THE FREE SEA
NATURAL LAW AND ENLIGHTENMENT CLASSICS
Knud Haakonssen
General Editor
This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.
The cuneiform inscription that serves as a design element in Liberty Fund books is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 B.C. in the Sumerian city-state of Lagash.
Introduction, annotations, note on the texts, bibliography, index © 2004 by Liberty Fund, Inc.
Cover image: Portrait of Hugo de Groot by Michiel van Mierevelt, 1608; oil on panel; collection of Historical Museum Rotterdam, on loan from the Van der Mandele Stichting.
This eBook edition published in 2013.
eBook ISBNs:
Kindle 978-1-61487-040-1
E-PUB 978-1-61487-188-0
CONTENTS
William Welwod, “Of the Community and Propriety of the Seas”
Hugo Grotius, “Defense of Chapter V of the Mare Liberum”
Other Works Referred to in the Text and Notes
Few works of such brevity can have caused arguments of such global extent and striking longevity as Hugo Grotius’s Mare Liberum (The Free Sea). The book first appeared in Leiden as a pocket-sized quarto volume from the famous publishing house of Elzevier in the spring of 1609. The publication was anonymous, perhaps because (as Grotius later wrote) “it seemed to me to be safe, like a painter skulking behind his easel, to find out the judgment of others and to consider more carefully anything that might be published to the contrary” (Defense, p. 78, below). Grotius was only in his late twenties but already possessed a reputation as one of Europe’s most precocious and penetrating humanist scholars. Though self-taught as a lawyer, his reputation as an advocate and adviser was growing, along with his political influence. By publishing Mare Liberum, he was displaying the literary, rhetorical, and philosophical talents that had won him his burgeoning fame 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 1581; the second was the Dutch right to commercial penetration in Southeast Asia. Although the arena of dispute was local, the implications of Mare Liberum’s arguments were global. The book was taken by the English and the Scots as an assault on their fishing 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 the decades of contention that had begun with the Dutch revolt of the late sixteenth century.1 Among the issues on the table during these discussions was the question of Dutch access to the expanding markets of the East Indies, where the Dutch were engaged in cut-throat competition with the Portuguese, the Spanish, and, increasingly, the English for the huge profits to be gained from trade in silks, spices, porcelain, and other luxury goods. This was, of course, no novel dispute in 1609, but the process of drawing up a definitive truce between the Dutch and the Spanish had brought matters to a head, not least for the Dutch East India Company (VOC). Indeed, it was at the insistence of the Zeeland Chamber of the VOC in the autumn of 1608 that Grotius prepared Mare Liberum for publication, just as it had been at the VOC’s behest that he had originally written it as part of a larger work in 1604.2
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 1603.3 On that occasion, the Dutch captain Jakob van Heemskerck had captured the carrack Sta. Catarina, which was carrying a fabulously wealthy cargo of trade goods. When its contents were sold in Amsterdam, they grossed more than three million guilders, a sum equivalent to just less than the annual revenue of the English government at the time and more than double the capital of the English East India Company.4 A prize of such magnitude generated an equally prominent debate about the legitimacy of the Dutch capture of a Portuguese vessel in the distant seas of the East Indies. The twenty-one-year-old Grotius was drafted to supply a defense of the VOC’s position that the ship had been taken as booty in a just war: As he recalled later, “The universal laws of war and prize (universi belli praedaeque jura), and the story of the dire and cruel deeds perpetrated by the Portuguese upon our fellow-countrymen, and many other things pertaining to this subject, I treated in a rather long Commentary which up to the present I have refrained from publishing” (Defense, p. 77, below). The manuscript of that commentary remained unknown to posterity until it resurfaced at a sale of de Groot family papers in 1864. Its discovery revealed that Mare Liberum was substantially identical to the twelfth chapter of the work usually referred to by Grotius himself as De rebus Indicis (On the Affairs of the Indies),5 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).6
Although Mare Liberum’s influence and importance were—and remain—independent of that larger commentary, they cannot be fully understood outside of the argument of which they formed a part. 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.7 The two primary laws of nature were self-defense and self-preservation. He defined self-preservation as acquiring and retaining anything useful for