James Muldoon
The conventional histories of international law still point to Hugo Grotius (1583–1645) as the founder of international law, and his vast De Iure Belli ac Pacis (1625) remains the cornerstone of all subsequent writing on the subject.1 Like important works in other fields, however, the De Iure Belli ac Pacis so dominates the history of international law that it has caused lawyers and scholars to neglect both the extensive tradition of legal thinking upon which Grotius built and the writings of those whose views differed from his. At one time, it was possible to reject the intellectual opponents of Grotius as narrow-minded, medieval reactionaries or thinkers whose conception of international law lacked the scope of Grotius’s work. Grotius himself contributed to these negative views of other thinkers in the international law tradition in the introduction to his major work when he denigrated the work of his predecessors, declaring that most of his predecessors “have done their work without system, and in such a way as to intermingle and utterly confuse what belongs to the law of nature, to divine law, to the law of nations, to civil law, and to the body of law which is found in the canons.” Furthermore, he argued, “What all these writers especially lacked” was “the illumination of history” to provide illustrative examples that would demonstrate the experience of other societies.2
Grotius’s judgment about his predecessors notwithstanding, his achievement would have been inconceivable without the work of those predecessors, as any careful reading of De Iure Belli ac Pacis will demonstrate. For at least 400 years before the appearance of Grotius’s work, lawyers, philosophers, and theologians had been wrestling with the issues and with the texts with which Grotius was concerned. With the voyages of Columbus, interest in Christian relations with non-Christian peoples moved from a largely speculative issue to a very practical one. What Lewis Hanke labeled “the Spanish struggle for justice in the conquest of America” generated an enormous literature about elements of international law and relations, material that Grotius knew well.3
One aspect of Grotius’s thought that has undergone re-evaluation in recent years is the discussion of the right of all men to travel across the sea in peace that he developed in his first published work on international law, the Mare Liberum (1609). Until about 50 years ago, there was little challenge to the Grotian notion that the sea was free and open to all mankind. The contrary position, that the sea or parts of it could be closed by states or other authorities claiming jurisdiction over the sea or some part of it, was seen as having been defeated by the Grotian argument. Grotius’s victory over the supporters of the defenders of the mare clausum was seen as an important element of modernity, one of the blows that struck off the chains of the medieval past. A generation ago, standard textbooks in the history of international law barely mentioned those writers who differed with Grotius on this issue.4 For example, one writer stated that the position of Grotius’s best-known opponent in this debate, the Englishman John Selden (1584–1654), “became the acknowledged basis of official English doctrine for more than a century. Gradually, however, Grotius’ thesis prevailed with governments and courts.”5 Presumably, therefore, there was no need to discuss Selden’s views at any length.
Recent experience, however, demonstrates that debate about ownership of or jurisdiction over the sea and the right of a state to limit or even forbid access to parts of the sea that it claimed to possess is not simply an historical issue that lawyers permanently solved in the seventeenth century. For the past several decades the nations of the world have been wrestling with two major issues involving owning the sea or extending jurisdiction over it.6 The first concerns control of the ocean fisheries. The second involves the seabed, specifically the ownership of ore-bearing nodules that litter the seabed. One of the factors that has made these issues so complex is the increasing number of states, especially the numerous states created by post-World War II decolonization, that have come to claim a voice in issues involving the sea. These states, often small, poorly organized, and without coastlines nevertheless possess juridical equality with the traditional nation-states of Europe and play an important role in the United Nations, especially in the General Assembly, where their combined voting power enables them to demand policies opposed by the older sovereign states of Europe, the traditionally recognized members of the international legal order.7 One scholar recently described these new states as “quasi-states” because they “lack the institutional features of sovereign states as … defined by classical international law.”8 Nevertheless, their juridical standing and their voting membership in the UN provide them with a platform for asserting a voice in the development of oceanic policy and also for claiming a share in the presumed wealth of the sea.
The first aspect of the Grotian theory of the freedom of the seas to undergo revision in the twentieth century concerned the distance into the sea over which states that border it could claim jurisdiction. Since the early eighteenth century, states had claimed jurisdiction over a zone extending three miles into the adjoining sea, a distance determined by the Dutch international lawyer Cornelius van Bynkershoeck (1673–1743) who noted that three miles was the distance that cannon could fire.9 This standard generally applied until 1952 when “Chile, Peru, and Ecuador proclaimed ‘sole sovereignty and jurisdiction’ over an area of the sea extending not less than 200 nautical miles from their coasts—which seemed to indicate that what they claimed was equivalent to a 200-mile territorial sea.”10 A major reason for this change was to restrict foreign access to the tuna fishing grounds, a move that angered the American fishermen who were active in that fishery. Subsequently, however, beginning in 1975 “several developed states … established their own 200-mile fisheries … the United States being among the first to do so.”11 By moving to the 200-mile limit, the United States was responding to pressure exerted by fishermen in New England who were angered at the presence of large Russian and Polish factory fishing ships on the Grand Banks and the other grounds traditionally fished by New Englanders.12
The second issue that emerged in recent years to challenge the Grotian position on possession of the sea concerned the existence on the floor of the sea of “polymetallic nodules” that contained valuable ores that could be extracted.13 In 1965, a geologist named John Mero published a book on these nodules that attracted a great deal of attention, because he asserted that great wealth lay on the ocean floor, wealth now accessible because of advances in mining technology.14 This article attracted the attention of the ambassador of Malta to the United Nations, Arvid Pardo, who gave a speech at the UN in 1967 “calling for the recognition of the area and the limits of national jurisdiction [over the sea] and its resources as the common heritage of mankind.”15
Ambassador Pardo proposed a resolution on the future control of the sea that would replace traditional notions about freedom of the sea with what he saw as a new one that reflected current economic interests and moral values. He proposed that the sea and its bed “be used and exploited for peaceful purposes and for the exclusive benefit of mankind as a whole.” Furthermore, Pardo wanted an immediate halt to all further efforts to claim “sovereignty over the sea-bed and ocean floor” until “a clear definition of the continental shelf is formulated.”16
In effect, the ambassador was suggesting formal recognition of the corporate nature of human society so that the sea’s resources could be employed for the common good of mankind. This would benefit land-locked nations that, under traditional international law, would have no claim to the wealth of the sea. To achieve such a goal, would require reconsidering the meaning of state sovereignty and necessitate conceiving mankind as some kind of corporate whole under the jurisdiction of a supra-national authority. Ambassador Pardo was suggesting a morally-based redistributionist world order in which the sovereignty of nation-states would be subordinated to the interests of all mankind under the direction of a universally recognized authority.17
Ambassador Pardo’s proposal would overturn or at least undercut three centuries of legal thought and practice that followed the publication of Hugo Grotius’s first published work on international law, the anonymously published Mare Liberum (1609), because, if put into practice, it would put into place a universal regulatory regime over the sea of the sort that Grotius’s work rejected. Grotius favored a self-regulating regime in which the contending interests of the states involved, that is the European Christian states that were engaged in overseas expansion, would create an orderly international order. One critic labeled Grotius’s conception of world order as “Hobbesian,” emphasizing that such a self-regulating society would most likely be a highly competitive one, but, rather like the unregulated economy that Adam Smith envisioned, the competition among the states would serve to stabilize the international order.18
Explicitly, the Mare Liberum was a point-by-point rejection of the claims to universal jurisdiction that underlay Pope Alexander VI’s (1492–1503) Inter caetera and more than a hundred other bulls that various popes had issued since the early fifteenth century dealing with Portuguese and Castilian claims to islands in the Atlantic.19 These bulls had several functions. In the first place, they recorded the settlement of disputes between the rulers of the two kingdoms over the newly discovered lands. In this sense, the popes were acting as mediators in the conflicts that characterized the relations between the two kingdoms during the fifteenth century. The papal court served as a kind of international court that sought to settle conflicts between European monarchs by negotiation rather than by war.20 In the second place, these bulls outlined the papacy’s responsibility for the preaching of Christianity in these new lands and the role of secular rulers in achieving that goal. By the terms of Inter caetera, the pope restricted access to the New World to the Spanish and the Portuguese in order to insure that the respective monarchs devoted some of the profits from trade with the new lands to the work of converting the inhabitants to Christianity.21
In a brief, emphatic, manner, Inter caetera stated papal claims to universal jurisdiction, including jurisdiction over the sea, that had a long history, reaching back to at least the thirteenth century.22 These claims were embodied in the canon law of the medieval Church, one of the legal traditions that Grotius was to disparage later in the De Iure Belli ac Pacis. The twentieth-century critique of the Grotian assertion of the freedom of the seas has, however, re-stated medieval legal arguments about possessing and regulating the seas. The observer who pointed out that Pardo was proposing “a radical reconsideration of the existing public order of the oceans” may not have appreciated exactly how radical Pardo’s proposal was.23 His proposal for placing the sea and its bed under a UN regulatory regime suggests a secularized version of medieval papal and canonistic thought about the nature of the human community and the possibility of a just world order under papal leadership.24 Grotius’s rejection of the papal claim to universal jurisdiction would no doubt therefore apply to Ambassador Pardo’s claims for the universal jurisdiction of the United Nations as well.
Furthermore, although the Mare Liberum was primarily a critique of papal claims to universal jurisdiction, it also contained a critique of narrower claims to jurisdiction over the sea, specifically the claim of James I of England (1603–1625; James VI of Scotland, 1566–1625) to possess the seas around Britain and Ireland and to have the right to limit access to them. This claim had the practical effect of limiting access to the fishing grounds around the British Isles to those licensed by the English king and also limiting the number of days that the fishery was open. The immediate object of these claims was the Dutch who for some centuries had fished in these waters without arousing criticism. By the late sixteenth century, however, English and Scottish fishermen were beginning to complain that the Dutch were driving them out of these fishing grounds and destroying their livelihood.25 Given the increasing tension between the Dutch and the English over fishing rights, it is not surprising that James I saw the publication of the Mare Liberum as “a definite declaration of Dutch policy, aimed particularly at England, and acted accordingly.”26 Responding to Grotius’s book, on May 6, 1609, James I issued a proclamation requiring that anyone who was not one of his “natural born subjects” must obtain a license if he wished to fish in the seas over which the kings of England claimed jurisdiction.27
James I’s policy of controlling the fishing grounds raised in turn the issue of the extent of English jurisdiction over the sea. Exactly how far did the king’s jurisdiction extend and on what legal basis did this claim rest? According to one student of the issue: “It had always been understood that for a certain distance from the shore the fishing was reserved for native fishermen, [but] the exact distance had varied considerably with varying conditions.”28
Tension between the English and the Dutch about the fishery continued throughout the reigns of James I and of his son Charles I (1625–1649). One consequence of this was the publication of John Selden’s Mare Clausum in 1635 as a response to Grotius’s Mare Liberum. Selden’s work dealt not with the papal claims to universal jurisdiction and authority to control access to the sea, the major theme of Grotius’s work, but with his assertion that no one had the right to close any sea. In response to Grotius, Selden asserted that the sea could be possessed just as the land could be, and that kings and other secular rulers had the right to control the adjacent seas and to limit entry to them. Selden based this assertion on Roman law and on the historical practice of European governments. In effect, Selden recognized the claim of any ruler to exercise jurisdiction over the seas adjacent to his state. There was no need for the pope to mediate an agreement between states with competing claims to the sea, the situation that generated Inter caetera. Rather like Grotius, Selden argued that the states themselves could work out conflicts among themselves without any outside interference.
Selden’s work made two major inter-related assertions: “the one, That the Sea, by the Law of Nature or Nations, is not common to allmen, but capable of private Dominion or proprietie as well as the Land; the other, That the King of Great Britain is Lord of the Sea flowing about, as an inseparable and perpetual Appendant of the British Empire ….”29 He pointed out that the sea can be mapped and divided by lines of latitude and longitude, just as the land can be mapped, so that the sea could be possessed just as the land can be. Selden’s position was an extension of the Roman Law discussion of the origin of private property. That is, Roman lawyers had distinguished between the natural law, by the terms of which there was no private property, all the goods of the earth being the communal possession of mankind, and the law of nations, that is the actual practice of men, which recognized the existence of private property.30 Selden extended the same premise to the sea, namely that while according to the natural law the sea was common to all men, nevertheless history demonstrated that man did lay claim to possess the sea and to control the exploitation of the resources found there.
As an example of the way in which the mapping of the sea and the use of a grid of latitude and longitude could be employed to assign possession of the sea, he pointed to the regions “in the Colonies at this day carried into America, as in that prodigious gift of Pope Alexander VI in the former Age, which is bounded by an imaginarie Line from the Artic to the Antartic Pole, are closed by Lines of Longitude and Latitude drawn through the degrees of heaven, so that they may be possessed in a private manner.”31 At the same time, Selden concluded that the division of the world contained in Inter caetera took its authority “not from any command imposed upon several Nations in common, but through the intervention either of som Compact, or Custom ….”32 Thus Inter caetera would apply to Spain and Portugal because the rulers of those kingdoms had agreed to allow the pope to settle their dispute about access to particular parts of the sea. It would not, however, bind any other state. According to Selden, even if the pope did not have the power to assign the sea or parts of it to particular rulers, the fact that the rulers of Spain and Portugal relied on Inter caetera demonstrates that they understood the sea as being capable of being possessed.33
Selden argued that there were a number of historical precedents to demonstrate that states can possess the sea. The oldest example of such possession in his own world was Venice which was, as he noted, “commonly styled the Mistress of the Sea, and the Queen of the Adriatick Sea ….”34 One practical consequence of this claim to possession was that “it is not lawful for any other to use or enjoy the same without their permission” and he cited examples of rulers, such as the king of Naples, who requested permission to sail in that part of the Adriatic that the Venetians claimed as their own.35 Venice was not the only Italian state that possessed part of the sea. Selden pointed out that the Genoese, the Pisans, and even the pope in his capacity as the ruler of an Italian state all possessed the sea along their coasts and controlled access to those seas.36 Furthermore, such claims were not restricted to Italian states. The ancient Athenians had closed part of the adjacent sea to the Persians and the contemporary King of Poland laid claim to the waters that washed his shores.37
The crucial issue in Selden’s discussion of possession of the sea was not whether in theory that it was possible to possess the sea but whether or not a particular claim to such possession was legitimate. He raised this issue in connection with Spanish and Portuguese claims to specific parts of the sea. The laws of Spain and of Portugal and the best legal minds of those kingdoms clearly stated that the sea could be possessed. Furthermore, the titles of the king of Portugal include the phrase “by the grace of God king etc. Lord of Guinee, and by Conquest of the Navigation and Commerce of Ethiopia, Arabia, Persia etc. ….”38 To rule such “Navigation and Commerce” is to possess the sea.
On the other hand, according to Selden, the Spanish monarchs did not possess the sea, although their list of titles would seem to indicate that they did. He argued, however, that “the verie title of the King of Spain hath that in it which may seem to import, that hee call’s himself King of the Ocean,” but in fact he is not King of the ocean but “of the Islands and of the Terra firma of the Ocean; namely, the Islands or Continents of, or lying in the Ocean … [but] not of the Ocean it self.”39 This did not disprove the conclusion that the sea could be owned, it only proved that the Spanish could not claim to possess it.
Selden’s major interest, however, was not the debate about access to the Ocean Sea and about the right of all mankind to travel freely there, the main focus of Grotius’s work. For Selden, the great issue was the extent of the king of England’s jurisdiction over the seas around Britain and Ireland. For the most part, his discussion of the history of claims to possess the sea dealt with possession of seas that were small and clearly bounded, seas such as the Adriatic and the Baltic. Even the Mediterranean, a larger sea than these, was divided into regions possessed by neighboring states. The claims to possess these seas were closely related to the claims that James I, King of England, Scotland, and Ireland, made for possession of the seas around the British Isles, a region that Selden termed the British Empire: “the King of Great Britain is Lord of the Sea flowing about, as an inseparable and perpetual Appendant of the British Empire ….”40
Having devoted the first part of the Mare Clausum to the broad question of access to the sea, Selden turned to the narrower question of the extent of the English king’s jurisdiction over the adjoining seas. As in the first part of the Mare Clausum, Selden based his argument on the historical record. Here he provided examples of what he saw as the jurisdiction of the rulers of Britain over the adjoining seas commencing with the Roman conquest of England at the beginning of the Christian era. As he saw matters, all of the various rulers of Britain had claimed to possess the adjacent sea, claims that neighboring rulers accepted.
Furthermore, Selden pointed out that even those who argued for a mare liberum, those such as Grotius, admitted that rulers of lands along the coast possessed jurisdiction over the neighboring sea. Where the lawyers differed was not about possession or jurisdiction but about the extent of that jurisdiction. Some lawyers recognized a 60-mile limit to such jurisdiction while other recognized a 100-mile limit.41
Selden provided an interesting rationale for possession of the sea, one that took direct aim at one of Grotius’s arguments about why the seas did not require a regulatory regime. Grotius argued that the resources of the sea were inexhaustible and, therefore, there was no need to protect the fisheries from excessive exploitation, one of the bases upon which James I had justified regulating access to the fishing grounds.42 For Selden, possession and regulation of the sea was vital in order to protect natural resources such as pearls and coral as well as fish from over-exploitation. In a line of argument similar to the arguments of modern environmentalists, he asserted that such resources “may through a promiscuous and common use of the Sea, bee diminished in any Sea whatsoever. Where then is that inexhaustible abundance of Commodities in the sea, which cannot be impaired?”43
Selden thus rejected both papal claims to universal jurisdiction over the sea based on spiritual grounds, claims that included the right to declare a sea the possession of a particular state, a mare clausum, and Grotius’s concept of the mare liberum. Instead, he accepted the notion of the mare clausum but limited its application to specific areas of the sea that individual states could effectively control.44 Seen in that light, his Mare Clausum represents an attempt to employ medieval notions about jurisdiction over the sea in a way that could be acceptable in a world where the universal authority of the papacy was no longer widely accepted even by Catholic rulers. The Catholic king of France, Francis I (1515–1547), was even quoted as saying that “he would like very much to see Adam’s will to learn how he divided up the world!”45
The debate about the freedom of the seas at the level of high theory was only one element of the development of international law in England in the years following 1492. English monarchs also issued letters patent and charters in connection with efforts to acquire possession of lands in the New World. These documents reflect a desire to legitimize the work of exploring and colonizing the New World in legal terms. In order to do this, those who drafted the relevant documents drew on the experience of the Spanish and Portuguese rulers who had been licensing explorers for over a century. These documents were rooted in the medieval legal tradition, especially the canon law, which provided the legal theory to justify European occupation of the Atlantic islands and the west coast of Africa. That is, the letters patent and charters that licensed English seamen and colonizers to explore and settle in the New World often employed the language of the Spanish and Portuguese documents and of papal documents such as Inter caetera. The latter applied the language employed to describe papal jurisdiction to the king of England. For example, where Selden used a limited version of the medieval concept of mare clausum to articulate the contemporary claims of the King of England in the seas around England and Ireland, English monarchs and the draftsmen of their official documents were employing medieval language, especially the language of papal bulls such as Inter caetera, to articulate their claims to possession of lands in the New World.
The first use of the language of the canonists and popes as well as the language of Spanish and Portuguese documents to assert English claims to the New World was the letter patent that Henry VII (1485–1507) issued to John Cabot and his sons in 1498. A side-by-side comparison of the language of the two documents demonstrates the reliance of the draftsmen of Cabot’s charter on this earlier work (see Table 7.1).46
Table 7.1 Comparison of Cabot’s charter and the Inter caetera
Like Columbus’s initial agreement with Ferdinand and Isabella, Cabot’s commission was geographically vague, although it would appear that he was obliged to avoid the southern regions that Columbus had already visited. Otherwise, the letter simply ignored the papal restriction of access to the newly discovered lands to the Spanish and the Portuguese. The three bulls that Alexander VI issued in response to Columbus’s return from his first voyage to the New World were designed to prevent further conflict between Spain and Portugal over routes to Asia by drawing a line from pole to pole down through the Atlantic Ocean, a line revised subsequently in the Treaty of Tortesillas.49 According to the terms of Alexander VI’s bull, the English would have had to request permission from the Spanish to sail west to the Americas or from the Portuguese if they were to sail east. Interestingly, the text of the charter authorized Cabot to sail east, west, and north. South is not mentioned, suggesting that Cabot did not wish to challenge the Spanish and the Portuguese domination of those regions and sailing routes that Columbus and Vasco da Gama had discovered. Instead, Cabot seems to have been suggesting the possibility of a northwest passage to Asia, something for which his son Sebastian may have sought.50
By omitting the southern regions from the list of zones that Cabot could explore, he and Henry VII appear to have tacitly recognized the Spanish and Portuguese possession of these regions, an early example of the application of the rule of effective possession. The English would not challenge the Spanish or the Portuguese for possession of lands that the Iberian kingdoms had already colonized. In return, the English assumed that other Christian rulers would accept English possession of the lands that Cabot colonized.
In the second place, there is no mention of any ecclesiastical mission in the Cabot patent. Cabot was authorized to occupy the lands inhabited by “the heathen and infidels,” but there was no mention of missionary efforts to convert such people. Unlike the Spanish and Portuguese rulers, the English king at this point did not assert any responsibility for the preaching of the Gospel to the non-believers. The only reason offered in this charter to explain why the English king had issued the charter is economic. That is, the Cabots and the king expect to profit from trade with the newly discovered lands. Inter caetera also discussed the economic benefits that would be gained from the discovery of new lands, but the economic benefits of such contact were to reward the Spanish monarchs for the “hardships, expenses, dangers, with the shedding even of your blood” that they had borne in the course of defending and spreading the Christian faith.51
Finally, Henry VII granted Cabot and his heirs possession of the lands they might discover and the right to limit access to those regions. At this point there is a significant change in the language. Where Inter caetera had banned “all persons of no matter what rank” from entering the areas allotted to the Spanish and the Portuguese without permission, a reflection of the pope’s universal jurisdiction over Christians, Henry VII’s jurisdiction extended only over his own subjects, so that the Cabots could restrict access only to the king’s subjects and not others. This slight change in the wording of the commission hints at what was to become a commonplace of subsequent letters patents and colonial charters, namely the assumption by the king of powers that popes had claimed but without claiming papal universal jurisdiction.52
English interest in exploring and colonizing faded during the sixteenth century. It was not until almost 100 years after Cabot’s voyages that an English monarch again issued documents authorizing exploration and colonization. In 1578, Queen Elizabeth (1558–1603) authorized Sir Humphrey Gilbert “to discover, finde, search out, and view such remote heathen and barbarous lands, countreys and territories not actually possessed of any Christian prince or people, as to him … shall seeme good ….” This commission did not specify the region or regions that Gilbert would explore and colonize. What it did do, however, was to recognize Gilbert’s possession of a “space of two hundreth leagues nerre to the place or places within such countreys as aforesaid” unless previously claimed by another Christian ruler. No person could enter this zone “without the special licence and liking of the sayd Sir Humphrey ….”53
The patent that Gilbert obtained also emphasized that religion was to play a part in any colony that he established. The colonists were expected “to live together in Christian peace and civil quietnesse each with the other” and the Anglican form of the Christian religion was to be the religion of the settlement. The charter itself made no mention of any responsibility to convert any native peoples to Christianity. A member of the expedition, however, Edward Hayes, who wrote about the voyage did suggest that if the voyage had been successful it would not only have been economically profitable, it would also have led to planting “the seed of Christian religion … amongst those pagans ….”54 Gilbert’s patent, like Cabot’s, did not recognize Inter caetera, although it employed the language of that bull. He was authorized to acquire and colonize any lands not presently in the possession of a Christian ruler. There was, however, an interesting shift in the meaning of this phrase. Where Inter caetera spoke of exempting lands presently held by Christians from occupation by Iberian explorers, the pope was thinking of the Christian kingdoms believed to exist in Asia, beyond the reach of the Muslims who encircled Christendom. The English charters used this traditional language, however, to refer to lands in the New World claimed by European rulers after 1492.
In 1584, Queen Elizabeth issued a letter patent to Sir Walter Raleigh that continued the practice of using language from Inter caetera. Like Gilbert, he could explore and colonize any lands that Christians did not already occupy, and he was expected to maintain the Church of England as the state religion of any new settlement. Furthermore, no one could settle in the lands that Raleigh claimed without his permission. Much of the same language also appeared in the charters of Virginia and Massachusetts. The first (1606) and the third (1611/1612) charters of Virginia exempted any lands occupied by Christians from occupation by the colonists.55
The charters for the seventeenth-century colonies also contained injunctions about converting and civilizing the inhabitants of the New World that echo the language of Inter caetera. The second charter of Virginia (1609), for example, stated the responsibility of the colonists quite explicitly: “The principal Effect, which we can desire or expect of this Action, is the Conversion and Reduction of the People in those parts unto the true Worship of God and Christian religion ….”56 The patent that King James I issued to the Council of New England in 1620 required the settlers to see to “the reducing and Conversion of such Savages as remaine … to Civil Societie and Christian Religion ….”57 The first charter of the Massachusetts Bay colony put matters even more bluntly, stating that the conversion of the Indians to the Christian faith “is the principall ende of this plantation ….”58
Gradually, however, the language of Inter caetera and the rudimentary concepts of international relations that the medieval papacy and the canon lawyers had developed disappeared from the vocabulary of international law and relations. Grotius’s notion of the mare liberum came to dominate international legal thinking, and the language requiring Europeans to work for the conversion of native peoples to Christianity disappeared from charters of colonization.
This brief sketch of some materials dealing with the question of access to the sea and with the early stages of English overseas expansion suggests some of the elements that went into early modern thinking about creating a legal framework for European expansion, work that underlay Grotius’s later work. Furthermore, these materials are a reminder that the issue of access to the seas in and around Europe itself was linked to the question of whether or not a European government could actually prevent other Europeans from entering a sea or some part of it. Grotius’s Mare Liberum, after all, while ostensibly aimed at the papal claim to regulate the sea, was also directed at European governments that claimed to possess the seas immediately around them, as James I and his advisors well knew.
A paradox runs through the sixteenth- and seventeenth-century discussion of access to the sea. While the English claimed the right to close the fishing grounds around the British Isles to the Dutch, they denied the pope’s claim to exercise the same power on behalf of the Spanish and Portuguese overseas. In their own eyes at least, James I and Alexander VI possessed the power to establish a mare clausum. Selden’s goal in the Mare Clausum was to deny the latter’s claim while defending the former’s. His technique was to narrow the scope of the oceanic zone that could be closed and then to justify such closing on historical grounds, on economic grounds or, as in the case of the Portuguese claim to possess the Atlantic off of Africa, on the basis of conquest instead of spiritual grounds. Selden wished to retain the medieval principle of the mare clausum but to reduce its scope and to use what we would see as secular arguments.
The letters patent and the charters of colonization that English monarchs issued in connection with overseas expansion reflect another aspect of the efforts to place expansion within a recognizable legal context, the need to employ traditional medieval legal language to articulate the early modern experience of expansion. The legal lingua franca, so to speak, of expansion had been developed in the fifteenth century. In the course of that century, various popes had issued over a hundred bulls that dealt with Portuguese and Spanish expansion into West Africa and on to the islands of the Atlantic. In addition, the kings of Portugal and Castile had made agreements with various explorers that outlined where they would go and what they were expected to do when they got there. Thus, there existed a body of texts and a standard vocabulary available to any ruler who wished to participate in the overseas expansion effort. The draftsmen of the English royal court who composed the letters and charters that legally undergirded English expansion were well aware of the language that their opposite numbers in the papal, Castilian, and Portuguese courts were employing to authorize voyages of discovery and colonization. This was the standard legal language for such activities at the beginning of overseas expansion, as its use by the clerks of the Tudor courts demonstrates.
The late-medieval legal concepts and language that characterized the initial stages of European expansion into the New World were not destined to remain in the vocabulary of international law, however. Over the course of time, at least 150 years, the medieval legal heritage gradually dropped out of the vocabulary of early modern international law. It did not, however, simply disappear with the publication of the De Iure Belli ac Pacis. As the entire context within which this period of expansion took place changed, above all, as the Protestant Reformers transformed the European religious environment and, eventually, the philosophies of the Enlightenment encouraged the secularization of European thought, there emerged modern international law, a system rooted in Grotius’s work but only fully developed by a series of later thinkers.
By the end of the twentieth century, however, the Grotian vision of the sea as free and open to all who would sail there and who would exploit its resources faced a renewed challenge. Some governments claimed control of a 200-mile coastal zone in order to regulate the fisheries, a claim that John Selden would have appreciated. Others, like Ambassador Pardo, have argued for the creation of a world-wide regime for regulating the sea and its resources in the common interest of all mankind under the direction of the United Nations, a concept that echoes the medieval papal conception of a world order. The debate between Grotius and Selden may not have ended after all.
1 James Muldoon, “The Contribution of the Medieval Canon Lawyers to the Formation of International Law,” Traditio, 28 (1972): pp. 487–488.
2 Hugo Grotius, The Law of War and Peace (De Jure Belli ac Pacis Libri Tres), trans. Francis W. Kelsey (Washington, DC, 1925; rpt, Indianapolis, IN, 1962), p. 22.
3 Lewis Hanke, The Spanish Struggle for Justice in the Conquest of America (Philadelphia, PA, 1949). Richard Tuck has pointed out that Max Weber identified European overseas expansion as one of the factors that contributed to the modern idea of freedom: see his The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford, 1999), p. 15.
4 Arthur Nussbaum, A Concise History of the Law of Nations (rev. edn, New York, 1954), p. 111.
5 Nussbaum only mentions Selden in passing as did J.L. Brierly The Law of Nations (6th edn, New York, 1963), p. 305.
6 For a survey of recent developments in efforts to regulate the sea: see Robert L. Friedheim, Negotiating the New Ocean Regime (Columbia, SC, 1993).
7 International law was regarded as the law existing between civilized nations. In 1859 the British law officers spoke of international law “as it has been hitherto recognized and now subsists by the common consent of Christian nations.” James Crawford, The Creation of States in International Law (Oxford, 1979), p. 13.
8 Robert H. Jackson, Quasi-states: Sovereignty, International Relations and the Third World, Cambridge Studies in International Relations, 12 (Cambridge, 1990), p. 21.
9 Cornelius van Bynkershoek, De dominio maris Dissertatio, trans. Ralph Van Deman Magoffin (New York, 1923), pp. 20–21.
10 Markus Schmidt, Common Heritage or Common Burden (Oxford, 1989), p. 27.
11 Ibid., p. 30.
12 Bobbie B. Smetherton and Robert M. Smetherton, Territorial Seas and Inter-American Relations (New York, 1974), pp. 108–112.
13 E.D. Brown, The International Law of the Sea (2 vols, Aldershot, 1994), vol. 1, p. 9.
14 John Mero, The Mineral Resources of the Sea (New York and Amsterdam, 1965); Mero, “Whose Is the Bed of the Sea,” Proceedings of the American Society of International Law, 62 (1968): pp. 216–229.
15 Brown, The International Law, vol. 1, p. 10.
16 Arvid Pardo, “Who Will Control the Seabed?,” Foreign Affairs, 47(1968): pp. 135–136.
17 For a fuller discussion of these issues: see James Muldoon, “Who Owns the Sea,” in Bernhard Klein (ed.), Fictions of the Sea (Aldershot, 2002), pp. 13–27.
18 Hedley Bull, “The Importance of Grotius in the Study of International Relations,” in Hedley Bull, Benedict Kingsbury, and Adam Roberts (eds), Hugo Grotius and International Relations (Oxford, 1990), p. 85. It might also be termed “Darwinian.”
19 Strictly speaking, there were three bulls: see European Treaties Bearing on the History of the United States and Its Dependencies to 1648, ed. Francis Gardiner Davenport (Washington, DC, 1917; rpt, Gloucester, 1967), pp. 56–78.
20 Walter Ullmann, “The Medieval Papal Court as an International Tribunal,” Virginia Journal of International Law, 11 (1971): pp. 356–371.
21 Inter caetera, in Davenport (ed.), European Treaties, pp. 62–63.
22 For a sketch of the history of such papal bulls: see Luis Weckmann, Las Bulas Alejandrinas de 1493 y la Teoriá del Papado Medieval (Mexico, 1949).
23 Brown, The International Law, vol. 1, p. 10.
24 The notion that modern political thought is often rooted in secularized versions of earlier ecclesiastical thought is especially stressed in the work of Brian Tierney: see especially his Religion, Law, and the Growth of Constitutional Thought, 1150–1650 (Cambridge, 1982); and his The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law (Atlanta, GA, 1997), pp. 343–345.
25 John R. Elder, The Royal Fisheries Companies of the Seventeenth Century (Glasgow, 1912), pp. 1–7.
26 Ibid., p. 7.
27 The text is in an appendix to John Selden, Of the Dominion, or, Ownership of the Sea, trans. Marchamont Nedham (London, 1652), pp. 464–467.
28 Elder, The Royal Fisheries, p. 9.
29 Selden, Mare Clausum, Author’s Preface 4[unnumbered].
30 Tierney, Idea of Natural Rights, pp. 35–137.
31 Selden, Preface 11.
32 Ibid., p. 15.
33 Selden, Mare Clausum, p. 139.
34 Ibid., p. 99.
35 Ibid., p. 100. Selden also specifies the boundaries of that part of the Adriatic that the Venetian claimed as their own, p. 103.
36 Ibid., pp. 104–105.
37 Ibid., p. 68, p. 122.
38 Ibid., p. 107.
39 Ibid., p. 110.
40 Ibid., Preface 4[unnumbered].
41 Selden, Mare Clausum, p. 139.
42 By the mid-1950s, Grotius’s belief in the “inexhaustibility of supply [of fish] was rapidly coming to an end.” Friedheim, Negotiating the New, p. 16.
43 Selden, Mare Clausum, pp. 142–143. Grotius must have known of the decline of the Baltic herring fishery and the continuing search for new grounds as a particular part of the sea was depleted of its fish: see James Travis Jenkins, The Herring and the Herring Fisheries (London, 1927), pp. 59–60.
44 Effective possession, not broad claims based on papal grant or a visit by an explorer, came to be the rule for determining whether a European state could legally occupy land in the New World without challenge from any other European state.
45 Samuel Eliot Morison, The European Discovery of America: The Northern Voyages (New York, 1971), p. 435.
46 Morison pointed out that when Cabot requested “letters-patent” from Henry VII, he “probably obtained a copy of a Portuguese charter, altered it to suit his case, and paid a court scrivener to engross and present it to Henry VII.” Morison noted the similarity of the terms of Cabot’s charter to that of “the cartas de doacão that the Portuguese kings had been granting to navigators who wished to be lords of any new country that they found.” Ibid., pp. 159–160. This would explain what might be termed the business-like terms of the agreement. At the same time, it is important to note that Inter caetera, the other bulls in that tradition, and the charters issued by the Iberian monarchs shared a common vocabulary.
47 Letters Patent to John Cabot, Documents of American History, ed. Henry Steele Commager (5th edn, New York, 1949), p. 5.
48 European Treaties, ed. Davenport, pp. 61–63.
49 On the legal background to Inter caetera: see James Muldoon, “Papal Responsibility for the Infidel: Another Look at Alexander VI’s Inter caetera,” Catholic Historical Review, 64(1978): pp. 168–184.
50 Morison, The European Discovery of America, pp. 220–221.
51 European Treaties, ed. Davenport, p. 61.
52 This is analogous to the development of the concept of sovereignty. One of the earliest formulations of what was to become the modern concept of sovereignty was that a king in his kingdom had the same powers as the emperor in the empire “rex in regno suo, imperator in imperio” as the lawyers phrased it: see Kenneth Pennington, The Prince and the Law (Berkeley, CA, 1993), pp. 34–37.
53 Letter Patent to Sir Humfrey Gylberte, ed., Francis Newton Thorpe, The Federal and State Constitutions … of the … United States (7 vols, Washington, DC, 1909), vol. 1, pp. 49–50.
54 Edward Hayes, “The Voyage of Sir Humphrey Gilbert to Newfoundland, anno 1578,” in Richard Hakluyt, Hakluyt’s Voyages to the New World: A Selection, ed. David Freeman Hawke (Indianapolis, IN, 1972), pp. 47–66 at pp. 48–49: see also James Muldoon, “Discovery, Grant, Charter, Conquest, or Purchase: John Adams on the Legal Basis for English Possession of North America,” in Christopher L. Tomlins and Bruce H. Mann (eds), The Many Legalities of Early America (Chapel Hill, NC, 2001), pp. 38–39.
55 Select Charters and Other Documents Illustrative of American History 1606–1775, ed. William MacDonald (New York, 1899), pp. 1–11, pp. 17–23.
56 Ibid., pp. 11–16 at p. 16: see also Muldoon, “Discovery, Grant,” pp. 40–41.
57 Ibid., p. 25.
58 Ibid., p. 42.