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Commentary on the Law of Prize and Booty

Hugo Grotius

Publication Year: 2012

The history of Commentary on the Law of Prize and Booty is complex. When Grotius’s personal papers were auctioned in The Hague in 1864, scholars discovered that Mare Liberum was just one chapter in a manuscript of 163 folios, written in justification of the capture of the Portuguese merchantman Santa Catarina in the Strait of Singapore in February 1603. Robert Fruin persuaded the scholar H. G. Hamaker to transcribe and publish it in 1868.Knud Haakonssen, the General Editor of the Natural Law and Enlightenment Classics series, states, “Grotius’s work on the right of prize and booty is unusual. It has been argued in some of the most prominent recent scholarship that the work, while never published by Grotius himself, was the intellectual resource for much of his most important work. One chapter of the manuscript was used for his famous work on the free sea, Mare Liberum, and many of the most important features of his greatest work, De Jure Belli ac Pacis (The Rights of War and Peace), are either derived from, or revised versions of, the earlier writing.”The Liberty Fund edition is based on the one prepared by Gwladys L. Williams and Walter H. Zeydel for the Carnegie Endowment for International Peace. It combines the original text and new material.Martine Julia van Ittersum is a Lecturer in History at the University of Dundee.Knud Haakonssen is Professor of Intellectual History and Director of the Centre for Intellectual History at the University of Sussex, England.

Published by: Liberty Fund

Title Page, Copyright

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Table of Contents

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Introduction

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pp. xiii-xxi

In the early morning hours of February 25, 1603, the Dutch captain Jacob van Heemskerck attacked the Portuguese merchantman Santa Catarina in the Strait of Singapore and obtained its peaceful surrender by nightfall. His prize was a rich one indeed. When the carrack and its...

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Note on the Text

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pp. xxiii-xxvii

Upon Hugo Grotius’s death in 1645, the manuscript of De Jure Praedae remained in the possession of his descendants, the Cornet de Groot family, for over two centuries. In fact, legal scholars did not know of its existence until the Dutch bookseller and printer Martinus Nijhoff...

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Acknowledgments

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pp. xxix-

I would like to thank Knud Haakonssen for his invitation to contribute this volume to the series Natural Law and Enlightenment Classics and for his invaluable advice and support at every stage of the editorial process. David Armitage encouraged me to make my doctoral research on...

Commentary on the Law of Prize and Booty

Table of Contents

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pp. 3-8

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Chapter I

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pp. 9-18

A situation has arisen that is truly novel, and scarcely credible to foreign observers, namely: that those men who have been so long at war with the Spaniards and who have furthermore suffered the most grievous personal injuries, are debating as to whether or not, in a just war and with...

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Chapter II

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pp. 19-50

Where should we begin, if not at the very beginning? Accordingly, let us give first place and pre-eminent authority to the following rule: What God has shown to be His Will, that is law. This axiom points directly [5′] to the cause of law, and is rightly laid down as a primary principle...

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Chapter III

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pp. 51-67

To be sure, no one has ever succeeded in representing this as a doubtful issue without also rejecting a large part of Holy Writ, together with the supreme benefactions conferred by the Divine and Eternal Spirit, that is to say, civil order and the lawful authority of magistrates. In earlier...

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Chapter IV

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pp. 68-88

For, when a particular thing is just in so far as it tends toward the attainment of a given end, that end itself is just in a much higher degree. But war 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...

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Chapter V

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pp. 89-91

Granting, then, that there are certain cases in which the seizure of prize or booty should be characterized as just, we have still to ascertain what cases come under that head. This problem does not call for prolonged consideration, since the foregoing discussion clearly shows that...

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Chapter VI

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pp. 92-100

In the natural order, as we have already pointed out, every individual is charged with the execution of his own rights. For we have been compounded of mind and body with precisely this purpose in view, namely, that the body may be the servant of the mind. This very point...

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Chapter VII

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pp. 101-126

In this connexion, however, it should be noted that, although two types of belligerents have been mentioned above—the one type, voluntary, and the other (to which we applied the term “subjects”), instrumental, so to speak—the concept of “right” is not to be interpreted...

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Chapter VIII

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pp. 127-181

The forms and modes of warfare, too, must be considered in one light with reference to voluntary agents, and in a different light with reference to subjects. Furthermore, just as in most matters there is one form for an inchoate stage, and another form for a permanent condition, even so...

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Chapter IX

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pp. 182-189

War is waged by the virtuous in order that justice may be enjoyed; and justice, as Polus Lucanusa so admirably explains, is the very same quality that is called “peace” with reference to the community, whereas with reference to subjects in their relation to rulers it is called...

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Chapter X

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pp. 190-242

There still remains one controversial point that is pertinent to our inquiry, namely: Who should become the owner of property seized in war? In considering this question, too, we shall adopt the natural order of discussion, dealing first with private wars and afterwards with...

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Chapter XI

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pp. 243-299

Now that we have set forth in general terms the principles of law involved, let us turn our attention to the facts of the particular case under discussion in order to facilitate consideration of the following questions: Are these facts in conformity with the said legal principles? And, are all...

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Chapter XII

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pp. 300-390

For if the seizure of the carack is carefully considered in the light of the doctrines above set forth concerning justice in relation to war and to spoils, we shall find that there is absolutely no respect in which the said seizure fails to accord perfectly with those doctrines...

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Chapter XIII

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pp. 391-436

Although, in the sense already indicated, this conflict could have been waged as a private war, and a just one, too, it is nevertheless more accurate to say that in actual fact it is a public war and that the prize in question was acquired in accordance with public law, the author of the conflict...

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Chapter XIV

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pp. 437-461

In so far as the question of justice is concerned, I believe that we have satisfied those readers who seek the truth. For we have furnished abundant proof of the fact that the despoliation of the Portuguese because of the injuries inflicted by them, and the delivery of the captured...

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Chapter XV

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pp. 462-497

Turning to the next and final phase of our discussion, let us consider the matter from the standpoint of benefit. Undoubtedly our inquiries on this subject will seem superfluous to many persons who measure benefit in terms of material gain and who will therefore assume that no one...

Appendix A. Table of Rules and Laws Compiled from Chapter II of the Commentary

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pp. 499-500

Appendixes to the Liberty Fund Edition

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pp. 501-556

Bibliography for Introduction and Notes

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pp. 557-560

Suggestions for Further Reading

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pp. 561-

Indexes

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pp. 563-632

Publication Information

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pp. 634-


E-ISBN-13: 9781614878032
E-ISBN-10: 161487803X
Print-ISBN-13: 9780865974753

Page Count: 660
Publication Year: 2012

Edition: None

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Subject Headings

  • Prize law.
  • Booty (International law).
  • War, Maritime (International law).
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