IN A formal portrait from 1608, the young Dutch lawyer Hugo Grotius stares askance, as if observing something, but he does not deign to turn his head or to devote his full attention to the matter. His fine-boned, clever face is distinguished by an aquiline nose and adorned with a neatly trimmed Vandyke and a long, waxed mustache above a thin, serious mouth. His black robes are formal and sober, and his head is meticulously coiffed—perhaps a concession to fashion—complemented by an extravagant white ruff that encircles his neck. His expression is arch, knowing and somewhat disdainful, as if he has a faintly smug yet benign contempt for the frivolities of the world around him—not an uncommon trait in those who achieve unusually early success in business or politics. In his hands he holds a small book as if it represents all the power in the world. The overall impression is of a well-groomed, fastidious feline, comfortable in his place and pleased with himself. A later portrait shows him as a perhaps more humble, kindly academic.
Known even today in legal communities as the Father of International Law, Grotius was born in Delft on Easter Sunday in 1583. He was the first child of parents of middling social standing but of great learning. His extended family included lawyers, businessmen, public officials and university professors. Grotius’s uncle was a professor of law at the Leiden University when the youth enrolled there, to study the liberal arts, philosophy, and languages and rhetoric, at the age of eleven. A prodigy celebrated in his home town, Grotius published poetry in Greek and Latin and translated and edited texts in those languages. After studying with many leading humanist intellectuals, he was presented with an honorary doctorate of laws from the University of Orléans in France in 1598, at the age of fifteen. King Henry IV gave him a golden medallion commemorating this unusual achievement and proclaimed him “the miracle of Holland.”
In 1599 Grotius was admitted to the bar of the court and high council of Holland, the beginning of a meteoric career. Two years later he was appointed official Latin historiographer of the States of Holland, and, owing to his association with Johan van Olden-barnevelt, the prime minister of the United Netherlands, he served as public prosecutor by 1607. Other prestigious posts followed, including that of advocate general of the provinces of Holland, Friesland and Zeeland. He was one of the highest-paid and most respected lawyers in the United Provinces before he was thirty years old, and later became a senior civil servant, member of parliament and top-level political adviser.
He also married well, to the politically connected Marie van Reigersbergh, and invested well. And wrote acclaimed poetry, plays and legal tracts, several of which had an enormous influence during his lifetime, and later on the development and evolution of legal thought in Europe. Grotius was the model of Calvinist prudence and respectability. But if his rise was fast, it also had a trajectory that plummeted with the same speed. In 1618 he was caught up in a dispute between Maurice of Nassau, Prince of Orange, who was the governor of the republic, and his friend and benefactor Johan van Oldenbarnevelt over the doctrinal differences between Protestant religious sects. Grotius and Oldenbarnevelt were arrested in 1618. When they refused to apologize for their alleged conspiracy, Oldenbarnevelt was beheaded and Grotius was ordered imprisoned for life in Loevestein Castle after his property was confiscated. During his imprisonment, he read voraciously and continued to write one of his famous tracts, On the Law of War and Peace.
He escaped from prison after nearly two years with the aid of his wife, who disguised herself as Grotius while he slipped out of the castle concealed inside a book trunk. He fled to Paris, followed by his wife and children, where he oversaw the publication of his monumental work, which he hoped would temper or halt the religious wars that were then wracking Europe. Refusing on principle to convert to Catholicism, he was ineligible for a position at the French court, but eventually served as the Swedish ambassador to France for many years. On several occasions he tried to return to his homeland, but was expelled because he refused to admit he had done anything wrong in 1618, and so remained an exile. On his final voyage, from Sweden in 1645, his ship was wrecked in a storm. He died from exhaustion after struggling ashore. He was survived by his wife and four of their children. Both during his life and afterwards, Grotius was respected as one of Europe’s leading humanist thinkers.
Grotius’s greatest contribution to philosophy and law may have occurred when he was barely twenty-five years old, before he had achieved the pinnacle of his political ascent. In 1604 the young man was asked by his friend Jan Grootenhuys to produce a polemical tract and legal argument for the newly founded Dutch East India Company, the VOC (Vereenigde Oost-Indische Compagnie). In 1609 part of this work was anonymously published as Mare Liberum (“The Free Sea”). Addressed to the “rulers of the free and independent nations of the Christian world,” Mare Liberum laid out the first legal argument disputing the right of Portugal and Spain to claim monopoly ownership of the waterways of the world. Originally conceived as justification for a Dutch privateer’s assault on a Portuguese galleon in the Indies, “few works of such brevity can have caused arguments of such global and striking longevity,” according to David Armitage, editor of a modern reprint of an early English translation. Although the arena of the dispute was local, the implications of Mare Liberum’s arguments were global . . . 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.” Grotius claimed that so long as the Treaty of Tordesillas had legitimacy, the oceans of the world would be closed and the source of endless fighting.
FOR GENERATIONS after Vasco da Gama rounded the Cape of Good Hope, pushed his way into the Indian Ocean, and through astute diplomacy and war secured for Portugal a prominent place in the Indian Ocean trade, the Portuguese seaborne empire was on the ascendancy. Through its ruthless tactics of pirate attacks, blackmail and intimidation, combined with its superior naval and military technology, Portugal established a string of fortified bases along Africa’s Atlantic and Indian Ocean coasts as well as throughout India and Indonesia. Within a single generation, the Portuguese dominated and controlled a significant portion of the Indian Ocean trade network, becoming one of Europe’s most wealthy nations through a monopoly protected by the provisions of the Treaty of Tordesillas. By the mid-sixteenth century, Portuguese commerce was truly global.
But then as now, Portugal was a relatively small country in terms of both geography and population. Perhaps two million people lived there, and its mighty trade network took a heavy toll on both the men and the natural resources needed to manufacture and outfit the numerous fleets of merchant and military ships necessary to maintain and defend the monopoly. Shipwrecks, disease and sea battles devoured the male population. As a result, by the second half of the sixteenth century, the Portuguese commercial machine was employing many foreigners, particularly the Dutch, in the maritime professions. In 1581, when the Portuguese crown passed to Philip II, a worldwide monopoly in oceanic trade seemed to be the outcome. But the Protestant Reformation was undermining the authority of the pope to make such divisions in commerce.
Also in the mid-sixteenth century, European dynastic politics led to a consolidation of kingdoms. The new Holy Roman Emperor, Charles V (also known as Charles I of Spain, and the same ruler who had sponsored Ferdinand Magellan more than three decades earlier), became the king of Spain as well as inheriting the dukedom of Burgundy and the provinces of the Low Countries (approximately today’s nations of Belgium, the Netherlands and Luxembourg). In 1549 these provinces became an independent state, the Seventeen Provinces of the United Netherlands, under his rule. In 1555 Charles V abdicated the emperor’s throne, wishing to spend his remaining days in prayer and spiritual contemplation.
Believing his empire too vast and unruly to be properly governed by one ruler, he divided it between his brother, Ferdinand, and his son, Philip II. While Ferdinand I retained rule over the old Holy Roman Empire, Philip II became king of Spain and of the newly declared United Netherlands. It was Philip who marshalled the riches of Mexico and South America to fund dynastic wars and the Counter-Reformation in Europe. The wealthy and thriving chartered cities of the United Netherlands were nearly as vital to the prosperity of the Spanish crown as the gold and silver bullion from the New World.
While English and French privateers, denied the opportunity to trade and travel west of the Tordesillas line of demarcation, preyed on Spanish shipping in the Caribbean, in Europe the religious wars became ever more brutal and dogmatic. On February 16, 1568, the Inquisition declared that the people of the United Provinces, who had strongly embraced Calvinism—all three million of them— were heretics and were therefore condemned to death. Philip II issued orders to a Spanish army under the command of the ruthless duke of Alva to suppress local uprisings and to levy a series of new taxes on his recalcitrant subjects. He also commanded Alva to enforce the decree of the Inquisition to kill his heretical subjects when they would not relent in their religious diversion. Soon the entire region was in open revolt against its Iberian overlords. “The Dutch rebels,” writes Martine Julia van Ittersum in Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies, “were convinced that the diabolical machinations of the Holy Office were aimed at reducing the Low Countries to the same sorry state as the conquered Spanish territories in America.”
The duke of Alva’s reaction to the Dutch resistance to his troops was savage and vicious. Alva and the Spanish army, according to claims made in one pamphlet from the era, were engaged in violating all local laws and customs and “plundering, robbing and ravaging, evicting and desolating, apprehending and intimidating, banishing, expelling and confiscating goods, burning and scorching, hanging, chopping, hacking, breaking on the wheel, and torturing and murdering with gruesome and unheard of torments the Dutch subjects.” Alva was reviled as being driven by “insane fury and madness.”
It was not an uprising that would quiet down soon. For years armies marched around the Low Countries, battles were frequent and many cities and ports closed as commercial centres. During the chaos, Antwerp, which had provided the Portuguese with commercial access to much of northern Europe, was effectively shut down. Because the Spanish army and support for Spain were greatest in the south, Dutch merchants and leading citizens who were Protestant fled north as economic and religious refugees from Spanish and Catholic rule. Amsterdam received a great deal of this human and monetary capital. Merchants from Amsterdam began outfitting ships and sailing to Lisbon to bring the Portuguese spices and cloths and other eastern luxuries to northern Europe.
In 1595, Philip II closed Lisbon to Dutch ships. It was an act that damaged the Portuguese economy and provided the merchants of Amsterdam, now becoming one of the greatest commercial centres in Europe, with a financial as well as patriotic reason to fan out over the globe in a commercial invasion of the Portuguese spice route. Dutch merchants could now enrich themselves while at the same time damaging the economy and finances of their political and religious enemies. This was the environment in which the young Hugo Grotius grew up and entered Leiden University.
Ironically, the Dutch mariners who had been employed by the Portuguese made this commercial assault possible. Particularly valuable was the information collected and presented in 1596 by Jan Huygen van Linschoten, a Dutch mariner and traveller who spent nearly eleven years voyaging in the Indian Ocean and the East Indies for the Portuguese. His travelogue, Itinerario, was essentially a recounting of his many adventures, blended with patriotic advice to Dutch merchants and mariners on how to successfully challenge the Portuguese monopoly and enter the commercial world of the Indian Ocean and Indonesia. He described the Portuguese fortifications, their ships, the goods likely to interest eastern traders, and the customs of native kingdoms. He also included observations of where Portuguese strength was strongest or weakest and where Dutch ships might be well received, as well as advice on where the most valuable cargoes of nutmeg, mace, cloves, cinnamon and pepper could be obtained. Bernard Vlekke writes inNusantara: A History of Indonesia that “Linschoten also avowed . . . that the Portuguese Empire in the East was decayed, rotten and tottering, a structure which would collapse if given even a moderate blow, or to change the metaphor, it was a plum ripe for the picking.”
Unlike the Portuguese commercial ventures, which were directed and sponsored by the crown, the new Dutch voyages were independent enterprises funded by private investors. The first nine Dutch merchants to organize a local expedition to the Spiceries, in defiance of the Portuguese monopoly and the papal decree that underpinned the Treaty of Tordesillas, did so under the romantic name “Company for Far Places.”
The expedition consisted of four ships commanded by Cornelis de Houtman, a merchant who had sailed to and lived in Portugal and, perhaps more importantly, was related to one of the original investors. Although he was an incompetent leader who led his fleet into disaster through poor decisions that resulted in the death of more than half his crew of 249 and the loss of a ship, Houtman was met with enthusiasm by Malay traders wherever he went. Despite insulting many of his customers and having a poor complement of trade goods, he enjoyed a positive reception due to the mere possibility of providing competition. The Portuguese and Spanish traders had earned a reputation for their intolerance of local customs, particularly of local religions. Although Houtman’s voyage failed to achieve its commercial or diplomatic potential, the profits from small cargo of spices he brought back to Amsterdam paid for the expedition and whetted the investors’ appetite for further ventures.
The investors, hardened businessmen operating in dangerous times, immediately knew that they stood to profit greatly if a full cargo of spices could be secured. They hastily formed a new company and chose a new commander, Jacob Corneliszoon van Neck, placing him in charge of a fleet of seven ships. This time, in the start of a new tradition, the ships would be well armed against Portuguese attack. Under Van Neck’s leadership and diplomacy, the Dutch began to earn a reputation for trustworthiness and honesty. They were welcomed in Banten and throughout the Spice Islands wherever Van Neck’s ships stopped. When they sailed home to Amsterdam, the ships were stuffed with valuable spices, especially pepper, which when placed on the market earned the investors a staggering 400 per cent return on capital. With glee and patriotic greed, the Dutch organized more voyages, and within a few years at least five trading companies launched twenty-two ships to the Spiceries.
Throughout the Indies, the new Dutch traders secured a friendly reception by proclaiming that they were enemies of the Portuguese. In 1601, multiple companies launched sixty-five ships from Amsterdam for the Portuguese half of the world, and soon Dutch expeditions had visited nearly every coast and port in the region and established a solid network of bases and trade factories. The Dutch adventurers were perhaps too successful: after swamping the region’s markets with their northern European goods, they began to drive up the price of the spices and decrease the value of their cargo.
In 1602, to restrict competition among Dutch enterprises and to direct their energy against their common foes, Portugal and Spain, the Dutch East India Company (the VOC) was formed under pressure from the parliament of the United Netherlands. The first VOCfleet sailed from Amsterdam on December 18, 1603, with the direction not only to trade for spices but to attack Portuguese ships and forts. The VOC’s relentless assault on the Portuguese progressed relatively smoothly and rapidly, as it pursued trade and war with equal vigour. As Philip D. Curtin commented in Cross-Cultural Trade in World History, “The VOC began with its military force more important than its trade goods. It was less a capitalist trading firm than it was a syndicate for piracy, aimed at the Portuguese power in Asia, dominated by government interests, but drawing funding from investors rather than taxpayers.”
Like the English in the Caribbean, both the Dutch government and leading Dutch merchants knew that if they wanted to participate in global commerce, they would have to fight their way in. Prior to the VOC’s adoption of a semi-official policy of aggression towards the Portuguese, assaults against Portuguese shipping (frequently in retaliation for Portuguese attacks on Dutch ships) was haphazard and unofficial, undertaken at the whim of individual captains. One voyage in particular from this pre-VOC era was to have political, philosophical and legal ramifications—far beyond what its captain ever envisioned.
IN PORTRAITS, Jacob van Heemskerck is a hard-looking man, with a rugged countenance and close-cropped hair. He sports the usual accoutrements for men of the period: a Vandyke and an extravagant moustache. For his formal portrait, a costly and time-consuming undertaking, he chose the incongruous and eccentric pairing of courtly neck ruff, perhaps to announce his status or as a nod to upper-middle-class fashion, and a full suit of plate-metal armour, in recognition of the nature of his profession as a sea captain in the dangerous and violent Indies trade, where war and commerce marched together.
Van Heemskerck was a veteran trader who had sailed from Amsterdam in the spring of 1601, at the head of a fleet of seven ships, and proceeded to the Javanese port of Bantam in February 1602. Enroute, his fleet was attacked by a larger fleet of twelve Spanish galleons near the Canary Islands, where one of his ships was damaged and several of his men were killed, inflaming the survivors’ hatred of the Spanish and Portuguese. In the Spiceries, five of his ships were able to load cargo and return to Amsterdam with a rich haul of exotic commodities such as silk and porcelain.
While cruising in search of cargo for his two remaining ships, Van Heemskerck learned of the execution of seventeen Dutch mariners by Spanish officials at Macao. He also learned of a recently launched Portuguese offensive to attack and blockade the major spice trading ports to keep Dutch ships from entering them. It was already proving difficult to find a valuable cargo of spices, so when he heard rumours that Portuguese merchant ships would probably be sailing through the straits near Singapore, he set off with his ships. He was convinced that with no overarching police force or set of laws in the eastern seas, the enforcement of basic principles of justice devolved to individuals. To obtain justice from the Portuguese for murdering Dutch sailors and attacking Dutch ships, he would have to take matters into his own hands. “Since we lack Dutch warships to keep the enemy in check,” he proclaimed, “we have to do it ourselves.” And if he enriched himself and his company in the process, that would be an added benefit. In the early morning of February 23 he spied a carrack slowly working its way from Macao to Melaka and swooped in for the attack. After several hours of fighting, the crew of the Portuguese ship, the Santa Catarina, surrendered and their lives were spared, but their cargo was forfeited. In the hold were bales of Chinese silk in addition to other valuable goods. The ship and its plundered cargo were sailed back to Amsterdam and eventually valued at more than three million guilders, a staggering sum, which was paid out by court order to Van Heemskerck, his crew and the directors of the United Amsterdam Company.
Not everyone was pleased. The Portuguese naturally demanded the return of their ship and its cargo, claiming that the seizure was little more than piracy, which, despite the war, was still illegal. More importantly and unexpectedly, however, was the backlash from a handful of leading investors in the company, which by now had become part of the VOC monopoly. The investors, Dutch Mennonites, considered it immoral for the company, chartered as a commercial trading venture, to engage in violent attacks on foreign shipping. They seemed not to take into account the fact that Dutch ships were under attack in the Indies for violating the papal monopoly and that the United Netherlands was itself in the midst of a bloody, protracted struggle for independence from Spain. The company was not, they argued, an extension of the Dutch navy and thus ought not to war against the Spanish and Portuguese and claim the plundered goods for itself. This small group of investors publicly denounced Van Heemskerck’s actions, refused their share of the proceeds and threatened to establish a rival trading company, which, owing to the newly sanctioned monopoly of the VOC, would be based in France. The VOC directors were concerned: perhaps the foundation of the company itself would be at stake; and then how could the young republic continue to finance its war of independence? The VOC approached Hugo Grotius, then only twenty-one years old, to fashion a short justification for the attack and any future attacks on its enemies. Now was the time, the VOC felt, to secure greater public support for its actions and international acceptance from France and England.
Of course, piracy was nothing new or unexpected in Indonesia; indeed, most merchant ships of the era were armed to some degree. Those sailing from Europe around Africa, across the Indian Ocean and eventually to the Indonesian archipelago were more at risk of attack than most. The attacks might come from other Europeans, or from Arabic, Indian, Indonesian or even Chinese sea rovers. Piracy had been a way of life among some of these nations for generations. For example, English and French privateers in the Caribbean, and occasionally in Indonesia, often attacked and seized Spanish or Portuguese ships. But these European attacks were defensible, according to the customs of the era, because the captains were in possession of official privateering licences—they could point to a government-approved piece of paper authorizing them to attack the commercial shipping of certain foreign nations with whom their nation was currently at war. Van Heemskerck’s voyage was a private commercial enterprise and his company directors had authorized him to use force only in self-defence, which could be reasonably expected at the time. Without this veneer of legitimacy, it could be argued that Van Heemskerck had exceeded his authority and was therefore simply a pirate who took the opportunity to seize the cargo of an innocent European merchant. Of course, common sense and public sentiment in the United Netherlands was on his side, particularly since the Dutch Republic was still at war with Spain and Portugal, and the bloodthirsty atrocities committed by Alva were only a few years in the past.
Between October 1604 and November 1606, Grotius worked on his arguments, using documents provided to him by the VOC. These papers included a collection of notarized accounts of Dutch travellers in the East Indies titled “Book treating of the cruel, treasonous and hostile procedures of the Portuguese in the East Indies.” No one expected a neutral discourse on the technical and regional application of marine customs in extra-European waters; rather, Grotius was to write a fiery polemic aimed directly at exploding the Spanish and Portuguese pretensions to a monopoly on global trade and travel. Yet his work proved to be philosophical and thoughtful, rather than polemical. Grotius used the seizure of the Santa Catarina as the example upon which to construct his general and universal argument. The seizure, he wrote, was to be “the episode representative of all such captures.”
But he was overtaken by events before he could complete his treatise: the increasing commercial success of the VOC in its continued assaults on Portuguese ships and bases on the far side of the world ensured that public and government sentiment swung strongly in the company’s favour, and remained there, damping the urgent need for the polemic.
Nevertheless, Grotius remained intrigued by the complexity and universality of the issues, and he continued to work on his treatise for years afterward. Although the bulk of his work on the subject was not published until centuries later, one chapter that was published anonymously in 1609—the same year the Dutch Republic secured a twelve-year truce with Spain—was to have a profound influence on global affairs and thinking. The chapter had been essentially complete years earlier, but its publication had been delayed by the truce negotiations. It would have been considered unwise to publish a polemical tract justifying Dutch privateers’ attacks against Portuguese and Spanish shipping in Indonesia while the two parties were discussing the conditions of their ceasefire.
The document was titled Mare Liberum, or, in English, The Free Sea; or, A Discourse Concerning the Right Which the Hollanders Ought to Have to the Indian Merchandise for Trading. In it, Grotius countered Spanish and Portuguese claims of their exclusive jurisdiction of the oceans, stemming from the Treaty of Tordesillas, with the lofty idea of international freedom to sail the high seas that was based on the concept of what he termed “natural law.” This was a set of commonsense principles that should govern the relations between individuals and states, based on the foundation that autonomy and rights cannot be arbitrarily taken away from people or states. The moral and legal foundation of the argument in Mare Liberum was that an open sea was at the heart of communication; no nation could have monopoly control over the seas because of their vast size and ever-changing limits and composition. If something cannot be occupied or transferred to another, Grotius argued, it cannot be owned. A good deal of his argument was not based on hard legal reasoning or principles in the European tradition, but rather on a series of axiomatic, witty and somewhat amusing metaphors and examples such as “Sailing through the sea leaves behind it no more legal right than it does a track,” underpinned by wise quotes from ancient Greek and Roman philosophers. Mare Liberum was a statement of generally self-evident principles rather than a specific legal argument. It proposed a new legal philosophy that set out the existence of certain inalienable rights for all of humanity—such as the use of the sea for navigation—and argued that attempting to divide the oceans went against divine law.
Grotius’s argument is roughly divided into three categories: the right of possession of territories, the right of navigation of new waterways outside Europe, and the right to trade without interference in lands outside Europe. “These things are litigious between the Spaniards and us,” Grotius wrote, “whether the huge and vast sea be the addition of one kingdom (and that not the greatest); whether it be lawful for any people to forbid people that are willing neither to sell, buy nor change nor yet to come together; and whether any man could ever give that which was never his or find that which was another’s before.” In a series of short, persuasive and carefully reasoned chapters, Grotius progressed through all the possible arguments in favour of the Spanish and Portuguese right to monopolize international travel and trade, and neatly knocked them all down. His objective was to prove that the Dutch, and by logical extension any other nation, had the right to voyage around the world, particularly to the Indies, and then “to sail to the Indians as they do and entertain traffic with them. We will lay this certain rule of the law of nations as the foundation, the reason whereof is clear and immutable: that it is lawful for any nation to go to any other and to trade with it.”
The concept that he championed, that the oceans and seas are not owned by any nation and are open to ships regardless of their nationality—something that seems completely natural today— was a radical concept in Grotius’s time. (The same principles have since been applied to air travel: imagine Spain or Portugal declaring it illegal for jets to fly between London and New York because they had a prior monopoly, for example). Until the mid-sixteenth century it would have been somewhat of a moot point, however, because the global economy was in its infancy and long oceanic voyaging had been dominated by the Spanish and Portuguese. No other nation had the naval technology or navigational knowledge to make journeys of this length and duration.
One area of particular clarity for Grotius was that the claims of the Spanish and Portuguese to their respective halves of the world had no legal or spiritual foundation. Pope Alexander VI, he declared, possessed no temporal authority to command peoples not belonging to his religion; in fact, the entire foundation of Spanish and Portuguese colonial empires had no validity or legitimacy. “The Pope,” he declared, “unless he be temporal lord of the whole world (which wise men deny), cannot say that the universal right also of merchandising is in his authority . . . Further, if the Pope would give that right only to Portugals, and would take away the same from other men, he should commit double injury. First, to the Indians who, as they are put out [that is, not part] of the Church, were no way subject to the Pope . . . Next, to all other Christian men and infidels, from whom he could not take away that right without cause.”
In his argument Grotius also included the belligerent assertion that justified the Dutch seizure of the Santa Catarina: “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.” He essentially argued that any Dutch ship had the right to attack anyone interfering in its natural use of the common waterways of the world and its free commercial association with other peoples. The pirates, in fact, were those attempting to interfere with this natural right of travel and trade.
The entirety and subtlety of Grotius’s arguments can probably be appreciated by students of legal history or international law, but a few additional passages from Mare Liberum illustrate the clarity of his logic and reasoning, specifically as they apply to challenging the provisions of the Treaty of Tordesillas. Chapter Three, titled “That the Portugals Have No Right of Dominion over the Indians by Title of the Pope’s Gift,” states that “if they will use the division of Pope Alexander the Sixth, above all that is specially to be considered whether the Pope would only decide the controversies of Portugals and Spaniards, which surely he might do as a chosen arbitrator between them as the kings themselves had made certain covenants between them concerning that matter, and if it be so when the thing was done between others, it appertaineth not to the rest of the nations.”
In Chapter Six, titled “The Sea or Right of Navigation Is Not Proper to the Portugals by Title of the Pope’s Gift,” Grotius succinctly observes that “the donation of Pope Alexander, which may be alleged in the second place by the Portugals challenging the sea or right of sailing only to themselves . . . hath no force in things which are without the compass of merchandise, wherefore, seeing the sea of the right of sailing in it can be proper to no man, it follows that it could neither be given by the Pope nor received by the Portugals . . . Therefore we must either say that such a pronouncing was of no force or, which is no less credible, that the Pope’s meaning was such that he desired the strife between the Castilians and the Portugals should be mediated but nothing of others’ right diminished.” Other chapters deal with questions and issues such as “That trading with the Indians is not proper to the Portugals by title of the Pope’s donation” and “That by the law of nations any man may sail freely to whomsoever.”
Although Grotius’s purpose in writing Mare Liberum was actually quite narrow—to advance Dutch commercial interests, specifically the interests of the VOC monopoly that was so closely linked to national political interests—his arguments were lofty and morally superior in style, so that they took on a greater importance than the author may have intended. “His broader framing of the arguments,” David Armitage writes in his introduction to Richard Hakluyt’s translation of Mare Liberum, “also ensured that Mare Liberumwould be understood as a general statement of the right to freedom of trade and navigation. 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 and possession that would guarantee its lasting fame and notoriety.” That the seas and oceans of the world were international territory, and not subject to the whims and rules of any individual nation, was not immediately or universally accepted. Naturally, the very concept provoked outraged challenges—not only could it be taken to justify the dismantling of the Spanish/Portuguese seaborne colonial empire, but it could also be applied to purely local navigation and shipping rights. By January 1610, barely half a year after Mare Liberum’s Latin publication in the Dutch Republic, the Vatican had placed the treatise, with its secular and philosophical takedown of papal claims, on its Index of prohibited and banned books.
Grotius’s universal work soon touched off a lively debate between the duelling concepts of the mare liberum and mare clausum (“the closed sea”), in what has become known as “the battle of the books.” For generations, many had claimed that Pope AlexanderVI’s division of the world was unjust, yet it was Grotius who knocked the wind out of every argument favouring this division and opened up the debate on whether any nation could impose arbitrary regulations on all of them. The idea of the closed sea had its antecedents as far back as the Roman Empire, when governments sought to patrol and collect passage rates and other forms of taxes or to prohibit ships of certain nationalities from entering what they considered to be local territorial waters. The demand for control over local waters was common for seafaring nations. A significant change occurred, however, in the wake of the Portuguese discovery of a sea route to India and Columbus’s transatlantic voyage.
These discoveries—not of new lands specifically but of a reliable method of sailing to and returning from the new lands— began the process of opening the world’s waterways to navigation and exploration. In previous eras, most seafaring was coastal, and ships remained close to shore as they plied their trade. Oceanic voyages, far from land or indeed in waters much closer to foreign lands than to home countries, and of many months’ duration, presented a completely different set of technical and legal issues. The concept of mare clausum was solidified by Pope Alexander VI in 1493, upheld and successfully defended by the Portuguese and Spanish throughout the sixteenth century and philosophically challenged by Grotius in 1609. Grotius’s motives, however, were not entirely altruistic, and his position was extreme: no water, no matter how close to a nation’s coast, was in any way under national direction or control.
The challenge to Mare Liberum from Iberian theorists came first from Seraphim de Freitas, a Portuguese law professor at the University of Valladolid, who wrote Imperio Lusitanorum Asiatico in rebuttal (although it was not published until 1625). De Freitas merely picked at Grotius’s somewhat selective use of ancient quotes that supported the concept of mare liberum and pointed out certain weaknesses in Grotius’s legal reasoning. He claimed that the Portuguese did in fact discover the African cape route of reaching India, and should this pioneering discovery not be worth something, considering the great expense, uncertainty of success and time involved? De Freitas also raised the point that if people wanted an exclusive monopoly with the Portuguese, should they not be permitted to enter into an exclusive agreement? These were practical arguments that might have been received more favourably outside Portugal, if one excluded the fact that the Portuguese monopoly was enforced with arms and the threat of violence and intimidation, backed by Portugal’s unassailable belief in its moral right to the monopoly, rather than a freely negotiated commercial transaction. The Spanish writer Juan Solorzano Pereira continued this line of defence in justifying the Spanish monopoly and control over the western Atlantic and Pacific Oceans in his tract De Indiarnum Jure, published in 1629.
The first direct rebuttal of Mare Liberum that had an influence on the evolving idea of international law came from Scotland. In 1613 William Welwood, a professor of civil law and mathematics at the University of St. Andrews, published Abridgement of All Sea-Lawes as a direct challenge toMare Liberum. Although Welwood agreed with the concept of freedom of the “maine Sea or great Ocean,” he asserted that those waterways adjacent to land should be under national jurisdiction. Surely, he questioned, if a person can own a pond or a creek, a king should have jurisdiction over the water surrounding his kingdom?
The most effective challenge to the radical universality of Mare Liberum came from England in 1618, when John Selden, one of England’s foremost lawyers, wrote his classic rebuttal to Grotius in Mare Clausum (although it was not widely published until 1635). He laid out his argument that the sea, just like the land, formed a part of national territory, that there could be dominion over the water. “That the Sea, by the Law of Nature or Nations, is not common to all men, but capable of private Dominion or properties as well as the land . . . That the King of Great Britain is Lord of the Sea flowing about, as an inseparable and perpetual appendant of the British Empire.” In a fashion similar to Grotius in Mare Liberum, Selden marshalled his own pantheon of ancient philosophers to bolster his assertions of the closed sea—although he, like Welwood, was careful to preserve the validity of Grotius’s case against the Spanish and Portuguese. Both Welwood and Selden were particularly concerned about the flood of Dutch herring boats into “English” and “Scottish” waters. Their reason for dismissing Grotius’s claims that all water should be open to universal use was that Dutch fishermen were allegedly plundering English and Scottish fish stocks without having any obligation to pay local taxes. “It is incredible,” Selden asserted, “what a vast sum of monie the Hollanders make by this Fishing upon our coast.”
The growing quarrel between England and the Dutch Republic— particularly between their two monopoly trading enterprises, the Dutch VOC and the English East India Company—that would lead to three wars later in the seventeenth century was reflected in the rhetoric of Mare Liberum and its challengers. The first of these military disputes began in the early 1600s with the rise of the East India Company and the growing conflict between it and the VOC for dominance in the Spice Islands. Writing in The Dutch SeaborneEmpire, C.R. Boxer wryly notes that “as rulers of a trading nation whose merchantmen ploughed the seven seas from Archangel to Cape Town and from New Amsterdam to Nagasaki, the States-General naturally cherished peace in theory; yet for most of the seventeenth century they found themselves involved in wars in one or another region of the globe.” In Indonesia and around the world the Dutch fought with the Spanish and the Portuguese, as well as with various native kingdoms and sultanates, to gain access to markets in Asia. In Europe, meanwhile, they fought a series of wars with England and France to disingenuously defend a Dutch monopoly on certain spices from the same region. Allied for generations in a mutual hatred of Spain and Portugal, the former allies now viewed each other with barely veiled hostility when competing commercially in the newly opened oceans of the world. The VOC, in addition to prosecuting its ongoing war against Spanish and Portuguese shipping in the Indies, threatened to board and attack any French ships it encountered and began not only to threaten the English East India Company, but also to attack their ships and seize the cargo and imprison or kill the mariners and merchants.
Grotius sailed to England in 1613 for the first of two meetings to try to resolve these growing tensions between the erstwhile allies. In the true fashion of lawyer as hired gun, Grotius, in his ongoing capacity as legal adviser to the VOC, defended the actions of theVOC in imposing its own monopoly on the spice trade, arguing that the native producers had signed “contracts” with the VOC for the delivery of their product and that, in his now more refined understanding and interpretation of the “natural law,” a contract must be enforced even if it undermined the sovereignty of a people. (Grotius surely knew many of the VOC contracts were signed under duress and intimidation.) In his view, it was defensible for the VOC to forcibly exclude and expel English company ships because the natives had already contracted with the VOC for all the spices they produced in a given year.
Grotius was as slippery as an eel in twisting his arguments to favour the interest of the VOC and the growing Dutch seaborne commercial empire. He surely knew what he was doing, undermining the very foundation of his own masterwork for the short-term commercial gain of his company and country. As Martine Julia van Ittersum writes in Profit and Principles, “The political and intellectual partnership between Grotius and the VOC directors does indeed bring out the dark side of modern liberalism. Grotius’s rights and contract theories were not just coterminous with the rise of global trading empires in the seventeenth and eighteenth centuries, but made them possible in the first place.”
Perhaps the greatest irony to arise from Grotius’s assuming multiple and conflicting roles as an advocate was that at the London meetings the English East India Company negotiators quoted from Mare Liberum in making their arguments that oceans should be open to all nations and peoples, not just the Dutch—while remaining unaware that Grotius was the anonymous author of the famous tract. It must have been galling, or perhaps amusing or flattering, for him to have his own anonymously published but powerful and universal arguments parroted back at him; certainly, poetic justice comes to mind. We don’t know what Grotius felt or thought about arguing the near-opposite principles to those expressed in Mare Liberum, but it certainly raises questions about his convictions. It was probably a case of nationalism and self-interest apparently trumping the logic of universal arguments or “justice.”
In either case, the foundation cited for the legality of a Dutch monopoly was based on the fact the Dutch had spent a lot of money and time developing the trade route, attacking the Portuguese and establishing their own commercial network, and thus it was unfair for the English to now come in and poach from their success, especially since the local people had already signed exclusivity contracts—essentially the same tired arguments put forward by Seraphim de Freitas in defence of the Portuguese claims. Interestingly, by 1625, when he published his most well-known legal work, De Jure Belli ac Pacis (On the Law of War and Peace), Grotius had come to accept the validity of territorial waters being under the control of nations.
But the essential questions remained unanswered in these polarizing and blatantly partisan positions. Whose rules and laws should prevail in distant waters, far from land? Those of local societies, or those of a ship’s home nation? The Portuguese and Spanish? Interminable war and piracy was neither feasible nor productive for anyone. Eventually the opposing demands moderated as nations and theorists realized that neither extreme was a workable solution in an increasingly globalized world. In 1702 the Dutch jurist and writer Cornelius Bynkershoek published a tract titled De Domino Maris, wherein he argued that nations should have control over at least some of their coastal waters, that the freedom of the seas advocated by Grotius should be restricted to the high seas, and that this national control should extend outward from sovereign territory to the range of about a cannon shot—the distance from which a nation could reasonably defend its watery territory. (Known as the cannon shot rule, this was the original concept of the three-mile limit.) Beyond that limit, the waterways of the world would be open to any ships, as Grotius argued in Mare Liberum.
From these foundations, many generations of refinement eventually produced other ideas such as innocent passage, and fishing and mineral rights within an “exclusive economic zone,” which is now based on the continental shelf, the twelve-mile limit or the two-hundred-mile limit, depending on the region. The philosophical principles conceived in the early seventeenth century by thinkers such as Grotius, to provide the intellectual basis for a challenge to the absolutism that underpinned the Treaty of Tordesillas, became the foundation for the United Nations Convention on the Law of the Sea.