The Free Sea. Hugo Grotius

was commissioned by the English East India Company in 1614.⁷ It is unclear whether Hakluyt was responsible for the translation or was simply the agent by which it reached the company.⁸ It is nonetheless possible that The Free Sea was the result of a commission from the company. The arguments of The Free Sea could just as easily have supported the English company’s claims against the Portuguese as the VOC’s and were, moreover, used during the Anglo-Dutch colonial conferences of 1613 and 1615 to combat Dutch pretensions to exclusive access to the East Indies. However, no payments to Hakluyt for a translation are recorded in the Court Books of the East India Company. Until further evidence is discovered, the occasion for his translation and the reason it was not published can only be matters for speculation. All that is certain is that the translation can have been undertaken no earlier than the publication of Mare Liberum in the spring of 1609 and no later than Hakluyt’s death in November 1616.

      It has been said that Hakluyt “stood very high in the two aspects of translation concerning which modern readers are most demanding. The one is mastery of technical vocabulary; the other is unraveling of complicated syntax.”⁹ Neither of these qualities is conspicuous in his translation of The Free Sea. Hakluyt’s occasional mistranslations reveal his ignorance of the technical vocabulary of the law, particularly Roman law; Grotius’s original Latin has been included as necessary in the footnotes to clarify these mistranslations. Hakluyt’s translation is also quite literal in its adherence to Grotius’s Latin syntax; to clarify the meaning of the text, spelling and punctuation have been modernized throughout.

      The Inner Temple manuscript is a fair copy but contains a few minor emendations by Hakluyt himself; these have been silently incorporated into the text. The manuscript does not include Grotius’s marginal annotations; these have been supplied from the 1609 text of Mare Liberum and have been expanded, supplemented, and corrected as necessary.

      Editorial additions to the text are indicated by square brackets.

      William Welwod, “Of the Community and Propriety of the Seas” (1613)

      William Welwod was professor of mathematics and of civil law at the University of St. Andrews in Scotland and produced the first British treatise on the law of the sea, in 1590.¹⁰ His reply to Chapter V of Mare Liberum comprised Chapter XXVII of his next work on maritime law, An Abridgement of All Sea-Lawes (1613).¹¹ Two years later, he expanded his criticisms of Grotius at the behest of Anne of Denmark, the wife of King James VI and I, in his De dominio maris (1615).¹² The text printed here is a modernized version of Chapter XXVII of Welwod’s Abridgement, with Welwod’s marginal references expanded and amended to follow current practices for citing classical, biblical, and Roman law texts.

      Hugo Grotius, “Defense of Chapter V of the Mare Liberum” (ca. 1615), trans. Herbert F. Wright

      The manuscript of Grotius’s reply to Welwod, like that of De Jure Praedae, was discovered in 1864 among the de Groot family papers.¹³ Entitled the “Defensio capitis quinti Maris Liberi oppugnati a Guilielmo Welwodo capite XXVII ejus libri … cui titulum fecit Compendium Legum Maritimarum,” it was first printed in 1872 and was translated into English in 1928.¹⁴ This edition substantially reproduces this translation, except that quotations from The Free Sea and from Welwod’s reply have been taken from the texts printed in this edition.

ACKNOWLEDGMENTS

      I am very grateful to Knud Haakonssen for his invitation to contribute this volume to the series “Natural Law and Enlightenment Classics” and for his advice and encouragement at every stage of the editorial process. This edition would not have been possible without the generosity of the Masters of the Bench of the Inner Temple, by whose kind permission Richard Hakluyt’s translation of Mare Liberum is reproduced. The staff of the Inner Temple Library, in particular Adrian Blunt, facilitated access to the manuscript and provided crucial help with its decipherment.

      I am much indebted to Martine van Ittersum for making the initial transcription of the Inner Temple manuscript and for putting her extensive knowledge of Grotius’s colonial activities at my disposal. I am likewise grateful to Åsa Söderman for scrupulously transcribing Welwod’s reply to Grotius, to Kelly De Luca for her invaluable help in tracing elusive references, and to David Roochnik for kindly checking the Greek quotations. During two memorable seminars at the Folger Shakespeare Library in Washington, D.C., Peter Borschberg and Benedict Kingsbury greatly enlightened me about Grotius’s intellectual development and his theoretical significance.

      As always, Joyce Chaplin has supported an occasionally flagging editor.

      THE FREE SEA

HUGO GROTIUS

       The Free Sea

       orA Disputation Concerning the Right Which the Hollanders Ought to Have to the Indian Merchandise for Trading

      THE CHAPTERS OF THE

      DISPUTATION

      [1.] That by the law of nations any man may sail freely to whomsoever.

      [2.] That the Portugals have no right of dominion over those Indians by title of invention unto whom the Hollanders do sail.

      [3. That the Portugals have no right of dominion over the Indians by title of the Pope’s gift.]

      [4.] That the Portugals have no right of dominion over the Indians by title of war.

      [5.] That the sea to the Indians or the right of sailing thither is not proper to the Portugals by title of possession.

      [6.] That the sea or right of sailing belongeth not properly to the Portugals by the Pope’s donation.

      [7.] That the sea or right of sailing is not proper to the Portugals by title of prescription or custom.

      [8.] That by the law of nations traffic is free with all.

      [9. That merchandise or trading with the Indians is not proper to the Portugals by title of possession.]

      [10.] That traffic with the Indians is not proper to the Portugals by title of the Pope’s gift.

      [11.] That traffic with the Indians is not proper to the Portugals by right of prescription or custom.

      [12.] That the Portugals incline not to equity in forbidding trade.

      [13.] That the right of the Indian trade is to be retained of the Hollanders both by peace, truce and war.

      To the Princes and Free States

      of the Christian World

      It is no less ancient than a pestilent error wherewith many men (but they chiefly who abound in power and riches) persuade themselves, or (as I think more truly) go about to persuade, that right and wrong are distinguished not according to their own nature but by a certain vain opinion and custom of men. These men therefore think that both laws and show of equity were invented for this purpose: that their dissensions and tumults might be restrained who are born in the condition of obeying; but unto such as are placed in the height of fortune they say that all right is to be measured by the will and the will by profits. And it is not so great a wonder that this absurd opinion, and altogether contrary to nature, hath procured unto itself some little authority, seeing to that common disease of mankind (whereby, as vice, so we