only defending a powerful trading company—he was defending his own cousin.
PIRATES AND SOLDIERS
To satisfy the anxieties of their shareholders, the directors of the Dutch East India Company probably expected Grotius to write a short pamphlet pleading the company’s case.36
The favorable opinion of the Admiralty Board was only a few pages long. Surely Grotius would not need much more space? The case, however, turned out to be far more complicated than the brief and embarrassing Admiralty Board opinion suggested. Once he untangled the issues, Grotius knew that a short pamphlet defending the seizure—and setting the stage for more like it—would not do.37
In the end, Grotius spent the next two years composing a lengthy treatise on the laws of war, totaling 163 folios of neatly written, concise Latin. The English translation runs just shy of five hundred pages.
The legal case turned on an apparently simple question: Was Van Heemskerck a pirate? After all, he attacked a foreign ship that had done him no harm; and after overpowering it, he plundered its treasure and kidnapped its passengers. Isn’t this exactly what pirates do? The stakes here were high: If Van Heemskerck was a pirate, then the riches he transported from Singapore, and which the Dutch East India Company sold at an astounding profit, had in fact been stolen goods.
The legality of Van Heemskerck’s actions would have been easily settled had he been a soldier fighting in a naval battle. Soldiers in war were permitted to attack enemy ships and seize their cargo as prizes. But Van Heemskerck was no soldier: He was a private merchant working for a trading company. And though the Dutch Republic was indeed at war, it was at war with Spain, not Portugal.38
Furthermore, its conflict with Spain was a civil war. Beginning in 1568, the Protestant northern provinces of the Netherlands had rebelled against their Catholic overlord,
King Philip II of Spain. The Dutch Republic, as the breakaway provinces would later be called, declared itself an independent nation, but no other European state had acknowledged it. Indeed, England and France, the republic’s two closest allies, refused to recognize its representatives as full ambassadors in their courts.39
To justify the capture and defend his cousin, then, Grotius had to square a legal circle. He had to explain how Van Heemskerck was not engaged in piracy when he attacked and seized the Santa Catarina.40
Grotius’s solution to this dilemma was radical: Van Heemskerck had the same legal powers as a soldier at war because he was, in fact, at war. Though he was not fighting with the authorization of a sovereign nation, he did not need one. This employee of a trading company could wage war on his own authority.
To defend this outlandish idea, Grotius knew that he had a lot of work to do. He had to rethink the legal foundation of war and rebuild it from the ground up.
WHAT WAR IS GOOD FOR
In his classic 1970 protest song, Edwin Starr asks, “War—what is it good for?” then belts out the answer to his own question, “Absolutely nothing!” Most would still agree with the sentiment, even if not with its categorical sweep. The modern attitude is to regard wars as uncontroversially bad, moral catastrophes to be avoided at almost all costs. We recognize that some wars may be just—even necessary—but they are to be entered only in a narrow range of cases, such as repelling military aggression or preventing humanitarian disasters.
Grotius would have given a different answer to Starr’s question. He would have said that war is good for many things. It is good for defending lives and territory, of course. But it is also good for collecting debts. If loans are not repaid, war is a morally permissible way for collecting what is owed. War is also good for restitution: If property is taken without permission, it may be recovered by force of arms. War is also good for securing compensation. If an injury has not been repaired, the military may be used to collect reparations. War is also useful for punishing criminals. If someone
has engaged in egregious wrongdoing and is evading justice, war may be used to achieve retribution.41
For Grotius, then, war is a morally acceptable way to prevent or remedy the violation of rights. Though it does not go particularly well to music, Grotius expressed this idea in his defense of Van Heemskerck as follows: “Armed execution against an armed adversary is designated by the term ‘war.’ A war is said to be ‘just’ if it consists in the execution of a right, and ‘unjust’ if it consists in the execution of an injury.”42
In setting out this conception of war, Grotius was drawing on a long tradition in Western moral thought often called “just war theory,” whose contributors include the Roman orator Cicero, one of the great Fathers of the Western Church, Augustine of Hippo, and the leading scholastic theologian, Thomas Aquinas.43
These thinkers differed on many aspects of the right of arms and just conduct in battle, but they (and many others) all agreed that war was a morally legitimate activity. Just war theorists were not pacifists and believed that wars could be waged justly. They also agreed on the basic function of war, which is to respond to threatened or actual wrongs when no peaceful option remains.44
If the enemy has not violated or threatened to violate any rights, states may not wage war. Battles for glory, riches, or sheer animus are unjust wars, indistinguishable from mass killing and robbery sprees.
Grotius accepted this traditional conception of war and drew from it several important conclusions. Because the function of both warfare and litigation is to right wrongs, Grotius claimed that the reasons to wage war are identical to those that prompt lawsuits. The subject matter, he wrote, “is the same in warfare and in judicial trials.”45
The casus belli—the justified causes of war—are what lawyers today characterize as “causes of action,” namely, those violations that may be remedied by a court. These causes include not only self-defense and the punishment of crimes, but also matters of a completely commercial nature, such as the collection of “debts arising from a contract” and “defence of one’s property . . . which makes it permissible not only to offer resistance but also to dispossess others.”46
Grotius drew another conclusion from the just war tradition: Because the function of war is to right wrongs, property seized in a just war belongs to the captor. Prize, booty, and conquest are merely the recovery of goods
already due the attacker: “[W]ar is just for the very reason that it tends toward the attainment of rights; and in seizing prize or booty, we are attaining through war that which is rightfully ours.” Grotius also argued that those who wage a war whose injustice is “clearly evident” do not have the same rights. They are not entitled to “the things captured in that war” because they are not attaining through war what is rightfully theirs.47
Going to war to recover property may seem shocking, but what else are victims of injustice supposed to do? When courts are available, victims are obligated to go to them for redress. But “ordinary remedies do not serve in an extraordinary situation,” Grotius argued, and “when one recourse fails, we turn to another.”48
Thus, if courts are unavailable—for example, because the parties are sovereign states and recognize no higher authority—then the injured party is entitled to redress by any means possible. Having been wronged, the victim has the right to go to war precisely because he cannot go to court.
Grotius not only deployed the traditional conception of war as a substitute for courts, but he took the idea one step further. He explained why the basic principle of just war theory was true: War is a substitute for courts, Grotius argued, because courts are the original substitutes for war.
According to Grotius, all human beings are born with the right to defend their life and property, enforce their agreements, and punish crimes with violence. This right of “private war,” as Grotius called it, was conferred on all individuals by the moral law, or to use Grotius’s terminology again, by the “law of nature.”49
Private war is the natural and primordial response to injustice. But, he continued, a world in which everyone has the right of private war proved to be extremely dangerous. Thus, individuals decided to band together and form governments with effective legal systems—leaving what later philosophers would call the “state of nature” and entering the “social contract.” Through the social contract, people transferred their natural right of private war to the state and consented to use its courts as a way to protect their lives and property, enforce their agreements, and punish wrongdoing. They decided to replace private war with public courts.50
On this account, states are not the only ones who have the right of war. Individuals have this right as well.51
The reason why citizens are not
entitled to use violence within the jurisdiction of the state—why vigilantism is illegal—is that they have transferred their right of private war to sovereign authorities. When aggrieved, they must appeal to the state for help. But the transfer does not cover all forms of violence. It does not apply in political vacuums, such as the high seas, where sovereigns have no legal powers of enforcement.
This account of private war, not coincidentally, allowed Grotius to formulate a defense of his client. Van Heemskerck was permitted to attack the Santa Catarina off the coast of Singapore because he was outside the state whose jurisdiction he consented to obey. Van Heemskerck was not a vigilante, therefore, but the leader of a private war on the high seas.
Grotius’s defense of Van Heemskerck, however, was not yet complete. To show that Van Heemskerck was not a pirate, Grotius had to show that his private war was just—that he was actually righting wrongs. But when Van Heemskerck attacked the Santa Catarina, what wrongs was he righting?
HEEMSKERCK’S PRIVATE WAR
The first part of Grotius’s defense is an abstract work of moral theory. As he explained in his introduction, his ambition was to ground the laws of war, and his defense of Van Heemskerck, in “the inmost heart of philosophy.”52
He wrote in a dispassionate, methodical, almost mathematical style. Beginning with general principles about moral rights and obligations, he derived specific conclusions about the proper conduct for, and in, war. Grotius knew the text was tough going. He apologized for the “tedium” of the presentation, but hoped that the “accuracy of the arguments” would make up for it.53
In the second half of his defense, where Grotius laid out the facts of Van Heemskerck’s case, the tone changed dramatically.54
No one expected Grotius to be evenhanded, of course, but what he produced was a vicious screed against the Portuguese.55
Grotius sought to expose what he called “the instances of unparalleled treachery, the mangling of women and children belonging to the households of native potentates, the disturbance of [East Indian] kingdoms through the poisonous activities of the Portuguese and the abominable cruelty displayed toward both subject and
The Portuguese are filled with “uncontrollable hatred” and “an insane greed for gain,” their “madness (for no other term will describe their attitude) flamed out with incredible force against the Dutch,” a “savagery . . . that far exceeds the bounds customarily observed between enemies.”57
The Portuguese are “men of bad faith, assassins, poisoners, and betrayers,” their cruelty “characteristically Iberian.”58
To substantiate these accusations, Grotius cited a letter found by Van Heemskerck’s men aboard a captured Portuguese frigate. The dispatch described a Dutch expedition to the Chinese town of Macao in September 1601.59
Having never been to China, the Dutch commander of the mission sent a small boat with eleven aboard to investigate. The Portuguese, who had established a large concession in neighboring Canton, lured the boat to shore waving white truce flags and arrested the sailors as they landed.60
When the first party did not return, a slightly larger contingent was sent and these sailors were also arrested. The Portuguese threw the captives in a cave and tortured them. The letter reported that seventeen were hanged on the orders of the Portuguese magistrate, though Grotius alleged that only six were actually strung up, while the remaining men were led to shore at midnight in iron fetters and “weighted with rocks, they were rolled into the sea.”61
These atrocities, Grotius claimed, were meant to deter the Dutch from trading in the East Indies. “Our chief crime lay in the fact that, instead of being crushed by want, we vied with the Portuguese in seeking those benefits to which nature has given all men free access.” And since there were no courts in which the Dutch could prosecute the Portuguese for these offenses, Van Heemskerck was meting out the punishment they deserved.62
His private war, therefore, was just.
Grotius not only produced an ingenious defense of Van Heemskerck’s attack on the Santa Catarina. He also supplied the Dutch East India Company with something even more valuable: a legal justification to continue this belligerent behavior. While on the high seas, or anywhere outside the effective control of a court, company employees could use deadly force against the Portuguese, English, French, or anyone else who threatened to wrong them. As long as they were preventing or righting a wrong, they would not be pirates—they would be waging a just private war.
WHY RIGHT CAN’T MAKE RIGHTS
Grotius spent two years working on his defense of Van Heemskerck and revised it for two more.63
Nonetheless, it appears he never gave his five-hundred-page tome a title, instead referring to it as “de rebus Indicis opusculum,” that is, “my little work on Indian affairs.”64
He also never published it as a whole. Only a single chapter was printed in his lifetime.
Scholars have debated why Grotius held on to his manuscript. The leading theory is that Grotius had taken so long composing his defense that the Dutch East India Company no longer needed it. The shareholder controversy petered out with time.65
But there may have been another reason: Grotius may have noticed that the work he had written contained a serious defect. His defense managed to justify Van Heemskerck’s capture of the Santa Catarina and, indeed, the Dutch East India Company’s violent strategy in the Indies. But it also threatened to damage the very trading system upon which his client’s business depended.
Recall Grotius’s argument about the rights of booty and conquest: Those who fight in a just war have the right to keep what they seize because they are attaining through war what is owed to them. But those who fight in manifestly unjust wars, he also argued, have no such right because they are not attaining through war what is owed to them. Denying the rights of war to the unjust might seem like a good idea—perhaps even a painfully obvious one. It seems clearly wrong for states (or individuals) to be able to wage unjust wars and keep their plunder. Might does not make Right. But, on reflection, restricting the rights of war to the just side is a bad idea. It is an especially terrible idea if you work for a global trading company in early modern Europe.
To see why, bear in mind that there were very few institutions that could peacefully resolve disputes between states in the seventeenth century. There were tribunals, known as “prize courts,” which heard maritime claims between nationals of different countries. When a ship captured an enemy vessel, the owners would bring a condemnation proceeding in prize court to establish their right to sell what the ship had seized. The Amsterdam Admiralty Board that ruled on Van Heemskerck’s capture of the Santa
Catarina was such a court.66
There were also ad hoc tribunals formed by mutual consent of states to resolve particular controversies.67
The Old World Order, however, was missing general institutions that could resolve the bulk of international disputes. There was no United Nations Security Council, no World Trade Organization, no organizations of commercial arbitration. The pope was the only person who had played such a role in Western Europe, but he had long lost whatever supranational political power he possessed.68
Even before the Protestant Reformation, when the Roman pontiff was at the height of his influence, he held no sway over Eastern Orthodox rulers, or the Islamic world. Similarly, the Ottoman caliph claimed authority over all Islam, but that power was restricted to Sunnis. The Safavid Empire held supreme authority in Shiite Persia. And the caliph possessed little real power over the Mamluk kings in Egypt, tribal leaders in Mesopotamia and Arabia, or the Mughals in Afghanistan and India. The Qing Dynasty ruled China, but not Japan, which was the province of the Tokugawa Shogunate.69
And no one held sway over the petty kingdoms of the Indies, which played a central role in the spice trade.
That the early modern world did not have an effective ruler or general court system to resolve disputes created a serious problem for states and their chartered trading companies: How were most international disputes to be resolved?
Grotius’s answer in his defense of Van Heemskerck had been simple: war. But this solution, Grotius may have realized, did not really eliminate the underlying problem—it merely shifted it onto traders. Using war to right wrongs when there are no effective courts to choose the just side meant traders now bore the burden of deciding which party was in the right. Whenever a trading company, like the Dutch East India Company, bought goods that were captured in war, it could not assume that the seller had the right to them. The seller, after all, might have been the aggressor and, therefore, no better than a pirate. Indeed, anyone buying from the Dutch East India Company would have the same concern: The Dutch East India Company may have seized the goods in an unjust war, or bought them from sellers who seized the goods in an unjust war. Knowing this risk, trading companies would be hesitant to buy goods seized in war—and
others would be reluctant to buy from them in turn. At the very least, the goods would be heavily discounted to account for the risk that they had been stolen—perhaps so much so that it would make no sense to buy them in the first place.
The problem of legal uncertainty didn’t merely affect goods seized in war. It affected all goods in the stream of commerce. In a world in which victims could wage war to right wrongs, and markets were global, traders need only worry that goods might have been procured in an unjust war for the contagion of uncertainty to creep into the transaction. And when goods came from India, Singapore, the Spice Islands, China, Japan, or, for that matter, New York, Massachusetts, Canada, Cuba, or Brazil, no one could ever be sure that the seller had the right to the goods he was selling.
Wait a minute, you might say. This is not a problem. If I buy something—say, a car—at market price at a reputable dealer and it turns out to be stolen, the original owner cannot take it back from me. I am what lawyers call a “good faith” purchaser. The absence of a clean chain of title at the time of my purchase does not eliminate my right to the car. The person whose car was stolen can go after the seller, but not after me.
Unfortunately for Grotius, the European laws of property were not so forgiving in the seventeenth century. European courts still followed the basic rule of Roman law—nemo dat quod non habet (“one cannot give that which one does not have”)—which provided that thieves cannot transfer legal title.70
No matter how many different hands through which property passed, how innocent those transactions, how many years had passed between the theft and later deals, if the property had been stolen at some point, no subsequent sales were valid.71
Theft left, as it were, an indelible stain on goods. The original owner always had the right to reclaim his property and did not even have to compensate the innocent person who bought it.
One indication of how fastidious merchants were about clean title is the institution of prize courts. Merchants brought proceedings in prize court because a verdict of “good prize” established good title. The ruling of the Amsterdam Admiralty Board in favor of the Dutch East India Company enabled the company to sell its goods at auction and keep the proceeds.
While Europe had prize courts that awarded clean title for goods seized
at sea, there were no similar ones for territorial warfare—there were no “booty” or “conquest” courts for the land. Title to goods captured on land, or sovereignty over territory seized during military conquest, could not be adjudicated and certified by a court. As it happens, the Dutch East India Company’s business model came ashore not long after Grotius penned his defense of Van Heemskerck. In 1612, the company began shipping settlers to the East Indies and, by the end of the decade, it started to conquer native territories. The Dutch West India Company was established in 1621 and charged with “the peopling of those fruitful and unsettled parts.”72
The first families arrived on Manhattan Island in 1624.
Grotius’s theory of war would have wrought havoc on the emerging global economy. A world in which clean title was essential to commerce could not also be a world in which clean title was only acquired in a just war. For this requirement would have placed intolerable demands on traders. It would have required them to know the provenance of all goods and whether they had been acquired in a just war. And they would have to do so in the absence of any courts with the power to resolve ambiguities or disputes. What trader would risk his money under these circumstances?
Grotius’s brilliant defense of Van Heemskerck may have attempted to legitimate private wars by trading corporations, but if the theory had been adopted in practice, it would have caused enormous chaos for these very companies. Grotius’s recognition of this fatal flaw may have been the reason the manuscript languished in his drawer. Before Grotius could publish his theory of war, he would first have to fix it.
There are just so many times one can engage in risky behavior without getting burned. And in seventeenth-century Europe, there were few activities more dangerous than naval battles and confessional politics. Our heroes’ luck was about to run out.
Van Heemskerck was the first to come up short. The Santa Catarina incident made him a rich man and earned him a promotion.73
Prince Maurice appointed him admiral of the Dutch navy and gave him command of a fleet to destroy the Spanish armada at Gibraltar.
The mission succeeded. In April 1607, the Dutch fleet obliterated the armada and sent every galleon to the bottom of the Bay of Gibraltar, though Admiral Van Heemskerck did not live to see his victory.74
His armor presently on display at the Rijksmuseum in Amsterdam reveals how he was killed. The metal suit is conspicuously missing the left cuisse, the thigh piece: A Spanish cannonball ripped into his left leg at the hip and he bled to death.75
Grotius composed a long epicedium—a funeral ode—in honor of his fallen cousin.76
The poem celebrates Van Heemskerck’s short but event-filled life, beginning with his failed attempt to reach the Indies by sailing through the Arctic Ocean and getting stuck on the ice for a bleak eight-month winter: “I myself remember how I heard from you about your journey to the far North where in the polar night you sought the sunlight.” The poem also wonders how the rajas Van Heemskerck encountered on his journeys to the Spice Islands and Singapore would react to his death: “Who will bring the message of this funeral to the Indies? The princes will mourn you, Heemskerck; they had expected you to go there in order to chase away the Portuguese and to make free trade possible.” The ode ends by declaring that his countrymen would not grieve for their hero, knowing how happy he was to die in a battle against their enemy: “Much more pleasant for you will be the moaning with which the Spanish mothers lament their sons.”77
Van Heemskerck’s victory at Gibraltar led to a temporary armistice between Spain and the Dutch Republic.78
The armistice was the occasion for vigorous negotiations over the terms of a more durable truce.
Grotius played no direct role in the negotiations, but he continued to work for the Dutch East India Company. The directors of the company worried about the insistent demands of the Spanish Empire for the Dutch to cease trading in the Indies. To bolster the Dutch company’s negotiating position, Grotius revised Chapter Twelve of the defense of his now deceased cousin as a separate pamphlet and called it Mare Liberum (“The Free Sea”). The pamphlet argued that navigation and trade on the high seas is a natural right that cannot be taken away by any power. Because the purpose of the work had changed, Grotius carefully deleted incendiary references to Portuguese atrocities and the right of private war that had been the cornerstones of his original manuscript.
The Dutch position on trade in the Indies ultimately prevailed. In the final truce agreement, signed in 1609, Spain agreed to treat the Dutch Republic as an independent nation and gave up its demand that the Dutch cease trading in the Indies for twelve years.79
The Dutch East India Company’s trading interests were now secure.80
Grotius spent the next decade as the faithful servant of the Dutch East India Company.81
He continued to lobby on its behalf and acted as one of the main Dutch negotiators in diplomatic disputes involving Spain, France, and England.82
By some accounts, he was a more talented scholar than diplomat. George Abbot, the Archbishop of Canterbury, described the first meeting between Grotius and King James of England: “At his first coming to the King, by reason of his good Latine tongue, he was so tedious and full of tittle tattle that the King’s Judgment was of him that he was some Pedant, full of Words and of no great Judgment.”83
The king wasn’t the only person to regard Grotius as a gasbag and bore. At another dinner, Grotius bloviated to such an extent that his host sat dumbfounded and wondered “what a Man he had there, who never being in the Place or Company before, could overwhelme them so with Talk for so long a time.”84
Grotius seems to have suffered from the occupational hazard of the child prodigy: when the pearls pouring from your mouth dazzle everyone, you may never learn to shut up and let someone else have a turn. The wunderkind had grown into an enfant terrible. Archbishop Abbot portrayed Grotius as someone who “did imagine that every Man was bound to hear him so long as he would talk.”85
But it is a testament to Grotius’s brilliance that, despite his overbearing narcissism and Latin logorrhea, his political career continued to advance. In 1607, he was selected to be the advocate-fiscal (the equivalent of the modern-day attorney general) for the states of Holland and Zeeland, and six years later was appointed the pensionary (general counsel) of Rotterdam and a member of the States-General.86
Grotius also became involved in the Arminian movement, a liberal form of Calvinism that denied the orthodox doctrine of predestination and preached religious toleration.87
This open-mindedness, however, was his undoing. In 1618, Prince Maurice and Calvinist hardliners arrested Grotius and his patron, Johan van Oldenbarnevelt, the grand pensionary of Holland. Both men were
convicted of heresy and treason in a show trial. Oldenbarnevelt was beheaded, but Grotius was spared, receiving the more lenient sentence of life imprisonment.88
THE LAW OF WAR AND PEACE
Grotius was sent to serve his sentence at Loevenstein Castle in the central province of Gelderland. With its moat and high walls, the fortress was an ideal place to hold political prisoners and religious leaders. Soon after Grotius arrived, his wife and two children, ages six and eight, joined him, for their house and all their possessions had been seized and they had no other place to live.89
Together they shared two rooms, each just over ten paces across, with small barred windows.
Grotius used one of the two rooms as a study, where he continued his work. He used the time well, writing a defense of his religious views and a treatise on Dutch jurisprudence. He also continued his earlier research on the laws of war. Though able to work and accompanied by his family, Grotius was unsurprisingly desperate to escape. For a man used to holding forth at court and enjoying the adulation of other scholars, the isolation was suffocating. And imprisonment in the damp castle was taking its toll on his health.
Grotius’s extensive library had been confiscated as part of the treason conviction, so his friends lent him books.90
These books were delivered in large chests, and when Grotius was finished with them, they were returned in these chests, along with his dirty laundry. After twenty months of examining books and wash, the guards had stopped checking the chests’ contents. This gave Grotius and his wife a ridiculous but brilliant idea: He could take the place of the books inside a chest on its return trip, escaping the prison.
With his wife’s help, Grotius began practicing lying quietly inside the chest until he could remain inside without moving long enough for the chest to be delivered far from the castle. In 1621, he climbed into a chest, with his head resting on a Bible but without shoes on his feet, for there was no room. The ruse worked, at least initially. Unaware that Grotius was wedged within, the guards allowed the chest to be carried out of prison.
At one point, however, the bearers noticed the trunk’s unusual weight and suspected that the prisoner might be inside. “I’ll fetch a drill and drill into his arse until the crap runs out,” a guard said. But Elsje, his chambermaid, replied: “Then you’ll need a drill that goes all the way to his room.”91
Persuaded by her quick response, the guards continued on their way.
Delivered to the home of a friend, Grotius emerged from the chest, embraced the loyal friend, and left out the back door dressed as a bricklayer, bound for Paris.92
When his escape was discovered, his wife and children were kept under close confinement, but because there was no basis for keeping them, they were soon released and allowed to rejoin him abroad.
Grotius spent several years in Paris preparing a new treatise on the laws of war.93
He rushed to finish it so that it could be sold at the Frankfurt book fair in 1625, under the title De Jure Belli ac Pacis Libri Tres or “The Law of War and Peace in Three Books.” It was a hit and quickly became the textbook on the laws of war. By the eighteenth century, The Law of War and Peace had gone through fifty editions in Latin alone.94
Grotius attempted to reduce all the laws of war to a single treatise.95
It covered an astonishing range of topics—the definition, permissibility, and causes of war; delineation of state boundaries; common use of land, rivers, and seas; procedures for making treaties; rights of burial and diplomacy; division of booty; use of hostages; right of conquest; proper treatment of prisoners of war; prohibitions on rape, assassination, and use of poison in battle; duties of allies; responsibilities of neutrals; making of truces; and negotiation of peace treaties.
The encyclopedic coverage of the treatise was matched only by its philosophical ambition. Grotius plumbed deeper than any thinker before him in an effort to justify war. Because he treated war as a permissible response to the violation of rights, he audaciously attempted to catalogue every right that any person could possess. Grotius wanted to know what rights people could have, in other words, because he wanted to know when they could go to war over them.96
One innovation that made Grotius’s work so modern was that, unlike other Protestant thinkers, he did not limit his moral focus to Christians. He wanted to discover the rights of all people, irrespective of race, creed, or religion—not just Protestants and Catholics, but Jews, Muslims,
Hindus, Buddhists, barbarians, and savages as well—and for that he looked to the law of nature.
The law of nature, according to Grotius, is remarkably egalitarian: It confers the same basic rights on everyone. He claimed, for example, that all human beings have the right to acquire and sell property. The natural right of private property is “universal” and “whatever each had thus taken for his own needs another could not take from him except by an unjust act.”97
The legal implications of this position were enormous. It meant that Christians were not only forbidden from taking property from non-Christians, but that non-Christians would have a just cause of war against Christians for doing so.
Grotius made the same claims about contracts and treaties. All human beings are able to create binding contracts and every nation can enter valid treaties. “[N]othing is so in harmony with the good faith of mankind as that persons should keep the agreements which they have made with one another.”98
It is tempting to see Grotius as a courageous critic of bigotry and racism, even an early champion of the idea of human rights. No doubt Grotius’s sterling reputation today is due, at least in part, to these progressive passages. But before we get too impressed, we should recognize how congenial these enlightened ideas were to his client’s commercial interests. After all, if heathens could own property, they could sell it to the Dutch. More importantly and insidiously, if heathens could enter valid contracts and treaties, then the Dutch East India Company could negotiate exclusive trading deals with native rulers of the Indies.99
Since these treaties would be valid, they would be enforceable not only against the natives themselves, but against other European countries as well.
For all of Grotius’s talk about the freedom of the seas and the right to trade, he helped negotiate monopolistic trading agreements with East Indian nations and pressed these legal claims against the Dutch East India Company’s European competitors. The hypocrisy did not go unnoticed. During trade negotiations with England’s East India Company, the En-glish were stunned to hear the author of The Free Sea deny them the right to trade freely. In one of his position papers insisting on Portuguese-style monopolies for the Dutch East India Company, Grotius wrote: “We think
it very honest to defend oppressed people.” An English delegate scrawled in the margins, “against their wills.”100
MIGHT IS RIGHT
The moral world Grotius describes in his 1625 treatise, The Law of War and Peace, is teeming with rights. Individuals have rights; states have rights; native peoples have rights; trading companies have rights. But though moral, this world is not peaceful. For among the entitlements that Grotius recognizes is the right to wage war to defend all these other rights.
Grotius’s earlier defense of Van Heemskerck remained tucked away, but he relied on it heavily as he wrote his new treatise. Like the earlier manuscript, The Law of War and Peace is an unabashed defense of the morality of war. Grotius argued that the law of nature permits individuals and states to use force to prosecute their rights. Indeed, any right that could be enforced by courts could also be enforced by war if courts were unavailable. “It is evident that the sources from which wars arise are as numerous as those from which lawsuits spring.”101
By the time he wrote The Law of War and Peace, however, Grotius understood that if war was to play its role as an enforcer of rights, it had to do so in a way that did not scramble the system of property rights and create debilitating legal uncertainty for merchants. And he had the solution to that problem—a way to fix the flaw in his earlier defense of Van Heemskerck.
Grotius’s solution to this problem was also radical: If traders could never be sure which side has the just case, then the law should not require them to figure it out. The laws of war, in other words, should allow traders to take physical control over goods and territory as legal ownership. Possession in war would always be ten-tenths of the law. That would allow traders to remain neutral about disputes while also vigorously engaging in commerce.
Let’s call Grotius’s solution the “Might is Right” Principle. The Might is Right Principle states that success creates legal rights in war. Applied to the case of booty, for example, the principle requires that title transfers when property is seized in war. Soldiers become the rightful owners of
booty not because they were engaged in a just war, but because they succeeded in taking valuables from the other side. The Might is Right Principle also applies to conquests. If a state is able to wrest territory from another state, it acquires sovereignty and has the right to rule its inhabitants. Those not engaged in the fight do not need to know the legal details of the dispute. They can let war be the judge.
Grotius expressed the Might is Right Principle as follows:
[K]ings and peoples who undertake war wish that their reasons for so doing should be believed to be just, and that, on the other hand, those who bear arms against them are doing wrong. Now since each party wished this to be believed, and it was not safe for those who desired to preserve peace to intervene, peoples at peace were unable to do better than to accept the outcome as right.102
That is, because each belligerent would claim that it had justice on its side, nonbelligerents could do no better than to “accept the outcome as right.” The Might is Right Principle would allow them simply to treat the winner as the legitimate rights holder. “By the law of nations not merely he who wages war for a just cause, but in a public war also any one at all becomes owner, without limit or restriction, of what he has taken from the enemy,” Grotius proclaimed. “[B]oth the possessor of such booty, and those who hold their title from him, are to be protected in their possession by all nations.”103
Treating Might as Right would not only benefit trading companies. It would also prevent local conflicts from escalating into global conflagrations, for the belligerents would have no right to wage new wars to recover goods lost in old battles. “[N]either slaves nor things taken in war are restored with peace,” Grotius wrote. “To controvert this principle would in truth be to make wars to spring up from wars.”104
THE PECULIAR EFFECTS OF WAR
Grotius was not the first to propose the Might is Right Principle. The idea had been suggested two centuries earlier by the Italian lawyer
Raphael Fulgosius. Fulgosius observed with puzzlement that the Roman law of booty and slavery did not distinguish between just and unjust wars.105
“How is it,” Fulgosius asked, “that the one who wages an unjust war acquires the ownership of things he captures through his unjust action?” Fulgosius responded: “as it was uncertain which side waged war rightfully, and as there was no common judge above the parties by whom this could be ascertained in terms of civil law, the nations with the best of reason decided that war would be judge of the matter.”106
In 1582, the Flemish-born judge advocate general for the Spanish army, Balthazar Ayala, agreed with Fulgosius and accepted a version of the Might is Right Principle in his treatise, The Rights and Duties of War and Military Strategy, though he gave no explanation for it.107
In a sense, the world also accepted the Might is Right Principle. In war, soldiers grabbed what they could. After battles, the victors quickly combed the landscape for valuables and stripped coats, shoes, muskets, swords, jewelry, and money from the fallen. As Victor Hugo later observed, “The dawn which follows a battle always rises on naked corpses.”108
The English word “robe,” for example, derives from “rob,” garments being common objects looted from the battlefield.109
Booty taking was the normal way that soldiers profited from war; indeed, armies tolerated this distasteful behavior because it saved them from having to pay their soldiers much of a salary.110
In turn, states that won wars took territory as conquest. To be sure, just war theorists were adamant that the unjust side did not have the moral right to booty and conquest. From a practical perspective, however, these admonitions did not much matter. Booty and conquests were recognized as a matter of course.
In his original defense of Van Heemskerck, Grotius cited Fulgosius and Ayala, but only to reject their views.111
He denied that the laws of war accorded the same rights to both sides. Grotius made one concession to reality: Soldiers acting in good faith and having reasonable grounds for believing in their cause could keep what they took, even if they found out afterward that they were wrong. But if their side was clearly unjust, Might was not Right and the victors could not legally keep or sell what they had seized. As Grotius wrote then, rewarding injustice was “lacking any rational basis” and would “incite men to wrongdoing.”112
By the time Grotius wrote The Law of War and Peace, however, he had reversed course, apparently realizing that rewarding injustice had a rational basis. After all, treating Might as Right would protect merchants from the legal chaos that war would otherwise unleash.113
Grotius also conceded that the world followed the Might is Right Principle. The principle “met with the approval of nations,” he explained, precisely because it was rational.114
To be sure, adding this principle to his theory of war created perverse consequences. After all, Grotius followed the just war tradition, which limited wars of conquest, and the taking of prize and booty, to the restoration or protection of justice. Only victims and their allies were permitted to resort to arms. Yet he now granted everyone the legal right to keep what they took, even wrongdoers who took territory and property from the victims themselves. Recognizing this perversity, he referred to such outcomes as peculiares effectus—the “peculiar legal consequences”—of war.
Grotius sought to limit the likelihood of abuse by granting these peculiar powers only to some wars—what he called “formal” wars.115
Formal wars are state-on-state conflicts that commence with formal declarations of war, such as the War of the Spanish Succession, Seven Years War, Franco-Prussian War, the First and Second World Wars. In formal wars, Might is Right. All other conflicts, such as Van Heemskerck’s attack on the Santa Catarina, are informal wars where Might is not necessarily Right. In this revised theory, the Dutch East India’s legal claim depended solely on the fact that Van Heemskerck seized the Santa Catarina’s cargo at sea and his seizure was blessed by a prize court. Had the same seizure occurred on land, the Dutch East India Company could have been required to return the vast riches to Portugal. Indeed, unless he had a just cause, Van Heemskerck and the Dutch East India Company would have had no more legal claim to the Santa Catarina than a pirate.
It is likely no coincidence that Grotius’s new theory favored sovereigns and their chartered trading companies. After Van Heemskerck’s victory at Gibraltar and the subsequent truce with Spain, European states began to recognize the Dutch Republic as an independent, sovereign nation. Grotius probably expected his pro-Dutch writings would put him in good stead back home and persuade his political enemies to forgive him. He actually returned incognito for a few months in 1631, when the
second edition of his treatise was published, to test the waters. Grotius discovered that he was still not welcome, and probably never would be. The celebrated prodigy of the Dutch Republic fled once again, exiled from his country during its Golden Age, the glorious period of Rembrandt, Vermeer, Huygens, and Descartes. He would die in 1645, after being injured in a shipwreck off the coast of Eastern Pomerania, a broken and lonely outcast.116
THE FATHER OF INTERNATIONAL LAW
Hugo Grotius was twenty-three years old when he completed his defense of Jacob van Heemskerck. It was a brilliant beginning to a brilliant career: His writings would be recognized as classics and remain part of the Western canon. Grotius was once known to all educated westerners and revered as one of the greatest western minds.
The Law of War and Peace would become the foundation for all future treatises on international law. The leading international scholar of the second half of the seventeenth century, the German lawyer and philosopher Samuel von Pufendorf, cited Grotius’s views hundreds of times in his magnum opus, Eight Books on the Law of Nature and Nations. In some cases, he simply adopted them. The complete entry on the right to kill in war reads: “How far in particular many peoples commonly extend the license of war on the persons of the enemies is shown in detail by Grotius.”117
The preeminent international law scholar of the eighteenth century, the Swiss lawyer and diplomat Emer de Vattel, cited “that great man” Grotius in his main work, The Law of Nations, more than any other authority.118
Grotius’s influence was likewise strong among the Founding Fathers of the American Revolution. George Washington, like most educated English gentlemen of his day, owned a copy of The Law of War and Peace.119
James Madison declared that Grotius “is not unjustly considered . . . the father of the modern code of nations.”120
During a fight over the ratification of a treaty, John Adams scoured the half-built city of Washington, D.C., for international law treatises and found what he was looking for in Vattel. But he wrote to his son Thomas in Philadelphia, “I wish you would look into
Grotius & Puffendorf [sic] among the rules for the interpretation of treaties, & send me extracts of the law upon this point.”121
Even today, lawyers and diplomats celebrate Grotius and consider him the “Father of International Law.”122
His name graces societies, journals, and professorships and his image adorns grand public monuments. A marble relief of Grotius hangs over a gallery door to the House Chamber in the United States Capitol, alongside those of Moses, Hammurabi, and Thomas Jefferson. Grotius’s standing is even honored in the breach. The late United States senator Daniel Patrick Moynihan once described the contempt for international law held by many in the Reagan Administration by saying that “Real men did not cite Grotius.”123
Grotius did not invent international law, of course.124
He explicitly relied on a long tradition of just war theory and, in most instances, he described prevailing state practice. His great achievement was melding these ideas and rules together into a coherent system that formed the basis by which global commerce and international relations were governed for centuries—what we have called the Old World Order. The core idea that animated the Old World Order, as he explained it, is simple but powerful: War is a legitimate method for sovereigns, and their chartered trading companies, to enforce rights against one another. The right to wage war, to conquer and seize booty, to destroy anything that is necessary to win all derives from this basic function of war.
Grotius was a humanist scholar, Latin poet, and Protestant theologian—but he was also an attorney for a trading company, and he approached the laws of war through the lens of a corporate lawyer. His project was to enable his client, and his country, to advance their interests in the absence of courts that could resolve disputes. He designed his theory of war to enable the beginnings of a globalizing world, where states and trading companies set out all over the earth in search of goods to buy and sell. And he came to realize that, for this purpose, the rights of war could not depend on the justice of the war waged. A world in which war was a legitimate means of law enforcement was one in which Might had to be Right.
Grotius’s achievement extended beyond developing a systematic approach to war that worked for merchants and their state sponsors. Perhaps even more importantly, he provided war with a firm moral foundation. The
moral and legal right of war, he explained, always derived from the same place—the natural rights of individuals.125
Public wars, no less than private ones, are just only when they are fought on the basis, and in the name, of the moral entitlements ceded to them by their citizens. States have no right to use violence except as bestowed upon them by the social contract. Indeed, the right of public war is nothing but the amalgamation and distillation of all the rights of private war.126
By grounding the right of war, and indeed all of politics, in the natural rights of individuals, Grotius captured the emerging spirit of the times. Like Jacob van Heemskerck, he was a man of a new age. Grotius wrote during the transition between the medieval world and the Enlightenment, in which humanity’s self-conception underwent a fundamental change. The neatly ordered, hierarchical view of the ancient cosmos had begun to fray, and a different conception of the world, one more materialistic and individualistic, was forming to replace it.127
In this newer conception, the cosmos cleaves into two spheres—the physical and the moral. The physical realm is a desacralized space, devoid of spirit, where particles bounce around in a void obeying the mindless, mechanical laws of physics. The moral realm remains hierarchical as before, but the order of precedence is inverted, with the individual emerging as the most significant moral being. Regardless of birth, all men have the natural right to determine the course of their lives, to acquire property, to enter agreements, and to protect these rights through the use of force. Top-down authority is legitimate only when authorized from the bottom up. On this understanding of politics, which philosophers eventually called “liberalism,” sovereigns rule by grace of their subjects, rather than the other way around.
God exists in this bifurcated universe, having created matter and the laws of physics, but His status has been diminished. The physical world is a clockwork cosmos operating for all eternity without the need of divine intervention. And though God created man, He created man with Reason, a faculty that itself bestows sovereignty. As Grotius claimed in his infamous “etiamsi daremus” passage, human beings would still have moral rights “even if we should concede [etiamsi daremus] that which cannot be conceded without the utmost wickedness: that there is no God, or that the
affairs of men are of no concern to Him.”128
God was irrelevant for morality or politics, for man was sovereign by virtue of his rational will and capable of constructing his political world through the exercise of that will, through his consent to the social contract.
The emergence of the Old World Order, therefore, was not merely a change that merchants could benefit from—it was a change they could believe in. In the new liberal conception of politics, God and the aristocracy had been demoted and the individual elevated in their place. All of humanity had achieved noble, even divine, status, for the right to war ultimately derived from human will.
When Jacob van Heemskerck attacked the Santa Catarina off the coast of Singapore in 1603, he drew Hugo the Great into his legendary career as an international lawyer. It was Grotius who showed his employer, and every state in the world, how they could do business across the globe in the absence of a universal sovereign who could police the system. They did not need a world government to enforce their rights—all they needed was war.