Grotius, Selden and 400 Years of Controversy

How young has a major contributor to the law been? I’d argue the case of a brilliant 21 year old Dutch student.

Over at the Yale Law Library Blog, a great exhibition on the four hundredth anniversary of the publication of Hugo GrotiusMare Liberum, (“On the Freedom of the Seas“) – or Huig de Groot if you dislike Latinization. Originally published as a pamphlet, it produced the first effective argument for the freedom of the seas and, with Grotius’s more mature work, De jure belli ac pacis (1625), lent substance and prestige to the idea of an international law in the service of the common good. Grotius touched off a “Battle of the Books”, with England’s leading legal scholar, John Selden, the author of Mare clausum.

What eventually emerged was a regime of international law to govern humanity’s common interest in shared resources. In principle, Roman Law had already established that navigation on the high seas was open to all. But in practice the principle was frequently disregarded – even by Rome itself, when its naval power was at its height, and by others after its decline. With the growth of maritime commerce, especially in the later Middle Ages, maritime powers asserted dominion over wide areas of ocean space.

The controversy between Grotius and Selden on the liberty of the sea is known to every law student. As Mike Widener summarizes it, “Selden conceded the innocence of harmless navigation and commerce, but maintained that restrictions on them do not necessarily violate the law of nature and the law of nations. He purported to show that the open sea is not everywhere common, is capable of appropriation, and in fact from time to time had been appropriated and occupied. As to the Spanish and Portuguese claims, whose legitimacy England continued to deny, Selden said that, while on general principles they could be valid, in actual practice neither of the two countries ever acquired valid title or command to the areas they claimed”.

The story of how the Dutch East India Company turned to a 21 year old scholar is a fascinating one. As Edward Gordon narrates:

A small fleet belonging to the Dutch East India Company attacked and overwhelmed a richly laden Portuguese vessel, the Santa Catarina, near Singapore. The captured vessel and cargo were brought back to the Netherlands, where a Dutch court ordered the proceeds of its sale distributed to the Company, the admiral of the fleet and his crew. A furious row erupted over the legality of the seizure, which struck many as immoral – in fact, scarcely distinguishable from outright piracy.

The case presented complex legal issues. The need to defend its right to participate in the East India trade had arisen in the course of the young Dutch republic’s war of independence against Spain, which by then held dominion over Portugal and regarded the Dutch as no more than rebellious subjects. Moreover, as some of the Company’s dissident shareholders themselves pointed out, the Company had been organized as a private mercantile enterprise, not as a vehicle for engaging in an aggressive war, much less for enriching itself in the process.

Some of the shareholders threatened to withdraw their capital, to form a new enterprise in competition, even to make common cause with a French company projected by Henry IV. The Company’s very existence was thought to be at risk – and with it the future of the young republic’s burgeoning overseas commerce.

To win over popular support, the Company turned to Hugo Grotius (1583-1645), then only twenty-one years old and too new to the practice of law to have been hired to handle the Santa Catarina litigation itself, but already renown throughout Europe for his prodigious erudition, his knowledge of the wisdom and practices of nations from biblical and classical times. Henry IV himself had greeted Grotius’s arrival in France as a fifteen-year-old diplomatic attaché by having a medal struck in his honor, declaring the young man to be nothing less than “the miracle of Holland.” In effect, Grotius’s defense of the Company’s position was tantamount to a celebrity endorsement, as valuable to the Company in this respect as by the persuasiveness of whatever legal argument he could muster in support of its actions.

Grotius immediately set about preparing a treatise that would portray the Company’s action in the context of a comprehensive theory of the law of prize. But before he could finish it, it had already been overtaken by events. The dissident shareholders had made good on their threat, to the extent of withdrawing their capital, but had failed to organize another company or to persuade the French to do so. Just as important, the Company’s commercial success had precipitated a change in public sentiment, effectively silencing critics of its aggressiveness. Moreover, and perhaps even more critically, an end was in sight to Holland’s decades-old war of independence from Spain. The moment, perforce, was inauspicious for a verbal assault on Spain and Portugal’s claims to a global monopoly.”

Not bad for a twenty-one year old.


The first edition of Selden’s Mare clausum is also famous as the first use of Arabic type in England.

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