The Free Sea. Hugo Grotius

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СКАЧАТЬ debar others from trade with the East Indies. In the last part of the work, Grotius rebutted Portuguese claims to exclusive rights of trade. He argued that the right of navigation could not be appropriated by the Portuguese or anyone else (including the pope). Because that right of navigation was an objective feature of natural law, it could not be altered by human custom or by prescription, as Grotius showed with extensive quotations from Vázquez de Menchaca (a proponent of the freedom of the seas, to be sure, but also an exponent of the idea that navigation was not only unnatural but also suicidally dangerous, a feature of Vázquez’s argument Grotius conveniently ignored).⁹ As with the right of navigation, so with the right of trading, which was also “agreeable to the primary law of nations” (The Free Sea, p. 51, below). After this point, Grotius added a new conclusion to the material he had drawn from De Jure Praedae, arguing that “we wholly maintain that liberty which we have by nature, whether we have peace, truce or war with the Spaniard,” but with the threat attached that “he that shall stop the passage and hinder the carrying out of merchandise may be resisted by way of fact, as they say, even without expecting any public authority” (The Free Sea, p. 60, below).

      The Twelve Years’ Truce between the Dutch republic and the Spanish monarchy was soon ratified, but Mare Liberum’s relevance was not diminished. Grotius’s arguments could still justify the VOC’s encroachment on the Portuguese colonial empire, despite the armistice in Europe; and their applicability to other contemporary disputes regarding the freedom of navigation, trade, and fishing made Mare Liberum a shot heard around the world. Its rebuttal of papal claims ensured that it was rapidly placed on the Church’s Index of prohibited books in January 1610.¹⁰ Sophisticated and extensive responses also came from the jurists William Welwod in Scotland (An Abridgement of All Sea-Lawes [1613]; De Dominio Maris [1615]), John Selden in England (Mare Clausum [ca. 1618]), Justo Seraphim de Freitas in Portugal (De Justo Imperio Lusitanorum Asiatico [1625]), and Juan Solórzano Pereira in Spain (De Indiarum Jure [1629]).

      The only response to which Grotius replied was Welwod’s Abridgement. Grotius had been shown Welwod’s book in 1613, when he was in London as a delegate to the Anglo-Dutch colonial conference, and he took it to be “exemplar Servi Maris” (“the pattern of the unfree sea”).¹¹ Welwod had understood Mare Liberum’s alleged East Indian context as a cover for the work’s real purpose: to reinforce the claims of the Dutch herring-fleets to fish in British (in particular, Scottish) territorial waters. Those claims were indeed a topic of much contention after 1610, and Welwod could be forgiven for suspecting Mare Liberum’s contingent applicability. Yet Welwod stressed only the argument about fishing, ignored the broader questions of trade and navigation, and concentrated his fire on the fifth chapter of Mare Liberum alone. Like Grotius, he argued from the precedents of Roman law, but he also appealed to Scripture to argue that the sea could be occupied and hence acquired as the basis for customary claims to exclusive national rights over territorial waters. However, Welwod excepted the high seas from such claims to exclusive possession and agreed with Grotius that they should remain “mare vastum liberrimum” (“the great and most free sea”: Welwod, “Of the Community and Propriety of the Seas,” p. 74, below). That major concession was not enough to secure Grotius’s assent to Welwod’s arguments, to which he replied at length in the unpublished Defensio capitis quinti Maris Liberi (Defense of the Fifth Chapter of “Mare Liberum”) (ca. 1615).¹²

      In the Defense of… “Mare Liberum,” Grotius insisted even more firmly that land and sea were incommensurable because the one can be appropriated and the other cannot. He had to do so not least to refute Welwod’s scriptural argument that God had given both earth and sea to humanity in common, an assertion that encouraged Grotius to reinforce the distinction between particular appropriation and universal possession, and hence between those things that are (or can become) private and those that remain in common. He even went further than he had needed (or dared) in Mare Liberum to argue that necessity—in the case of famine, for example—could render “common again things formerly owned” (Defense, p. 86, below). To clarify his definition of community, Grotius had to distinguish it from anything public (that is, owned by a particular nation or people) on the grounds that community of property was natural, whereas anything public was civil and hence the product of human will. From this, it was but a short step to two crucial moves that would characterize his political theory in De Jure Belli ac Pacis: first, his argument that the freedom of the seas derived not only from nature but also from custom and hence from consent (an anticipation of his later theory of property: De Jure Belli ac Pacis, II. 2. 2, § 5); and, second, that the right (jus) to trade or navigation was legitimate not by virtue of being a norm of objective justice but because it was “a moral faculty over a thing” (Defense, p. 107, below) (an anticipation of his highly influential theory of rights as subjective moral qualities: De Jure Belli ac Pacis, I. 1. 4).¹³

      The Defense, like Mare Liberum, marked a crucial stage in the development of Grotius’s mature political theory. The argument of Mare Liberum had already come back to haunt him when, as a negotiator for the Dutch in fishing disputes with the English in 1613, he justified English exclusion from Dutch fishing grounds. In ignorance of the identity of the work’s author, the English envoys threw back the arguments of the “assertor Maris liberi” (the defender of the free sea) in Grotius’s own face.¹⁴ Even this discomfiting incident may have had a place in Grotius’s philosophical development, as it caused him to refine the limits of his theory of property while he traveled the road toward De Jure Belli ac Pacis. Indeed, by 1625 he had come to agree with Welwod that territorial waters could be possessed (De Jure Belli ac Pacis, II. 3. 13–15). Yet the significance of Mare Liberum was not confined to the progress of Grotius’s own thought: The classic dispute between mare liberum and mare clausum (represented most famously by Selden’s “deeply Grotian” reply to Grotius)¹⁵ lasted for much of the seventeenth century, flared up intermittently in the eighteenth and nineteenth, and was decided only in the twentieth.¹⁶ Anyone wanting an accessible introduction to that epochal argument, to the genesis of modern theories of property and sovereignty, or to Grotius’s political theory could do no better than begin with his compact classic, Mare Liberum.

      David Armitage

A NOTE ON THE TEXTS

      Hugo Grotius, The Free Sea, trans. Richard Hakluyt

      There have been only two English translations of Mare Liberum. The last was in 1916, as part of the series of classics in the history of international law published by the Carnegie Endowment for International Peace.¹ This translation was avowedly a product of debates on neutral shipping during the First World War: “Since the month of August, 1914, the expression ‘Freedom of the Seas’ has been on the lips of belligerent and neutral, and it seems as advisable as it is timely to issue—for the first time in English—the famous Latin tractate of Grotius proclaiming, explaining, and in no small measure making the ‘freedom of the seas.’”² However, though the Carnegie Endowment’s edition may have been the first translation “issue[d]” in English, it was not the only, or even the first, English translation. That had been undertaken three hundred years before by the great English memorialist of overseas activity and promoter of English trade and colonization Richard Hakluyt the younger.³

      The manuscript of the translation in the Inner Temple Library in London (MS Petyt 529) is a fair copy in Hakluyt’s own hand. The twenty-six-leaf quarto was originally bound in vellum, of which a small patch survives СКАЧАТЬ