Commentary on the Law of Prize and Booty

Introduction

xiii introduction 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 cargo were auctioned in Amsterdam in the autumn of 1604, the gross proceeds amounted to more than three million Dutch guilders— approximately three hundred thousand pounds sterling. Piracy was nothing new in Asian waters, of course. For centuries it had been the occupation of choice of the inhabitants of the Riau Archipelago , south of the Strait of Singapore. Nor was Van Heemskerck the first European interloper to seize a carrack in the Portuguese East Indies. The English captain Sir James Lancaster had taken a richly laden carrack in the Strait of Malacca in October 1602, for example. Yet Lancaster had possessed a privateering commission from the Lord High Admiral of England. Van Heemskerck, on the other hand, lacked any such authorization to prey on the Portuguese merchant marine. His voyage to the East Indies was supposed to be a peaceful trading venture. The directors of the United Amsterdam Company had explicitly prohibited the use of force, except in cases of self-defense or for the reparation of any damages sustained. None of this seemed applicable to Van Heemskerck ’s premeditated seizure of the Santa Catarina. Even if the Dutch Admiralty Board had authorized him to attack Portuguese shipping,the validity of such a privateering commission wouldhavebeenhighlyquestionable in international law. The northern Netherlands were in a state of rebellion against their rightful overlord, the king of Spain and Portugal , and achieved de jure independence only in 1648. It was up to a young and ambitious Dutch lawyer, Hugo Grotius (1583–1645), to sort xiv introduction out these problems in his first major work on natural law and natural rights theory, De Jure Praedae Commentarius (Commentary on the Law of Prize and Booty). Grotius did not produce any significant legal scholarship prior to the writing of De Jure Praedae. He had been trained in the liberal arts at the University of Leiden, where he was tutored in classical rhetoric, philology , and philosophy by the likes of Joseph Justus Scaliger, the greatest Protestant intellectual of his generation. Born into a patrician family in the town of Delft, Grotius could not pursue the studia humanitatis to the exclusion of more practical considerations. He obtained a doctorate in civil and canon law from the University of Orléans in 1598, which served as a stepping-stone to a brilliant political career in his country of birth. At the instigation of Johan van Oldenbarnevelt, the political leader of the Dutch Republic, Grotius was appointed public prosecutor of the province of Holland in 1607 and Pensionaryof Rotterdam(“legal officer”) in 1613. In the latter capacity, he became a member of the provincial government, the Estates of Holland, and, in 1617, of the Estates General, the federal government of the Dutch Republic. However, a coup d’état by Maurice of Nassau, the Dutch Stadtholder (“governor”) and army leader, cut short Grotius’s meteoric rise in Dutch politics. He was put on trial for sedition in 1619 and banned to the castle of Loevestein . Two years of reflection and study at Loevestein turned Grotius into the finest legal scholar of his age. After escaping to Paris in a book trunk, he published major works like De Jure Belli ac Pacis (On the Law of War and Peace) in 1625 and Inleidinghe tot de Hollandsche Rechtsgeleerdheid (Introduction to Dutch Jurisprudence) in 1631. He died in the German port of Rostock at the age of sixty-two, an embittered exile and, like so many of his countrymen, the hapless victim of a shipwreck. Grotius was still a relatively unknown solicitor in The Hague when his friend Jan ten Grootenhuys asked him in September 1604 to write an apology for the United Dutch East India Company, or VOC (Verenigde Oostindische Compagnie). The Holland and Zeeland overseas trading companies, including the United Amsterdam Company, had merged in March 1602 to form the VOC, which enjoyed a governmentsanctioned monopolyof DutchtradewiththeEastIndies.JantenGroo- introduction xv tenhuys was the younger brother of VOC director Arent ten Grootenhuys and the liaison between Grotius and the Amsterdam merchants. Judging by Grootenhuys’s correspondence, a bulky volume like De Jure Praedae was not what the merchants had in mind when...