Grotius, the Portuguese and Free Trade in the East Indies (review)

This book is a substantial contribution to the field of Grotian studies, which investigates the origins of the work of work of Hugo Grotius [Huig de Groot], born to a patrician family in Delft in the newly-created Dutch Republic in 1583, and later seen as one of the fathers of modern international law, in particular in respect of the concept of natural rights and the freedom of the sea. But it contributes to another field as well, one likely to be of special interest to readers of this Journal. That is the study of European expansion, including that of the Portuguese and the Dutch in Asia, especially Southeast Asia, in the 16th and 17th centuries and beyond. In particular it focuses on the Dutch East India Company [VOC]’s contractual relationship with the ‘petty princes’ of the archipelago, on which Netherlands India was to be built.

The main contribution of the book, so far as Grotian studies are concerned, is an investigation of the sources that Grotius used in preparing the work of which his famous work Mare Liberum was a part and in playing a role at the conferences between the English and the Dutch in 1613–15. The main thrust of Borschberg’s analysis of the context and impact of his work does not greatly differ from that of Martine van Ittersum’s Profit and Principle: Hugo Grotius, Natural Rights and the Rise of Dutch Power in the East Indies (Leiden, Boston: Brill, 2006). Grotius provided both a rationale for the Dutch challenge to the Portuguese Estado da India, and also, to the frustration of the English, a rationale for exclusive contracts between local rulers and the Dutch. Mare Liberum thus has a long history in international law and politics scarcely in keeping with its origins and original purpose.

The argument it advanced, taken up in the conferences, had another history, useful to the VOC, which indeed adopted policies in effect at odds with the principle which Mare Liberum appeared to advocate. The clue, as both van Ittersum and Borschberg point out, is the contract or treaty with local rulers. Grotius’ argument was essentially one for access to the local rulers. Once contracts with them had been made, they had to respect them, and, if need be, they had to be enforced. Grotius was introducing a principle alien to Southeast Asian statecraft, as Borschberg remarks so effectively, and ultimately, paradoxically enough, depriving the rulers of the effective sovereignty on which the conclusion of the contracts had originally been based. In this respect, as well as in his investigation of Grotius’ use of his sources, Borschberg’s insights are particularly cogent and particularly exciting.

Having worked for more than two decades on the dispersed materials for the study of Grotius, and overcome the obstacles to reading his manuscripts, Borschberg also sets himself the task of finding the sources for the concepts he developed. Neither Fruin’s belief that he worked in the archives nor Alexandrowicz’s assumption that he studied ‘Asian maritime custom’ turn out to be true [p. 109]. Grotius relied—one might say to an ironic extent, given that his Republic was in revolt against Spain—on the arguments developed in the theology school at Salamanca when faced with the novelty of the conquistadores’ conquests in Mexico and Peru. He put particular emphasis on Vitoria’s concept of ius communicationis, the right of unimpeded communication [p. 85]. That was in fact more important than freedom of the seas.

The book includes four main chapters. The first gives a biography of Grotius during the period, more or less terminating with his arrest and incarceration in 1618 and so before he composed his famous De Iure Belli and forged contacts with Oxenstierna and the Swedish monarchy. The second chapter, ‘Grotius, Johor and Trade in the East Indies’, includes a discussion of the seizure of the Portuguese carrack Santa Catarina in 1603, Grotius’ defence of...