INTRODUCTORY NOTE Since the month of August, 1914, the expression " Free- dom of the Seas " has been on the lips alike 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." 1 The title of the little book, first published, anonymously, in November, 1608, explains the reason for its composition: ' The Freedom of the Seas, or the Right which belongs to the Dutch to take part in the East Indian trade." It was an open secret that it was written by the young Dutch scholar and lawyer, Hugo Grotius. It was a secret and remained a secret until 1868 that the Mare Liberum was none other than Chapter XII of the treatise De Jure Praedae, written by Grotius in the winter of 1604-5, which first came to light in 1864 and was given to the world four years later.2 The publication of the treatise on the law of prize is important as showing that the author of the Mare Liberum was already an accomplished international lawyer, and it ' For the freedom of the seas and the relation of Grotius to the doctrine, see Ernest Nys's Lei Originei du Droit International (1894), pp. 379-387, and the same author's Etudes de Droit International et de Droit Politique, 2<* serie (1901), Une Bataille de Livres, pp. 260-272. For an account in English see Walker's Hiitory of the Law of Nations, Vol. I (1899), pp. 278-283.
For an interesting sketch of the illustrious author of the Mare Liberum, see Motley's The Life and Death of John of Barneveld, Vol. II, Chap. XXII; for an analysis of Grotius' views on the law of nations, see Hallam's Intro- duction to the Literature of Europe (4th edition), Vol. II, Part III, Chap. IV, Sec. Ill; for an account of Grotius as a humanist, see Sandys' History of Classical Scholarship (1908), Vol. II, pp. 315-319.
' Hugonis Orotii De Jure Praedae, edited, with an introduction, by H. G. Hamaker, and published at The Hague in 1868 by Martinus Nijhoff.
v vi INTRODUCTORY NOTE proves beyond peradventure that the masterpiece of 1625 on the " Law of War and Peace " was not a hurried pro- duction, but the culmination of study and reflection ex- tending over twenty years and more. More important still is the fact that neither the law of prize nor the Mare Liberum was a philosophic exercise, for it appears that Grotius had been retained by the Dutch East India Com- pany to justify the capture by one of its ships of a Portu- guese galleon in the straits of Malacca in the year 1602; that the treatise on the law of prize, of which the Mare Liberum is a chapter, was in the nature of a brief; and that the first systematic treatise on the law of nations — The Law of War and Peace — was not merely a philosophical disquisi- tion, but that it was the direct outgrowth of an actual case and of professional employment.1 1 In support of the view that Grotius appeared as counsel in cases arising out of captures made by vessels in the service of the Dutch East India Company, and that the treatise, De Jure Praedae, is a legal brief, see R. Fruin's Een Onuitgegeven Werk van Hugo De Oroot in Verspreide Oeichriften, Vol. Ill, pp. 367-445. The following passages are quoted from this remarkable essay: " While busy with the sale of the goods [of the captured merchantman Catherine, which had been unloaded in the Amsterdam arsenal], the process of adjudicating the booty before the admiralty court was conducted in the usual forms. Claimants: Advocate General of Holland, the Board of eight Aldermen, and Admiral Heeraskerck;...on Thursday, September 9, 1604, final sentence was rendered, and ' the merchantman together with the goods taken from it were declared forfeited and confiscated'" (pp. 389-390).
" Hulsius in some measure replaces what the fire at the Marine Arsenal has robbed us of; among other records he has preserved for us in his Achte ScKiffart the sentence pronounced in this matter by the admiralty, and of which we have knowledge from no other sources. From it we learn the grounds upon which the claimants demanded the adjudication of the booty. These grounds are the same twelve which De Groot discusses in his book...This concordance can be explained on the ground that De Groot must have had acquaintance with the sentence; but he was not a man merely to repeat what others had before him witnessed. I should be inclined to feel that in the process he had served as counsel for the Company, and that he himself was one of the authors of the written claim upon which the sentence was based. It would not then be sur- prising if in his book he should develop at greater length and throw light upon what had already been set forth in the claim" (pp. 390-391).
" I cannot state definitely that Hugo De Groot was persuaded by the Directors to write such an argument; I have been unable to discover any evidence to INTRODUCTORY NOTE vii The Spaniards, as is well known, then claimed the Pacific Ocean and the Gulf of Mexico, and Portugal claimed, in like manner, the Atlantic south of Morocco and the Indian Ocean, and both nations, at this time under a common sovereign, claimed and sought to exercise the right of excluding all foreigners from navigating or entering these waters. The Dutch, then at war with Spain, although not technically at war with Portugal, established themselves in 1598 in the island of Mauritius. Shortly thereafter they made settlements in Java and in the Moluccas. In 1602 the Dutch East India Company was formed, and, as it at- tempted to trade with the East Indies, its vessels came into competition with those of the Portuguese engaged in the Eastern trade, which sought to exclude them from the Indian waters. One Heemskerck, a captain in the employ of the Company, took a large Portuguese galleon in the Straits of Malacca. To trade with the East Indies was one thing, to capture Portuguese vessels was quite another thing. Therefore, some members of the Company refused their parts of the prize; others sold their shares in the company, and still others thought of establishing a new company in France, under the protection of King Henry IV, which should trade in peace and abstain from all warlike action. The matter was therefore one of no little importance, and it appears that Grotius was consulted and wrote his treatise on the law of prize, which is in the nature of a brief and is, at any rate, a lawyer's argument.1 that end. That he was in close relations with the Company, he himself says in a letter of later date, addressed to his brother. Nor can there be any doubt that in writing his work he made use of the archives of the United Company and of its predecessor. If the supposition, which I have elsewhere ventured to make is correct, that is to say, that in the conduct of the case he appeared as advocate for the Company, it would then appear most probable that, after consultation with the directors, he set about writing his book, which was to be a second plea in their behalf (p. 403).
1 For the account which Grotius himself gives of the incident, see his Annales et Siitoriae de Rebut Belgici* ab Obitn Philippi Regis usque ad Inducias Awn* 1609, written in 1612, but first published in 1658, Book 1, p. 429.
viii INTRODUCTORY NOTE In 1608 Spain and Holland began negotiations which, on April 9, 1609, resulted in the truce of Antwerp for the period of 12 years, and, in the course of the negotiations, Spain tried to secure from the United Provinces a renuncia- tion of their right to trade in the East and West Indies. The Dutch East India Company thereupon, it would appear, requested Grotius to publish that part of his brief dealing with the freedom of the seas. This was done under the title of Mare Uberum, with such changes as were necessary to enable it to stand alone.
It will be observed that the Mare Ldberum was written to refute the unjustified claims of Spain and Portugal to the high seas and to exclude foreigners therefrom. The claims of England, less extensive but not less unjustifiable, were not mentioned, and yet, if the arguments of Grotius were sound, the English claims to the high seas to the south and east of England, as well as to undefined regions to the north and west, would likewise fall to the ground. Therefore the distinguished English lawyer, scholar, and publicist, John Selden by name, bestirred himself in behalf of his country and wrote his Mare Clausum in 1617 or 1618, although it was not published until 1635, to refute the little tractate, Mare Liberum.1 In the dedication to King Charles I, For a fuller account of the circumstances under which the treatise on the law of prize was written, see Hamaker's edition of the De Jure Praedae, pp. vii-viii. The distinguished historian and scholar, Robert J. Fruin, after an exhaustive examination of the evidence, informed Hamaker that Grotius was retained by the Company to prepare the commentary on the law of prize. The English translation of Hamaker's exact statement reads as follows: "Fruin is of the opinion that he [Grotius] undertook this work at the instance of the Company, and that he appeared in it as their spokesman."
For an analysis of the commentary De Jure Praedae and the circumstances under which it was written, see Jules Basdevant's study on Grotius, pp. 131- 137, 155-179, in Fillet's Lea Fondateurs du Droit International (1904).
1 Selden's Mare Clausum was not the only defense of England, nor was the Mare Liberum the only lance which Grotius broke for the freedom of the seas. In 1613 William Welwod, professor of Civil Law at the University of Aberdeen, published a little book entitled An Abridgement of all the Sea-Lawes, in which he maintained the English side of the question, of which Title XXVII, pp. 61- INTRODUCTORY NOTE ix Selden said: " There are among foreign writers, who rashly attribute your Majesty's more southern and eastern sea to their princes. Nor are there a few, who following chiefly some of the ancient Caesarian lawyers, endeavor to affirm, or beyond reason too easily admit, that all seas are common to the universality of mankind." The thesis of Selden was twofold: first, " that the sea, by the law of nature or nations, is not common to all men, but capable of private dominion or property as well as the land "; second, " that the King of Great Britain is lord of the sea flowing about, as an inseparable and perpetual appendant of the British Empire."
In this battle of books, to use the happy expression of Professor Nys, the Dutch Scholar has had the better of his English antagonist. If it cannot be said that Grotius wears his learning " lightly like a flower ", the treatise of Selden is, in comparison, over- freighted with it; the Mare Liberum is still an open book, the Mare Clausum is indeed a closed one, and as flotsam or jetsam on troubled waters, Chapter XII of the Law of Prize rides the waves, whereas its rival, heavy and water-logged, has gone under.
In the leading case of The Louis (2 Dodson 210), de- cided in 1817, some two hundred years after Selden's book was written, Sir William Scott, later Lord Stowell and one of Selden's most distinguished countrymen, said, in reject- ing the claim of his country to the exercise of jurisdiction beyond a marine league from the British shore: 72, deals with the community and property of the seas. Two years later Welwod published a second work, this time in Latin, entitled De Dominio Marts Juribusque ad Dominium praecipue Spectantibus Assertia Brevit ac Methodica.
Grotius prepared, but did not publish, a reply to Welwod's first attack, entitled Defentio Capitis Quinti Marts Liberi Oppugnati a Gulielmo Welwodo Juris Civilis Profestore, Capite XXVII ejus Libri Scripti Anglica Sermons cut Titulum Fecit Compendium Legum Maritimarum. It was discovered at the same time as the commentary De Jure Praedae and was published in 1872 in Muller's Mare Clausum, Bijdrage tot de geschiedenit der rivaliteit van Engeland en Nederland in de zeventiende eeuw.
x INTRODUCTORY NOTE I have to observe, that two principles of public law are generally recognized as fundamental.
One is the perfect equality and entire independence of all distinct states. Relative magnitude creates no distinction of right; relative imbecility, whether per- manent or casual, gives no additional right to the more powerful neighbor; and any advantage seized upon that ground is mere usurpation. This is the great foundation of public law, which it mainly concerns the peace of mankind, both in their politic and private capacities, to preserve inviolate.
The second is, that all nations being equal, all have an equal right to the uninterrupted use of the unappropriated parts of the ocean for their navigation. In places where no local authority exists, where the subjects of all states meet upon a footing of entire equality and independence, no one state, or any of its subjects, has a right to assume or exercise authority over the subjects of another.
In closing the preface to the Mare Clausum, Selden used language, which the undersigned quotes, albeit in an inverse sense, as a fit ending to this subject: " Other passages there are everywhere of the same kind. But I enlarge myself too much in a thing so manifest. Therefore I forbear to light a candle to the sun. Farewell reader."
JAMES BROWN SCOTT, Director of the Division of International Law. WASHINGTON, D. C., February 28, 1916.
TRANSLATOR'S PREFACE The Latin Text The Latin Text is based upon the Elzevir edition of 1633, the modifications being only such as to bring the Latin into conformity with the present day Teubner and Oxford texts.
References in the notes to classic authors are given in unabbreviated form, following in other respects the The- saurus Linguae Latinae Index. Citations to the Civil Law are given in the modern notation, which is followed, in parentheses, by the older method of reference. The text used is that of Mommsen, Krueger, Schoell et Kroll. The Canon Law is cited from the Friedberg edition of 1879-81. The abbreviations used are explained below.
The Translation The Translation The translator wishes to make due acknowledgment for the passages from classic writers quoted from standard translations, to which references are also made in the notes. He has also consulted the French translation of Grotius by A. Guichon de Grandpont (1845). But his chief acknowl- edgment is to his colleague and friend, Professor Kirby Flower Smith of The Johns Hopkins University, to whom he read the translation, and who gave him the benefit of his knowledge of Latin and his taste in English, in a number of troublesome passages. Many niceties of the translation belong to Professor Smith, but mistakes in interpretation belong to the translator alone.
Acknowledgment and thanks are also due to Professor xt xii PREFACE Westel Woodbury Willoughby of Johns Hopkins, who has been so good as to read the translation through in galley proof and give the translator the benefit of his technical knowledge of law; to Bishop Shahan, Rector of the Catholic University of America, who has given of his time to help expand several of Grotius' abbreviated references to theo- logical or canonical authors; and to John Curlett Martin, Johns Hopkins Fellow in Greek, who has been of great assistance in the verification of references.
List of Abbreviations Auth., Authenticum.
Clem., Constitutiones dementis Papae Quinti. Dist., Distinctio Decreti Gratiani.
Extravag., Constitutiones XX D. loannis Papae XXII. Lib. VI, Liber sextus Decretalium D. Bonifacii Papae VIII.
Other abbreviations should offer no difficulties.
Notes of Explanation The words and phrases in the Latin text in capitals follow the type of the Elzevir text.
In order that both text and translation may be complete in themselves, the notes below the translation follow the notes of the text in shortened or expanded form, or in duplicate, as the occasion would seem to demand.
[ ] in the translation, text, or notes, inclose additions made by the translator.
CAPITA DISSERTATIONS HVGONIS GROTII DE MARE LIBERO PAGINA Ad Principes populosque liberos orbis Chris- tian!...1 CAPVT I. lure gentium quibusvis ad quosvis liberam esse navigationem 7 II. Lusitanos nullum habere ius dominii in eos Indos ad quos Batavi navigant titulo inven- tionis 11 III. Lusitanos in Indos non habere ius dominii titulo donationis Pontificiae 15 IV. Lusitanos in Indos non habere ius dominii titulo belli 18 V. Mare ad Indos aut ius eo navigandi non esse proprium Lusitanorum titulo occupationis. 22 VI. Mare aut ius navigandi proprium non esse Lusitanorum titulo donationis Pontificiae. 45 VII. Mare aut ius navigandi proprium non esse Lusitanorum titulo praescriptionis aut con- suetudinis 47 xiv TABLE OF CONTENTS 1MUE Introductory Note...v Translator's Preface xi FREEDOM OF THE SEAS To the rulers and to the free and independent nations of Christendom 1 CHAPTIB I. By the Law of Nations navigation is free to all persons whatsoever 7 II. The Portuguese have no right by title of dis- covery to sovereignty over the East Indies to which the Dutch make voyages.. 11 III. The Portuguese have no right of sovereignty over the East Indies by virtue of title based on the Papal Donation 15 IV. The Portuguese have no right of sovereignty over the East Indies by title of war.. 18 V. Neither the Indian Ocean nor the right of navi- gation thereon belongs to the Portuguese by title of occupation 22 VI. Neither the Sea nor the right of navigation thereon belongs to the Portuguese by virtue of title based on the Papal Donation.. 45 VII. Neither the Sea nor the right of navigation thereon belongs to the Portuguese by title of prescription or custom...47 xiv CAPITA DISSERTATIONS xv CAPVT 1'Ai.lN.l VIII. lure gentium inter quosvis liberam esse mercaturam 61 IX. Mercaturam cum Indis propriam non esse Lusitanorum titulo occupationis...65 X. Mercaturam cum Indis propriam non esse Lusitanorum titulo donationis Pontificiae. 66 XL Mercaturam cum Indis non esse Lusitanorum propriam iure praescriptionis aut consuetu- XII. Nulla aequitate niti Lusitanos in prohibendo commercio 69 XIII. Batavis ius commercii Indicani, qua pace, qua indutiis, qua bello retinendum...72 Regis Hispaniarum litterae...77 CONTENTS xv CHAPTIR PAUK VIII. By the Law of Nations trade is free to all per- sons whatsoever 61 IX. Trade with the East Indies does not belong to the Portuguese by title of occupation.. 65 X. Trade with the East Indies does not belong to the Portuguese by virtue of title based on the Papal Donation 66 XI. Trade with the East Indies does not belong to the Portuguese by title of prescription or custom 67 XII. The Portuguese prohibition of trade has no foundation in equity 69 XIII. The Dutch must maintain their right of trade with the East Indies by peace, by treaty, or by war 72 Appendix: Two letters of Philip III, King of Spain 77 AD PRINCIPES POPVLOSQVE LIBEROS ORBIS CHRISTIANI Error est non minus vetus quam pestilens, quo multi mortales, ii autem maxima qui plurimum vi atque opibus valent, persuadent sibi, aut, quod verius puto, persuadere conantur, iustum atque iniustum non suapte natura, sed hominum inani quadam opinione atque consuetudine dis- tingui. Itaque illi et leges et aequitatis speciem in hoc in- venta existimant, ut eorum qui in parendi condicione nati sunt dissensiones atque tumultus coerceantur; ipsis vero qui in summa fortuna sunt collocati, ius omne aiunt ex volun- tate, voluntatem ex utilitate metiendam. Hanc autem sen- tentiam absurdam plane atque naturae contrariam auc- toritatis sibi nonnihil conciliasse haud adeo mirum est, cum ad morbum communem humani generis, quo sicut vitia ita vitiorum patrocinia sectamur, accesserint adulantium artes quibus omnis potestas obnoxia est.
Sed contra exstiterunt nullo non saeculo viri liberi, sapientes, religiosi, qui falsam hanc persuasionem animis simplicium evellerent ceteros autem eius defensores impu- dentiae convincerent. Deum quippe esse monstrabant con- ditorem rectoremque universi, imprimis autem humanae naturae parentem, quam ideo, non uti cetera animantia, in species diversas, variaque discrimina segregasset, sed unius esse generis, una etiam appellatione voluisset contineri, TO THE RULERS AND TO THE FREE AND INDEPENDENT NATIONS OF CHRISTENDOM The delusion is as old as it is detestable with which many men, especially those who by their wealth and power exercise the greatest influence, persuade themselves, or as I rather believe, try to persuade themselves, that justice and injustice are distinguished the one from the other not by their own nature, but in some fashion merely by the opinion and the custom of mankind. Those men therefore think that both the laws and the semblance of equity were devised for the sole purpose of repressing the dissensions and rebellions of those persons born in a subordinate position, affirming mean- while that they themselves, being placed in a high position, ought to dispense all justice in accordance with their own good pleasure, and that their pleasure ought to be bounded only by their own view of what is expedient. This opinion, absurd and unnatural as it clearly is, has gained considerable currency; but this should by no means occasion surprise, inasmuch as there has to be taken into consideration not only the common frailty of the human race by which we pursue not only vices and their purveyors, but also the arts of flat- terers, to whom power is always exposed.
But, on the other hand, there have stood forth in every age independent and wise and devout men able to root out this false doctrine from the minds of the simple, and to convict its advocates of shamelessness. For they showed that God was the founder and ruler of the universe, and especially that being the Father of all mankind, He had not separated human beings, as He had the rest of living things, into different species and various divisions, but had willed them to be of one race and to be known by one name; that i 2 MARE LIBERVM dedisset insuper originem eandem, similem membrorum compagem, vultus inter se obverses, sermonem quoque et alia communicandi instrvunenta, ut intelligerent omnes naturalem inter se societatem esse atque cognationem. Huic autem a se fundatae aut domui aut civitati summum ilium principem patremque familias suas quasdam scripsisse leges, non in acre aut tabulis, sed in sensibus animisque singulorum, ubi invitis etiam et aversantibus legendae occurrent his legibus summos pariter atque infimos teneri, in has non plus regibus licere, quam plebi adversus decreta decurionum, decurionibus contra praesidium edicta, prae- sidibus in regum ipsorum sanctiones. Quin ilia ipsa popu- lorum atque urbium singularum iura ex illo fonte dimanare, inde sanctimoniam suam atque maiestatem accipere.
Sicut autem in ipso homine alia sunt quae habet cum omnibus communia, alia quibus ab altero quisque distin- guitur, ita earum rerum quas in usum hominis produxisset natura alias earn manere communes, alias cuiusque indus- tria ac labore proprias fieri voluisse, de utrisque autem datas leges, ut communibus quidem sine detrimento omnium omnes uterentur, de ceteris autem quod cuique contigisset eo contentus abstineret alieno.
Haec si homo nullus nescire potest nisi homo esse desierit, hac si gentes viderunt quibus ad verum omne caecutientibus sola naturae fax illuxit, quid vos sentire ac facere aequum est, principes populique Christiani?
FREEDOM OF THE SEAS 2 furthermore He had given them the same origin, the same structural organism, the ability to look each other in the face, language too, and other means of communication, in order that they all might recognize their natural social bond and kinship. They showed too that He is the supreme Lord and Father of this family; and that for the household or the state which He had thus founded, He had drawn up certain laws not graven on tablets of bronze or stone but written in the minds and on the hearts of every individual, where even the unwilling and the refractory must read them. That these laws were binding on great and small alike; that kings have no more power against them than have the com- mon people against the decrees of the magistrates, than have the magistrates against the edicts of the governors, than have the governors against the ordinances of the kings them- selves; nay more, that those very laws themselves of each and every nation and city flow from that Divine source, and from that source receive their sanctity and their majesty.
Now, as there are some things which every man enjoys in common with all other men, and as there are other things which are distinctly his and belong to no one else, just so has nature willed that some of the things which she has created for the use of mankind remain common to all, and that others through the industry and labor of each man be- come his own. Laws moreover were given to cover both cases so that all men might use common property without prejudice to any one else, and in respect to other things so that each man being content with what he himself owns might refrain from laying his hands on the property of others.
Now since no man can be ignorant of these facts unless he ceases to be a man, and since races blind to all truth except what they receive from the light of nature, have rec- ognized their force, what, O Christian Bangs and Nations, ought you to think, and what ought you to do?
3 MARE LIBERVM 3 MARE LIBERVM Si quis durum putat ea a se exigi quae tarn sancti nominis professio requirit, cuius minimum est ab iniuriis abstinere, certe quid sui sit offici scire quisque potest ex eo quod alteri praecipit. Nemo est vestrum qui non palam edicat rei quemque suae esse moderatorem et arbitrum: qui non fluminibus locisque publicis cives omnes uti ex aequo et promiscue iubeat, qui non commeandi commercandique libertatem omni ope defendat.
Sine his si parva ilia societas, quam rempublicam vo- camus, constare non posse iudicatur (et certe constare non potest) quamobrem non eadem ilia ad sustinendam totius humani generis societatem atque concordiam erunt neces- saria? Si quis ad versus haec vim faciat, merito indignamini, exempla etiam pro flagiti magnitudine statuitis, non alia de causa nisi quia ubi ista passim licent status imperi tran- quillus esse non potest. Quod si rex in regem, populus in populum inique et violente agat, id nonne ad perturbandam magnae illius civitatis quietem et ad summi custodis spectat iniuriam? Hoc interest, quod sicut magistratus minores de vulgo iudicant, vos de magistratibus, ita omnium aliorum delicta cognoscenda vobis et punienda mandavit rex universi, vestra excepit sibi. Is autem quamquam supremam animadversionem sibi reservat, tardam, occultam, inevita- bilem, nihilominus duos a se iudices delegat qui rebus humanis intersint, quos nocentium felicissimus non effugit, conscientiam cuique suam, et famam sive existimationem FREEDOM OF THE SEAS 3 If any one thinks it hard that those things are demanded of him which the profession of a religion so sacred requires, the very least obligation of which is to refrain from injustice, certainly every one can know what his own duty is from the very demands he makes of others. There is not one of you who does not openly proclaim that every man is entitled to manage and dispose of his own property; there is not one of you who does not insist that all citizens have equal and indiscriminate right to use rivers and public places; not one of you who does not defend with all his might the freedom of travel and of trade.