Mare Liberum: Western philosophy: Political philosophy: and the resulting two treatises, The Freedom of the Seas () and On the Law of War and Peace. Mare Liberum vs. Mare. Clausum: Grotius, Freitas, and Selden’s Debate on. Dominion over the Seas. M6nica Brito Vieira. Why would you withhold water from my. In Dutch legal thinker Hugo Grotius (de Groot) wrote Mare liberum, about the idea of freedom of the seas. Later, this was pivotal to the.
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This book is published by Liberty Fund, Inc. Map of the Far East on pp. Library of Congress Cataloging-in-Publication Data. The book first appeared in Leiden as a pocket-sized quarto volume from the famous publishing house of Elzevier in the spring of Though self-taught as a lawyer, his reputation as an advocate and grtoius was growing, along with his political influence.
Mare Liberum | work by Grotius |
By publishing Mare Liberum, he was displaying the literary, rhetorical, and philosophical talents that had won him his burgeoning grohius and respect, and he was also intervening in two political debates of pivotal significance for his own country.
The first was the relationship between the United Provinces and the Spanish monarchy, from which the Dutch had broken away in ; the second was the Dutch right to commercial penetration in Southeast Asia.
The book was taken by the English and the Scots as an assault on their liberuk rights in the North Sea and by the Spanish as an attack on the foundations of their overseas empire. It had implications no less for coastal waters than it did for the high seas, for the West Indies as much as for the East Indies, and for intra-European disputes as well as for relations between the European powers and extra-European peoples. The immediate context for the publication of Mare Liberum was the process of negotiating a truce between the Dutch and the Spanish to end Edition: This was, of groius, no novel dispute inbut the process of drawing up a definitive truce between the Dutch and the Spanish had brought matters to liebrum head, not least for the Dutch East India Company VOC.
The original occasion for the composition of the text that would later comprise Mare Liberum had been the major international dispute occasioned by the Dutch seizure of a Portuguese vessel in the Straits of Singapore in February Catarina, which was carrying a fabulously groyius cargo of trade goods.
When its contents were sold in Amsterdam, they grossed more than three million guilders, a sum mmare to just less than the annual revenue of the English government marr the time and more than double the capital of the English East India Company.
The manuscript of that commentary remained unknown to posterity until it resurfaced at a sale of de Groot family papers in Its discovery revealed that Mare Liberum lliberum substantially identical to the twelfth chapter of the work usually referred to by Grotius himself as De rebus Indicis Liberun the Affairs of the Indies5 though better known by the title given to it by its first editor, De Jure Praedae Commentarius Commentary on the Law of Prize and Booty. Grotius defended the Dutch seizure of the Sta.
Catarina on the basis of a set of natural laws, which he derived originally from the divine will. He defined self-preservation as acquiring and retaining anything useful for life, a process which assumed that God had bestowed the gifts of his creation upon all human beings collectively but on none particularly: Only through physical seizure possessio leading to grotjus usus could ownership dominium be derived.
Two further laws, of inoffensiveness harm no one and abstinence do not seize the possessions of othersset limits to these primary Edition: Libermu it could be shown that the Portuguese had committed evil deeds against the Dutch and against their indigenous allies, and if it could be shown that van Heemskerck had engaged in a just war against the Portuguese captain of the Sta. Catarina, then his spoils taken in that war would be a legitimate prize for the corporate body on whose behalf he acted, the VOC itself.
In the first third of De Jure Praedae, he laid out the conditions under which booty might be justly seized by Christians from other Christians and the broader circumstances that defined a war between Christians as just. When Grotius came to publish that chapter as Mare Liberum, he made no reference to the case of the Sta.
Catarina or to the supposed facts of Portuguese aggression and depredation in the East Indies. Instead, he prefaced his argument with a refutation of skepticism about the natural basis of moral distinctions The Free Sea, pp.
Against the instrumentalist view that such distinctions had been invented solely to benefit the powerful in their rule over the powerless, Grotius affirmed that the laws of nature are the product of divine will and that they can be universally understood by the application of natural reason.
Freedom of navigation and trade commeandi commercandique libertas exemplified those principles, whether applied to particular communities or to the universal society of humanity. However, by framing his argument in this way, Grotius could illustrate the obligations of natural rather than revealed religion, beyond the interpretive traditions of particular denominations, and show that even the juristic traditions of the Spanish monarchy which since had included Portugal opposed the Portuguese.
His broader framing of the argument also ensured that Mare Liberum would be understood as a general statement of the right to freedom of trade and navigation.
The Free Sea (Hakluyt trans.) – Online Library of Liberty
In this way, it sparked a wider and more enduring controversy regarding the foundations of international relations, the limits of national sovereignty, and the relationship between sovereignty imperium and possession dominium that would guarantee its lasting fame and notoriety. Grotius broke down the Portuguese claim of exclusive access to the East Indies into three constituent parts: The Portuguese could claim no right of possession by virtue of first discovery, because the lands of the East Indies were not terra nullius unpossessed land but were in the possession of their native rulers.
As Aquinas and Vitoria had argued against earlier thinkers like Hostiensis and John Wycliffegrace could not confer dominion. Papal donation could not have transferred dominium to the Portuguese because the pope possessed no temporal power, least of all over infidels as, yet again, Vitoria had argued in relation to the New World.
He then turned to their arguments for exclusive navigation and commerce. This distinction between territorial and maritime possession grotiuss on a yet more fundamental difference between those things that could be appropriated and those that remained common by nature.
If as Grotius had argued in the body of De Jure Praedae dominium could be derived only from use based on physical apprehension possessioonly those things capable both of possession and of use could be appropriated from their pristine state of natural community, subject to the proviso that no other person should be harmed by the act of appropriation an important limiting factor that permitted the private appropriation of mzre seashore but not at the expense of common access or use.
On these grounds, Grotius argued that neither the Portuguese nor anyone else could claim exclusive possession of the ocean around and leading to the East Indies. mate
Because the sea is fluid and ever changing, it cannot be possessed; because it and its resources, such as fish is apparently inexhaustible, it cannot be used: The land, by contrast, can be physically circumscribed, human labor does transform it, and its products are rendered private by their use.
This fundamental contrast between the Edition: Yet if the Portuguese could claim no right of possession dominium over the sea, the question remained whether they could still claim jurisdiction imperiumwhich would allow them to 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.
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Yet Welwod stressed only the argument about fishing, ignored amre 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.
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 grogius Pacis: De Jure Belli ac Pacis, I. The argument of Mare Liberum had already come back to haunt him when, as a negotiator liberkm the Dutch in fishing disputes with the English inhe justified English exclusion from Dutch fishing grounds.
There have been only two English translations of Mare Liberum. The last was inas part of the series of classics in the history of international law published by the Carnegie Endowment for International Peace.
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.
The twenty-six-leaf quarto was originally bound in vellum, of which a small patch survives Edition: This edition therefore represents the first publication of an unknown contemporary translation of a major work in the history of political thought by a translator of historical significance in his own right.
The Free Sea was one of only three book-length translations Hakluyt himself undertook. Until further grotiu is discovered, the occasion for his translation and the reason it was not grotiux can only be matters for speculation. All that is certain is that the translation can have been undertaken no earlier Edition: The one is mastery of technical vocabulary; the other is unraveling of complicated syntax.
The Inner Temple manuscript is a fair copy but contains a few minor emendations by Hakluyt himself; grotiud have been silently incorporated into the text. William Welwod was professor of mathematics and of civil law at the University of St. Andrews in Scotland and produced the first British treatise on the law of the sea, in The staff of the Inner Temple Library, in particular Adrian Blunt, facilitated access to the manuscript and provided crucial help with its decipherment.
Mar is no less ancient than a pestilent error wherewith many men but they chiefly who abound in power and riches persuade themselves, or as I think more truly go about to persuade, that right and wrong are distinguished not according to their own nature but by a certain vain opinion and custom of men.
These men therefore think that both laws and show of equity were invented for this purpose: And it is not so great a wonder that this absurd opinion, and altogether contrary to nature, hath procured unto itself some little authority, seeing to that common disease of mankind whereby, as vice, so we follow the defense thereof 1 the craft and subtlety of flatterers is added, whereunto all power is subject.
But on the contrary part, in all ages there have been some wise and religious men not of servile condition who would pluck this persuasion out of the minds of simple men and convince the others, being defenders thereof, of impudency. For they declared God to be the creator and governor of the world, especially the father of the nature of man which, therefore not as other living creatures, he severed into divers kinds and divers differences, but would have them of one kind and to be contained under one name; and gave moreover the same beginning and the like composition of members, countenances turned each to other and speech also, and other instruments of imparting, that all might liberkm there was a natural society and kindred between them.
And to this house or city built by Edition: By these laws both high and low are bound. It is no more lawful for kings to transgress these than for the common people to impugn the decrees of senators, senators to resist the edicts of presidents, and viceroys the laws and statutes of their kings, for those very laws of people and all cities flowed from that fountain; thence they received their sanctimony and majesty.
If no one can be ignorant of these things, unless he cease to be a man, if the nations saw this to whom the light of nature only shined who otherwise were dull sighted in discerning truthwhat beseemeth ye to think and do who are princes and Christian people? If any think it hard that those things should be exacted of him which the profession of so holy a name requireth the least whereof is to abstain from injuries surely everyone may know what his duty is by that which he commandeth another.
There is none of you who would not publicly exclaim that everyone should be moderator and arbitrator in his own matter, who would not command all citizens to use rivers and public places equally and indifferently, who would not with all his power defend the liberty of going hither and thither and trading. If that little society which we call a commonwealth is thought not to stand without this and indeed cannot stand without itwhy shall not the self-same things be necessary to uphold the society and concord of all mankind?
If any man violate these ye are justly displeased and make them also examples according to the quality and greatness of the offence, for no other reason but because the state of empire and government can never be quiet where these things may everywhere be done.
If so be a king offer Edition: To both these judgment places we bring a new case. These things are litigious between the Spaniards and us: In this disputation we offer the counters 2 to those who among the Spaniards are the principal doctors of the divine and humane law; and, to conclude, we desire the proper laws of Spain. If that prevail not, and covetousness forbid them to desist whom some reason convinceth, we appeal, Edition: We move no doubtful or entangled question, not of doubtful principles in religion, which seem to have much obscurity, which being so long disputed with so stout courage, have almost left this for certain amongst wise men: In which question, notwithstanding necessity was driven from equal judges of extreme servitude, 3 making a more curious search the authority of the decree of so many nations became public; the confession of the adversaries, even to the malicious and ill-willers, left no matter of doubt.
That law by whose prescript form we are to judge is not hard to be found out, being the same with all and easy to be understood, which being bred with everyone is engrafted in the minds of all. But the right which we desire is such as the king himself ought not deny unto his subjects, nor a Christian to infidels, for it hath his original from nature, which is an indifferent and equal parent to all, bountiful towards all, whose royal authority extendeth itself over those who rule the nations and is most sacred amongst them who have profited most in piety.
Understand this cause, oh yea, princes, and consider it, oh yea, people. If we demand any unjust thing, ye know of what account your authority and theirs who amongst you are nearer unto us hath always been with us: But if we have offended anything in this matter, we beseech you not to be offended; the hatred of mankind we pray not Edition: But if the matter fall out otherwise, we leave it to your religion and equity what you censure of it and what is to be done.
In times past, among the milder people it was accounted great impiety to assail them by war who would put their cause to arbitrement; on the contrary part, they who would refuse so equal a condition were repressed by the common aid not as enemies of one but of all. But as in this cause peradventure we hope for that in vain, so this we verily believe: Our purpose is shortly and clearly to demonstrate that it is lawful for the Hollanders, that is the subjects of the confederate states of the Low Countries, to sail to the Indians as they do and entertain traffic with them.
We will lay this certain rule of the law of nations which they call primary as the foundation, the reason whereof is clear and immutable: God himself speaketh this in nature, seeing he will not have all those things, whereof the life of man standeth in need, to be sufficiently ministered by nature in all places and also vouchsafeth some nations to excel others in arts.
To what end are these things but that he would maintain human friendship by their mutual wants and plenty, lest everyone thinking themselves sufficient for themselves for this only thing should be made insociable? Now it cometh to pass that one nation should supply the want of another by the appointment of divine justice, that thereby as Pliny saith that which is brought forth anywhere might seem to be bred with all; 1 therefore we hear poets speaking.
They, therefore, that take away this, take away that most laudable society of mankind; they take away the mutual occasions of doing good and, to conclude, violate nature herself.