Rare Books Blog

October 23, 2009

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius’s Mare Liberum
Part 8

For the 17th century Mare liberum and Mare clausum were the centerpieces of the debate between advocates of exclusive and inclusive uses of ocean space. In England, Mare clausum reigned supreme as the authority on all questions of sovereignty at sea, although its authority on more mundane legal issues of maritime law yielded late in that century to Charles Molloy’s De jure maritime et navali, or, A Treatise of Affaires Maritime, and of Commerce (1676), which dealt with mercantile questions such as bills of exchange, insurance and maritime loans.

Molloy, Charles (1646-1690). De jure maritimo et navali (London, 1682).
This popular work went through 12 editions between 1676 and 1778.
Rare Book Collection, Lillian Goldman Law Library.

Neither Welwood nor Selden dealt decisively with the question of how far out to sea a sovereign’s territorial sea could extend: Welwood seemed to suggest one hundred miles, but left the issue open; Selden finessed it entirely.  In time, British maritime power rendered such matters moot: as an old saw had it, “Britannia rules the waves – and waives the rules.”

But by the end of the century, support was growing elsewhere for some limitation to the seaward extent of territorial waters. What emerged was the so-called “cannon shot rule”, which deferred in theory to the idea that property rights could be acquired by actual occupation, and in practice to the effective range of shore-based cannon: about three nautical miles. The rule has long been associated with Cornelis van Bijnkershoek (1673-1743), a Dutch jurist who, especially in his De dominio maris (1702), advocated a middle ground between the extremes of Grotius and Selden, accepting both the freedom of states to navigate and exploit the resources the of the high seas and a right of coastal state to assert wide-ranging rights in a thus limited territorial sea.

Bijnkershoek, Cornelis van (1673-1743). De dominio maris (The Hague, 1703).
Special Collections, Harvard Law School Library.

Viewed in historical perspective, what emerged from the 17th-century debate were not just these two legal regimes, but a more inclusive one – international law – to govern humanity’s common interest in the use of shared space and shared resources, interest as to which the future may well offer exhibits of its own.

– Notes by Edward Gordon

“Freedom of the Seas, 1609: Grotius and the Emergence of International Law,” curated by Edward Gordon and Michael Widener, is on display October 2009 through January 2010 in the Rare Book Exhibition Gallery, Level L2, Lillian Goldman Law Library, Yale Law School.

October 23, 2009

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius's Mare Liberum

 

The Development of the Law of the Sea in the 17th Century: A Bibliography of Modern Scholarship
Compiled by Edward Gordon

 

Akashi. Kinji. Cornelius van Bynkershoek: His Role in the History of International Law. The Hague: Kluwer, 1998.

Alexandrowicz, C.H. An Introduction to the History of the Law of Nations in the East Indies. Oxford: Clarendon, 1967.

Alexandrowicz, C.H. "Freitas versus Grotius," 35 British Yearbook of International Law 162 (1959).

Allen, E.W. "Freedom of the Seas," 60 American Journal of International Law 814 (1966).

Alsop, J.D. "William Welwood, Anne of Denmark and the Sovereignty of the Sea," 49 Scottish Historical Review 171 (1980).

Amaral, Sylvino Gurgel do. "Le ‘Mare Liberum' et ses adversaries", in Hugo Grotius: Essays on His Life and Works Selected for the Occasion of the Tercentenary of His ‘De Jure Belli ac Pacis' 1625-1925 (A. Lysen ed.; Leyden: A.W. Sythoff, 1925). [Translated from the Portuguese, where it appeared in the author's Ensaio subre a vide e obras de Hugo de Groot (Grotius) (Rio de Janeiro-Paris, 1903).]

Anand, R.P. Origins and Development of the Law of the Sea: History of International Law Revisited. The Hague: Nijhoff, 1983.

Andrews, Kenneth R. Ships, Money and Politics: Seafaring and Naval Enterprise in the Reign of Charles I. Cambridge: Cambridge University Press, 1991.

Armitage, David. The Ideological Origins of the British Empire. Cambridge: Cambridge University Press, 2000.

Armitage, David, ed. The Free Sea: Hugo Grotius, Translated by Richard Hakluyt; with William Welwood's Critique and Grotius's Reply. Indianapolis: Liberty Fund, 2004.

Blom, Hans W., ed. Property, Piracy and Punishment: Hugo Grotius on War and Booty in De Jure Praedae – Concepts and Contexts. Leiden: Brill, 2009.

Borschberg, Peter. "Grotius, Intra-Asian Trade and the Portuguese Estado da India Problems," in Property, Piracy and Punishment: Hugo Grotius on War and Booty in De Jure Praedae – Concepts and Contexts ( Hans W. Blom, ed.; Leiden: Brill, 2009).

Borschberg, Peter. "The Seizure of the Sta. Catarina Revisited: The Portuguese Empire in Asia, VOC Politics and the Origins of the Dutch-Johor Alliance (1602-ca. 1616)," 33 Journal of Southeast Asian Studies 31 (2002).

Braudel, Fernand. The Mediterranean and the Mediterranean World in the Age of Philip II. New York: Harper & Row, 1972.

Brett, Annabel. Liberty, Right and Nature: Individual Rights in Latin Scholastic Thought. Cambridge: University Press, 1997. [See pp. 165-204, on Vásquez.]

Brito Vieira, Monica. "Mare liberum vs. Mare clausum: Grotius, Freitas, and Selden's Debate on Dominion over the Seas," 64 Journal of the History of Ideas 361 (2003).

Butler, Geoffrey; & Simon Maccoby. The Development of International Law. London: Longmans, Green 1928. [See esp. pp. 40-60, "The World by Sea".]

Butler, W.E. "Grotius and the Law of the Sea," in Hugo Grotius and International Relations (H. Bull, A. Roberts & B. Kingsbury, eds.; Oxford: Oxford University Press, 1990).

Chatterjee, Hiralal. International Law and Inter-State Relations in Ancient India. Calcutta: Mukhopadhyay, 1958.

Christianson, Paul. Discourse on History, Law, and Governance in the Public Career of John Selden, 1610-1635. Toronto: Toronto University Press, 1996.

Clark, G. N. "Grotius's East India Mission to England," 20 Transactions of the Grotius Society 45 (1935).

Clark, G. N., & van Eysinga, W. J. M. "The Colonial Conferences between England and the Netherlands in 1613 and 1615," 15 Bibliotheca Visseriana 15 (1940).

De Pauw, F. E. R., ed. Grotius and the Law of the Sea (P.J. Arthern, transl.). Brussels: Institut de Sociologie, 1965.

Diesselhorst, Malte. "Hugo Grotius and the Freedom of the Seas," 3 Grotiana (N.S.) 11 (1982).

Dumbauld, E. "Grotius on the Law of Prize," 14 Journal of Public Law 370 (1965).

Edmundson, George. Anglo-Dutch Rivalry during the First Half of the Seventeenth Century. Oxford: Clarendon Press, 1911.

Eysinga, William J. M. van. "Quelques Observations au Sujet du Mare Liberum et du De Jure Praedae de Grotius," 9 Grotiana 60 (1942).

Eysinga, William .M. van. "Le 350ieme anniversaire du ‘De jure Praedae commentarius' de Grotius" [French translation of address of the Royal Dutch Academy of Sciences and Letters, March 24, 1956], in Sparso Collect (Leyden 1958), pp. 358-374.

Fenn, Percy Thomas, Jr. The Origin of the Right of Fishery in Territorial Waters. Cambridge, MA: Harvard University Press, 1926. [See esp. ch. VIII, "Mare liberum versus Mare clausum."]

Fenn, Percy Thomas, Jr. "Origins of the Theory of Territorial Waters," 20 American Journal of International Law 465 (1926).

Fenn, Percy Thomas, Jr. "Justinian and the Freedom of the Seas," 19 American Journal of International Law 465 (1925).

Fruin, Robert. "An Unpublished Work of Hugo Grotius," 5 Bibliotheca Visseriana 3 (1925). [English translation of a work first published, in Dutch, in 1868.]

Fulton, Thomas Wemyss. The Sovereignty of the Seas: An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters: With Special Reference to the Rights of Fishing and the Naval Salute. Edinburgh: William Blackwood, 1911.

Gepken-Jager, Ella; Gerard van Solinge, & Levinus Timmerman. VOC 1602-2002: 400 Years of Company Law. Deventer: Kluwer, 2005

Goldwin, R.A. "Locke and the Law of the Sea," 71 Commentary 46 (June 1981).

[Grotius, Hugo]. De jure praedae commentaries. I. Commentary on the Law of Prize and Booty. Gwladys L. Williams and Walter H. Zeydel, transl.. II. The Collotype Reproduction of the Original Manuscript on 1604 in the Handwriting of Grotius. 2 vols. Oxford: Clarendon, 1950.

Grotius, Hugo. "Defense of Chapter V of the Mare Liberum," in 7 Bibliotheca Visseriana 154 (1928). [Originally written between 1613 and 1617.]

Haggenmacher, Peter. "Grotius and Gentili: A Reassessment of Thomas E. Holland's Inaugural Lecture," in Hugo Grotius and International Relations (H. Bull, A. Roberts & B. Kingsbury, eds.; Oxford: Oxford University Press, 1990).

Hakluyt, Richard. The Original Writings and Correspondence of the Two Richard Hakluyts. 2 vols. E.G.R.Taylor, ed. London: Hakluyt Society, 1935.

Holk, L.E. van, & C.G. Roeflofsen, eds. Grotius Reader: A Reader for Students of International Law and Legal History. The Hague: T.M.C. Asser Instituut, 1983.

Ito, F. "The Thoughts of Hugo Grotius in the Mare Liberum," 18 Japanese Annual of International Law 1 (1974).

Ittersum, Martine van. Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies (1595-1615). Boston: Brill, 2006.

Ittersum, Martine van, ed. Commentary on the Law of Prize and Booty: Hugo Grotius. Indianapolis: Liberty Fund, 2006.

Ittersum, Martine van. "Dating the Manuscript of De Jure Praedae (1604-1608): What Watermarks, Foliation and Quire Divisions Can Tell Us About Hugo Grotius' Development as a Natural Rights and Natural Law Theorist," 35 History of European Ideas 125 (2009).

Ittersum, Martine van. "Mare Liberum in the West Indies? Hugo Grotius and the Case of the Swimming Lion, a Dutch Pirate in the Caribbean at the Turn of the Seventeenth Century," 31:3 Itinerario 59 (2007).

Ittersum, Martine van. "Mare Liberum versus the Propriety of the Seas? The Debate between Hugo Grotius and William Welwood and the Impact on Anglo-Scottish-Dutch Fishing Disputes in the Second Decade of the Seventeenth Century," 10 Edinburgh Law Review 239 (2006).

Kenworthy, J.M., & George Yound. Freedom of the Seas. London: n.d.

Knight, William S.M. "Seraphin de Freitas: Critic of Mare liberum," 11 Transactions of the Grotius Society 1 (1926).

Kwiatkowska, B. "Hugo Grotius and the Freedom of the Seas," in Hugo Grotius: 1583-1983: Maastricht Hugo Grotius Colloquium March 31, 1983 (J.L.M. Elders et al., eds.; Van Gorcum: Assen, 1984).

Landwehr, John. VOC: A Bibliography of Publications Relating to the Dutch East India Company 1602-1800. Utrecht: HGS Publishers, 1991.

Lauterpacht, Hersch. "The Grotian Tradition in International Law," 23 British Yearbook of International Law 1 (1946).

Macrae, L.M. "Customary International Law and the United Nations' Law of the Sea Treaty," 13 California Western International Law Journal 181 (1983).

Meurer, Christian. The Program of the Freedom of the Seas: A Political Study in International Law. Leo J. Frechtenberg, transl. Washington: GPO, 1919.

Molen, G.H.J. van der. Alberico Gentili and the Development of International Law: His Work and Times. Amsterdam: H.J. Paris, 1937. [Later printing: Leyden 1968. See esp. ch. VI, "Questions of International Law."]

O'Connell, D.P. The International Law of the Sea. London: OxfordUniversity Press, 1983.

Oudendijk, J.K. Status and Extent of Adjacent Waters: A Historical Orientation. Leyden: Sijthoff, 1970.

Pagden, Anthony. Lords of All the World: Ideologues of Empire in Spain, Britain and France c.1500-1800. New Haven: Yale University Press, 1995. [See esp. pp. 56-61 on Vasquez.]

Parks, George Bruner. Richard Hakluyt and the English Voyages. New York: American Geographical Society, 1928.

Piggott, Frances. The Freedom of the Seas Historically Treated. Oxford: printed for the Historical Section of the Foreign Office, 1919.

Porras, Ileana M. "Constructing International Law in the East Indian Seas: Property, Sovereignty, Commerce and War in Hugo Grotius' de Iure Praedae - The Law of Prize and Booty, or on How to Distinguish Merchants from Pirates," 31 Brooklyn Journal of International Law 741 (2005-2006).

Potter, Pitman B. The Freedom of the Seas in History, Law, and Politics. New York: Longmans, Green, 1924. [Reprint 2002. See esp. ch. IV, "The Grotius-Selden Controversy."]

Quinn, D.B. "A Hakluyt Chronology," in The Hakluyt Handbook (D.B. Quinn, ed.; 2 vols.; London: Hakluyt Society, 1974).

Rawlinson, H.G. Intercourse between India and the Western World: From the Earliest Times to the Fall of Rome. Cambridge: University Press, 1926.

Roelofsen, C.G. "The Sources of Mare Liberum; the Contested Origins of the Doctrine of the Freedom of the Seas," in International Law and its Sources: Liber Amicorum Maarten Bos (W.P. Heere, ed.; Boston: Kluwer, 1988). [Reprinted in C.G. Roelofsen, Studies in the History of International Law: Practice and Doctrine in Particular with Regard to the Law of Naval Warfare in the Low Countries from circa 1450 Until the Early 17th Century (Utrecht: Rijksuniversiteit te Utrecht, 1991).]

Roelofsen, C.G. "Grotius and the International Politics of the Seventeenth Century," in Hugo Grotius and International Relations (H. Bull, A. Roberts & B. Kingsbury, eds.; Oxford: Oxford University Press, 1990). [Reprinted in C.G. Roelofsen, Studies in the History of International Law: Practice and Doctrine in Particular with Regard to the Law of Naval Warfare in the Low Countries from circa 1450 Until the Early 17th Century (Utrecht: Rijksuniversiteit te Utrecht, 1991).]

Roelofsen, C.G. "Grotius and State Practice of His Day," 10 Grotiana 3-46 (1989). [Reprinted in C.G. Roelofsen, Studies in the History of International Law: Practice and Doctrine in Particular with Regard to the Law of Naval Warfare in the Low Countries from circa 1450 Until the Early 17th Century (Utrecht: Rijksuniversiteit te Utrecht, 1991).]

Roelofsen, C.G. Review of Anand, Origins and Development of the Law of the Sea, 31 Netherlands International Law Review 117 (1984).

Rogers, F.M. "Hakluyt as Translator," in The Hakluyt Handbook (D.B. Quinn, ed.; 2 vols.; London: Hakluyt Society, 1974).

Steinburg, Philip G. The Social Construction of the Oceans. Cambridge: University Press, 2001. [See esp. pp. 92 et seq.]

Toomer, G. J. John Selden: A Life in Scholarship. 2 vols. Oxford: Oxford University Press, 2009. [See vol. 1, ch. 12, "Mare Clausum."]

Trevor-Roper, H. From Counter-Reformation to Glorious Revolution. Chicago: University of Chicago Press, 1982.

Vollenhoven, C. The Three Stages in the Evolution of the Law of Nations. The Hague: Nijhoff, 1919.

Vreeland, Hamilton. Hugo Grotius: The Father of the Modern Science of International Law. New York: Oxford University Press, 1917. [See esp. pp. 39-67.]

Wade, Thomas C. "Introductory Essay: The Freedom of the Sea," in Sir John Boroughs, The Sovereignty of the British Seas (Edinburgh: W. Green & Sons, 1920).

Wilkinson, John. "The First Declaration of the Freedom of the Seas: The Rhodian Sea Laws," appendix to Ch. XIX of the same author's paper, "A Tentative Program for Simulation of Historical ‘Ecology' of the Mediterranean," in The Mediterranean Marine Environment and Development of Region (Malta: Royal University of Malta Press, 1974).

Wilson, Eric. Savage Republic: De Indis of Hugo Grotius, Republicanism and Dutch Hegemony with the Early Modern World Systems (c.1600-1619). Leiden: Martinus Nijhoff, 2008.

Winstedt, Richard; & P.F. De Josselin De Jong, "Maritime Law of Malacca," 29 (Pt. 3) Journal of the Royal Asiatic Society (Aug. 1956).

Wright, Herbert F. "Some Lesser Known Works of Hugo Grotius," 7 Bibliotheca Visseriana 132 (1928). [Four works are reproduced, of which two are translations: one of Grotius's works on fisheries in his controversy with William Welwood, another a translation of extracts from Grotius's letters concerning international and natural law and fisheries. See esp. "Defense of Chapter V of the Mare Liberum."]

Zemanek, Karl. "Was Hugo Grotius Really in Favour of the Freedom of the Seas?", 1 Journal of the History of International Law 48 (1999).

Ziskind, Jonathan. "International Law and Ancient Sources: Grotius and Selden," 35 Review of Politics 537 (No. 4, 1973).

 

"Freedom of the Seas, 1609: Grotius and the Emergence of International Law," curated by Edward Gordon and Michael Widener, is on display October 2009 through January 2010 in the Rare Book Exhibition Gallery, Level L2, Lillian Goldman Law Library, Yale Law School.

October 23, 2009

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius’s Mare Liberum

ACKNOWLEDGMENTS

Thanks to the following individuals and institutions for their assistance in preparing this exhibit:

David Warrington
Librarian for Special Collections
Harvard Law School Library

Kathryn James
Assistant Curator, Early Modern Books and Manuscripts
Beinecke Rare Book & Manuscript Library, Yale University

Christine McCarthy
Chief Conservator
Yale University Library

Tara Kennedy
Preservation Field Services Librarian
Yale University Library

Shana Jackson
Lillian Goldman Law Library

Benjamin Yousey-Hindes
Stanford University

The portrait of Hugo Grotius is from: Hugo Grotius, Inleydinghe tot de Hollandsche rechtsgheleerdheydt (Haarlem, 1636). Rare Book Collection, Lillian Goldman Law Library.

“Freedom of the Seas, 1609: Grotius and the Emergence of International Law,” curated by Edward Gordon and Michael Widener, is on display October 2009 through January 2010 in the Rare Book Exhibition Gallery, Level L2, Lillian Goldman Law Library, Yale Law School.

October 22, 2009

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius’s Mare Liberum
Part 7

In supporting his case with a massive showing of state practice, Selden was able to draw upon historical research done by the Keeper of the Records in the Tower of London, Sir John Borough, whose work, The Sovereignty of the British Seas Proved by Records, History, and the Municipall Lawes of the Kingdome, written in 1633, was published only posthumously in 1651.

Borough, John (d. 1643). The soveraignty of the British seas (London, 1739).
The third edition.
Collection of Edward Gordon.

Grotius, too, was able to draw upon earlier work. Some of his arguments had been anticipated by the writings of Alberico Gentili (1552-1608), an Italian émigré who became Regius Professor of Civil Law at Oxford, and at least as prominently, an admiralty lawyer in London, representing the king of Spain. Gentili died before the publication of Mare liberum, but in his notes in defense of Spanish claims, published posthumously in 1613 as Hispanicae advocationis, he organized the issues far more systematically than the youthful Grotius had been able to do in Mare liberum.

Like Grotius, Gentili said that under Roman law, consistently with natural law, the open sea was common property. But he recognized the gap between principle and practice, bridging it by distinguishing dominium (ownership) from jurisdictio (jurisdiction) – the latter, unlike the former, being applicable to the high seas. He also distinguished coastal waters from the high seas, insisting, however, that a coastal state’s right to control its territorial seas did not justify closing them to foreign navigation.

His ideas anticipated those of De jure belli ac pacis as well. In his use of phrases like ius inter gentes and societas humana, for example, Gentili may be said to have initiated the liberation of the law of nations conceptually from both Roman law and the guardianship of theology. Not until the late 19th century, however, was the extent of influence on Grotius recognized by scholars. Only then did Gentili’s reputation as a founder of modern international law begin to rival that of Grotius himself.

– Notes by Edward Gordon

Gentili, Alberico (1552-1608). Hispanicae advocationis libri duo (Hanover, 1613).
Special Collections, Harvard Law School Library.

“Freedom of the Seas, 1609: Grotius and the Emergence of International Law,” curated by Edward Gordon and Michael Widener, is on display October 2009 through January 2010 in the Rare Book Exhibition Gallery, Level L2, Lillian Goldman Law Library, Yale Law School.

October 22, 2009

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius’s Mare Liberum
Part 1

Grotius, Hugo (1583-1645). Mare liberum (Leiden, 1609).
Grotius launched his illustrious career in international law with this little book that initially did not bear his name.
Special Collections, Harvard Law School Library.

This exhibit marks the 400th anniversary of the publication of Hugo Grotius’s Mare liberum, a short work, originally published as a pamphlet, which produced the first effective argument for the freedom of the seas and, with Grotius’s more mature work, De jure belli ac pacis (1625), lent substance and prestige to the idea of an international law in the service of the common good.

In principle, the Roman Civil Law had already established that navigation on the high seas was open to all. But in practice the principle was frequently disregarded  – even by Rome itself, when its naval power was at its height, and by others after its decline. With the growth of maritime commerce, especially in the later Middle Ages, maritime powers asserted dominion over wide areas of ocean space: Venice to dominion over the Adriatic Sea (Guido Pace, De dominio maris Adriatico, 1619); Genoa the Ligurian (Pietro Battista Borgo, De dominio serenessimae Genuinsis Reipublica in mari Liguria, 1641); Sweden, Denmark and Poland to all or parts of the Baltic.

Early efforts to codify maritime law, such as the 12th century Laws of Oleron and the Consolat de Mar (ca. 1484) had codified admiralty law on a range of subjects, including, for example, ship ownership, discipline and punishment of crews, and salvage.

– Notes by Edward Gordon

Pace, Giulio (1550-1635). De dominio maris Hadriatici desceptatio (Lyons, 1619).
Rare Book Collection, Lillian Goldman Law Library.

Libro llamado Consulado de mar (Valencia, 1539).
A translation from the original Catalan into Spanish of “The Book of the Consulate of the Sea,” the basis for much of Europe’s maritime law.
Rare Book Collection, Lillian Goldman Law Library.

“Freedom of the Seas, 1609: Grotius and the Emergence of International Law,” curated by Edward Gordon and Michael Widener, is on display October 2009 through January 2010 in the Rare Book Exhibition Gallery, Level L2, Lillian Goldman Law Library, Yale Law School.

October 22, 2009

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius’s Mare Liberum
Part 2

Early efforts to codify maritime law did little to resolve claims growing out of acrimonious political disputes over rights to trade with the Americas and the East Indies. The most extensive of these claims were ones made beginning in the mid 15th century by Spain and Portugal, respectively, following the discoveries of the New World and maritime trade routes to Asia. Initially based upon papal grants, the claims were said to have been established by an award made by Pope Alexander VI in 1493, perfected the following year in the Treaty of Tordesillas. Together they purported to justify the exclusion of other states not only from sharing in dominion over the newly discovered lands, but from navigating the trade routes and carrying on profitable trade with their inhabitants, as well. The two countries’ rival claims were resolved by fixing a line drawn 370 leagues west of the Cape Verde Islands, with Spain receiving all the lands west of the line, Portugal those to the east. Portugal then claimed sovereignty over the Indian Ocean and the south Atlantic, Spain over the Pacific and the Gulf of Mexico.

The pope’s authority to grant these rights did not go uncontested, even within Catholic Spain itself. As early as 1564, in Illustrium controversiarum, a prominent Spanish jurist named Fernando Vázquez Menchaca (1512-1569) attacked Venice and Genoa’s claims to dominion over parts of the Mediterranean, defending freedom of the seas itself. Other European states rejected Spain and Portugal’s claims even more energetically, not only because, as had quickly become apparent, the logic underlying the line purportedly dividing their dominions had been undercut by the realization that it could be approached both from the east and the west, but for the practical reason that the two countries were manifestly unable to enforce them.

Even Queen Elizabeth of England, while herself demanding that foreign vessels entering waters claimed by England strike their topsails and take in their flags in recognition of Britain’s sovereign jurisdiction, declared that the exclusion of foreign merchants from Indian commerce was contrary to the law of nations. “The use of the sea and the air is common to all,” she told the Spanish ambassador, “neither can any title to the Ocean belong to any people or private man, forasmuch as neither Nature, nor regard of the public use and custom permitteth any possession thereof.”

– Notes by Edward Gordon

Vázquez Menchaca, Fernando (1512-1569). Controversiarum usu frequentium libri tres (Barcelona, 1563).
Special Collections, Harvard Law School Library.

“Freedom of the Seas, 1609: Grotius and the Emergence of International Law,” curated by Edward Gordon and Michael Widener, is on display October 2009 through January 2010 in the Rare Book Exhibition Gallery, Level L2, Lillian Goldman Law Library, Yale Law School.

October 22, 2009

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius’s Mare Liberum
Part 3

The tension generated by Spanish and Portuguese claims to maritime dominion intensified at the start of the 17th century. An exponential growth in world trade and, especially, aggressive efforts by the Dutch East India Company to protect its right to engage in it, brought the issue to a head. The Company was organized by the Dutch government in 1602 with a view to expanding the capital base, and enhancing the collective security, of the individual ship owners and captains who up to that point had had to fend off Spanish and Portuguese naval vessels on their own.

The stage was set for a dramatic confrontation. It took place in February 1603, when a small fleet belonging to the Company attacked and overwhelmed a richly laden Portuguese vessel, the Santa Catarina, near Singapore. The captured vessel and cargo were brought back to the Netherlands, where a Dutch court ordered the proceeds of its sale distributed to the Company, the admiral of the fleet and his crew. A furious row erupted over the legality of the seizure, which struck many as immoral – in fact, scarcely distinguishable from outright piracy.

The case presented complex legal issues. The need to defend its right to participate in the East India trade had arisen in the course of the young Dutch republic’s war of independence against Spain, which by then held dominion over Portugal and regarded the Dutch as no more than rebellious subjects. Moreover, as some of the Company’s dissident shareholders themselves pointed out, the Company had been organized as a private mercantile enterprise, not as a vehicle for engaging in an aggressive war, much less for enriching itself in the process.

Some of the shareholders threatened to withdraw their capital, to form a new enterprise in competition, even to make common cause with a French company projected by Henry IV. The Company’s very existence was thought to be at risk – and with it the future of the young republic’s burgeoning overseas commerce.

To win over popular support, the Company turned to Hugo Grotius (1583-1645), then only twenty-one years old and too new to the practice of law to have been hired to handle the Santa Catarina litigation itself, but already renown throughout Europe for his prodigious erudition, his knowledge of the wisdom and practices of nations from biblical and classical times. Henry IV himself had greeted Grotius’s arrival in France as a fifteen-year-old diplomatic attaché by having a medal struck in his honor, declaring the young man to be nothing less than “the miracle of Holland.” In effect, Grotius’s defense of the Company’s position was tantamount to a celebrity endorsement, as valuable to the Company in this respect as by the persuasiveness of whatever legal argument he could muster in support of its actions.

Grotius immediately set about preparing a treatise that would portray the Company’s action in the context of a comprehensive theory of the law of prize. But before he could finish it, it had already been overtaken by events. The dissident shareholders had made good on their threat, to the extent of withdrawing their capital, but had failed to organize another company or to persuade the French to do so. Just as important, the Company’s commercial success had precipitated a change in public sentiment, effectively silencing critics of its aggressiveness. Moreover, and perhaps even more critically, an end was in sight to Holland’s decades-old war of independence from Spain. The moment, perforce, was inauspicious for a verbal assault on Spain and Portugal’s claims to a global monopoly. Grotius’s monograph, substantially completed by 1604, went unpublished – for the time being.

Grotius seems to have been dissatisfied with the work, anyway. In a letter written in November 1606, he says: “My little work on Indian affairs is finished, but I do not know whether it ought to appear in its present form, or only those parts which relate to the general law of war and prize.”

By 1608, however, events had taken another turn. The Company was becoming increasingly alarmed over reports that, in pursuit of a truce with Spain and of obtaining its recognition of Dutch independence, the Dutch government was prepared to concede Spain’s right to’exclude the Dutch from the eastern seas. At the Company’s urging, Grotius returned to his manuscript, rewriting the introduction and expanding the conclusion of one of its chapters, Chapter XII – the one in which he dealt specifically with the legal basis of the freedom of the seas.

This one chapter, entitled Mare liberum, was published the following spring, by itself, as a pamphlet. No mention was made of the identity of its author (although the fact that it was none other than the celebrated Grotius quickly became known locally and in England). The rest of the monograph was consigned to Grotius’s personal papers. Though alluded to in his private correspondence, its existence was practically unknown until a manuscript copy was discovered nearly three centuries later and published, in 1868, under the title De jure praedae (On the Law of Prize).

– Notes by Edward Gordon

Grotius, Hugo (1583-1645). De jure praedae commentarius [facsimile] (New York, 1952).
A facsimile of the manuscript Grotius completed in 1604, showing Chapter XII, which was published five years later as Mare liberum.
Rare Book Collection, Lillian Goldman Law Library.

Grotius, Hugo (1583-1645). De jure praedae commentarius (The Hague, 1868).
Rare Book Collection, Lillian Goldman Law Library.

Grotius, Hugo (1583-1645). Mare liberum (Leiden, 1618).
The 2nd edition of Mare liberum, and the first to bear Grotius’s name.
Rare Book Collection, Lillian Goldman Law Library.

Grotius, Hugo (1583-1645). Hugo Grotius Mari libero et P. Merula De maribus (Leiden, 1633).
This edition includes a related work on maritime affairs by the Dutch scholar Paulus Merula.
Rare Book Collection, Lillian Goldman Law Library.

Grotius, Hugo (1583-1645). Vrye zeevaert (Haarlem, 1636).
An early Dutch translation of Mare liberum.
Rare Book Collection, Lillian Goldman Law Library.

“Freedom of the Seas, 1609: Grotius and the Emergence of International Law,” curated by Edward Gordon and Michael Widener, is on display October 2009 through January 2010 in the Rare Book Exhibition Gallery, Level L2, Lillian Goldman Law Library, Yale Law School.

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