Chapter XII of the Law of Prize rides the waves, whereas its rival,
heavy and water-logged, has gone under.
In the leading case of The Louis (2 Dodson 210), decided in 1817, some two hundred years after Selden’s book was written, Sir William Scott, later Lord Stowell and one of Selden’s most distinguished countrymen, said, in rejecting the claim of his country to the exercise of jurisdiction beyond a marine league from the British shore:
I have to observe, that two principles of public law are generally recognized as fundamental.
One is the perfect equality and entire independence of all distinct states. Relative magnitude creates no distinction of right; relative imbecility, whether permanent or casual, gives no additional right to the more powerful neighbor; and any advantage seized upon that ground is mere usurpation. This is the great foundation of public law, which it mainly concerns the peace of mankind, both in their politic and private capacities, to preserve inviolate.
The second is, that all nations being equal, all have an equal right to the uninterrupted use of the unappropriated parts of the ocean for their navigation. In places where no local authority exists, where the subjects of all states meet upon a footing of entire equality and independence, no one state, or any of its subjects, has a right to assume or exercise authority over the subjects of another.
In closing the preface to the _Mare Clausum_, Selden used language, which the undersigned quotes, albeit in an inverse sense, as a fit ending to this subject:
“Other passages there are everywhere of the same kind. But I enlarge myself too much in a thing so manifest. Therefore I forbear to light a candle to the sun. Farewell reader.”
JAMES BROWN SCOTT, _Director of the Division of_ _International Law_.
WASHINGTON, D. C., _February 28, 1916_.
TRANSLATOR’S PREFACE
_The Latin Text_
The Latin Text is based upon the Elzevir edition of 1633, the modifications being only such as to bring the Latin into conformity with the present day Teubner and Oxford texts.
References in the notes to classic authors are given in unabbreviated form, following in other respects the Thesaurus Linguae Latinae Index. Citations to the Civil Law are given in the modern notation, which is followed, in parentheses, by the older method of reference. The text used is that of Mommsen, Krueger, Schoell et Kroll. The Canon Law is cited from the Friedberg edition of 1879-81. The abbreviations used are explained below.
_The Translation_
The translator wishes to make due acknowledgment for the passages from classic writers quoted from standard translations, to which references are also made in the notes. He has also consulted the French translation of Grotius by A. Guichon de Grandpont (1845). But his chief acknowledgment is to his colleague and friend, Professor Kirby Flower Smith of The Johns Hopkins University, to whom he read the translation, and who gave him the benefit of his knowledge of Latin and his taste in English, in a number of troublesome passages. Many niceties of the translation belong to Professor Smith, but mistakes in interpretation belong to the translator alone.
Acknowledgment and thanks are also due to Professor Westel Woodbury Willoughby of Johns Hopkins, who has been so good as to read the translation through in galley proof and give the translator the benefit of his technical knowledge of law; to his Johns Hopkins colleague, Professor Wilfred P. Mustard, who has helped him out of a number of difficulties; to Bishop Shahan, Rector of the Catholic University of America, who has given of his time to help expand several of Grotius’ abbreviated references to theological or canonical authors; to John Curlett Martin, Johns Hopkins Fellow in Greek, who has been of great assistance in the verification of references; and to the men of the Quinn and Boden Company for their courteous assistance while the book was going through the press.
_List of Abbreviations_
Auth., Authenticum.
Clem., Constitutiones Clementis Papae Quinti.
Dist., Distinctio Decreti Gratiani.
Extravag., Constitutiones XXD. Ioannis Papae XXII.
Lib. VI, Liber sextus Decretalium D. Bonifacii Papae VIII.
Other abbreviations should offer no difficulties.
_Notes of Explanation_
The words and phrases in the Latin text in capitals follow the type of the Elzevir text.
In order that both text and translation may be complete in themselves, the notes below the translation follow the notes of the text in shortened or expanded form, or in duplicate, as the occasion would seem to demand. The notes in Grotius’ Latin text are in a most abbreviated form, and the references are seldom specific. They have been expanded without further explanation.
[ ] in the translation, text, or notes, inclose additions made by the translator.
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CAPITA DISSERTATIONIS HVGONIS GROTII DE MARE LIBERO
PAGINA Ad Principes populosque liberos orbis Christiani 1
CAPVT I. Iure gentium quibusvis ad quosvis liberam esse navigationem 7
II. Lusitanos nullum habere ius dominii in eos Indos ad quos Batavi navigant titulo inventionis 11
III. Lusitanos in Indos non habere ius dominii titulo donationis Pontificiae 15
IV. Lusitanos in Indos non habere ius dominii titulo belli 18
V. Mare ad Indos aut ius eo navigandi non esse proprium Lusitanorum titulo occupationis 22
VI. Mare aut ius navigandi proprium non esse Lusitanorum titulo donationis Pontificiae 45
VII. Mare aut ius navigandi proprium non esse Lusitanorum titulo praescriptionis aut consuetudinis 47
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TABLE OF CONTENTS
PAGE Introductory Note v
Translator’s Preface xi
FREEDOM OF THE SEAS
To the rulers and to the free and independent nations of Christendom 1