•‘hugo grotius in context: van heemskerck’s capture of the santa catarina and its...

Hugo Grotius in Context: VanHeemskerck’s Capture of the SantaCatarina and its JustiWcation in DeJure Praedae (1604–1606)

Martine Julia van IttersumDepartment of HistoryHarvard University

This article reconstructs Jacob van Heemskerck’s second voyage to the East Indies andhis capture of the Portuguese merchantman Santa Catarina on 25 February 1603. Itincorporates important new archival evidence like Van Heemskerck’s letter to the directorsof the Dutch East India Company of 27 August 1603, and the original text of the ver-dict of the Amsterdam Admiralty Court, which con�scated the Santa Catarina on 4September 1604. It has long been known that the Dutch jurist Hugo Grotius (1583–1645)wrote De Jure Praedae in defense of the ship’s seizure and at the explicit request ofthe directors of the Dutch East India Company. Historians have failed to recognise, how-ever, that Grotius’ conceptualisation of natural rights and natural law in De Jure Praedaeis based to a large extent on Van Heemskerck’s own justi�cation of privateering. A keynotion of Grotius’ rights theories — the individual’s right to punish transgressors of thenatural law in the absence of an independent and eVective judge — follows logically fromVan Heemskerck’s reasoned decision to assault the Santa Catarina in revenge forPortuguese mistreatment of Dutch merchants in the East Indies. As shown by recent workin international relations theory — notably Edward Keene’s Beyond the AnarchicalSociety: Grotius, Colonialism and Order in World Politics (Keene, 2002) —the natural law and natural rights theories that Grotius formulated in De Jure Praedaecannot be divorced from Dutch imperialism and colonialism in the early modern period.

Introduction

In the early morning hours of 25 February 1603, the Dutch Admiral Jacobvan Heemskerck (1567–1607) attacked a richly laden Portuguese carrackat the entrance of Singapore Straits. Van Heemskerck’s seizure of the SantaCatarina has been a famous episode in Dutch history ever since. The com-parison that comes to mind is the Earl of Cumberland’s capture of theMadre de Dios, worth £500,000, the richest prize in the annals of Elizabethanprivateering. The cargo of the Santa Catarina was certainly as valuable asthat of the Madre de Dios. It yielded over three million Dutch guilders —approximately £300,000 — in gross proceeds for the directors of the UnitedAmsterdam Company, a precursor of the United Dutch East India Companyor VOC.

A.J.S.S. 31:3 (511–548) also available online© 2003 Koninklijke Brill NV, Leiden see www.brill.nl

512 · Martine Julia van Ittersum

The Santa Catarina has another claim to fame as well. When the papersof the Dutch jurist Hugo Grotius (1583–1645) were auctioned in TheHague in 1864, it was discovered that the pamphlet Mare Liberum (On theFreedom of the High Seas) was in fact just one chapter of a much largermanuscript, written to defend the carrack’s capture. The manuscript, whichis 163 folios long, has a somewhat lopsided organisation. The � rst half ofthe manuscript contains an introduction or Prolegomena, followed by tenchapters of legal principles, the so-called Dogmatica de Jure Praedae. The sec-ond half consists of a historical narrative in Chapter 11, and a Ciceronian-style closing argument that covers Chapters 12 through 15, which presentsVOC privateering as just, honourable and bene� cial. The two chapters onjustice, along with the historical narrative, are important to this paper. Aswe shall see below, Grotius legitimised Dutch privateering in the East Indieswith the age-old concept of the just war, which he applied to individualsin Chapter 12 (Mare Liberum!) and sovereign rulers in Chapter 13.

The manuscript was acquired by Grotius’ alma mater, the Universityof Leiden, where it caught the attention of Robert Fruin, the greatestDutch historian of the 19th century. Fruin persuaded H.G. Hamaker totranscribe and publish the manuscript, which appeared in print in 1868as De Jure Praedae (On the Law of Prize and Booty). Fruin himself dis-cussed its historical background in a lengthy article in De Gids in 1868.Fruin’s article still remains the best introduction to the subject. It describesVan Heemskerck’s voyage to the East Indies, gives other examples of Dutchprivateering, and analyses the political problems faced by the VOC as aresult of Van Heemskerck’s exploits. In his account, Fruin cites an impres-sive array of mostly archival sources, including Van Heemskerck’s corre-spondence, and Discours ende Advertentie, a summary of letters from the EastIndies that had reached the Amsterdam VOC directors in March 1604.It was on the basis of these sources that Fruin carefully reconstructed thecapture of the Santa Catarina (Hamaker, 1868; Fruin, 1901a:367–445; DeJonge, II:510–16; Tiele, 1883:243–58).

Fruin’s wonderful synthesis has not inspired any comparable histori-cal studies in the 20th century. This certainly was not for lack of newsource materials! The � rst volume of the Grotius Correspondence (Briefwisselingvan Hugo Grotius) was printed in 1928. Several letters revealed that De JurePraedae had been written at the explicit request of the Amsterdam VOCdirectors between October 1604 and November 1606. Another importantsource edition was published in 1965, the so-called “book treating of thecruel, treasonous and hostile procedures of the Portuguese in the EastIndies” (Boeck tracterende vande wreede, verradische ende hostile proceduren der Portugusenin Oostindien). The manuscript contains 15 notarised attestations of Dutchmerchants and mariners. It had been put together by the Amsterdam VOCdirectors and sent to Grotius on 15 October 1604. The attestations form

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the basis of Chapter 11 of De Jure Praedae, which narrates the early Dutchvoyages to the East Indies in the period 1595–1602 (Briefwisseling, 1928:44,72; Coolhaas, 1965:415–40).

Unfortunately, these source editions have not resulted in any new his-torical studies of Van Heemskerck’s voyage to the East Indies or its con-ceptualisation in De Jure Praedae. Few scholars take seriously the author’sown introduction to De Jure Praedae. It explicitly denounces the “Spanishand Portuguese blockaders of the sea,” intent upon destroying “all com-merce with Asia,” and justi� es Dutch attacks on Iberian merchantmen asa much-needed enforcement of freedom of trade and navigation. Since theseizure of the Santa Catarina was “the most widely celebrated,” Grotiusdecided to treat it as “the episode representative of all such captures.”Although Grotius’ statement of purpose could not have been clearer, it hasfallen on deaf ears among many students of De Jure Praedae. The manu-script’s historical context is considered a mere stepping stone for the farmore important task of studying the intellectual pedigree of Grotius’ nat-ural law and natural rights theories (Commentary on the Law of Prize and Booty I:1, 5; Tuck, 1993:170; 1999:79).

The present article seeks to correct this imbalance in Grotius schol-arship with a detailed reconstruction of Van Heemskerck’s voyage to theEast Indies (1601–1604) and a careful analysis of its conceptualisation inDe Jure Praedae. A mixture of published sources and hitherto unknownarchival materials allow me to reconstruct Van Heemskerck’s voyage ingreat detail. Particularly important are the newly discovered minutes of thecouncil of naval oYcers (Brede Raad ) of 4 December 1602 and VanHeemskerck’s letter to the directors of the United Amsterdam Companyof 27 August 1603. These sources do not just complete our picture of theharrowing events that preceded and followed the carrack’s capture, butalso provide us with Van Heemskerck’s own justi� cation for privateering,along with his fascinating blueprint for Dutch trade and colonisation inthe East Indies. A reconstruction of Van Heemskerck’s voyage on the basisof new source materials has important implications for our understand-ing of De Jure Praedae. As we shall see below, Van Heemskerck’s ownjusti� cation of the ship’s seizure laid the groundwork for the verdict of theAmsterdam Admiralty Court of 9 September 1604, and, indirectly, forGrotius’ argument in De Jure Praedae. The Grotian notion of right — pri-vate individuals may punish transgressors of the natural law in the absenceof an independent and eVective judge — is already present in the minutesof Van Heemskerck’s meeting with his naval oYcers on 4 December 1602(Dutch National Archives, SG 12551.21, unfoliated).

Although De Jure Praedae cannot be called a legal brief in the techni-cal sense of the word — it is half theory, half apology, the manuscriptdoes exemplify the classical principles of forensic rhetoric as formulated by


Cicero and Quintilian. Its representation of events always serves to justifyDutch trade and privateering in the East Indies. For example, the lettersexchanged between Van Heemskerck and the capitão-mór (governor) ofMalacca are cited only in so far as they support Grotius’ argument. Yetsome passages in the correspondence suggest that the Portuguese admin-istration in Asia did not leave Van Heemskerck without legal recourse forhis manifold grievances. Grotius’ defence of the carrack’s capture restedon the assumption that, for lack of an independent and eVective judge,Van Heemskerck had been forced to punish the tyrannical Portuguese him-self, as mandated by natural law. Yet try as he would, Grotius did notsucceed in bringing all historical facts into line with his legal theory. Forinstance, it would have come as a surprise to both Van Heemskerck andthe Sultan of Johore to learn that the Santa Catarina was the Sultan’s bynatural right, as Grotius claimed in De Jure Praedae. As we shall see below,the Sultan of Johore never staked a claim to the Santa Catarina at all.Instead, he was content to be rewarded by Van Heemskerck for his sup-port of the Dutch. Clearly, it is only through a careful reconstruction ofevents that we can gain a new perspective on the context and argumentof De Jure Praedae.

The Story

The capture of the richly laden Santa Catarina was literally a godsend forVan Heemskerck, whose voyage to the East Indies had been dogged bybad luck right from the start. A month after his departure from Hollandin April 1601, he found himself oV the Canaries on a pitch-dark nightand, worse, in the midst of an armada of 12 Spanish galleons. The ensu-ing battle killed several of Van Heemskerck’s crew. His � agship Amsterdamand yacht Red Lion did not emerge unscathed either. Badly damaged, thelatter vessel was forced to return to Holland. Another untoward conse-quence was the Vice-Admiral’s separation from Van Heemskerck’s � eet.The Black Lion, commanded by Jean Grenier, continued its eastward jour-ney all alone. Ironically, it was the only ship to reach the � eet’s projecteddestination, the port of Aceh on the northern tip of the island of Sumatra.Adverse winds prevented Van Heemskerck from making landfall there withhis six remaining vessels. Instead, the Javanese port of Bantam, situatedjust east of Sunda Straits, became his � rst port of call on 22 February1602 (Terpstra, 1938:444–45).

Unfortunately, the prospects for trade at Bantam were far from rosy.The sight of six Dutch merchantmen lying at anchor in the roadstead wassuYcient to throw the spice markets into turmoil and cause rapid pricein� ation. Van Heemskerck quickly realised that the spice markets wouldremain volatile unless he continued eastward with his � eet, or at least gavethe impression of doing so. The departure of four of his ships did indeed


result in lower pepper prices at Bantam. The merchants stationed at theDutch factory there lost no time purchasing spices and drogues of the � nestquality for the two ships that Van Heemskerck had left behind, the Amsterdamand Hoorn, and for the yachts Enkhuisen and Green Lion, which the Admiralsent back to Bantam in mid-April. There was even suYcient pepper instock to freight the Black Lion, which had arrived from Aceh half-empty.All � ve vessels set sail for Holland on 11 May 1602, “richly laden withspices and other commodities of great value” (Terpstra, 1938:446; De JongeII:508–9).

Meanwhile, Van Heemskerck had run into serious diYculties on hiseastward journey along Java’s north coast, which he undertook with justtwo ships, the Alkmaar and White Lion. His attempt to trade at the Javaneseport of Japara ended in complete disaster: those members of his crew whohappened to be ashore on 18 April 1602 were all arrested on the ordersof Japara’s overlord, the ruler of Demak. Van Heemskerck did everythingin his power to free the sailors — he � rst oVered ransom and then block-aded Japara harbour, yet with precious little eVect. The ruler of Demakreleased some of the prisoners, but not all, retaining 12 men to serve asgunners in the wars against his archenemy, the Mataram of Java, whoheld sway over the island’s interior. With a heavy heart, Van Heemskerckset course for the port of Grissee on the eastern tip of Java, where heestablished a Dutch trading post. Since it was “now too late [in the sea-son] for [visiting] the Moluccas,” Van Heemskerck tried to cross over tothe island of Bali instead. He returned to Grissee a week later, beatenback by adverse tides. Undaunted, he immediately put out to sea again ina second attempt to reach Bali and strenuously battled the monsoon windsfor another fortnight, but in vain. He returned to Grissee for the secondtime at the end of June 1602 (De Jonge II:510–14; Coolhaas, 1965:524–25).

Van Heemskerck’s recurrence was preceded by the arrival of a Por-tuguese frigate, a supply ship belonging to the armada of André Furtadode Mendoza. The valiant �dalgo had received instructions from the Viceroyat Goa to oust the Dutch from Southeast Asia, which induced him tobesiege Bantam in December 1601 and ransack the Spice Islands the fol-lowing summer. His intimidation tactics, however, failed to impress thecaptain of the Alckmaer. Jan Pauwels obtained permission from the gover-nor of Grissee to capture the frigate and con� scate its cargo, which wasa fait accompli even before Van Heemskerck’s return on 25 June. Letterswere discovered aboard the frigate detailing the execution of 17 Dutchsailors at the Portuguese stronghold of Macao in Southern China the pre-vious November. Lured ashore by white � ags of truce, the mariners had� rst been incarcerated and then hanged in a Portuguese prison at Macao,contrary to the express wishes of the Chinese authorities. Van Heemskerckguessed, quite rightly, that the victims had belonged to the crew of AdmiralJacob van Neck, who had left Holland with seven ships in June 1600. Van


Heemskerck � ew into a white-hot rage over the judicial murder at Macaoand shared his anger with the directors of the United Amsterdam Company.He wrote on 13 July 1602 that:

[i]f it were not for our captives at Demak and the personnel which I intendto leave at Grissee, I would immediately have hanged those [Portuguese prisoners], who are still aboard our ships, and suspended them from thebowsprit, in full sight of the Portuguese who are [resident] ashore (De JongeII:516–17).

In the same letter, Van Heemskerck expressed the hope that “God wouldsend some Holland ships to intercept the armada.” He warned the direc-tors that Ambon was already at the mercy of Furtado de Mendoza andthat the Moluccas and Banda Islands would soon follow suit. “All of thiscould have been prevented, with relatively little eVort, by the � ve Dutchships that arrived in the East Indies in good time, had they been equippedin such a fashion as some would have liked.” The directors should quicklyprepare a contingency plan, preferably in conjunction with the EstatesGeneral, “lest we loose the best spice producing regions.” Van Heemskerckintended to do his bit as well. “Since we lack Dutch warships to keep theenemy in check, we have to do it all ourselves.” When the governor ofGrissee informed him that three Portuguese vessels had been sighted atTuban, Van Heemskerck immediately set course for the Javanese port,“hoping to � nd a way to revenge the calamity that befell our men atMacao” (De Jonge, II:516–17).

To his delight, Van Heemskerck discovered at Tuban that “clove car-goes had become nutmeg loads, and that enemies had changed into friends.”The three ‘Portuguese’ vessels were in fact the yacht Dove and merchant-men Gelderland and Utrecht, which had returned from the Banda Islandsunder the command of Wolphert Harmenszoon. It was in conversationwith the latter that Van Heemskerck realised the seriousness of the situa-tion in the Spice Islands. If warships were not sent forthwith to defeat thePortuguese armada, “we might well loose these places.” Van Heemskerckburnt with a desire to go to the Spice Islands “in the hope of doing thosecountries and ourselves some service, should the opportunity arise.” Herealised that it was easier said than done, however. Neither the directors’instructions nor the commission of Prince Maurice, Lord High Admiral ofHolland, authorised him to engage in oVensive warfare. More importantly,he failed to persuade the crew of the Gelderland and Utrecht to volunteerfor the risky expedition. The Dutch commanders went their separate ways:one proceeded to Bantam, while the other returned to Grissee (De Jonge,II:517).

Van Heemskerck went back to Grissee for a reason. He was hopefulof trade with the Javanese junks that brought back cloves, nutmeg and


mace from the Spice Islands. In addition, he made another attempt to freethe Dutch prisoners at Demak, this time through the mediation of the“King of Jortan.” His optimistic scenario failed to materialise, however.The 30 junks that arrived from the Moluccas and Banda Islands werecompletely empty as a result of the scorched earth tactics of André Furtadode Mendoza. Nor could the ruler of Demak be persuaded to release hisDutch prisoners. Van Heemskerck had very little to show for a � ve-monthjourney along Java’s northern coast. He was painfully aware of the factthat both the Alckmaer and White Lion were still without return cargoes andthat Dutch trade in the East Indies seemed about to collapse under thePortuguese onslaught, without him being able to prevent it. In this knowl-edge, he set sail for the Malay Peninsula on 27 July 1602 (De Jonge,II:518–23).

New setbacks awaited him at Patani, the pepper emporium on theeast coast of the Malay Peninsula. Van Heemskerck had sailed to Patanion the assumption that he would � nd only two Dutch ships there, theAmsterdam and Gouda commanded by Jacob van Neck. Yet Gerard le Roy,captain of the Zeeland ships Middelburg and Sun, had been too quick forhim. Le Roy had reached the Malayan port three months before VanHeemskerck, and made arrangements with Van Neck for the joint pur-chase of return cargoes, which exhausted the town’s pepper stocks. VanHeemskerck could not conceal his disappointment in a letter written to thedirectors of the United Amsterdam Company on 23 August 1602. He com-plained that he had once again “laid his hand in an empty place,” whichpresented him with a stark choice. It might be worthwhile to wait for thenew pepper harvest in ten months’ time, provided prices remained stableat Patani, and no other Dutch merchants called there. Even then, VanHeemskerck could hardly expect to obtain large quantities of pepper. Havingleft the � eet’s bullion behind in Bantam, he did not have suYcient mer-chandise aboard the Alckmaer and White Lion to engage in substantial barter(De Jonge, II:523).

Despite these diYculties, Van Heemskerck was still at Patani on 7November 1602, when he sent a letter to Adriaen Schaack, head of theDutch factory at Grissee. Following Van Neck and Le Roy’s departure forBantam on 22 August, he had managed to purchase a small quantity ofpepper and, more importantly, a large variety of textiles, which were inhigh demand in the Spice Islands. Indeed, he was busy loading rice forthe Banda Islands and fully intended to leave Patani within � ve or sixdays. Yet he despaired at ever vending the Dutch commodities aboard hisships, worth approximately 20,000 Dutch guilders. He therefore decidedto entrust his trade goods to Daniel van der Leck, who was in charge ofthe Dutch factory at Patani. Van Neck had already provided the tradingpost with leftover merchandise from the fourth voyage. Indeed, the portboasted a brand new “Holland House”, 60 feet long and 24 feet wide,


constructed by Van Heemskerck himself. In the letter to Schaeck, he empha-sised that he had been well received at Patani and that he had enjoyed“very great friendship” with both the magistrates and people (De Jonge,II:525–26; Tiele, 1883:244).

Like so many Asian ports, Patani did have a Portuguese quarter, how-ever. Van Heemskerck and his men considered its inhabitants a � fth col-umn in the pay of Malacca. Captain Pauwels was convinced that they hadput a price on the head of every Dutchman at the time of Van Neck’sarrival in the port. According to Van Heemskerck, they had oVered pre-sents to the Queen of Patani out of a desire to see the Holland Housedemolished, and had explicitly warned her not to grant the Dutch “anysuch privilege,” hinting darkly at “the problems that might arise as a result.”Much to Van Heemskerck’s relief, the Portuguese merchants got nowherewith their scare tactics. They had certainly failed to impress the Dutchsailors swaggering about town. According to Pauwels, “they had to earntheir right of way by giving our men some coins as drink-money.” It wasonly at the Queen’s personal request that Van Heemskerck could persuadehis crew “no longer to harass them in this manner.” It must have beenan uneasy peace to keep for the Queen of Patani (De Jonge, II:526–27;Tiele, 1883:244–45)!

Van Heemskerck set out to sea on 16 November 1602 and cast anchoroV Pulau Tiuman, a small island east of the Malay Peninsula, two weekslater. He had decided to postpone his voyage to the Banda Islands, and,meanwhile, to lie in wait for Portuguese carracks plying between Macaoand Malacca. The change of plan was a direct result of his meeting withRaja Bongsu, younger brother of the “King of Johore,” Ala"ud-din Ri"ayatShah III, who ruled the southern half of the Malaysian Peninsula until hisdeath in 1613. Raja Bongsu had celebrated his wedding at Patani at thebeginning of November and visited Van Heemskerck aboard the WhiteLion. He had oVered Van Heemskerck the friendship of the Sultan ofJohore and urged him to intercept Portuguese carracks en route from Macao,pledging Johore’s assistance. The Queen’s treasurer and the port masterof Patani had chimed in as well. They had given Van Heemskerck valu-able information about the carracks’ itinerary and assured him that “hecould never damage the Portuguese enough,” but drawn the line at attack-ing Portuguese vessels anchored in Patani harbour. The Queen let it beknown that she might be persuaded to break oV all relations with Malaccaand assist the Dutch in besieging it, provided the Dutch undertook to sup-ply her subjects with textiles from India’s Coromandel Coast, a trade thencontrolled by Portuguese merchants. All this was music to the ears of VanHeemskerck, who could be forgiven for concluding that indigenous rulersentertained a Dutch-style notion of the freedom of the high seas (Tiele,1883:244–45; Coolhaas, 1965:526–27; Dutch National Archives, SG 12551.21,unfoliated).


There was another reason why Van Heemskerck gave serious con-sideration to Raja Bongu’s proposal. He had been in correspondence withthe Sultan of Johore even before Raja Bongsu visited Patani and keenlyappreciated the ruler’s anti-Portuguese stance. We may recall that VanHeemskerck had blockaded Japara harbour in April 1602 in a fruitlessattempt to free the sailors who had been imprisoned by the ruler of Demak.One victim of the naval blockade was a richly laden junk from Johore.After seizing its precious cargo, Van Heemskerck had presented the rulerof Demak with the empty vessel and its captain. Yet he had promised toreturn the con� scated goods or reimburse the captain in gold coin if thelatter obtained the release of the Dutch captives. When the ruler of Demakrejected the captain’s oVer of mediation, Van Heemskerck had proceededto Grissee, where, as luck would have it, another Johorese merchantmanwas lying at anchor, ready to depart for the Sultanate. Van Heemskerckhad immediately freed two of the junk’s crew members, bought them pas-sage to Johore and provided them with a letter and presents for their sov-ereign. The Sultan was entreated not to hold against Van Heemskerck“the injuries suVered by his subjects as a result of the junk’s seizure,” andreceived assurances of the Admiral’s willingness to oVer compensation. Thisexplanation had clearly been suYcient to satisfy the Johorese ruler. Whenhe learnt of Van Heemskerck’s arrival in Patani, he had sent two replies,both to the eVect that:

I had done well, saying that he had never heard of Hollanders who harmedtheir friends, and that it was laudable to revenge oneself for any injuries sus-tained. If he, or any of his subjects, had been adversely aVected in theprocess, this would serve as their consolation. He did not demand any com-pensation except for my own and the Hollanders’ friendship. In addition,he asked me kindly to call at his ports with my ships, as his harbours weremuch more convenient for loading spices than anchorage grounds elsewhere.Item that I would � nd him a man very diVerent from the kings in otherplaces where we had sought to trade (Coolhaas, 1965:526).

The Sultan’s liberal answer had been followed by Raja Bongsu’s oYcialvisit aboard the White Lion, which must have clinched matters for VanHeemskerck. For all he knew, the Banda Islands had been completely rav-aged that summer by the armada of Furtado de Mendoza. Yet the Sultanof Johore was clearly a man he could do business with, regardless ofwhether Portuguese carracks would actually materialise oV Pulau Tiuman.He had little to lose, and much to gain, by � shing in the troubled waterssurrounding the Malay Peninsula.

When Van Heemskerck reached Pulau Tiuman on 3 December 1602,he intended to stay there for 30 days in order to maximise his chances ofintercepting Portuguese merchantmen. Since it was a risky venture — a


month might pass by without a single carrack appearing on the horizon,Van Heemskerck needed the full cooperation of his naval oYcers, collec-tively known as the Broad Council (Brede Raad ). He called an oYcial meetingof the Broad Council the following day in order to discuss “the opportu-nity at hand; how we should deal with it and await God’s blessings dur-ing this month without shortchanging ourselves and our trade prospects.”At the meeting, he obtained his oYcers’ unanimous consent and writtenapproval. Lest the directors of the United Amsterdam Company objectedto 30 days of idling at sea, or a pitched naval battle endangering ships,crew and cargo, Van Heemskerck and his oYcers put their signatures toan elaborate policy document dated 4 December 1602 (Dutch NationalArchives, SG 12551.21, unfoliated).

The JustiWcation

The Broad Council agreed with Van Heemskerck that, in all likelihood,the Japan carrack would pass by the island of Pulau Tiuman within 20or 25 days, along with “the ship of the captain of Malacca” and “twosmaller vessels or junks.” Van Heemskerck had little diYculty persuadinghis men of the tactical bene� ts of intercepting these merchantmen, since“we cannot do greater harm and damage to our public enemy in all theEast Indies.” The lucrative Japan trade was indeed of prime importanceto the Habsburg kings of Spain and Portugal, who expended much of theircolonial revenues in a long, and ultimately fruitless, struggle against theirrebel subjects in the Low Countries. There was another consideration aswell. The Broad Council should do everything in its power to preserveDutch trade in the East Indies and “keep the enemy in check, lest he con-tinue with his armada as he has done before.” The Portuguese had alreadyincited indigenous rulers against Dutch merchants and sailors, put a priceon the latter’s heads, and used every expedient, however “base or god-less,” to destroy them “root and branch.” The murder of Van Neck’s crewat Macao was a case in point. The Broad Council had reason to believe,however, that the ravenous Portuguese were still not satis� ed. They clearlycontinued to target “all natives who have permitted us trade and friend-ship.” The armada that had besieged Bantam and conquered Ambon appearedto threaten Ternate and the Banda Islands as well. Furtado’s whole pur-pose was, “God forbid,” to intimidate indigenous rulers, “cowering oneking with violence, another with threats and menaces,” until they agreedto bar Dutch merchants from their markets and Dutch ships from theirharbours. The Broad Council deemed it “very necessary and advisable”to defy the enemy and show native peoples that “we do not fear Portuguesearms.” Since the enemy meant to extirpate the Dutch “with all possiblemeans,” there was no other option but to “attack and harm him wher-


ever we can or may.” Indeed, a perfect opportunity had presented itselfof “in� icting the greatest possible damage on him (God willing) with hardlyany loss of time.” The Broad Council ordered the Alckmaer and White Lionto stay near Pulau Tiuman for the month of December in order to await“whichever victory God will grant us against our public enemy” (DutchNational Archives, SG 12551.21, unfoliated).

The importance of this resolution cannot be overestimated: it laid thegroundwork for the verdict of the Dutch Admiralty Board nearly two yearslater, which, in turn, contributed to Grotius’ argument in De Jure Praedae.Although Van Heemskerck did not act in self-defence and lacked a properprivateering commission, the Broad Council declared that he could legiti-mately attack Portuguese shipping out of revenge for injuries suVered bythird parties, be they compatriots employed by another company or hisown indigenous trading partners. Grotius made the exact same point inDe Jure Praedae. The Portuguese had engaged in a systematic pattern ofbrutality against Dutchmen and native peoples alike, just to prevent themfrom exercising their natural right to trade with one another. There wasno doubt in Grotius’ mind that these Portuguese transgressions of the nat-ural law justi� ed Van Heemskerck’s decision to attack all enemy shippingin Malayan waters (Commentary on the Law of Prize and Booty I:167–317).

The resolution of the Broad Council was incorporated into the ver-dict of the Amsterdam Admiralty Board, which con� scated the Santa Catarinaand declared it good prize on 9 September 1604. The Admiralty judgesagreed with the Broad Council that Van Heemskerck had every right tosecure the East Indies trade and pre-empt the “extreme procedures” ofthe Portuguese. Yet their verdict combined this particular justi� cation witha host of others, which cited natural law and ius gentium, the Estates General’sdecree of 2 April 1599, and the commission which Van Heemskerck hadreceived from Prince Maurice prior to his departure from Holland. Nordid the Admiralty judges make much of an eVort to distinguish betweenthese diVerent justi� cations. The verdict was one big jumble, intellectuallyspeaking (Dutch National Archives, SG 12551.21, unfoliated).

The Admiralty judges emphasised in their verdict that Van Heemskerckhad never exceeded the authority granted him by Maurice of Nassau, LordHigh Admiral of Holland and a sovereign prince in his own right. VanHeemskerck’s commission permitted the use of force in self-defence and,more importantly, in order to obtain reparations for damages sustained.The judges noted that “various documents, depositions, resolutions andother strong proofs” had been exhibited by the “plaintiVs” — viz. VanHeemskerck and the VOC directors, documenting the outrages commit-ted by the Portuguese. Indeed, the � rst half of the verdict is an elaboratereconstruction of the alleged Portuguese conspiracy and contains a plethoraof highly accurate historical details, which suggests that the correspondenceof Jacob van Heemskerck and Wolphert Harmenszoon was put at the


disposal of the judges by the United Amsterdam Company. Yet the cap-ture of the Santa Catarina could be justi� ed on grounds other than the com-mission which Van Heemskerck had received from Maurice of Nassau andwhich instructed its bearer to seek reparation for damages sustained (DutchNational Archives, SG 12551.21, unfoliated).

The Admiralty judges made a point of including the text of the res-olution of the Broad Council in a summarised form. In their paraphrase,Van Heemskerck and his oYcers were said to have voted unanimously:

[n]ot only to resist the enemy (who had in� icted so much trouble, harm,disgrace and tyranny on the inhabitants of these provinces), but also to defyhim and in� ict the greatest possible damage in order to prevent these intriguesand guard against them; also in consideration of the fact that by these means,which are permitted by natural law and ius gentium, while being enjoined bythe commission of his Princely Excellency, the East Indian trade might becontinued peaceably, free of violence and without let and hindrance (DutchNational Archives, SG 12551.21, unfoliated).

There are two new elements here as compared to the original resolutionof the Broad Council. Privateering had been a measure of last resort forVan Heemskerck and his oYcers. Dire necessity compelled them to secureDutch trade in the East Indies and revenge the injuries which their com-patriots and indigenous trading partners had suVered at the hands of thePortuguese. Yet the Admiralty Board cited additional justi� cations for theuse of force, referring, once again, to Prince Maurice’s commission, whilealso appealing to natural law and ius gentium. The formula used by theAdmiralty Board was no model of consistency, of course. How could PrinceMaurice’s commission possibly justify the capture of the Santa Catarina, forexample, when Van Heemskerck had neither been attacked nor harmedby the Portuguese in any way? It was a question conveniently dodged bythe Admiralty judges. Their references to natural law were equally vagueand haphazard. They made no attempt to explain, for example, why nat-ural law should have permitted the use of force in this particular case. Norcould they be bothered to determine whether it was natural law, or someother legal principle, that mandated freedom of trade and navigation inthe East Indies. Indeed, there are only two references to the law of nationsin the entire verdict, which is over � ve folios long (Dutch National Archives,SG 12551.21, unfoliated)!

Clearly, the Admiralty judges considered ius gentium just another con-venient argument to validate the seizure of the Santa Catarina. Their sec-ond reference to the law of nations was little more than an afterthought.Ius gentium was brie� y mentioned in their conclusion, which summarisedthe various arguments that had been brought to bear on the case. Thejudges’ � rst consideration was that the carrack belonged to the subjects of


the King of Spain, “who is the enemy of the United Provinces and theirtrade, which he tries to disturb in both the East and West Indies with allpossible means.” Their second consideration was that Van Heemskerckhad acted not only according to “written law and ius gentium,” but alsoupon the edict of the Estates General of 2 April 1599, which made allIberian ships and their cargoes fair game for Dutch privateers. Most impor-tantly, Van Heemskerck had been granted a commission by Maurice ofNassau, which convinced even the capitão-mór of Malacca that “this car-rack was captured by the aforesaid Admiral in a just war” (Dutch NationalArchives, SG 12551.21, unfoliated).

This, then, was the verdict of the Amsterdam College of the AdmiraltyBoard. The judges were content to jumble together natural law, ius gen-tium, and the concept of the just war, without clarifying what, if any, con-nections there might be between these legal principles on a theoretical andpractical level. Nor did the interested parties desire any such clari� cation.The hierarchy and compatibility of legal principles was of no concern toVan Heemskerck, the directors of the United Amsterdam Company, Mauriceof Nassau and the Estates General as long as the judges’ list of looselyrelated arguments did the trick of justifying the carrack’s capture. Nothingelse was necessary. Judging by diplomatic practice, the defence of Dutcheconomic interests did not require a proper understanding of internationallaw from Dutch politicians. When negotiating commercial treaties withother countries — England, for example — they routinely cited as manylegal principles and precedents as possible, however contradictory thesemight be. Yet the verdict of the Amsterdam Admiralty Board must haveinspired Hugo Grotius with very diVerent thoughts when he received itfrom Jan ten Grootenhuys shortly after 20 October 1604 (Muller, 1872:58–67,79–82, 90–91, 111, 134–35, 140–41, 149–56; Fulton, 1911:156–76, 185–91:Grayson, 1978:246–59).

Jan ten Grootenhuys (1573–1646) was the younger brother of VOCdirector Arent ten Grootenhuys (1570–1615). He served as a liaison betweenGrotius and the Amsterdam VOC directors in the autumn of 1604. Hehad been trained as a jurist, but shared his former roommate’s enthusi-asm for the studia humanitatis. When he wrote to Grotius on 15 October1604, he could not resist angling for news from the world of letters. Yetthis VOC shareholder knew when to put business before pleasure. Themain purpose of his letter was to remind Grotius to write the apologiarequested by the VOC directors. It also served as a cover letter for a bigbundle of papers, which “you have been expecting for a long time.” Itconsisted of a collection of sworn statements entitled “book treating of thecruel, treasonous and hostile procedures of the Portuguese in the EastIndies” (Boeck tracterende vande wreede, verradische ende hostile proceduren der Portugusenin Oostindien). In addition, Grootenhuys promised to send Petrus Plancius’learned communications on eastern navigation, (example) privateering


commissions and anything else that Grotius should like to have from theVOC directors “at the � rst opportunity.” We know that Grotius receivedcopies of other important documents on 20 October 1604. The documentsin question were the resolution of the Estates of Holland of 1 September1604, rescinding the province’s claim to the Santa Catarina, the verdict ofthe Admiralty judges of 9 September 1604 and the attestation of MartinApius, one of the few survivors of the Macao massacre. In his accompa-nying note, Grootenhuys promised to write a long letter and send evenmore materials the following day. There is reason to believe that the thirdpackage included Discours ende Advertentie (Discourse and Advertisement), asummary of letters sent from the East, which described, inter alia, VanHeemskerck’s capture of the Santa Catarina. All these materials Grotiusincluded in De Jure Praedae (Briefwisseling, 1928:44–45; Dillen, 1958:117, 238;Nellen and Trapman, 1996:161–77; Molhuysen and Blok I:997; Ahsmann,1990:506; Coolhaas, 1965:422–23).

De Jure Praedae can be regarded as Grotius’ attempt — a highly suc-cessful one — to disentangle the various strands of law heaped togetherin the verdict of the Amsterdam Admiralty Board. This was not what theVOC directors had in mind when they commissioned him to write a“defence of this case.” In their view, the verdict had settled all the legalaspects of the case. They realised, however, that it would take more thana verdict to win widespread political support for their cause, both domes-tically and internationally. They needed Grotius to advertise Portugueseiniquity to an audience that was not privy to Amsterdam courtrooms orthe assembly hall of the Estates of Holland — potential allies like the Kingsof France and England, for example, and the Estates of Utrecht, Overijssel,Gelderland, Friesland and Groningen (Briefwisseling, 1928:44).

The format of Grotius’ apologia would have been that of a historicalnarrative pure and simple if it had been up to the VOC directors. Theirchoice of Grotius was a no-brainer. The Delft prodigy had been appointedhistoriographer of Holland three years earlier. Signi� cantly, the directorswere busy taking depositions from their admirals, merchants and sailorswithin days of the verdict’s announcement. Before the month was over,they had collected 15 attestations. There was a method to their madness.As Grootenhuys noted in his letter of 15 October, the directors possessedplenty of “Indian reports,” written by Van Heemskerck and other com-manders, but preferred to have the contents of these letters “con� rmedunder oath.” The Delft notary Willem Willemszoon Kieck made notarisedcopies of the 15 attestations between 7 and 12 October 1604. These copieswere bound together in the Boeck, which was mailed to Grotius on 15October. According to Grootenhuys, it provided “countless proofs of faith-lessness, tyranny and enmity.” Grootenhuys was con� dent that his friendwould “soon complete” the apology (apologia) that he had begun “so felic-itously” (Briefwisseling, 1928:44).


Grotius must have completed the historica section of De Jure Praedaequite quickly, probably in the winter of 1604/05. At some point Grotiusdecided that “certain problems bound up with the law of war” had been“hitherto exceedingly confused” and demanded “explanation and solution.”It cannot be emphasised enough that the manuscript’s dogmatica de jurepraedae were written last, not � rst. The evidence is admittedly circumstan-tial, but nonetheless convincing. Grotius could hardly have started his tenchapters of legal theory before completing his Commentarius in Theses XI, anunpublished manuscript that justi� ed the sovereignty of the Estates ofHolland with ample references to natural law and natural rights. Writingthe Commentarius did not just keep Grotius busy until December 1604, butalso introduced him to the works of 16th-century Spanish theologians andjurisconsults like Francisco de Vitoria, Balthasar Ayala, Diego de Covarrubiasand Ferdinando Vazquez. It was his introduction to Spanish humanismand the Second Scholastic that allowed Grotius to untangle the variousarguments jumbled together in the verdict of the Amsterdam AdmiraltyBoard. Yet the ten chapters of legal theory did not bear on the case ofthe Santa Catarina as such. The practical implications of Grotius’ dogmaticade jure praedae only became clear in two chapters on “justice” inserted rightafter the historica section of De Jure Praedae. Van Heemskerck’s capture ofthe Portuguese merchantman was justi� ed as an act of private war inChapter 12 of De Jure Praedae — otherwise known as Mare Liberum — andas an act of public war in Chapter 13 (Commentary on the Law of Prize andBooty I:7; Borschberg, 1994:48–52, 73–74, 81–88, 92–93; Appendices I and II).

Predictably, Chapter 13 of De Jure Praedae focused on the commissionthat Van Heemskerck had received from Maurice of Nassau, Lord HighAdmiral of Holland. Grotius argued that by virtue of his commission VanHeemskerck had been an agent of the Dutch Republic, a sovereign andindependent state. As an agent of the Dutch Republic, the commanderwas required to follow the Estates General’s directives for the conduct ofits public war against Philip III of Spain. (The VOC directors were incharge of trade, obviously.) It so happened that the Estates General’s plac-ard of 2 April 1599 declared the possessions of the subjects of Philip IIIgood prize, without any restrictions as to the place and time of seizure.The Estates of Holland had further clari� ed this placard on 1 September1604, when it relinquished all claims to the Santa Catarina and any futureVOC prizes in favour of the Estates General and the Admiralty Board. Itremained for Grotius to conclude that the Admiralty Board had beenentirely justi� ed in applying the federal regulations and adjudging the SantaCatarina to its four claimants (Commentary on the Law of Prize and Booty I:80,84, 283–317, 366; Borschberg, 1994:269–83; Enthoven, 1996:192–213).

The argument of Chapter 12 of De Jure Praedae, otherwise known asMare Liberum, could not have been more diVerent. In justifying the carrack’s


capture as an act of private war, it was absolutely essential for Grotius toprove that Van Heemskerck had fought for a just cause and implementednatural justice. He � rst reminded his readers of the atrocities which thePortuguese had committed against Dutch merchants and their indigenoustrading partners, and then denounced these outrages as gross transgres-sions of natural law, particularly the laws of inoVensiveness and the free-dom of trade and navigation. This was a major innovation in legal the-ory and practice, certainly as compared to the resolution of the BroadCouncil and the verdict of the Admiralty Board. Neither document identi� ednatural rights and natural law as the underlying legal principle that justi� edVan Heemskerck’s attack on Portuguese shipping. It was Grotius who madethis connection. He made an equally important change in the implemen-tation of natural law, which had hitherto been considered the preserve ofmonarchs and princes. Grotius argued instead that, in the absence of anindependent judge, a private individual like Van Heemskerck could pun-ish transgressors of the natural law and act as judge and executioner inhis own cause. This conclusion was entirely consistent with Grotius’ under-standing of sovereignty. All magistrates, including heads of states, were sim-ply bearers of the marks of sovereignty ( judiciary, taxation, defence, andso forth). The royal prerogative of Philip II had not been a single whole,for example, but a bundle of powers, which were ultimately derived fromthe individual citizens that made up the Dutch commonwealth or respub-lica. A private individual could reclaim these powers and exercise them inperson under certain circumstances, notably on the high seas, in the stateof nature and during civil wars. Grotius’ understanding of sovereignty hadimportant implications for his defence of VOC privateering. What hadbeen revenge pure and simple in the resolution of the Broad Councilbecame punishment for transgressions of the natural law in De Jure Praedae,meted out by private individuals exercising their natural rights. Yet justpunishment and lawless revenge were more closely linked in De Jure Praedaethan its author cared to admit. When listing the various natural laws inhis introduction — the so-called Prolegomena — Grotius de� ned two of themas follows: “evil deeds must be corrected” (malefacta corrigenda) and “gooddeeds must be recompensed” (benefacta repensanda). Yet his original formu-lation, still visible on folio 7 verso of the manuscript, is quite diVerent:“evil should be done to the evil-doer” (malefacienti malefaciendum), while “goodshould be done to the righteous” (benefacienti benefaciendum) (Commentary on theLaw of Prize and Booty I:10, 13, 18, 23, 25, 27, 28, 87–95, 216–82 and II:7r–v; Borschberg, 1994:244–45; 1998, passim).

The Story

Grotius’ innovations in legal theory and practice were still far in the future,however, when the Alckmaer and White Lion anchored oV Pulau Tiuman in


order to intercept the Japan carrack. A small Portuguese vessel from Cochin-China was sighted to the windward of the Dutch ships on 18 December1602, and captured without further ado. After unloading its cargo, theprize was re� tted as a yacht and incorporated into the Dutch squadron(Dutch National Archives, SG 12551.21, unfoliated).

Meanwhile Van Heemskerck � attered himself with the thought that“the bird that we hoped for would not escape us,” as his men kept sen-tinel day and night at Pulau Tiuman. He was con� rmed in his optimismby the information that he received from indigenous traders based inPahang, a port just north of Johore. Passing by Pulau Tiuman every day,these merchants assured Van Heemskerck that no ships from Macao hadarrived at Malacca yet. They even suggested that the capitão-mór, “awareof the fact that we were lying in wait for the ships,” had already lost hisnerve and declared that “the carrack was no longer his, but belonged tothe Hollanders.” Van Heemskerck obtained even more encouraging intel-ligence from Mattys d’Olivera, born in the German port of Hamburg, andcrew member aboard the junk that had been captured en route from CochinChina. The prisoner claimed to have made his way from Goa to Malaccain the carrack of the capitão-mór, allegedly accompanied by an even bigger,brand-new náo do trato or “great ship of commerce.” He was con� dent thatboth carracks would soon return from Malacca. In the long history of theJapan voyage it had simply never happened that carracks bound for Goaspent the winter at Macao (Dutch National Archives, SG 12551.21, unfo-liated; Boxer, 1968:12–28).

Buoyed by these congenial reports, the Broad Council gave somethought to new opportunities for trade at Johore and Patani. The junkfrom Cochin China had yielded rice, specie, textiles and aloes, which wasworth a small fortune. Van Heemskerck reckoned that these commoditieswould be in heavy demand at Johore and that he could use the proceedsto buy pepper at both Johore and Patani. There would be no harm, then,in extending the resolution of 4 December 1602 for yet another month.The prospects for trade and privateering in the waters oV the MalayPeninsula clearly justi� ed a longer stay at Pulau Tiuman (Dutch NationalArchives, SG 12551.21, unfoliated).

Renewed contact with the Sultan of Johore changed everything, how-ever. When the Sultan was informed of Van Heemskerck’s location — aJohore trader had sighted the Dutch squadron — he immediately dis-patched a Johorese nobleman to Pulau Tiuman. Upon his arrival there,the envoy presented Van Heemskerck with a golden kris and a gracefulmessage from his sovereign. The Sultan expressed his gratitude for the let-ters and presents that Van Heemskerck had sent him from Grissee andPatani, and for the honourable reception that his younger brother hadenjoyed aboard the White Lion. Even so, the ruler could not conceal hisdisappointment at Van Heemskerck’s failure to call at his port. Yet he was


smart enough to blame the Grissee pilot on whose expertise Van Heemskerckhad relied in navigating from Java to the Malay Peninsula. Naturally, theSultan desired the carracks’ capture as much as the Admiral did, butdoubted that Pulau Tiuman was the right place to intercept them. Theisland might well be given a wide berth if the carracks’ commander learntof Van Heemskerck’s anchorage there. Instead, the Admiral should takeup position at the mouth of Johore River, where the carracks could notpass by unnoticed, be it night or day. Due to treacherous wind and watercurrents, the carracks were forced to sail very close to the shore of Johoreas they entered Singapore Straits from the east (Dutch National Archives,SG 12551.21, unfoliated; Borschberg, 2004).

The Sultan of Johore had another reason for urging Van Heemskerckto change his plans. He had declared war on Malacca three months ear-lier, in response to “certain wrongs” which his subjects had suVered at thehands of the Portuguese, besides “many ancient grievances” and “new outrages” for which he held the Portuguese responsible. He felt it keenlythat the Portuguese had treated him and his subjects as “little more thandogs”. The capitão-mór of Malacca, aware of his correspondence with VanHeemskerck, had discouraged him from courting the Dutch, who allegedlywere “all thieves”. More insidiously, the Portuguese commander had sug-gested that Van Heemskerck might spy on Johore “under the pretext offriendship” and return with a big � eet to pillage the place. Finally, he hadpresented the Sultan with a stark choice: break oV all contact with theDutch or be treated as an enemy of the Portuguese. Yet the Johorese rulerassured Van Heemskerck that he had rebuVed the capitão-mór with anequally sharp reply. He had informed the capitão-mór that he had neverheard anything bad about the Dutch, who “traded with the indigenouspeoples in great friendship wherever they went.” Who did the Portuguesethink they were? If anything, obedience was due to him. The Portuguesewere “sitting in his land” and illegally occupying Malacca, a town thathad once been ruled by his forefathers. His de� ant reply had not gonedown well with the Portuguese commander. A squadron of seven warshipshad been sent to Johore Head in order to safeguard the carracks en routefrom Macao. While awaiting their arrival, the Portuguese convoy had block-aded Johore River and committed many outrages. The Sultan realised thatonly Van Heemskerck was capable of breaking the naval blockade andbegged him to do so. A defeat of the Portuguese squadron would makeVan Heemskerck famous all over the East Indies. Indeed, the ruler con-sidered Van Heemskerck’s victory a foregone conclusion for “the Portuguesetremble at your name.” He repeated that the carracks were certain to passby the river mouth and concluded with “sundry other praises of our princeand nation, which are too long to repeat here,” as Van Heemskerck wroteto the directors of the United Amsterdam Company (Dutch NationalArchives, SG 12551.21, unfoliated; Coolhaas, 1965:528; Borschberg, 2001).


Van Heemskerck hardly knew what to make of the Sultan’s letter.Any war between Johore and Malacca was bound to be detrimental to thePortuguese, certainly if, in future, Dutch ships should call at Johore yearround, as they did at Bantam. Hence the capitão-mór had every reason tocultivate the Sultan and promise him both the moon and the earth. VanHeemskerck smelled a rat: the Sultan might well have shown “friendshipin appearance only” in order to revenge himself for the Johorese junk cap-tured at Jortan. Or was it all a Portuguese ploy? Could the Sultan’s let-ter be a ruse to lure Van Heemskerck away from Pulau Tiuman andtowards the lee shore of Johore, where the ruler of Pahang, undoubtedlybribed by the Portuguese, might attack the Dutch ships with his prows?After careful consideration, Van Heemskerck was inclined to trust theSultan. There was hardly an indigenous ruler left who did not resent thePortuguese for their insuVerable arrogance. In addition, the Sultan hadmuch to gain from a trade agreement with the Dutch. Van Heemskerckwas not prepared, however, to leave Pulau Tiuman as yet. Should the car-racks arrive at Pulau Tiuman after his departure, then the islanders wouldundoubtedly reveal his new location to the Portuguese commander, who,in turn, could decide to postpone the last leg of the journey to Malaccaor change course entirely to avoid the Johorese coast. Van Heemskercknevertheless promised the Sultan’s envoy to set sail for Johore within 20days, provided no carracks were sighted oV Pulau Tiuman (Dutch NationalArchives, SG 12551.21, unfoliated; Borschberg, 2004).

The Sultan’s envoy remained aboard the White Lion for a few moredays and managed to win the con� dence of Van Heemskerck. When theAdmiral expressed a wish to send a personal representative to the Sultan,the Johorese nobleman volunteered to stay behind as a hostage. PieterOpmeer was entrusted with a letter for the Sultan, which thanked the lat-ter for his presents, friendship, and faithful advice, while it also gave VanHeemskerck’s reasons for tarrying at Pulau Tiuman a little longer. Opmeercarried private instructions from the Admiral as well: he should keep hiseyes and ears open at the Johorese court and write back immediately. VanHeemskerck was eager to learn more about the Sultan’s relations withMalacca, Johorese rice prices, the volume of the Sultanate’s pepper trade,and, of course, about the Portuguese naval blockade. The month of Januarypassed without any other noteworthy events. The news from Malacca andPahang was invariably the same: the carracks had still not arrived, or evenbeen sighted. In these circumstances, the Broad Council had little choicebut to extend its resolution yet again, “� rst for six days, then for four daysat the time” (Dutch National Archives, SG 12551.21, unfoliated).

The long wait came to an end on 18 February. An inhabitant ofPulau Tiuman told Vice-Admiral Pauwels that he had seen a great shipwith canvas sails pass by the island that morning, tracking a longboat. YetPauwels, along with Van Heemskerck, refused to believe his story, which


was considered confusing. Both commanders put their faith in the Dutchlookouts instead, which had not sighted any carracks yet. Even when theisland’s chiefs con� rmed the news two days later, Van Heemskerck andPauwels remained unconvinced, suspecting a ruse to lure them away fromPulau Tiuman. They had to change their minds, however, when a galliotof the Sultan of Johore caught up with the Dutch squadron on 22 February,carrying letters from Pieter Opmeer. The captain of the galliot apprisedthem of the fact that he had encountered a carrack on the open sea justthree days earlier, while underway from Johore to Pulau Tiuman. Realisinghis mistake, Van Heemskerck gave orders to weigh anchor and hoist thesails immediately. It was a race against time to intercept the second car-rack, which could not be far behind, but which might well stand out tosea like the � rst carrack, rather than call at the island. When Van Heemskerckreached Johore on 24 February, he was told that the � rst carrack hadpassed by the river mouth and entered Singapore Straits just � ve days ear-lier. All was not lost, however. Van Heemskerck woke up the followingmorning with the second carrack — a brand-new ship of 1,500 tons (Boxer,1968:50) — riding at anchor right in front of him. Thus

[w]e saw with our own eyes that rising early, keeping a close watch andrunning fast was all to no avail without divine blessing. God answered ourprayers while we were asleep in order that we would not have cause to prideourselves in our own diligence (Dutch National Archives, SG 12551.21, unfo-liated).

The � ght began at eight o’clock in the morning and lasted all day. VanHeemskerck ordered his gunners to aim for the carrack’s sails, “lest weshould destroy our booty with our own guns.” Around six o’clock in theevening, Captain Sebastiano Serrao put out a white � ag. Its sails all intatters, the carrack was adrift and in great danger of hitting underwaterrocks at the eastern entrance of Singapore Straits. Serrao sent two repre-sentatives aboard the White Lion to negotiate terms. Van Heemskerck brookedno opposition, however. The captain was presented with an ultimatum:surrender within an hour or continue the battle by moonlight, at the riskof wrecking his ship on the dangerous shoals. Serrao had no choice butto back down and agree to Van Heemskerck’s conditions. The battle hadcost the Portuguese dearly. There were 70 casualties aboard the carrack,a number that would have been even higher if the gunners had aimed atits upper deck, instead of the sails. As Van Heemskerck noted, “the gun-ners could hardly have missed considering how many people were aboardthe vessel.” The Portuguese were lucky to have encountered him at theentrance of Singapore Straits, instead of on the high seas, where “we wouldhave done an ill dance out of revenge for what happened at Macao.” VanHeemskerck admitted that he had heard rumours of the release of three


survivors of the Macao massacre — � scal Martin Apius and two cabinboys. He remained sceptical, however. “God knows whether it is true ornot,” he wrote to the VOC directors. In his opinion, clipping Portuguesewings was the surest way to make the enemy sing another tone (DutchNational Archives, SG 12551.21, unfoliated; Tiele, 1883:237–40).

An inventory was made of the carrack’s cargo, which Van Heemskercksent to the VOC directors. The variety and value of the goods aboard theprize were truly astounding. Yet Van Heemskerck realised that his countfell far short of the � gures recorded in the Portuguese freight list. The rea-son was twofold in his estimation. The carrack’s crew and passengers mightwell have smuggled out some jewels at disembarkation — female passen-gers were not frisked “for propriety’s sake,” for example. Nor was thePortuguese freight list terribly accurate to begin with: it contained manyitems “whereof we have no knowledge and perhaps never will in our life-time.” The remaining spoils were still beyond anything he could have imag-ined in his wildest dreams. He decided to transfer the prize goods to hisown ships, which would allow him to load the carrack with pepper atJohore and Bantam. The White Lion received 1,584 bales of silk ( fyn syde),250 bales of raw silk ( ghele syde), 150 barrels of camphor, 540 packs ofsugar, 74 chests of silk clothes and aloes, and another nine or ten � lledwith porcelain. The Alckmaer took in 1,150 bales of silk ( fyn syde), 646 packsof sugar, 226 chests of aloes and silk velour (syde �uweelen), and four bar-rels of camphor. The total value of these commodities was well over threemillion Dutch guilders — £300,000 (Dutch National Archives, SG 12551.21,unfoliated; Corte ende sekere beschrijvinghe; Van Dam, III:477).

Van Heemskerck wrote to the VOC directors that he had retrieved138 bars of solid gold from the carrack as well. Unfortunately, it was tooearly in the season to purchase large quantities of pepper at Johore. Theimminent change in the monsoon winds made Van Heemskerck impatientto continue his voyage to Bantam, where he could barter the ingots forpepper. He was forced to postpone his departure until 3 April, however,due to delays in freighting the carrack, and, more importantly, due to polit-ical complications that resulted from its seizure and his own alliance withthe Sultan of Johore (Dutch National Archives, SG 12551.21, unfoliated).

Sebastiano Serrao had surrendered his ship to Van Heemskerck inthe understanding that he would give its passengers and crew a safe pas-sage to Malacca. Van Heemskerck proved to be as good as his word. Herealised that his 750 Portuguese prisoners were in great danger of beingkilled by his Malayan allies unless his own men accompanied them toMalacca. The � rst batch of prisoners arrived safely in Malacca shortlybefore 9 March 1603. The four Dutch mariners who had served as theirguards did not enter Malacca, but stayed behind at an island situated rightin front of the port, where they received a letter from the capitão-mór andprovisions from the Malacca magistrates (Dutch National Archives, SG


12551.21, unfoliated; Coolhaas, 1965:531–33; Commentary on the Law of Prizeand Booty I:385–86).

In his letter of 9 March 1603, Fernão de Albuquerque congratulatedVan Heemskerck on encountering “a ship so richly laden” and capturingit “in a just war.” Yet the capitão-mór doubted that Van Heemskerck wouldhave been victorious if he had attacked the � rst carrack, which did notcarry any “merchants, who do not � ght,” or “women and other uselesspeople, who are in the way in times of diYculty.” Nor did the capitão-mórconsider the massacre at Macao a suYcient reason for Van Heemskerckto take revenge on the Portuguese. To be sure, he unequivocally con-demned the execution of 17 members of Van Neck’s crew. The Portugueseauthorities had not left the Dutch without legal recourse, however. Theman responsible for the judicial murder — the ouvidor or royal judge ofMacao — was already languishing in prison himself and would soon beput to death. The capitão-mór emphasised that he had been a “good friend”to the three survivors of the massacre — � scal Martin Apius and two cabinboys — when they passed through Malacca on their way to Goa. Heexpected Van Heemskerck to return the favour by releasing the Portugueseprisoners who were still in Johore, especially “father Antonio” and the car-rack’s captain. In addition, he asked Van Heemskerck to intercede withthe Sultan of Johore for the crew of a Portuguese junk that had been cap-tured by the “Malayans” en route from Macao to Malacca (Coolhaas,1965:532–33).

Van Heemskerck complied with the former request, but not with thelatter. Although he kept his promise to release all the carrack’s crew andpassengers, he refused to endanger his alliance with the Sultan of Johoreby interceding for any captives who were in the latter’s power. The sec-ond batch of Portuguese prisoners arrived at Malacca shortly before 24March 1603, again accompanied by Dutch guards, who carried VanHeemskerck’s reply to the capitão-mór. They stayed behind on the islandfacing Malacca in order to wait for an answer (Coolhaas, 1965:535;Commentary on the Law of Prize and Booty I:387).

Fernão de Albuquerque did not disappoint them. In a letter dated 26March, the capitão-mór expressed his gratitude for Van Heemskerck’s gra-cious reply and for the release of the carrack’s passengers and crew. Heassured Van Heemskerck that the Viceroy at Goa would be lenient to allDutch prisoners “in the Indies and Japan” and severely punish the ouvidorof Macao. “Your Honor should not, therefore, take oVence at the Portuguesein general for everyone of us believes that what happened in China wasa bad thing.” Once again, Van Heemskerck was asked to intercede withthe Sultan on behalf of the junk’s captive crew. The capitão-mór put hisfaith in “the zeal shown by Your Honor in caring for all prisoners andoppressed Christians.” The junk’s cargo was of no concern to him. Therewas little hope of retrieving it from the Sultan, who, presumably, had


divided the spoils among “the soldiers of his armada.” Yet Albuquerquewas anxious about the fate of “the Portuguese and Christians whom [theSultan] keeps imprisoned under the pretext of peace.” He hoped againsthope that the prisoners were “of little importance to the Malayans” andsent two envoys — Philippe Lobo and Pedro Mascarenhas — to negoti-ate their release. Van Heemskerck should take the envoys in his protec-tion and grant them “Your Honor’s favor and assistance” (Coolhaas,1965:533–34; Commentary on the Law of Prize and Booty I:386–87).

Yet Van Heemskerck did nothing of the sort. He maintained an omi-nous silence in his letters to the directors of the United Amsterdam Company,for example. Perhaps the Sultan’s prisoners were no longer alive. (TheJohorese would certainly have killed the carrack’s passengers and crew ifthe Dutch had let them!) It seems more likely, however, that Van Heemskerckdecided to keep his distance from the Portuguese envoys. The Admiralhad nothing to gain from meddling in Johore’s internal aVairs. His � rstpriority was to cultivate the Sultan’s friendship and establish good rela-tions between Holland and Johore.

Van Heemskerck’s capture of the Santa Catarina had served to strengthenhis ties with the Sultan of Johore and his brother, Raja Bongsu. The royalsiblings had not just supplied him with the carrack’s itinerary, but joinedin the naval battle as well. The galleys and rowing-yachts that made upthe Johorese armada had been of invaluable assistance to Van Heemskerck.The Sultan, Raja Bongsu, and the Johorese nobility had even watched theengagement aboard his � agship. The Sultan was rewarded for his serviceswith a cargo of rice, along with some silk velour (zyde �uweele), gold andsilver. The total value of these presents was approximately 10,000 Dutchguilders. In addition, the Admiral asked, and was granted, permission toreimburse the captain of the Johorese junk seized in Japara harbour. Thecaptain received 1,200 Spanish silver pieces in damages, “even though thecargo did not sell for more than 700 reals of eight.” Nor could VanHeemskerck leave Johore without establishing a Dutch factory, of course.At the Sultan’s request, he appointed cape merchant Jacob Buys head ofthe new trading mission, assisted by three sailors and two midshipmen. Inreturn, the Sultan showered Van Heemskerck with gifts, provided him witha letter for Prince Maurice and even appointed an ambassador — “a nim-ble, competent young man, belonging to the Sultan’s inner circle” — totravel with him to Holland, accompanied by an entourage of servants(Dutch National Archives, SG 12551.21, unfoliated; Valentijn V:328; VanDam, I, Part II:309; Borschberg, 2001).

The Admiral gave his consent to the embassy because he had bigplans for Johore. According to Van Heemskerck, the VOC needed a ren-dezvous in the East Indies other than the port of Bantam, which was badlygoverned — “the king is but a child” — and notorious for its high taxes.The optimal solution was to capture Malacca. Its stone houses and walls


were not susceptible to the great � res that destroyed Bantam’s trading quar-ter every so often. “Truly, it is high time we make the Portuguese movefrom Malacca to Ceylon.” The second best option was to establish a ren-dezvous at Johore, which would put Malacca under a kind of permanentsiege. The VOC could break the Portuguese stranglehold on the Chinaand Japan trade by stationing warships at the mouth of Johore River.What Van Heemskerck had in mind was a year-round cruiser squadronthat would intercept all carracks entering or leaving Singapore Straits. Inhis view, the VOC directors should give serious thought to the China tradeas well. The Portuguese, for one, reaped large pro� ts by exporting Chinesegoods to India. Textiles from the Coromandel Coast could be bartered forpepper in Johore and Patani, where Indian textiles were in heavy demand.Needless to say, the Admiral considered Johore to be ideally situated forestablishing direct trade links with the Indian subcontinent. The inhabi-tants of Johore and Patani had urged him not to bring anymore silver,but arrange for textile imports from the Coromandel Coast instead, say-ing “we do not wear silver pieces around our necks, nor can we coverourselves with them.” As the port master of Patani put it, “bring us tex-tiles and we will all declare war on the Portuguese.” The triple allianceof Johore, Patani, and the VOC contemplated by Van Heemskerck wouldnot consist of commercial agreements alone. The Admiral envisioned theVOC at the head of a grand coalition of Asian states, leading them intobattle against the Estado da India. Dutch colonisation should go hand inhand with an anti-Portuguese crusade. He explained to the VOC directors:

since God has blessed us in the East Indian navigation beyond measure andallowed us to make friends with so many diVerent nations and kings in sucha short time, we ought to seize every opportunity and do our very best, inword and in deed, to settle our nation in the East Indies and establish abody politic, in the hope that it may grow and � ourish, God willing (DutchNational Archives, SG 12551.21, unfoliated).

Van Heemskerck considered the spectacular increase in trade and naviga-tion, not to mention “the friendship of the inhabitants,” to be the handi-work of the Almighty. In true Calvinist fashion, he argued that divine bless-ings obliged the Dutch to do their bit as well and settle in the East Indies.Van Heemskerck’s colonisation project was never meant to be just anotherpro� table investment or a projection of Dutch power overseas. It had somemarkedly messianic overtones. Van Heemskerck expressed the hope that:

the glory of God may be exalted among such great many diVerent nations,peoples and countries through preaching the true faith of His Holy Scripture.Perhaps it shall please God to use a small, despised country and nation towork great things (Dutch National Archives, SG 12551.21, unfoliated).


The JustiWcation

Grotius shared Van Heemskerck’s conviction that the seizure of the SantaCatarina heralded a brave new world wherein the VOC championed therights of indigenous peoples and protected them against the Portuguese.“How joyful was the King of Johore when he stood — secure and avengedat last — upon the thwarts of the captured carrack!” De Jure Praedae sani-tised colonialism and imperialism in a very real sense. The Dutch wouldhave the best of both worlds according to Grotius. An empire of tradecould be had on the cheap in the East Indies — a few warships weresuYcient to dislodge the Spanish and Portuguese — and need not resultin any kind of moral degradation for the Dutch, provided they liberatedAsian princes and peoples from Iberian tyranny. It was a powerful ideol-ogy, readily accepted by the VOC directors. The Company cultivated aself-image as liberator of the oppressed until the end of the Twelve YearsTruce (1609–1621) at least (Commentary on the Law of Prize and Booty I:333;Van Ittersum, 2002:80–139, 245–468).

Yet there was always a certain tension between these grand ideals andthe situation on the ground. Grotius’ reconstruction of the carrack’s cap-ture did not � t all the facts, for example. This was partly for lack of infor-mation. Grotius never realised, for example, that Van Heemskerck hadbestowed presents worth 10,000 Dutch guilders on the Sultan of Johoreout of gratitude for the valuable assistance that he received from theJohorese armada in capturing the Santa Catarina. Grotius’ ignorance explainshis closing argument in Chapter 13 of De Jure Praedae, which has a ratherstrange twist to it. Both Van Heemskerck and the Sultan of Johore wouldhave been surprised to learn that the ruler had possessed the Santa Catarinaby natural right and granted it to the Admiral through an act of cession!Yet Grotius’ unfamiliarity with some aspects of Van Heemskeck’s voyageis only half the story for he certainly had no qualms about ignoring evi-dence that contradicted his argument in De Jure Praedae. One inconvenientdetail known to Grotius, but omitted from De Jure Praedae, was Albuquerque’spromise to Van Heemskerck to bring the ouvidor of Macao to book andarrange for a better treatment of Dutch prisoners. Grotius’ failure to givethe capitão-mór credit for this in De Jure Praedae was a signi� cant omissionin the context of his argument.

As we have seen above, Grotius gave private individuals the right topunish transgressors of the natural law if they could not have recourse toan independent judge in a timely fashion. Hence Van Heemskerck hadbeen justi� ed to capture the Santa Catarina in revenge for Portuguese out-rages against Dutch merchants and their indigenous trading partners. Theletters of the capitão-mór — cited twice in De Jure Praedae — suggest, how-ever, that the East Indies were not devoid of upstanding Portuguese mag-istrates who administered justice impartially. The Viceroy at Goa had


thrown the ouvidor of Macao in prison and released three survivors of theMacao massacre, for example. It would appear, then, that the Estado daIndia did not leave the Dutch without legal remedy. Yet Grotius never con-sidered this possibility in De Jure Praedae, or even mentioned the Viceroy’sinvolvement in the case. Instead, he wanted to have his cake and eat ittoo! On the one hand, he faulted the Estado da India for its alleged reluc-tance to deal with the oVenders, shedding crocodile tears over “the fail-ure of the Portuguese commonwealth to take steps for the punishment ofPortuguese individuals.” On the other hand, he � atly denied that PortugueseoYcials quali� ed as independent judges. After all, “[t]he Portuguese com-monwealth and its ruler were the very parties who took the � rst step, notonly in the public in� iction of injury upon the Dutch, but also in initiat-ing the war.” God forbid that the Portuguese should serve as judges intheir own cause! Grotius had created a false legal dilemma, which couldhave no solution but one. He made the self-serving argument that thecourts of the United Provinces were too far away from the East Indies tobe of any help and that Asian rulers did not want to mediate between theDutch and Portuguese, or become involved in the standoV in any way.His conclusion in Chapter 12 of De Jure Praedae was as predictable as itwas opportune: Van Heemskerck had never had any choice but to exe-cute judgement on the Portuguese himself (Hamaker, 1868:258–62; Commentaryon the Law of Prize and Booty I:272–77).

Grotius’ conceptualisation of private war as the administration of jus-tice by other means plays an important role in Chapter 13 of De JurePraedae as well. Even though it purports to examine the capture of theSanta Catarina from a diVerent angle, that of public war, Chapter 13 con� atesboth perspectives in its closing paragraphs. Chapter 13 presents VanHeemskerck as the agent of a sovereign state at war with the King ofSpain and Portugal, despoiling the enemy at the behest of the respublicaHollandica. Although Grotius could have left it at that, he was not alto-gether satis� ed with his justi� cation of the ship’s seizure as an act of pub-lic war. Signi� cantly, he harked back to his notion of private war whenhe discussed Johorese-Dutch relations in the chapter’s � nal paragraphs.The complicating factor was the injuries which both Van Heemskerckand the Sultan of Johore had sustained at the hands of the Portuguese,an issue inextricably intertwined with that of reparations. This untidymixture of arguments merits a detailed discussion of the chapter’s � nalparagraphs. The intellectual linchpin of these � nal paragraphs is Grotius’explication of the commission granted to Van Heemskerck by the LordHigh Admiral of Holland, Maurice of Nassau, which establishes an indis-soluble link between his notions of public and private war (Hamaker, 1868:289–90, 293–96; Commentary on the Law of Prize and Booty I:305–6, 310–13).

As already noted above, Grotius regarded Prince Maurice’s commis-sion � rst and foremost as a kind of appointment letter. Van Heemskerck


derived his authority from the Dutch Stadtholder, who had been investedwith “supreme powers for warfare on land or sea.” The commission madeVan Heemskerck akin to a soldier, waging war on behalf of the respublicaHollandica. Yet there was another possible explanation. Grotius made thestartling suggestion that it equalled an actual letter of marque. He � atlydenied that “orders authorising the waging of war are of narrower importthan [letters of ] reprisal.” True, the commission prohibited the use of forceunless Van Heemskerck was “compelled to do so by injuries essayed againsthimself, his men, or his ships.” Yet Maurice of Nassau had also com-manded him to employ all possible means “either for the defence of hisperson, men, and ships, or for the reparation of injuries.” Grotius had littlediYculty reconciling the discrepancies between these orders, which wererather slight anyway. He posited that it would be diYcult in any situation,but altogether impossible on the high seas, to “pursue and overtake theidentical persons who harmed us.” With this mind, it must be presumedthat:

[Maurice of Nassau] is consenting to the exaction of reparations not onlyfrom the individuals who actually in� icted the injuries but also from all per-sons upon whom the law of nations imposes the obligation to make suchreparations (Hamaker, 1868:290–91; Commentary on the Law of Prize and BootyI:306–7).

Since any given state was the sum total of its citizens, each of these citi-zens became liable to punishment and reparations if the sovereign failedto bring to justice a subject who had harmed the inhabitant of anotherstate. In other words, the Portuguese people and all their belongings werefair game for Van Heemskerck, even if just one of them had in� icted theinjury. Grotius interpreted the right to exact damages so liberally that, toall intents and purposes, he equated Van Heemskerck’s commission witha letter of marque (Hamaker, 1868:290–91; Commentary on the Law of Prizeand Booty I:307).

On whose behalf might Van Heemskerck obtain satisfaction and repa-rations? Obviously, he could do so on behalf of himself and his men.Grotius claimed that the Portuguese had been behind the imprisonmentof Van Heemkerck’s crew members at Demak, for example, even thoughVan Heemskerck himself had never made any suggestion of the kind. Amore convincing argument for the carrack’s capture was, of course, theexecution of Van Neck’s crew at Macao. Since the victims had beenemployed by “the same Company that was retaining Van Heemskerck’sservices,” it was impossible “to regard them as strangers, nor was it anyless � tting for the Admiral and all his sailors to be deeply moved by thememory of that crime.” Indeed, the Estates General and Prince Mauricewould have decreed war “if they could have been summoned to witnessthe aVair.” In addition, Grotius mentioned the dismal fate of Jacob Waterman,


assistant at the trading post that Van Heemskerck had established in theBanda Islands in 1599. The unlucky surgeon had been intercepted andbarbarously murdered by the Portuguese in March 1601 while crossingover to the island of Ambon in a canoe. Grotius was correct in his assump-tion that outrage at the decapitation of Waterman had contributed to VanHeemskerck’s decision to attack Portuguese shipping. It was a praisewor-thy ethical stance in Grotius’ view, for “he who avenges injuries in� ictedupon his friends is avenging not only their wrongs but also, in a sense, hisown” (Hamaker, 1868:291–94; Commentary on the Law of Prize and BootyI:308–10, 204–5; Coolhaas, 1965:519–21, 524).

Yet Grotius admitted that all these considerations paled besides thePortuguese outrages which had been recorded in the Sultan of Johore’sletter to Van Heemskerck. We may recall that the capitão-mór of Malaccahad given the Sultan an ultimatum: break oV all contacts with VanHeemskerck and bar Dutch ships from Johorese ports forever, or face retal-iation. A squadron of Portuguese warships had blockaded the mouth ofJohore River for three months, ravaging the countryside and bringing tradeto a complete standstill when the Sultan refused to abide by Albuquerque’swishes. These intimidation tactics were labelled as injuries in De Jure Praedae,injuries in� icted both on Van Heemskerck and the Dutch nation as awhole. In Grotius’s view, “real injury is in� icted when one party is drivento accept calumnies against another, and when any person is debarredfrom that which is his right under the law of nations.” The Portuguesehad blockaded Johore River for no other reason than to “cut oV theHollanders from access to that region.” There could be no doubt, then,“as to the existence of injuries calling for reparation” (Hamaker, 1868:293;Commentary on the Law of Prize and Booty I:310).

The Sultan’s letter did not just oblige Van Heemskerck to vindicatehimself and his nation, but to entertain the possibility of assisting an indige-nous ruler as well. Grotius emphasised that the Sultan had written to himto ask “for help in warfare.” Interestingly, Grotius took it for granted thatJohore was both a “kingdom” (regnum) and “sovereign principality” (supre-mus principatus), which meant that its ruler had “the authority necessary toconduct a public war.” Since sovereigns were at liberty to choose theirown agents, Grotius concluded that it was permissible for the Admiral toenter the war as the Sultan’s ally (Hamaker, 1868:297; Commentary on theLaw of Prize and Booty I:314).

The mere permissibility of entering the lists on the Sultan’s behalf didnot explain, however, why Van Heemskerck had heeded the ruler’s plea.Grotius’ explanation was simple: the Admiral had been under a moralobligation to assist the Sultan. Since he had both the ability and oppor-tunity to be of service to the Johorese, he could not have “remained guilt-less while withholding assistance.” Grotius buttressed this moral principlewith various quotations — sometimes unacknowledged — from ancient


philosophers, the church fathers and the Gospels, a mixture of referencesthat was characteristic of De Jure Praedae as a whole. Grotius pointed outthat Cicero had distinguished between two types of injustice in De OYciis:

the kind characteristic of persons who in� ict injury; and the kind charac-teristic of those who fail to ward oV injury, when they are able to do so,from the victims upon whom it is in� icted (Hamaker, 1868:297; Commentaryon the Law of Prize and Booty I:314).

Grotius emphasised that any man guilty of the second type of injustice was“as gravely at fault as if he were forsaking his parents or friends or nativeland.” He endorsed the Stoic teachings on “the universal bond of humanfellowship,” a bond that joined together both citizens and foreigners. Nohuman being could repudiate this sacred bond “without being adjudgedimpious towards God Himself, the Author thereof.” (Yet the Stoics hadnever enjoined Roman citizens to prioritise a foreigner’s salubrity over thewellbeing of a compatriot, as Grotius knew all too well!) Even the churchfather St Ambrose had taken a leaf out of De OYciis when he argued thatsomebody “who has failed to resist injury to his fellow man is no less cul-pable than the individual who in� icts that injury.” Grotius could not agreemore, of course. The next step in his argument was an obligatory refer-ence to Aristotle, whose Rhetoric to Alexander conveniently approved of aid-ing people “who have previously bestowed some bene� t upon us.” Grotiusconsidered Aristotle’s precept especially appropriate in cases where “oneparty undergoes injury from others precisely for the reason that the vic-tim has conferred a bene� t upon us.” It was only because Asian princesand peoples traded with Dutch merchants that they had incurred the wrathof the Portuguese. In the light of these philosophical arguments, there couldbe no doubt in Grotius’ mind “that the injuries suVered by these EastIndians are properly the concern of the Hollanders” (Hamaker, 1868:297–0p98; Commentary on the Law of Prize and Booty I:314–15; Tuck, 1993:31–64,154–201; 1999:16–50, 78–108).

Unless Grotius’ compatriots were of the opinion, of course, that theyhad nothing in common with in� dels and unbelievers. Yet Grotius wasanxious to dispel this assumption and wrote a short little treatise on thesubject alongside De Jure Praedae. The parallels between De Societate cumIn�delibus and De Jure Praedae are striking indeed. For example, Grotiusobserved in De Societate cum In�delibus that the New Testament taughtChristians to regard unbelievers as fellow men and to treat them well. Hemade the same argument in De Jure Praedae. The commandment “Thoushalt love thy neighbour as thyself ” was an injunction to love every humanbeing, not just fellow Christians. The parable of the Good Samaritan waspositive proof for Grotius that “the obligations of humane conduct are notdispelled on the grounds of religion.” (Borschberg, 1998:374; Hamaker,1868:298; Commentary on the Law of Prize and Booty I:315).


Grotius’ main authority on the question whether Christians might con-tract alliances and treaties with in� dels was, of course, the Spanish the-ologian Francisco de Vitoria (1485–1546). The latter’s Relectio Prima de Indiis(On the American Indians) was cited both in De Jure Praedae and De Societatecum In�delibus. Grotius averred in De Jure Praedae that alliances with in� delswere permissible “for the purpose of defending one’s own right,” whilearguing in De Societate cum In�delibus that non-aggression pacts betweenChristians and unbelievers followed from the natural law which dictatedinoVensiveness (i.e. nobody should harm another person). In each manu-script Grotius gave examples of biblical patriarchs and kings who had alliedthemselves with unbelievers. Abraham, Isaac, David and Solomon werementioned in both De Jure Praedae and De Societate cum In�delibus, for exam-ple (Hamaker, 1868:298; Commentary on the Law of Prize and Booty I:315;Borschberg, 1998:361–64, 372; Vitoria, 1991:231–92).

Grotius did not end Chapter 13 of De Jure Praedae with a mereaYrmation of the validity of Christian alliances with in� del rulers. Instead,Grotius turned his attention once again to the Sultan of Johore in orderto establish that Van Heemskerck and his ally had waged a just war againstMalacca. Grotius argued that Portuguese harassment of the Sultan, espe-cially Albuquerque’s attempt to forestall a Johorese-Dutch alliance, hadmade a mockery of “the law of nations” and “the distinct jurisdictions ofdiVerent princes.” Since injury was in� icted upon “a free king” (rex liber)and “since war was forthwith begun against him,” the Sultan could justi� ablyregard the Portuguese as enemies, both collectively and individually. Inconsequence, “the Portuguese were open to despoliation under the aus-pices of the ruler of Johore.” The Dutch had shown laudable piety in com-ing to the Sultan’s rescue. The cause of true religion could not have beenserved better according to Grotius. The conversion of indigenous peoplesto Christianity was contingent, � rst, upon their safety and welfare, and,second, upon examples of virtuous behaviour given by the Dutch. AsGrotius put it:

Let those peoples look upon religion stripped of false symbols, commercedevoid of fraud, arms unattended by injuries. Let them marvel at the faithwhich forbids that even in� dels should be neglected. In achieving these ends,we shall be preparing men for God (Hamaker, 1868:299; Commentary on theLaw of Prize and Booty I:316).

Grotius concluded that “from every standpoint” the Sultan of Johore andhis Dutch allies had waged a just war ( justum bellum) against the Portuguese.Hence the seizure of the Santa Catarina had been legitimate as well (Hamaker,1868:299; Commentary on the Law of Prize and Booty I:316).

Grotius then raised the question to whom the carrack belonged undernatural law. His answer was simple and straightforward: “the right to thatprize was vested in the ruler of Johore himself.” Yet both the Sultan and


Van Heemskerck would have been exceedingly puzzled by Grotius’ asser-tion if they had ever set eyes on it. There is no evidence to suggest thatthe Sultan staked a claim to the Santa Catarina at any point. For one thing,he considered its passengers and crew to be Van Heemskerck’s prisoners,not his own. Similarly, the Admiral did not meddle with the crew of aPortuguese junk that had been captured by the Johorese armada. In addi-tion, Van Heemskerck never considered himself the agent of the Sultan.He had seized the Santa Catarina by virtue of the commission granted himby Maurice of Nassau and in accordance with the resolution of the BroadCouncil of 4 December 1602. Following the carrack’s capture, it was VanHeemskerck who rewarded the Sultan, not the other way around. Grotiuswas clearly ignorant of the 10,000 guilders worth of presents given to theSultan and denied the existence of a “formal agreement as to compensa-tion” between the ruler and Van Heemskerck. He made it appear as ifthe Sultan had ceded the Santa Catarina to the VOC and as if the rulerhad done so for the same reason that the Estates of Holland renouncedits claim to the carrack 18 months later. The motives that Grotius ascribedto the Sultan happened to coincide with his own interpretation of theEstates’ resolution of 1 September 1604. While war had been waged underthe Sultan’s auspices, so Grotius argued, it had been done “by means ofships belonging to the East India Company, at the Company’s expenseand at its peril.” In consequence, the spoils of war belonged to the VOCaccording to “commonly accepted usages of war, con� rmed by naturalequity.” Having settled this point, Grotius made an attempt to integratethe various strands of argument. He conceptualised the Santa Catarina as aprize acquired:

at the command of the Estates General, on the grounds furnished by thewar waged in the name of Johore (ex causa belli Jorensis), at the expense ofthe Company, for that Company itself (Hamaker, 1868:299; Commentary onthe Law of Prize and Booty I:316).

The legitimacy of the carrack’s capture could not be doubted, regardlessof whether the war was public or private, or, assuming that the war waspublic, regardless of whether “it was waged on behalf of the fatherland oron behalf of allies” (ex patriae aut ex sociali causa). Pleased with the ingenu-ity of his summation, Grotius � nally observed — not without a certainsmugness — that “the Company itself became the owner of the above-mentioned prize, from the standpoint of all law” (Hamaker, 1868:287–88,295–96, 299; Commentary on the Law of Prize and Booty I:303–5, 312–13,316–17).


Appendix I

Peter Borschberg, the transcriber and editor of the Commentarius in ThesesXI, dates the treatise in the period 1603–1608. His main piece of evidenceis a watermark found in the manuscripts of De Jure Praedae and Commentariusin Theses XI. The watermark, depicted on p. 42 of Borschberg’s source edi-tion, consists of a crowned Imperial eagle bearing the Bishop’s StaV of thecity of Basel. As Borschberg points out:

such a unique watermark could not be produced for any signi� cant periodof time (especially bearing in mind the state and technology of paper pro-duction at the time). Given further that stocks of paper were not large enoughto have lasted for more than a couple of months — if not only weeks —the genesis of the Commentarius might be placed as early as 1603–1608, thatis approximately into the time of Grotius’ writing of the De Jure Praedae(Borschberg, 1994:197).

Watermarks can be tricky evidence, however. Borschberg identi� es thewatermark found in the Grotius papers with watermark no. 267 in TheAncient Paper-Mills of Basle and their Marks, a standard reference work. Yetwatermark no. 267 is dated 1615 in The Ancient Paper-Mills of Basle, whereaswatermark no. 266, its direct predecessor and look-alike, is dated 1605.Even if we presume that no. 266 corresponds with the watermark in themanuscripts of De Jure Praedae and the Commentarius in Theses XI, this cer-tainly does not mean that both treatises were written in the year 1605.Indeed, we know from Grotius’ correspondence that he started writing DeJure Praedae in September or October 1604 at the earliest and completedit in late October 1606. It should also be noted that the records of theBasle stationers are no longer extant and that the editors of The AncientPaper-Mills of Basle date watermarks on the basis of notarised papers, andother documents that were dated and signed (letters, for example) from allover Europe. It would have been suYcient for the editors of The AncientPaper-Mills of Basle to come across a document signed and dated in 1605and featuring the crowned Imperial eagle and Bishop’s StaV in order toassign the date of 1605 to that particular watermark. Needless to say, thisdoes not tell us anything about the start and � nish of the paper runs,about the time that elapsed before Basle printers actually sold their paperbatches, nor about the writing and storing habits of their clients. Didauthors like Grotius use paper immediately upon purchase or did theyleave it sitting at their desk for a signi� cant amount of time? All this sug-gests that Grotius may well have acquired his watermarked paper longbefore the year 1605. Since Grotius wrote De Jure Praedae roughly betweenOctober 1604 and November 1606, he used his watermarked paper bothbefore and after the oYcial date set by the editors of The Ancient Paper-Mills of Basle (Borschberg, 1994:42; Tschudin, 1958:169).


If watermarks can give us only a rough date for the Commentarius inTheses XI, Grotius’ correspondence allows us to date the manuscript muchmore precisely. It is quite possible that Grotius referred to the Commentariusin Theses XI in a letter to Daniel Heinsius, Professor of Greek and Latinat the University Leiden, dated 15 December 1604. Grotius added anintriguing postscript to his letter: “I send you two copies of my theses andretain just as many other copies. Greet the most agreeable Baudius on mybehalf.” The modern editor of Grotius’ correspondence, P.C. Molhuysen,assumes it to be a reference to Grotius’ student days in Leiden — uni-versity printer Thomas Basson had published two Aristotelian disputationsby Grotius in 1597, viz. De Postpraedicamentis and De in�nito, loco, et vacuo.Yet why should Grotius have shown any interest in his Leiden theses sevenyears after his own graduation from college, or distribute copies of a stan-dard student exercise in Aristotelian logic and natural philosophy? The stu-dia humanitatis was the main topic of discussion in Grotius’ correspondencewith Heinsius. Obscure problems in Aristotelian logic and natural philos-ophy were hardly the regular fare for this circle of humanist friends(Briefwisseling, 1928:47–48)!

Another reference to the Commentarius in Theses XI may be found in aletter of Dominicus Baudius, Professor of Eloquence at the UniversityLeiden. He wrote to Grotius in the winter of 1604 and concluded withthe following observation:

[t]he Theses which you demand from me, I was not able to obtain fromthe stationer who caused them to be printed. He destroyed all copies. I willappeal to him today or tomorrow. Vale (Briefwisseling, 1928:49).

Molhuysen argues in a footnote that the theses in question must be Grotius’disputations on Aristotelian logic and natural philosophy. Yet why wouldGrotius have wanted to retrieve copies of these disputations and sendBaudius on this tedious errand? It should also be noted that Baudius didnot mention Thomas Basson by name in his letter, but just used the genericterm typographum. In other words, Baudius may not have visited Basson atall, but another publishing house instead, like, for example, Elzevier, whichpublished Mare Liberum in 1609. In that case, Baudius could hardly haveintended to retrieve printed copies of Grotius’ disputations (Briefwisseling,1928:49).

If Grotius and Baudius did not have these disputations in mind whilewriting their respective letters, what were they referring to? There are twopossibilities based on Grotius’ surviving papers in Leiden University Library,viz. Grotius’ Commentarius in Theses XI and his Theses LVI (Leiden UniversityLibrary, B.P.L. 922–I, fol. 276–83, 287–92). Theses LVI is an early workon social contract theory and the origin of the state, probably written inconjunction with De Jure Praedae. Indeed, fol. 288 of Theses LVI featuresthe same watermark found in Commentarius in Theses XI and in De Jure


Praedae, viz. the crowned Imperial eagle bearing the Bishop’s StaV of thecity of Basle.

Yet the formats of these works could not have been more diVerent.The running text of Theses LVI is strictly limited to the right column ofeach page, while the running text of Commentarius in Theses XI covers two-thirds or three-quarters of each page. The left column in Theses LVI is usedalmost exclusively for book references, while the left margin of Commentariusin Theses XI is quite small and contains mostly corrections of the runningtext. Grotius provided the Commentarius in Theses XI with a title, a prefaceand conclusion, and even made an attempt to write legibly when he copiedout the manuscript! All that is completely lacking in Theses LVI. Since eachthesis consists of just two or three lines of text, Theses LVI must be con-sidered an outline or sketch, rather than a well-rounded argument. Of thetwo manuscripts, Commentarius in Theses XI is clearly the most publishable,while it also � ts the bill for the mysterious theses mentioned in Grotius’correspondence.

Appendix II

In his 1868 article, “Een onuitgegeven werk van Hugo de Groot,” theDutch historian Robert Fruin suggested that De Jure Praedae had been writ-ten sometime between August 1604 and the summer of 1605. Fruin basedthis conjecture on the manuscript’s references to contemporary domesticand international politics. Grotius discussed the “recent” capture of Sluis(August 1604), for example, yet made no reference to an edict promul-gated by Philip III of Spain and Portugal in April 1605, which con� rmedthe Portuguese in their monopoly of the East Indies trade. Since Grotiuswas familiar with the edict — he mentioned it in Annales et Historiae, forexample, its omission from De Jure Praedae was evidence for Fruin that themanuscript had been completed by the summer of 1605. As we know, thiswas not the case. Only in November 1606 did Grotius announce in a let-ter to George Lingelsheim, town councillor at Heidelberg, that he had atlast completed his de rebus Indicis opusculum (Fruin, 1901a, III:407–8; Commentaryon the Law of Prize and Booty I:360; Nederlandtsche Jaerboeken en Historien: 448,494; Briefwisseling, 1928:72).

There is a possibility, however, that Grotius wrote Chapter 11 of DeJure Praedae in the winter of 1605 and Chapter 15 in the spring. For onething, Chapters 11, 14 and 15 contain far fewer traces of editing andrewriting than other parts of the manuscript. It should also be noted thatGrotius emphasised the theoretical aspects of De Jure Praedae in his letterto Lingelsheim, dated 1 November 1606. As Grotius put it himself:

[t]he little treatise on Indian aVairs is complete: but I do not know whetherit should be published as it was written or only those parts which pertain


to the universal law of war and booty. Many indeed have dealt with thissubject that is both old and new. But I believe that new light can be thrownon the matter with a � xed order of teaching, the right proportion of divineand human law mixed together with the dictates of philosophy (Briefwisseling,1928:72).

In other words, it is quite feasible that Grotius worked on his dogmatica deJure Praedae until the very last, revising them endlessly when Chapters 11,14 and 15 had been completed long since. Signi� cantly, Chapters 11, 14and 15 were not uppermost in Grotius’ mind in November 1606. At thatpoint he clearly believed that the dogmatica de Jure Praedae, the chapters onwhich he worked for so long, were his greatest achievement (Commentary onthe Law of Prize and Booty I:72–95, 144–63; Briefwisseling, 1928:72).

Appendix III

There are, of course, a number of possibilities that would explain thede� ciency between the Portuguese freight list and Van Heemskerck’s owninventory of the Santa Catarina’s cargo. The Portuguese freight list may havebeen unreliable, and goods could have been destroyed in battle. VanHeemskerck himself suspected that the carrack’s passengers and crew man-aged to take some belongings with them at disembarkation. It is also feasible, however, that Van Heemskerck’s inventory excludes the goodsappropriated by himself and his crew. The Admiral would never have men-tioned anything of the kind in his letters to the VOC directors. Yet therecan be little doubt that Van Heemskerck and his crew had their takesbefore their arrival in Holland (Dutch National Archives, SG 12551.21,unfoliated).

In accordance with its resolution of 4 December 1602, the BroadCouncil gave permission to the crew of the White Lion and Alckmaer to plun-der the personal belongings of their Portuguese counterparts if they man-aged to seize a carrack. In addition, the Broad Council promised the sailorsa percentage of the booty equal to what Dutch navy crews received uponthe capture of an enemy ship. Yet Van Heemskerck’s men insisted on hav-ing their share of the spoils before their arrival in Holland. As a result,the prize goods were at least divided twice among Admiral and crew, onceat Bantam and once at St Helena, which may have cost the VOC direc-tors approximately 90,000 Dutch guilders. Not surprisingly, the VOC direc-tors accused Van Heemskerck and Pauwels of embezzlement soon aftertheir return to Amsterdam. The directors alleged in a notarised statementthat 3,000 guilders worth of booty had been found in the trunks of theAdmiral and his second-in-command (Dutch National Archives, SG 12551.21,unfoliated).


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