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 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.

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.

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