Chapter I: Front Matter

TRANSCRIBER’S NOTE

The original book _Mare Liberum_ was first published in 1608 in
renaissance latin. The latin of this book is based on a later 1633
printing. The english translation carefully maintains the meaning,
and clarifies the context, of the original latin.

In this 1916 book, following the Introductory Note and Preface, the
latin text and the translated english text were on alternate pages
i.e. the first page of latin text was followed by the first page of
corresponding english text, then the next (second) page of latin
text was followed by the second page of corresponding english text,
and so on.

This etext follows the same alternating pagination. A row of dashes
has been inserted between the english and latin pages to give a
visual separation.

There are three different sets of Footnotes.
(a) The five Footnotes in the Introductory Note have anchors [A]
to [E].

(b) The 192 Footnotes associated with the latin text have anchors
[1a] [2a] through [192a].

(c) The 192 Footnotes associated with the english text have anchors
[1] [2] through [192].

All these Footnotes have been placed after the Index at the end of
the book.

In addition there are 17 Notes, distinct from Footnotes, which
are anchored with * or †. These Notes by the translator have been
placed at the end of the paragraph containing the anchor.

Italic text is denoted by _underscores_.

A superscript is denoted by ^x or ^{xx}.

Some minor changes to the text are noted at the end of the book.

HVGONIS GROTII

MARE LIBERVM

SIVE

DE IVRE QVOD BATAVIS

COMPETIT

AD INDICANA COMMERCIA,

DISSERTATIO

1608

Carnegie Endowment for International Peace

DIVISION OF INTERNATIONAL LAW

THE FREEDOM OF THE SEAS

OR

THE RIGHT WHICH BELONGS TO THE DUTCH
TO TAKE PART IN THE EAST INDIAN TRADE

A DISSERTATION BY

HUGO GROTIUS

TRANSLATED WITH A REVISION OF THE LATIN TEXT OF 1633

BY

RALPH VAN DEMAN MAGOFFIN, PH.D.

Associate Professor of Greek and Roman History
The Johns Hopkins University

EDITED WITH AN INTRODUCTORY NOTE

BY

JAMES BROWN SCOTT

DIRECTOR

NEW YORK
OXFORD UNIVERSITY PRESS

AMERICAN BRANCH: 35 WEST 32ND STREET

LONDON, TORONTO, MELBOURNE, AND BOMBAY
HUMPHREY MILFORD

1916

COPYRIGHT 1916

BY THE

CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE

WASHINGTON, D. C.

THE QUINN & BODEN CO. PRESS
RAHWAY, N. J.

INTRODUCTORY NOTE

Since the month of August, 1914, the expression “Freedom 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.”[A]

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.[B]

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 proves beyond peradventure that the masterpiece of 1625 on the “Law of War and Peace” was not a hurried production, but the culmination of study and reflection extending 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 Company to justify the capture by one of its ships of a Portuguese 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 disquisition, but that it was the direct outgrowth of an actual case and of professional employment.[C]

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 attempted 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.[D]

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 renunciation 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 Liberum_, with such changes as were necessary to enable it to stand alone.

It will be observed that the _Mare Liberum_ 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_.[E] In the dedication to King Charles I, 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,