Selden’s Mare clausum: Popular Sovereignty and Limited Global Resources

Selden's Mare clausum, a direct response to Grotius' Mare liberum, was fi­nally published in 1635. It was a hit. The first few editions sold out, a copy was placed in a chest in the court of admiralty to signal its authority and to make it easy to use in international disputes^² and the Dutch promptly printed several pirated editions (some of them with a false London imprint). Mare clausum, and not Mare liberum, is the beginning of the modern international law of commerce. Why? Selden counters Grotius on four points:

1) he reimagines all property as private;

2) state sovereignty as including effective and legitimate control over the seas;

3) he asserts the possibility of expanding territorial control over the seas indefinitely when imperial reason of state comes to include global trade; and

4) he formulates British exceptionalism in a way that becomes a template for French, Danish, Swedish, American, Prussian, even Belgian and other exceptionalist claims; and he does all this while agreeing with Grotius about the secularisation of public international law.

Let us take these in turn. Selden marshals the Old Testament and pagan au­thorities, such as Cicero, Ovid, Virgil and Seneca, to show that different cul­tures' historical records agree that since the beginning of time, property has always been private. According to Selden, when pagan sources construe a golden age, or when the Bible depicts the situation after the Flood, they invari­ably refer to a single family or group that collectively owns the world. Their collective private property gradually becomes individual private property, as the pagan gods or Noah's sons start to migrate and settle down. This is the be­ginning of kingdoms, and a rudimentary state system. Grotius is right that God first gave Creation to all mankind to hold in common, but it was held in com­mon as private property. Neither natural nor divine law proscribed or pre­scribed private property. They merely permitted it, and non-universal private property emerged from the extension of the voluntary bequests of universal dominion-holders, such as Adam and Noah, and the transformation of com­mon rights to enjoyment into full-title dominion. Over time, popular consent consolidated private property. By �the mediation of something like a compact, which might binde their posteritie', tracing the increasingly fragmented and complicated legacy of original universal dominion-holders was replaced by the universal recognition of the right to private property, irrespective of wheth­er or not one could trace one's property back to Adam or Noah.^[842]

To make sure that no religious denomination can take exception to his claim, Selden does something odd. He reads pagan and biblical texts as histori­cal sources of equal value, as Grotius did^{[843] [844] But he also relies heavily on an unusual variant, the Samaritan Pentateuch. Many Western scholars have want­ed to see this text since the 1580s. The Italian adventurer Pietro della Valle fi­nally obtained a copy in Constantinople, and sent it to Paris in 1623.}

Selden also gave a host of direct reasons why the Bible was inapplicable to international law. Jerusalem was special, therefore divine laws that applied there cannot apply elsewhere. When the Jews were driven out of Israel, all legal continuity from the state, which the Bible describes as being directly ruled by God, disappeared. There are no sacred nations, Selden explains, only dema­gogues, including the kings and popes who pretend to divine mandate.

If a thousand years of international law was built on the wrong foundation, and the Bible is not the right guide, then what is the source of international law according to Selden? The curious answer is that he developed something like English common law for international law. First of all, he argued, reason was not a good source of law, either. People are often wrong, and often wrong for long periods of time. Moreover, the laws that reason could reveal in land­locked states are useless in figuring out maritime laws; so the sphere of reason and experience is quite limited. The powerful and successful Roman empire, from which so many laws have been directly derived, is not a good source, either. Rome made mistakes, and eventually fell. Moreover, science and tech­nology have changed, and laws must keep up. The heliocentric system and the compass, in particular, according to Selden, have made it possible to divide the world even before we discover all of it. We can draw lines on the globe, negoti­ate, and settle areas of dominion, then go see what is there.

Within this newly constructed source of law, Selden makes two great moves. One is to create Britain. There was some debate and confusion about the term in the seventeenth century. Selden used Great Britain as a geographical term for England, Scotland and Wales. Ireland was conquered, and there was a per­sonal union between Scotland and England. The constitution of this compos­ite state became more complex as Selden superimposed the historical dimen­sion. Some of his contemporaries thought that the Norman conquest of 1066 eliminated all legal continuity from Saxon times. Others believed that the more broadly representative Saxon politics remained binding under the ve­neer of Norman monarchy. Selden cut across all this and, starting at least from his notes to Michael Drayton's 1612 Poly-Olbion, consistently defined Britain as a shifting, expanding, multicultural nation that runs uninterrupted from the first British, English, and Saxon tribes through the Danish and Norman con­quests to the incorporation of Wales, the conquest of Ireland, and the union with Scotland. Moreover, this nation has a historically unique dominion over the seas. He writes,

Then it shall be shown, from all Antiquitie, down to our times without interruption, that those, who by reason of so frequent alterations of the state of Affairs, have reigned here, whether Britains, Romans, Saxons, Danes, and Normans, and so the following Kings have enjoined the Do­minion of that Sea by perpetual occupation, that is to say, by using and enjoying it as their own after a peculiar manner, as an undoubted portion

either of the whole bodie of the estate of the British Empire, or of som part thereof, according to the state and condition of such as have ruled it; or as an inseparable appendant of this Land.^[846]

Among the civilised peoples with a unique dominion over the seas and whose legal theory and practice created the binding customary law of the seas, Selden names 18 nations, starting with Minos. Historically, such nations rarely over­lapped. In Selden's account, their sole dominion of global seas passes down almost seamlessly from one to the next (a seamless scheme would fit Hegel's providential more than Selden's prudential historiography). The British are the latest, as well as the best, partly because their title rests on popular sovereignty, and partly because Mare clausum marks the moment when the world has come to recognise and identify the continuity of nations that dominate the seas, and can now finally place international law on its proper foundations. It is Britain's mental act of recognition and will to seize dominion that perfect their title. This is indeed the legal foundation of British exceptionalism, but let me note again that it is secular. William Welwod claimed British exceptional­ism against Grotius on biblical grounds^[847] John Dee, advisor to Elizabeth I, and Samuel Purchas, the cleric and writer, have also formulated full-blown impe­rial ideologies based on the view that God wants Britain to conquer the world and spread Christianity. Selden is refuting Grotius less than the British impe­rial visions based on religious exceptionalism and chosen nation theories.

The pattern of references reveals that Selden implicitly criticised Grotius in several sections of Mare clausum. An explicit criticism comes in I.xxvi, where Selden tellingly tackles Mare liberum and ibp together. Selden points out that Grotius, while right to deny Portuguese claims to dominion, contradicts him­self on the legality of private dominion over the seas in Mare liberum v and vιι. He adds that English ambassadors used Grotius' own arguments in defense of English fishing against Dutch obstruction, and that the whole free trade and navigation argument, which many have made but Grotius has defended the best, was the reason for Grotius' downfall, as Grotius himself attests in his Apology. Selden continues by pointing out the contradictions in ibp, where Grotius repeats that by their nature seas cannot be limited, but also expands the contradictory passages in Mareliberum that deal with private dominion^[848] Selden does not draw attention to every self-contradiction, nor to Grotius' complex but clear hierarchy of laws, which allows for civil laws to modify or even overrule natural laws.

Given his stance on Grotius' self-contradictions, it may not be surprising that Selden refers to Grotius only a few times after this point in Mare clausum. However, counting explicit references is misleading. When he sets out to show that ancient Britons had dominion over the seas before the Roman conquest, Selden uses ibp ii.iii as the only authoritative legal standard for establishing dominion. Grotius points out that intent to possess is insufficient, and effective possession is required to perfect the title.^{[849] [850] [851] [852] The wealth of historical evidence in Mare clausum is brought to bear on a demonstrandum that rests on Grotius' authority.}

After he established historically that Britain is a uniquely dominant nation, Selden still needs to address Grotius' point that it is unreasonable to block other nations' rights of free passage over land or water in order to fish or to trade, because no one is injured when they do. Citing Grotius' example that passing through seas is like lighting your fire from another person's flame, a situation in which nobody loses, Selden writes,

And for any man to allege here, what is commonly talked, of the lighting of one Candle by another, of the not denying a common use of Water, and other things of that nature, it is plainly to give over the disquisition of Law and Right, to insist upon that of CharitieT-

That is not law, in other words?² Denial of commerce, or denial of free passage, cannot justify war. Moreover - and this is Selden's key move - there are no in­exhaustible resources. The seas are not like the burning candle from which an­other man can light his own without diminishing its flame. â€?Yea, the plentie of such seas is lessened every hour, no otherwise then that of Mines of Metal, Quarries of stone, or of Gardens, when their Treasures and Fruits are taken away'.7³ Caesar came to Britain looking for pearls; pearls and fish are in fact limited maritime resources.

Where then is that inexhaustible abundance of Commodities in the sea, which cannot be impaired? The Sea (I suppose) is not more inexhaustible then the whole world. That is very much inferior to this, as a part is to the whole, in greatness and plenty. And therefore a Dominion of the Sea is not to be opposed upon this accompt....^[853]

This is the final piece needed before Selden's doctrine of closed seas can come to determine the shape of early imperialism. The result is a new international law that rejects biblical foundations, extends the sovereignty of commercial states to the seas, shows that Britain is a unique commercial state that can potentially claim dominion over all the seas, and denies that free trade, free passage, and free fishing are rightful because none of this world is held in com­mon and none of its resources are inexhaustible.

Naturally, the Dutch tried to respond. When they asked Grotius to counter Selden, he refused to defend the Dutch case, partly because he was already working for Sweden, and the Swedes liked the templates of territorial domin­ion and exceptionalism. Petrus Cunaeus, one of Grotius' old friends, also turned down the Dutch commission to draft a reply?^[854] Finally Dirk Graswinck- el, a talented lawyer related to Grotius, wrote a rejoinder to Selden, but now in a context in which it was the Dutch who sought to consider denying free trade to their rivals and claim territorial dominion along Selden's lines. The Dutch paid Graswinckel but suppressed the book: the same political outcome that we saw with Grotius' ιpc, initially Mare liberum, and with the first version of Selden's Mare clausuml^{[855] [856]}

Mare clausum remained popular under the Protectorate, as well as after the Restoration of the monarchy. When Marchamont Nedham translated it into English in 1652, he replaced Selden's 1635 dedication to Charles with a dedica­tion to Parliament. The monarchist dedication was promptly restored in James Howell's 1663 English translation. It turned out that Mare clausum’s justifica­tion of British maritime dominion suited every regime just fine. Even Pufend- orf, who took the first chair in international law to expound Grotius, agreed with Selden that resources are always limited and the oceans can be owned.77 Moreover, the British empire became more powerful than the Dutch. In other words, Selden's commercial law that coupled liberal capitalism with strategic trade protection, sovereign dominion over the seas, and British exceptional­ism, became the dominant discourse not only because it was intellectually more attractive, but also because Selden's template appealed to states more than free trade alone, and because the British empire helped in fact to spread it. In this sense, the lawyers, textbook-writers and scholars who think that the secular free trade doctrine makes Grotius the father of modern international law are mistaken. In another sense, the key to understanding the evolution of the modern international law of commerce is not the disagreement but the dialogue between Grotius and Selden. Even when incorporated into the impe­rial combination, Grotius' free trade argument never goes away, and often serves as a criticism not only of closed seas, but also of strategic restrictions that empires placed on the trade of others, including the early United States.

This is not to deny Grotius' impact on British justifications of empire, since my claim rests on the historical perceptions of the usefulness of Grotius' rheto­ric, and on the importance of the Grotius-Selden conversation, rather than op­position, for the history of liberalism. Borrowings from Grotius in British inter­national law arguments against Spanish dominion in the Americas are so clear and numerous that the fact that I found no specific treatment in the secondary literature must be due to my insufficient reading. Milton adapted Mare liberum’s anti-Iberian arguments to Cromwell's colonial claims in his 1655 Scriptum Domini Protectoris Reipublicae Angliae, Scotiae, Hibernia..¹⁸ Grotius' anti-Iberian arguments adapted by Milton and Cromwell were also used in the American colonies as explicitly international law justifications for stopping Spanish expansion.^{[857] [858] [859] More importantly, Grotius' free trade reasoning was bor­rowed as liberally by the English as the Dutch claimed mare clausum.}

At one point Grotius himself proposed that his mare liberum argument should be incorporated into the British version of international law to help create a joint Dutch-British imperial ideology, and refute Iberian claims to dominion over the seas.^[860] Conversely, as mentioned, Selden already pointed out in Mare clausum that Grotius' free trade arguments were used by British ambassadors against the Dutch. Edward Misselden's 1622 Free Trade, or the Means to Make Trade Flourish and his 1623 The Circle of Commerce contain lengthy paraphras­es, as does Thomas Mun. According to Arthur Weststeijn, the 1638 pamphlet, �Deductie, waer by onpartijdelijck over-wogen ende bewesen wort' (Knuttel 4581), invokes Mare liberum, without naming it, to criticise the West India Company for using its monopoly to exclude Dutch traders.8^[861] Similarly, in the fascinating landmark 1683-85 Sandys case, Thomas Sandys' side presented mare liberum arguments to show that surely no one could imagine that the East India Company could be a just monopoly, even though earlier some of his attorneys have taken the East India Company's side in other cases ^[862] Mare liberum and mare clausum defined the framework in which individuals, cor­porations and monopolies claimed rights to pursue their interests. Parties drew on either set of arguments as they saw fit, revealing that Grotius' and Selden's contribution to modern international law, including the economic reach of secularised sovereignty, and legal standards and forms whereby the justice of expansionary wars and the public utility of private interests were as­sessed, were redefining the norm.

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