From The Law of Prize to The Free Sea

Like other good stories, this begins with a sea battle. On 25 February 1603 after a firefight at dawn, the admiral and explorer Jacob van Heemskerck seized the Santa Catarina, a Portuguese carrack, in the Straits of Singapore.

They were not disappointed. Probably between September 1604 and No­vember 1606 Grotius composed a book-length argument, the De iure praedae commentarius (ιpc), in which he did three quite original things. Firstly, he ar­gued that Heemskerck seized the Santa Catarina out of self-defence. Heem- skerck's brother was earlier attacked by the Portuguese on the high seas. It was reasonable for the Dutch captain to both assume hostile intentions and mete out punishment, the argument ran. There was no enforceable law of the sea that would have protected the captain's brother; thus Heemskerck had a natu­ral right to preemptively strike and retaliate against the fabulously wealthy ship.

Secondly, Grotius argued that the 1494 Treaty of Tordesillas, in which the Pope divided the known and unknown parts of the globe between Spain and Portugal, was invalid. The high seas are free, Grotius insisted, and no one could control them. God gave the world to humanity to hold in common. Over the course of history it has become possible to own specific lands, even to form states on land, through first occupation, adding one's labour, exercising effec­tive control, and other marks of ownership. Private property becomes public again in emergencies (such as a famine), although the high seas remain free.

However, the VQC decided to hide Grotius' book from view when political circumstances changed. It looked as if Holland would claim territorial rights over trade, and that Denmark, Sweden and others might snap up Grotius' free seas argument for their own purposes. So Grotius was paid; the book was sup­pressed; only chapter twelve was reworked and published as Mare liberum in 1609. The full IPC was rediscovered only in 1864, and first published in 1868.^[782]

In a letter of 4 November 1608, the Zeeland voc directors commissioned Grotius to publish Mare liberum.^{[783] [784] On 23 November Grotius wrote to Daniel Heinsius, his colleague and friend, that he was working toward a â€?quick publi­cation' to transform chapter xιι of IPC into Mare liberum, and asked Heinsius to find a publisher. Lodewijk Elzevir in Leiden agreed to publish it, and subcon­tracted the printing to Joannes Balduinus. Due to the ongoing peace negotia­tions, on 7 March 1609 Johan van Oldenbarnevelt, Land's Advocate for Holland and effectively Prime Minister of the Dutch Republic, asked Grotius to suspend the publication of Mare liberum until the Twelve Years' Truce was signed be­tween the Dutch Republic, and Spain and the Southern Netherlands. Nonethe­less, Mare liberum already appeared in the spring 1609 catalogue of the Frank­furt Book Fair.[785] The treaty was signed in Antwerp on 9 April 1609. Probably at the end of April, Grotius wrote to Heinsius that the books were available for sale.[786]}

Mare liberum is habitually described as chapter xii of IPC. Some scholars add that Grotius slightly rewrote chapter xII to turn it into a free-standing work. The conventional range of views misses considerable structural and sub­stantive differences between IPC xii and Mare liberum.

One such tension is that in IPC Grotiusjustifies the capture of the Santa Catarina from Heemskerck's personal right to self-defence; from the right of the voC to participate in a public war with Portugal partly as a private com­pany and partly by the right delegated by the Estates General; and from the right of the United Provinces to seize enemy property. Several scholars have explained Grotius' contribution in terms of one justification or another, and built on incomplete readings of ιpc or Mare liberum a portrait of Grotius as an apologist for Dutch imperialism, a hired pen for the voc, or an important source for individualism.^[787] However, ιpc contains four justifications (of the United Provinces, Zeeland and Holland, the voc, and every Dutch citizen), or more. The interplay of individual, corporate, provincial, and federal state rights in ιpc, Mare liberum and dibp, and the evolution of Grotius' thinking regard­ing all three between 1604-6 (when he drafted ipc) and 1632 (when ibp's sec­ond edition appeared) suggests that Grotius moved toward a state-driven view of international law and trade that was closer to John Selden's view in Mare clausum (1635).

Though most scholarship takes Grotius' free trade position at face value, some have pointed out that he changed his mind about free trade, which may be why he declined to answer Selden. Even studies that point to an ostensible shift in Grotius' thought do so in passing, without a reflective criticism on the traditional, entrenched view that Mare liberum marks the beginning of an in­fluential free trade ideology.

I suggest that instead of a laudable or damnable advocacy of free trade, a tension between the rights of individuals, corporations, provinces, and sover­eign states runs through Grotius' aforementioned works, and brings him into an unexpected degree of alignment with Selden's Mare clausum. Important differences of opinion remain, but they are finer and not the ones that existing accounts suggest. This reinterpretation and re-alignment allows us to enter­tain the possibility that while Selden's Mare clausum, with its emphasis on state authority and limited global resources, reflects the origins of liberalism better than Grotius' works,^{[789] [790] [791] [792] [793] future accounts of the project of modern interna­tional law will explain the popularity and genealogical significance of Grotius not in terms of a free trade doctrine, but as a consequence of his formulation and systematisation of rhetorical strategies of free trade that proved uniquely useful for modern states, for instance when they enforced an expansive right to free trade. Selden supplied the vision of liberal sovereignty, and the tension that Grotius left unresolved at the heart of his unprecedented systematisation of international law supplied powerful tools to achieve Selden's vision.}

Suprajuridical, namely religious, ethical, and political norms helped Grotius to paper over useful tensions and contradictions between individual, corpo­rate, provincial and state rights and responsibilities. Such norms included rep­resentation, as mediated through Grotius' view of overlapping interests.

In IPC xii Grotius layers the public-private distinction on top of the individual - corporation - province - state balancing act. He insists that the voc's attack on Portuguese ships and forts is a just private war, partly because the Portuguese have inflicted damage on the voc's private property, and partly because the voc alone bore the costs of the colonial enterprise that made cap­turing the Santa Catarina possible?⁴ Moreover, it is the Portuguese assault on the Zeeland voc, not on the United Provinces, that justifies private war. Ac­cording to Grotius, the provincial government and voc of Holland come to share the right to punish Portuguese injuries by virtue of the 1602 unification of numerous colonial enterprises as the new voc, with a state-sanctioned mo­nopoly over the Asian trade and rights to maintain armies, build forts, and sign treaties. At the end of ιpc xιι, in a section omitted from Mare liberum, Grotius explains that these corporate rights, in turn, make the voc’s business a public affair, which thereby transforms itsjust private war into a just public war.^{[794] [795] [796] [797]} Elaborating on this point, in ιpc xιιι Grotius powerfully counters arguments that sovereignty belongs to the people, who have no right to resist the properly constituted sovereign when it becomes tyrannical.i⁶

One reason for this strongly etatist, in the early modern sense even anti­republican position is that Grotius aims to show in ιpc xιιι that the Dutch government, comprising the prince and the Estates General, has the final say over war, treaties, and the captured prize - superficially, in contradiction to ιpc xιι and Mare liberum.

Another theme that runs through IPC is that it is God’s plan for nations not to have everything they need, but be forced to trade, interact, and thereby pac­ify and civilise one another.^{[799] [800] [801] [802] [803] The Dutch in particular are called to global trade by divine providence, and God has repeatedly intervened directly on their be­half against the Portuguese. (Admittedly this comes from the documents the voc supplied to Grotius to compose IPC. If anything, Grotius considerably toned down the chosen nation arguments in these documents, and demon­strated the inapplicability of the Bible in international legal reasoning.)21 Moreover, the Dutch are also exceptional because as champions of interna­tional law they embody the interest of all mankind.22 Here Grotius did not naively ignore the tension between state, provincial, corporate and individual interests: as early as the 1601-2 â€?De fide et perfidia’, chapter vι of his Parallelon, he claimed a full concord of public and private interests as part of Dutch ex- ceptionalism.23 For those used to regarding Mare liberum as a free trade mani­festo, this combination of sovereign control over all seas (rather than seaboards or routes only) and imperial exceptionalism is strikingly similar to Selden’s ac­count in Mare clausum of Britain’s destiny and right to rule the seas.}

Some think that Grotius changed his mind about free trade because he en­tered Swedish employ in 1627, and this is further evidence of his humanist or legalistic casuistry?⁴ This was a factor but not the sole reason. Rather, the idea of sovereign territorial control over the seas was present in Grotius’ unpublished 1604-6 ipc as much as in Selden's 1635 Mare clausum, together with the proposi­tion of an exceptional nation with rights to global trade under a sovereign with dominion over the high seas.^[804] At the same time, centuries of readers under­standably picked up on Grotius' claim that the high seas are free, no one can rightfully stop others from sailing and trading, and no single sovereign can claim exceptional jurisdiction over all seas?^[805] Mare liberum contains the abovemen­tioned self-contradictions concerning economic rights and responsibilities not because it is an inchoate manifesto for corporations' right to protect and en­force free trade, but because it was adapted from a declaration of states' eco­nomic autonomy, for the realisation and expansion of which the VQ c was one of the strongest instruments that the Dutch had developed. Another reason for the ostensible tension between Grotius' assertion of the voc's rights and those of the United Provinces is that his instructions were to claim the Santa Catarina for the VQC; demonstrate the profitability of VQ c adventures for the whole country and its government; and to convince the government to subsidise the VQc's operations, both commercial and military?^[806]

This set of instructions may be the reason why Grotius seldom addresses and consistently downplays potential tensions between states and corpora­tions. In the Commentarius in Theses xι, Grotius argues that the distinction between public and private just wars is misleading when an agent, whether public or private, is authorised to defend the public good. While the agent does so, it holds the relevant marks of sovereignty?^[807] By contrast, in ιpc Grotius notes that a company may involve a state in an unjust war out of greed?^[808] but he adapts the broad point about Dutch concord in â€?De fide' to the capture of the Santa Catarina and emphasizes that the rights and interests of the VQc and the United Provinces are inextricably aligned.^[809] Dutch individuals, corpora­tions and the state must seize Spanish and Portuguese property the same way they would wrest swords from madmen, since property enables unjust Iberian attacks on the Dutch^[810] The VQc is effectively the state's arm to create wealth and protect its allies, including Johore.^{[811] [812] The voc owns the Santa Catarina be­cause it invested in Heemskerck's venture, and revenged offenses against both the country and the corporation.33 However, it is morally obliged to transfer the authority over allocating the prize, and part of the prize itself, to the state. Elsewhere, Grotius argues that the voc owes its existence to the state, there­fore the state can claim at least part of the captured prize, even though the expedition was privately financed and executed[813]}

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