One of my favorite events each year is the visit by the students from the Yale Law School's Linkages Program. Over a dozen law students from Argentina, Brazil and Chile visited the Paskus-Danziger Rare Book Room on February 5. The items they viewed included Fori Aragonum [Laws of Aragon] (Zaragoza, 1496), with a splendid hand-colored shield of the city of Huesca and what one expert recently called the finest early Spanish binding he'd ever seen. I also put out our facsimile of the Treaty of Tordesillas, the agreement between Spain and Portugal that is the reason some of the students speak Spanish and others Portuguese. As usual, they had lots of questions and we had a great time. ¡Bienvenidos!

MIKE WIDENER
Rare Book Librarian

The January 12, 2010 issue of the Yale Daily News has an excellent article on our "Images of Justice" exhibit, curated by my intern Seth Quidachay-Swan of Southern Connecticut State University. Thanks to the reporter, Alison Greenberg, for a well-written piece.

MIKE WIDENER
Rare Book Librarian

"Images of Justice" is an exhibit prepared by Seth Quidachay-Swan, who recently completed an internship in the Lillian Goldman Law Library as part of his work toward a Master's in Library Science from Southern Connecticut State University. Seth will receive his M.L.S. in January 2010, and he also has a J.D. from the University of Minnesota Law School (2008).

In his research for the exhibit, Seth drew on Images of Justice, 96 YALE LAW JOURNAL 1727 (1987), by Judith Resnik and Dennis Curtis of the Yale Law School. This article has evolved into a book that will be out soon: Judith Resnik & Dennis Curtis, Representing Justice: From Renaisance Town Halls to 21st Century Democratic Courtrooms (Yale University Press, forthcoming 2010).

The exhibit is on display on Level L2 of the Law Library, in the wall case to the left of the door to the Paskus-Danziger Rare Book Room.

IMAGES OF JUSTICE

The image of Justice has been around for over 2000 years. Her lineage traces back to Egypt, Greece and Rome, in depictions of the goddesses Ma’at, Themis, Dike and Justitia. During the medieval period, Justice was adopted by Christian iconography as a representation of ancient virtue. Images of Justice were also common in Renaissance art and texts. Even today, Justice remains recognizable. Her image adorns many modern government buildings and court houses.

Hugo Grotius, De jure belli ac pacis libri tres (Amsterdam, 1735).

Today, Justice is most recognizable as a blindfolded woman with a sword and scales. However, earlier depictions of Justice displayed a wide array of allegorical meanings. Justice’s iconic scales measure the strength of a case. Images of a dog and snake with Justice are thought to represent friendship and hatred that could corrupt judgment. Sometimes, Justice’s sword is replaced with a fasces, the Roman symbol of a judge’s power to punish. Two-faced depictions of Justice sought to dispel fears of blind justice morphing into blind fury by prudently leaving one face unblindfolded to carefully wield her sword in meting out judgments and one face blindfolded to show her impartiality in judging the merits of cases.

Joost de Damhoudere, Praxis rerum civilium (Antwerp, 1567).

Renaissance iconography often depicted Justice with her sister virtues: Prudence (looking into a mirror), Temperance (holding a bridle and water jug), and Fortitude (wearing a lion skin or carrying a broken column). This artistic tradition continued into the 17th and 18th centuries, but is rarely used today.

Hugo Grotius, De jure belli ac pacis libri tres (Frankfurt, 1699).

Why is Justice so recognizable? Perhaps because Justice represents an idealized model of the legal system, with which political leaders and thinkers throughout history have sought to align themselves. For example, an image of Justice adorns a 1766 edition of Cesare Beccaria’s Dei delitti e delle pene (Of Crimes and Punishments). In this seminal work on criminal justice, Beccaria argued that punishments should be based on the injury caused to society, and that the prevention of crime was more important than its punishment. The text’s portrayal of Justice underscores Beccaria’s argument: Justice turns away from the barbaric and arbitrary punishments of medieval times in favor of a more enlightened penal code.

Cesare Baccaria, Dei delitti e delle pene (Haarlem, 1766).

 -- SETH QUIDACHAY-SWAN, Southern Connecticut State University

The Lillian Goldman Law Library prides itself on having what may be the best collection of early Italian statutes in the Western Hemisphere. However, our collection will never come close to matching the superb collection of statuti at the Biblioteca del Senato della Repubblica "Giovanni Spadolini" (the library of the Italian Senate).

It was a great privilege to tour the Biblioteca del Senato and its statute collection on a recent visit to Rome, courtesy of Dr. Raissa Teodori, Head of Special Collections, and Dr. Alessandra Casamassima (Special Collections Cataloger).

L-R: Alessandra Casamassima, Emma Widener, Mike Widener, Raissa Teodori.

Dr. Teodori gave an excellent overview of the library's special collections at the 25th Annual Pre-Conference of the International Federation of Library Associations (IFLA)-Library and Research Services for Parliaments, in August 2009, which is available as a PDF file. In addition, there is a published guide to the collection, co-authored by Teodori, Casamassima and Dr. Sandro Bulgarelli (Director of the Biblioteca del Senato): Le Radici Della Nazione: La Storia Delle Citta Italiane Nella Biblioteca Del Senato Statuto Dei Comuni E Libri Antichi Di Storia Locale Dal XIII Al XIX Secolo (Skira, 2004).

The Senate library and its sister library from the lower house of the Italian Parliament, the Biblioteca della Camera, recently moved into a common building on the Piazza Minerva, next to the Pantheon. Both libraries have superb reading rooms and a strong emphasis on service to the general public as well as to legislators.

The library's building is itself a historic monument. Formerly the mother house of the Dominican Order, it was the site of Galileo's trial for heresy. The adjoining church, the Basilica of Santa Maria sopra Minerva, is the only Gothic church in Rome, and contains the tombs of four popes, St. Catherine of Siena, the painter Fra Angelico, and an important figure in legal history, the canonist Guillaume Durand (d. 1296), author of the Speculum iudiciale, "the most widely used procedural treatise of the Middle Ages" (Kenneth Pennington, Medieval Canonists A Bio-Bibliographical Listing).

MIKE WIDENER
Rare Book Librarian

Piazza Minerva in Rome, with the Biblioteca del Senato on the left, the Basilica of Santa Maria sopra Minerva on the right, and Bernini's elephant at center.

On a recent trip to Rome I had the great professional and personal pleasure of reuniting an Italian town with an important piece of its history.

Among the volumes in our outstanding collection of early Italian statutes is a 15th-century manuscript of the statutes of Montebuono, a village about 60 km. north of Rome (see map). The manuscript was featured in our 2008 exhibit, "The Flowering of Civil Law: Early Italian City Statutes in the Yale Law Library.” The Fondazione Gabriele Berionne and its president, Renata Ferraro, were extremely helpful in supporting research on the manuscript.

In gratitude for this help, the Lillian Goldman Law Library digitized the Montebuono manuscript. I was pleased to deliver it in person to the mayor of Montebuono, the Hon. Dario Santori, during a visit hosted by Renata Ferraro on November 29. The Comune di Montebuono is actively in historic preservation activities, including the restoration of its beautiful 11th-century church, San Pietro ad Muricentum, which is built atop an ancient Roman villa that belonged to the architect of the Pantheon, Marcus Agrippa. The Fondazione Gabriele Berionne has supported these preservation efforts and published a splendid illustrated book, Montebuono e il suo territorio: storia, architetture e restauri inizia la ricerca (Mariasanta Valenti, ed.; Rome: Fondazione Gabriele Berionne, 2007), which can be consulted in the Paskus-Danziger Rare Book Reading Room.

For more information on Montebuono, see the Montebuono On Line website; follow the links for "Storia e Monumenti."

My wife and I thank Renata Ferraro, her husband Giovanni Carosio, and Mayor Santori for a memorable visit, and Fiorenzo Francioli, a Montebuono official, for a learned and fascinating tour of San Pietro.

MIKE WIDENER
Rare Book Librarian

L-R: Dario Santori (mayor of Montebuono), Emma Widener, Renata Ferraro, Giovanni Carosio, Mike Widener, Fiorenzo Francioli, and Antonella Francioli. 29 Nov. 2009 at Il Boschetto restaurant near Montebuono.

Over 50 of Professor Morris L. Cohen's friends gathered on December 2 to honor him and the gift of his Juvenile Jurisprudence Collection to the Lillian Goldman Law Library's Rare Book Collection.

Cohen, Professor Emeritus of Law at the Yale Law School, is one of the most influential law librarians of the 20th and 21st centuries. He was the director of the Lillian Goldman Law Library from 1981 to 1991, and previously was director of the law libraries at Harvard (1971-1981), the University of Pennsylvania (1963-1971), and the University of Buffalo (1961-1963). He is the author of Bibliography of Early American Law (7 vols.; 1998- ), a landmark in legal bibliography, and numerous other treatises and articles.

In his brief remarks, Professor Cohen told how the Juvenile Jurisprudence Collection began in the 1960s as a collaboration with his son Daniel, who collected early English and American children's books. By the time he donated the collection in 2008, it contained over 200 law-related children's books from the 18th century to the present. There is no other collection like it in the world. It provides valuable insights into how popular views of the legal system have evolved over the centuries. It also demonstrates Professor Cohen's originality and skill as a collector.

The books themselves are simply delightful. At right is an image from one of my favorites, The Quarrel and Lawsuit Between Cock Robin and Jenny Wren (London, ca. 1840).

When Professor Cohen donated the Juvenile Jurisprudence Collection, the library promised to continue adding to the collection. We have added close to a dozen additional titles so far, and look forward to adding more. The most recent acquisitions include A Modern Newsboy at the Constitution Convention: A Short Play to be Used in a Constitution Day Program for High Schools in Cooperation with the Elementary Grades by J.M. Wilkoff (Pennsylvania Historical Commission, 1937), and an illustrated biography of the famous Dutch jurist Hugo Grotius aimed at young readers, Het leven en de lotgevallen van Hugo de Groot by A.C. Oudemans (Amsterdam, 1835).

For more information on the Juvenile Jurisprudence Collection, including a complete list of the books donated by Professor Cohen, see "Morris Cohen Donates Children's Law Book Collection to Law Library" in the Yale Law School's News & Events listings.

Thank you, Morris, for this collection and for all that you've done for me and the Law Library!

MIKE WIDENER
Rare Book Librarian

Professor Stephen Wizner, Professor Morris L. Cohen, and Gloria Cohen at the reception honoring Cohen's gift of the Juvenile Jurisprudence Collection.

The Lillian Goldman Law Library, Yale Law School, presents...

“Bookbindings: What They Tell Us About Early Printed Books”
Presented by Scott Husby
December 10, 2009
1:10 - 2:00 p.m.
Sterling Law Building, Room 129

Since 1999 Scott Husby has been working on an ambitious project to locate, record, and identify contemporary bookbindings on incunables (15th-century printed books) in North American collections. His talk will describe the project and share some of the findings that have come out of his research, including some of his discoveries in the Lillian Goldman Law Library's Rare Book Collection.

Scott Husby has been a bookbinder and book conservator for 35 years. He has carried out book conservation projects at the Library of Congress, the Folger Shakespeare Library, the Freer and Sackler Museums at the Smithsonian, and from 1996 through 2007 was the Rare Books Conservator for Princeton University. Over the last two years he has been devoting full time to a long-term project of recording bookbindings on early-printed books.

At right: Decretales Gregorii IX (Venice: Andreas Torresanus, de Asula, 1482), Rare Book Collection, Lillian Goldman Law Library. Contemporary Italian binding.

I was pleased to welcome about 30 freshmen from Yale's Directed Studies program to the Paskus-Danziger Rare Book Room on November 4. They were accompanied by three of the Directed Studies faculty: Edwin Duval (French), Paul Freedman (History), and Justin Zaremby (Yale College and Law '10).

Directed Studies provides an interdisciplinary study of Western civilization to 125 selected Yale freshmen via three year-long courses -- literature, philosophy, and historical & political thought -- that focus on the central texts of Western civilization.

We viewed several books and manuscripts from among the foundational texts of European and English law, and how these texts shaped and were shaped by legal education. From Europe there was a 13th-century compilation of the Institutes, Code, and Novels of Justinian, and a 14th-century manuscript of the Clementines from the Corpus Juris Canonici, which show the development of the gloss as an outgrowth of the law lectures at the university in Bologna. The Institutes themselves had been promulgated by the Roman emperor Justinian in the 6th century as a textbook for learning Roman law. Likewise for canon law, the Decretum of Gratian was not merely a compilation of papal legislation, but a tool for teaching canon law at Bologna. Early printed editions of Justinian's Institutes (1516) and the Liber Sextus (1514) show how the structure of text-and-gloss shaped the layout of early printed law books. Legal humanists later stripped away the medieval gloss, but an 18th-century scholar replaced the gloss with his own study notes in an interleaved copy of the Institutes.

University-trained jurists in Europe had to plow through every line of Justinian's texts or the Corpus Juris Canonici to earn their doctorates in law. In England, by contrast, lawyers did not study English common law in universities but at the Inns of Court, and they did not study foundation texts as the Europeans did. On view for the students was one of our two 13th-century manuscripts of Bracton, the text that tried to do for English law what Justinian's Institutes did for Roman law, but failed. Education in the common law was practice-based; students attended hearings in the royal courts and studied cases from the Year Books, the anonymous medieval case reports that focused on procedure rather than outcomes. The first text written for English law students was Littleton's Tenures, a little treatise on land law that ws reprinted over seventy times across four centuries. Sir Edward Coke's commentary on Littleton once again adapted the device of the gloss, with Coke's dense and learned notes almost swallowing up Littleton's original text. The copy of Coke on Littleton (1633) that the students viewed has additional layers of extensive manuscript notes, attributed to the English author Samuel Butler (1612-1680), author of a best-selling satire on the Puritans, Hudibras, and Butler's patron William de Longueville (1639-1721).

The book that revolutionized common-law legal education, especially for do-it-yourself'ers in the early United States, was Sir William Blackstone's Commentaries on the Laws of England, the first book to give a comprehensive overview of English law in prose that an educated layman could digest. On view for the students was the 1790 edition of the Commentaries printed in Worcester, Mass., by the pioneering American printer Isaiah Thomas, as well as a student notebook (New England?, 1810?), where the student's geography notes are followed by "Questions and Answers upon Law: Blackstone's Commentaries."

My thanks to Justin Zaremby for organizing this visit. The students enjoyed the chance to see the books up close and actually handle them. Let's do it again!

MIKE WIDENER
Rare Book Librarian

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius's Mare Liberum

ACKNOWLEDGMENTS

Thanks to the following individuals and institutions for their assistance in preparing this exhibit:

David Warrington
Librarian for Special Collections
Harvard Law School Library

Kathryn James
Assistant Curator, Early Modern Books and Manuscripts
Beinecke Rare Book & Manuscript Library, Yale University

Christine McCarthy
Chief Conservator
Yale University Library

Tara Kennedy
Preservation Field Services Librarian
Yale University Library

Shana Jackson
Lillian Goldman Law Library

Benjamin Yousey-Hindes
Stanford University

The portrait of Hugo Grotius is from: Hugo Grotius, Inleydinghe tot de Hollandsche rechtsgheleerdheydt (Haarlem, 1636). Rare Book Collection, Lillian Goldman Law Library.

"Freedom of the Seas, 1609: Grotius and the Emergence of International Law," curated by Edward Gordon and Michael Widener, is on display October 2009 through January 2010 in the Rare Book Exhibition Gallery, Level L2, Lillian Goldman Law Library, Yale Law School.

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius's Mare Liberum

The Development of the Law of the Sea in the 17th Century: A Bibliography of Modern Scholarship
Compiled by Edward Gordon

Akashi. Kinji. Cornelius van Bynkershoek: His Role in the History of International Law. The Hague: Kluwer, 1998.

Alexandrowicz, C.H. An Introduction to the History of the Law of Nations in the East Indies. Oxford: Clarendon, 1967.

Alexandrowicz, C.H. "Freitas versus Grotius," 35 British Yearbook of International Law 162 (1959).

Allen, E.W. "Freedom of the Seas," 60 American Journal of International Law 814 (1966).

Alsop, J.D. "William Welwood, Anne of Denmark and the Sovereignty of the Sea," 49 Scottish Historical Review 171 (1980).

Amaral, Sylvino Gurgel do. "Le ‘Mare Liberum' et ses adversaries", in Hugo Grotius: Essays on His Life and Works Selected for the Occasion of the Tercentenary of His ‘De Jure Belli ac Pacis' 1625-1925 (A. Lysen ed.; Leyden: A.W. Sythoff, 1925). [Translated from the Portuguese, where it appeared in the author's Ensaio subre a vide e obras de Hugo de Groot (Grotius) (Rio de Janeiro-Paris, 1903).]

Anand, R.P. Origins and Development of the Law of the Sea: History of International Law Revisited. The Hague: Nijhoff, 1983.

Andrews, Kenneth R. Ships, Money and Politics: Seafaring and Naval Enterprise in the Reign of Charles I. Cambridge: Cambridge University Press, 1991.

Armitage, David. The Ideological Origins of the British Empire. Cambridge: Cambridge University Press, 2000.

Armitage, David, ed. The Free Sea: Hugo Grotius, Translated by Richard Hakluyt; with William Welwood's Critique and Grotius's Reply. Indianapolis: Liberty Fund, 2004.

Blom, Hans W., ed. Property, Piracy and Punishment: Hugo Grotius on War and Booty in De Jure Praedae – Concepts and Contexts. Leiden: Brill, 2009.

Borschberg, Peter. "Grotius, Intra-Asian Trade and the Portuguese Estado da India Problems," in Property, Piracy and Punishment: Hugo Grotius on War and Booty in De Jure Praedae – Concepts and Contexts ( Hans W. Blom, ed.; Leiden: Brill, 2009).

Borschberg, Peter. "The Seizure of the Sta. Catarina Revisited: The Portuguese Empire in Asia, VOC Politics and the Origins of the Dutch-Johor Alliance (1602-ca. 1616)," 33 Journal of Southeast Asian Studies 31 (2002).

Braudel, Fernand. The Mediterranean and the Mediterranean World in the Age of Philip II. New York: Harper & Row, 1972.

Brett, Annabel. Liberty, Right and Nature: Individual Rights in Latin Scholastic Thought. Cambridge: University Press, 1997. [See pp. 165-204, on Vásquez.]

Brito Vieira, Monica. "Mare liberum vs. Mare clausum: Grotius, Freitas, and Selden's Debate on Dominion over the Seas," 64 Journal of the History of Ideas 361 (2003).

Butler, Geoffrey; & Simon Maccoby. The Development of International Law. London: Longmans, Green 1928. [See esp. pp. 40-60, "The World by Sea".]

Butler, W.E. "Grotius and the Law of the Sea," in Hugo Grotius and International Relations (H. Bull, A. Roberts & B. Kingsbury, eds.; Oxford: Oxford University Press, 1990).

Chatterjee, Hiralal. International Law and Inter-State Relations in Ancient India. Calcutta: Mukhopadhyay, 1958.

Christianson, Paul. Discourse on History, Law, and Governance in the Public Career of John Selden, 1610-1635. Toronto: Toronto University Press, 1996.

Clark, G. N. "Grotius's East India Mission to England," 20 Transactions of the Grotius Society 45 (1935).

Clark, G. N., & van Eysinga, W. J. M. "The Colonial Conferences between England and the Netherlands in 1613 and 1615," 15 Bibliotheca Visseriana 15 (1940).

De Pauw, F. E. R., ed. Grotius and the Law of the Sea (P.J. Arthern, transl.). Brussels: Institut de Sociologie, 1965.

Diesselhorst, Malte. "Hugo Grotius and the Freedom of the Seas," 3 Grotiana (N.S.) 11 (1982).

Dumbauld, E. "Grotius on the Law of Prize," 14 Journal of Public Law 370 (1965).

Edmundson, George. Anglo-Dutch Rivalry during the First Half of the Seventeenth Century. Oxford: Clarendon Press, 1911.

Eysinga, William J. M. van. "Quelques Observations au Sujet du Mare Liberum et du De Jure Praedae de Grotius," 9 Grotiana 60 (1942).

Eysinga, William .M. van. "Le 350ieme anniversaire du ‘De jure Praedae commentarius' de Grotius" [French translation of address of the Royal Dutch Academy of Sciences and Letters, March 24, 1956], in Sparso Collect (Leyden 1958), pp. 358-374.

Fenn, Percy Thomas, Jr. The Origin of the Right of Fishery in Territorial Waters. Cambridge, MA: Harvard University Press, 1926. [See esp. ch. VIII, "Mare liberum versus Mare clausum."]

Fenn, Percy Thomas, Jr. "Origins of the Theory of Territorial Waters," 20 American Journal of International Law 465 (1926).

Fenn, Percy Thomas, Jr. "Justinian and the Freedom of the Seas," 19 American Journal of International Law 465 (1925).

Fruin, Robert. "An Unpublished Work of Hugo Grotius," 5 Bibliotheca Visseriana 3 (1925). [English translation of a work first published, in Dutch, in 1868.]

Fulton, Thomas Wemyss. The Sovereignty of the Seas: An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters: With Special Reference to the Rights of Fishing and the Naval Salute. Edinburgh: William Blackwood, 1911.

Gepken-Jager, Ella; Gerard van Solinge, & Levinus Timmerman. VOC 1602-2002: 400 Years of Company Law. Deventer: Kluwer, 2005

Goldwin, R.A. "Locke and the Law of the Sea," 71 Commentary 46 (June 1981).

[Grotius, Hugo]. De jure praedae commentaries. I. Commentary on the Law of Prize and Booty. Gwladys L. Williams and Walter H. Zeydel, transl.. II. The Collotype Reproduction of the Original Manuscript on 1604 in the Handwriting of Grotius. 2 vols. Oxford: Clarendon, 1950.

Grotius, Hugo. "Defense of Chapter V of the Mare Liberum," in 7 Bibliotheca Visseriana 154 (1928). [Originally written between 1613 and 1617.]

Haggenmacher, Peter. "Grotius and Gentili: A Reassessment of Thomas E. Holland's Inaugural Lecture," in Hugo Grotius and International Relations (H. Bull, A. Roberts & B. Kingsbury, eds.; Oxford: Oxford University Press, 1990).

Hakluyt, Richard. The Original Writings and Correspondence of the Two Richard Hakluyts. 2 vols. E.G.R.Taylor, ed. London: Hakluyt Society, 1935.

Holk, L.E. van, & C.G. Roeflofsen, eds. Grotius Reader: A Reader for Students of International Law and Legal History. The Hague: T.M.C. Asser Instituut, 1983.

Ito, F. "The Thoughts of Hugo Grotius in the Mare Liberum," 18 Japanese Annual of International Law 1 (1974).

Ittersum, Martine van. Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies (1595-1615). Boston: Brill, 2006.

Ittersum, Martine van, ed. Commentary on the Law of Prize and Booty: Hugo Grotius. Indianapolis: Liberty Fund, 2006.

Ittersum, Martine van. "Dating the Manuscript of De Jure Praedae (1604-1608): What Watermarks, Foliation and Quire Divisions Can Tell Us About Hugo Grotius' Development as a Natural Rights and Natural Law Theorist," 35 History of European Ideas 125 (2009).

Ittersum, Martine van. "Mare Liberum in the West Indies? Hugo Grotius and the Case of the Swimming Lion, a Dutch Pirate in the Caribbean at the Turn of the Seventeenth Century," 31:3 Itinerario 59 (2007).

Ittersum, Martine van. "Mare Liberum versus the Propriety of the Seas? The Debate between Hugo Grotius and William Welwood and the Impact on Anglo-Scottish-Dutch Fishing Disputes in the Second Decade of the Seventeenth Century," 10 Edinburgh Law Review 239 (2006).

Kenworthy, J.M., & George Yound. Freedom of the Seas. London: n.d.

Knight, William S.M. "Seraphin de Freitas: Critic of Mare liberum," 11 Transactions of the Grotius Society 1 (1926).

Kwiatkowska, B. "Hugo Grotius and the Freedom of the Seas," in Hugo Grotius: 1583-1983: Maastricht Hugo Grotius Colloquium March 31, 1983 (J.L.M. Elders et al., eds.; Van Gorcum: Assen, 1984).

Landwehr, John. VOC: A Bibliography of Publications Relating to the Dutch East India Company 1602-1800. Utrecht: HGS Publishers, 1991.

Lauterpacht, Hersch. "The Grotian Tradition in International Law," 23 British Yearbook of International Law 1 (1946).

Macrae, L.M. "Customary International Law and the United Nations' Law of the Sea Treaty," 13 California Western International Law Journal 181 (1983).

Meurer, Christian. The Program of the Freedom of the Seas: A Political Study in International Law. Leo J. Frechtenberg, transl. Washington: GPO, 1919.

Molen, G.H.J. van der. Alberico Gentili and the Development of International Law: His Work and Times. Amsterdam: H.J. Paris, 1937. [Later printing: Leyden 1968. See esp. ch. VI, "Questions of International Law."]

O'Connell, D.P. The International Law of the Sea. London: OxfordUniversity Press, 1983.

Oudendijk, J.K. Status and Extent of Adjacent Waters: A Historical Orientation. Leyden: Sijthoff, 1970.

Pagden, Anthony. Lords of All the World: Ideologues of Empire in Spain, Britain and France c.1500-1800. New Haven: Yale University Press, 1995. [See esp. pp. 56-61 on Vasquez.]

Parks, George Bruner. Richard Hakluyt and the English Voyages. New York: American Geographical Society, 1928.

Piggott, Frances. The Freedom of the Seas Historically Treated. Oxford: printed for the Historical Section of the Foreign Office, 1919.

Porras, Ileana M. "Constructing International Law in the East Indian Seas: Property, Sovereignty, Commerce and War in Hugo Grotius' de Iure Praedae - The Law of Prize and Booty, or on How to Distinguish Merchants from Pirates," 31 Brooklyn Journal of International Law 741 (2005-2006).

Potter, Pitman B. The Freedom of the Seas in History, Law, and Politics. New York: Longmans, Green, 1924. [Reprint 2002. See esp. ch. IV, "The Grotius-Selden Controversy."]

Quinn, D.B. "A Hakluyt Chronology," in The Hakluyt Handbook (D.B. Quinn, ed.; 2 vols.; London: Hakluyt Society, 1974).

Rawlinson, H.G. Intercourse between India and the Western World: From the Earliest Times to the Fall of Rome. Cambridge: University Press, 1926.

Roelofsen, C.G. "The Sources of Mare Liberum; the Contested Origins of the Doctrine of the Freedom of the Seas," in International Law and its Sources: Liber Amicorum Maarten Bos (W.P. Heere, ed.; Boston: Kluwer, 1988). [Reprinted in C.G. Roelofsen, Studies in the History of International Law: Practice and Doctrine in Particular with Regard to the Law of Naval Warfare in the Low Countries from circa 1450 Until the Early 17th Century (Utrecht: Rijksuniversiteit te Utrecht, 1991).]

Roelofsen, C.G. "Grotius and the International Politics of the Seventeenth Century," in Hugo Grotius and International Relations (H. Bull, A. Roberts & B. Kingsbury, eds.; Oxford: Oxford University Press, 1990). [Reprinted in C.G. Roelofsen, Studies in the History of International Law: Practice and Doctrine in Particular with Regard to the Law of Naval Warfare in the Low Countries from circa 1450 Until the Early 17th Century (Utrecht: Rijksuniversiteit te Utrecht, 1991).]

Roelofsen, C.G. "Grotius and State Practice of His Day," 10 Grotiana 3-46 (1989). [Reprinted in C.G. Roelofsen, Studies in the History of International Law: Practice and Doctrine in Particular with Regard to the Law of Naval Warfare in the Low Countries from circa 1450 Until the Early 17th Century (Utrecht: Rijksuniversiteit te Utrecht, 1991).]

Roelofsen, C.G. Review of Anand, Origins and Development of the Law of the Sea, 31 Netherlands International Law Review 117 (1984).

Rogers, F.M. "Hakluyt as Translator," in The Hakluyt Handbook (D.B. Quinn, ed.; 2 vols.; London: Hakluyt Society, 1974).

Steinburg, Philip G. The Social Construction of the Oceans. Cambridge: University Press, 2001. [See esp. pp. 92 et seq.]

Toomer, G. J. John Selden: A Life in Scholarship. 2 vols. Oxford: Oxford University Press, 2009. [See vol. 1, ch. 12, "Mare Clausum."]

Trevor-Roper, H. From Counter-Reformation to Glorious Revolution. Chicago: University of Chicago Press, 1982.

Vollenhoven, C. The Three Stages in the Evolution of the Law of Nations. The Hague: Nijhoff, 1919.

Vreeland, Hamilton. Hugo Grotius: The Father of the Modern Science of International Law. New York: Oxford University Press, 1917. [See esp. pp. 39-67.]

Wade, Thomas C. "Introductory Essay: The Freedom of the Sea," in Sir John Boroughs, The Sovereignty of the British Seas (Edinburgh: W. Green & Sons, 1920).

Wilkinson, John. "The First Declaration of the Freedom of the Seas: The Rhodian Sea Laws," appendix to Ch. XIX of the same author's paper, "A Tentative Program for Simulation of Historical ‘Ecology' of the Mediterranean," in The Mediterranean Marine Environment and Development of Region (Malta: Royal University of Malta Press, 1974).

Wilson, Eric. Savage Republic: De Indis of Hugo Grotius, Republicanism and Dutch Hegemony with the Early Modern World Systems (c.1600-1619). Leiden: Martinus Nijhoff, 2008.

Winstedt, Richard; & P.F. De Josselin De Jong, "Maritime Law of Malacca," 29 (Pt. 3) Journal of the Royal Asiatic Society (Aug. 1956).

Wright, Herbert F. "Some Lesser Known Works of Hugo Grotius," 7 Bibliotheca Visseriana 132 (1928). [Four works are reproduced, of which two are translations: one of Grotius's works on fisheries in his controversy with William Welwood, another a translation of extracts from Grotius's letters concerning international and natural law and fisheries. See esp. "Defense of Chapter V of the Mare Liberum."]

Zemanek, Karl. "Was Hugo Grotius Really in Favour of the Freedom of the Seas?", 1 Journal of the History of International Law 48 (1999).

Ziskind, Jonathan. "International Law and Ancient Sources: Grotius and Selden," 35 Review of Politics 537 (No. 4, 1973).

"Freedom of the Seas, 1609: Grotius and the Emergence of International Law," curated by Edward Gordon and Michael Widener, is on display October 2009 through January 2010 in the Rare Book Exhibition Gallery, Level L2, Lillian Goldman Law Library, Yale Law School.

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius's Mare Liberum
Part 8

For the 17th century Mare liberum and Mare clausum were the centerpieces of the debate between advocates of exclusive and inclusive uses of ocean space. In England, Mare clausum reigned supreme as the authority on all questions of sovereignty at sea, although its authority on more mundane legal issues of maritime law yielded late in that century to Charles Molloy's De jure maritime et navali, or, A Treatise of Affaires Maritime, and of Commerce (1676), which dealt with mercantile questions such as bills of exchange, insurance and maritime loans.

Molloy, Charles (1646-1690). De jure maritimo et navali (London, 1682).
This popular work went through 12 editions between 1676 and 1778.
Rare Book Collection, Lillian Goldman Law Library.

Neither Welwood nor Selden dealt decisively with the question of how far out to sea a sovereign’s territorial sea could extend: Welwood seemed to suggest one hundred miles, but left the issue open; Selden finessed it entirely.  In time, British maritime power rendered such matters moot: as an old saw had it, "Britannia rules the waves – and waives the rules."

But by the end of the century, support was growing elsewhere for some limitation to the seaward extent of territorial waters. What emerged was the so-called "cannon shot rule", which deferred in theory to the idea that property rights could be acquired by actual occupation, and in practice to the effective range of shore-based cannon: about three nautical miles. The rule has long been associated with Cornelis van Bijnkershoek (1673-1743), a Dutch jurist who, especially in his De dominio maris (1702), advocated a middle ground between the extremes of Grotius and Selden, accepting both the freedom of states to navigate and exploit the resources the of the high seas and a right of coastal state to assert wide-ranging rights in a thus limited territorial sea.

Bijnkershoek, Cornelis van (1673-1743). De dominio maris (The Hague, 1703).
Special Collections, Harvard Law School Library.

Viewed in historical perspective, what emerged from the 17th-century debate were not just these two legal regimes, but a more inclusive one – international law – to govern humanity's common interest in the use of shared space and shared resources, interest as to which the future may well offer exhibits of its own.

-- Notes by Edward Gordon

"Freedom of the Seas, 1609: Grotius and the Emergence of International Law," curated by Edward Gordon and Michael Widener, is on display October 2009 through January 2010 in the Rare Book Exhibition Gallery, Level L2, Lillian Goldman Law Library, Yale Law School.

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius's Mare Liberum
Part 7

In supporting his case with a massive showing of state practice, Selden was able to draw upon historical research done by the Keeper of the Records in the Tower of London, Sir John Borough, whose work, The Sovereignty of the British Seas Proved by Records, History, and the Municipall Lawes of the Kingdome, written in 1633, was published only posthumously in 1651.

Borough, John (d. 1643). The soveraignty of the British seas (London, 1739).
The third edition.
Collection of Edward Gordon.

Grotius, too, was able to draw upon earlier work. Some of his arguments had been anticipated by the writings of Alberico Gentili (1552-1608), an Italian émigré who became Regius Professor of Civil Law at Oxford, and at least as prominently, an admiralty lawyer in London, representing the king of Spain. Gentili died before the publication of Mare liberum, but in his notes in defense of Spanish claims, published posthumously in 1613 as Hispanicae advocationis, he organized the issues far more systematically than the youthful Grotius had been able to do in Mare liberum.

Like Grotius, Gentili said that under Roman law, consistently with natural law, the open sea was common property. But he recognized the gap between principle and practice, bridging it by distinguishing dominium (ownership) from jurisdictio (jurisdiction) – the latter, unlike the former, being applicable to the high seas. He also distinguished coastal waters from the high seas, insisting, however, that a coastal state’s right to control its territorial seas did not justify closing them to foreign navigation.

His ideas anticipated those of De jure belli ac pacis as well. In his use of phrases like ius inter gentes and societas humana, for example, Gentili may be said to have initiated the liberation of the law of nations conceptually from both Roman law and the guardianship of theology. Not until the late 19th century, however, was the extent of influence on Grotius recognized by scholars. Only then did Gentili's reputation as a founder of modern international law begin to rival that of Grotius himself.

-- Notes by Edward Gordon

Gentili, Alberico (1552-1608). Hispanicae advocationis libri duo (Hanover, 1613).
Special Collections, Harvard Law School Library.

"Freedom of the Seas, 1609: Grotius and the Emergence of International Law," curated by Edward Gordon and Michael Widener, is on display October 2009 through January 2010 in the Rare Book Exhibition Gallery, Level L2, Lillian Goldman Law Library, Yale Law School.

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius's Mare Liberum
Part 6

William Welwood's work eventually drew a response from a Dutch lawyer, Dirck Graswinckel, entitled Mare liberi vindiciae adversus Gulielmum Welwodum (1653), but its relative obscurity today owes more to the publication in 1635 of Mare clausum, by John Selden (1594-1654), an English jurist, scholar and polymath whose erudition rivaled that of Grotius himself. Selden had begun researching and writing a refutation of Mare liberum soon after its publication, even before Welwood's two treatises appeared. He had completed it by around 1618, by which time, however, a coup d'etat had taken place in the Netherlands, Grotius had been imprisoned, and relations between England and the new government were unsettled. King James was reluctant anyway to provoke a dispute with Denmark, which had extensive claims of its own in the North Atlantic. Under the circumstances, the moment seemed inauspicious for a verbal assault on Grotius and the freedom of the seas – and James refused to publish Mare clausum.

Selden apparently abandoned the project for nearly seventeen years. By then, Grotius, having escaped from prison in 1621 and living in exile in France, had published his more mature and celebrated masterpiece, De jure belli ac pacis (1625), later translated into English as The Rights of Warre and Peace (1654), in which he toned down some of the extravagant positions he had taken in his youthful defense of the seizure of the Santa Catarina, constructing instead a more sophisticated basis for a law of nature and nations independent of empire or religious guardianship that was, not coincidentally, notably less lenient in justifying the resort to armed force.

By then, Selden's personal status had changed, too. Having become embroiled in parliamentary politics, he himself had been imprisoned and was now ensconced in the Tower of London. James meanwhile had been succeeded by Charles I, whose maritime policy was more aggressive than that of either of his two predecessors. In returning to his attack on Mare liberum, therefore, Selden was faced not only with the task of exposing weaknesses in Mare liberum, as Welwood had done and as he himself presumably had already done in his 1618 draft, but also with the more demanding one of taking into account the comprehensive legal regime Grotius had subsequently presented in De jure belli ac pacis. And he had to do both in a way that ingratiated himself with Charles.

Selden's treatise, like Grotius's, is remarkable for its erudition, too much so for modern readers, who tend to see in both works an excess of pedantry, but decisively impressive to the two men's own contemporaries. Selden conceded the innocence of harmless navigation and commerce, but maintained that restrictions on them do not necessarily violate the law of nature and the law of nations. He purported to show that the open sea is not everywhere common, is capable of appropriation, and in fact from time to time had been appropriated and occupied. As to the Spanish and Portuguese claims, whose legitimacy England continued to deny, Selden said that, while on general principles they could be valid, in actual practice neither of the two countries ever acquired valid title or command to the areas they claimed.

-- Notes by Edward Gordon

Selden, John (1584-1654). Mare clausum (London, 1635).
The first edition of Selden’s Mare clausum is also famous as the first use of Arabic type in England. The map depicts what ancient geographers called "the British sea."
Rare Book Collection, Lillian Goldman Law Library.

Selden, John (1584-1654). Mare clausum: the right and dominion of the sea (London, 1663).
The second edition of the English translation of Mare clausum.
Rare Book Collection, Lillian Goldman Law Library.

Grotius, Hugo (1583-1645). Of the law of warre and peace (London, 1655).
The second English edition, appearing only a year after the first. The portrait bears Grotius's motto, "Ruit Hora" ("Time flies"), reflecting his busy and productive career as a jurist, diplomat, and author.
Rare Book Collection, Lillian Goldman Law Library.

"Freedom of the Seas, 1609: Grotius and the Emergence of International Law," curated by Edward Gordon and Michael Widener, is on display October 2009 through January 2010 in the Rare Book Exhibition Gallery, Level L2, Lillian Goldman Law Library, Yale Law School.

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius's Mare Liberum
Part 5

England's own claims to maritime sovereignty ran counter to both Spain and Portugal's and to Holland's. Even during the reign of Queen Elizabeth – and notwithstanding her rebuke to the Spanish ambassador – England claimed sovereign rights seaward. During her reign these rights extended to the waters immediately adjacent to its coast, but her successors extended them out into the Atlantic, from Cape Finisterre in Spain around the British Isles, and in the North Sea to the coast of Norway.

The first British treatise on the law of the sea appeared in 1590. Written by William Welwood (fl. 1566-1624), a professor of mathematics and then law at St. Andrews (Scotland), The Sea Law of Scotland defended royal dominion over the seas out to a distance of eighty miles off the Scottish coast. The work pleased the king of Scotland, James VI, who had objected strongly, though ineffectively, to what he regarded as the intrusion of the Dutch herring fleet into Scots waters, and who happily rewarded Welwood for lending legal support to his cause.

When James succeeded to the crown of England, following Queen Elizabeth's death in 1603, he issued a proclamation claiming all fisheries along the British and Irish coasts, and prohibiting foreign vessels from fishing in these waters without a royal license. To support his position, he asked Welwood to refute Mare liberum directly.

This Welwood did in two treatises: An Abridgement of All the Sea-Lawes (1613) and, in an amplified Latin version inspired in part by James's wife, Queen Anne of Denmark, De dominio maris (1615). Quoting extensively from biblical sources and Roman lawyers, Welwood rejected Grotius's claim that the waters of the world had always been regarded as indivisible; and defended the right of a coastal state to fish and to navigate – and to impose taxes with respect to either – in the waters adjacent to its coasts. Welwood is said to have been the first to clearly enunciate a coastal state's authority over living resources adjacent to its shores. What is more, and of more than passing interest, he based his argument, at least in part, upon the risk of exhaustion of fisheries posed by otherwise unregulated promiscuous use.

-- Notes by Edward Gordon

Welwood, William (fl. 1578-1622). An abridgement of all sea-lawes (London, 1613).
Rare Book Collection, Lillian Goldman Law Library.

"Freedom of the Seas, 1609: Grotius and the Emergence of International Law," curated by Edward Gordon and Michael Widener, is on display October 2009 through January 2010 in the Rare Book Exhibition Gallery, Level L2, Lillian Goldman Law Library, Yale Law School.

Freedom of the Seas, 1609: Grotius and the Emergence of International Law
An exhibit marking the 400th anniversary of Hugo Grotius's Mare Liberum
Part 4

As it happens, the publication of Mare liberum came too late to influence negotiations with Spain. It served instead to ignite a fierce debate over the freedom of the seas that continued throughout the 17th century – what later scholars were to call the "Battle of the Books." Grotius contended that nature and public utility alike forbid the acquisition of property rights in the sea. Unlike land, the sea (and the air) cannot in practice be occupied, demonstrating that nature intended it to be free to all to use. Being inexhaustible in use, moreover, it is not susceptible of occupation, which is necessary when the utility of things can be preserved only if they become private property.

The defense of Portugal's imperial claims in the East Indies fell initially to Seraphim de Freitas, a Portuguese theologian-jurist, professor at the University of Valladolid, in a treatise published in 1625 under the name De iusto imperio Lusitanorum Asiatico (On the Just Empire of the Portuguese in Asia). Vastly larger and longer than Grotius's mere pamphlet, De iusto imperio was highly critical not only of the youthful Grotius's arguments, but of its factual inaccuracies and misleading references and inferences as well.

Freitas contended that the right to free trade and navigation, whatever its roots in natural law, had never become a part of the law of nations. A sovereign could exclude foreigners from his territories or commerce and could forbid his subjects to trade with them. He conceded that the pope lacked an abstract right to accord dominion over newly discovered territories and peoples, but insisted that his authority as the spiritual dominus mundi entitled him to grant an exclusive right to spread the Christian faith and civilization. Since, to be effective, this right necessarily involves both trade and limited conquest, the pope had the authority to grant Portugal-Spain the right to exclude other powers from the east.

De iusto imperio was expanded upon four years later by a Spanish jurist named Juan de Solórzano Pereira (1575-1655), in a treatise entitled Disputationem de Indiarum iure. Scarcely known or written about by English-speaking scholars, De Indiarum iure is regarded by some Spanish scholars as the most systematic juridical formulation of the legitimacy of Spain and Portugal's 17th century claims. Unlike Freitas, Solórzano Pereira said that, regardless of the legitimacy of the 15th century papal grants on which they were said to be based, Portugal's actual control and occupation of the new territories were sufficient in themselves to satisfy the requirements for retrospective ownership (prescription) recognized in both Roman and customary law.

Neither Freitas's nor Solórzano Pereira's treatise had as much influence in the 17th century as their intellectual content warranted, perhaps because they were too learned and too long, but in any event because the center of intellectual interest and political power was shifting from Spain to England.

-- Notes by Edward Gordon

Solórzano Pereira, Juan de (1575-1655). De Indiarum jure (Lyons, 1672).
This work became the definitive treatise on the laws governing Spain’s overseas colonies.
Rare Book Collection, Lillian Goldman Law Library.

"Freedom of the Seas, 1609: Grotius and the Emergence of International Law," curated by Edward Gordon and Michael Widener, is on display October 2009 through January 2010 in the Rare Book Exhibition Gallery, Level L2, Lillian Goldman Law Library, Yale Law School.