Rare Books Blog

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 4

As it happens, the publication of Mare liberum came too late to influence negotiations with Spain. It served instead to ignite a fierce debate over the freedom of the seas that continued throughout the 17th century – what later scholars were to call the “Battle of the Books.” Grotius contended that nature and public utility alike forbid the acquisition of property rights in the sea. Unlike land, the sea (and the air) cannot in practice be occupied, demonstrating that nature intended it to be free to all to use. Being inexhaustible in use, moreover, it is not susceptible of occupation, which is necessary when the utility of things can be preserved only if they become private property.

The defense of Portugal’s imperial claims in the East Indies fell initially to Seraphim de Freitas, a Portuguese theologian-jurist, professor at the University of Valladolid, in a treatise published in 1625 under the name De iusto imperio Lusitanorum Asiatico (On the Just Empire of the Portuguese in Asia). Vastly larger and longer than Grotius’s mere pamphlet, De iusto imperio was highly critical not only of the youthful Grotius’s arguments, but of its factual inaccuracies and misleading references and inferences as well.

Freitas contended that the right to free trade and navigation, whatever its roots in natural law, had never become a part of the law of nations. A sovereign could exclude foreigners from his territories or commerce and could forbid his subjects to trade with them. He conceded that the pope lacked an abstract right to accord dominion over newly discovered territories and peoples, but insisted that his authority as the spiritual dominus mundi entitled him to grant an exclusive right to spread the Christian faith and civilization. Since, to be effective, this right necessarily involves both trade and limited conquest, the pope had the authority to grant Portugal-Spain the right to exclude other powers from the east.

De iusto imperio was expanded upon four years later by a Spanish jurist named Juan de Solórzano Pereira (1575-1655), in a treatise entitled Disputationem de Indiarum iure. Scarcely known or written about by English-speaking scholars, De Indiarum iure is regarded by some Spanish scholars as the most systematic juridical formulation of the legitimacy of Spain and Portugal’s 17th century claims. Unlike Freitas, Solórzano Pereira said that, regardless of the legitimacy of the 15th century papal grants on which they were said to be based, Portugal’s actual control and occupation of the new territories were sufficient in themselves to satisfy the requirements for retrospective ownership (prescription) recognized in both Roman and customary law.

Neither Freitas’s nor Solórzano Pereira’s treatise had as much influence in the 17th century as their intellectual content warranted, perhaps because they were too learned and too long, but in any event because the center of intellectual interest and political power was shifting from Spain to England.

– Notes by Edward Gordon

Solórzano Pereira, Juan de (1575-1655). De Indiarum jure (Lyons, 1672).
This work became the definitive treatise on the laws governing Spain’s overseas colonies.
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 5

England’s own claims to maritime sovereignty ran counter to both Spain and Portugal’s and to Holland’s. Even during the reign of Queen Elizabeth – and notwithstanding her rebuke to the Spanish ambassador – England claimed sovereign rights seaward. During her reign these rights extended to the waters immediately adjacent to its coast, but her successors extended them out into the Atlantic, from Cape Finisterre in Spain around the British Isles, and in the North Sea to the coast of Norway.

The first British treatise on the law of the sea appeared in 1590. Written by William Welwood (fl. 1566-1624), a professor of mathematics and then law at St. Andrews (Scotland), The Sea Law of Scotland defended royal dominion over the seas out to a distance of eighty miles off the Scottish coast. The work pleased the king of Scotland, James VI, who had objected strongly, though ineffectively, to what he regarded as the intrusion of the Dutch herring fleet into Scots waters, and who happily rewarded Welwood for lending legal support to his cause.

When James succeeded to the crown of England, following Queen Elizabeth’s death in 1603, he issued a proclamation claiming all fisheries along the British and Irish coasts, and prohibiting foreign vessels from fishing in these waters without a royal license. To support his position, he asked Welwood to refute Mare liberum directly.

This Welwood did in two treatises: An Abridgement of All the Sea-Lawes (1613) and, in an amplified Latin version inspired in part by James’s wife, Queen Anne of Denmark, De dominio maris (1615). Quoting extensively from biblical sources and Roman lawyers, Welwood rejected Grotius’s claim that the waters of the world had always been regarded as indivisible; and defended the right of a coastal state to fish and to navigate – and to impose taxes with respect to either – in the waters adjacent to its coasts. Welwood is said to have been the first to clearly enunciate a coastal state’s authority over living resources adjacent to its shores. What is more, and of more than passing interest, he based his argument, at least in part, upon the risk of exhaustion of fisheries posed by otherwise unregulated promiscuous use.

– Notes by Edward Gordon

Welwood, William (fl. 1578-1622). An abridgement of all sea-lawes (London, 1613).
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 6

William Welwood’s work eventually drew a response from a Dutch lawyer, Dirck Graswinckel, entitled Mare liberi vindiciae adversus Gulielmum Welwodum (1653), but its relative obscurity today owes more to the publication in 1635 of Mare clausum, by John Selden (1594-1654), an English jurist, scholar and polymath whose erudition rivaled that of Grotius himself. Selden had begun researching and writing a refutation of Mare liberum soon after its publication, even before Welwood’s two treatises appeared. He had completed it by around 1618, by which time, however, a coup d’etat had taken place in the Netherlands, Grotius had been imprisoned, and relations between England and the new government were unsettled. King James was reluctant anyway to provoke a dispute with Denmark, which had extensive claims of its own in the North Atlantic. Under the circumstances, the moment seemed inauspicious for a verbal assault on Grotius and the freedom of the seas – and James refused to publish Mare clausum.

Selden apparently abandoned the project for nearly seventeen years. By then, Grotius, having escaped from prison in 1621 and living in exile in France, had published his more mature and celebrated masterpiece, De jure belli ac pacis (1625), later translated into English as The Rights of Warre and Peace (1654), in which he toned down some of the extravagant positions he had taken in his youthful defense of the seizure of the Santa Catarina, constructing instead a more sophisticated basis for a law of nature and nations independent of empire or religious guardianship that was, not coincidentally, notably less lenient in justifying the resort to armed force.

By then, Selden’s personal status had changed, too. Having become embroiled in parliamentary politics, he himself had been imprisoned and was now ensconced in the Tower of London. James meanwhile had been succeeded by Charles I, whose maritime policy was more aggressive than that of either of his two predecessors. In returning to his attack on Mare liberum, therefore, Selden was faced not only with the task of exposing weaknesses in Mare liberum, as Welwood had done and as he himself presumably had already done in his 1618 draft, but also with the more demanding one of taking into account the comprehensive legal regime Grotius had subsequently presented in De jure belli ac pacis. And he had to do both in a way that ingratiated himself with Charles.

Selden’s treatise, like Grotius’s, is remarkable for its erudition, too much so for modern readers, who tend to see in both works an excess of pedantry, but decisively impressive to the two men’s own contemporaries. Selden conceded the innocence of harmless navigation and commerce, but maintained that restrictions on them do not necessarily violate the law of nature and the law of nations. He purported to show that the open sea is not everywhere common, is capable of appropriation, and in fact from time to time had been appropriated and occupied. As to the Spanish and Portuguese claims, whose legitimacy England continued to deny, Selden said that, while on general principles they could be valid, in actual practice neither of the two countries ever acquired valid title or command to the areas they claimed.

– Notes by Edward Gordon

Selden, John (1584-1654). Mare clausum (London, 1635).
The first edition of Selden’s Mare clausum is also famous as the first use of Arabic type in England. The map depicts what ancient geographers called “the British sea.”
Rare Book Collection, Lillian Goldman Law Library.

Selden, John (1584-1654). Mare clausum: the right and dominion of the sea (London, 1663).
The second edition of the English translation of Mare clausum.
Rare Book Collection, Lillian Goldman Law Library.

Grotius, Hugo (1583-1645). Of the law of warre and peace (London, 1655).
The second English edition, appearing only a year after the first. The portrait bears Grotius’s motto, “Ruit Hora” (“Time flies”), reflecting his busy and productive career as a jurist, diplomat, and author.
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 20, 2009

I was sorry to learn that Charles J. Tanenbaum, Yale Law School Class of 1937, passed away on Oct. 17, 2009, at age 94. Mr. Tanenbaum was a noted book collector and philanthropist. The Lillian Goldman Law Library was one among a great many institutions that benefited from his generosity.

Like many other great book & manuscript collectors, Charles Tanenbaum’s motive for collecting was not to acquire and hoard, but to discover and share. He curated over thirty exhibitions at major U.S. libraries, including Harvard, Penn, Stanford, and the Grolier Club, where he was a member for over 40 years.

Here at Yale, Mr. Tanenbaum endowed the Charles J. Tanenbaum Fund, which supports rare book acquisitions relating to the history of the legal profession. From his personal collection, he donated an important letter from Chief Justice John Marshall (described here) and Yale-College Subject to the General Assembly (New-Haven: Printed by Thomas and Samuel Green, 1784), a brief arguing for the Connecticut General Assembly’s right to regulate Yale College, by the prominent lawyer Samuel Whittelsey Dana.

The last gift we received from Mr. Tanenbaum was not from early American history, but from Mr. Tanenbaum’s personal history. It is a letter of recommendation from Yale law professor Underhill Moore, a letter that documents not only the anti-Semitism prevalent in the 1930s but also the person that Professor Moore described as “an unusually valuable man.” The letter appears below. I extend my deepest condolences to his widow, Mrs. Szilvia Szmuk-Tanenbaum, and his daughter Ann, for their loss.

MIKE WIDENER

Rare Book Librarian

 

October 15, 2009

New exhibit…

Freedom of the Seas, 1609: Grotius and the Emergence of International Law

October 2009 - January 2010
Rare Book Exhibition Gallery
Level L2, Lillian Goldman Law Library
Yale Law School

In 1609, a little pamphlet touched off a big debate that shaped modern international law. The Lillian Goldman Law Library marks the 400th anniversary of this event with its exhibition, “Freedom of the Seas, 1609: Grotius and the Emergence of International Law.” It will be on display through January 2010 in the Yale Law School.

At the dawn of the 17th century, the Dutch East India Company commissioned a young prodigy named Hugo Grotius to prepare a legal argument rejecting Spanish and Portuguese claims of dominion over the oceans around their overseas empires. His essay, Mare Liberum (“On the Freedom of the Seas”) touched off a “Battle of the Books.” What eventually emerged was a regime of international law to govern humanity’s common interest in shared resources.

At the center of this battle was Grotius and England’s leading legal scholar, John Selden. The exhibition documents their contributions and those from other European jurists, with books from the Rare Book Collection of the Lillian Goldman Law Library, Yale’s Beinecke Rare Book & Manuscript Library, the Harvard Law School Library, and the private collection of Edward Gordon.

The exhibition was curated by Edward Gordon, Yale Law School Class of 1963, and Mike Widener, Rare Book Librarian. Gordon, past President of the American Branch of the International Law Association, was formerly professor of international law at Albany Law School, and has also taught at Rutgers, George Washington University, American University, Wellesley College, and the Fletcher School at Tufts University.

The Rare Books Exhibition Gallery is located in the lower level of the Lillian Goldman Law Library (Level L2), directly in front of the Paskus-Danziger Rare Book Reading Room.

For those unable to visit the exhibit in person, it will appear in installments here in the Yale Law Library Rare Books Blog.

For more information, phone Mike Widener at (203) 432-4494 or email him at .

The illustration:
Hugo Grotius Mari libero et P. Merula De maribus (Leiden, 1633). Rare Book Collection, Lillian Goldman Law Library.

September 4, 2009

My Flickr frenzy continues… Another new portrait gallery in the Rare Book Collection’s section of the Yale Law Library Flickr site comes from Lodovico Vedriani’s Dottori Modonesi di teologia, filosofia, legge canonica, e civile (Modena, 1665). The majority of the 36 portraits are of the leaders of Modena’s legal profession, along with churchmen, diplomats, politicians, and authors. One woman is included: Tarquinia Molza. Each portrait is accompanied by a lengthy panegyric highlighting the individual’s virtues and accomplishments.

The example below is of Aurelio Bellencini, “gran leggista,” one of four Bellencini family members pictured in the book.

Our copy of Dottori Modonesi is bound with Vedriani’s most well-known work, Raccolta de pittori, scultori et architetti modonesi (Modena, 1662), an important source for art historians. Our copy is also notable for having once formed part of the enormous private library of Richard Heber (1773-1833).

MIKE WIDENER
Rare Book Librarian

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