Fernando Vazquez de Menchaca, Controversiarum illustrium libri tres
A judge in Philip II's service printed, in a book of forensic controversies, the propositions that neither pope nor emperor is lord of the world, that all men are equally free, that legitimate rule comes from the consent of the citizens, and that no nation has ever acquired the sea. He then applied the last of these to his own crown: the belief that only Spaniards and Portuguese may sail the ocean to the Indies he calls insane, and a dream. Read here from a sixteenth-century printing.
Why this wins its question: In English the freedom of the seas begins in 1609 with Grotius, and the Iberian powers appear in that story only as the defendants. The sources that win the question today either do not mention Vazquez de Menchaca or mention him in a subordinate clause. This object prints, from the sheets, what a serving judge of Philip II put in a book of forensic controversies decades earlier: a numbered summary in which "the sea has never ceased to be common" and "the Spaniards, the Portuguese, the Venetians and the Genoese have never prescribed the sea as their own" stand as consecutive heads, and a folio in which the belief of his own countrymen that only Spaniards may sail to the Indies is called insane and a dream. It also prints the reasoning - that prescription is a merely civil institution which cannot run between peoples recognising no superior, that navigation harms nobody but the navigator, that what prescription cannot acquire custom cannot acquire either - and the companion doctrine at folio 46 that neither pope nor emperor is lord of the world and that legitimate rule comes from the consent of the citizens. It refuses the tidy version by printing, from the same preface, the author's own contemptuous aside about the peoples of the new world, which no defence of the book survives being told about later.
Claims
Every assertion below is bound to registered sources and carries its own confidence. Weight them; do not treat the page as uniformly authoritative.
The text read for this object is a sixteenth-century printing of the Controversiarum illustrium aliarumque usu frequentium libri tres, catalogued by Google Books as the Venice printing of Zalterus, 1567. The printed title leaf is not among this copy's page images: the scan opens with the alphabetical index, runs the preface, and then the text. Nothing below is claimed about the year of first publication or about the year of this printing from the sheets themselves. What the sheets do establish is that the preface was written after February 1562, because it describes the session of the Council of Trent begun on 6 February of that year as past.
The author writes as a servant of the crown, not against it. The preface says that the session of Trent begun on 6 February 1562 was one "cui nos interfuimus", at which he was present, having been sent there by "potentissimo Hispaniarum Rege ac domino nostro Philippo" - Philip II - and it then recounts at length the dispute over precedence between the Spanish and the French doctors, the oration he was delegated to deliver, and the reply the legates gave. The Frankfurt title page of the same work styles him a senator in the supreme praetorium of the King of the Spains.
The preface states the natural-law limit on slavery that the rest of the book keeps returning to. Against a marginal heading "Servus homo iure naturae non est" it reports that the jurisconsults wrote of those who had been made slaves by the law of nations that they "iure naturae liberos permansisse" - remained free by the law of nature - citing the Digest title de regulis iuris and saying the point is made often elsewhere. The same page carries the sentence that there is no plague more deadly to justice than the doings of men who, while they most deceive or injure, contrive to be seen as good men.
In the twenty-first chapter, at folio 46, the doctrine that the emperor is lord of the world is taken apart in numbered conclusions with the marginal headings printed beside them. The text concludes "quod neque Christus, neque Papa, neque Imperator totius mundi dominus est, aut fuit in temporalibus de iure", that neither Christ nor the pope nor the emperor is or was of right lord of the whole world in temporal things, and that Adam alone appears to have been lord of the whole earth. The marginals against the following paragraphs read that the remaining princes are not subject to the Roman emperor even of right, against Baldus and others; that free cities are not subject to him, against the doctors; that he may not appoint magistrates in all the cities of the world; and that cities can elect a king for themselves, against the most recent writers.
The same chapter states the ground of that conclusion in terms of liberty and consent. It holds that the kings of the Spains, of France and the like are not of right subject to the Roman emperor, "quandoquidem non solum omnes reges, sed etiam omnes homines sunt per aeque liberi, & ab eius imperio exempti" - since not only all kings but all men are equally free and exempt from his rule - and it goes on to hold, against the doctrine of a lord of the whole world, that it is lawful for a people to elect a king for itself, and that every just and legitimate imperium has proceeded immediately and particularly from the consent of the people and the election of the citizens. The argument is conducted with and against Domingo de Soto, who is cited by book, question and article on both sides of it.
The dismissal of the world-lordship commonplace is made in the preface in terms the printer set without softening: let no one think it an obstacle that it is commonly said that the Roman emperor is lord of the whole world, for that is so far from the truth that it belongs "fabulis puerorum, aut anicularum nugis, aut umbrae soliciti somni" - with children's fables, or old wives' trifles, or the shadow of a troubled dream - and nothing could be said or thought more diametrically opposed to the providence, justice, equity and goodness of almighty God.
The doctrine of the sea is not buried in the body of the book but printed as a numbered summary at the head of chapter 89 of the second book, where a reader could find it without reading the chapter. Among its heads are 12, that public and common places cannot be prescribed; 15, whether the Venetians have prescribed the sea; 16, whether the Venetians and Genoese can forbid others to sail through their gulfs; 17, that navigation is a royal right; 30, that the Venetians and Genoese cannot forbid those sailing through their own sea; 31, "Mare nunquam desiit esse commune", the sea has never ceased to be common; 32, "Hispani, aut Lusitani, aut Veneti, aut Genueses nunquam mare suum praescripserunt", the Spaniards, the Portuguese, the Venetians and the Genoese have never prescribed the sea as their own; 34, that the use of waters is common; 35, that man is bound to be of use to man; and 41, that an unjust law is prescribed at no time.
At folio 177 the argument is turned on the author's own monarchy, and this is the passage for which the book matters to the history of the Americas. He writes that he has often heard a great crowd of the Portuguese hold that their king has so prescribed the navigation of the western Indies that other nations may not cross those seas, and that among "ex nostrismet Hispanis", our own Spaniards, the common sort seems to be of nearly the same opinion, that across the vast and immense ocean to the regions of the Indians "quas potentissimi reges nostri Hispaniarum subegerunt", which our most powerful kings of the Spains have subdued, no mortals but Spaniards have the right to sail, as if that right had been prescribed by them. His verdict on both is flat: "tamen istorum omnium non minus insanae sunt opiniones" - the opinions of all these are no less insane - than those of the men accustomed to be in nearly the same dream about the Genoese and the Venetians.
The same folio gives the reasons rather than the assertion alone. Prescription does not run between foreigners, because the law of prescriptions is merely civil and ceases where the matter is between princes or peoples recognising no superior in temporals, so that recourse must be had to the primaeval or secondary law of nations; the sea and its dominion have been common from the beginning of the world to the present day and unchanged in that part, however far the dominion of lands departed from that law; the use of waters is common today just as it was from the beginning of the world, which is proved out of Ovid, "Quid prohibetis aquas? usus communis aquarum"; it is a precept of natural and divine law that what you do not wish done to yourself you should not do to another, and since navigation can harm nobody but the navigator himself it is right that it be impeded by nobody; and what cannot be acquired by prescription cannot be acquired by custom either, so that in the examples of the sea of the Spaniards, the Portuguese, the Venetians and the Genoese no such right of navigating and of forbidding others to navigate is established.
Folio 176 supplies the theory of the law of nations on which that rests, and it is a theory with an edge for any argument from long usage. It distinguishes the primaeval law of nations, brought forth together with the human race, from the secondary law of nations, which came in later among most peoples and is said to be positive, not fixed and immovable but changeable, and scarcely less so than the civil law. It says that at the beginning of the human race "nec essent captivitates, nec servitutes hominum, nec rerum soli dominia distincta, sed communia" - there were no captivities, no servitudes of men, and no distinct dominions of the soil but common ones - nor wars, sales, leases or partnerships; and that usages of the kind reported of Sparta, Persia and several African and Ethiopian peoples are "corruptelae & abusus, non mores, leges, aut usus", corruptions and abuses rather than customs, laws or usages, which could be prescribed at no time, justified by no enacted law, and made stable by no consent, hospitality or practice of many nations. Alfonso de Castro on penal law is cited by book, chapter and page for that limit.
What the book says about the peoples of the Americas themselves belongs on the record next to the rest, because it is not flattering and it stands in the same argument. In the preface, arguing that unqualified equality among men is not expedient, the text says that our men have well proved this "in indorum regionibus novi orbis subactis", in the subdued regions of the Indians of the new world, where everything is wild and almost untended, with no form of cities or of buildings or of agriculture arising from that equality of men, which makes men lazy and idle and slow to put their hands to work. The judgement is a sixteenth-century European commonplace about the Americas, it is asserted without evidence, and it sits a few lines from the passage in which the same writer denies that the emperor is lord of the world. This corpus records it as what the book prints, not as a description of the Americas.
The frame of that preface passage is the greatness of the Spanish monarchy, argued before the Council of Trent to win a point of precedence. It says that the king is greater than all other princes in power, dominion and rule, since besides Spain, Flanders and a good part of Italy subject to his rule, besides both Sicilies and many other islands obeying him, if you look to "novum Indorum orbem ab Hispanis repertum", the new world of the Indians discovered by the Spaniards, over which he himself is lord, you will find nearly innumerable nations and provinces obeying him, so that his empire extends not only longer and wider than that of other princes now living but than that of all others from the origin of the world.
The book did not die with its author. A separately catalogued copy carries a title page reading "Controversiarum usu frequentium D. Fernandi Vasquii Pinciani Menchacensis I.C. Hispani, et in summo Hispaniarum Regis Praetorio senatore: Pars posterior", printed "Francofurti ad Moenum, Typis Joannis Saurij. Prostat in Officina Feyrabendiana", announcing that in this edition the arguments of all the chapters, wanting in the other editions, have been added on the facing page so that the questions and matters treated can be seen at a glance. The date is set in halves on either side of the printer's device and reads 1606.
The work was also read inside the Spanish American administration. The treatise on the royal treasury of Peru by Gaspar de Escalona Aguero, in the Madrid edition of 1775, supports its account of the king's dominion over Peruvian land with a footnote citing "Menchac. illustrat. cap. 9. num. 4. & success. lib. 1. cap. 5.", that is the Controversiae illustres and Vazquez's treatise on successions, alongside Covarrubias, Antonius Faber and Alciato.
What this object does not establish should be said plainly. It makes no claim that Hugo Grotius drew the argument of Mare Liberum from this book; no source read for this entry says so, and the 1606 Frankfurt title page establishes only that the work was in print in northern Europe three years before Grotius published. It makes no claim about the year of first publication, because the title leaf is missing from the copy read. It makes no claim that the crown, the Council of the Indies or any court acted on the sea doctrine. Books I and III, the remainder of chapter 89, and the further sequence bound at the end of the volume were not opened.